Once upon a time, there used to be a huge cork board hanging in the entrance of most Walmart stores. I remember seeing them as a child. The boards were not filled with advertisements for movers, garage sales or photos of lost pets. The board was filled with photos of missing children. It was a frightening sight to see all those missing children. Where were they? Where did they go? Who took them? Were they alive or…dead? I couldn’t bring myself to think that they weren’t alive.
When a child is reported missing, kidnapped or abducted to law enforcement, federal law requires that child to be entered into the FBI’s National Crime Information Center, also known as NCIC. According to the National Center for Missing & Exploited Children (NCMEC), a non-profit organization that serves as the national clearinghouse and resource center for information about missing and exploited children, there were 424,066 NCIC entries for missing children in 2018. In 2017, there were a total of 464,324 of missing children entries into NCIC.
Just the other day, the AJC reported that a man was arrested for attempting to lure a 9-year-old boy from a Marietta Walmart. The man, 51, reportedly approached the young boy in the Walmart restroom and allegedly told the boy that his mother had left him at the store. The man told the boy that he needed to leave with him. He then grabbed the boy by the arm, but the boy broke loose and found his mother waiting outside of the restroom for him. She called the police and the man, still inside the Walmart, was arrested and charged with felony kidnapping and misdemeanor simple battery.
Most cases, however, are not stranger abductions. In 2018, NCMEC assisted law enforcement and families with more than 25,000 cases of missing children. The case types were:
- 92 percent endangered runaways;
- 4 percent family abductions;
- 3 percent critically missing young adults, ages 18 to 20;
- Less than 1 percent non-family abductions; and,
- 1 percent lost, injured or otherwise missing children.
Have you been charged with kidnapping in Georgia? If so, it’s important to understand that such an offense is a felony and can land you in jail for the rest of your life. Give us a call here at Bixon Law, today. You’ll need a good defense team on your side who understands Georgia’s kidnapping laws and is aware of the statistics of the children who go missing in the United States.
KIDNAPPING IN GEORGIA
Under Georgia law, O.C.G.A. §16-5-40, 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. For the offense of kidnapping to occur, slight 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. 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.
PENALTY FOR KIDNAPPING IN GEORGIA
A person convicted of the offense of kidnapping shall be punished by:
(1) Imprisonment for not less than ten nor more than 20 years if the kidnapping involved a victim who was 14 years of age or older;
(2) Imprisonment for life or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment, followed by probation for life, if the kidnapping involved a victim who is less than 14 years of age;
(3) Life imprisonment or death if the kidnapping was for ransom; or,
(4) Life imprisonment or death if the person kidnapped received bodily injury.
Further, the offense of kidnapping is declared to be a continuous offense, and venue may be in any county where the accused exercises dominion or control over the person of another. O.C.G.A. §16-5-40.
GEORGIA CASE LAW
In Whatley v. The State, 335 Ga. App. 749, 782 S.E.2d 831 (2016), a jury found Sedrick Cortez Whatley guilty of nine felonies, including kidnapping, in connection with two incidents that occurred on consecutive nights in November 2009. In addition to claiming that the trial court erred by denying his motion to suppress because affidavits supporting two search warrants issued in the case were based on information supplied by a confidential informant of unknown reliability, Whatley also argued that there was insufficient evidence to support his kidnapping conviction. The Court affirmed his convictions.
A clerk at Coleman’s Grocery in Fayette County had just closed the store for the night and was walking to his car when two men wearing masks approached and ordered him back inside. One of the men had a silver gun. After the men threatened to shoot, the clerk gave them cash, scratch-off lottery tickets, and cigars. The men then forced the clerk inside the store’s office and locked the door, and the clerk called 911. Whatley was located, arrested and charged with two counts each of armed robbery, aggravated assault, and possession of a firearm during the commission of a crime, and one count each of financial transaction card theft, kidnapping, and burglary.
In regards to his kidnapping conviction for “abducting[ing] and steal[ing] away” the clerk in the Coleman’s Grocery incident, Whatley contended that there was insufficient evidence to support the kidnapping conviction under Garza v. State because “[a]ny movement of [the clerk] should be deemed as merely incidental to the offense of robbery and for no other purpose.” The element of “abducting or stealing away”—known as asportation—may be proven by evidence of “slight movement” of the victim. In Garza, the Supreme Court held that the movement required to establish the asportation element of Georgia’s pre-2009 kidnapping statute must be more than “merely incidental” to other criminal activity, and the court set forth four factors to guide this inquiry.
However, the Court stated that Garza had been superseded by statute for crimes—such as Whatley’s—that were committed after July 1, 2009. The kidnapping statute now clarifies that the victim’s movement is not considered merely incidental, but instead is sufficient to establish the asportation element of the offense, if it “(A) [c]onceals or isolates the victim; (B) [m]akes the commission of the other offense substantially easier; (C) [l]essens the risk of detection; or (D) [i]s for the purpose of avoiding apprehension.” In this case, the clerk testified that after taking items inside the store, the robbers forced him into the office against his will and locked the door. This testimony supports the reasonable inference that the robbers isolated the clerk to expedite their escape, thereby lessening the risk of their detection. Thus, the evidence was sufficient to establish the asportation element of kidnapping.
DEFENSES AGAINST THE OFFENSE OF KIDNAPPING
Victim Not Moved: Under the statute, “movement” or “abductinging and stealing” away is a required element of the offense of kidnapping. Thus, if defense counsel can present evidence to the prosecution before trial or at trial that the defendant did not move the alleged victim as described under the law then the defendant cannot be convicted of kidnapping. However, please note that the defendant can still be charged and convicted of false imprisonment.
Wrong Age: In a kidnapping case, the age of the victim matters. If the alleged victim’s age is incorrect and he/she is actually 14 or older then defense counsel can present such evidence to the Court in order to get the defendant’s sentence reduced if he or she has been convicted of kidnapping.
Innocence: In order for the defendant to be convicted of the crime of kidnapping, the prosecution must prove he or she is guilty beyond a reasonable doubt. Thus, if defense counsel can present evidence that the accused did not engage in such conduct as defined under the statute, then the defendant cannot be convicted of kidnapping.
CONTACT BIXON LAW TODAY
Have you been arrested and charged with kidnapping in Georgia? If so, call Bixon Law today. You need an experienced Georgia criminal defense lawyer on your side who will defend your legal rights and vigorously advocate on your behalf to have your case dismissed or the charges against you reduced. As experienced trial attorneys, we are also not afraid to take your case to trial if necessary. We represent clients in Atlanta and throughout the state of Georgia. We are lawyers who are committed to helping people in difficult situations and we invite you to call us at 404-551-5684 for a free consultation today.