          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT
                              July Term 2014

                           RICARDO CASCO,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D11-611

                           [October 29, 2014]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; John S. Kastrenakes, Judge; L.T. Case No.
2008CF004523BMB.

  Antony P. Ryan, Regional Counsel, and Melanie L. Casper, Assistant
Regional Counsel of Office of Criminal Conflict and Civil Regional Counsel,
Fourth District, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine
Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

   The defendant appeals his convictions for racketeering, conspiracy to
commit racketeering, aggravated assault with a firearm, three counts of
robbery with a firearm, four counts of kidnapping with a firearm, and his
sentences for those crimes. He claims the trial court erred in: (1)
admitting evidence of unrelated firearms; (2) denying the motion for
judgment of acquittal on the kidnapping charges; and (3) instructing the
jury on uncharged predicate offenses. We find no error and affirm.

    The State charged the defendant and three others with multiple crimes,
alleging that they conspired to commit and committed multiple store
robberies from January 1, 2008 until March 20, 2008. The State
specifically charged this defendant with the robberies on February 7 and
21, 2008. The predicate offenses for the racketeering charges were the
February 7 and 21 and March 11 robberies. The State did not charge the
defendant with the March 11 robbery because it occurred outside the
court’s jurisdiction. The case proceeded to a jury trial.

   The jury found the defendant guilty and the trial court adjudicated so
on all counts.1 The trial court sentenced the defendant at a subsequent
hearing. The defendant now appeals.

   He first argues the trial court erred in admitting evidence of firearms
found in a car occupied by the defendant at the time of his arrest. He
suggests the guns were irrelevant and inadmissible because they were not
connected to the charged crimes. We disagree.

    “Relevant evidence is evidence tending to prove or disprove a material
fact.” § 90.401, Fla. Stat. (2008). “[F]or evidence of a firearm to be
admissible as relevant in a criminal trial, ‘the State must show a sufficient
link between the weapon and the crime.’” Agatheas v. State, 77 So. 3d
1232, 1236 (Fla. 2011) (quoting Jackson v. State, 25 So. 3d 518, 528 (Fla.
2009)). However, “[r]elevant evidence is inadmissible if its probative value
is substantially outweighed by the danger of unfair prejudice, confusion of
the issues, misleading the jury, or needless presentation of cumulative
evidence.” § 90.403, Fla. Stat. (2008).

   In Council v. State, 691 So. 2d 1192 (Fla. 4th DCA 1997), the defendant
robbed a doctor’s office using a firearm. Id. at 1193. Three weeks later,
the police found the defendant sleeping in a house, arrested him, and
seized a gun they found in his bed. Id. at 1194. The trial court admitted
the gun over the defendant’s relevancy objection. Id. We affirmed the
admission of the firearm because there were “many similarities” between
the witnesses’ descriptions of the firearm and the one seized. Id. at 1194–
96. The firearm was relevant even though there was no testimony that it
was the actual firearm used in the robbery. Id.

   Here, the State sought to prove that the defendant was guilty of
racketeering and conspiracy to commit racketeering. The firearms were
found in a vehicle seen at the location of one of the robberies and in which
the defendant was a passenger at the time of his arrest. The defendant’s
DNA was found on one of the firearms; a co-defendant’s DNA was found
on another. One of the victims testified that one of the firearms matched



1Regarding the special interrogatory verdict form for Count I, the jury found that
the Defendant committed Robbery on one victim, Kidnapping on two victims, and
Aggravated Assault on one victim.

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the description of one used in a robbery. Zip-ties, used to restrain the
victims, were found under the seat with the firearms.

   The firearms were relevant proof of the conspiracy and racketeering
charges and were a “link in the chain of identification testimony.” Id. at
1195. We find Agatheas v. State, 77 So. 3d 1232 (Fla. 2011) and Green v.
State, 27 So. 3d 731 (Fla. 2d DCA 2010), relied on by the defendant,
factually distinguishable.

   The defendant next argues that the trial court erred in denying his
motion for judgment of acquittal on the kidnapping with a firearm counts.
“In reviewing a motion for judgment of acquittal, a de novo standard of
review applies.” Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002). He
suggests that the State failed to prove that the confinement satisfied the
test in Faison v. State, 426 So. 2d 963 (Fla. 1983). Once again, we
disagree.

   Recently, we affirmed his co-defendant’s conviction and sentence on
this same issue. See Castro v. State, 122 So. 3d 912 (Fla. 4th DCA 2013).
In both Castro store robberies, the robbers tied the victims’ hands behind
their backs and did not untie them when they left the stores. Id. at 914.
Castro argued that his motion for judgment of acquittal should have been
granted because his actions did not constitute a kidnapping. Id.

   We held that the co-defendant’s “act of leaving the victims tied up
constituted kidnapping. Although the victims were able to rise to their
feet, they could not immediately summon help without having someone
untie them.” Id. at 915. The victims’ confinement did not end with the
robbery. Id. For this same reason, the trial court did not err in denying
the defendant’s motion for judgment of acquittal in this case.

   And last, the defendant argues the trial court committed fundamental
error and violated his due process rights by instructing the jury on six
predicate acts for the racketeering charge when the State charged the
defendant with only two predicate offenses. The State responds that no
fundamental error occurred because the court instructed the jury properly
and the jury’s separate finding on each predicate offense ensured due
process. We agree with the State. State v. Weaver, 957 So. 2d 586 (Fla.
2007) controls.

    There, the defendant was charged with battery on a law enforcement
officer. Id. at 586–87. The information charged the defendant with
intentionally touching or striking an officer, and the State only presented
evidence on that theory. Id. at 587. However, the trial court instructed

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the jury, without objection, on that theory and the alternative theory of
felony battery by causing great bodily harm to another. Id. The defendant
was convicted and appealed. Id. The Florida Supreme Court held that
“[b]ecause bodily harm was never at issue . . . , and the State never argued
or presented evidence of bodily harm, the trial court’s inclusion of the
bodily harm element in the jury instructions did not rise to the level of
fundamental error.” Id. at 589.

   Here, the defendant was charged with the two predicate acts necessary
to prove the racketeering charge. The trial court included both of the
charged crimes on the general verdict form for the racketeering charge.
The trial court also included a special interrogatory verdict for the non-
charged crime that occurred outside the jurisdiction of the court. These
three predicate acts were included in the jury instructions for the
racketeering count along with three additional predicate acts for which the
defendant was not charged. The jury convicted the defendant of all
charged crimes.

    Although the State offered evidence of the uncharged predicate acts due
to the separate conspiracy count, it is not “impossible to know whether
[the defendant] was convicted of the offense with which he was charged . .
. or an offense with which he was not charged.” Id. at 589 (alterations in
original) (quoting Dixon v. State, 823 So. 2d 792, 794 (Fla. 2d DCA 2001)).
Because the trial court was careful to include interrogatories on the verdict
form that corresponded to both the charged and uncharged predicate acts,
it was clear that the jury found the defendant guilty of three predicate
criminal acts when only two were necessary under section 895.02(4),
Florida Statutes. There was no error, much less fundamental error.

   For these reasons, we affirm.

   Affirmed.

STEVENSON and LEVINE, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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