Smith v. State
313 Ga. App. 170
Ga. Ct. App.2011Background
- Smith was convicted by jury of kidnapping, attempted rape, aggravated assault with intent to rape, aggravated assault with a knife, and battery; he argues insufficiency of asportation, improper merger, and faulty battery instruction.
- Victim worked alone at a storage-unit business; Smith rented a unit, loaded items into it, then assaulted her from behind and moved her into the unit while threatening violence.
- Movement of the victim under Garza v. State is evaluated by four factors; Georgia courts consider movement beyond a mere incident to be asportation if it serves to isolate the victim.
- The trial court merged aggravated assault with intent to rape into attempted rape; battery instruction was challenged as misaligned with the indictment.
- The majority affirms kidnapping and related convictions, vacates the aggravated assault with intent to rape conviction, and sustains the battery instruction, with a concurrent dissent arguing the asportation was insufficient.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is there sufficient asportation to support kidnapping? | Smith contends asportation was insufficient. | State argues movement was more than incidental per Garza. | Sufficient asportation found; kidnapping upheld. |
| Should aggravated assault with intent to rape merge into attempted rape? | Smith argues included in attempted rape. | State argues separate crime with distinct elements. | Aggravated assault with intent to rape merged into attempted rape; vacated. |
| Did the jury instruction on battery improperly diverge from the indictment? | Due process potential; misalignment between indictment and instruction. | Limiting instruction cured any error. | No reversible error; limiting instruction approved. |
Key Cases Cited
- Garza v. State, 284 Ga. 696 (2008) (four-factor test for asportation; movement must serve to isolate victim)
- Brown v. State, 288 Ga. 902 (2011) ( Garza factors applied; movement not inherently part of other offenses)
- Leppla v. State, 277 Ga.App. 804 (2006) (asportation concept evolution; movement from one room to another not always sufficient)
- Woodson v. State, 273 Ga. 557 (2001) (asportation requires movement beyond mere shoving or single-location arrest)
- Drinkard v. Walker, 281 Ga. 211 (2006) (constitutionality; multiple convictions where one is included in another)
- Waits v. State, 282 Ga. 1 (2007) (merger analysis under OCGA 16-1-6; separate elements preserved)