Levin v. Morales, 295 Ga. 781

In 1993 Gregory A. Levin entered his ex-wife’s duplex, armed, and held her hostage for about 12 hours; he assaulted her and damaged property while police were on scene.
Levin was convicted in 1994 of kidnapping with bodily injury (life sentence) and multiple related offenses; some convictions were later reversed by the Court of Appeals.
In 2012 Levin filed for habeas relief arguing the State failed to prove asportation under this Court’s later decision in Garza v. State.
The habeas court denied relief, finding the victim’s movements within the small apartment (to bedroom, living room, kitchen, bathroom) served to isolate and leverage control, satisfying Garza’s asportation test.
The Supreme Court reversed: it held the movement was short, did not increase danger or further isolate the victim from rescue (police already on scene), and thus failed Garza’s fourth factor—insufficient asportation to support kidnapping with bodily injury.
The Court vacated the kidnapping conviction and life sentence and instructed the trial court to revisit sentencing on the aggravated battery conviction (which had been merged into the kidnapping count).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether evidence satisfied Garza asportation requirement for kidnapping with bodily injury	Levin: movement was minimal and thus insufficient under Garza (as raised in habeas)	State (below): movement between rooms isolated victim and increased control—satisfies Garza	Court: Reversed—movement was short, did not increase danger or conceal victim from police, so asportation insufficient
Whether movement occurred during or was inherent to separate offenses	Levin: movements were part of other offenses and not independent asportation	State: movements were unnecessary to complete charged offenses and served to isolate victim	Court: did not rely on second/third prongs; focused on fourth prong (danger/isolation) and found it unmet
Whether police presence and opportunity for rescue affect asportation analysis	Levin: police were on scene and aware, so movement did not hinder rescue	State: movments still reduced rescue chances and increased control	Court: police awareness and proximity meant movement did not conceal victim or materially increase risk—counts against asportation finding
Double jeopardy/retrial implications after post-trial change in law (concurring)	Levin: conviction set aside for insufficiency would normally bar retrial	State: (implicit) may seek retrial	Concurrence: Uncertain under Georgia law whether retrial is permissible when conviction is rendered insufficient by later change in law; question left open

Garza v. State, 284 Ga. 696 (asportation test and four-factor framework)
Upton v. Hardeman, 291 Ga. 720 (discussing Garza factors)
Wilkerson v. Hart, 294 Ga. 605 (not all Garza factors required)
Levin v. State, 222 Ga. App. 123 (prior Court of Appeals decision reversing some convictions)
Sellers v. State, 325 Ga. App. 837 (movement between bedrooms did not further isolate victim)
Burks v. United States, 437 U.S. 1 (double jeopardy bars retrial when conviction reversed for insufficiency)
Scott v. State, 295 Ga. 39 (example of appellate change in substantive-elements law)