MCFADDEN, P. J., RICKMAN and MARKLE, JJ.
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.
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
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.
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
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.
and Alexander were tried together. At the trial, Payton
testified that Alexander and Nisbett planned the
robbery. 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.
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.
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.
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.
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.
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
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.
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.
§ 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
this standard in mind, we turn to ...