Cert. applied for.
Kidnapping, etc. Douglas Superior Court. Before Judge McClain.
Cynthia W. Harrison, for appellant.
Brian K. Fortner, District Attorney, Emily K. Richardson, Assistant District Attorney, for appellee.
After a jury trial, Thad Lee Ashley was convicted of kidnapping, criminal attempt to kidnap, entering an automobile, and criminal trespass. He argues, among other things, that the evidence was insufficient to support his kidnapping and attempted kidnapping convictions and that the trial court erred in admitting character evidence. We agree that the challenged evidence improperly placed Ashley's character into issue and, accordingly, we reverse. We find, however, that the other evidence was sufficient to support the convictions, and therefore Ashley may be retried. See Lively v. State, 262 Ga. 510, 512 (3) (421 S.E.2d 528) (1992).
1. Sufficiency of the evidence.
In considering whether the evidence was sufficient to support a defendant's conviction, " the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979) (citation omitted; emphasis in original). So viewed, the evidence showed that in September 2011, Ashley was subject to a criminal trespass warning that barred him from the mobile home park in which his father lived. Nevertheless, on September 4, Ashley approached seven-year-old K. L. in the mobile home park. At that time, K. L. was inside her family's minivan in front of her home, helping to buckle younger children into their seats. Ashley grabbed K. L. by the wrist and pulled her out of the vehicle. The girl broke free from Ashley and ran, screaming and shaking, to her nearby mother. Ashley began to walk away, then returned to the minivan and reached inside toward two-year-old B. L., who scrambled away from him. The girls' mother yelled at Ashley, who fled. Ashley gave law enforcement officers several conflicting explanations for his behavior, including that he was under the influence of drugs and that he believed the minivan belonged to his father.
The jury found Ashley guilty of kidnapping K. L. and attempting to kidnap B. L. Ashley argues that this evidence was insufficient to support these convictions, that as to K. L. the evidence did not demonstrate the element of asportation and that as to both girls the evidence did not show that he possessed the necessary criminal intent. We are not convinced.
Under the current version of the kidnapping statute, which applies to this case, " [a] person commits the offense of kidnapping when [331 Ga.App. 795] such person abducts or steals away another person without lawful authority or warrant and holds such other person against his or her will." OCGA § 16-5-40 (a). " [S]light movement shall be sufficient; provided, however, that any such slight movement of another person which occurs while in the commission of any other offense shall not constitute the offense of kidnapping if such movement is merely incidental to such other offense." OCGA § 16-5-40 (b) (1). " Movement shall not be considered merely incidental to another offense if it: (A) Conceals or isolates the victim; (B) Makes the commission of the other offense substantially easier; (C) Lessens the risk of detection; or (D) Is for the purpose of avoiding apprehension." OCGA § 16-5-40 (b) (2).
Ashley argues that, when he pulled K. L. from the minivan, his movement of her was merely incidental to the offense of entering an automobile. We disagree. The offense of entering an automobile is committed when a person " enter[s] any automobile or other motor vehicle with the intent to commit a theft or felony." OCGA § 16-8-18. The state charged Ashley with committing this offense by entering the minivan with the intent to commit the felony of kidnapping. The movement of K. L. was a required element of the felony upon which the entering an automobile offense was based. As such, the movement of K. L. was ...