concurring specially in Division 1 and fully in Divisions 2 and 3.
Our kidnapping statute, OCGA § 16-5-40 (a), states that “[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.”
Although we have held that the asportation element of kidnapping is satisfied by the slightest movement,14 our Supreme Court in Woodson v. State15 recognized that “shoving the victim, without moving her to a different location, was not the evidence that satisfied the requirement of asportation, nor was pulling her to the floor at a single location [and attempting to rape her].”16
As stated by Judge (now Justice) Benham in his special concurrence in Love v. State:17
[I]n those cases where the movement involved is minimal, and the alleged kidnapping occurs in furtherance of some other criminal enterprise such as rape, the movement necessary to constitute ‘asportation’ must be more than a mere positional change, e.g., from a standing to a supine position.18
In this case, although the majority does not address this point, the state claims that the evidence supporting Mercer’s conviction of kidnapping Mr. Love shows more than a change from a standing to a supine position. In this regard, the state argues that the evidence establishes that Mr. Love was forced from the side of his bed to the foot of the bed. But a review of Mr. Love’s testimony shows this argument to be without merit. He testified only that after he came out from under the bed, he got down on the floor in compliance with his assailants’ instructions and that they taped him up and dragged his wife “over there to where I was” at the foot of the bed. Mr. Love later testified, “I was up under the bed and when I got up, I immediately got back down on the ground.” Although Mr. Love did not specifically testify as to which side of the bed he came out from under, neither did he testify that he was moved in any way other than being told to get back down on the floor; and he testified that when his wife was thereafter dragged to his location in the room, he was at the foot of the bed.
*612Decided February 14, 2008. John A. Beall IV, for appellant. Scott L. Ballard, District Attorney, for appellee.In Lyons v. State,19 our Supreme Court, without mentioning Woodson, has recently held that evidence that the defendants forced the victim at gunpoint from a standing position to lying on the ground so that they could rob and murder him authorized the jury to find asportation to support the charge of kidnapping. The Court in Lyons thus held that “movement, even if a positional change” establishes the element of asportation if the movement is “designed to better carry out the criminal activity [that followed].”20
In reliance on Lyons, the majority in this case affirms Mercer’s conviction of kidnapping Mr. Love because the movement of him to the floor materially facilitated the criminal activity that followed, i.e., the binding of his arms and legs followed by the placement of a cocked gun against his head accompanied by a threat to kill him.
Although the binding of Mr. Love’s arms and legs constituted false imprisonment, and the placement of the cocked gun against his head along with the threat to kill him constituted aggravated assault, I do not see how merely forcing a person from a standing to a supine position without any additional movement constitutes an abduction or stealing away as expressly required by our kidnapping statute. Although Lyons sanctions the result the majority reaches, in my opinion the result is contrary to what was held in Woodson.
Mullins v. State, 280 Ga. App. 689, 690-691 (1) (634 SE2d 850) (2006) and cits.
273 Ga. 557 (544 SE2d 431) (2001).
Id. at 558 (footnote omitted).
190 Ga. App. 264 (378 SE2d 893) (1989), overruled in part on other grounds, Drinkard v. Walker, 281 Ga. 211, 217, n. 38 (636 SE2d 530) (2006).
Love v. State, supra at 266.
282 Ga. 588, 591-592 (1) (652 SE2d 525) (2007).
Id. at 591.