Kiser v. State

755 S.E.2d 505, 327 Ga. App. 17, 2014 Fulton County D. Rep. 1289, 2014 Ga. App. LEXIS 284
CourtCourt of Appeals of Georgia
DecidedMarch 7, 2014
DocketA13A2249
StatusPublished
Cited by11 cases

This text of 755 S.E.2d 505 (Kiser v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kiser v. State, 755 S.E.2d 505, 327 Ga. App. 17, 2014 Fulton County D. Rep. 1289, 2014 Ga. App. LEXIS 284 (Ga. Ct. App. 2014).

Opinions

Boggs, Judge.

Bobby Kiser appeals from his convictions for false imprisonment and theft by taking.* 1 He contends that insufficient evidence supports his convictions and that the trial court erred by admitting hearsay during his trial and evidence of a previous conviction during the sentencing hearing. For the reasons explained below, we affirm Kiser’s false imprisonment conviction, reverse his theft by taking conviction, vacate his sentence, and remand this case to the trial court for resentencing.

[18]*181. When reviewing the sufficiency of the evidence,

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. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

(Citations and footnote omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). So viewed, the record shows that a little after midnight on July 31, 2007, the victim received a telephone call from his good friend, Donald Zachery. Zachery, who owed the victim $575, asked the victim to come get his money immediately before Zachery went out of town early in the morning. Because the victim wanted to use the money to buy school clothes for his son, he decided to make the 25-minute drive from his home in Tifton to Zachery’s home in Adel. He had been to Zachery’s home “plenty of times” before and never had any problems.

When he arrived, he “pulled up in the yard,” and left his keys on top of the truck’s console with the doors unlocked, because he was not planning to stay long at Zachery’s home. Bobby Kiser, whom the victim knew and had met through Zachery several years before, was standing by the door and signaled the victim to come inside. The victim “thought nothing of it,” walked inside, and greeted Zachery. As the victim spoke with Zachery, he noticed that Kiser had closed the front door to the single wide mobile home and was standing with his back to the door “like he was standing guard.”

The victim testified that he had “never trusted” and “never vibed” with Kiser, and only interacted with Kiser through Zachery. The victim thought it was peculiar when Kiser closed the door and stood beside it. After he noticed that something “wasn’t right” with Zachery as well, the victim concluded, “something’s not right here.” Within three minutes of the victim’s arrival, he saw Jermaine Davis come from a back room of the mobile home with a gun “pointed straight out.” Fearing for his life, the victim decided not “to wait around” and “took off running” and dove through a closed glass [19]*19window in a rear bedroom of the trailer. He testified that he could not exit through the door because Kiser “was guarding the door.” While the victim was running toward the rear bedroom, he saw Kiser pull out a chrome firearm and heard him say, “we fixing to kill you.” After jumping out of the window, the victim ran and hid behind a house across the street. While his truck was still parked outside Zachery’s mobile home when he ran past it, he was afraid he would be shot if he tried to enter and start it. The victim admitted that no gun was fired during or after his escape.

The victim immediately called 911, but had some initial difficulty reaching an operator. He informed the operator that someone had attempted to rob him and told her his location. She guided him to a road near some railroad tracks where he saw an approaching police car and stopped it. When the police officer took the victim back to Zachery’s house within 10 to 15 minutes of the 911 call logged at 2:05 a.m., the victim’s truck was gone and no one remained inside the house. The front door of the house was standing open when the police arrived.

The victim testified that when he first arrived at Zachery’s mobile home that evening, he did not see any other parked cars, including the vehicles normally driven by Zachery, Kiser, and Davis. The police subsequently recovered the victim’s truck three to five miles away from Zachery’s home, and they were unable to recover any evidence from the vehicle linking it to Kiser, Zachery or Davis.

During cross-examination, the victim admitted that he “removed himself” before anyone had an opportunity to prevent him from leaving the mobile home—no one told him that he could not leave. He also testified, however, that he could not leave the way he came in because Kiser was at the door. A police officer testified that there was no other exit from the mobile home.

2. Kiser contends that this evidence is insufficient to support his false imprisonment conviction, because no one prevented the victim from leaving through the window or told him that he could not leave. A person is guilty of false imprisonment “when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.” OCGA § 16-5-41 (a).

This statute on its face does not require that the imprisonment be for a specific length of time; all that is required is there be an arrest, confinement or detention of the person, without legal authority, which violated the person’s liberty (i.e., against his or her will). At the point when that occurs, the offense is complete notwithstanding that the victim may thereafter . . . effect an escape.

[20]*20(Citations omitted.) Herrin v. State, 229 Ga. App. 260, 263 (3) (493 SE2d 634) (1997). In Alexander v. State, 279 Ga. 683 (620 SE2d 792) (2005), the Supreme Court of Georgia concluded that the false imprisonment statute is not unconstitutionally vague, noting:

The word “confine” has a commonly understood meaning which would place a person of common intelligence on notice of the prohibited acts. For example, Webster’s Ninth New Collegiate Dictionary defines “confine” as follows: “1. To hold within a location ... 2. To keep within limits.” In turn, Black’s Law Dictionary, Sixth Edition, defines the term confinement in a similar manner as: “shut in” or “imprisoned.”

Id. at 686 (3). And when interpreting a similar statute governing civil actions for false imprisonment, we have held that “[a] detention need not consist of physical restraint, but may arise out of words, acts, gestures, or the like, which induce a reasonable apprehension that force will be used____” Hampton v. Norred & Assoc., 216 Ga. App. 367, 368 (1) (454 SE2d 222) (1995).

In this case, the victim testified that he could not leave through the only door to the mobile home after Davis came from the rear with a pointed gun, because Kiser was guarding the door, pulled out a gun of his own, and threatened to kill him. We find this evidence sufficient to support Kiser’s false imprisonment conviction. See Barnett v. State, 244 Ga. App.

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Cite This Page — Counsel Stack

Bluebook (online)
755 S.E.2d 505, 327 Ga. App. 17, 2014 Fulton County D. Rep. 1289, 2014 Ga. App. LEXIS 284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kiser-v-state-gactapp-2014.