Howard v. the State.

• Court: Georgia Court of Appeals
• Writing for the Court: BLACKWELL, Judge.
• Citation: Howard v. the State., 310 Ga.App. 659, 714 S.E.2d 255, 11 FCDR 2451 (Ga. App. 2011)
• Decision Date: 07 July 2011
• Docket Number: No. A11A0602.,A11A0602.
• Parties: HOWARDv.The STATE.

310 Ga.App. 659

714 S.E.2d 255

11 FCDR 2451

HOWARD

v.The STATE.

No. A11A0602.

Court of Appeals of Georgia.

July 7, 2011.

John Gee Edwards, Valdosta, for appellant.J. David Miller, Dist. Atty., Bradfield M. Shealy, Asst. Dist. Atty., for appellee.BLACKWELL, Judge.

Kenneth Howard was tried by a Lowndes County jury and convicted of kidnapping ¹ and possession of a firearm during the commission of a felony.² He now appeals, contending that the evidence adduced at his trial is insufficient to sustain his convictions, that the prosecuting attorney made impermissible comments about his character in the presence of the jury, and that he was deprived at trial of the effective assistance of counsel. We find no merit in these contentions and affirm his convictions.

1. We consider first whether the evidence is sufficient to sustain Howard's convictions. To this end, we ask whether any rational jury could find proof of his guilt beyond a reasonable doubt in the evidence adduced at trial, viewing that evidence in the light most favorable to the verdict. Ferguson v. State, 307 Ga.App. 232, 233(1), 704 S.E.2d 470 (2010). And when we consider this question, we must keep in mind that it is for the jury, not this Court, to resolve conflicts in the evidence, weigh the evidence, and draw reasonable inferences from the evidence. Id. So, if the record contains some competent evidence to prove each element of the crimes of which the defendant was convicted, even if that evidence is controverted, we must uphold the conviction. Id.

Viewed in the light most favorable to the verdict, the evidence shows that, on May 7, 2007, the driver of a Pepsi–Cola delivery truck made a delivery to a Wal–Mart in Valdosta, where the driver stocked several vending machines and collected money from the machines, which he then put into a safe in his delivery truck. As the driver was leaving the Wal–Mart, a man jumped into the cab of the truck, pointed a handgun at the driver, and chambered a round. The gunman asked if the driver knew what he wanted, to which the driver responded that he did, and the gunman replied: “Don't do nothing stupid, and there won't be no trouble.” The gunman then told the driver to drive away, occasionally instructing the driver to turn onto a crossroad and eventually directing the driver to a secluded dirt road, more than six miles from the Wal–Mart. As they drove, the driver told the gunman that the driver did not know the combination to open the safe, and the gunman said that other people were following the truck and that they would be displeased if he could not get any money from the driver. The gunman finally asked the driver if he had anything else of value in the truck, and the driver offered to give the gunman credit cards and Pepsi products. The gunman declined this offer, but when the truck stopped on the dirt road, the gunman took a cell phone from the driver, exited the truck, and disappeared.

After the driver notified law enforcement of the robbery, officers spoke with a witness who said that he had seen a Pepsi–Cola delivery truck driving down the dirt road—an unusual sight, according to this witness—followed closely by a purple PT Cruiser. An investigator with the Lowndes County Sheriff's Office then reviewed video recordings from surveillance cameras at the Wal–Mart,³ and these video recordings show that someone drove a PT Cruiser into the Wal–Mart parking lot around three o'clock on the afternoon of the robbery and parked there for nearly two hours, moving several times to different parking spaces, all within sight of the Pepsi–Cola delivery truck, which then was parked in the front of the store. The recordings depict a passenger exiting the PT Cruiser, entering the Wal–Mart, and then returning later to the PT Cruiser. The recordings also show that, around five o'clock, the passenger again exited the PT Cruiser and began to walk toward the intersection at which, according to the delivery truck driver, a man jumped into the truck. And the recordings show that, only moments later, the driver of the PT Cruiser pulled directly in front of the delivery truck as it was leaving the Wal–Mart.

The investigator obtained a photograph of the passenger as he entered the Wal–Mart on the afternoon of the robbery, and the investigator took this photograph to the Pepsi–Cola facility at which the driver worked. ⁴ Someone at the facility identified the passenger as Howard, a former Pepsi–Cola employee. The investigator then contacted Howard and arranged to interview him. Howard admitted that he had been at the Wal–Mart on May 7, but he said at first that he had gone there to meet his girlfriend. When the investigator began to probe the details of his story, Howard volunteered that he had hitched a ride with the Pepsi–Cola delivery driver, and Howard claimed that the driver had driven him home. Howard was arrested, and by monitoring telephone calls that Howard made from the jail, the investigator was able to identify the person who drove the PT Cruiser, who also was arrested. The driver of the PT Cruiser subsequently gave several statements to police, admitting in one, among other things, that he drove to a dirt road on the afternoon of May 7 and there picked up Howard.

Howard testified at his trial and told the jury that he and the driver had hatched a plan to steal soft drinks from Pepsi–Cola and sell them on the side to retailers. According to Howard, they never followed through on their plan, but when Howard saw the driver at the Wal–Mart on May 7, he flagged down the driver to ask if the driver still wanted to “hustle” soft drinks from his truck. The driver agreed, Howard said, and they drove to a convenience store to try to sell the soft drinks in the truck. At some point, however, Howard claims that he changed his mind and that the driver stopped and let him out of the truck on a dirt road.

Howard does not dispute that the evidence adduced at trial is sufficient to show that he entered the delivery truck on May 7, pointed a gun at the driver, and attempted to rob the driver, but it is insufficient, Howard says, to prove that he kidnapped the driver.⁵ Under Georgia law, “[a] person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will.” OCGA § 16–5–40(a). Howard contends that the evidence adduced at his trial does not prove beyond a reasonable doubt that he abducted or stole away the driver. We disagree.

For guidance on this issue, we look to Garza v. State, 284 Ga. 696, 670 S.E.2d 73 (2008), in which our Supreme Court identified four factors to be considered in assessing whether a specific movement amounts to abduction or stealing away:

(1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.

284 Ga. at 702(1), 670 S.E.2d 73. The Supreme Court also explained that the terms “abduction” and “stealing away” both “connote a literal taking from one place to another.” ⁶ Id. at 700(1) n. 3, 670 S.E.2d 73. According to Garza, the ultimate test of whether movement amounts to abduction or stealing away is whether the movement “is in the nature of the evil the kidnapping statute was originally intended to address ... movement serving to substantially isolate the victim from protection or rescue.” Id. at 702(1), 670 S.E.2d 73.

Considering these factors leads us inevitably to the conclusion that the evidence is sufficient to sustain the kidnapping conviction in this case. The driver was forced at gunpoint to drive more than six miles, a substantial distance. The movement from a Wal-Mart parking lot to a secluded dirt road isolated the driver and made it less likely that law enforcement officers or bystanders would discover his predicament and come to his aid. And the movement made it less likely that Howard would be seen by eyewitnesses, which gave him greater freedom to do as he wished with the driver. In short, the evidence is overwhelming that the movement in this case served “to substantially isolate the victim from protection or rescue,” and for this reason, the evidence of abduction or stealing away is more than sufficient to sustain the kidnapping conviction.⁷

2. We consider next the contention that, while cross-examining Howard, the prosecuting attorney improperly commented on his character. Specifically, Howard complains about this line of cross-examination:

Q. And you left Pepsi–Cola Company; your last work day was October 9, 2006, wasn't it?

A. I can't recall. I know it was in October.

Q. October 9th?

A. I can't recall.

Q. Termination date October 12, 2006; is that correct?

A. Excuse me?

Q. Your last day you went to work was October 9th, and your termination date was October 12, 2006, wasn't it?

A. It was in October.

Howard says that the references to “termination date” imply that he was fired from his job at Pepsi–Cola for misconduct and, therefore, implicate his character. We disagree.

The word “termination,” used with reference to employment, means simply the “end” or “conclusion” of employment. See Webster's New International Dictionary at 2605 (2nd ed. 1959). Whether an employee is fired for misconduct, is laid off as part of a reduction in force, or voluntarily resigns, his employment is “terminated,” so the use of the word in the context in which it was used in this case does not clearly implicate the character of the terminated employee. In that sense, this case is like Richardson v. State, 173 Ga.App. 695, 696(2), 327 S.E.2d 813 (1985), in which we held that a reference to the defendant having “been in some trouble” did not put his character at issue because it was unclear what was meant by “trouble.” The prosecuting attorney did not...