Hammond v. Georgia
Annotate this CaseThe Court of Appeals affirmed the trial court’s conviction of Appellant Timothy Hammond for sexual battery, aggravated sodomy, kidnapping with bodily injury, aggravated assault, burglary and false imprisonment. Appellant’s trial was in 2006. At trial, Appellant requested that the judge give a jury charge that described the “asportation” element of the kidnapping charge to be described as: “the movement necessary . . . must be more than a mere positional change. It must be movement that is not merely incidental to the other criminal act, but movement designed to carry out better the criminal activity.” Instead, the court issued the pattern jury charge on kidnapping that was applicable at the time. In 2008, the Supreme Court overruled prior law regarding the need for only slight movement to satisfy the asportation element of kidnapping, and set out four factors for courts to decide whether the asportation element was met. Appellant sought judicial review of his case to decide whether the trial court’s use of the pattern jury instruction instead of the one he requested constitutes reversible error. “This Court and the U.S. Supreme Court have repeatedly held that a substantive change in case law should be applied retroactively and that a substantive change includes decisions that remove certain conduct from the reach of criminal statutes.” In this case, the Court held that its prior ruling in Garza v. State (the case that changed the legal definition of asportation) was substantive, and should be applied retroactively. Finding no error, the Supreme Court affirmed Appellant’s conviction.
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