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Alexander v. State

Court of Appeals of Georgia, Fifth Division

February 28, 2019

ALEXANDER
v.
THE STATE.

          MCFADDEN, P. J., RICKMAN and MARKLE, JJ.

          MARKLE, JUDGE.

         Yvonne Alexander was convicted by a jury of kidnapping with bodily injury (OCGA § 16-5-40 (d) (4)), kidnapping (OCGA § 16-5-40), cruelty to children (OCGA § 16-5-70), robbery (OCGA § 16-8-40), aggravated assault (OCGA § 16-5-21), burglary (OCGA § 16-7-1 (b)), and battery (OCGA § 16-5-23.1). She now appeals from the denial of her motion for new trial, as amended. For the reasons that follow, we affirm.

         Viewing the evidence in the light most favorable to the verdict, Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979), the record shows that in July of 2013, then 12-year-old C. S. was living with his father. One evening, he was home alone when he heard a noise he thought was a stray cat at the door. Suddenly, a man and woman he did not recognize entered the house and seized C. S., one of them covering C. S.'s face. C. S. was unable to breath or see and, when he tried to remove the person's hands from his face, the other intruder tried to punch C. S. in the head. C. S. struggled to free himself and run, but the intruders taped his eyes and mouth closed. Although C. S. was able to breathe with the tape on his mouth, he still could not see anything except downward. He observed two black Converse sneakers with white trim and laces that one of the intruders was wearing and jeans. After C. S. was moved from a chair to the floor, the female instructed him to lift his legs, and his hands and feet were taped. C. S. began to cry, but the intruders warned him to be quiet. C. S. was struck twice about the head, leaving a scratch on his nose and a black eye. Although he could not see what was happening, he could hear what was going on as the pair unplugged appliances and removed the computer, monitor, television, and a camera. He also heard the male intruder refer to someone on the phone named "Vernon." C. S. recognized the name as a friend of his father.

         At some point, one of the intruders instructed C. S. to stand up, and they moved him into the adjacent bathroom 10 to 12 feet away and locked the door. The woman asked whether he needed any medication, and then warned him to be quiet. C. S. could hear the pair move upstairs and search the rooms. Shortly thereafter, C. S. heard them leave. About 15 minutes later, C. S. heard his father enter the home. C. S. began kicking the bathroom door, and his father found him.

         One of the officers who responded to the crime scene spoke with C. S., who was upset and nervous. C. S. was able to tell the officer what happened when the intruders entered. C. S. also described what the male intruder was wearing, and confirmed that he heard both a male and female voice. A second officer who responded to the robbery testified that C. S. was shaken up by the incident. The officers found duct-tape in the bathroom, and one of the stolen items was located behind the apartment building.

         The first officer then spoke with Vernon Nisbett and, based on this interview, the officer located several other suspects, including Alexander, Austin Hernandez, and Glenn Payton. Hernandez was later arrested and, when he was brought into the police station, he was wearing black Converse sneakers with white trim. Hernandez eventually admitted that they set up a robbery in which Vernon would distract C. S.'s father. Hernandez then implicated Alexander. Police later found some of the stolen items, which Payton had pawned. They also obtained phone records showing calls between Alexander, Nisbett, and Payton around the time of the robbery.

         Hernandez and Alexander were tried together. At the trial, Payton testified that Alexander and Nisbett planned the robbery.[1] Nisbett would distract the father, Alexander and Hernandez would enter the house, and Payton would act as the driver and look-out. Payton further admitted that he grabbed the computer monitor and hid it in the bushes outside the apartment. The group planned that Alexander would communicate with Nisbett by phone during the robbery. They did not expect C. S. to be there.

         Payton testified that he observed Alexander and Hernandez enter the house, and he watched from the door as Alexander grabbed C. S., struck him, and dragged him to the floor. He also saw that C. S. had duct-tape around his eyes and mouth. During the robbery, Nisbett phoned Alexander to let her know that C. S.'s father was headed back to the apartment. After they left, Alexander stated that she felt badly about hitting C. S. Payton and Hernandez later pawned some of the items taken in the robbery.

         Nisbett also testified at trial, admitting that he helped Alexander set up the robbery. According to Nisbett, Alexander "was the brains behind the operation." Alexander suggested the target of the robbery, and they agreed that she and Hernandez would enter the house. Originally, the plan was to tie up C. S.'s father using duct-tape, but they decided to distract him instead. They agreed they would communicate by phone during the robbery so that Alexander and Hernandez would have enough time to take things from the house, and Alexander said that they would share equally in the proceeds from the robbery. Nisbett confirmed that they did not know C. S. would be at the house, and that, after the robbery, Alexander admitted that she struck C. S. and duct-taped him during the robbery.

         At the close of the State's case-in-chief, Alexander moved for a directed verdict. The trial court denied the motion. Hernandez then testified in his own defense, denying any involvement in the robbery. He stated that he told the others to leave him out of it when they decided to commit the robbery. He explained that, when he saw Alexander and Payton again shortly after the robbery, they were "freaking out" and "acting crazy" because C. S. was not supposed to have been at the house.

         The jury convicted Alexander on all counts. Thereafter, Alexander moved for a new trial, as amended, arguing that the trial court erred in its instructions on the kidnapping charges, the evidence was insufficient to sustain her convictions, the evidence was sufficiently close as to warrant the trial judge's exercise of discretion as the thirteenth juror, and that trial counsel rendered ineffective assistance.

         At the hearing on the motion for new trial, trial counsel testified that her strategy was to "lay low" and not call any attention to her client. She noted that the evidence presented by the co-defendants was strong, and she did not have a defense except to argue that Alexander was not involved. She wanted the jury to focus on Hernandez. She did not object when the prosecutor asked C. S. the initial question regarding being duct-taped because there was no dispute that the child had been duct-taped and, thus, any error in the failure to object was harmless; she further expected the judge to overrule the objection, and she would have the opportunity to cross-examine the victim. As to the testimony from the two officers, counsel testified that she did not recall receiving any notice from the State about hearsay testimony in the form of C. S.'s statements to police. After noting that closing argument had not been transcribed, counsel stated that she likely focused on the State's failure to make out its case, the possible misidentification of her client, and inconsistencies in the victim's testimony.

         At the close of evidence, the trial court issued its oral decision denying the motion for new trial. The trial court found that this was a kidnapping case; there was evidence of slight movement; and the jury had the option of finding false imprisonment as a lesser included offense, but it did not do so. The trial court further found that counsel's performance was not deficient in failing to object to the State's reference to duct tape so as to not draw any further attention to it, and in any event, there was no prejudice because there was no dispute that the victim was duct-taped. As to the sufficiency of the evidence, the trial court stated the weight of the evidence was "very substantial," and the verdict was "not against the weight of the evidence." Thus, the trial court denied the motion. This appeal followed.

         1. Alexander first argues that the trial court erred by instructing the jury with regard to the asportation element of the kidnapping charges because the slight movement of C. S. into the bathroom would not be sufficient to satisfy that element of the offense. On this same basis, she further contends that the evidence was insufficient to sustain the kidnapping convictions and that the trial court erred in denying her motion for directed verdict. We disagree.

         OCGA § 16-5-40 (a) provides that "[a] person commits the offense of kidnapping when such person abducts or steals away another person without lawful authority or warrant and holds such other person against his or her will." Further, OCGA § 16-5-40 (b) provides:

[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 . . . Movement shall not be considered merely incidental to another offense if it . . . [c]onceals or isolates the victim; . . . [m]akes the commission of the other offense substantially easier; . . . [l]essens the risk of detection; or [i]s for the purpose of avoiding apprehension.

         With this standard in mind, we turn to ...


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