         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                             NOT FINAL UNTIL TIME EXPIRES TO
                                             FILE MOTION FOR REHEARING AND
                                             DISPOSITION THEREOF IF FILED

RICHARD SCOTT BATTERSON
A/K/A SCOTT BATTERSON,

             Appellant/Cross-Appellee,

 v.                                               Case No. 5D14-3744

STATE OF FLORIDA,

             Appellee/Cross-Appellant.

________________________________/

Decision filed June 17, 2016

Appeal from the Circuit Court
for Orange County,
Jenifer M. Davis, Judge.

Amy S. Tingley, Robert J. Stovash,
Matthew J. Pearce and Kirsten D. Blum,
Stovash, Case & Tingley, P.A., Orlando;
Michael J. Snure and William R. Ponall, of
Snure & Ponall, P.A., Winter Park; and
Fritz Scheller, of Fritz Scheller, P.L.,
Orlando, for Appellant/Cross-Appellee.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Kellie A. Nielan,
Assistant Attorney General, Daytona
Beach, for Appellee/Cross-Appellant.

PER CURIAM.

      AFFIRMED.


SAWAYA and BERGER, JJ., concur.
ORFINGER, J., dissents, with opinion.
ORFINGER, J., dissenting.                                              Case No. 5D14-3744

       Richard Scott Batterson appeals his conviction of bribery in violation of section

838.015(1), Florida Statutes (2013). Because I believe the State failed to prove that

Batterson solicited or accepted a benefit, an essential element of the offense, I would

reverse his conviction. Thus, I respectfully dissent.

       Florida law makes bribery a criminal offense. Specifically, section 838.015(1)

makes it a crime for a public servant to corruptly request, solicit, accept, or agree to accept

for himself or another, any pecuniary or other benefit not authorized by law with an intent

or purpose to influence the performance of the public official’s public duties.1 Section

838.014(1), Florida Statutes (2013), defines “benefit” to mean a “gain or advantage, or

anything regarded by the person to be benefited as a gain or advantage, including the

doing of an act beneficial to any person in whose welfare he or she is interested, including

any commission, gift, gratuity, property, commercial interest, or any other thing of

economic value not authorized by law.”

       Batterson argues that the trial court erred in denying his motion for judgment of

acquittal. 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). Generally, an appellate court



       1   More precisely, section 838.015(1), Florida Statutes (2013), provides:

                (1) “Bribery” means corruptly to give, offer, or promise to any
                public servant, or, if a public servant, corruptly to request,
                solicit, accept, or agree to accept for himself or herself or
                another, any pecuniary or other benefit not authorized by law
                with an intent or purpose to influence the performance of any
                act or omission which the person believes to be, or the public
                servant represents as being, within the official discretion of a
                public servant, in violation of a public duty, or in performance
                of a public duty.
                                               2
will not reverse a conviction that is supported by competent, substantial evidence. Id. In

moving for a judgment of acquittal, a defendant admits the facts stated in the evidence

adduced, and every conclusion favorable to the adverse party that can be reasonably

drawn from the evidence. Reynolds v. State, 934 So. 2d 1128, 1145 (Fla. 2006). There

is sufficient evidence to sustain a conviction if, after viewing the evidence in the light most

favorable to the State, a rational trier of fact can find the existence of the elements of the

crime beyond a reasonable doubt. Pagan, 830 So. 2d at 803. An appellate court’s review

is limited to whether the evidence the State presented in its case in chief was legally

sufficient. Robinson v. State, 936 So. 2d 1164, 1166 (Fla. 1st DCA 2006).

       Because we view the evidence in the light most favorable to the State, the facts

are quoted directly from the State’s answer brief:

                     Carolyn Johnson, a lobbyist who formerly lived in
              Orlando, was in Orlando for work on July 18, 2013, and called
              Batterson, Chris Dorworth, and several other people to get
              together for happy hour at CaddyShanks. Once there, she
              talked with Batterson about him being on the [Orlando-Orange
              County] Expressway Authority Board, and him possibly
              becoming vice chairman. Batterson was “bragging” about it.

                      Mark Callahan has worked as an engineer in central
              Florida since 1986, and the companies that he has worked for
              have had contracts with the Expressway Authority. He is a
              project manager, and also serves as a client/service manager;
              it is his responsibility to get to know the clients, understand
              what they are looking for and the type of projects they have
              coming up. His current employer, CH2M Hill, had a contracts
              [sic] with the Expressway Authority, one of which was the
              Wekiva Parkway contract. He understands the procedure for
              obtaining contracts with the Expressway Authority. The
              Authority staff handles most of the procurement process, then
              the staff recommends to the board, and the board votes and
              approves.

                   Callahan has contacts with the board members for a
              number of reasons. He introduced himself to Batterson after

                                              3
Batterson was appointed as a board member to the
Expressway Authority, and indicated a willingness to meet
with Batterson to discuss any questions he may have had
related to the Wekiva Parkway project. Callahan had gotten in
touch with Batterson maybe four or five times after Batterson
was appointed to the Authority board.

       On July 18, 2013, Callahan sent Batterson an email
about “catching up,” and Batterson invited him to “swing by”
CaddyShanks that night. Callahan wanted to discuss a new
member that had been appointed to the board, Marco Pena.
Batterson was at CaddyShanks when Callahan arrived, as
was Chris Dorworth. Callahan sat next to Batterson.

       Batterson asked Callahan if his company would be
interested in having the general consulting contract (GEC) for
the Expressway Authority. The GEC is a large and prestigious
contract that is coveted in their industry. It was the type of
contract that Callahan’s firm would be very interested in.
Callahan told Batterson that a firm called Atkins already had
the contract, and asked how he would make a change.
Batterson indicated that he was extremely confident that he
would become chairman of the Expressway Authority.
Batterson was bold and confident, almost puffed up about
becoming chairman. Batterson:

      [c]ontinued on, said that I’ll be chairman. He
      indicated that Marco Pena was appointed by the
      Governor and that was a person he had
      recommended to the Governor’s office to be
      appointed and that Marco was his boy, was the
      terminology I recalled he used, and he went on
      further and indicated that Mr. Dorworth, who
      was sitting across the table, was very close to
      Ananth Persaud, and Ananth Persaud is the
      Secretary of the Florida D.O.T. and that Mr.
      Dorworth also was dating, at least, at that time,
      a young lady named Rebecca Hammond who
      worked for Florida Department of Transportation
      and worked directly with Mr. Persaud, as well,
      and as well [sic] Noranne Downs, who was the
      Assistant Secretary for Florida D.O.T. and was
      a board member of the Orlando Expressway
      Authority.




                              4
              Callahan explained the relationships between all of the people
              he had mentioned. Dorworth was dating Hammond, who
              worked for DOT, and Noranne Downs was a board member
              of the Expressway Authority. It takes three board votes to
              approve a contract.

                     At that point it was Callahan’s belief that Batterson
              could control the board. Callahan believed that Batterson
              would vote, that Marco Pena was his voter, and that through
              Chris Dorworth, they could somehow align Noranne Downs’s
              vote. At first he was thinking how could this happen, but it
              became increasingly clear to him that it could. In his thirty
              years as an engineer, Callahan has never had a board
              member come up to him and offer him a contract.

                      As the conversation continued and it became clear to
              Callahan that Batterson seemed to have the ability to collect
              votes at the board level, Batterson indicated that he had some
              firms he would like Callahan to “put on the team” if they were
              to go after the general contract. It became concerning to
              Callahan because he had never really had a public servant
              ask him to put specific people on teams. It is not generally how
              they operate, and he indicated to Batterson that they would
              have to review each firm and make sure they were qualified.
              Generally, Callahan’s firm has firms they have worked with in
              the past, and staff level at the client (Expressway Authority)
              will also indicate which firms are doing a good job, and they
              assemble team members from that. But no staff or board
              members had ever told him who to put on the team.

(Citations omitted). The State subsequently filed an information, alleging that Batterson

“corruptly request[ed] or solicit[ed] MARK CALLAHAN, for himself or another, any

pecuniary or other benefit not authorized by law; to wit: the hiring of, subcontracting with

or participation by individuals, firms or other entities suggest[ed] by RICHARD SCOTT

BATTERSON a/k/a SCOTT BATTERSON in a consulting contract . . . .”

       At the trial, the court instructed the jury that to prove the crime of bribery, the State

was required to prove four elements beyond a reasonable doubt:

       (1)    RICHARD SCOTT BATTERSON was a Public Servant.



                                               5
      (2)   RICHARD SCOTT BATTERSON requested or solicited from MARK
      CALLAHAN the hiring or inclusion of individuals, firms, or other entities of
      RICHARD SCOTT BATTERSON's choosing as employees or
      subcontractors or participants in a consulting contract or other arrangement
      approved or awarded by Orlando- Orange County Expressway Authority to
      CH2M Hill[.]

      (3)    The the [sic] hiring or inclusion of individuals, firms, or other entities
      of RICHARD SCOTT BATTERSON’s choosing was something of value,
      benefit, or advantage to RICHARD SCOTT BATTERSON or person in
      whose welfare RICHARD SCOTT BATTERSON was interested, which was
      not authorized by law.

      (4)    The request or solicitation was made with the intent of corruptly being
      influenced in the performance of some act that

        MARK CALLAHAN believed to be:

             a. within the official discretion of RICHARD SCOTT BATTERSON,
                or

             b. in violation of a public duty of RICHARD SCOTT BATTERSON,
                or

             c. in performance of public duty of RICHARD SCOTT BATTERSON

                                             OR

             RICHARD SCOTT BATTERSON represented as being

                 a. within his official discretion, or

                 b. in violation of his public duty, or

                 c. in performance of his public duty.

The evidence, viewed in the light most favorable to the State, supports the jury’s

conclusion that Batterson was a public servant and solicited Callahan to include certain

unidentified firms in a consulting contract to be awarded by the Expressway Authority.

However, the evidence is woefully lacking that Batterson, or someone in whose welfare

he was interested, stood to gain some benefit or advantage from such an arrangement.



                                              6
       The State argues that whether “Batterson obtained a benefit is an issue of intent

and therefore should be left to the fact-finder to resolve.” I disagree, because such an

analysis improperly conflates the intent element of the crime with the benefit element.

Benefit and corrupt intent are two separate and distinct elements of the crime, and the

State must prove each beyond a reasonable doubt. The existence of a benefit is not an

issue of intent, although I agree that if there was evidence that Batterson stood to benefit

from such an arrangement, the determination of corrupt intent is a question for the jury.

See State v. Flansbaum-Talabisco, 121 So. 3d 568, 571 (Fla. 4th DCA 2013).

       The State argues that when Batterson told Callahan that he had some firms that

he would like Callahan to “put on the team,” the “only inference that can be drawn from

this evidence was that Batterson intended to receive a benefit.” To me, that is a leap too

far. We might speculate that one of the unnamed firms that Batterson wanted to “put on

the team” was providing some benefit to him. However, we could also speculate that

Batterson was merely interested in seeing that disadvantaged businesses or local

contractors be given a fair shot at the subcontracts that would, of necessity, be entered

into by Callahan’s firm. But speculation is not proof and criminal convictions must not be

based on speculation. Straughter v. State, 384 So. 2d 218, 219 (Fla. 3d DCA 1980). I

would reverse Batterson’s conviction.




                                             7
