Maurice Lamark Walker v. State , 350 Ga. App. 303 ( 2019 )

FIRST DIVISION
BARNES, P. J.,
MERCIER and BROWN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
May 30, 2019
In the Court of Appeals of Georgia
A19A0774. WALKER v. THE STATE.
BROWN, Judge.
Maurice Walker appeals from his convictions of armed robbery, kidnapping,
and possession of a firearm during the commission of a crime,1 contending that
insufficient evidence supports each of his convictions. For the reasons explained
below, we reverse Walker’s kidnapping conviction and affirm his remaining
convictions.
On appeal from a criminal conviction, the standard for reviewing the
sufficiency of the evidence
1
The trial court sentenced Walker to life for armed robbery, 20 years
concurrent for kidnapping, and 5 years probation consecutive to the armed robbery
sentence for possession of a firearm during the commission of a crime.
is whether a rational trier of fact could have found the defendant guilty
beyond a reasonable doubt. This Court does not reweigh evidence or
resolve conflicts in testimony; instead, evidence is reviewed in a light
most favorable to the verdict, with deference to the jury’s assessment of
the weight and credibility of the evidence.
(Citations and punctuation omitted.) Hayes v. State, 292 Ga. 506 (739 SE2d 313)
(2013). So viewed, the record shows that after the victim parallel parked his car, he
noticed two men, approximately 100 feet away, walking in the center of the street
toward him as he started to get out of his car. The victim thought it was odd and “just
kind of scurried myself up, [and] headed between cars to walk on the lawn side.” The
victim testified that as the men
got closer they kind of drifted in my direction a little bit as I was coming
between the two cars to get on the other side. . . . One of them asked if
I had a cigarette or a smoke, and then right when I was motioning that
I didn’t have anything, . . . the other individual came up behind me with
a pistol – or behind me, the first one, and had a pistol and pulled down
either a hat with holes in it or a ski mask.
At another point in his testimony, the victim clarified that the man with the gun was
behind the one who asked for a cigarette and turned away from him briefly and pulled
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down the mask before turning back around with the pistol pointed at him. Both men
demanded that he give them his money.
When the victim told the men that his money was in his car, they ordered him
to hurry and get it. After he moved a few feet and stepped back onto the street, he
gave the gunman cash from a wallet in his back pocket. Right after that, the first man
grabbed the victim’s arm and told the gunman to “cap him, man; he saw me; cap
him.” The victim testified that as he jumped away, “[the first man]’s grip went to [his]
shirt and [the first man] started pulling me back and so I was struggling with that, and
[the gunman] was trying to keep up with how we were moving, and then finally I
broke free after [the first man] pulled me a couple of feet back towards the trees” and
“the shadows again.” The victim testified that the entire encounter “couldn’t have
been more than 30 seconds.”
In his trial testimony, the victim described the first man who had asked for the
cigarette as a black man with “dread-locks” and “smaller built than the gunman,”
wearing a designer camouflage jacket, dark boots, and a ski cap. This man was later
identified as Mason Johnson. He described the gunman as being taller, heavier built,
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and wearing light-colored athletic shoes,2 jeans and “a dark – it looked like a coverall
or a sweater or some kind of over-jacket that was zipped up or buttoned up and had
a ski mask on. Could’ve been a hat with holes in it, or a ski mask.” The gunman was
later identified as Walker. The victim testified that he saw both of the men’s faces
before Walker put the mask on and that there were “bright street lamps” all along the
street where he parked. While the street was illuminated well, the residences were
“kind of darkish and in shadow.”
After the victim’s escape, he called 911. Approximately 15 minutes later, the
victim saw the two men walking down the sidewalk on the other side of the street as
he was talking to a police officer about the robbery. The victim testified that he
actually was in disbelief that they came back to where I was, so I just
wanted to make sure that they were who I thought they were, so I took
a minute – after I told the deputy that I thought these were the guys that
just robbed me, he said, are you sure. I said, well, let me make sure. As
they were walking up the street they actually came closer to where I was.
They were still on the sidewalk. Almost to where they were across the
street from me I identified – positively identified them without a doubt.
2
An investigating officer who took a recorded statement from the victim
testified that the victim told him that it was Johnson who was wearing light-colored
shoes.
4
The officer then got into his patrol car and detained the two men with the assistance
of other patrol officers. The victim then identified both men again. At the time the
victim identified Walker to the police, Walker was no longer wearing the “outer
garment that was worn during the robbery and the knit cap or ski mask.” When they
were arrested, Johnson was wearing a camouflage jacket, black boots, a white shirt,
and dark-colored blue jeans, and Walker was wearing a pair of white and black tennis
shoes, dark blue jeans, a gray shirt, and a black hat.
1. Walker contends that insufficient evidence supports the asportation element
of his kidnapping conviction under the standard created by the Supreme Court of
Georgia in Garza v. State, 284 Ga. 696 (670 SE2d 73) (2008).3
Garza requires courts to consider four factors to determine whether the
movement of an alleged kidnapping victim is sufficient to establish the
essential element of asportation: the duration of the movement; whether
the movement occurred during the commission of a separate offense;
whether such movement was an inherent part of that separate offense;
and whether the movement itself presented a significant danger to the
victim independent of the danger posed by the separate offense.
3
As the incident at issue took place on January 3, 2009, we must apply the
standard for asportation enunciated by the Supreme Court of Georgia in Garza, supra.
The Legislature’s subsequent amendment to the kidnapping statute did not become
effective until July 1, 2009. See Hammond v. State, 289 Ga. 142, 143 (710 SE2d 124)
(2011).
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(Citation and punctuation omitted.) Chambers v. Hall, Ga. (2) (Case No. S18A1322,
decided March 4, 2019). The purpose of the Garza test is to “determin[e] whether the
movement in question is in the nature of the evil the kidnapping statute was originally
intended to address – i. e., movement served to substantially isolate the victim from
protection or rescue – or merely a criminologically insignificant circumstance
attendant to some other crime.” (Citation and punctuation omitted.) Garza, 284 Ga.
at 702 (1).
In this case, as in Chambers, supra, the victim’s “movement was minimal in
duration and distance – it happened quickly and was limited to a few feet.”
Chambers, Ga. at (2). While the victim may have been dragged a couple of feet
toward a darker area of a public place, that scant distance did not place the victim in
more danger than he was already in or isolate him from protection or rescue. See
Levin v. Morales, 295 Ga. 781, 783 (764 SE2d 145) (2014); Wilkerson v. Hart, 294
Ga. 605, 609 (3) (755 SE2d 192) (2014). Even though the movement here took place
after the armed robbery was complete and was arguably not an inherent part of that
offense, satisfaction of some factors of the Garza test does not mandate a finding that
the State presented sufficient evidence of asportation. In Levin, supra, the Supreme
Court of Georgia found insufficient evidence of asportation even though it assumed
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that the State had satisfied factor two (movement did not occur during the
commission of a separate offense) and three (was not an inherent part of that separate
offense) of the Garza test. Levin, 295 Ga. at 783. Based upon the short distance the
victim was moved in a public street, we conclude that the State failed to present
evidence of asportation sufficient to support Walker’s kidnapping conviction.
Chambers, Ga. (2). Compare Humphries v. State, 305 Ga. App. 69, 71-72 (1) (699
SE2d 62) (2010) (sufficient evidence of asportation under Garza test where victim
pulled from top of open hill on golf course near lighted area and dragged down steep
hill into darker wooded area).
2. Walker contends that insufficient evidence supports his convictions for
armed robbery and possession of a firearm during the commission of a crime based
upon the victim’s limited opportunity to view Walker during the crime and an
inconsistency in the victim’s statement about the shoes worn by Walker and Johnson.
Any inconsistencies in the victim’s testimony and the reliability of his identification
are for the jury to consider and weigh. See Graham v. State, 337 Ga. App. 193, 195-
196 (1) (786 SE2d 857) (2016). “Because [Walker]’s arguments go to the weight,
rather than to the sufficiency of the evidence, he presents no basis for reversing [these
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convictions.]” (Citation and punctuation omitted.) Tiller v. State, 314 Ga. App. 472,
474 (1) (724 SE2d 397) (2012).
Judgment affirmed in part and reversed in part. Mercier, J., concurs. Barnes,
P.J., concurs in part and dissents in part.*
*THIS OPINION IS PHYSICAL PRECEDENT ONLY, COURT OF APPEALS
RULE 33.2(a).
A19A0774. WALKER v. THE STATE.
BARNES, Presiding Judge, concurring in part and dissenting in part.
Because there was sufficient evidence to support the asportation element of
kidnapping under the test enunciated in Garza v. State, 284 Ga. 696, 702 (1) (670
SE2d 73) (2008), I would affirm the kidnapping conviction. Accordingly, I
respectfully dissent in part from the majority opinion.1
In the present case, the forced movement of the victim occurred after the armed
robbery was complete and was not an inherent part of that offense. The majority,
1
I concur with the majority opinion to the extent that the majority affirms
Walker’s convictions for armed robbery and possession of a firearm during the
commission of a crime.
2
however, concludes that the Garza test for asportation was not satisfied because the
victim’s movement was minimal in duration and distance and the “scant distance did
not place the victim in more danger.” While I agree that the movement of the victim
was minimal, I disagree with the majority’s conclusion that the victim was not placed
in more danger. The victim testified that after he gave his wallet to the robbers at
gunpoint, one robber told the other robber that the victim should be shot because he
had seen the robber’s unmasked face, leading to a physical struggle between the
victim and robbers. Significantly, according to the victim, the robbers “were pushing
me back in the shadows underneath one of the trees out of the light of the street
lamp.” This testimony by the victim, when construed in the light most favorable to
the prosecution, reflected that after the armed robbery, the robbers moved the victim
away from a visible area near a street lamp to a dark area underneath a tree where
they planned to shoot him.
The jury was authorized to find that moving the victim from a lighted area to
a dark area under a tree at night after the armed robbery was complete lessened the
perpetrators’ risk of detection and was intended “to isolate the victim from protection
or rescue, thus increasing the danger faced by the victim.” Flores v. State, 298 Ga.
App. 574, 576 (1) (680 SE2d 609) (2009) (although duration of the movement was
3
short, the “forced removal of the victim from a visible area to the secluded dark area”
was sufficient to show asportation under Garza because it presented “a significant
danger to the victim independent of the [underlying crime]”). See Humphries v. State,
305 Ga. App. 69, 72 (1) (699 SE2d 62) (2010) (evidence was sufficient to show
asportation pursuant to Garza; although record did not specify the duration of the
movement, the forced movement of the victim “away from a more lighted place to a
darker and more isolated place” increased the danger to the victim and was not an
inherent part of the other, separate offenses). Accordingly, although the duration of
the movement was minimal, the other three Garza factors were satisfied, including
the “significant danger” factor, and thus the evidence was sufficient to establish
asportation under the Garza test. See Inman v. State, 294 Ga. 650, 651 (1) (b) (755
SE2d 752) (2014) (evidence was sufficient to support conviction under Garza, where
the movement was not extensive in distance or duration, but other three Garza factors
were satisfied). See also Smith v. State, 312 Ga. App. 174, 180 (5) (718 SE2d 43)
(2011) (concluding that asportation had been shown under Garza even though the
duration of the victim’s movement was short).
While the majority relies on the recent Supreme Court case of Chambers v.
Hall, 305 Ga. 363, 365 (2) (825 SE2d 162) (2019), that case is distinguishable
4
because the victim’s forced movement “occurred during and was an integral part of
the armed robbery,” unlike in the present case, where the movement occurred after
the armed robbery was completed. Wilkerson v. Hart, 294 Ga. 605, 609 (3) (755
SE2d 192) (2014) is distinguishable for the same reason because in that case the
movement “occurred during the commission of the separate crimes.” Additionally,
Levin v. Morales, 295 Ga. 781, 783 (764 SE2d 145) (2014) is distinguishable because
the victim in that case was moved back and forth to a bedroom, not from a lighted
area to a dark area where the victim would be less visible, as occurred here.
For these reasons, the evidence was sufficient to show asportation under the
Garza test. This Court therefore should affirm the kidnapping conviction.
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