Appellant Joey Allen Garza was convicted in March 2002 of two counts of kidnapping, four counts of false imprisonment, and one count of aggravated assault. Following affirmance of the convictions by the Court of Appeals, Garza v. State , 285 Ga. App. 902 648 SE2d 84 2007, Garza sought a writ of certiorari. We granted the writ to assess the sufficiency of the evidence as to the asportation element of the crime of kidnapping. Having set forth below a new standard for asportation, we now reverse Garza’s kidnapping convictions. As recited in the opinion below, the evidence at trial established thaton the evening of October 16, 2001, Garza gained entry into Angela Mendoza’s residence on the pretext that he had left his wallet in her van. Once inside and while Mendoza’s three children slept, he locked the door, drew a handgun from his pants, placed the weapon against Mendoza’s head, and threatened to shoot her if she failed to follow his instructions. Garza struck Mendoza in the head with the handgun as she attempted to push it aside, causing her to fall to the floor. Garza then bound Mendoza’s wrists with electrician’s tape, tied her ankles with a torn sheet, and helped her up, made her sit in a chair, and instructed her not to move. Later, Garza allowed Mendoza to move to the floor where she joined her infant daughter and feigned sleep. When Garza fell asleep, Mendoza and her two-year-old son escaped out of a window, and Mendoza called the police.Upon their arrival, the police forcibly entered the locked residence, removed Mendoza’s infant daughter from the premises, and negotiated the release of Mendoza’s nine-year-old son, J.M., for a six-pack of beer. . . . As the police entered the residence, Garza awoke J.M., asked him if he wanted to play cops and robbers, and, while holding his shirt, ordered him to move to the back bedroom of the residence. Once there, Garza continued to restrain J.M. by his shirt while openly holding his handgun. Although Garza did not point the weapon at him, J.M. was “scared” because he believed the weapon had been used to kill his mother.Garza v. State , supra, 285 Ga. App. at 902-903. The issue presented is whether any of the movements of either Mendoza or J.M. during the course of the incident —Mendoza’s falling to the floor from a standing position or being forced from the floor to a chair,1 or J.M.’s being forced from the room where he slept into an adjacent bedroom —constituted asportation within the meaning of the Georgia kidnapping statute.1. “A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will.” OCGA § 16-5-40 a. Under current Georgia jurisprudence, the element of “abducting or stealing away” the victim, known in legal parlance as “asportation,” may be established by proof of “movement of the victim, however slight.” Griffin v. State , 282 Ga. 215, 219 1 647 SE2d 36 2007. Thus, in addition to the more traditional scenarios involving child abduction or kidnapping for ransom, situations involving some other form of criminal activity have been found to support kidnapping charges even though the movement of the victim was merely a minor incident to the primary offense. See, e.g., Woodson v. State , 273 Ga. 557 544 SE2d 431 2001 evidence of asportation sufficient where victim forced from one room to another in course of attempted rape; Scott v. State , 288 Ga. App. 738 1 b 2007 evidence of asportation sufficient where victim dragged ten feet from bus stop to bushes in course of robbery; Phillips v. State , 259 Ga. App. 331 1 577 SE2d 25 2003 evidence of asportation sufficient where victim grabbed and forced six to eight feet into store in course of armed robbery. The definition of asportation has evolved to the point where it seems that the only type of movement considered insufficient as evidence of asportation is movement immediately resulting from a physical struggle. See, e.g., Woodson , supra, 273 Ga. at 558 shoving and pulling victim to floor not sufficient; Leppla v. State , 277 Ga. App. 804 1 627 SE2d 794 2006 victim’s struggling and falling to ground not sufficient.
In this Court’s most recent pronouncement on the subject of asportation, we reaffirmed that “the requirement of asportation to prove kidnapping is satisfied if there is movement of the victim, however slight that movement is. Cit. The distance that a kidnapper transports the victim is not of legal significance. Cit.” Lyons v. State , 282 Ga. 588, 591 1 652 SE2d 525 2007. We went on to state, however, thatwhere the movement involved is minimal, and the alleged kidnapping occurs in furtherance of some other criminal enterprise, in order to constitute “asportation” the movement must be more than a mere positional change of the victim incidental to the other criminal act; it must be movement, even if a positional change, designed to better carry out the criminal activity. Cits.Id. at 591 1. Thus, we held that asportation was established where the defendants had forced the victim at gunpoint from a standing to a supine position, because this positional change “materially facilitated” the defendants in suffocating and robbing the victim. Id. at 591-592 1.
