NAHMIAS, PRESIDING JUSTICE.
granted Willie Chambers's application for a certificate
of probable cause to appeal the denial of his petition for
habeas corpus, identifying two questions: (1) whether the
habeas court erred in concluding that there was sufficient
evidence of asportation (movement of the victim) under
Garza v. State, 284 Ga. 696 (670 S.E.2d 73) (2008),
to support Chambers's conviction for kidnapping Ryan
Mantz; and (2) whether the count charging Chambers with
aggravated assault of Mantz with a deadly weapon merged into
his conviction for armed robbery of Mantz. We answer both
questions yes and therefore reverse the habeas court's
judgment in part.
Viewed in the light most favorable to the jury's
verdicts, and as pertinent to the issues presented here, the
evidence presented at Chambers's trial showed the
following. On September 13, 2002, three armed, masked men
entered Mikey's Pizza in Charlton County at about 10:00
p.m. The restaurant was closed, and two employees, Anthony
Lloyd and Ryan Mantz, were sitting at a table in the front
room near the cash register counting their tips. One of the
masked men told Lloyd to put his head on the table and not
look up. Another assailant pointed a gun at Mantz's head,
grabbed him, pushed him against the cash register, and told
him to open it. Mantz complied, and he was then pushed back
against a nearby table while the assailants took cash and
checks from the register. There were also three female
employees in the restaurant, who were ordered to walk to a
wall in the back room and sit down. The three masked men then
fled with cash and checks from the cash
October 6, 2003, a jury found Chambers guilty of armed
robbery of Mantz, four counts of kidnapping (of the four
restaurant employees other than Lloyd), five counts of
aggravated assault with a deadly weapon, and possession of a
firearm during the commission of a crime. Chambers was
sentenced to serve 20 years in prison for armed robbery; 20
years for each count of kidnapping, concurrent to each other
but consecutive to the armed robbery sentence; 10 years for
each count of aggravated assault, concurrent with all the
other counts; and five years on probation for firearm
possession, consecutive to all the other counts. He filed a
motion for new trial, challenging the trial court's
admission of testimony about his gang membership and the
court's jury instruction on the defense of alibi; the
trial court denied his motion. He then filed an appeal
raising the same issues, and the Court of Appeals affirmed in
2006. See Johnson v. State, 277 Ga.App. 499 (627
S.E.2d 116) (2006).
January 2010, Chambers filed a pro se petition for habeas
corpus, which he amended several times. He argued, among
other things, that his convictions for kidnapping were not
supported by sufficient evidence of asportation under
Garza. An evidentiary hearing was held in September
2014. In January 2017, the habeas court issued an order
denying Chambers relief, specifically holding that the
evidence supported all four of his kidnapping convictions
under Garza because the movement of the victims was
"more than merely incidental to other criminal
activity" and the separation of the male and female
employees "presented a significant danger to these
victims due to their isolation from one another."
Chambers filed a timely notice of appeal and a timely
application for a certificate of probable cause, which we
granted to address the two questions set forth above. In his
brief on appeal, the warden concedes that we should grant
relief on both issues, and that is what we will do.
first address Chambers's challenge to his conviction for
kidnapping Mantz (which was Count Two of the indictment).
Garza requires courts to consider four factors to
determine whether the movement of an alleged kidnapping
victim is sufficient to establish the essential element of
asportation: the duration of the movement; whether the
movement occurred during the commission of a separate
offense; whether such movement was an inherent part of that
separate offense; and whether the movement itself presented a
significant danger to the victim independent of the danger
posed by the separate offense. See 284 Ga. at 702. It is not
necessary that all four factors support a finding of as
portation. See Wilkerson v. Hart, 294 Ga. 605, 608
(755 S.E.2d 192) (2014). But a kidnapping conviction must
certainly be reversed where, as here, none of the factors
supports such a finding. See
movement was minimal in duration and distance - it happened
quickly and was limited to a few feet. It occurred during and
was an integral part of the armed robbery - Mantz was pushed
against the cash register so he could open it and then pushed
out of the way so the robbers could access it. And the
movement did not pose any danger to Mantz independent of the
danger already posed by the armed robbery. Accordingly, there
was insufficient evidence to support Chambers's
conviction for kidnapping Mantz, and that conviction must be
set aside. See id.
to the merger of the aggravated assault and armed robbery
counts, this Court has explained that because "there is
no element of aggravated assault with a deadly weapon that is
not contained in armed robbery," that form of aggravated
assault will merge into armed robbery "if the crimes are
part of the same act or transaction." Bradley v.
State, 292 Ga. 607, 608 (740 S.E.2d 100) (2013)
(quotation marks and citations omitted). See also Long v.
State, 287 Ga. 886, 889 (700 S.E.2d 399) (2010) (holding
that the "deadly weapon" requirement of aggravated
assault under OCGA § 16-5-21 (a) (2) is the equivalent
of the "offensive weapon" requirement of armed
robbery under OCGA § 16-8-41 (a)).
One of Chambers's indictment charged him with armed
robbery by taking money "from the immediate presence of
Ryan Mantz, by use of an offensive weapon, to-wit: a
handgun." Count Six charged Chambers with aggravated
assault by making "an assault upon the person of Ryan
Mantz with a deadly weapon, to-wit: a handgun, by threatening
him with, and pointing said handgun at him." Both of
those charges arose from the same conduct - threatening Mantz
at gunpoint to make him open the cash register so the
assailants could take the cash and checks inside.
Accordingly, the aggravated assault count as to Mantz merged
into Chambers's conviction for armed robbery of Mantz.
The trial court failed to recognize that merger and
erroneously entered a conviction and sentence for the
aggravated assault, which must be set aside. Chambers's
remaining convictions are unaffected by our rulings.
reversed in part.
 The Court of Appeals's opinion
details the investigation that led to the identification of
Chambers as one of the assailants. See Johnson v.
State, 277 Ga.App. 499, ...