Onumah v. State

• Decision Date: 12 December 2011
• Docket Number: No. A11A0807.,A11A0807.
• Citation: 313 Ga.App. 269,11 FCDR 3794,721 S.E.2d 115
• Parties: ONUMAH v. The STATE.
• Court: Georgia Court of Appeals

11 FCDR 3794

313 Ga.App. 269

721 S.E.2d 115

ONUMAH

v.The STATE.

No. A11A0807.

Court of Appeals of Georgia.

Nov. 15, 2011.Reconsideration Denied Dec. 12, 2011.

David Joseph Walker, Decatur, for appellant.

Tracy Graham–Lawson, Dist. Atty., Lisa Lynn Wells, Billy J. Dixon, Asst. Dist. Attys., for appellee.

ADAMS, Judge.

Kalu Tumi Owens Onumah was convicted by a jury of six counts of armed robbery, six counts of aggravated assault, six counts of kidnapping, six counts of false imprisonment, one count of obstruction of an officer and one count of possession of marijuana. After merging the aggravated assault convictions with the armed robbery convictions, the trial court sentenced Onumah to life in prison with the possibility of parole on each of the armed robbery counts, twenty years to serve on each kidnapping count, ten years to serve on each of the false imprisonment counts and twelve months to serve on the remaining counts, all to run concurrently. He appeals following the denial of his motion, as amended, for new trial.

1. Onumah first argues that the trial judge erred by finding that she was required

to sentence him to life in prison on his armed robbery convictions pursuant to OCGA § 17–10–7(a). However, this contention has previously been decided adversely to Onumah. State v. Baldwin, 167 Ga.App. 737, 739(3), 307 S.E.2d 679 (1983); see also Singleton v. State, 293 Ga.App. 755, 756–757(2), 667 S.E.2d 711 (2008); Perkinson v. State, 265 Ga.App. 502, 502–503(3), 594 S.E.2d 381 (2004); State v. Scott, 265 Ga.App. 387, 593 S.E.2d 923 (2004).

2. Onumah next argues that his kidnapping convictions must be reversed because, as to each victim, the evidence of asportation was insufficient.

The crimes in this case were committed on April 1, 2009, and Onumah was tried in March 2010. Thus, the trial court correctly charged the jury on this issue pursuant to Garza v. State, 284 Ga. 696, 701–702(1), 670 S.E.2d 73 (2008), as the post- Garza amendment to the kidnapping statute applies only to crimes committed on or after July 1, 2009. OCGA § 16–5–40.

As applicable here, four factors are considered in determining the sufficiency of the evidence of asportation in kidnapping cases. Those four factors are:

(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.

Garza, 284 Ga. at 702(1), 670 S.E.2d 73.

However, as our Supreme Court has noted “[i]n cases where the Garza standard is applicable, this Court has not required the satisfaction of all four factors to establish that asportation has occurred.” Hammond v. State, 289 Ga. 142, 144(2), 710 S.E.2d 124 (2011). Rather, even when the movement is of minimal duration and occurs before or during the commission of other offenses, asportation has been satisfied where the movement is not an “inherent part” of any other offense, and the “movement create[s] an additional danger to the victims by enhancing the control” of the perpetrators. Tate v. State, 287 Ga. 364, 366(1)(a), 695 S.E.2d 591 (2010). “The test was designed to determine whether the movement was one ‘serving to substantially isolate the victim from protection or rescue—or merely a “criminologically insignificant circumstance” attendant to some other crime.’ Garza, 284 Ga. at 702(1), 670 S.E.2d 73.” Wright v. State, 300 Ga.App. 32, 34(1), 684 S.E.2d 102 (2009).

In this case, the evidence showed that on April 1, 2009, four men, two of them carrying guns, entered the Pawn Mart located in Forest Park, Georgia at about 6:00 p.m., which was closing time. At the time they entered there were three employees and three customers in the store. All of the victims except the store manager were in the front part of the store, and they were ordered to get down on the floor; the perpetrators “ushered” them, at gunpoint, into the back office where a safe was located, shut the office door and ordered everyone not to move and to keep their heads down. The store manager, who had been in the office talking on the phone with the district manager when the robbers entered the shop, stepped out of the office toward the front of the store but he too was ordered down on the floor and back into the office. Once everyone was in the office, the store manager was ordered to open the safe, and jewelry and cash were removed. The perpetrators also took personal belongings, such as wallets, debit cards, jewelry and calculators from some of the people in the store. The perpetrators then left the store, the store manager locked the door and the police were called. About an hour after the robbery, police located black bags containing the items taken from the safe.

Based on these events, Onumah was charged with separate counts of kidnapping for each person in the store at the time of the robbery. As to the five customers and employees who were in the front of the store at the time the robbers entered, it is apparent from both the testimony and videotape of the events that moving those victims into the office was not an “inherent part” of the robbery, but was done to isolate them from outside view and to significantly decrease the chance they could summon assistance. This movement was not necessary to complete the robbery, as the other victim, the store manager, was the person they got to open the safe, and the presence of the other victims in the room was not incidental to the furtherance of the crime. Further, the perpetrators could have taken the victims' belongings when they were forced to the floor after the men entered the store, without moving them into a more isolated space.

Although the question is closer as to the store manager, Jack Butcher, who was already in the office when the robbers entered the store, one camera view on the videotape introduced at trial shows, as stated above, that he came out of the office when the robbers came in, but that they forced him to the floor, and then back into the office where the other victims were also taken. Thus, while he was closer to the office when the perpetrators entered the shop and was moved a shorter distance back into the office than the other victims, he too was forced first to the floor and then back into the office. This movement clearly enhanced the...