After a jury trial, Christopher Jones was found guilty of the aggravated assault of Cindy Hurst and the kidnapping of her and of her six-year-old and 18-month-old daughters. The trial court entered judgments of conviction on the guilty verdicts and sentenced Jones to concurrent terms of ten years for the aggravated assault, five years for the kidnapping of Ms. Hurst, and 25 years for each of the other two counts of kidnapping. The trial court denied a motion for new trial with respect to the aggravated assault conviction. That conviction was appealed by Jones and, after transfer of the case by this Court, was affirmed by the Court of Appeals. Jones v. State , 294 Ga. App. 564 669 SE2d 505 2008. However, the trial court granted a new trial on the kidnapping convictions based on ineffective assistance of counsel and further held that the mandatory 25-year sentence set forth in OCGA § 16-5-40 for kidnapping a child under the age of 14 constituted cruel and unusual punishment as applied to Jones. On interlocutory appeal by the State, this Court determined that the ineffective assistance claim had been waived, reversed the grant of a new trial, vacated the constitutional ruling as premature, and remanded the case to the trial court for consideration of the remaining issues raised in the motion for new trial. State v. Jones , 284 Ga. 302 667 SE2d 76 2008. On remand, the trial court denied the motion for new trial in its entirety. Jones appeals from that order pursuant to the trial court’s grant of an out-of-time appeal. 1. Jones contends that the State did not prove his guilt beyond a reasonable doubt of any of the kidnapping charges. Construed most strongly in support of the verdicts, the evidence shows that, a few days after Jones moved to Georgia to live with Ms. Hurst, he became angry with her and beat her with his hands and fists in the children’s presence. Jones subsequently forced Ms. Hurst to get into his car with the two children and to direct him to the interstate. Jones dropped the victims off between 10 and 20 minutes later in an unfamiliar neighborhood about three and a half miles from their residence.
Jones primarily argues that there was insufficient evidence of the asportation element of kidnapping under Garza v. State , 284 Ga. 696 670 SE2d 73 2008. As Jones’ acts occurred prior to the July 1, 2009 effective date of OCGA § 16-5-40 b, the test set forth in Garza applies to this case. Hammond v. State , 289 Ga. 142, 143, fn. 2, 144 1 710 SE2d 124 2011; Brown v. State , 288 Ga. 902, 905 3, fn. 2 708 SE2d 294 2011. Garza sets out four factors that should be considered in determining whether the asportation element of kidnapping is met: “1 the duration of the movement; 2 whether the movement occurred during the commission of a separate offense; 3 whether such movement was an inherent part of that separate offense; and 4 whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.” Cit. In cases where the Garza standard is applicable, this Court has not required the satisfaction of all four factors to establish that asportation has occurred. Cit. In fact, this Court has even found asportation when only two of the Garza factors were present. Cit. Hammond v. State , supra at 144-145 2. However, in the case now before us, all four factors have been satisfied. The duration of the movement to the car and while riding therein “was not brief or momentary . . . .” Brown v. State , supra at 905 3 eight minutes. “Such movement was not an inherent part of the aggravated assault; in fact, it occurred after the offense of aggravated assault had been completed.” Henderson v. State , 285 Ga. 240, 245 5 675 SE2d 28 2009. See also Horne v. State , 298 Ga. App. 601, 604 1 680 SE2d 616 2009. Furthermore, the movement presented a significant danger to the victims apart from the separate offense because it enhanced Jones’ control over them, serving substantially to isolate them from protection or rescue and increasing the risks that further injury would occur in the event of an attempted escape and that the victims would be, as indeed they were, taken to a second location unknown to Ms. Hurst. See Hammond v. State , supra at 145 2; Henderson v. State , supra; Aldridge v. State , 310 Ga. App. 502, 504 1 b 713SE2d 682 2011.
