Padgett v. State
| Decision Date | 20 February 1984 |
| Docket Number | No. 67563,67563 |
| Citation | 170 Ga.App. 98,316 S.E.2d 523 |
| Parties | PADGETT v. The STATE. |
| Court | Georgia Court of Appeals |
William U. Hyden, Jr., Summerville, for appellant.
David L. Lomenick, Jr., Dist. Atty., for appellee.
Elaine Pettyjohn reported to the Chattooga County sheriff's department that a stranger whom she had agreed a few minutes earlier to transport from a local shopping center to a nearby manufacturing concern had pointed a gun at her while a passenger in her pickup truck, and had ordered her to turn off on a road leading to a neighboring cemetery. Pettyjohn testified that when she reached the specified road she realized that she was more frightened of accompanying her assailant to an isolated place than of risking being shot for defiance, and therefore had continued driving down the main highway. The passenger/assailant then ordered her to turn at the next road. Upon reaching the latter intersection she slammed on the brakes and screamed at the assailant to get out of the truck and leave her alone. The assailant then left the truck, and Pettyjohn sped away and called the sheriff from a friend's place of business. The dispatcher who took the call asked her to come to the office and provide further details regarding the incident.
Upon arriving at the sheriff's office, Pettyjohn was asked to examine a group of seven photographs all depicting persons with the general physical characteristics she had described in her telephone report. She was not told that the picture of a specific suspect was included in the array. She immediately identified a photograph of appellant Padgett as that of her assailant. As she was leaving the sheriff's office, she suddenly turned and ran back inside, explaining to officers there that she had just seen her assailant standing in another part of the building. This person was Padgett, who had been picked up and taken into custody on the basis of the description broadcast by the dispatcher. He was subsequently indicted on a charge of kidnapping. OCGA § 16-5-40 (Code Ann. § 26-1311(a)).
At trial appellant denied any part in the kidnapping and offered, inter alia, an alibi defense. He offered no corroborating evidence, however. His testimony differed in a number of significant respects from that of arresting and investigative officers and from his own prior statements. A jury found him guilty as charged, and the trial court sentenced him to twenty years' imprisonment. On appeal Padgett enumerates as error the court's refusal to give two requested jury instructions on lesser included offenses; the denial of appellant's motion for a directed verdict of acquittal; and the court's giving an allegedly burden-shifting instruction on identity. Held:
1. We find no merit in appellant's first two enumerations. The trial court is obligated to give a properly requested instruction on lesser included offenses only if the evidence warrants such an instruction. State v. Stonaker, 236 Ga. 1, 2, 222 S.E.2d 354 (1976). Appellant argues that since the road actually traveled in the truck was the same road Pettyjohn would have taken to go to her own original destination, and, moreover, that since Pettyjohn did not obey her passenger's instructions to turn off on certain roads, the evidence would support at most a charge of criminal attempt at kidnapping, OCGA § 16-4-1 (Code Ann. § 26-1001), rather than the completed crime, and that the jury should have been instructed on criminal attempt. He further contends that, since there was no completed kidnapping, the jury should have been instructed on pointing a gun at another. OCGA § 16-11-102 (Code Ann. § 26-2908). This argument is more ingenious than persuasive.
"Criminal attempt" requires a "substantial step" towards the completed offense. OCGA § 16-4-1 (Code Ann. § 26-1001). The evidence in the instant case shows that, the victim's non-compliance notwithstanding, appellant's actions constituted an actual kidnapping in that the victim was held, even though briefly, against her will (she testified that the entire episode lasted no longer than ten minutes). Haynes v. State, 159 Ga.App. 34, 283 S.E.2d 25 (1981), rev'd on other grounds 249 Ga. 119, 288 S.E.2d 185 (1982). That the asportation was of short duration is without legal significance: Georgia courts have held that asportation for a distance of 100 yards, or even twenty-five feet, is sufficient to establish the offense of kidnapping. Waters v. State, 248 Ga. 355, 283 S.E.2d 238 (1981); Brown v. State, 132 Ga.App. 399, 208 S.E.2d 183 (1974). What is significant is that appellant even momentarily caused the victim, "without lawful authority or warrant," through intimidation and...
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McGinnis v. State
...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 ......
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...and coercion, to engage in actions (including moving from one place to another) 'against [their] will[s].' [Cit.]" Padgett v. State, 170 Ga.App. 98, 100, 316 S.E.2d 523 (1984). The evidence clearly authorized a finding that the nurse was forced, against her will, to enter the office and app......
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...requested instruction on lesser included offenses only if the evidence warrants such an instruction. [Cit.]" Padgett v. State, 170 Ga.App. 98, 99(1), 316 S.E.2d 523 (1984). In this case, the jury was asked to decide whether or not Lemattey actually took the keys from the victim at gunpoint;......
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