BLACKBURN, Presiding Judge.
Following a jury trial, Martin Flores appeals his conviction for kidnapping1 and child molestation.2 Regarding the kidnapping conviction, he challenges the sufficiency of the evidence pertaining to the element of asportation; regarding the child molestation conviction, he argues that the trial court erred in denying his motion for directed verdict (in which he argued that the State failed to prove that his private part touched the private part of the victim as alleged in the indictment). We hold that the evidence showed the asportation needed for a kidnapping conviction and that the State proved the elements of child molestation as alleged. Accordingly, we affirm.
When reviewing a defendant’s challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. Short v. State.3 We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia.4 This stan[575]*575dard applies also to our review of the denial of motion for a directed verdict. Hash v. State.5
So viewed, the evidence shows that late one evening when a 12-year-old female was returning home after a party, 19-year-old Flores burst from the bushes near the front door of the young girl’s home and confronted her about her unwillingness to engage in a romantic relationship with him. He then grabbed her arm and forced her out of sight to the unlit back side of the residence, where he tripped her and pulled her pants down. Over the girl’s protests, Flores tried to penetrate her private area, but she pushed him to the side. In response, Flores flipped the girl over onto her stomach and penetrated her private area from behind. During the assault, he put his hand over her mouth to stop her from screaming.
The young girl’s mother, who had recently arrived home and had been looking for her daughter in the residence and in the yard around its entrance, walked to the back of the residence and saw Flores on top of her daughter with his pants down. The girl shouted that Flores was raping her, and Flores fled the scene.
Flores was indicted for aggravated assault (assault with intent to rape), kidnapping, false imprisonment, child molestation, and criminal attempt to rape. At trial, an officer testified that the victim picked Flores from a photographic lineup and that the victim had told him she had been penetrated both while face-to-face with Flores and while Flores attacked her from behind. A jury found Flores guilty on all counts, following which the judge merged the false imprisonment count into the kidnapping count, and the criminal attempt count into the aggravated assault count, and sentenced Flores. Following the denial of his motion for new trial, Flores appeals.
1. Flores first argues that under Garza v. State,6 the State failed to prove the asportation element necessary to sustain a kidnapping conviction. We disagree.
Garza adopted a test first articulated in Govt. of Virgin Islands v. Berry,7 which set forth four factors to be considered in determining whether the movement at issue constituted the asportation needed for kidnapping:
(1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that [576]*576separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.
Garza, supra, 284 Ga. at 702 (1). Garza emphasized that
[assessment of these factors will assist Georgia prosecutors and courts alike in determining whether the movement in question is in the nature of the evil the kidnapping statute was originally intended to address — i.e., movement serving to substantially isolate the victim from protection or rescue — or merely a “criminologically insignificant circumstance” attendant to some other crime.
Id.
Our assessment of the four factors confirms that the evidence here showed that Flores’s movement of the victim substantially isolated the victim from protection or rescue. Although the duration of the movement was short, and although the movement occurred during the commission of the sexually-motivated aggravated assault, the movement did not constitute an inherent part of that aggravated assault but was clearly designed to present a significant danger to the victim independent of the assault. Flores’s forced removal of the victim from a visible area to the secluded dark area behind the residence was not essential to the assault itself (an assault can occur in broad daylight in an open area) but was instead an attempt to isolate the victim from protection and rescue, thus increasing the danger faced by the victim. Compare Rayshad v. State8 (no evidence that moving the victim from room to room inside a home in search of money enhanced significantly the risk she was already facing during the commission of the robbery). The mother’s unsuccessful attempts to locate her daughter in the lighted area in front of the residence only bolster the conclusion that the removal of the victim here to the rear of the residence was to isolate her from protection or rescue, as the removal was successful in accomplishing this for a period of time. The evidence sufficed to sustain the kidnapping conviction.
Henderson v. State,9 recently decided by the Supreme Court of Georgia, substantiates this conclusion. In Henderson, three gunmen entered a duplex and robbed four victims at gunpoint. Id. at 241 (1). “These four [victims] were then ordered into one room and told to remove their clothes and get on the floor.” Id. Convicted on four counts of kidnapping and of armed robbery, one of the gunmen [577]*577appealed, arguing that under Garza the element of asportation was not shown. Sustaining the kidnapping convictions, Henderson conceded that “the movement of the victims from one room to another within the duplex was of minimal duration,” but held that “such movement was not an inherent part of the armed robbery” and in fact “occurred after the offense of armed robbery had been completed.” Id. at 245 (5). Here, the movement of the young victim to the rear of the residence occurred during the assault but by no means was an inherent or essential part of the assault, as the assault could just have easily occurred at the front of the residence. More importantly, Henderson held that the mere movement of the victims from one room to another inside the residence “created an additional danger to the victims by enhancing the control of the gunmen over them” and then cited to Garza for the proposition that the “kidnapping statute [is] intended to address ‘movement serving to substantially isolate the victim from protection or rescue.’ ” Id.
Free access — add to your briefcase to read the full text and ask questions with AI
BLACKBURN, Presiding Judge.
Following a jury trial, Martin Flores appeals his conviction for kidnapping1 and child molestation.2 Regarding the kidnapping conviction, he challenges the sufficiency of the evidence pertaining to the element of asportation; regarding the child molestation conviction, he argues that the trial court erred in denying his motion for directed verdict (in which he argued that the State failed to prove that his private part touched the private part of the victim as alleged in the indictment). We hold that the evidence showed the asportation needed for a kidnapping conviction and that the State proved the elements of child molestation as alleged. Accordingly, we affirm.
When reviewing a defendant’s challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. Short v. State.3 We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia.4 This stan[575]*575dard applies also to our review of the denial of motion for a directed verdict. Hash v. State.5
So viewed, the evidence shows that late one evening when a 12-year-old female was returning home after a party, 19-year-old Flores burst from the bushes near the front door of the young girl’s home and confronted her about her unwillingness to engage in a romantic relationship with him. He then grabbed her arm and forced her out of sight to the unlit back side of the residence, where he tripped her and pulled her pants down. Over the girl’s protests, Flores tried to penetrate her private area, but she pushed him to the side. In response, Flores flipped the girl over onto her stomach and penetrated her private area from behind. During the assault, he put his hand over her mouth to stop her from screaming.
The young girl’s mother, who had recently arrived home and had been looking for her daughter in the residence and in the yard around its entrance, walked to the back of the residence and saw Flores on top of her daughter with his pants down. The girl shouted that Flores was raping her, and Flores fled the scene.
Flores was indicted for aggravated assault (assault with intent to rape), kidnapping, false imprisonment, child molestation, and criminal attempt to rape. At trial, an officer testified that the victim picked Flores from a photographic lineup and that the victim had told him she had been penetrated both while face-to-face with Flores and while Flores attacked her from behind. A jury found Flores guilty on all counts, following which the judge merged the false imprisonment count into the kidnapping count, and the criminal attempt count into the aggravated assault count, and sentenced Flores. Following the denial of his motion for new trial, Flores appeals.
1. Flores first argues that under Garza v. State,6 the State failed to prove the asportation element necessary to sustain a kidnapping conviction. We disagree.
Garza adopted a test first articulated in Govt. of Virgin Islands v. Berry,7 which set forth four factors to be considered in determining whether the movement at issue constituted the asportation needed for kidnapping:
(1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that [576]*576separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.
Garza, supra, 284 Ga. at 702 (1). Garza emphasized that
[assessment of these factors will assist Georgia prosecutors and courts alike in determining whether the movement in question is in the nature of the evil the kidnapping statute was originally intended to address — i.e., movement serving to substantially isolate the victim from protection or rescue — or merely a “criminologically insignificant circumstance” attendant to some other crime.
Id.
Our assessment of the four factors confirms that the evidence here showed that Flores’s movement of the victim substantially isolated the victim from protection or rescue. Although the duration of the movement was short, and although the movement occurred during the commission of the sexually-motivated aggravated assault, the movement did not constitute an inherent part of that aggravated assault but was clearly designed to present a significant danger to the victim independent of the assault. Flores’s forced removal of the victim from a visible area to the secluded dark area behind the residence was not essential to the assault itself (an assault can occur in broad daylight in an open area) but was instead an attempt to isolate the victim from protection and rescue, thus increasing the danger faced by the victim. Compare Rayshad v. State8 (no evidence that moving the victim from room to room inside a home in search of money enhanced significantly the risk she was already facing during the commission of the robbery). The mother’s unsuccessful attempts to locate her daughter in the lighted area in front of the residence only bolster the conclusion that the removal of the victim here to the rear of the residence was to isolate her from protection or rescue, as the removal was successful in accomplishing this for a period of time. The evidence sufficed to sustain the kidnapping conviction.
Henderson v. State,9 recently decided by the Supreme Court of Georgia, substantiates this conclusion. In Henderson, three gunmen entered a duplex and robbed four victims at gunpoint. Id. at 241 (1). “These four [victims] were then ordered into one room and told to remove their clothes and get on the floor.” Id. Convicted on four counts of kidnapping and of armed robbery, one of the gunmen [577]*577appealed, arguing that under Garza the element of asportation was not shown. Sustaining the kidnapping convictions, Henderson conceded that “the movement of the victims from one room to another within the duplex was of minimal duration,” but held that “such movement was not an inherent part of the armed robbery” and in fact “occurred after the offense of armed robbery had been completed.” Id. at 245 (5). Here, the movement of the young victim to the rear of the residence occurred during the assault but by no means was an inherent or essential part of the assault, as the assault could just have easily occurred at the front of the residence. More importantly, Henderson held that the mere movement of the victims from one room to another inside the residence “created an additional danger to the victims by enhancing the control of the gunmen over them” and then cited to Garza for the proposition that the “kidnapping statute [is] intended to address ‘movement serving to substantially isolate the victim from protection or rescue.’ ” Id. Here, the movement of the young victim to the rear of the residence created an additional danger to the young girl by enhancing the control of Flores over her, as he would not have had such control had he remained in the lighted area in front of the residence, visible and audible to neighbors and the soon-to-arrive mother. Moreover, this movement served to substantially isolate the young girl from protection or rescue, as demonstrated by her mother’s inability to locate her and possibly prevent the ensuing rape when the mother was searching-the front of the residence. “Accordingly, the element of asportation was established. . . .” Id.10
2. Flores complains that the child molestation portion of the indictment charged him with “touching [the victim’s] genital area with his penis,” but that the evidence at trial showed that the touching may have been with his hand. Quoting Gentry v. State,11 Flores argues that “if an indictment avers that an offense is committed in one particular way, the proof must so show it, or there will exist a fatal variance.” Flores’s argument for reversal fails for [578]*578two reasons.
First, some evidence indeed showed that Flores’s private part touched the victim’s private part. The victim testified that Flores pulled down her pants and tried to touch her private part with his private part, that he penetrated her and that it may have been his private part that penetrated her, and that she cried out to her mother that he was raping her. The mother testified that she saw Flores on top of her daughter with his pants down and that her daughter exclaimed that he was raping her. The medical examiner, while finding no male DNA on the victim, did find dirt and abrasions on the victim’s private part and could not rule out penile penetration or contact. In light of this evidence, Flores’s counsel tellingly argued (in an attempt to prevent the State from recalling the victim as a witness) that “the State’s already established the essential elements of the charges and that [the victim] should not be allowed to testify again.”
Second, even if the evidence showed that Flores only used his hand to touch the victim’s private part, such would not constitute a fatal variance, as Flores “was on notice that he was being tried for touching the girl in a private area.” Collins v. State.12 See Buice v. State13 (variance of proof from allegations is not fatal unless variance precludes defendant from presenting his defense and from not being surprised). As in Collins, the difference here between Flores’s touching the girl’s private area with his hand as opposed to his private part was not a variance that would have misled Flores in his defense against the child molestation charge.
Judgment affirmed.
Andrews, P. J., and Bernes, J., concur. Smith, P. J., concurs and concurs specially. Phipps, Adams and Doyle, JJ., concur in part and dissent in part.