                                  WHOLE COURT

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                              http://www.gaappeals.us/rules/


                                                                    March 30, 2015




In the Court of Appeals of Georgia
 A14A1848. ASHLEY v. THE STATE.

      MCFADDEN, Judge.

      After a jury trial, Thad Lee Ashley was convicted of kidnapping, criminal

attempt to kidnap, entering an automobile, and criminal trespass. He argues, among

other things, that the evidence was insufficient to support his kidnapping and

attempted kidnapping convictions and that the trial court erred in admitting character

evidence. We agree that the challenged evidence improperly placed Ashley’s

character into issue and, accordingly, we reverse. We find, however, that the other

evidence was sufficient to support the convictions, and therefore Ashley may be

retried. See Lively v. State, 262 Ga. 510, 512 (3) (421 SE2d 528) (1992).

      1. Sufficiency of the evidence.
      In considering whether the evidence was sufficient to support a defendant’s

conviction, “the relevant question is whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443

U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted;

emphasis in original). So viewed, the evidence showed that in September 2011,

Ashley was subject to a criminal trespass warning that barred him from the mobile

home park in which his father lived. Nevertheless, on September 4, Ashley

approached seven-year-old K. L. in the mobile home park. At that time, K. L. was

inside her family’s minivan in front of her home, helping to buckle younger children

into their seats. Ashley grabbed K. L. by the wrist and pulled her out of the vehicle.

The girl broke free from Ashley and ran, screaming and shaking, to her nearby

mother. Ashley began to walk away, then returned to the minivan and reached inside

toward two-year-old B. L., who scrambled away from him. The girls’ mother yelled

at Ashley, who fled. Ashley gave law enforcement officers several conflicting

explanations for his behavior, including that he was under the influence of drugs and

that he believed the minivan belonged to his father.



                                          2
      The jury found Ashley guilty of kidnapping K. L. and attempting to kidnap B.

L. Ashley argues that this evidence was insufficient to support these convictions, that

as to K. L. the evidence did not demonstrate the element of asportation and that as to

both girls the evidence did not show that he possessed the necessary criminal intent.

We are not convinced.

      (a) Asportation.

      Under the current version of the kidnaping statute, which applies to this case,

“[a] person commits the offense of kidnapping when such person abducts or steals

away another person without lawful authority or warrant and holds such other person

against his or her will.” OCGA § 16-5-40 (a). “[S]light movement shall be sufficient;

provided, however, that any such slight movement of another person which occurs

while in the commission of any other offense shall not constitute the offense of

kidnapping if such movement is merely incidental to such other offense.” OCGA §

16-5-40 (b) (1). “Movement shall not be considered merely incidental to another

offense if it: (A) Conceals or isolates the victim; (B) Makes the commission of the

other offense substantially easier; (C) Lessens the risk of detection; or (D) Is for the

purpose of avoiding apprehension.” OCGA § 16-5-40 (b) (2).



                                           3
      Ashley argues that, when he pulled K. L. from the minivan, his movement of

her was merely incidental to the offense of entering an automobile. We disagree. The

offense of entering an automobile is committed when a person “enter[s] any

automobile or other motor vehicle with the intent to commit a theft or felony.” OCGA

§ 16-8-18. The state charged Ashley with committing this offense by entering the

minivan with the intent to commit the felony of kidnapping. The movement of K. L.

was a required element of the felony upon which the entering an automobile offense

was based. As such, the movement of K. L. was not incidental to the offense of

entering an automobile but instead made the commission of that offense easier. See

OCGA § 16-5-40 (b) (2) (B).

      Ashley does not otherwise challenge the sufficiency of the evidence to show

asportation. And we find that the evidence was sufficient under the current version

of OCGA § 16-5-40, which makes clear that only slight movement is required to

show asportation as long as the movement is not incidental to another offense. See

generally Hammond v. State, 289 Ga. 142, 143 (710 SE2d 124) (2011) (explaining

that law prior to the 2008 decision of Garza v. State, 284 Ga. 696 (670 SE2d 73)

(2008), required only slight movement to satisfy asportation element of kidnapping

and that amendments to OCGA § 16-5-40, effective July 1, 2009, reestablished the

                                         4
sufficiency of slight movement). In many Georgia cases construing the slight

movement requirement we have found similar movement of even a few feet sufficient

to support a kidnapping conviction. See, e.g., Ellis v. State, 282 Ga. App. 17, 20 (1)

(637 SE2d 729) (2006) (defendant dragged victim “a few feet” toward an open

window); Boykin v. State, 264 Ga. App. 836, 839 (1) (592 SE2d 426) (2003)

(defendant forced victim to get out of car and lie on ground); Phillips v. State, 259

Ga. App. 331, 331-332 (1) (577 SE2d 25) (2003) (defendant grabbed victim as she

tried to run out of store and forced her back into store, moving her six to eight feet

during struggle); Estes v. State, 234 Ga. App. 150, 151 (505 SE2d 840) (1998)

(defendant told victim to get into vehicle, grabbed victim, and struggled with her,

during which defendant moved victim “a little” and victim took “a single step”

toward vehicle before victim broke away from defendant); Giddens v. State, 190 Ga.

App. 723, 725 (3) (380 SE2d 274) (1989) (defendant pushed victim into car).

      (b) Intent.

      Ashley argues that there was insufficient evidence to show that he had the

criminal intent to kidnap either girl. In support of this argument he cites to evidence

that he mistakenly believed the minivan belonged to his father.



                                          5
      “A person will not be presumed to act with criminal intention but the trier of

facts may find such intention upon consideration of the words, conduct, demeanor,

motive, and all other circumstances connected with the act for which the accused is

prosecuted.” OCGA § 16-2-6. Criminal intent “does not mean an intention to violate

a penal statute but an intention to commit the act prohibited thereby. Expressed

another way, intent refers to the proposition that one intends the consequences of his

voluntary actions.” Schwerdtfeger v. State, 167 Ga. App. 19, 20 (1) (305 SE2d 834)

(1983) (citations and punctuation omitted). “The presence or lack of criminal intent

is for the jury to decide based on the facts and circumstances proven at trial.” Thomas

v. State, 320 Ga. App. 101, 104 (2) (739 SE2d 417) (2013) (citation omitted).

      The evidence in this case authorized the jury to find that Ashley had the

criminal intent necessary to find him guilty of kidnapping K. L. and attempting to

kidnap B. L. The evidence showed that Ashley approached the girls, whom he did not

know, while they were in their mother’s open minivan. He grabbed K. L., lifted her,

and carried her out of the minivan against her will. When Ashley picked her up, K.

L. began yelling and struggling before breaking free from him. Ashley then reentered

the minivan and tried to grab B. L., who scrambled away from him. As the girls’

mother yelled at him, Ashley fled. These facts, including Ashley’s flight from the

                                          6
scene, presented evidence of consciousness of guilt. Thomas, 320 Ga. App. at 104-

105 (2).

      Although Ashley offered an explanation for these actions that he argued

showed he lacked criminal intent, the jury was authorized to reject that explanation.

See Thomas, 320 Ga. App. at 105 (2); Schwerdtfeger, 167 Ga. App. at 20 (1). And his

claimed intoxication is not relevant to the issue of his criminal intent in this case. See

Guyse v. State, 286 Ga. 574, 578 (2) (690 SE2d 406) (2010) (voluntary intoxication

generally is not excuse for criminal act); Foster v. State, 258 Ga. 736, 745 (10) (374

SE2d 188) (1988) (intoxication defense involves separate issue from lack of intent

to commit crime).

      2. Character evidence.

      Nevertheless, we must reverse because the trial court improperly allowed the

state to present character evidence against Ashley. That evidence depicted Ashley as

a person who behaved in a manner around children that made others uncomfortable,

and it included three specific incidents in the summer of 2011 in which Ashley had

engaged in questionable conduct around children at the mobile home park swimming

pool. There was evidence that Ashley squirted a young boy with a water gun so hard

that he made the boy cry. There was evidence that he looked at young girls in a

                                            7
manner that made one girl’s mother uncomfortable and gave another onlooker a “very

bad vibe.” Finally, there was evidence that Ashley often picked at and teased children

in his family, making them cry. One of the children he picked at was his ten-year-old

niece, whom he would flick with his finger on the back of the head or ribcage, even

though she strongly disliked this behavior. The niece testified to a specific incident

at the pool where Ashley flicked her on her side and she threatened to hit him. The

trial court allowed the state to introduce the above evidence after the state argued that

the evidence concerned similar transactions.

      Georgia’s former Evidence Code, which applied at the time of the trial in this

case, provided that “[t]he general character of the parties and especially their conduct

in other transactions are irrelevant matter unless the nature of the action involves such

character and renders necessary or proper the investigation of such conduct.” Former

OCGA § 24-2-2 (2012). (Similar transaction evidence is addressed in Georgia’s new

Evidence Code at OCGA § 24-4-404 (b).)

      To admit evidence of an independent offense or act committed by the
      accused, the state must show that it seeks to introduce the evidence for
      an appropriate purpose, there is sufficient evidence to establish that the
      accused committed the independent offense, and there is a sufficient
      connection or similarity between the independent offense and the crime


                                           8
      charged so that proof of the independent act tends to prove the crime
      charged.


Jackson v. State, 291 Ga. 54, 55 (2) (727 SE2d 454) (2012) (citation omitted). In

other words, “[s]imilar transaction evidence may be admitted if it is substantially

relevant for some purpose other than to show a likelihood that the defendant

committed the crime on trial because he is a person of criminal character.” Porter v.

State, 264 Ga. App. 526, 531 (4) (591 SE2d 436) (2003) (citation and punctuation

omitted). “The evidence is not to be admitted, however, if it merely raises an

improper inference about the character of the accused.” Chua v. State, 289 Ga. 220,

232 (2) (710 SE2d 540) (2011) (citation omitted). On appellate review, “[w]e accept

the trial court’s findings of fact unless they are clearly erroneous and will uphold the

decision to admit the similar transaction evidence unless there has been an abuse of

discretion.” Jackson, 291 Ga. at 55 (2) (citation omitted).

      The trial court admitted the similar transaction evidence in this case for the sole

purpose of showing Ashley’s criminal intent. The evidence, however, was not

relevant to show that purpose. The state has not argued that Ashley’s behavior in the

earlier incidents was criminal. While a similar transaction need not be a crime, see

Chua, 289 Ga. at 232 (2), the fact that a person engaged in a non-criminal behavior

                                           9
does not evince criminal intent. The state sought to use acts in which Ashley lacked

criminal intent to prove that he had criminal intent in another instance.

        Our Supreme Court has held that, “[w]here the extrinsic offense is offered to

prove intent, its relevance is determined by comparing the defendant’s state of mind

in perpetrating both the extrinsic and charged offenses.” Bradshaw v. State, __ Ga.

__, __ (3) (__ SE2d __) (S14A1365, decided March 2, 2015) (citation and

punctuation omitted). Applying this rule, the Court determined that evidence of a

similar transaction was relevant to establish a defendant’s intent in the charged

offense because the similar transaction and the charged offense “involve[d] the same

mental state.” Id. at __ (3). Accord United States v. Dickerson, 248 F3d 1036, 1047

(IV) (A) (11th Cir. 2001) (to establish that similar transaction, offered as proof of

intent, is relevant to issue other than defendant’s character, as required under Federal

Rules of Evidence, “it must be determined that the extrinsic offense requires the same

intent as the charged offense”) (citations and punctuation omitted). This case, in

contrast, involves instances where Ashley had different mental states – lacking

criminal intent on the one hand and allegedly possessing criminal intent on the other

hand.



                                          10
      It is true that the Bradshaw and Dickerson cases, cited above, did not address

our former Evidence Code. Nevertheless, they are persuasive. While Georgia’s new

Evidence Code is more restrictive than the former Evidence Code in the sense that it

no longer lists bent of mind or course of conduct as proper purposes for similar

transaction evidence, see Johnson v. State, 292 Ga. 22, 25 n. 3 (2) (733 SE2d 736)

(2012), in other respects the new Evidence Code’s treatment of similar transaction

evidence is, as one commentator has noted, a rule of inclusion that expands the

admission of such evidence. See R. Carlson, et al., Carlson on Evidence, p. 120 (3d

Ed. 2015). Moreover, the adoption of our new Evidence Code did not change the

requirement that similar transaction evidence be relevant to show a proper purpose;

that requirement is found in cases decided under both the old and new Codes. See

Bradshaw, __ Ga. at __ (3); Porter, 264 Ga. App. at 531 (4). Nor did the adoption of

the new Evidence Code change Georgia’s definition of relevant evidence; under both

Codes evidence is relevant if it logically tends to prove or disprove any material fact

at issue in the case. See OCGA § 24-4-401; City of Atlanta v. Landmark

Environmental Indus., 272 Ga. App. 732, 744 (10) (613 SE2d 131) (2005) (citing

former OCGA § 24-2-1). Simply put, there is no reason to discount our Supreme



                                          11
Court’s discussion in Bradshaw of how to determine the relevance of similar

transactions to prove criminal intent.

      Considering Bradshaw’s instruction that we “compar[e] the defendant’s state

of mind in perpetrating both the extrinsic and charged offenses,” Bradshaw, __ Ga.

at __ (3), we find there was not a sufficient similarity or connection such that

evidence that Ashley had engaged in certain acts without a criminal intent tended to

prove that he had the requisite criminal intent for the kidnapping and attempted

kidnapping offenses. Instead, the evidence merely raised an inference about Ashley’s

character – that he is a person who engages in annoying and disturbing behavior

around children. As such, the evidence should not have been admitted. See Chua, 289

Ga. 232 (2).

      In his ruling, the trial court also found that Ashley’s behavior at the pool was

part of “a series of incidents that culminate[d] in the [kidnapping,]” and suggested

that the evidence of the pool incidents might be admissible as part of a single

transaction rather than as separate, similar transactions. See generally Burger v. State,

242 Ga. 28, 32 (8) (247 SE2d 834) (1978) (if separate act is committed as part of

same transaction as that for which accused is being tried, and forms part of res gestae,

evidence of it is admissible). Nothing from the record, however, shows that Ashley’s

                                           12
behavior around children in the summer of 2011was intrinsic to the crimes charged

in this case – the kidnapping and attempted kidnapping of different children two

months later. See generally Peoples v. State, 295 Ga. 44, 52 (4) (b) (757 SE2d 646)

(2014) (rejecting state’s argument that evidence of prior robbery was evidence of

charged crimes associated with subsequent home invasion, rather than similar

transaction, because the evidence of the robbery was “extrinsic to the crimes charged;

it did not bear directly on [defendant’s] alleged conduct in this case, nor was it

intrinsic to, or inextricably intertwined with, the crimes at the [victims’] house”)

(citation omitted).

      The admission of the improper character evidence against Ashley requires

reversal. The jury found Ashley guilty of kidnapping and attempted kidnapping rather

than lesser included offenses of simple battery and simple assault. A significant

amount of the state’s evidence addressed Ashley’s character, and we cannot say that

it was highly probable that the error in admitting that character evidence did not

contribute to the jury’s verdict. See Peoples, 295 Ga. at 55 (4) (c).

      3. Remaining claims of error.

      Given our disposition, we do not address Ashley’s remaining claims of error.



                                          13
      Judgment reversed. Andrews, P. J., Barnes, P. J., and Doyle, P. J., concur;

Boggs, Ray, and Branch, JJ., dissent.




                                        14
 A14A1848. ASHLEY v. THE STATE.



      RAY, Judge.

      Because I believe that the trial judge did not abuse its discretion in admitting

similar transaction evidence of Ashley’s prior conduct around young children, I

respectfully dissent to Division 2 of the majority opinion and otherwise would affirm

the conviction.

      The majority relies upon United States v. Dickerson, 248 F.3d 1036, 1047 (IV)

(A) (11th Cir. 2001) for the proposition that similar transaction evidence, when

offered as proof of intent, must demonstrate that the extrinsic offense “requires the

same intent as the charged offense” under the Federal Rules of Evidence. It is telling

that both the majority and Ashley’s appellate brief fail to cite to any relevant Georgia

law in support of this holding. This is because Georgia’s case law construing our

former evidence code imposed no such requirement. Federal Rule of Evidence 404
(b), relied upon by Dickerson, and our new Evidence Code apply a more restrictive

standard than our former evidence code in admitting evidence of similar transactions

for the purpose of showing a defendant’s intent.

      Under our former evidence code, “there [was] no requirement that the

independent acts be identical to the crime charged; the proper focus is on the

similarities, not the differences, between the separate [acts] and the crime in

question.” (Citation and punctuation omitted.) Jones v. State, 316 Ga. App. 443, 446

(2) (a) (729 SE2d 578) (2012). Moreover, when the State introduces prior acts to

show a defendant’s intent, “a lesser degree of similarly is required than when such

evidence is introduced to prove identity.”) (Citation and punctuation omitted.) Kinder

v. State, 284 Ga. 148, 150 (3) (663 SE2d 711) (2008). Accord, Jones, supra (finding

evidence of prior attacks committed by a defendant with little or no provocation was

relevant to show his intent in a domestic violence case where he alleged he acted in

self-defense); Carver v. Stone, 258 Ga. 385, 385 (369 SE2d 471) (1988) (defendant,

a member of the KKK, was charged with making terroristic threats to a person of a

different race; trial court did not abuse its discretion in allowing prosecution to

present substantial evidence, unrelated to the incident involving the victim, of

defendant’s racist statements and beliefs to prove his ‘intent to terrorize.’)

                                           2
      Here, the trial court found that the prior acts were logically connected to the

current charges: the same trailer park, the same approximate time period, a series of

incidents culminating in the crime charged, and all involving inappropriate contact

with young children. Ashley’s defense at trial is that he could not form the requisite

intent to commit the crimes charged because of his drug use. This was sufficient to

raise an issue concerning his state of mind, and it created a possibility that the jury

could have concluded that while he committed the charged acts, he did not intend to

do so. Intent is, therefore, at issue in this case, and the trial court did not abuse its

discretion in allowing evidence that Ashley had a history of demonstrating an

inappropriate interest in and behavior around young children as evidence that he did,

in fact, intend to commit the crimes charged.

      I am authorized to state that Boggs and Branch, JJ., join in this dissent.




                                           3
