Upton v. Hardeman

Decision Date15 October 2012
Docket NumberNo. S12A0854.,S12A0854.
Citation291 Ga. 720,732 S.E.2d 425
CourtGeorgia Supreme Court


Dana Elizabeth Weinberger, Asst. Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Mary Beth Westmoreland, Deputy Atty. Gen., Samuel S. Olens, Atty. Gen., for appellant.

Victor Hardeman, Jackson, pro se.

BENHAM, Justice.

This is an appeal by the warden from the partial grant of appellee Victor Hardeman's application for a writ of habeas corpus.1 The habeas court granted the writ and overturned appellee's conviction for kidnapping with bodily injury. For the reasons that follow, we reverse and remand with direction.

Appellee was convicted in 2003 of kidnapping with bodily injury, aggravated battery, false imprisonment, criminal attempt to commit robbery, and burglary. The trial court sentenced appellee to life imprisonment plus ten years 2 and the Court of Appeals and this Court affirmed his convictions. Hardeman v. State, 275 Ga.App. XXVI (2005), aff'd, 281 Ga. 220, 635 S.E.2d 698 (2006). This appeal is from the ruling in appellee's petition for habeas relief which he filed in June 2010. Appellee raised a single ground for relief claiming that the evidence of asportation was insufficient to sustain his conviction for kidnapping pursuant to this Court's decision in Garza v. State, 284 Ga. 696, 670 S.E.2d 73 (2008).3 To determine whether the asportation requirement has been met, Garza requires the following four factors to be considered:

(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.

Id. at 702, 670 S.E.2d 73. See also Jones v. State, 290 Ga. 670(1), 725 S.E.2d 236 (2012). After conducting a hearing, the habeas court overturned appellee's conviction and voided appellee's life sentence for kidnapping with bodily injury because it concluded that the fourth prong of the Garza test was not met. Specifically, it determined the movement of the victim did not “substantially” isolate the victim from rescue because appellee and his cohorts did not know the victim was expecting a repairman to arrive at the time they committed their crimes. The habeas court's order states that all four factors of the Garza test were applied, but the order does not contain any analysis of the first three factors of the test.

The record construed in a light most favorable to the verdict showed that [Appellee] and two acquaintances rang the doorbell of the victim's home, and the victim, who was awaiting a repairman, opened the door. [Appellee] and two men pushed into the victim's home, assaulting her, moving her upstairs to a laundry room and beating her about the face. [Appellee] repeatedly asked the victim where her money was. When the actual repairman rung the doorbell, [Appellee] and the other men waited a moment and then departed the victim's home.

Uncontroverted evidence in the record also showed that when the men first entered, they forced the victim into the kitchen where they bound her hands and covered her face with duct tape. Movement upstairs to the laundry room occurred thereafter.

We now apply Garza to the facts to assess whether the movement of the victim constituted asportation. Here, the asportation element is met under all four prongs of Garza. First, the movement was more than of minimal duration. As to the second prong, the movement of the victim did not occur while the other crimes were in progress.4 Thirdly, the movement of the victim was not inherent to the crimes of burglary, attempted robbery, false imprisonment, or aggravated battery. Indeed, with the victim bound in the kitchen, appellee and his cohorts could have carried out their crimes without moving the victim. Finally, the fourth prong of the Garza test was met because moving the victim to a more confined space like an upstairs laundry room served to give the perpetrators...

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5 cases
  • Levin v. Morales
    • United States
    • Georgia Supreme Court
    • October 6, 2014
    ...a significant danger to the victim independent of the danger posed by the separate offense.(Citation omitted.) Upton v. Hardeman, 291 Ga. 720, 732 S.E.2d 425 (2012). Generally, all factors of the Garza test need not be met to establish asportation. Wilkerson v. Hart, 294 Ga. 605(3), 755 S.E......
  • Mercer v. Johnson
    • United States
    • Georgia Supreme Court
    • August 14, 2018
    ...element supports asportation when the offenses occur either before or after the movement of the victim. See Upton v. Hardeman , 291 Ga. 720, 721, n. 4, 732 S.E.2d 425 (2012) (explaining that the second prong of the test supported asportation because the crimes occurred before and after the ......
  • White v. State, A15A0020.
    • United States
    • Georgia Court of Appeals
    • June 15, 2015
    ...his source of communication with others in order to isolate him and to make it easier to inflict bodily injury. See Upton v. Hardeman, 291 Ga. 720, 722, 732 S.E.2d 425 (2012) ; Hammond, 289 Ga. at 145(2), 710 S.E.2d 124. Compare Sellers v. State, 325 Ga.App. 837, 844(2), 755 S.E.2d 232 (201......
  • Inagawa v. Fayette Cnty.
    • United States
    • Georgia Supreme Court
    • October 15, 2012
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