McFadden, Presiding Judge.
Lee Ashley was convicted of kidnapping, criminal attempt to
kidnap, entering an automobile, and criminal trespass. In our
opinion in Ashley v. State, 331 Ga.App. 794 (771
S.E.2d 462) (2015), we reversed his convictions but held
that, because the evidence was sufficient, he could be
retried. In Division 1 of our opinion we held that the
evidence was sufficient to support the convictions.
Id. at 794-796 (1). In Division 2 of our opinion we
held that the trial court improperly allowed the state to
present character evidence against Ashley and that this error
required reversal. Id. at 797-800 (2). Given that
disposition, in Division 3 of our opinion we declined to
address Ashley's remaining claims of error. Id.
at 800 (3).
Supreme Court of Georgia granted certiorari to review
Division 2 of our opinion, and in State v. Ashley,
299 Ga. 450 (788 S.E.2d 796) (2016), the Court
"reverse[d] [our] judgment as to Division 2 of the
majority opinion[ ] and . . . remand[ed] the case for
consideration of the other enumerations raised by
Ashley." Id. at 458 (3).
the Supreme Court neither addressed nor considered Division 1
of our opinion in Ashley v. State, supra, 331
Ga.App. 794, and that Division is not inconsistent with the
Supreme Court's own opinion, Division 1 "become[s]
binding upon the return of the remittitur." Shadix
v. Carroll County, 274 Ga. 560, 563 (1) (554 S.E.2d 465)
(2001). We vacate Division 2 of our earlier opinion and in
place of that Division we adopt as our own the Supreme
Court's opinion in State v. Ashley, supra, 299
Ga. 450. Finally, we vacate Division 3 of our earlier opinion
and in place of that Division we address Ashley's other
detailed below, none of Ashley's other enumerations
require reversal. The holding in Division 1 of our earlier
opinion that the evidence was sufficient to support
Ashley's convictions disposes of Ashley's claims that
the trial court erred in failing to grant his directed
verdict and that the verdict is contrary to the evidence.
Ashley argues that the trial court made an improper comment
on the evidence, but the trial court did not express or
intimate an opinion on whether any fact had been proved.
Ashley argues that the trial court improperly charged the
jury on kidnapping, but he did not object to the charge at
trial and has not shown plain error. Ashley argues that the
trial court erred by not granting a mistrial following the
admission of recordings of Ashley's custodial statements
or ordering those statements redacted, but he affirmatively
stated at trial that he had no objection to the admission of
this evidence. Ashley challenges the constitutionality of his
sentence, but he did not raise this challenge at the first
available opportunity. Finally, Ashley argues that he
received ineffective assistance of counsel, but he has not
shown that his trial counsel performed deficiently. For these
reasons, we affirm his convictions.
earlier appellate decisions set forth in detail the evidence
in and procedural posture of this case. See State v.
Ashley, supra, 299 Ga. at 450-454 (1); Ashley v.
State, supra, 331 Ga.App. 794-796 (1). In summary, the
evidence viewed in the light most favorable to the verdict
showed that Ashley approached a seven-year-old girl and a
two-year-old girl, who were inside their family's minivan
in front of their residence. He grabbed the older girl by the
wrist and pulled her from the vehicle. After the older girl
broke away from him, Ashley reached inside the vehicle toward
the younger girl. The girls' mother yelled at him and he
fled. Ashley contended that, while intoxicated, he had
mistaken the minivan for a vehicle belonging to his father,
who lived in the same neighborhood as the victims. The state
presented similar transaction evidence of Ashley's
disturbing behavior around other children at the neighborhood
Failure to grant directed verdict; verdict contrary to
argues that the trial court erred in failing to grant his
motion for directed verdict. He also argues that the verdict
was contrary to the evidence, an argument he raised in his
motion for new trial, which the trial court denied.
[W]hether an appellant is asking [an appellate] court to
review a trial court's refusal to grant a new trial on
the general grounds or its refusal to grant a motion for
directed verdict, this court can only review the case under
the standard espoused in Jackson v. Virginia, [443
U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979)], to
determine if the evidence, when viewed in the light most
favorable to the prosecution, supports the verdict.
Lewis v. State, 296 Ga. 259, 261-262 (3) (765 S.E.2d
911) (2014) (citation and punctuation omitted). Consequently,
our analysis of the sufficiency of the evidence in Division 1
of our earlier decision in Ashley v. State, supra,
331 Ga.App. at 794-796 (1), which was not affected by the
Supreme Court's decision in State v. Ashley,
supra, 299 Ga. 450, resolves both claims of error in favor of
Trial court's alleged improper comment.
argues that the trial court made an improper comment on the
evidence in violation of OCGA § 17-8-57 while
instructing the jury on similar transaction evidence. The
version of that statute in effect at the time of Ashley's
2012 trial provided:
It is error for any judge in any criminal case, during its
progress or in his charge to the jury, to express or intimate
his opinion as to what has or has not been proved or as to
the guilt of the accused. Should any judge violate this Code
section, the violation shall be held by the Supreme Court or
the Court of Appeals to be error and the decision in the case
reversed, and a new trial granted in the ...