       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                RAUL EDUARDO BANEGAS-MEMBRAN,
                           Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D14-2681

                             [January 6, 2016]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Robert E. Belanger, Judge; L.T. Case No.
562012CF003253A.

   Michael R. Ohle of Ohle & Ohle, Stuart, for appellant.

   Pamela Jo Bondi, Attorney General, and Catherine Linton, Assistant
Attorney General, West Palm Beach, for appellee.

FORST, J.

    Appellant Raul Banegas-Membran was found guilty of tampering with
a witness under section 914.22(1), Florida Statutes (2013). Because of the
nature of the underlying crime for which he initially had been tried, he was
sentenced to life in prison. Appellant raises three issues on appeal: (1) the
trial court erred by not allowing him to introduce evidence of the not-guilty
verdicts obtained in the trial for his underlying crimes in order to impeach
the credibility of the State’s primary witness against him; (2) the State’s
characterization of the intimidation element of the witness tampering
statute was incorrect and improperly lowered the State’s burden of proof;
and (3) the trial court erred in denying his Motion for Judgment of
Acquittal. We agree with all three of Appellant’s challenges. We therefore
reverse and remand this case and direct that the trial court grant
Appellant’s Motion for Judgment of Acquittal.

                               Background

  Appellant was charged with four counts of sexual crimes with a minor.
While in jail awaiting trial, he sent a letter to his former girlfriend, the
mother of the alleged victim. The letter ends with Appellant begging the
mother to “stop, don’t do nothing else, just don (sic) talk to anybody . . . .
[Y]our silence is all I ask you.” He also states that if his case goes to trial,
“[e]verybody will find out all this mess . . . [and the mother’s children’s]
grandma and father and [the mother] will be in the eye of a hurricane
fighting for [the mother’s] kids’ custody.” He opines that such a fight would
“break my heart because [the kids] belong to go with you.”

   The mother did not do what the letter requested. Instead, she turned
the letter over to the state attorney who added witness tampering to
Appellant’s charges. Appellant was eventually found not guilty on the two
sex offenses that went to trial despite the mother testifying against him.

   Appellant then went to trial on the mother tampering charge. Knowing
that the State would call the mother, Appellant sought to introduce the
evidence of his not-guilty verdicts in order to impeach the mother’s
credibility and demonstrate that the mother was biased against Appellant
and was using the tampering charge as a second opportunity to send
Appellant to prison. The court, however, granted the State’s motion
preventing Appellant from introducing his prior verdicts.

   At trial, the State primarily relied upon the testimony of the mother.
She described the contents of the letter and explained how it was sent four
days before she and her daughter were scheduled for depositions. She
also testified that the letter made her afraid.

   At the close of the State’s case, Appellant moved for a judgment of
acquittal, which the court denied.

   During closing arguments, the State told the jury that it could use its
common sense to define “intimidation” under the witness tampering
statute. The State further informed the jury that “manipulation” was one
form of “intimidation.” Appellant objected to this characterization of the
statute, but the court overruled the objection.

   The jury found Appellant guilty and the court sentenced him to life in
prison.

                                   Analysis

I.    Excluded Testimony

    We review a trial court’s decision regarding the admission of evidence
for abuse of discretion, with the trial court’s discretion limited by the rules

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of evidence. Lopez v. State, 97 So. 3d 301, 304 (Fla. 4th DCA 2012).

    “Section 90.608(2), Florida Statutes, permits cross-examination to
‘attack the credibility of a witness by . . . [s]howing that the witness is
biased.’” Martino v. State, 964 So. 2d 906, 908 (Fla. 4th DCA 2007)
(alterations in original). Examination of this sort serves to fulfill the Sixth
Amendment’s right to confrontation. Id.; see also Henry v. State, 123 So.
3d 1167, 1169-70 (Fla. 4th DCA 2013). “This right ‘is especially necessary
when the witness being cross-examined is the key witness on whose
credibility the State’s case relies.’” Martino, 964 So. 2d at 908 (quoting
Docekal v. State, 929 So. 2d 1139, 1142 (Fla. 5th DCA 2006)). “[A] trial
court may not prohibit cross-examination ‘when the facts sought to be
elicited are germane to that witness’[s] testimony and plausibly relevant to
the theory of defense.” Id. (quoting Bertram v. State, 637 So. 2d 258, 260
(Fla. 2d DCA 1994)).

   Here, Appellant sought to elicit testimony about his previous not-guilty
verdicts to show that the mother had an interest in seeing him convicted.
Because the theory of defense was that the mother was lying, evidence of
a reason for bias was certainly “plausibly relevant” to that theory and
“germane to that witness’ testimony.” Martino, 964 So. 2d at 908. To the
extent there was any risk of confusing the jury on the issues, that risk was
not sufficient to exclude the evidence of bias. See Love v. State, 971 So.
2d 280, 286 (Fla. 4th DCA 2008) (“[T]he Sixth Amendment narrows a trial
court’s discretion to exclude evidence of a witness’[s] bias under section
90.403.”).

   The alternative avenues of impeachment that the State argues
Appellant could have taken would not have been proper substitutes for the
method of impeachment sought. Simply asking someone if they are
biased, without the ability to present extrinsic evidence of a bias if they
say no, is an illusory way of guaranteeing the Sixth Amendment right to
confrontation. Additionally, introducing evidence of the previous charges
without evidence of the verdicts may have led to the jury speculating on
what happened in the previous trial, perhaps tainting their opinion of
Appellant under the false impression that he had been convicted.

   “All relevant evidence is admissible, except as provided by law.” §
90.402, Fla. Stat. (2014). “Relevant evidence is inadmissible if its
probative value is substantially outweighed by the danger of unfair
prejudice, confusion of issues, misleading the jury, or needless
presentation of cumulative evidence.” § 90.403, Fla. Stat. (2014). As
discussed above, testimony regarding the jury’s verdict in the underlying
case was relevant. Any fear that the jury in the tampering case would be

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confused did not substantially outweigh this relevance. Appellant had a
constitutional right to be able to confront his accuser. By the exclusion of
the evidence he sought, he was denied the meaningful exercise of that
right. The trial court therefore erred by granting the State’s motion to
suppress the evidence of the not-guilty verdicts.

II.   Attempted Manipulation of a Witness is not a form of Attempted
      Intimidation of a Witness

    The second question on appeal is whether the trial court erred in
overruling Appellant’s objections to the State’s closing argument
statements which intimated that manipulation is a form of intimidation
under section 914.22(1), Florida Statutes (2014).          We review the
interpretation of statutes de novo. D.A. v. State, 11 So. 3d 423, 423 (Fla.
4th DCA 2009). In relevant part, section 914.22(1) criminalizes the actions
of:

      A person who knowingly uses intimidation or physical force,
      or threatens another person, or attempts to do so, or engages
      in misleading conduct toward another person, or offers
      pecuniary benefit or gain to another person, with intent to
      cause or induce any person to [withhold testimony or
      otherwise not provide truthful evidence] . . . .

Whether “manipulation” may constitute “intimidation” as set forth in the
statute appears to be a question of first impression in this state.

   “It is a fundamental principle of statutory interpretation that legislative
intent is the ‘polestar’ that guides this Court’s interpretation.” Borden v.
E.-European Ins. Co., 921 So. 2d 587, 595 (Fla. 2006). “In attempting to
discern legislative intent, we first look to the actual language used in the
statute. When the statute is clear and unambiguous, courts will not look
behind the statute’s plain language for legislative intent or resort to rules
of statutory construction to ascertain intent.” Daniels v. Fla. Dep’t of
Health, 898 So. 2d 61, 64 (Fla. 2005) (internal citations omitted).

   “Tugging at the heartstrings,” as the State characterized the
manipulation here, is not subsumed within the plain meaning of the word
“intimidation.” Intimidation necessarily includes an element of fear. If one
is not afraid, one is not intimidated; and if one does not intend to cause
fear, one does not intend to intimidate. Nothing about “tugging at the
heartstrings” indicates an attempt to instill fear — in fact, fear would be
counterproductive in this endeavor. Although intimidation is one possible
form of manipulation, because an act of intimidation is an attempt to affect

                                      4
the intended recipient’s future actions, the reverse does not necessarily
follow.

    Florida’s section 914.22 is based on a federal statute, 18 U.S.C. § 1512.
State v. Cohen, 545 So. 2d 894, 894 (Fla. 4th DCA 1989). However, there
is at least one important difference between the two statutes that is
relevant here: the federal statute criminalizes “knowingly . . . corruptly
persuad[ing]” another person in addition to “knowingly us[ing]
intimidation . . . .” 18 U.S.C. § 1512(b) (2014). The Florida statute does
not contain any similar language.

    In the federal system, the corrupt persuasion language has formed the
basis for convictions based on manipulation. See, e.g., United States v.
Eads, 729 F.3d 769, 779-80 (7th Cir. 2013) (holding that the defendant’s
“clear effort at manipulation” was sufficient to preface a conviction under
the corrupt persuasion clause of 18 U.S.C. § 1512(b)). However, as
discussed above, the Florida statute does not have similar “corrupt
persua[sion]” language, thus bolstering our conclusion that the Florida
statute, without this language, does not criminalize non-intimidating
efforts to manipulate.

   We therefore hold, both based on the plain meaning of the word
“intimidate” and on the federal courts’ reliance on a clause not found
within the Florida law, that manipulation is not a form of intimidation
under section 914.22, Florida Statutes. The State’s conflation of these
terms in its closing arguments certainly could have contributed to the
jury’s verdict. See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986)
(setting forth the harmless error standard). We therefore reverse and
would remand for a new trial, but for our final holding.

III.   Motion for Judgment of Acquittal

    We review motions for judgment of acquittal de novo. Pagan v. State,
830 So. 2d 792, 803 (Fla. 2002). “If, after viewing the evidence in the light
most favorable to the State, a rational trier of fact could find the existence
of the elements of the crime beyond a reasonable doubt, sufficient evidence
exists to sustain a conviction.” Id. This is deemed the “sufficiency of the
evidence standard.” Velloso v. State, 117 So. 3d 903, 905 (Fla. 4th DCA
2013). “When considering a motion for judgment of acquittal under rule
3.380, a trial court must determine as a matter of law whether the evidence
presented was adequate to support a conviction.” Ferebee v. State, 967
So. 2d 1071, 1072-73 (Fla. 2d DCA 2007).

   The element at issue is the “knowingly uses intimidation” provision of

                                      5
section 914.22, Florida Statutes. The State’s evidence supporting a finding
of knowing intimidation was the letter itself and the mother’s testimony
regarding her reaction to the letter. The mother testified that she believed
the letter indicated that Appellant would take some sort of action against
her or her children. The mother specifically referred to the part of the
letter warning of a possible custody battle if she should testify.

    We start by acknowledging, as the State encourages us to, that the
mother’s reactions to the letter are irrelevant to the crime of witness
tampering. The statute’s clear focus is on a defendant’s “knowing” use of
intimidation, not on the defendant successfully intimidating his or her
victim. Understanding the statute in this manner compels us to hold that
the evidence admitted was insufficient to support a conviction of the crime
charged.

    In the State’s closing, the prosecutor characterized the letter at issue
as “tugging at the heartstrings.” The prosecutor added that “[Appellant’s]
just saying he loves her, it’s a love letter,” and then commented that most
of the letter “are just, you know, memories that they have together, things
that have happened and it’s not really till the last page or so, maybe the
last two paragraphs that it starts turning into what the State submits to
you is—is the tampering portion of that.”

   In the final two paragraphs of the letter, Appellant wrote:

          Do you hate me that much and if you dont, I’m here beging
      you in the name of god your family kids, sisters, mother, in
      laws, stop don’t do nothing else just don talk to anybody
      “absolutely anybody” nobody” your silence is all I ask you no
      matter who send you apointments just don go so in the name
      of the love you said you had for me, in my side I can tell you I
      will never forget you, you will always be in my heart nothing
      its gonna change my love for you, my love its gonna be with
      me for ever I love you with heart, body, and soul this life now
      and the eternity.

          Just stop. Don’t create a chain reactión that at the end its
      going to afect everybody, if I go to trial I have to look at people
      like witneses and obiosly they will be neighbors friends, you
      family everybody will find out all this mess and then what
      their grandma and father and you will be in the eye of a
      hurricane fighting for your kids custody? thats gonna break
      my heart because they belong to go with you dont allow this
      situation get biger, just stop. I don’t hate you [Witness], I love

                                      6
      you. I know we [illegible] going to get back together but you
      will always be in my heart take care of you of the kids of the
      family Love you[.][1]

The only evidence introduced by the State in this case was the letter, the
date of mailing, and the mother’s subjective reactions to it. At no point
did the State establish a pattern of activity that would suggest this letter
would lead to more correspondence or contacts. Because the statute
requires us to ignore the mother’s reactions and focus only on the mens
rea of the writer (Appellant) when the letter was sent, we are unable to say
that a reasonable trier of fact could have found, beyond a reasonable doubt
and based on the text of the letter and the date of mailing alone, that
Appellant used intimidation or threats.

    The text of the letter does not read to a reasonable person as a use of
intimidation. Nor do the lines referring to a custody battle mean what the
mother seems to have taken them to mean. Appellant was warning the
mother about a custody battle initiated by other people and expressed his
desire that the children actually stay with the mother. Although the
mother and the State argued that this constituted a “threat,” a reasonable
person could not come to that conclusion, and the State failed to present
evidence that Appellant had the means or the desire to initiate or
encourage a custody battle.

    As described above, the letter sent by Appellant is essentially a plea for
mercy, a “tugging at the heartstrings.” He begs the mother to stop her
efforts in the case and repeatedly proclaims his love for her. Intentional
or not, the letter is clearly an attempt to manipulate the mother, but not
through intimidation or fear.         Appellant doesn’t warn of negative
repercussions attributable to him that will befall the mother if she testifies
against him. Instead, his letter asks the mother to pity him and to show
mercy. Based purely on the contents of this letter and the fact that it was
mailed shortly before a scheduled deposition, no rational factfinder could
find that Appellant “knowingly used intimidation” with the intent to
prevent the mother from testifying. Whether the mother was in fact
intimidated is irrelevant to this analysis.


1 Appellant’s letter contained numerous spelling and punctuation errors. We
have attempted to preserve these as much as possible in the above quotation.
Adding to our difficulty is the fact that the left portion of the letter was not
properly scanned into the record. Where the omitted or truncated words are clear
from context, they have been added. The exact wording of the letter, however, is
not essential to our holding.


                                       7
  We therefore reverse the trial court’s denial of Appellant’s Motion for
Judgment of Acquittal.

                               Conclusion

    We hold that this case presents three independently sufficient reasons
to reverse. Appellant was denied his Sixth Amendment right to confront
the mother when the trial court impermissibly limited evidence that may
have impeached her credibility. The State mischaracterized the elements
of the crime by suggesting that manipulation is a subcategory of
intimidation when in fact the opposite is closer to the truth. And finally,
based on the evidence introduced, had the jury been properly instructed,
it could not have reasonably reached the conclusion that the element of
intimidation was proven beyond a reasonable doubt. For all of these
independently sufficient reasons, we reverse.

   Our reversal of the first two issues — the limitation of evidence and the
State’s comments — normally would lead to a new trial. However, because
we also direct that Appellant’s Motion for Judgment of Acquittal be
granted, a new trial is both unnecessary and improper.

  We remand with instructions for the trial court to grant Appellant’s
Motion for Judgment of Acquittal.

   Reversed.

WARNER and STEVENSON, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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