          Supreme Court of Florida
                                   ____________

                                  No. SC17-1475
                                  ____________

                          WILLIE SETH CRAIN, JR.,
                                 Appellant,

                                         vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                   [April 5, 2018]

PER CURIAM.

      Willie Seth Crain, Jr., appeals the postconviction court’s denial of his

successive motion for postconviction relief. We have jurisdiction. Art. V, §

3(b)(1), Fla. Const. Crain’s motion sought relief based on the United States

Supreme Court’s decision in Hurst v. Florida, 136 S. Ct. 616 (2016), and this

Court’s opinions in Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied,

137 S. Ct. 2161 (2017), and Perry v. State, 210 So. 3d 630 (Fla. 2016). For the

reasons fully explained below, we affirm the postconviction court’s denial of relief.
                                BACKGROUND

      In 1999, a jury convicted Crain of first-degree murder and kidnapping with

intent to commit or facilitate the commission of a homicide. Crain v. State, 894

So. 2d 59, 62 (Fla. 2004), cert. denied, 546 U.S. 829 (2005). On direct appeal, this

Court explained the facts underlying Crain’s crimes:

              Willie Seth Crain, a then fifty-two-year-old Hillsborough
      County fisherman and crabber, was charged with the September 1998
      kidnapping and first-degree murder of seven-year-old Amanda
      Brown. At the time, Amanda was three feet, ten inches tall and
      weighed approximately forty-five pounds.
               ....
              [On the night of the crimes,] Crain mentioned that he had a
      large videotape collection and invited [the victim’s mother,] Hartman
      and Amanda to his trailer to watch a movie. Amanda asked if he had
      “Titanic,” which she stated was her favorite movie. Crain stated that
      he did have “Titanic” and Amanda pleaded with her mother to allow
      them to watch the movie. Hartman was initially reluctant because it
      was a school night, but she finally agreed. Crain drove Hartman and
      Amanda approximately one mile to his trailer in his white pickup
      truck.
               ....
              At [one] point in the evening, Hartman asked Crain if he had
      any medication for pain. Crain offered her Elavil and Valium. . . .
      Hartman elected to take five, five-milligram Valium tablets. Crain
      took one Valium tablet.
              Eventually, Hartman decided that it was time to leave. Crain
      drove Hartman and Amanda back to their residence and accompanied
      them inside. . . .
              According to Hartman, she told Crain, who appeared to be
      intoxicated at that time, that he could lie down and sober up but she
      was going to bed. The time was approximately 2:30 a.m. Within five
      minutes of Hartman going to bed, Crain entered Hartman’s bedroom
      and lay down on the bed with Hartman and Amanda. Hartman
      testified that she neither invited Crain to lie in her bed nor asked him


                                        -2-
      to leave. Crain was fully clothed and Amanda was wearing a
      nightgown. Amanda was lying between Hartman and Crain.
             Penny Probst, a neighbor of Hartman, testified that at
      approximately 12 midnight on September 10-11, 1998, she saw a
      white truck parked immediately behind Hartman’s car in Hartman’s
      driveway. In the early morning hours of September 11, Probst
      observed the truck parked at the side of Hartman’s residence with
      lights on and the engine running. Probst heard the truck leave after
      about five minutes.
             Hartman slept soundly through the night. When she woke in
      her bed alone the next morning, she discovered that Amanda was
      missing. Hartman testified her alarm clock read 6:12 a.m. when she
      awoke. Hartman immediately called Crain on his cell phone. At that
      time, he was at the Courtney Campbell boat ramp in Hillsborough
      County loading his boat. He told Hartman he did not know where
      Amanda was. Hartman then called the police and reported Amanda’s
      disappearance.

Id. at 62-64 (footnotes omitted).

      Following the jury’s unanimous recommendation for death, the trial court

sentenced Crain to death, finding three aggravating factors and assigning each the

noted weight: “(1) prior violent felonies (great weight), (2) the murder was

committed during the course of a kidnapping (great weight), and (3) the victim was

under the age of twelve (great weight).” Id. at 67. The trial court “found no

statutory mitigators and eight nonstatutory” mitigating circumstances. Id.

      On direct appeal in 2004, this Court affirmed Crain’s first-degree murder

conviction, finding sufficient evidence “to establish first-degree felony murder

based on kidnapping with the intent to inflict bodily harm.” Id. at 73. As to

Crain’s kidnapping conviction, this Court concluded that “competent, substantial


                                        -3-
evidence [did] not exist to support the jury verdict of kidnapping with intent to

commit homicide.” Id. at 76. Therefore, this Court “reverse[d] the judgment of

guilt of kidnapping and direct[ed] the trial court on remand to enter judgment for

false imprisonment, and to resentence Crain accordingly.” Id. Crain’s sentence of

death became final in 2005.

      In 2011, this Court explained its holding on direct appeal with respect to

Crain’s kidnapping conviction:

             In contrast to the jury instruction on count I, which related to
      the murder charge and instructed the jury on alternative theories of
      kidnapping, on count II, the jury was not instructed on the unpled
      alternative of kidnapping with intent to inflict body [sic] harm. Thus,
      on appeal, when examining whether the evidence was legally
      sufficient to support a separate conviction for kidnapping as charged
      in count II of the indictment, this Court concluded that competent,
      substantial evidence did not exist to support the jury verdict of
      kidnapping with the intent to commit homicide. As to count I,
      however, we held that there was sufficient evidence to support a
      felony murder conviction under the alternative theory of kidnapping
      with the intent to inflict bodily harm.

Crain v. State, 78 So. 3d 1025, 1032 n.3 (Fla. 2011) (citations omitted).

                                    ANALYSIS

      In this case, Crain argues that, despite this Court consistently holding that

Hurst errors are harmless in cases where the jury unanimously recommended

death, his case is different because: (1) the kidnapping aggravating factor was

invalidated; (2) there was no finding that the murder was heinous, atrocious, or

cruel (HAC) or cold, calculated, and premeditated (CCP); (3) the jury was given

                                        -4-
inaccurate instructions regarding its sentencing responsibility;1 and (4) the jury was

not instructed on mercy. As we explain below, we reject Crain’s arguments and

conclude that the Hurst error in Crain’s case was harmless beyond a reasonable

doubt.

         On remand from the United States Supreme Court in Hurst v. Florida, this

Court held in Hurst:

         [A]ll the critical findings necessary before the trial court may consider
         imposing a sentence of death must be found unanimously by the jury.
         We reach this holding based on the mandate of Hurst v. Florida and
         on Florida’s constitutional right to jury trial, considered in conjunction
         with our precedent concerning the requirement of jury unanimity as to
         the elements of a criminal offense. In capital cases in Florida, these
         specific findings required to be made by the jury include the existence
         of each aggravating factor that has been proven beyond a reasonable
         doubt, then finding that the aggravating factors are sufficient, and the
         finding that the aggravating factors outweigh the mitigating
         circumstances. We also hold, based on Florida’s requirement for
         unanimity in jury verdicts, and under the Eighth Amendment to the
         United States Constitution, that in order for the trial court to impose a
         sentence of death, the jury’s recommended sentence of death must be
         unanimous.

202 So. 3d at 44. Hurst applies retroactively to Crain’s sentence of death, which

became final in 2005. See Mosley v. State, 209 So. 3d 1248, 1283 (Fla. 2016).

         This Court also determined that Hurst errors are subject to harmless error

review. 202 So. 3d at 67. In Davis v. State, 207 So. 3d 142 (Fla. 2016), this Court

explained that “it must be clear beyond a reasonable doubt that a rational jury


         1. See Caldwell v. Mississippi, 472 U.S. 320 (1985).

                                           -5-
would have unanimously found that there were sufficient aggravating factors that

outweighed the mitigating circumstances.” Id. at 174. In Davis, emphasizing the

jury’s unanimous recommendation for death, this Court concluded that the Hurst

error was harmless beyond a reasonable doubt, explaining:

              Even though the jury was not informed that the finding that
      sufficient aggravating circumstances outweighed the mitigating
      circumstances must be unanimous, and even though it was instructed
      that it was not required to recommend death even if the aggravators
      outweighed the mitigators, the jury did, in fact, unanimously
      recommend death. From these instructions, we can conclude that the
      jury unanimously made the requisite factual findings to impose death
      before it issued the unanimous recommendations.

Id. at 174-75 (citation omitted). Since Davis, this Court has held in several cases

that the jury’s unanimous recommendation for death rendered the Hurst error

harmless beyond a reasonable doubt.2

      The kidnapping aggravating factor in Crain’s case remains valid because

kidnapping with the intent to inflict bodily harm underlies Crain’s first-degree

felony murder conviction. See § 921.141(5)(d), Fla. Stat. (1997) (including “any:

. . . kidnapping”). Therefore, the jury properly considered this aggravating factor



       2. See, e.g., Guardado v. Jones, 226 So. 3d 213 (Fla. 2017), cert. denied,
Nos. 17-7171, 17-7545, 2018 WL 1568519 (U.S. April 2, 2018); Middleton v.
State, 220 So. 3d 1152 (Fla. 2017), cert. denied, 138 S. Ct. 829 (2018); Jones v.
State, 212 So. 3d 321 (Fla.), cert. denied, 138 S. Ct. 175 (2017); Hall v. State, 212
So. 3d 1001 (Fla. 2017); Knight v. State, 225 So. 3d 661 (Fla. 2017), cert. denied,
No. 17-7099, 2018 WL 1369193 (U.S. Mar. 19, 2018); Kaczmar v. State, 228 So.
3d 1 (Fla. 2017), petition for cert. filed, No. 17-8148 (U.S. Mar. 14, 2018).

                                         -6-
in making its sentencing recommendation. See Davis, 207 So. 3d at 175. Thus,

the jury’s unanimous recommendation for death renders the Hurst error harmless

beyond a reasonable doubt.

      Finally, we have previously rejected Crain’s other claims that the jury’s

unanimous recommendation for death is unreliable and the Hurst error is,

therefore, not harmless beyond a reasonable doubt. See, e.g., Reynolds v. State,

No. SC17-793 (Fla. Apr. 5, 2018) (denying Caldwell claim); Morris v. State, 219

So. 3d 33 (Fla.) (no CCP or HAC aggravating factor), cert. denied, 138 S. Ct. 452

(2017). Thus, this Court can rely on the jury’s unanimous recommendation for

death to conclude that the Hurst error in Crain’s case was harmless beyond a

reasonable doubt.

                                    CONCLUSION

      Based on the jury’s unanimous recommendation for death, we conclude that

the Hurst error in Crain’s case is harmless beyond a reasonable doubt.

Accordingly, we affirm the postconviction court’s order denying his successive

motion for postconviction relief.

      It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, and LAWSON, JJ., concur.
CANADY and POLSTON, JJ., concur in result.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.


                                       -7-
An Appeal from the Circuit Court in and for Hillsborough County,
     Michelle Sisco, Judge - Case No. 291998CF017084000AHC

James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, Ann Marie
Mirialakis and Ali A. Shakoor, Assistant Capital Collateral Regional Counsel,
Middle Region, Temple Terrace, Florida,

      for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Scott A. Browne,
Senior Assistant Attorney General, Tampa, Florida,

      for Appellee




                                       -8-
