Griffin v. State, 96-3895
| Decision Date | 28 January 1998 |
| Docket Number | No. 96-3895,96-3895 |
| Parties | 23 Fla. L. Weekly D341 Milton GRIFFIN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
Appellant, Milton Griffin, was charged by information with, and convicted of, the armed kidnapping of Veronica Linn ("Ms.Linn"); the armed kidnapping of Ms. Linn's three-year-old daughter, Victoria; the armed robbery of Ms. Linn; and carrying a concealed firearm. We affirm in all respects, except for the conviction and sentence for the kidnapping of young Victoria Linn, which we reverse because there was no evidence which would legally support that charge.
At trial, Ms. Linn testified that on January 15, 1996, she was working as a shift manager at the Dolphin Beepers shop in Dania. Her three-year-old daughter, Victoria, had accompanied her to work. At shortly after 10:00 a.m., two men, one identified as appellant, entered the store. 1 After exchanging a few comments with Ms. Linn, appellant removed two guns from a zippered bag and handed one of them to the other man.
Appellant pointed his gun at Ms. Linn and asked her if the little girl was her daughter. Appellant then told Ms. Linn to get the girl, who was on the other side of the room playing Nintendo. Appellant grabbed Ms. Linn's arm and took her to a broom closet near the back of the store. Victoria came along, but Ms. Linn could not remember whether she was holding her daughter, or how Victoria got there. Appellant put Ms. Linn in the closet. Ms. Linn added that Victoria "just came in with me." Ms. Linn testified that appellant had not locked the closet door, and that she could have opened it, but that she was afraid.
Appellant soon returned, opened the closet, and tied Ms. Linn's hands with plastic garbage bag ties. He then took Ms. Linn from the closet to a couch in a nearby room, where he tied her feet. Victoria was also moved to this other room; Ms. Linn testified that appellant "put us inside there." Victoria was not tied up in any way--"[s]he was just standing there."
Appellant and the other man were entering this room and asking Ms. Linn questions, such as whether there was a security camera in the store. Eventually, Ms. Linn's mouth was covered with duct tape. Ms. Linn could hear the front door of the shop open and close a few times. Finally, appellant returned to search Ms. Linn's pockets. He found, and took, $300 from her jeans pocket. About one minute after Ms. Linn stopped hearing activity in the store, she hopped out the back door of the shop. A nearby store owner phoned the police for her.
Appellant testified that he did not commit the robbery. However, the evidence of guilt included Ms. Linn's photographic identification and in-court identification of appellant; appellant's fingerprints on a freshly windexed display case; and the discovery of a computer printer, identified as one stolen from the shop, in appellant's room.
At the close of the State's case, appellant moved for judgment of acquittal on the dual grounds that (1) the State failed to establish a prima facie case as to the four counts; and (2) the State failed to prove the identity of the child victim. The court denied the motion. At the close of the evidence, appellant renewed his motion for judgment of acquittal on the ground that the State had failed to establish a prima facie case on any of the counts. Again, the motion was denied. The jury convicted appellant on all charges, and the trial court imposed sentence.
Appellant's motions for judgment of acquittal did not specifically set forth the ground argued on this appeal--namely, that the confinement of three-year-old Victoria Linn did not constitute a kidnapping since it was merely incidental to the robbery. See Reed v. State, 603 So.2d 69 (Fla. 4th DCA 1992)( that only those grounds raised in a motion for judgment of acquittal are reviewable on appeal). A motion for judgment of acquittal which does no more than generally allege that the State has failed to establish a prima facie case is insufficient to preserve the instant issue for appeal. See Johnson v. State, 478 So.2d 885, 886 (Fla. 3d DCA 1985)( that a "general" motion for judgment of acquittal which asserted, "without explanation or argument, that the state had failed to prove a 'prima facie' case of the crime charged in the indictment" was insufficient to preserve for appeal the specific argument that the State had failed to prove the age of the victim to support a conviction for sexual battery of a child under the age of eleven); Gibbs v. State, 693 So.2d 65 (Fla. 4th DCA 1997)( Johnson in finding that a "general" motion for judgment of acquittal was insufficient to preserve the specific argument for appeal). Thus, appellant must, and does, argue on appeal that his conviction for kidnapping Victoria Linn constitutes fundamental error.
The crime of kidnapping
The supreme court has held that the crime of kidnapping, which consists of "confining, abducting, or imprisoning another person ... with intent to commit or facilitate commission of any felony," § 787.01(1)(a)2, Fla. Stat. (1995), "does not include movement or confinement that is inconsequential or inherent in the nature of the felony." Faison v. State, 426 So.2d 963, 966 (Fla.1983)(quoting Harkins v. State, 380 So.2d 524, 528 (Fla. 5th DCA 1980)). Faison adopted the test laid out in State v. Buggs, 219 Kan. 203, 547 P.2d 720, 731 (1976):
[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.
In this case, appellant does not contest the applicability of prongs (b) and (c) of the Faison-Buggs test. His challenge is to prong (a)--that the movement/confinement of Victoria Linn, as a matter of law, was "slight, inconsequential and merely incidental" to the robbery.
In Berry v. State, 668 So.2d 967, 969 (Fla.1996), the supreme court revisited the Faison-Buggs test and construed prong (a) to mean that
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