PARIENTE, J.
We have for review the decision of the Third District Court of Appeal in Delgado v. State, 19 So.3d 1055 (Fla. 3d DCA 2009), involving the application of a provision of Florida's kidnapping statute, specifically section 787.01(1)(a)2., Florida Statutes (2006), and the interplay of that provision with our decision in Faison v. State, 426 So.2d 963 (Fla.1983). This Court's decision in Faison was intended to narrow the circumstances under which those defendants convicted of an underlying forcible felony would be automatically convicted of kidnapping; its three-part test was not intended to expand the class of defendants who could be subject to a kidnapping conviction or as a substitute for satisfying the elements of the statute. We conclude that the Third District misapplied our decision in Faison, and, accordingly, we have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; see also Wallace v. Dean, 3 So.3d 1035, 1040 (Fla.2009) (identifying misapplication of decisions as a basis for express and direct conflict under article V, section 3(b)(3) of the Florida Constitution).
Rogelio Delgado was convicted of burglary of an occupied conveyance, grand theft of a motor vehicle (auto theft), and kidnapping. He received a thirty-year sentence for the burglary of an occupied conveyance, a ten-year sentence for the auto theft, and a life sentence for the kidnapping.
The operative facts from which this case arose were presented at trial. At some time around 12 p.m. on May 24, 2006, Juan Gonzalez, the owner of a two-door, extended-cab, pickup truck with tinted windows, drove to the Flamingo Plaza furniture store located in Hialeah, Florida, and parked approximately ten yards away from the storefront. Gonzalez's girlfriend, Luisa Andelia Alvarado, and his aunt accompanied him to the store along with Alvarado's two-year-old daughter, who was asleep and fastened into a car seat in the backseat of the truck's extended cab.
Upon their arrival, Gonzalez and his aunt went inside the store to pick up pre-purchased furniture. Gonzalez then called over to Alvarado to assist them. When Alvarado exited the vehicle and walked into the store to help, she left the keys inside the vehicle with its engine running and her sleeping child unattended in the backseat. In a matter of minutes, and before Alvarado returned to the front door of the furniture store, Rogelio Delgado and an accomplice commandeered the pickup truck and drove away. A surveillance camera outside the storefront recorded the perpetrators and the auto theft.
Although there were no eyewitnesses to this sequence of events, when Gonzalez and Alvarado realized that the truck was missing, they immediately called 911 to report the incident. Within twenty to thirty minutes of this report, the police located the truck some distance north of Flamingo Plaza in the back of a business parking lot just outside of Hialeah's city limits.
Following this incident, police officers used still images captured by the storefront surveillance camera to search for Delgado. Later that day, police found him along with his accomplice near the scene where the vehicle was recovered. Based on the foregoing acts, Delgado was charged with four offenses: burglary of an occupied conveyance, grand theft, auto theft, and kidnapping with the intent to commit or facilitate a felony in violation of section 787.01(1)(a)2., Florida Statutes (2006).
At Delgado's trial, no direct evidence was introduced that he ever became aware of the child's presence during the course of the underlying charged offenses. Following the close of the State's case, Delgado moved for a judgment of acquittal on the kidnapping charge, asserting a lack of knowledge and advancing reasons why the Faison test was not met. The trial court denied Delgado's motion and then charged the jury on the kidnapping charge in the following manner:
The jury subsequently found Delgado guilty on all four charges.
With respect to his kidnapping conviction, Delgado received a mandatory life sentence as a prison releasee reoffender under section 775.082(9)(a), Florida Statutes (2006). As to his convictions for burglary of an occupied conveyance and auto theft, Delgado was sentenced to thirty years' and ten years' imprisonment, respectively, as a habitual offender. Finally, in regard to Delgado's conviction for grand theft, which was reduced to petit theft, he was sentenced to time served. All sentences were to run concurrently. Delgado appealed his convictions and sentences to the Third District Court of Appeal, challenging the trial court's denial of his motion for judgment of acquittal on the kidnapping charge.
The issue we must address in this case is whether a defendant commits the crime of kidnapping with the intent to commit or facilitate an underlying felony where the evidence produced at trial fails to establish that he or she had knowledge of the victim's presence before or during the execution of that underlying felony. In resolving this issue, we first review Florida's kidnapping statutory scheme and the three-part test this Court adopted in Faison v. State, 426 So.2d 963 (Fla.1983). Next, we examine the elements of section 787.01(1)(a)2., Florida Statutes (2006). Then, we address the Third District's decision in Delgado and conclude that it misapplied this Court's holding in Faison by conflating the language of the kidnapping statute with Faison's three-part test and improperly relying on Taylor v. State, 879 N.E.2d 1198 (Ind.Ct.App.2008). Finally, we apply the correct rule of law to the facts of this case and hold that insufficient evidence exists to support Delgado's conviction for kidnapping.
In Florida, the crime of kidnapping requires a specific intent on the part of the defendant. See Crain v. State, 894 So.2d 59, 69 (Fla.2004); Sochor v. State, 619 So.2d 285, 290 (Fla.1993). Section 787.01(1), Florida Statutes (2006), codifies this offense and sets forth four separate categories of specific intent, the establishment of any one of which will support a conviction under the statute. See Justus v. State, 438 So.2d 358, 367 (Fla.1983). The Legislature defines the criminal act of kidnapping, in relevant part, as follows:
§ 787.01(1)(a), Fla. Stat. (emphasis added). Further, under section 787.01(1)(b), "[c]onfinement of a child under the age of 13 is against her or his will within the meaning of this subsection if such confinement is without the consent of her or his parent or legal guardian." § 787.01(1)(b), Fla. Stat.
While the statutory definition of section 787.01(1)(a)2. appears relatively straightforward, the inquiry into whether a kidnapping has occurred under this provision does not end with a plain reading and application of its elements. Instead, this Court has recognized that the statute's literal interpretation "would result in a kidnapping conviction for `any criminal
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,
Faison, 426 So.2d at 965 (quoting Buggs, 547 P.2d at 731) (alteration in original). Since our decision in that case, we have adhered to the principle that proof of each factor adopted in Faison is necessary for a kidnapping conviction under subsection 787.01(1)(a)2. to be upheld. See, e.g., Lynch, 2 So.3d at 62-63 (applying the Faison test to section 787.01(1)(a)2.); Boyd v. State, 910 So.2d 167, 183-84 (Fla.2005) (same); Chavez v. State, 832 So.2d 730, 764 (Fla.2002) (same).
However, by adopting the Buggs three-part test in Faison, we did not hold that the test's three elements would supplant, or stand in lieu of, the statutory language of section 787.01(1)(a)2. Rather, we recognized that because a literal application of section 787.01(1)(a)2. would convert any forcible felony into two distinct felonies— kidnapping and the underlying felony— applying the statutory language in addition to the three-part test would justifiably serve to limit that provision's broad scope. Under the proper analysis, to establish the offense of kidnapping pursuant to section 787.01(1)(a)2., the State must first demonstrate that every element of the statute has been satisfied before turning to the three-part test we adopted in Faison.
This Court has previously recognized that "[t]he Legislature is vested with the authority to define the elements of a crime." Reynolds v. State, 842 So.2d 46, 49 (Fla.2002). For that reason, we begin our analysis of whether Delgado committed the crime of kidnapping in order to commit or facilitate the commission of the underlying felony of auto theft with an examination of the plain language of section 787.01(1)(a)2. See GTC, Inc. v. Edgar, 967 So.2d 781, 785 (Fla.2007) ("The plain meaning of the statute is always the starting point in statutory interpretation."). As stated above, section 787.01(1)(a)2. provides that "[t]he term `kidnapping' means forcibly, secretly, or by threat confining, abducting, or imprisoning another person
Because the language of the statute requires an overt act on the part of the defendant, and because that act must be performed with a specific intent to commit or facilitate the commission of an underlying felony, clearly a defendant must first have knowledge of an intended victim in order to effectuate his or her intent. See State v. Giorgetti, 868 So.2d 512, 515 (Fla. 2004) (recognizing, in the context of criminal offenses, that "because of the strength of the traditional rule that requires mens rea, offenses that require no mens rea are generally disfavored" and that the United States Supreme Court has "virtually created a presumption in favor of a guilty knowledge element absent an express provision to the contrary" (citing Staples v. United States, 511 U.S. 600, 606, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994))); see also Lovette v. State, 636 So.2d 1304, 1307 (Fla. 1994) (upholding kidnapping conviction due in part to the fact that defendant "intended that the victims be confined" in a closet to complete the robbery of a store by leaving undetected (emphasis added)); Polite v. State, 973 So.2d 1107, 1113 (Fla. 2007) (interpreting Florida's resisting-an-officer-with-violence statute and stating that the word "resisting" as used in the statutory language, by its "very nature ... implies an element of knowledge, i.e., an awareness that another is exerting force and an intent to counter that force in opposition"). Such knowledge should arise either before or during the commission of the underlying felony used to support the kidnapping charge.
Accordingly, where a defendant is charged with kidnapping under section 787.01(1)(a)2., the State must prove that the defendant was first aware of the victim's presence in order to kidnap that victim with a specific intent to commit or facilitate the commission of an underlying felony. See § 787.01(1)(a)2., Fla. Stat. It is only after the evidence satisfies the preceding statutory elements that courts may then address whether the Faison test's three prongs apply. With these principles in mind, we turn to the Third District's decision in Delgado.
The Third District framed the issue in this case as "whether Delgado committed kidnapping when he and a co-defendant jumped into a pickup truck left running by its driver and drove away with a two-year-old child asleep in the truck, seat-belted into the back seat." Delgado, 19 So.3d at 1056. To resolve this issue, the district court appears to have created a categorical rule that once a defendant drives away with someone else's child, regardless of that defendant's knowledge of the child's presence, the defendant "move[s] from the realm of a crime against property to that of a crime against persons" due in part to the "special danger" associated with young children helplessly confined inside car
In reviewing the trial court's denial of Delgado's motion for judgment of acquittal on the kidnapping charge, the Third District bypassed an application of the language of section 787.01(1)(a)2. and instead focused its analysis on the applicability of Faison to this particular case. Initially, the court made several inferences based upon the facts, first noting that it was "reasonable to infer from the evidence that Delgado became aware that the child was confined in the truck in the course of removing the radio, taking the owner's tools, and ransacking the interior of the vehicle in an obvious search for other valuables (if not at the time Delgado jumped into the front seat)." Delgado, 19 So.3d at 1057. The court then further explained:
Id. at 1057-58. The Third District also concluded that "[t]he jury could reasonably and fairly infer that Delgado's abandonment of the confined child was to facilitate commission of the theft by avoiding detection and apprehension." Id. at 1057 n. 3.
After reaching these inferences, the Third District applied the Faison test to the facts by focusing its analysis on the test's first prong. The district court stated in relevant part:
Delgado, 19 So.3d at 1058. The district court then quoted an excerpt from Taylor v. State, 879 N.E.2d 1198 (Ind.Ct.App. 2008), an Indiana appellate court decision explaining the "special danger" that results when automobile hijackings occur:
Delgado, 19 So.3d at 1058 (quoting Taylor, 879 N.E.2d at 1202-03).
Analogizing the Taylor decision's "special danger" reasoning to this case, the Third District concluded that "[a]lthough
While this Court has acknowledged in the past that the Faison test "is not an easy one to apply," attributing the test's difficulty "not to the test itself but rather to the diverse factual situations to which it must be applied," we have also cautioned against revising the Faison test because doing so "would lead us to stray even further from the language of the statute." Berry, 668 So.2d at 970. Notwithstanding this Court's prior admonition, the State argues that the Third District's expansive interpretation and application of section 787.01(1)(a)2. and the Faison test, in particular, were proper. We disagree and conclude that the Third District misapplied our decision in Faison in two important aspects.
We first conclude that the Third District's decision incorrectly conflates the language of section 787.01(1)(a)2. with the Faison test's three parts. Although it is difficult to refute the Third District's reasoning that Delgado's abandonment of the child left her in a precarious state, and we too find this fact troubling, the court's rationale does not explain how Delgado's decision to leave the scene established the statutory elements of kidnapping with the intent to facilitate auto theft. The crux of the district court's decision relies on an "infe[rence] from the evidence that Delgado became aware that the child was confined in the truck in the course of removing the radio, taking the owner's tools, and ransacking the interior of the vehicle in an obvious search for other valuables." Delgado, 19 So.3d at 1057. After Delgado became aware of the child's presence, the district court explained, the child's "continued confinement ... was essential to [his] attempt to avoid apprehension for the theft of the vehicle and its contents," and thus supported a kidnapping conviction. Id. (emphasis added). However, under section 787.01(1)(a)2., a defendant's awareness of the victim must arise before or during the commission of the underlying felony—auto theft in this case—and not after the fact, as the Third District presumes took place. Accordingly, a victim's "continued confinement" when the defendant is unaware of the initial confinement during the commission of the underlying felony does not factor into this analysis.
Here, the district court's decision erroneously equates both "avoiding detection and apprehension" and "extend[ing] the time of confinement"—facts that are relevant to establishing the Faison test—with satisfying the essential elements required under the kidnapping statute, including that such actions "facilitate[d] [Delgado's] commission of the [auto] theft." Id. 1057-58, 1057 n. 3. Yet, as explained above, whether the evidence presented at trial satisfies the statutory elements and whether it satisfies the three parts of Faison are separate and distinct inquiries to be conducted independent of one another. The Third District's decision disregards satisfying the language of the statute as an inquiry separate from Faison. and in doing so, misapplies the principles we announced in that decision.
Second, we conclude that the Third District's reliance on Taylor by adopting its special-danger-to-children analysis was misplaced because that decision is materially distinguishable from this case in terms of both the operative facts and the applicable statutes at issue. The defendant in Taylor was convicted of hijacking under Indiana's kidnapping statute
Taylor argued that his hijacking conviction could not stand because there was no evidence that he used or threatened to use force as required by the Indiana statute. Id. Rejecting Taylor's contention, the appellate court concluded that Taylor's actions fell squarely in line with the risk the Legislature sought to prevent under the statutory provision at issue, reasoning as follows:
Id. at 1203. The court's holding hinged on the fact that Taylor knew the children
In contrast to Taylor, where the defendant conceded that he did not abandon the car the moment he discovered that it was occupied, in this case, Delgado does not make a similar concession and actually asserts that he was unaware of the child's presence. Further, Taylor's "special danger" analysis was not used to interpret a kidnapping provision similar to section 787.01(1)(a)2., under which a separate felony is used to support a kidnapping conviction; rather, the Indiana court's assessment of special harm focused on whether Taylor applied the requisite level of force amounting to one, distinct felony.
Unlike what the Third District intimates in its decision, Taylor did not make a connection between the level of force needed to sustain a hijacking conviction standing alone and the type of confinement that is slight, inconsequential, and merely incidental to another felony for the purposes of establishing the first part of the Faison test. Moreover, the principle from Taylor quoted by the Third District—that "if you are going to steal or commandeer a vehicle, let the people in it go and don't force people into it against their will"—cannot logically apply when the defendant lacks knowledge of the victim. Delgado, 19 So.3d at 1058 (quoting Taylor, 879 N.E.2d at 1203). And although we recognize that the offense charged in Taylor may be similar to Florida's provision on carjacking,
Significantly, under the Third District's rationale, there was nothing Delgado could do to avoid a kidnapping conviction once he discovered the child's presence after his completion of the auto theft. The Third District even suggests imposing an additional obligation upon the defendant to submit "an anonymous tip of some kind" or voluntarily surrender. Delgado, 19 So.3d at 1057. This logic would modify the statutory elements of Florida's kidnapping provision, which we decline to do. See Kasischke v. State, 991 So.2d 803, 810 (Fla. 2008) ("The Legislature did not include such language, and we cannot add it on our own.").
Based on the foregoing, the core issue before this Court is whether there were sufficient facts presented from which a jury could find that Delgado knew there was a child in the backseat when he stole the vehicle. On his motion for judgment of acquittal on the kidnapping charge, Delgado argued there was not. The trial court disagreed and denied Delgado's motion. The Third District upheld the trial court's denial.
In reviewing a denial of a motion for judgment of acquittal, this Court employs a de novo standard of review. See McDuffie v. State, 970 So.2d 312, 332 (Fla.2007). "Generally, an appellate court will not reverse a conviction that is supported by competent, substantial evidence." Reynolds v. State, 934 So.2d 1128, 1145 (Fla.2006). "There is sufficient evidence to sustain a conviction if, after viewing
Applying the correct rule of law in this case turns on whether Delgado became aware of the child's presence before or during completion of the underlying felony used to support his kidnapping charge—auto theft. Here, the fact that an auto theft occurred is not in dispute. Nor is it disputed that the burglary of an occupied conveyance occurred, the statutory elements of which were satisfied when Delgado entered the conveyance with the intent to commit an offense therein "and there [was] another person in the conveyance at the time [Delgado] enter[ed]" it. § 810.02(1)(b)1., (3)(d), Fla. Stat. (2006). What is at issue is whether the additional crime of kidnapping, which requires Delgado's awareness of the child to facilitate the commission of auto theft, was established.
Delgado's theory of innocence as to the kidnapping charge was that he had no knowledge of the child's presence when he committed the underlying felony (auto theft) used to support the kidnapping offense. The evidence the State introduced at trial can be summarized as follows. Delgado, along with an accomplice, commandeered a pickup truck with a sleeping, two-year-old child confined to a car seat located in the truck's backseat. The crime occurred in a five-minute period during which the child's mother had left the vehicle unattended with her sleeping child inside. Within twenty to thirty minutes, Detective Hernandez found the vehicle some distance north of the site of the initial auto theft, just outside of Hialeah's city limits; it was in the back of a business parking lot with its engine still running and the doors unlocked.
Upon his discovery, Detective Hernandez approached the vehicle. Because the truck had "darker than regular tints," he could only see into the front seat and "could tell there were no adults in the car or no one in the front seat." Importantly, from the outside, he was unable to see the child or into the complete cab of the vehicle. After opening the driver's side door, Detective Hernandez initially "checked the back seat of the car." The prosecutor then questioned the detective about what he observed from this vantage point:
Detective Hernandez further stated that when he found her, the child's eyes were puffy from crying, she had mucous running down her face, and that she looked exhausted, but was otherwise unharmed. Additionally, the vehicle's radio was stolen, tools had been removed, and the glove compartment and ashtray had been damaged and thrown to the floor—all of which were located in or underneath the vehicle's front-seat area. The State did not introduce any evidence establishing the approximate point in time that Delgado became aware of the child's presence.
Delgado maintains that he had no knowledge that there was a child asleep in the backseat when he stole the vehicle, and the lack of evidence in the record certainly supports his argument. Conversely, the State maintains that the evidence highlighted above was sufficient for a reasonable trier of fact to conclude that Delgado knew there was a child in the car before or during the commission of the auto theft and that his decision to abandon the vehicle in a secluded area without taking steps to assist in the child's discovery or safe placement was intentional. We reject the State's contention that these facts provide competent, substantial evidence of Delgado's awareness of the child prior to or during his theft of the vehicle.
The detective's testimony on which the State relies demonstrates that it was difficult to see the child unless, once inside the vehicle, one were to look into the backseat or move the front seat forward. According to the record, when examining the vehicle's interior, Detective Hernandez was already aware that he was looking for a child and after opening the driver's side door, he initially checked the backseat. While evidence introduced at trial depicts the child as crying and in a frightened state, these observations were made twenty to thirty minutes after the initial auto theft, and before that time, the child was asleep. There is simply no evidence in the record that the child awoke, cried, or kicked the front seat of the vehicle's interior, thereby alerting Delgado to her presence, before or during the auto theft.
In our analysis, we accept the Third District's conclusion that it was "reasonable to infer from the evidence that Delgado became aware that the child was confined in the truck in the course of removing the radio, taking the owner's tools, and ransacking the interior of the vehicle in an obvious search for other valuables." Delgado, 19 So.3d at 1057. However, these acts occurred after the theft of the vehicle and, as explained above, Delgado's awareness of the child at this point is not relevant to a kidnapping charge under the statute. Given the sparse facts in the record, we conclude that the State did not introduce competent, substantial evidence demonstrating that Delgado became aware of the child's presence when he stole the vehicle.
Accordingly, the State failed to produce sufficient evidence to sustain Delgado's kidnapping conviction under section 787.01(1)(a)2., notwithstanding the applicability of the Faison test to this circumstance, and the trial court erred in denying his motion for judgment of acquittal. Further, Delgado's act of abandoning the child following the auto theft, absent imposing
We note that if Delgado had left the child in the vehicle unattended after transporting her away from her parents and harm to the child could reasonably have been expected to ensue, the State could have charged Delgado with child abuse pursuant to section 827.03(1)(b), Florida Statutes (2006),
In accordance with our analysis above, we conclude that because the State failed to produce sufficient evidence demonstrating Delgado's awareness of the child before or during his execution of the underlying felony of auto theft, the statutory requirements under section 787.01(1)(a)2. were not met. The Third District's decision analyzing this claim by solely applying the Faison test's three parts, without first analyzing the issue on statutory grounds, resulted in a significant misapplication of the principles we announced in Faison. Accordingly, we quash the Third District's decision in Delgado v. State, 19 So.3d 1055 (Fla. 3d DCA 2009), and remand to the district court with instructions to vacate Delgado's conviction for kidnapping.
It is so ordered.
QUINCE and PERRY, JJ., concur.
LABARGA, J., specially concurs with an opinion.
LEWIS, J., dissents with an opinion, in which CANADY, C.J., and POLSTON, J., concur.
LABARGA, J., specially concurring.
I concur in the majority opinion because I agree that the district court failed to correctly analyze the issue in the case when it applied the Faison test without first determining if the State proved all the elements of a kidnapping under section 787.01, Florida Statutes. The majority is correct that only after the evidence satisfies the statutory elements set forth in section 787.01 may the court then apply Faison's three-part test. Moreover, when the first step in this process is analyzed, it can be seen that the only evidence offered to prove Delgado's awareness of the presence of the child in the vehicle was the
I write, however, to express my view that if the evidence had proven that Delgado became aware of the presence of the child at any time during the auto theft, up until the time he left the vehicle, the facts would support his conviction for kidnapping. As noted by the majority, "under section 787.01(1)(a)(2), a defendant's awareness of the victim must arise before or during the commission of the underlying felony." Majority op. at 63 (emphasis added). In my view, the auto theft was ongoing during the entire time that Delgado was driving the truck and while he was removing the items that he stole. Because the State failed in its proof that Delgado became aware of the child at any point during the incident, I concur in vacating the conviction for kidnapping.
LEWIS, J., dissenting.
The decision of the Third District Court of Appeal below does not expressly and directly conflict with a decision of any other Florida court. Further, the court below did not misapply Faison v. State, 426 So.2d 963 (Fla.1983), but to the contrary, held true to the applicable principles of Florida law and rendered a decision that is eminently correct and, most assuredly, not contrary to well-established existing Florida law. Here, a two-year-old child was abducted while in the backseat of the family vehicle and she was transported to a location some three miles from the place of abduction. A surveillance camera captured most of the action at the scene of the abduction. The trial judge provided the jury with proper instructions on the applicable law, the jury returned a verdict of guilty, the Third District Court below correctly applied the proper law, and this Court has no proper jurisdictional basis to become involved with this case and no correct substantive legal basis to quash the decision below.
CANADY, C.J., and POLSTON, J., concur.