Howard v. State
334 Ga. App. 229
Ga. Ct. App.2015Background
- Victim Ralph E. Davis was assaulted at his radio station: grabbed from behind, had bleach thrown in his eyes, gagged, bound, suffocated with plastic bags, beaten (including with a hammer), and threatened with death; assailants took his wallet, money, and car keys.
- After several hours the assailants left; Davis partially freed himself and saw Howard near a window holding Davis’s keys; Howard fled when Davis said he had dialed 911.
- Police searched Howard’s residence and found coveralls with bleach and blood, a notebook about taking over the station, a glove bearing Davis’s blood, Davis’s wallet and keys, and shoes matching an impression at the scene.
- Howard was tried separately from co-defendant Thomas and convicted by a jury of kidnapping, armed robbery, four counts of aggravated assault, and two counts of aggravated battery; the trial court denied a new trial and Howard appealed.
- On appeal Howard challenged (1) sufficiency of evidence for kidnapping (asportation under Garza) and (2) whether certain assault/battery convictions should have merged for sentencing under the required-evidence test.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of asportation for kidnapping | State: movement during assault satisfies kidnapping under then-applicable statute | Howard: movement was minimal/incident to assaults, so no asportation under Garza | Reversed kidnapping conviction — movement was criminologically insignificant and did not substantially isolate victim |
| Merger: aggravated assault (deadly weapon) vs aggravated assault (intent to murder) | State: two offenses have different elements (weapon use vs intent) so do not merge | Howard: both arise from same conduct and should merge | Affirmed: convictions did not merge under required-evidence test |
| Merger: aggravated assault (hammer) vs aggravated battery (rendering body part useless) | State: assault requires proof of hammer; battery requires proof of rendering limb useless — different elements | Howard: single acts should merge | Affirmed: convictions did not merge under required-evidence test |
Key Cases Cited
- Garza v. State, 284 Ga. 696 (2008) (establishes four-factor asportation test for kidnapping)
- Gonzalez v. Hart, 297 Ga. 670 (2015) (applies Garza to deny asportation where movement was minimal and part of a single violent event)
- Thomas v. State, 292 Ga. 429 (2013) (endorses required-evidence test over unit-of-prosecution for merger analysis)
- Gipson v. State, 332 Ga. App. 309 (2015) (discusses merger tests and precedential limits)
- Regent v. State, 333 Ga. App. 350 (2015) (confirms aggravated assault and aggravated battery are separate offenses for merger purposes)