         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D17-2756
                 _____________________________

JOSHUA DANEEL GLOSTON,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Duval County.
Jack Schemer, Judge.

                           May 6, 2019


WINOKUR, J.

     Joshua Daneel Gloston was convicted of kidnapping and
attempted sexual battery. Gloston challenges his kidnapping
conviction, claiming that the trial court should have granted his
motion for judgment of acquittal because the asportation of the
victim was incidental and inherent to the crime of attempted
sexual battery. We reject this claim and affirm his judgment and
sentence.

                                I.

    At trial, the victim, J.W., testified that during early morning
hours, she was exercising on an elliptical machine at a
Jacksonville hotel gym. About fifteen minutes into her workout,
J.W. heard the door to the gym click as if someone else had
entered. A man with a towel tied across his face, later identified
as Gloston, grabbed her arm and told her to get off the elliptical.
Gloston was also wearing what appeared to be gloves. Believing
that he was “joking or someone nuts,” J.W. continued to exercise.
Gloston then proceeded to grab J.W. again and pull her off the
elliptical.

     J.W. then verbally confronted Gloston and pulled the towel
from his face. Gloston proceeded to put J.W. in a full nelson
wrestling hold, causing J.W. to scream and attempt to kick him
in the groin. In response, Gloston hit her on the nose and eye.
Gloston then told J.W. that he was going to kill her if she
screamed again.

    Gloston tried to drag J.W. out of the hotel gym. J.W. grabbed
a nearby fitness machine, prompting Gloston to strike her head
against the machine’s post in order to loosen her grip. Gloston
then continued to drag her towards the gym door. Gloston opened
the door and both he and J.W. fell through onto the hallway,
where she grabbed hold of a column while he grabbed her feet
and pulled her towards the doorway that led to the pool deck.

     As this was happening, J.W. was face up on the ground
looking at her assailant. J.W. testified that when she first pulled
the towel from his face she was able to look at Gloston for
approximately ten seconds. J.W. then stated that she “got a really
good look at him [when she] was laying on the floor, looking up at
him and he was trying to grab me.” J.W. was still clinging onto
the column when Gloston kicked her on the side of her leg, which
caused J.W. to let go. Gloston then resumed pulling her towards
the pool deck door.

     Once Gloston got J.W. to the pool deck door, J.W. became
exhausted and exclaimed “I give up.” As a result, Gloston stopped
trying to move J.W. to the pool deck and proceeded to pull down
her gym shorts. J.W. then began to scream and she then heard
what sounded “like, a ripping sound, and to [J.W.], it sounded
like he was tearing off something to make a gag to put on [her]
mouth so [she would] shut up.” A hotel employee then appeared,
which prompted Gloston to flee. J.W. pulled up her shorts and

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ran towards the hotel employee, asking hysterically if he had
seen her assailant.

     J.W. was able to identify Gloston as her assailant in a photo
spread. J.W. also identified Gloston in court during her
testimony. Additionally, the hotel employee testified that the pool
deck area was “pretty dark.”

     After the State rested, defense counsel moved for acquittal
on the kidnapping charge, arguing that the movement of J.W.
was incidental and part of the attempted sexual battery. The trial
court denied the motion, and later denied a renewed motion
following the defense case. The jury then found Gloston guilty as
charged on both counts.

                                II.

     A trial court’s ruling on a motion for judgment of acquittal is
reviewed de novo. Ridgeway v. State, 128 So. 3d 935, 936 (Fla. 1st
DCA 2013). The evidence must be construed in the light most
favorable to the State. Perez v. State, 138 So. 3d 1098, 1100 (Fla.
1st DCA 2014). As a result, a judgment of acquittal is improper if
the State presents competent, substantial evidence to establish
the elements of the charged offense. Id.

     Gloston was charged with kidnapping with the intent to
commit a felony, sexual battery, pursuant to section 787.01(1)(a),
Florida Statutes. In Faison v. State, the Florida Supreme Court
articulated the standard for analyzing kidnapping when done to
facilitate the commission of another crime. 426 So. 2d 963 (Fla.
1983). In such circumstances, kidnapping occurs when the
movement or confinement employed by the defendant is 1) not
slight, inconsequential, or incidental to the other crime charged;
2) not inherent in the other crime charged; and 3) significant and
independent of the other crime charged so as to lessen the risk of
detection or making the other crime easier to commit. Id. at 965.




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                               III.

     Gloston argues that his movement of J.W. was inherent or
incidental to the commission of the attempted sexual battery. The
evidence suggests otherwise.

    As to the first Faison factor, the record indicates that
Gloston not only forcefully moved J.W. off the elliptical machine,
but also proceeded to struggle with J.W. in an attempt to drag
her out of the hotel gym, into the hallway, and toward the pool
deck. These efforts resulted in J.W. resisting, with Gloston
resorting to kicking and striking J.W. in order to subdue her.
These acts are neither slight, inconsequential, nor incidental to
Gloston’s intent of sexually battering J.W.

    As to the second factor, Gloston’s asportation of J.W. was not
inherent to an attempted sexual battery. Gloston chose not to
sexually batter J.W. in the hotel gym. Instead, Gloston forced
J.W. out of the gym and dragged her across the hallway toward
the pool deck. Thus, Gloston’s actions were not inherent to his
attempted sexual battery, but rather part of his intent to forcibly
move J.W. in order to facilitate a sexual battery.

    Lastly, Gloston’s actions were significant and independent of
an attempted sexual battery and were done to lower the risk of
detection. Gloston argues that the fact that he chose to pull down
J.W.’s shorts in the hallway shows that the asportation was
simply part of his attempted sexual battery because the hallway
was a public area and he could have been easily discovered. But
Gloston only began his attempt to sexually batter J.W. in the
hallway after she told him that she “gave up.” Before that point,
Gloston was forcibly moving J.W. towards the pool deck.
Furthermore, the State elicited testimony that the pool deck area
was dark. Thus, it is entirely reasonable to conclude that Gloston
was moving J.W. to the pool deck since the dimly lit area
decreased the risk of detection.

     Gloston relies on two cases to support his argument. Wilson
v. State, 159 So. 3d 316 (Fla. 2d DCA 2015); Stanley v. State, 112
So. 3d 718, 719-20 (Fla. 2d DCA 2013). In Wilson, the defendant
grabbed the victim as she was walking through a vacant lot and

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proceeded to strike her, knock her to the ground, and then forced
her to engage in sexual intercourse. 159 So. 3d at 317. On appeal,
the Second District reversed the defendant’s kidnapping
conviction finding that “the evidence established that the
movement and confinement of the victim was merely incidental
to the crime of sexual battery, was inherent in the nature of the
crime, and did not make the crime easier or substantially lessen
the risk of detection.” Id. at 318.

     In Stanley, the defendant threw the victim onto a bed, held
her down, put tape over her mouth, taped her hands together,
and proceeded to turn her over and commit sexual acts. 112 So.
3d at 719. On appeal, the defendant’s kidnapping conviction was
reversed because the confinement was “minor” and inherent in
the nature of the crimes he committed. Id. at 719-20.

     Unlike Wilson and Stanley, the asportation of J.W. was not
minor or incidental. Gloston intentionally and forcibly dragged
J.W. out of the hotel gym, having to strike her to loosen her grip
on nearby exercise equipment. Gloston then dragged J.W. across
the hallway towards the dimly lit pool deck. But for J.W.’s
submission, Gloston would have continued his effort to drag J.W.
to the pool deck so he could commit sexual battery.

     This case is akin to Carter v. State, where the defendant
entered an apartment complex gym where the victim was
exercising alone. 762 So. 2d 1024, 1028 (Fla. 3d DCA 2000). The
defendant robbed the victim at gunpoint, moved her to a nearby
hallway, and sexually battered her. Id. The Third District
affirmed the defendant’s kidnapping conviction finding that
“[a]lthough the movement was only three feet, the effect was to
hide the victim and defendant from the view of anyone who might
enter the gym, thus making detection of the crime considerably
more unlikely.” Id. at 1027.

     Like Carter, Gloston endeavored to move J.W. to the pool
deck area to avoid detection and to facilitate a sexual battery.
Moreover, Gloston’s asportation of J.W. was more than the three
feet noted in Carter.



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                               IV.

     Gloston’s asportation of J.W. was neither inherent nor
incidental to his attempted sexual battery. Gloston’s actions
reflected a clear intent to forcibly move J.W., in order to
accomplish his goal of committing a sexual battery. The trial
court did not err in denying Gloston’s motion for judgment of
acquittal for kidnapping.

    AFFIRMED.

B.L. THOMAS, C.J., and KELSEY, J., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Andy Thomas, Public Defender, Joanna A. Mauer, Assistant
Public Defender, Glenna Joyce Reeves, Assistant Public
Defender, and A. Victoria Wiggins, Assistant Public Defender,
Tallahassee, for Appellant.

Ashley Moody, Attorney General, Benjamin L. Hoffman,
Assistant Attorney General, Samuel B. Steinberg, Assistant
Attorney General, and Trisha Meggs Pate, Assistant Attorney
General, Tallahassee, for Appellee.




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