Jamie Barron Smith appeals from the judgment of conviction entered on jury verdicts finding him guilty of attempted rape; aggravated assault with intent to rape; aggravated assault with a knife; kidnapping; and misdemeanor battery. Smith contends that there was insufficient evidence of asportation to support the kidnapping conviction; that the trial court erred by failing to merge the aggravated assault convictions into one another and into the attempted rape conviction; and that the trial court erroneously instructed the jury with respect to the battery offense. For the reasons which follow: 1 we find the evidence of asportation was sufficient and affirm the kidnapping conviction; 2 we vacate the conviction for aggravated assault with intent to rape because it merged into the attempted rape conviction; and 3 we find no other error and affirm the remaining convictions. 1. Contrary to Smith’s contention, the evidence of asportation was sufficient to support the jury’s verdict finding him guilty of kidnapping.
The evidence showed that the female victim, who had her two-year-old child with her, was working alone at the front office of a storage unit rental business. Smith came into the business and rented a five-foot by ten-foot enclosed storage unit with a roll-up door. After the victim showed Smith where the unit was located, Smith parked his car near the unit and started unloading items from his car into the unit through the unit’s open door. The victim briefly stood outside the unit and watched as Smith put trash bags of items and a blue box into the unit, at which point she started to walk away from the unit and back to the office. In explanation of what happened next, the victim gave the following testimony on direct examination by the prosecutor: Q: When did this situation become something that was not normal A: He put the blue box in the unit, and as I was walking away, he got me from the back and jumped on me. . . . And I remember a couple of punches in the face and my neck from behind. And by that time, we were in the unit. . . . Q: How far did you get from the unit before he grabbed you A: Apparently not very far. I just remember that all of a sudden, just, “Oh, he’s hitting me.’ And we were already in the unit. . . . Q: Were you standing inside the unit when you turned to leave A: No. Q: You were outside the unit on the ground A: Yes. He jumped on me from behind and I think we fell in. Because we fell forward onto the trash bags. . . . Q: Can you give us a better idea of where you were standing when he jumped on you A: I was just . . . on the outside of the door. . . . Q: How fast would you say that this —the grabbing, hitting, falling happened A: I was on the floor before I realized what had happened. . . . Q: What position was your body and his body on the floor at this time A: We went from facing the back of the unit and the trash bags to turning to where we were cross-ways in the unit. And then we turned to where my head was at the door. . . . Q: What is the next part of that struggle A: When he jumped on me, he was choking me. And he told me if I screamed, he would kill me and my child both. . . . He said he had a knife, and he held it to my face. And then I had my eyes closed. And when I opened my eyes, I realized my head was at the door. . . . And the door was closed. . . . I remember trying to open the door. And I got the door open a little. . . . And I remember grabbing onto the outside of the door, hoping that he wouldn’t pull me back in. And that way he couldn’t close the door because my hand would be in the way. And I was able to get my left hand and push the door up some more. . . . Q: And at this point, you’re laying on your stomach with him laying on top of you A: Right. . . . Q: Did he at some point during this period release your neck A: Yes. He was at my waist. Q: What happened, more specifically, when he released your neck A: He was trying to —he was piddling with my belt. . . . Q: What other statements were made by the defendant regarding what he intended to do A: When he first pulled me in, he told me to take my pants off. . . . Q: About how far did you get the door pushed up A: I remember just being able to push it up just a little. And the sunshine came in, and I saw the knife. And then I got my left hand free and pushed it up a little more, maybe two, two and a half feet or so. . . . Q: Were you able to prevent being pulled back into the unit A: Yes. When I got the door open, I was able to crawl out from there. At that point, the victim ran back to the office and called for help and Smith fled the scene. As a result of the struggle, the victim suffered various bruises and scratches. Based on the above evidence, the jury found Smith guilty of kidnapping, attempted rape, aggravated assault with intent to rape, aggravated assault with a knife, and battery.
