The Berry Test

In Garza v. State, 284 Ga. 696, 701-702 (1) (670 SE2d 73) (2008) the Supreme Court of Georgia adopted a test established in Govt. of Virgin Islands v. Berry Govt. of Virgin Islands v. Berry, 604 F2d 221, 227, 16 V.I. 614 (IV) (3rd Cir. 1979) to determine whether the movement at issue constituted asportation and therefore fulfilled that element of the crime of kidnapping. The Berry test assessed four factors in determining whether the movement at issue constituted asportation: "(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 separate offense; (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 reasoned 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. Not all elements under the Berry test must favor the prosecution for there to be asportation. See Henderson v. State Henderson v. State, 285 Ga. 240, 245 (5) (675 SE2d 28) (2009) (sufficient evidence supporting asportation despite only minimal movement of victims).