Abernathy v. State

Although the trial court's originally correct charge on kidnapping with bodily injury would now constitute error under Garza v. State, 284 Ga. 696 2008, the error did not require reversal, given the overwhelming evidence of asportation under the new Garza standard.

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Following a jury trial, Hiram Abernathy was convicted on one count each of aggravated battery,1 aggravated assault,2 armed robbery,3 kidnapping with bodily injury,4 false imprisonment,5 possession of a firearm during the commission of a crime,6 and possession of marijuana.7 He appeals his convictions and the denial of his motion for new trial, arguing that the trial court erred in denying his motion for directed verdict of acquittal on the kidnapping with bodily injury charge, incorrectly instructing the jury on the kidnapping with bodily injury charge, and failing to find that he received ineffective assistance of counsel. For the reasons set forth below, we affirm. “On appeal, the standard of review for denial of a motion for directed verdict is the same as that for determining sufficiency of the evidence to support a conviction.” Punctuation omitted. Terry v. State .8 In reviewing the sufficiency of the evidence, “the evidence must be construed in a light most favorable to the verdict and Abernathy no longer enjoys a presumption of innocence.” Punctuation omitted. Dennis v. State .9 We do not weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt. Jackson v. Virginia .10

So viewed, the record shows that in late 2005 and early 2006, Abernathy filed several reports with the local sheriff’s department, claiming that his home had been burglarized and that a few guns and a computer had been stolen. Although no arrests were made, Abernathy believed that Jonathan May, who was an acquaintance of Abernathy’s teenage daughter, and several of May’s friends had committed the burglaries. Dissatisfied with the sheriff’s department’s efforts, Abernathy hired his friend, Eric Gibson, to investigate the matter and catch the perpetrators.

Abernathy v. State

Although the trial court's originally correct charge on kidnapping with bodily injury would now constitute error under Garza v. State, 284 Ga. 696 2008, the error did not require reversal, given the overwhelming evidence of asportation under the new Garza standard.

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