Kirt v. State
309 Ga. App. 227
| Ga. Ct. App. | 2011Background
- Kirt entered Clarke Middle School in Athens, GA at ~10:08 a.m. with a bag, later concealment with a hooded jacket, captured on surveillance.
- Kirt entered the girls’ bathroom at 10:16 a.m. and confronted 12-year-old H.G. with a knife and duct tape, attempting to silence her and place the knife on a trash can.
- H.G. described being pushed and restrained in a stall while Kirt attempted to remove duct tape; she screamed and others intervened after a counselor entered the bathroom.
- Witnesses D.C. and J.P. observed Kirt in the bathroom; Salter chased him after recognizing the disturbance; Kirt fled the scene and was pursued to Alps Road Elementary School.
- Kirt was found with a bag containing duct tape, a knife, a camera, and a wet t-shirt; police recovered Kirt’s pocketknife, and a vehicle search revealed sexually explicit material; he was convicted on multiple counts and sentenced to life plus 80 years.
- On appeal, Kirt challenged asportation for kidnapping, single-victim sentencing issues, indictment sufficiency for Count 3, and potential merger/intent issues for Count 6; the court reversed kidnapping, vacated Counts 10, 11, and 13, and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there sufficient asportation to support kidnapping? | Kirt | State | No; asportation insufficient; kidnapping reversed |
| Were Counts 10, 11, and 13 void for a single victim? | Kirt | State | Counts 10, 11, 13 vacated; Count 8 vacated; remand for resentencing on Count 8 |
| Did the indictment for Count 3 allege a substantial step? | Kirt | State | Waived; not timely demurred; claim rejected |
| Should Count 6 (cruelty to children) require reversal or merge with another count? | Kirt | State | Evidence supports malice; no merger with aggravated assault or false imprisonment |
| Was the instruction on asportation harmful error or moot after reversal? | Kirt | State | Issue moot due to reversal of kidnapping |
Key Cases Cited
- Garza v. State, 284 Ga. 696 (2008) (four Garza factors to evaluate asportation)
- Bryant v. State, 304 Ga.App. 755 (2010) (movement during multiple offenses can support kidnapping)
- Moore v. State, 301 Ga.App. 220 (2009) (insufficient asportation where movement minimal)
- Escoffier v. State, 303 Ga.App. 317 (2010) (short movement did not create independent danger)
- Rayshad v. State, 295 Ga.App. 29 (2008) (movement must enhance risk beyond the offense)
- Drinkard v. Walker, 281 Ga. 211 (2006) (merger analysis: whether each statute requires proof of a fact the other does)
- Garrett v. State, 300 Ga.App. 391 (2009) (intent findings preserved unless clearly erroneous)
- State v. Marlowe, 277 Ga. 383 (2003) (multiple convictions for a spree; remedy for overlapping possession Counts)