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Glover v. State

Florida Court of Appeals, Fourth District

November 15, 2017

JIMMIE ERNEST GLOVER, Appellant,
v.
STATE OF FLORIDA, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         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[.]'" 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 ...

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