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Williams v. State

Florida Court of Appeals, Second District

May 11, 2018

KEVIN WILLIAMS, a/k/a KIVEN LAMONT WILLIAMS, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal from the Circuit Court for Polk County; Neil A. Roddenbery, Judge.

          Howard L. Dimmig, II, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Laurie Benoit-Knox, Assistant Attorney General, Tampa, for Appellee.

          CASANUEVA, JUDGE.

         Kevin Williams appeals his judgments for kidnapping, domestic battery by strangulation, and tampering with a witness. Relying on three cases from the First District Court of Appeal, he argues that the trial court erred in denying his motion to dismiss the charge of tampering with a witness because the State failed to prove that the victim was attempting to contact law enforcement at the time of the incident. See McCray v. State, 171 So.3d 831, 833 (Fla. 1st DCA 2015); Thompson v. State, 153 So.3d 996, 997 (Fla. 1st DCA 2015); Longwell v. State, 123 So.3d 1197, 1198 (Fla. 1st DCA 2013). However, Mr. Williams acknowledges that in McCloud v. State, 224 So.3d 842 (Fla. 2d DCA), review granted, No. SC17-1750, 2017 WL 5496024 (Fla. Nov. 16, 2017), this court held that to prove the offense of witness tampering, the State was not required to show that the victim was attempting to contact law enforcement when the incident occurred, and this court certified conflict with McCray.

         In accordance with McCloud, we conclude that the trial court correctly denied the motion to dismiss in this case, because the State was not required to prove that the victim was attempting to contact law enforcement at the time of the incident. We note that there are important factual distinctions between McCloud and the above cited First District Court of Appeal cases; nonetheless, to the extent those cases hold that in all cases of witness tampering, the State is required to prove that the victim was attempting to contact law enforcement at the time of the incident, we again certify conflict.

         Section 914.22(1), Florida Statutes (2015), defines the offense of tampering with a witness as follows:

A person who knowingly uses intimidation or physical force, or threatens another person, or attempts to do so, or engages in misleading conduct toward another person, or offers pecuniary benefit or gain to another person, with intent to cause or induce any person to:
(e) Hinder, delay, or prevent the communication to a law enforcement officer or judge of information relating to the commission or possible commission of an offense or a violation of a condition of probation, parole, or release pending a judicial proceeding; . . .
commits the crime of tampering with a witness, victim, or informant.[1]

         Pursuant to the language of section 914.22(1)(e), the accused must have the intent to influence a witness's decision to contact law enforcement. In Longwell, 123 So.3d at 1197, the victim testified that she and the appellant were in a physical altercation and that her cell phone was broken during the altercation, but she believed the phone broke when she dropped it. In her initial statement to the police, which was entered into evidence, she alleged that the appellant took her cell phone and smashed it on the ground. In Longwell, there was no allegation that the appellant ever threatened to harm the victim or otherwise used intimidation or physical force to influence her decision to call law enforcement.

         The First District examined the language of section 914.22(1)(e) and held that there was insufficient evidence to prove the offense of witness tampering because the victim denied calling 911 and there was no evidence that the victim otherwise was attempting to contact law enforcement when her cell phone was broken. Id. at 1198. The court noted that the State candidly indicated that the evidence "did not establish a prima facie case of guilt as to the tampering charge." Id.

         We agree with the conclusion in Longwell that the State in that case did not establish the offense of witness tampering as it is defined in section 914.22(1)(e), where there was no evidence that the appellant had the intent to influence the victim's decision to contact law enforcement. The appellant's act of taking the victim's cell phone and smashing it on the ground could not be construed as an attempt to "[h]inder, delay, or prevent the communication to a law enforcement officer" where there was no evidence that she ever tried or intended to communicate with a law enforcement officer. See § 914.22(1)(e). The requirements of subsection (e) were clearly not met in that case, and the Longwell court correctly held that there was insufficient evidence as to an essential element of the crime. 123 So.3d at 1198. Simply put, the only manner in which the State could have proven the ...


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