       Third District Court of Appeal
                               State of Florida

                        Opinion filed September 17, 2014.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D12-2435
                        Lower Tribunal No. 07-26953-D
                             ________________


                             Ramiro Rodriguez,
                                    Appellant,

                                         vs.

                            The State of Florida,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Antonio Arzola,
Judge.

     Steven M. Swickle, for appellant.

     Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney
General, for appellee.


Before SHEPHERD, C.J., and ROTHENBERG and SCALES, JJ.

     ROTHENBERG, J.
      Ramiro    Rodriguez    (“the   defendant”)   appeals    his convictions    for

manslaughter, attempted manslaughter, burglary with an assault or battery or while

armed, conspiracy to commit burglary, kidnapping, and possession of a firearm

during the commission of a felony. The defendant’s primary arguments on appeal

are that: (1) he was entitled to an independent act instruction on the manslaughter

and attempted manslaughter counts; and (2) the trial court erred in denying his

motion for a judgment of acquittal (“JOA”) on the kidnapping count because the

confinement was insufficient to support a conviction for kidnapping.1 Because we

conclude that no view of the evidence would support an independent act

instruction and find that there was sufficient evidence to support the defendant’s

conviction for kidnapping, we affirm.

      The defendant was involved in an altercation that resulted in the death of

Erik Lopez (“Erik”), who suffered six gunshot wounds, and injury to Erik’s wife,

Olga Lopez (“Olga”) (collectively, “the Lopezes”), who was shot in the leg.

Although some of the facts are in dispute, the following facts are undisputed. In

the early morning hours of August 5, 2007, Erik and Olga were at the defendant’s

home attending a party that involved substantial drinking and drug use, including

cocaine.   At some point during the partying, and without the defendant’s

1 Rodriguez also raised two other issues on appeal: that the trial court erred in not
allowing him to replace his privately-retained counsel and that his trial counsel was
ineffective on the face of the record. These arguments clearly lack merit, and we
affirm the trial court’s decisions on these points without discussion.

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knowledge, the defendant’s girlfriend, Lois Arroyo (“Lois”), engaged in sexual

activity with Olga. When the defendant learned of the sexual activity, he became

upset, and the Lopezes left the party.

      After the Lopezes left the party, they called Lois and invited her to come to

the Lopezes’ home to participate in a sexual threesome with the Lopezes. When

the defendant heard what was being proposed, he became enraged and told Erik on

the phone that he was angry and that he was coming over “to talk.”           After

soliciting the assistance of his son Ryan (“Ryan”), his friend Alain Llano

(“Alain”), and Lois, the four of them (collectively, “the defendants”) drove to the

Lopez home in Alain’s vehicle. The defendants were heavily armed with firearms,

including at least three handguns and an AK-47 assault rifle.

      Upon their arrival, the defendants entered the Lopez home. They duct taped

Erik to a chair in his living room, and, according to Ryan, who testified at the

defendant’s trial, while they were attempting to duct tape Lois to a chair as well,

Erik broke free from his bindings, pulled out a gun he had concealed in his

waistband, and began firing. A firefight ensued. Erik and Olga were shot several

times, and Alain was shot in the shoulder. Erik died at the scene from his gunshot

wounds. All of the defendants were arrested and charged.

      At trial, the State presented eyewitness testimony through two of the

defendant’s coperpetrators—the defendant’s son Ryan and his friend Alain—as



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well as Olga and several of the Lopezes’ neighbors. Although the defendant did

not testify, his pre-trial statement was introduced into evidence through one of the

testifying detectives.

      At the close of the State’s case in chief, the defendant moved for a JOA on

the kidnapping charge on the basis that the evidence did not establish that the

confinement was “substantial.” The trial court deferred its ruling, but ultimately

denied the JOA motion at the close of the evidence. The trial court also denied the

defendant’s request that the jury be instructed on the independent act doctrine after

concluding that there was no evidence to support such an instruction.

      The trial court’s failure to provide the jury with the defendant’s requested

jury instruction is the defendant’s first argument on appeal. Although we review a

trial court’s decision to exclude a requested jury instruction for an abuse of

discretion, Carpenter v. State, 785 So. 2d 1182, 1199-1200 (Fla. 2001); Martin v.

State, 110 So. 3d 936, 938 (Fla. 1st DCA 2013), that discretion is substantially

circumscribed when the instruction relates to a defendant’s valid theory of defense,

as the trial court must give the requested instruction if there is any evidence

supporting the defendant’s defense. Goode v. State, 856 So. 2d 1101, 1104 (Fla.

1st DCA 2003).       Thus, we must determine whether there was any evidence

introduced that would support the defendant’s request for an independent act

instruction.



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      “The ‘independent act’ doctrine arises when one cofelon, who previously

participated in a common plan, does not participate in acts committed by his

cofelon, ‘which fall outside of, and are foreign to, the common design of the

original collaboration.’” Ray v. State, 755 So. 2d 604, 609 (Fla. 2000) (quoting

Dell v. State, 661 So. 2d 1305, 1306 (Fla. 3d DCA 1995)). An independent act

instruction is appropriate only when the actions of the cofelon who allegedly acted

outside the scope of the original plan were not foreseeable based on the actions a

defendant set in motion. See Bradley v. State, 33 So. 3d 664, 675 (Fla. 2010)

(“[The independent act] defense cannot apply when death was a foreseeable result

of the plan.”); Jackson v. State, 18 So. 3d 1016, 1026 (Fla. 2009) (holding that the

independent act instruction is warranted only when the cofelon’s act is “outside of,

and not a reasonably foreseeable consequence of, the common design or unlawful

act contemplated by the defendant”); Johnson v. State, 36 So. 3d 170, 171-72 (Fla.

3d DCA 2010) (“We find that the trial court did not abuse its discretion to decline

to instruct the jury on the independent act defense where, as here, death was a

reasonably foreseeable consequence of the plan.”).         The case law on the

independent act doctrine also establishes that “an independent act instruction is

inappropriate when the unrebutted evidence shows the defendant knowingly

participated in the underlying criminal enterprise when the murder occurred or

knew that firearms or deadly weapons would be used.” Roberts v. State, 4 So. 3d



                                         5
1261, 1264 (Fla. 5th DCA 2009) (emphasis added) (discussing several cases

interpreting the independent act doctrine); see also Diaz v. State, 600 So. 2d 529,

529-30 (Fla. 3d DCA 1992) (upholding the defendant’s second degree murder

conviction when one of his coperpetrators was shot and killed by their intended

robbery victim by holding that the trial court did not err in refusing to provide the

jury with an independent act instruction where the unexpected use of a gun during

the commission of the attempted robbery was not an “intervening act” as a matter

of law).

      Although the eyewitness accounts of what happened varied somewhat from

witness to witness, for purposes of our analysis on this point, we need only look to

the testimony that is most favorable to an independent act instruction:            the

defendant’s own statement. Based on the defendant’s own version of the events,

he was the mastermind and driving force behind the entire criminal enterprise. The

defendant admitted to the police that: he went to the Lopez home to “scare” Erik;

he solicited the help of Ryan, Alain, and Lois; he and his coperpetrators were

heavily armed; and he brought duct tape with him to confine Erik to a chair. Thus,

regardless of which version of the evidence is true—(1) Alain shot and killed Erik,

as the defendant claims, or (2) the defendant shot and killed Erik, as all of the other

witnesses testified and the physical evidence supports—the defendant still would

not have been entitled to an independent act instruction because he orchestrated the



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entire sequence of events. The defendant went to Erik’s house to confront Erik

armed with a firearm, and he brought Ryan, Lois, and Alain, who the defendant

knew would be armed with firearms, to assist him in confronting and “scaring”

Erik. Given these facts, it is hardly unforeseeable that violence would occur and

that someone could be shot and/or killed during this armed confrontation. It was

certainly reasonably foreseeable that when the defendant and his armed cohorts

confronted Erik, duct taped Erik to a chair, and began to duct tape Erik’s wife to a

chair, that Erik would himself resort to violence to protect himself and his wife by

any means available to him. Thus, even if we were to examine the testimony in the

light most favorable to the defendant, the defendant was not entitled to an

independent act instruction.

      The defendant’s second argument on appeal is that the trial court should

have granted his JOA motion because the State did not present any evidence that

the victim(s) had been sufficiently confined to warrant a kidnapping conviction.

This argument reflects a misunderstanding of the law on kidnapping as well as the

evidence introduced at trial.

      Section 787.01(a), Florida Statutes (2007), provides as follows:

             (1)(a) The term “kidnapping” means forcibly, secretly, or by
      threat confining, abducting, or imprisoning another person against her
      or his will and without lawful authority, with intent to:
             1. Hold for ransom or reward or as a shield or hostage.
             2. Commit or facilitate commission of any felony.



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             3. Inflict bodily harm upon or to terrorize the victim or
      another person.
             4. Interfere with the performance of any governmental or
      political function.

(emphasis added). When a defendant is charged with kidnapping with the intent

to facilitate the commission of a felony under subsection 787.01(1)(a)2, the State

must also prove that the confinement was not “inconsequential or inherent in the

nature of the felony [sought to be furthered by the kidnapping].” Faison v. State,

426 So. 2d 963, 966 (Fla. 1983) (quoting Harkins v. State, 380 So. 2d 524, 528

(Fla. 5th DCA 1980)); see also Frederick v. State, 931 So. 2d 967, 969 (Fla. 3d

DCA 2006) (explaining the reasoning and holding of Faison).

      This substantiality of confinement factor enunciated in Faison, however, is

germane only when the charge of kidnapping is brought under subsection (a)2,

where it is alleged that the confinement was with the specific intent to commit or

facilitate the commission of another felony. See Perry v. State, 57 So. 3d 910, 912

(Fla. 5th DCA 2011) (noting that the case law clearly provides that the Faison test

applies only when kidnapping is charged under section 787.01(1)(a)2).

      In this case, the State charged the defendant in the alternative with

kidnapping to facilitate the commission of a felony (specifically, aggravated

assault) under subsection (a)2, and also with the intent to terrorize the victim under

subsection (a)3. Because the facts of this case demonstrate a textbook example of

kidnapping with the intent to terrorize the victim—the defendant admitted he


                                          8
intended to scare Erik by duct taping him to the chair and pointing guns at him—

we need not even address whether the confinement was inconsequential to support

a kidnapping conviction under subsection (a)2.

      Nonetheless, we briefly address the defendant’s claim that the confinement

of Erik was insufficient to support a conviction of kidnapping under subsection

(a)2 as a matter of law. Specifically, the defendant argues that because Erik broke

free from his bindings (he had been duct taped to a chair), his confinement was

inconsequential.

      In Ferguson v. State, 533 So. 2d 763, 764 (Fla. 1988), when addressing the

three-prong test adopted in Faison, the Florida Supreme Court held that “[t]he

duration of the confinement is not an integral part of the test even though it may

bear on whether the confinement was slight or inconsequential.” Rather, the issue

is whether the initial confinement was intended to make the crime substantially

easier to commit or substantially lessen the risk of detection. This determination

“does not depend on the accomplishment of its purpose.” Id.

      The defendant admits that his intent in duct taping Erik to the chair was to

“scare” Erik, and Ryan testified that the Defendant also attempted to duct tape

Olga to another chair in furtherance of his intended purpose.        Although the

determination of whether the confinement of Erik was inconsequential was not

dependent upon the success or accomplishment of the defendant’s purpose, which



                                        9
was to facilitate the commission of the defendant’s aggravated assault upon Erik,

the evidence established that the confinement did in fact accomplish the

defendant’s intended purpose: to assault and terrorize Erik. He so terrorized Erik

that Erik broke free from his bindings, pulled out a gun, and began firing to protect

himself and his wife. Thus, under either of the theories charged, the evidence was

sufficient to support the defendant’s conviction for kidnapping.

      Affirmed.




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