Leppla v. State

ANDREWS, Presiding Judge,

concurring in part and dissenting in part.

I respectfully dissent from the majority’s conclusion that the *812evidence was insufficient to establish the asportation element on the charge of kidnapping with bodily injury. I concur in the remainder of the majority opinion.

As the majority opinion succinctly states, Leppla “stuck a gun in [the victim’s] rib cage, grabbed her and began to push her toward the car, and told her to ‘[s]hut up and get in the car.’ ” The victim testified that Leppla “started pushing me in the car..and “kept pushing me in the car.” When the victim resisted being pushed into the car, Leppla pistol-whipped her in the face and head as Leppla and the victim moved from the position where the victim was standing near the front of the car to the position where she fell to the ground near the rear of the car. The victim testified that Leppla hit her repeatedly in the head with the butt of his gun until she eventually fell with her head “kind of like underneath” the car where she “could see like my tailpipe.” The prosecutor asked the victim, “[W]as he trying to propel you in any particular direction?” And the victim responded: “[B]asically it was either . . . towards my car and — to push me in the car. But . . . somehow we went — I mean it’s like we wound up farther down the — from the door of my car down like the rear of my car.”

The majority concedes that evidence showed Leppla began to push the victim toward the car, and that, after the victim resisted being pushed into the car, evidence showed that the victim moved at least several feet from the front to the rear of the car while being pushed, threatened, or pistol-whipped by Leppla. Nevertheless, the majority construes the evidence to find that the victim did not give specific testimony that she took a single step toward the car as a result of being pushed by Leppla, and that any movement of the victim was related only to a struggle which “propelled the two of them away from the car door toward the rear of the vehicle.” Accordingly, the majority finds that, even though the victim moved from one location to another during the struggle, the movement was incidental to or entirely related to an aggravated assault arising from the struggle, and therefore the movement was not evidence proving the asportation element on the kidnapping charge.

Pursuant to OCGA § 16-5-40 (a), “[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 will.” An essential element of the kidnapping with bodily injury charge in this case was unlawful asportation (movement from one location to another) of the victim against her will. Smith v. State, 250 Ga. App. 465, 469 (552 SE2d 468) (2001). Where the evidence shows that, without moving the victim to another location, a defendant merely shoved the victim, struggled with the victim, or pulled the victim to the floor, this is not sufficient evidence of asportation to support a *813conviction for kidnapping. Woodson v. State, 273 Ga. 557, 558 (544 SE2d 431) (2001). But where the evidence shows that the victim moved from one location to another by being pushed or shoved by the defendant, or moved in response to a threat from the defendant, this is evidence of asportation sufficient to support a kidnapping conviction, even where the movement was only slight or only a single step. Smith, 250 Ga. App. at 469 (pushing and shoving the victim from one location to another establishes asportation); Woodson, 273 Ga. at 558 (movement of victim from one location to another in response to defendant’s threat establishes asportation); Estes v. State, 234 Ga. App. 150, 151 (505 SE2d 840) (1998) (victim’s slight movement of single step establishes asportation); Sharp v. State, 255 Ga. App. 485, 487 (565 SE2d 841) (2002) (movement of victim from a seated position on a concrete block to dirt behind the block establishes asportation).

Under these principles, the evidence was sufficient to support the jury’s guilty verdict on the charge of kidnapping with bodily injury. The evidence was sufficient to allow the jury to conclude that: (1) Leppla moved the victim a slight distance from one location to another against her will by pushing her in an effort to force her into the car, and (2) when the victim resisted these efforts, Leppla threatened her with additional physical violence and pistol-whipped her, thereby forcing the victim against her will to move again from an area near the front door of the car to the rear of the car, where she fell to the ground. Contrary to the majority’s conclusion, evidence that Leppla assaulted the victim as he moved her from one location to another did not render the evidence of movement unrelated to the charge of kidnapping. Under the evidence presented, the jury was authorized to conclude, and obviously did conclude, that Leppla assaulted the victim while kidnapping her to force her to submit to the kidnapping. Instead of viewing the evidence in the light most favorable to the jury’s guilty verdict on the kidnapping charge, as an appellate court is required to do, the majority improperly assumes the factfinding role of the jury and apparently finds that Leppla abandoned any intent to kidnap the victim when he assaulted her as she moved in response to the assault from one location to another.

The evidence was more than sufficient to allow the jury to conclude beyond a reasonable doubt that Leppla was guilty of the offense of kidnapping with bodily injury. The judgment of conviction entered on the jury’s guilty verdict on that offense should be affirmed.

I am authorized to state that Presiding Judge Blackburn and Judge Barnes join in this dissent.

*814Decided January 23, 2006 — Reconsideration denied March l, 2006 James E, Hardy II, for appellant. Penny A. Penn, District Attorney, Sandra A. Partridge, Assistant District Attorney, for appellee.