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Sellars v. Evans

The record did not support a conclusion that enough of the Garza v. State, 284 Ga. 696 2008 factors were met to warrant a finding of asportation and support the defendant's kidnapping with bodily injury conviction.

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Following a February 1998 jury trial, Gabriel Lee Evans was found guilty of kidnapping with bodily injury, kidnapping, aggravated assault, and possession of a firearm by a convicted felon in connection with the beating of Aretha Perkins. Evans’ convictions were upheld on appeal Evans v. State, 240 Ga. App. 215 522 SE2d 506 1999, and, after filing an unsuccessful habeas petition to challenge his conviction in July 2001, on November 20, 2009, Evans filed a second habeas petition, this time seeking relief based on this Court’s then-controlling decision in Garza v. State, 284 Ga. 696 670 SE2d 73 2008, which established new factors for assessing the asportation element as required for kidnapping.1 Analyzing the Garza factors, the habeas court granted relief, finding that the duration of the movement of the victim was short, the movement was incidental to the aggravated assault, the movement appeared to be an inherent part of the aggravated assault, and the movement did not place the victim in more danger than she was already in at that point, and set aside the conviction and sentence for kidnapping with bodily injury. The warden appeals from the habeas court’s ruling, and, for the reasons that follow, we affirm.

1. Viewed in the light most favorable to support the verdict, the record reveals that:

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