                                    IN THE DISTRICT COURT OF APPEAL
                                    FIRST DISTRICT, STATE OF FLORIDA

CHRISTOPHER WILLIAMS,               NOT FINAL UNTIL TIME EXPIRES TO
                                    FILE MOTION FOR REHEARING AND
      Appellant,                    DISPOSITION THEREOF IF FILED

v.                                  CASE NO. 1D15-2244

STATE OF FLORIDA,

      Appellee.


_____________________________/

Opinion filed May 12, 2016.

An appeal from the Circuit Court for Suwannee County.
David W. Fina, Judge.

Nancy A. Daniels, Public Defender, Glenna Joyce Reeves, Tallahassee, for
Appellant.

Pamela Jo Bondi, Attorney General, David Llanes and Matthew Pavese, Assistant
Attorneys General, Tallahassee, for Appellee.




PER CURIAM.

      AFFIRMED.

LEWIS and THOMAS, JJ., CONCUR; MAKAR, J., CONCURS WITH OPINION.
MAKAR, J., concurring.

      Defendant brutally beat, stabbed multiple times, and sexually battered the

victim in her bedroom, locking the door behind him as he moved her inward before

his savagery began. Convicted of sexual battery, attempted first-degree murder,

aggravated battery, and kidnapping while armed with a weapon, he claims the

kidnapping count fails under our decision in Miller v. State, 124 So. 3d 395 (Fla. 1st

DCA 2013), because the confinement of his victim was incidental to the other

charges. Miller cannot, and should not, be read so broadly.

      Kidnapping, as charged in this case, means “forcibly, secretly, or by threat

confining, abducting, or imprisoning another person against her or his will and

without lawful authority with intent to . . . [i]nflict bodily harm upon or to terrorize

the victim or another person.” § 787.01(1)(a)3, Fla. Stat. (2014). Defendant’s

captivity of the victim readily falls within this statute’s proscription. But he says that

the confinement of the victim to her room was no longer than necessary to have

committed the other felonies, attempted murder, sexual battery, and aggravated

battery, making it incidental and non-actionable.

      Miller does not advance defendant’s argument because the only act of

confinement in that case was “placing a pillow over the victim’s face,” which was

deemed to be an incidental act that occurred simultaneously with the sexual battery

that occurred. Miller, 124 So. 3d at 398 (it “lasted no longer than commission of the

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other crime”). Here, the defendant went well beyond what Miller deemed

insufficient. 1 He menacingly approached and entered the victim’s bedroom carrying

a knife, moving her inside as he locked the door, thereby confining the victim at that

point; this was a separate, divisible, actionable offense. The State wasn’t required to

prove that the kidnapping was independent of the other crimes; instead, a kidnapping

charge is actionable if the kidnapping is “not merely incidental to the killing, but

was sufficiently separate from” the other crimes. Allen v. State, 137 So. 3d 946, 960

(Fla. 2013); Somers v. State, 162 So. 3d 1077, 1078 (Fla. 5th DCA 2015) (under

section 787.01(1)(a)3, Florida Statutes, “the State need not prove that the

confinement is independent of the related crime.”). That the lock was on the inside

of the door didn’t lessen the victim’s confinement; a jury could easily find she was

restrained by a knife-wielding, rageful aggressor that was a precursor to, but not

coterminous with, the vicious stabbings and beatings that occurred thereafter

(including tying the victim’s belt around her neck and lifting her off the bed thereby).

And that the victim was able to flee and seek help soon after defendant’s flight,

doesn’t diminish that she had already been confined unlawfully. Defendant’s

prefatory actions were not merely minor, incidental acts subsumed within the other

crimes committed. See generally Frank J. Wozniak, Annotation, Seizure or detention


1
  See also Mackerley v. State, 754 So. 2d 132, 137 (Fla. 4th DCA 2000) (placing
victim in a headlock to shoot him is incidental confinement), quashed on other
grounds, 777 So. 2d 969 (Fla. 2001).
                                        3
for purpose of committing rape, robbery, or other offense as constituting separate

crime of kidnapping, 39 A.L.R.5th 283 (1996 & Supp. 2016) (collecting cases

regarding “whether the seizure or the detention of the victim of a rape, robbery, or

similar offense would be sufficient to constitute the separate crime of kidnapping”).

The trial court was correct to reject the defendant’s argument that “there was no

action on [defendant’s] part to attempt to confine her nor to restrict her freedom.”




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