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Tolbert v. State

Evidence that the defendant grabbed the first victim by the throat and pulled her from the kitchen into the living room and that both defendants dragged the second victim inside the home during the course of a home invasion proved the element of asportation to support the defendant's convictions for kidnapping with bodily injury.

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Following a trial by jury, David L. Tolbert was convicted of armed robbery, kidnapping with bodily injury, aggravated assault, aggravated battery, aggravated sodomy, and possession of a firearm during the commission of a felony. Tolbert challenges these convictions, arguing that the trial court erred in 1 denying his motion for discharge and acquittal pursuant to OCGA § 17-7-171, 2 applying an incorrect standard of review to his motion for new trial, 3 denying a motion for directed verdict as to the kidnapping-with-bodily-injury charge, 4 denying a motion for mistrial after a witness referenced the co-defendant’s pretrial incarceration, 5 permitting the prosecution to speculate as to the whereabouts of the firearm during closing argument, and 6 excluding testimony that forensic evidence was misreported at a prior trial. For the reasons noted infra , we affirm Tolbert’s convictions. Viewed in the light most favorable to the jury’s verdict,1 the record shows that in the early morning hours of July 18, 2007, Tolbert and his co-defendant, Michael Willis, subjected two victims to a terrifying home invasion —for what turned out to be a fake lottery ticket.

Shortly before midnight on July 17th, Brenda Rogers heard a noise outside the home and Kelvin Robinson decided to investigate. Upon exiting the home, Robinson was suddenly jumped by Willis, who had apparently been hiding behind Robinson’s truck. Willis struck Robinson in the head with a gun and demanded money. Robinson responded that he did not have any money, but Willis insisted that he had been told otherwise.

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