                               SECOND DIVISION
                                 MILLER, P. J.,
                            RICKMAN and REESE, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                    January 15, 2020




In the Court of Appeals of Georgia
 A19A1675. ROBINSON v. THE STATE

      MILLER, Presiding Judge.

      Following a jury trial, Royce Robinson seeks review of his life sentence and

criminal convictions stemming from allegations that he kidnapped and attacked his

(now ex-) wife. He argues on appeal that (1) the trial court erred when it sentenced

him for kidnapping with bodily injury when the verdict form indicated that the jury

only found him guilty of kidnapping and that (2) the State made an improper “golden

rule” argument when it asked the jury during its closing argument to remember “a

traumatic experience in your own life.” Because the verdict form did not specially ask

the jury to choose between kidnapping and kidnapping with bodily injury, the

indictment charged Robinson with kidnapping with bodily injury, and the trial court

charged the jury with the elements of kidnapping with bodily injury, the trial court did
not err in sentencing Robinson accordingly. The state’s comments during its closing

argument also did not constitute an improper “golden rule” argument because, viewed

in context, they only sought to explain away discrepancies in the witnesses’

statements and did not improperly ask the jury to put themselves in the shoes of the

victim. We therefore affirm.

      Viewed in the light most favorable to the verdicts,1 the evidence adduced at

trial showed that the victim was Robinson’s wife at the time of the incident. One

evening, during an argument, Robinson drew a knife on the victim and placed it at her

neck. To get away from him, the victim went to stay at her aunt’s house after work

the following day. Robinson eventually went to the aunt’s house and asked the victim

if he could talk with her.

      The victim agreed to talk with Robinson and went with him to talk in his car,

which was parked in the driveway. The victim kept the car door next to her propped

open with her foot to keep the door from closing. Once the victim made it clear that

she did not want to be with Robinson anymore, he “grabbed” her by her head, put the

car in reverse, and drove away while the victim screamed for help. During the drive

back to their house, Robinson hit the victim multiple times on her head, causing the

      1
          Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

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victim to strike her head on the car window. When the two arrived at their house, the

victim locked herself in the car so that Robinson could not get to her. Robinson

forced down one of the car windows, yanked her out of the car by her feet, and

dragged her into the house. Once inside, Robinson hit, kicked, and choked the victim

before police arrived on the scene. The victim suffered multiple bruises, abrasions,

and injuries to her face, neck, arms, and eyes.

      A grand jury indicted Robinson on one count of kidnapping (OCGA § 16-5-

40), one count of false imprisonment (OCGA § 16-5-41), one count of aggravated

assault (OCGA § 16-5-21), one count of battery (OCGA § 16-5-23.1), and one count

of criminal trespass (OCGA § 16-7-21 (b)). At trial, the jury found Robinson guilty

of kidnapping, false imprisonment, and battery but acquitted him of aggravated

assault and criminal trespass. The trial court merged the false imprisonment count

with the kidnapping count and sentenced Robinson to life imprisonment. Robinson

filed a motion for new trial, which the trial court denied after a hearing. This appeal

followed.

      1. Robinson first argues that the trial court erred when it sentenced him to life

imprisonment for kidnapping with bodily injury when the jury’s verdict form

indicated that they only found him guilty of kidnapping. Because the indictment

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charged Robinson with kidnapping with bodily injury, and because the trial court

charged the jury with the elements of kidnapping with bodily injury, the trial court did

not err in sentencing Robinson accordingly.

      We review the trial court’s imposition of a sentence for abuse of discretion. See

Reed v. State, 342 Ga. App. 466, 468-470 (804 SE2d 129) (2017) (reviewing the

imposition of a sentence for abuse of discretion).

      Our law proscribes a substantially different punishment for kidnapping when

bodily injury has been done to the victim during the course of said kidnapping. Under

the Georgia Code, the offense of kidnapping is normally punishable by

“[i]mprisonment for not less than ten nor more than 20 years.” OCGA § 16-5-40 (d)

(1). However, “if the person kidnapped received bodily injury,” then the offense of

kidnapping is punishable by life imprisonment. OCGA § 16-5-40 (d) (4). “Although

the statute does not make it explicit, the courts have treated kidnapping with bodily

injury as a distinct offense separate from and greater than kidnapping.” Hester v.

State, 216 Ga. App. 400 (2) (454 SE2d 604) (1995). “Thus, even if there is evidence

that the kidnapping victim suffered bodily injury, it is not proper to sentence the

defendant for kidnapping with bodily injury where the indictment charged only



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simple kidnapping and/or the jury was instructed only on simple kidnapping.”

(Citations omitted.) Id.

      Even though the verdict form here indicated that the jury found Robinson

guilty of “kidnapping,” the trial court nevertheless properly sentenced Robinson for

kidnapping with bodily injury. The pre-printed verdict form used at Robinson’s trial

read, “We, the Jury, find the Defendant, ROYCE ROBINSON, JR., ________ of the

charge of KIDNAPPING.” The verdict form did not give the jury the option to choose

between kidnapping or kidnapping with bodily injury or specially ask the jury

whether bodily injury occurred. Instead, the indictment alleged that Robinson

committed kidnapping when he “unlawfully abduct[ed the victim] without lawful

authority or warrant and held such person against her will, said act resulting in bodily

injury to [the victim].” (Emphasis supplied.) When the trial court instructed the jury,

it read the indictment for the jury and also instructed them on the elements of

kidnapping with bodily injury. Given these circumstances, the verdict was clear that

the jury found Robinson guilty of kidnapping with bodily injury, and so the trial court

did not abuse its discretion by sentencing Robinson to life imprisonment for

kidnapping with bodily injury. See Jenkins v. State, 269 Ga. 282, 295 (23) (c) (498

SE2d 502) (1998) (defendant was properly sentenced for kidnapping with bodily

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injury rather than kidnapping, even though verdict form just listed “kidnapping,”

when the indictment specified that bodily harm was done to the victims and the trial

court charged the jury on bodily injury and set out the elements of kidnapping with

bodily injury). Compare Patrick v. State, 247 Ga. 168, 170 (274 SE2d 570) (1981)

(defendant was not properly sentenced for kidnapping with bodily injury when trial

court only instructed the jury on simple kidnapping); Smith v. State, 302 Ga. App.

222, 225-226 (2) (690 SE2d 867) (2010) (life sentence vacated where indictment

alleged the defendant committed kidnapping, not kidnapping with bodily injury);

Hester, supra, 216 Ga. App. at 400 (2) (life sentence vacated where indictment and

jury charge both alleged simple kidnapping rather than kidnapping with bodily

injury).

      2. Robinson also argues that the State made an improper “golden rule”

argument during its closing statement that asked the jury to put themselves in the

position of the victim. Because the State’s argument did not ask the jury to put

themselves in the shoes of a crime victim, and because they were more likely an

attempt to explain discrepancies in some of the witnessess’ statements, we disagree.

      We review a decision regarding an improper closing argument for abuse of

discretion. Satterfield v. State, 339 Ga. App. 15, 22 (3) (792 SE2d 451) (2016). “A

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‘golden rule’ argument is one that, regardless of the nomenclature used, asks the

jurors to place themselves in a victim’s position. Such an argument is impermissible

because it encourages the jurors to depart from neutrality and to decide the case on

the basis of personal interest and bias rather than on the evidence.” (Citations

omitted.) Id.

      Robinson specifically points to the following statements made by the State

during closing:

      Think back to a traumatic experience in your own life. How many
      details do you remember about the experience itself? You remember
      what somebody did or what you heard or what you saw, but do you
      necessarily remember what you were wearing?


                                      ...


      Do you remember every specific detail about the things that were not
      important to the trauma themselves?


      Now, think about who you were with. Would every person that was with
      you remember it in the same way? Would they remember the same
      details, or would they remember different details?


                                      ...



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      So is it any wonder that [three State witnesses and the victim] remember
      things differently? No. It’s not any unexpected thing. Of course they
      remember things differently. They’re standing in different positions.
      They’re seeing things differently.




      Viewed in context, we cannot say this statement constituted an impermissible

golden rule argument. The statement, taken as a whole, did not ask the jury to put

themselves in the victim’s shoes for the purpose of asking the jury to sympathize with

the victim or ask the jury how they would have felt if they were the victim to a crime.

Instead, the prosecutor made this statement in an attempt to explain away

inconsistencies in the testimonies of many of the witnesses. See Menefee v. State, 301

Ga. 505, 512-513 (4) (a) (ii) (A) (801 SE2d 782) (2017) (no improper “golden rule”

argument where prosecutor’s statements could be “more reasonably seen as the

prosecutor’s efforts to explain . . . the inconsistencies in the [witness’s] statements);

Satterfield, supra, 339 Ga. App. at 22 (3) (no improper “golden rule” argument where

statement “was not concerned with how a juror would feel if he or she were the

victim.”). We also note that the statement also asked the jury to remember a

“traumatic experience,” which would not necessarily cause the jury to remember a

crime. Furthermore, the statement was in reference to the memories of many of the

                                           8
other witnesses to the incident, all but one of which were not victims to the crime.

Given all of these circumstances, we cannot say that the State’s argument here was

an improper golden rule argument.

      Accordingly, for the reasons provided above, we affirm Robinson’s convictions

and total sentence.

      Judgment affirmed. Rickman and Reese, JJ., concur.




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