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Lundy v. State

Court of Appeals of Georgia, First Division

June 15, 2017

LUNDY
v.
THE STATE.

          BARNES, P. J., MCMILLIAN and MERCIER, JJ.

         

          BARNES, PRESIDING JUDGE.

         Jamal Lundy appeals his conviction for kidnapping with bodily injury, arguing that the evidence was insufficient, he was entitled to a new trial on the general grounds, the trial court should have struck a biased juror for cause, and the jury should have been instructed on lesser included offenses. We find no error and affirm.

         Viewed in favor of the verdict, [1] the record shows that around 1:15 a.m. on January 6, 2011, the victim was in her bedroom when Rodney Salter, a friend from the neighborhood, knocked on the door. The victim had used crack cocaine earlier in the day, but was "in [her] right mind" at that point. Salter told her that he needed a ride, which she agreed to provide in exchange for more drugs. The victim met Salter in the driveway, where two other men - whom the victim did not know - also were waiting. The victim got in her car, with Salter in the passenger seat and the other two men in the back, and drove toward a gas station. On the way, Salter spotted Lundy and told the victim to slow down. The victim had seen Lundy "hanging out" before and had previously bought drugs from him. Lundy ran toward them, calling Salter's name, and the victim stopped to let Lundy inside the car.

         The victim continued to the gas station, where Salter bought some gas for her car. Lundy told the victim he had several places to go and would pay her to take him. At Lundy's request, the victim drove to an apartment building, another gas station, and a convenience store. Lundy then directed the victim down a dark road with abandoned houses, where Lundy got out and later returned with a bag containing a large wrench with a hook on the end. Concluding that the men were "stringing [her] along" and would not be supplying drugs, the victim said she wanted to go home, but Lundy told her he "had to do something." Lundy instructed her to drive to a liquor store, where she waited in the car while one or more of the men broke a window. The men then ran back to the car, and Lundy told the victim to "drive, drive, drive, drive, " which she did.

         The victim again told Lundy that she wanted to go home. Lundy cursed at her, told her "you in it now, we used your car, " and pulled a gun on her. The victim kept driving, following Lundy's directions. When they reached a secluded area, Lundy ordered the victim out of the car, pointed the gun at her head, and told her to take off her jewelry and clothes, which she did. Lundy then hit the victim in the head with the gun "so hard [she] thought [he] shot her, " and she lost consciousness. When she came to, she was alone and the car was gone. The victim spent six days in the hospital, where she was treated for a head laceration, skull fracture, and cranial bleeding. Her car was later found at an abandoned house.

         Salter and Lundy were arrested and charged with hijacking a motor vehicle, armed robbery, kidnapping with bodily injury, aggravated battery, possession of a firearm during the commission of a felony, and possession of firearm by a convicted felon. Salter pled guilty to lesser offenses and testified at trial against Lundy. The jury found Lundy guilty of kidnapping with bodily injury, but not guilty of the remaining charges.

         Lundy moved for a new trial on the general grounds, as well as other bases. The trial court denied the motion and Lundy appeals, arguing that the evidence was insufficient to support his conviction and that the trial court erred by denying his motion for new trial on the general grounds, denying his motion to strike a juror for cause, and refusing to charge the jury on lesser included offenses.

         1. Regarding Lundy's challenge to the sufficiency of the evidence, our role is to determine whether "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). "A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his or her will." OCGA § 16-5-40 (a). The offense carries a more stringent sentence "if the person kidnapped received bodily injury." OCGA § 16-5-40 (d) (4).

         Lundy does not identify any particular deficiency in the evidence or any element of the crime that was not established. We find that the evidence that he forced the victim at gunpoint to drive to a secluded location was sufficient to establish the offense of kidnapping. See Sipplen v. State, 312 Ga.App. 342, 343-344 (1) (718 S.E.2d 571) (2011) (evidence was sufficient to establish kidnapping where defendant got inside the victim's truck, pointed a gun at him, and forced him to drive to a location of the defendant's choosing). And the evidence that Lundy struck the victim in the head, causing a laceration, skull fracture, and cranial bleeding, was sufficient to establish the bodily-injury element of the offense. See Nelson v. State, 278 Ga.App. 548, 551 (3) (629 S.E.2d 410) (2006) ("Evidence of any physical injury, however slight, satisfies the bodily injury element necessary to establish kidnapping with bodily injury.") (citation omitted).

         2. Lundy contends that the trial court abused its discretion by denying his motion for new trial on the general grounds. We disagree.

Even when the evidence is legally sufficient to sustain a conviction, a trial judge may grant a new trial if the verdict of the jury is "contrary to . . . the principles of justice and equity, " OCGA § 5-5-20, or if the verdict is "decidedly and strongly against the weight of the evidence." OCGA § 5-5-21. When properly raised in a timely motion, these grounds for a new trial - commonly known as the "general grounds" - require the trial judge to exercise a broad discretion to sit as a "thirteenth juror."

         (Citation and punctuation omitted.) White v. State, 293 Ga. 523, 524 (2) (753 S.E.2d 115) (2013). "A trial court reviewing a motion for new trial based on these grounds has a duty to exercise its discretion and weigh the evidence and consider the credibility of the witnesses." Choisnet v. State, 292 Ga. 860, 861 (742 S.E.2d 476) (2013). If the trial court performs this duty, then we have no basis for reviewing the court's decision, as "such a decision is one that is solely within the discretion of the trial court." (Citation and punctuation omitted.) Dixon v. State, ___ Ga.App.___ (2) (b) (___ S.E.2d ___) (Case No. A17A0233, decided April 19, 2017).

          In its order denying Lundy's motion for new trial on the general grounds, the trial court wrote:

Having independently considered the credibility of the witnesses the court - as the 13th juror - hereby approves the jury's verdict and concludes the verdict for kidnapping with bodily injury was not decidedly and strongly against the weight of the evidence [and]. . . is not contrary to the principles of justice and equity.

         As the order reflects that the trial court performed its duty using the proper legal standard, we have no basis for disturbing the court's exercise of discretion. Dixon, Ga.App. at; see also Smith v. State, 300 Ga. 532, 534 (1) (796 S.E.2d 671) (2017).

         3. Lundy argues that the trial court erred by denying his motion to strike Juror No. 1, who initially expressed doubt about her ability to be fair and impartial because of her experience as a crime victim. We ...


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