      IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA

                                       April 6, 2018



VANESSA MUSSON                   )
                                 )
           Petitioner,           )
                                 )
v.                               )               Case No. 2D17-1208
                                 )
STATE OF FLORIDA,                )
                                 )
           Respondent.           )
________________________________ )

BY ORDER OF THE COURT:

              Upon consideration of the motion for rehearing and/or clarification filed by

the respondent on January 5, 2018,

              IT IS ORDERED that the respondent's motion for rehearing and/or

clarification is granted. The opinion dated December 22, 2017, is withdrawn and the

attached opinion is substituted therefor. No further motions for rehearing will be

considered.




I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER.



MARY ELIZABETH KUENZEL, CLERK
                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT



VANESSA MUSSON,                    )
                                   )
           Petitioner,             )
                                   )
v.                                 )                          Case No. 2D17-1208
                                   )
STATE OF FLORIDA,                  )
                                   )
           Respondent.             )
___________________________________)

Opinion filed April 6, 2018.

Petition Alleging Ineffective Assistance
of Appellate Counsel. Pasco County;
Mary M. Handsel, Judge.

Vanessa Musson, pro se.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Cornelius Demps,
Assistant Attorney General, Tampa,
for Respondent.


VILLANTI, Judge.



              In her petition filed under Florida Rule of Appellate Procedure 9.141(d),

Vanessa Musson raises two grounds alleging ineffective assistance of appellate

counsel. We grant the petition in part and deny it in part.
              A jury found Ms. Musson guilty of simple battery,1 aggravated battery,

kidnapping with intent to inflict bodily harm or terrorize, grand theft of a motor vehicle,

and armed robbery. She appealed her judgment and sentences, and this court

reversed the kidnapping conviction, describing the facts as follows:

              In the late afternoon of September 14, 2012, Bobbie Jo
              Curtis and her son, Bryan Curtis, tied seventy-one-year-old
              Joseph Bruno to a chair inside his house, repeatedly
              threatened him, beat him severely, took his handgun and
              van keys, and robbed him of his personal property. At some
              point during the commission of these crimes, Ms. Curtis
              decided to enlist the aid of her friend Ms. Musson.
              Depending on one's view of the evidence, Ms. Musson's role
              upon arriving at Mr. Bruno's house was either (a) limited to
              assisting the Curtises with packing and disposing of Mr.
              Bruno's van and, at some point, battering [the victim's] well-
              meaning neighbor who came inside the house to investigate
              what was happening or (b) actively participating in nearly the
              entire enterprise, including Mr. Bruno's beating, armed
              robbery, and kidnapping.

              At trial neither Mr. Bruno nor the neighbor could positively
              state whether Ms. Musson had any interaction with Mr.
              Bruno, nor could they describe her involvement with the
              robbery. Ms. Curtis and Ms. Musson did not testify. Bryan
              Curtis, who had reached a prior plea agreement with the
              State, testified as a State witness. Mr. Curtis provided the
              only trial testimony about the details of the robbery, the
              aggravated battery of Mr. Bruno, and Ms. Musson's
              participation in these crimes. Mr. Curtis claimed that early
              on in the robbery, after binding Mr. Bruno to the chair, his
              mother left in Mr. Bruno's van to pick up Ms. Musson.
              According to Mr. Curtis, Ms. Musson arrived at the house
              while he was still gathering Mr. Bruno's effects and while Mr.
              Bruno was still conscious. Mr. Curtis testified that Ms.
              Musson emptied Mr. Bruno's wallet, found a debit card, and
              demanded that Mr. Bruno tell her his personal identification
              number. Mr. Curtis recounted that when Mr. Bruno refused,
              Ms. Musson proceeded to threaten and strike Mr. Bruno
              repeatedly with a baseball bat. According to Mr. Curtis, Ms.


              1The  State charged Ms. Musson with aggravated battery in this count, but
the jury found her guilty of the lesser-included offense of battery.


                                             -2-
              Musson also struggled with the neighbor, striking him on the
              head with a hammer while the three of them (Ms. Musson,
              Ms. Curtis, and Mr. Curtis) were loading Mr. Bruno's property
              into the van. Finally, Mr. Curtis stated that the three of them
              fled the house together in Mr. Bruno's van.

              Ms. Musson recalled a quite different version of events in her
              video-recorded police interview, which was presented to the
              jury. Ms. Musson admitted she arrived at Mr. Bruno's house
              at Ms. Curtis' behest, entered the kitchen, helped load Mr.
              Bruno's effects into his van, struck a neighbor (because, she
              claimed, he attacked her), and drove the van away from the
              house. However, Ms. Musson maintained she never
              participated in any violence against Mr. Bruno because,
              according to Ms. Musson, she was never aware that Mr.
              Bruno was even in the house.

              To support her theory of defense and undermine Mr. Curtis'
              credibility, Ms. Musson sought to introduce the testimony of
              Twila Baccile. Ms. Baccile had, at some point, while being
              transported in a police van, engaged in a conversation
              through a grate with a man she believed to be Mr. Curtis.
              She claimed that they discussed these crimes during the
              ride. Ms. Baccile would have testified Mr. Curtis made
              statements to her that he was "going to blame it all [on]
              Vanessa . . . [and] come to court and . . . point fingers at
              Vanessa." Ms. Baccile would have further testified that Mr.
              Curtis told her that he had "threatened Vanessa's life," that
              Ms. Musson was "an easy target," and that he "was going to
              blame it on Vanessa because she was outside."

              The trial court ruled that Ms. Baccile's testimony was
              inadmissible hearsay as it was offered "for the truth of the
              matter asserted, because the truth of the matter asserted is
              he plans to blame it all on her."

Musson v. State, 184 So. 3d 575, 577-78 (Fla. 2d DCA 2016) (alterations in original)

(footnotes omitted). We held that the trial court abused its discretion by ruling that Ms.

Baccile's testimony was inadmissible hearsay because Mr. Curtis' statements to Ms.

Baccile were offered to impeach his credibility as a witness and not as substantive

evidence. Id. at 578. Because "[t]he trial in this case appeared to turn on one or two




                                           -3-
witnesses' recollection of events," this court held that "Ms. Baccille's [sic] testimony

about one witness' alleged bias or motive would be of vital relevance," so the State

could not establish that the error was harmless. Id. at 579. In footnote three, this court

wrote, "For reasons that are not clear to us, on appeal, Ms. Musson only challenges the

propriety of her kidnapping conviction." Id. at 578 n.3. Accordingly, this court reversed

only Ms. Musson's kidnapping conviction.

              Ms. Musson then filed a petition alleging ineffective assistance of

appellate counsel, asserting in ground one that her appellate counsel was ineffective for

failing to argue that the trial court's abuse of discretion in excluding Ms. Baccile's

testimony was harmful error as to all of her convictions. She asserted in ground two

that her appellate counsel was ineffective for not filing a motion for rehearing or

clarification to point out to this court that she argued in her amended initial brief that the

error required reversal of her "convictions." She further asserted that if her appellate

counsel had filed such a motion, this court would have "taken a closer look at their

decision and seen that their decision should have encapsulated each one of the

charges against Ms. Musson and not just the kidnapping charge."

Analysis

              To establish a claim of ineffective assistance of appellate counsel, a

petitioner must show that her appellate counsel performed deficiently and that "the

deficiency of that performance compromised the appellate process to such a degree as

to undermine confidence in the fairness and correctness of the appellate result." Downs

v. Moore, 801 So. 2d 906, 909-10 (Fla. 2001) (quoting Wilson v. Wainwright, 474 So. 2d

1162, 1163 (Fla. 1985)). "[A] court deciding an actual ineffectiveness claim must judge




                                             -4-
the reasonableness of counsel's challenged conduct on the facts of the particular case,

viewed as of the time of counsel's conduct." Strickland v. Washington, 466 U.S. 668,

690 (1984). In making this decision, this court must determine "whether, in light of all

the circumstances, the identified acts or omissions were outside the wide range of

professionally competent assistance." Id. Under this test, we agree with Ms. Musson

that her appellate counsel unreasonably failed to argue that the trial court's error in

excluding the impeachment testimony was also harmful as to the simple battery

conviction and that this omission was deficient performance that undermines confidence

in the outcome of the appeal.

Deficient Performance

              This court's records reflect that Ms. Musson's appellate counsel filed her

initial brief on January 30, 2015. That brief challenged only the sufficiency of the

evidence for the kidnapping conviction. The first paragraph of the statement of the case

and facts states the following:

              This is an appeal from a conviction of simple battery on
              Joseph Bruno, aggravated battery of David Ragon, grand
              theft motor vehicle, kidnapping and robbery. Although Ms.
              Musson continues to assert that she was not involved in
              the battery of Mr. Bruno, this appeal is regarding the
              conviction of the kidnapping. Specifically, the State failed
              to prove by competent substantial evidence that Ms. Musson
              was involved in the kidnapping of Mr. Bruno. Ms. Musson
              was sentenced to life without parole on the conviction of the
              charge of kidnapping.

(Emphasis added.)

              Later that day, Ms. Musson's appellate counsel filed an amended initial

brief that added as issue one the trial court's error in excluding the impeachment

testimony. Appellate counsel offered no argument regarding how the error affected the



                                            -5-
individual verdicts, instead simply asserting: "The error and abuse of discretion by the

trial court allowed the testimony of the State's witness to go unchallenged and could

have changed the jury's verdict in this matter. Accordingly, the convictions of Ms.

Musson must be reversed and the matter remanded for a new trial." Notably, appellate

counsel refers to a single verdict but plural convictions. Ms. Musson's appellate counsel

did not alter or delete the first paragraph in the statement of the case and facts. And

even after this court issued its opinion pointing out in footnote three that "[f]or reasons

that are not clear to us, on appeal, Ms. Musson only challenges the propriety of her

kidnapping conviction," Ms. Musson's appellate counsel still did not file a motion for

rehearing to explain why he referred to Ms. Musson's "convictions" in issue one and

asserted that she was not involved in the simple battery but still only challenged her

kidnapping conviction. Musson, 184 So. 3d at 578 n.3. Accordingly, cumulatively,

counsel's omissions in advocating this issue were unreasonable under the "prevailing

professional norms" and constitute deficient performance. Strickland, 466 U.S. at 688

("The proper measure of attorney performance remains simply reasonableness under

prevailing professional norms."). If Ms. Musson's appellate counsel had intended to

challenge Ms. Musson's other convictions, the prevailing professional norms would have

required him to expressly do so; alternatively, if appellate counsel intended to challenge

only the kidnapping conviction, this decision was unreasonable.

Prejudice

              The direct appeal record reflects that Ms. Musson's recorded interview

with the police was played for the jury. She admitted that Ms. Curtis called her and

asked for her help emptying a safe. Ms. Curtis told her that the homeowner was not




                                            -6-
there. Ms. Musson stated that the Curtises had piled things by the door and that she

moved them into the van. She consistently stated that she did not see the victim of the

kidnapping and simple battery. However, she admitted to stealing the victim's firearms

and his van, and she admitted that when the victim's neighbor approached her as she

was putting the victim's property into his van, she hit the neighbor with a firearm.

              Thus, Ms. Musson admitted to aggravated battery of the neighbor and

grand theft of a motor vehicle. She also admitted to facts that constitute armed robbery.

Section 812.13, Florida Statutes (2012), states:

              (1) "Robbery" means the taking of money or other property
              which may be the subject of larceny from the person or
              custody of another, with intent to either permanently or
              temporarily deprive the person or the owner of the money or
              other property, when in the course of the taking there is the
              use of force, violence, assault, or putting in fear.

              (2)(a) If in the course of committing the robbery the offender
              carried a firearm or other deadly weapon, then the robbery is
              a felony of the first degree, punishable by imprisonment for a
              term of years not exceeding life imprisonment or as provided
              in s. 775.082, s. 775.083, or s. 775.084.

              ....

              (3)(a) An act shall be deemed "in the course of committing
              the robbery" if it occurs in an attempt to commit robbery or in
              flight after the attempt or commission.

              (b) An act shall be deemed "in the course of the taking" if it
              occurs either prior to, contemporaneous with, or subsequent
              to the taking of the property and if it and the act of taking
              constitute a continuous series of acts or events.

              In Thomas v. State, 36 So. 3d 853, 856 (Fla. 3d DCA 2010), the Third

District held that the "force, violence, assault, or putting in fear" need not "be exerted

against the person from whom the property was taken, so long as it was exerted in the




                                            -7-
course of the taking." See also Santilli v. State, 570 So. 2d 400, 402 (Fla. 5th DCA

1990) ("[T]he continuity of [the appellant's] progression from the store to his forceful act

against the [pursuing] officer with his car outside the store justified submission of the

robbery offense to the jury."); Rumph v. State, 544 So. 2d 1150, 1151-52 (Fla. 5th DCA

1989) ("Appellant's use of force to shove [a store employee] out of his way and into the

door as he fled with [stolen property] constitutes the use of force in flight after the taking

and provides the evidence to sustain appellant's conviction for robbery.").

              Accordingly, the evidence of Ms. Musson's guilt of armed robbery, grand

theft of a motor vehicle, and aggravated battery of the neighbor did not hinge on Mr.

Curtis' credibility. Had Ms. Musson's appellate counsel specifically challenged the trial

court's ruling in excluding the impeachment evidence as to each of these convictions,

the State would have been able to establish that the error was harmless. See State v.

DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986).

              But Ms. Musson did not admit to facts that constitute the elements of

simple battery of the victim. As with the kidnapping charge, the evidence of Ms.

Musson's guilt hinged on Mr. Curtis' testimony. Because this court held that Mr. Curtis'

credibility was critical as to the kidnapping charge, if Ms. Musson's appellate counsel

had also specifically challenged the simple battery conviction, this court would have

necessarily also reversed the circuit court's judgment of conviction for simple battery.

Thus, confidence in the outcome of the appeal is undermined.

              Based on the foregoing, we must grant Ms. Musson's petition in part and

deny it in part. We grant the petition only as to the simple battery conviction; because a

new appeal would be redundant, we reverse Ms. Musson's conviction for simple battery




                                             -8-
and remand for a new trial on that charge. See Johnson v. Wainwright, 498 So. 2d 938,

939 (Fla. 1986). We deny the petition as to the aggravated battery, grand theft of a

motor vehicle, and armed robbery convictions.

             Petition granted in part and denied in part.


KHOUZAM and BADALAMENTI, JJ., Concur.




                                          -9-
