McGinnis v. State
| Decision Date | 21 May 1987 |
| Docket Number | No. 74285,74285 |
| Parties | McGINNIS v. The STATE. |
| Court | Georgia Court of Appeals |
Walter Van Heiningen, Thomasville, for appellant.
H. Lamar Cole, Dist. Atty., James E. Hardy, Asst. Dist. Atty., for appellee.
Defendant appeals his convictions of criminal attempt to kidnap (count one), OCGA § 16-4-1 and 16-5-40, and criminal trespass (count two), OCGA § 16-7-21(a).
The victim, after visiting her mother in the hospital and talking with her sister in the parking lot, proceeded to her parked automobile. When she attempted to drive off she discovered one of her tires was flat. Defendant appeared in his truck and offered to help but then claimed he was unable to loosen the lug nuts. He then offered to drive the victim to a service station, which she declined. In his own words, he then "asked her if she wanted to ride around" and the victim replied "no." According to the victim, as she began to walk past defendant's truck with the door open he grabbed her arm, turned her around, grabbed her by both breasts, held her and exclaimed: "Bitch, you're mine." After a struggle in which "he kind of was pulling backwards and I was pulling this way," she broke free and proceeded towards a pay phone at the hospital. On the way she met her brother who had seen that her automobile had a flat tire from the hospital room and went downstairs to her aid. Security was informed and the police were called. Meanwhile, defendant departed.
The victim's brother, though smaller than defendant, easily unscrewed the lug nuts and changed the tire. He and the investigating officer noticed a slash on the tire which was described by the brother and an officer as "cut." The victim, who had just purchased four new "recap" tires and had them balanced the day before, gave no one permission to cut the tire. The brother noticed the defendant's truck driving around the parking lot during the day, and a security guard noticed the truck had been in the lot "a couple or three times" over the course of several days before the incident. Defendant testified he was only in town on that day looking for his uncle and had not previously been in the parking lot.
1. Defendant contends the evidence was insufficient to sustain his conviction for criminal attempt to kidnap.
Kidnapping occurs when one abducts or steals away any person without lawful authority and holds that person against his will. OCGA § 16-5-40(a). " " Brown v. State, 132 Ga.App. 399, 402(2), 208 S.E.2d 183 (1974). Accord Haynes v. State, 249 Ga. 119(1), 288 S.E.2d 185 (1982). The other element consists of holding the victim against his will. Helton v. State, 166 Ga.App. 662, 663(1), 305 S.E.2d 592 (1983); Padgett v. State, 170 Ga.App. 98, 99(1), 316 S.E.2d 523 (1984).
A criminal attempt consists of three elements: 1) an intent to commit the specific crime; 2) performing an overt act towards the crime's commission; 3) a failure to consummate the crime. Howell v. State, 157 Ga.App. 451, 454(4), 278 S.E.2d 43 (1981). The overt act (described as "a substantial step towards the commission of the crime" by OCGA § 16-4-1) "must be such as would be proximately connected with the completed crime." Fears v. State, 152 Ga.App. 817, 821(2), 264 S.E.2d 284 (1979). It must be inexplicable as a lawful act and more than mere preparation. Bell v. State, 118 Ga.App. 291, 292, 163 S.E.2d 323 (1968).
The victim was grabbed and restrained against her will. This was one of the elements of kidnapping. If there had been asportation the offense would have been consummated. There was evidence from which a jury could find that defendant intended to take the victim away in his truck and was thwarted only by her resistance. Arrington v. State, 48 Ga.App. 64, 68, 171 S.E. 874 (1933), affirmed a conviction for attempting to kidnap where the perpetrator "made a grab for" the victim but the "grab failed."
"On appeals from findings of guilty, the presumption of innocence no longer prevails, the fact finders have determined the credibility of witnesses, [and] the fact finders have been convinced beyond reasonable doubt." Baker v. State, 151 Ga.App. 636, 260 S.E.2d 759 (1979). The jury is the final arbiter of evidence in conflict, so the verdict will be upheld where discrepancies appear. Herrington v. State, 177 Ga.App. 632(1), 340 S.E.2d 637 (1986). In light of these principles, the evidence was sufficient to allow it, as a rational trier of fact, to find defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Defendant also challenges the sufficiency of evidence to support his conviction for criminal trespass. It was based on the
jury's finding that he damaged property (the automobile tire) of another person (the victim) without her consent and the damage was $500 or less. OCGA § 16-7-21(a).
The victim testified the tire was hers, and it was introduced into evidence. The facts involving property of another, lack of consent and the monetary amount of the damage were adequately established. See Mallory v. State, 164 Ga.App. 569, 570(2), 298 S.E.2d 290 (1982), as to proving value and amount of damage.
Only circumstantial evidence, however, points to defendant as the perpetrator. The proven facts must be inconsistent with innocence to uphold a conviction on circumstantial evidence. Riley v. State, 1 Ga.App. 651, 57 S.E. 1031 (1907). It is only necessary to exclude reasonable inferences or hypotheses, not every inference, Chambless v. State, 165 Ga.App. 194, 300 S.E.2d 201 (1983), but a suspicion of guilt is not sufficient, Hall v. State, 155 Ga.App. 211, 212, 270 S.E.2d 377 (1980), nor is mere presence at the scene. Wright v. State, 147 Ga.App. 111, 112, 248 S.E.2d 183 (1978).
Here one could conclude that defendant had a motive to cut the tire, that is, to facilitate a scheme to abduct the victim, but it is also possible that he merely took opportunistic advantage of the woman in distress and used that happenstance to initiate his criminal enterprise. There was no evidence that he was around her car earlier so as to have the opportunity to disable the car by cutting the tire before she returned and found a problem necessitating help. There was no evidence that he knew, before her return, that a lone woman would be coming to the car shortly. There was no evidence that he knew her or knew she was there.
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