Jones v. State

• Decision Date: 05 March 2012
• Docket Number: No. S12A0040.,S12A0040.
• Citation: 290 Ga. 670,12 FCDR 739,725 S.E.2d 236
• Parties: JONES v. The STATE.
• Court: Georgia Supreme Court

290 Ga. 670

725 S.E.2d 236

12 FCDR 739

JONES

v.The STATE.

No. S12A0040.

Supreme Court of Georgia.

March 5, 2012.

Robert M. Bearden, Jr., for appellant.

Gregory W. Winters, Dist. Atty., Samuel S. Olens, Atty. Gen., Paula K. Smith, Sr. Asst. Atty. Gen., for appellee.

CARLEY, Presiding Justice.

After a jury trial, Christopher Jones was found guilty of the aggravated assault of Cindy Hurst and the kidnapping of her and of her six-year-old and 18–month–old daughters. The trial court entered judgments of conviction on the guilty verdicts and sentenced Jones to concurrent terms of ten years for the aggravated assault, five years for the kidnapping of Ms. Hurst, and 25 years for each of the other two counts of kidnapping. The trial court denied a motion for new trial with respect to the aggravated assault conviction. That conviction was appealed by Jones and, after transfer of the case by this Court, was affirmed by the Court of Appeals. Jones v. State, 294 Ga.App. 564, 669 S.E.2d 505 (2008). However, the trial court granted a new trial on the kidnapping convictions based on ineffective assistance of counsel and further held that the mandatory 25–year sentence set forth in OCGA § 16–5–40 for kidnapping a child under the age of 14 constituted cruel and unusual punishment as applied to Jones. On interlocutory appeal by the State, this Court determined that the ineffective assistance claim had been waived, reversed the grant of a new trial, vacated the constitutional ruling as premature, and remanded the case to the trial court for consideration of the remaining issues raised in the motion for new trial. State v. Jones, 284 Ga. 302, 667 S.E.2d 76 (2008). On remand, the trial court denied the motion for new trial in its entirety. Jones appeals from that order pursuant to the trial court's grant of an out-of-time appeal.

1. Jones contends that the State did not prove his guilt beyond a reasonable doubt of any of the kidnapping charges. Construed most strongly in support of the verdicts, the evidence shows that, a few days after Jones moved to Georgia to live with Ms. Hurst, he became angry with her and beat her with his hands and fists in the children's presence. Jones subsequently forced Ms. Hurst to get into his car with the two children and to direct him to the interstate. Jones dropped the victims off between 10 and 20 minutes later in an unfamiliar neighborhood about three and a half miles from their residence.

Jones primarily argues that there was insufficient evidence of the asportation element of kidnapping under Garza v. State, 284 Ga. 696, 670 S.E.2d 73 (2008). As Jones' acts occurred prior to the July 1, 2009 effective date of OCGA § 16–5–40(b), the test set forth in Garza applies to this case. Hammond v. State, 289 Ga. 142, 143, fn. 2, 144(1), 710 S.E.2d 124 (2011); Brown v. State, 288 Ga. 902, 905(3), fn. 2, 708 S.E.2d 294 (2011).

Garza sets out four factors that should be considered in determining whether the asportation element of kidnapping is met: “(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.” [Cit.] In cases where the Garza standard is applicable, this Court has not required the satisfaction of all four factors to establish that asportation has occurred. [Cit.] In fact, this Court has even found asportation when only two of the Garza factors were present. [Cit.]

Hammond v. State, supra at 144–145(2), 710 S.E.2d 124. However, in the case now before us, all four factors have been satisfied. The duration of the movement to the car and while riding therein “was not brief or momentary....” Brown v. State, supra at 905(3), 708 S.E.2d 294 (eight minutes). “[S]uch movement was not an inherent part of the [aggravated assault]; in fact, it occurred after the offense of [aggravated assault] had been completed.” Henderson v. State, 285 Ga. 240, 245(5), 675 S.E.2d 28 (2009). See also Horne v. State, 298 Ga.App. 601, 604(1), 680 S.E.2d 616 (2009). Furthermore, the movement presented a significant danger to the victims apart from the separate offense because it enhanced Jones' control over them, serving substantially to isolate them from protection or rescue and increasing the risks that further injury would occur in the event of an attempted escape and that the victims would be, as indeed they were, taken to a second location unknown to Ms. Hurst. See Hammond v. State, supra at 145(2), 710 S.E.2d 124;Henderson v. State, supra;Aldridge v. State, 310 Ga.App. 502, 504(1)(b), 713 S.E.2d 682 (2011).

Relying on his pre-trial statement, Jones also asserts that Ms. Hurst gave perjured testimony and that he had not committed aggravated assault and did not force or threaten the victims. However, Ms. Hurst's testimony showed otherwise. “ ‘The credibility of witnesses and the weight to be given their testimony are questions for the trier of fact, and (we do not) determine or question how the jury resolved any conflicts in the evidence.’ [Cit.]” Jones v. State, supra at 566(1), 669 S.E.2d 505. See also Butler v. State, 273 Ga. 380, 382(4), 541 S.E.2d 653 (2001). We conclude that the evidence was sufficient to enable a rational trier of fact to find Jones guilty beyond a reasonable doubt of all three counts of kidnapping. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Jones v. State, supra at 565–566, 669 S.E.2d 505.

2. Jones urges that the three kidnapping convictions should have been merged into the aggravated assault convictions, or vice versa, or that two of the kidnapping convictions should have been merged into the other kidnapping conviction.

Under Georgia law, certain convictions merge and multiple punishment is precluded where the same conduct establishes the commission of more than one crime, and the one crime is included in the other.... [Cit.] See OCGA § 16–1–7(a); Drinkard v. Walker, 281 Ga. 211, 212–213, 636 S.E.2d 530 (2006). But the merger doctrine does not apply if each of the charged crimes was committed against a different victim. [Cits.]

Carmichael v. State, 305 Ga.App. 651, 653(2), 700 S.E.2d 650 (2010). “It is evident from the wording of [OCGA § 16–1–6(1) ] that the legislature did not intend one crime to be included within another if each crime affected a different person.” Harshaw v. State, 134 Ga.App. 581, 582(3), 215 S.E.2d 337 (1975). See also Jordan v. State, 242 Ga.App. 408, 409(2), 530 S.E.2d 42 (2000), disapproved on other grounds, Shields v. State, 276 Ga. 669, 671(3), fn. 13, 581 S.E.2d 536 (2003). Thus, Jones' contention that the trial court erroneously failed to merge the three kidnapping counts with each other “is specious since those counts involved different victims.” Gioia v. State, 307 Ga.App. 319, 321(3), 704 S.E.2d 481 (2010). Although the kidnapping convictions arose from the same acts, they did not merge because each count was based on harm to a different person. Gaither v. State, 312 Ga.App. 53, 55(2), 717 S.E.2d 654 (2011).

Furthermore, “ ‘[t]he rule prohibiting more than one conviction if one crime is included in the other does not apply unless “the same conduct” of the accused establishes the commission of multiple crimes. (Cits.)’ [Cit.]” McCloud v. State, 284 Ga. 665, 666(3), 670 S.E.2d 784 (2008). As the aggravated assault involved different conduct from the kidnapping and was completed prior thereto, it is abundantly clear that “the same conduct did not establish the commission of both offenses, and accordingly, the court did not err in declining to merge” the kidnapping counts with the aggravated assault. Walker v. State, 306 Ga.App. 16, 18(2), 701 S.E.2d 523 (2010). See also McCloud v. State, supra.

Even if the kidnapping counts did involve the same conduct as the aggravated assault, neither is included in the other after application of the “required evidence” test set forth in Drinkard. “Kidnapping requires proof of asportation, [cit.] which aggravated assault does not. The aggravated assault did not require movement or holding the victim against her will.” Williams v. State, 307 Ga.App. 675, 680(3), 705 S.E.2d 906 (2011).

Aggravated assault as charged in this case required proof that [Jones] used his hands [and feet], with either the intent to cause a violent injury or which placed the victim in reasonable fear of receiving a violent injury. The kidnapping charge[s] did not require such proof. Because each of the two crimes at issue requires proof of at least one fact which the other does not and the State provided such proof, the crimes do not merge....

Mayberry v. State, 301 Ga.App. 503, 512–513(6), 687 S.E.2d 893 (2009).

3. In State v. Jones, supra at 302–303(1), 667 S.E.2d 76, we held that certain claims of ineffective assistance of trial counsel were not timely raised on motion for new trial. However, in both that motion and this appeal, appellate counsel has raised the issue of whether trial counsel rendered ineffective assistance by failing to raise the constitutionality of the mandatory minimum sentence of 25 years imprisonment without parole, as currently codified in OCGA §§ 16–5–40(d)(2) and 17–10–6.1(b)(2), for kidnapping a victim less than 14 years old. Contrary to Jones' initial argument, the trial judge on remand was authorized to rule on this constitutional issue because we had vacated the prior trial court ruling on the issue. State v. Jones, supra at 304(3), 667 S.E.2d 76.

As recognized by the trial court on remand, no constitutional challenges to the sentencing statutes were raised until the motion for new trial. A constitutional attack on a sentencing statute, unlike a statute under which a criminal defendant is prosecuted, may be made after the guilty verdict is returned, as the first opportunity to challenge such a statute does not occur...