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Deleon v. State

Court of Appeals of Georgia, First Division

February 9, 2018

DELEON
v.
THE STATE.

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

          Barnes, Presiding Judge.

         In connection with a series of criminal acts perpetrated upon the victim, Alberto Eddie Deleon was convicted of armed robbery, kidnapping with bodily injury, and hijacking a motor vehicle. Deleon thereafter sought, but was denied, a new trial. In this appeal, Deleon contests the sufficiency of the evidence, the final charge to the jury, the trial court's response to alleged juror misconduct, and the rejection of his ineffectiveness claim. Because Deleon has demonstrated no reversible error, we affirm.

         1. When an appellant challenges the sufficiency of the evidence, "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." (Emphasis in original.) Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         So viewed, evidence elicited from the State's witnesses showed the following. At about 1:00 a.m. on April 5, 2011, the victim was at a truck stop where he was approached by Deleon who told the victim that he needed gas for his car, which had stopped at a nearby interstate exit. The victim agreed to drive Deleon to a gas station so that Deleon could purchase a container of gasoline. While the two men were in transit in the victim's pickup truck, Deleon mentioned the possibility of obtaining road-side assistance through some other means, so the victim stopped near Deleon's broken-down car to let Deleon out of the pickup truck where he could wait.

         But at that point, Deleon began stabbing the victim in the head with a knife. Deleon then took the victim's wallet and got cash, credit cards, and a debit card out of it. Deleon then demanded that the victim drive him to an ATM and supply him with additional cash. Bleeding from the multiple stab wounds, the victim got on the interstate and drove approximately 5 or 6 miles to reach a particular gas station, where he not only anticipated finding an ATM, but he also planned to jump out of the pickup truck, run into the station's convenience store, and ask that someone call 911. But as the victim was turning into the parking lot of the gas station, Deleon demanded that the victim proceed to a different ATM. Complying, the victim returned to the interstate and drove several additional miles to reach a drive-thru ATM at a bank. The victim withdrew hundreds of dollars and handed the cash to Deleon.

         Deleon next demanded the victim to help him move his car from the side of the road to the truck stop (where the two men had met). Complying with Deleon's explicit instructions, the victim drove the approximately 13 miles back to Deleon's car, then exited his pickup truck, and sat in the driver's seat of Deleon's car. Deleon then moved into the driver's seat of the victim's pickup truck, and drove the pickup truck so as to push his own car, which the victim steered to the truck stop. Once there, Deleon used the victim's debit card to put gas in his car. But the car still would not function, apparently due to a dead battery.

         Deleon then demanded the victim to help him push his car across the street to a parking lot, which was dark. Again complying with Deleon's explicit instructions, the victim sat in Deleon's vehicle and steered it to the designated area, while Deleon drove the victim's pickup truck to push the disabled car. When they arrived at the parking lot, the men got out of the vehicles. Deleon began rummaging through his own vehicle, telling the victim that he was searching for something with which to murder him. The victim sprinted back toward the truck stop; along the way, he fell so hard that he fractured a shoulder bone. The victim struggled back to his feet and continued to run toward the truck stop, but eventually the victim could run no more and fell down again. Lying on the ground, the victim yelled for help and pleaded that someone call 911. A man at the truck stop saw and heard the victim, and dialed 911. Meanwhile, Deleon fled the scene in the victim's pickup truck.

         Challenging the sufficiency of the evidence to support the conviction of kidnapping with bodily injury, [1] Deleon contends that the state failed to prove the "asportation"[2] or "movement" element as required by OCGA § 16-5-40 (b). Pursuant to that Code provision, "slight movement shall be sufficient, " however:

(1). . . 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.
(2) 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.

         According to Deleon, any movement of the victim that could have been attributed to him was slight, occurred while in the commission of the other offenses for which he was convicted (armed robbery and hijacking a motor vehicle), and was merely incidental thereto.

         This contention lacks merit. The State adduced evidence of forced movement that spanned a number of miles and that was independent of both crimes of armed robbery and hijacking a motor vehicle. As alleged in the indictment, [3] the armed robbery was complete when Deleon took the victim's wallet and contents at knife point - which offense thus occurred before Deleon forced the victim to drive several miles to an ATM, only to force the victim to proceed to a more distant ATM in a desolate location. After the victim withdrew cash from that ATM and handed it to Deleon, Deleon forced the victim back to his broken-down car beside the interstate exit, then to a gas station, and ultimately to an isolated, dark parking lot. And none of the foregoing movement was either necessary or an inherent part of the crime of hijacking the victim's pickup truck.

         Viewed in the light most favorable to the prosecution, the evidence showed movement that was substantial, involving a number of miles; movement that was independent of the other crimes of which Deleon was convicted; and movement that concealed or isolated the victim, that lessened the risk of detection, and that served the purpose of avoiding apprehension. Therefore, the evidence was sufficient for the jury to find the asportation (or movement) element of kidnapping as required by OCGA § 16-5-40 (b). See Thomas v. State, 320 Ga.App. 101, 103-104 (1) (739 S.E.2d 417) (2013) (rejecting argument that movement of victim was merely incidental of the battery offense, where the movement of the victim occurred after the defendant grabbed and lifted the victim); see also Andemical v. State, 336 Ga.App. 661, 669 (786 S.E.2d 238) (2016); Whatley, 335 Ga.App. at 754 (2). Accord Flournoy v. State, 294 Ga. 741, 750-751 (7) (755 S.E.2d 777) (2014) (rejecting argument that any movement of the victims was "part and parcel" of other crimes such that asportation was not proved, where the movement was substantial, involving a number of miles; the ...


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