JIMMIE ERNEST GLOVER v. STATE OF FLORIDA , 237 So. 3d 405 ( 2017 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JIMMIE ERNEST GLOVER,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D16-1182
[November 15, 2017]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; James W. McCann, Judge; L.T. Case No. 2014CF000591A.
Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven
Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
CIKLIN, J.
Jimmie Ernest Glover was convicted of numerous offenses after a jury
trial. At issue in this appeal are his two convictions for kidnapping. Glover
argues that his actions did not constitute kidnapping because the
movement of his victims was slight and inconsequential and did not assist
the commission of another crime. We disagree and affirm.
One night, a group of five young men and two young women met at a
neighborhood park. On their way into the park, the two women passed
Glover, who was walking in the opposite direction. They headed to a table
in the back of the park and met up with the rest of the group. Later, as
the victims were about to leave the park, Glover approached them,
produced what appeared to be a handgun, and announced that they were
“all gonna die tonight.” Glover ordered all of the victims on the ground
and took personal items from three of the victims, including a cell phone
and a wallet.
Afterward, Glover—wielding the gun—ordered the two women to get up
from the ground and completely disrobe. The women started to comply
and Glover then “brought [them to] these trees and separated [them].” One
of the women disrobed completely. Glover then placed a gun to the back
of her head and proceeded to rape her. He began to move her toward a
picnic table. While this was happening, the five men remained face down
on the ground and could make out some of what was happening, although
their view was partially obstructed by “a fairly big tree.”
Glover continued to threaten all of the victims that they were going to
die. Meanwhile, the second woman, who had only partially disrobed,
shouted, “Run,” and the group scattered and fled. The woman who had
been raped also fled, leaving her clothing behind. Glover proceeded to
chase down the second woman but she was able to escape after Glover
removed her pants.
After a jury trial, Glover was convicted of numerous offenses, including
attempted robbery, robbery, attempted sexual battery, sexual battery,
aggravated battery, and kidnapping. On appeal, Glover challenges only
the kidnapping convictions. He contends the state failed to prove that his
movement of the women was any more than slight, inconsequential, and
merely incidental to the sexual battery and attempted sexual battery, and
that the trial court should have granted his motion for judgment of
acquittal. We disagree.
We review the trial court’s denial of Glover’s motion for a judgment of
acquittal de novo. See Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002).
“Generally, an appellate court will not reverse a conviction which is
supported by competent, substantial evidence.” Id. “If, after viewing the
evidence in the light most favorable to the State, a rational trier of fact could
find the existence of the elements of the crime beyond a reasonable doubt,
sufficient evidence exists to sustain a conviction.” Id. (emphasis added).
Section 787.01(1)(a)2., Florida Statutes (2014), defines kidnapping as
“forcibly, secretly, or by threat confining, abducting, or imprisoning
another person against her or his will and without lawful authority, with
intent to . . . . [c]ommit or facilitate commission of any felony.” The Florida
Supreme Court “has recognized that the statute’s literal interpretation
would result in a kidnapping conviction for any criminal transaction which
inherently involves the unlawful confinement of another person, such as
robbery or sexual battery.” Delgado v. State, 71 So. 3d 54, 59-60 (Fla.
2011) (citation and internal quotation marks omitted). Therefore, in
Faison v. State, 426 So. 2d 963, 965-66 (Fla. 1983), the Florida Supreme
Court, “adopted a three-part test” “in an effort to limit the scope of that
particular subsection so as ‘to prevent any crime that involves some level
of confinement or detention from also constituting a kidnapping[.]’”
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Delgado, 71 So. 3d at 60 (quoting Lynch v. State, 2 So. 3d 47, 62 (Fla.
2008)).
The supreme court has since elaborated on the Faison test:
Faison provided the framework for analyzing the facts of a
case to determine whether a defendant’s conduct amounts to
a confinement crime under section 787.01(1)(a)2. distinct
from other criminal charges involving forcible felonies.
Pursuant to Faison,
[I]f a taking or confinement is alleged to have been done to
facilitate the commission of another crime, to be kidnapping
the resulting movement or confinement:
(a) Must not be slight, inconsequential and merely incidental
to the other crime;
(b) Must not be of the kind inherent in the nature of the other
crime; and
(c) Must have some significance independent of the other
crime in that it makes the other crime substantially easier
of commission or substantially lessens the risk of
detection.
Id. (alteration in original) (quoting Faison, 426 So. 2d at 965).
The facts and reasoning of Faison, 426 So. 2d 963, provide guidance.
There, the defendant entered an office where a female employee was
working alone and violently dragged her from her desk in front of a large
window to the rear of the office where he sexually assaulted her. Id. at
964. He then fled to a residential area and broke into a woman’s home,
violently dragged her from the kitchen down a hallway into the bedroom,
and sexually assaulted her after beating her to a state of near
unconsciousness. Id. The district court affirmed the kidnapping
convictions, finding as follows:
(a) The movements of both victims were effected by
substantial force and violence inflicted by Faison to
overcome their resistance and to make them to go where
he wanted. It cannot be said, therefore, that the
asportations were either slight, inconsequential or merely
incidental to the sexual batteries which followed.
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(b) These movements were not inherent or necessarily
required in the commission of the sexual batteries, which
could have been accomplished on the spot without any
asportation whatever.
(c) Both abductions were from an area where the rape could
have been more easily observed through a window – in the
first victim’s office, and the second one’s kitchen – to the
“relative seclusion” of the rear and restroom of the office
and the bedroom of the home, respectively. Moreover, each
asportation removed the victim from access to a door –
again, in the office and in the kitchen – through which she
might have escaped. Hence, each made the sexual battery
substantially easier to commit and substantially reduced
the danger of detection. . . . The fact that relatively short
distances were involved makes no difference.
Id. at 966 (emphasis in original) (quoting Faison v. State, 399 So. 2d 19,
21-22 (Fla. 3d DCA 1981)).
The Florida Supreme Court found that the district court reached the
correct result, with the exception of a footnote in the district court opinion
not relevant here. Id.
Although Glover did not use great force to move the women to the area
behind a “fairly large tree,” he deliberately directed the women to disrobe
completely before ordering them to move behind the tree which Glover was
attempting to hide behind while committing the sexual battery. These
actions, taken together, were not inconsequential nor were they inherent
in the act of sexual battery, and taken in the light most favorable to the
state they establish that Glover intended to make it easier to commit
sexual batteries and to reduce the danger of detection. See Carter v. State,
762 So. 2d 1024, 1027 (Fla. 3d DCA 2000) (affirming kidnapping
conviction where defendant entered a gym where victim was alone in the
public exercise area, robbed her at gunpoint, and directed her through a
doorway into a nearby hallway before committing sexual battery); Bush v.
State, 526 So. 2d 992, 993-94 (Fla. 4th DCA 1988) (affirming kidnapping
conviction where defendant dragged victim from side of well-traveled road
to the woods); Lamarca v. State, 515 So. 2d 309, 310-11 (Fla. 3d DCA
1987) (affirming kidnapping conviction where defendant “pulled out a
medium sized kitchen knife, pointed it at [the victim] and forced her into
the last stall in the restroom” before attempting to commit sexual battery).
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Affirmed.
WARNER and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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