Opinion
Case No. 5D18-3302
08-30-2019
Obtravies Andre WATKINS, Appellant, v. STATE of Florida, Appellee.
James S. Purdy, Public Defender, and Sean Kevin Gravel, Assistant Public Defender, Daytona Beach, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Appellee.
James S. Purdy, Public Defender, and Sean Kevin Gravel, Assistant Public Defender, Daytona Beach, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Appellee.
COHEN, J.
M.M., the victim in this case, admittedly worked as a prostitute. She agreed to provide sexual services to Obtravies Andre Watkins at a negotiated price and pursuant to certain conditions, which included payment in advance and the use of condoms.
M.M. and Watkins initially engaged in consensual sex in Watkins's car in the parking lot of a post office in Volusia County. Watkins then drove M.M. to a second location in Volusia County—James Ormond Park—where they engaged in consensual sex again. Afterwards, M.M. withdrew her consent to any further interactions because she had run out of condoms. Watkins became angry, punched M.M., and threatened to shoot her if she did not do as he demanded or tried to escape. Watkins then forced M.M. to perform unprotected oral sex.
Subsequently, Watkins transported M.M. to a third location within Volusia County—an isolated, wooded area near High Bridge Road. Watkins pulled M.M. out of the car and forced her to engage in nonconsensual, unprotected oral and vaginal sex. M.M. testified that they reentered Watkins's car, and Watkins said he would let her live and take her back. However, M.M. described that instead, Watkins began "driving around kind of aimlessly." His driving became erratic as he attempted to locate his cell phone in the car. M.M. found the phone, which enraged Watkins because he believed M.M. used the phone to call for assistance. M.M. testified:
[W]e passed the, uh, the signs that said you're now leaving Daytona, entering Flagler, to which he then pulled off into, like, a quarry area. When he pulled off into the quarry area, he went down the dirt road all the way to the gate and pulled off into the field that was, um, next to that. When he pulled off, uh, towards the road, uh, the whole time that we're driving down and everything, I keep telling him no. I didn't touch your cell phone. I didn't do nothing to your cell phone. Um, I was trying to plead with—with him to not kill me.
The quarry M.M. described is located off Old Kings Road in Flagler County. Watkins again became violent and forced M.M. to engage in unprotected vaginal sex. He choked M.M. with a belt and left her naked, injured, and unconscious in a field. When M.M. regained consciousness, she walked onto Old Kings Road, where she was discovered by passing motorists.
M.M. was hospitalized for five days. The medical evidence reflected that the injuries to her neck were consistent with strangulation. Watkins alleged at trial that all of his contact with M.M. was consensual and that M.M. consented to rough and unprotected sex.
Watkins was charged and convicted in Volusia County of battery, sexual battery, and kidnapping. In this subsequent Flagler County case, the State moved to transfer the evidence from Volusia County to Flagler County. The Flagler County court granted that motion, allowing the State to admit "testimony and evidence of the inextricably intertwined evidence of kidnapping and sexual battery that took place in Volusia County." The Flagler County court noted that the events that occurred in Volusia County were directly relevant to the crimes that arose in Flagler County and were necessary to provide the jury with the full context of the occurrence; specifically, the transformation of Watkins and M.M.'s interactions from consensual to nonconsensual.
This Court per curiam affirmed Watkins's Volusia County convictions. Watkins v. State, No. 5D18-1064, 2019 WL 3852784 (Fla. 5th DCA Aug. 13, 2019).
Watkins was convicted in Flagler County of attempted second-degree murder, kidnapping, and sexual battery. He raises multiple issues on appeal, only one of which has merit: Watkins argues that his kidnapping conviction violates the constitutional prohibition against double jeopardy because he was previously convicted of kidnapping in Volusia County. We agree.
In the Volusia County case, the State argued that the events at issue constituted a single act. It emphasized, "This is one continuous act. There's not a temporal break in any of the actions between Volusia County and Flagler County, especially the kidnapping."
In this appeal, the State takes a completely different position: it asserts that Watkins committed two separate kidnappings, and thus, the Flagler County conviction is not precluded by double jeopardy. The State argues that the initial kidnapping ended at the third location—High Bridge Road—when Watkins expressed his intent to let M.M. live and to take her back to town. We reject that assertion.
"The Fifth Amendment guarantee against double jeopardy consists of three separate constitutional protections: ‘It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.’ " Capron v. State, 948 So. 2d 954, 957 (Fla. 5th DCA 2007) (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) ). "When a person may be tried for an offense in two or more counties, a conviction or acquittal in one county shall be a bar to prosecution for the same offense in another county." § 910.11(2), Fla. Stat. (2017).
[W]hen considering a double jeopardy claim alleging multiple convictions for the same offense, we first consider whether the convictions arose from the same criminal transaction or episode. If we conclude that the convictions arose from the same criminal episode, we must then determine if the convictions were predicated on distinct acts. Only after determining that the convictions arose from the same criminal episode and were not based on distinct acts do we then consider whether each offense requires an element that the other does not.
Fleming v. State, 227 So. 3d 1254, 1256 (Fla. 2d DCA 2017) (citations and quotation marks omitted).
First, we conclude that Watkins's actions constituted a single episode of kidnapping. "In order to determine whether offenses occurred during a single criminal episode, courts look to whether there are multiple victims, whether the offenses occurred in multiple locations, and whether there has been a ‘temporal break’ between offenses." Murray v. State, 890 So. 2d 451, 453 (Fla. 2d DCA 2004) (quoting Staley v. State, 829 So. 2d 400, 401 (Fla. 2d DCA 2002) ). Confining a person against his or her will constitutes kidnapping. Although Watkins moved M.M. to multiple locations, there was never a temporal break in Watkins's confinement of M.M.; the kidnapping began at James Ormond Park in Volusia County when Watkins threatened to kill M.M. if she exited the vehicle, and did not cease until Watkins left M.M. naked, injured, and unconscious in a field off Old King's Road in Flagler County. See Ashman v. State, 886 So. 2d 1079, 1079–80 (Fla. 5th DCA 2004) (reversing Orange County kidnapping conviction where defendant was also convicted of kidnapping in Polk County; although defendant took victim at gun point in Orange County and forced victim to drive to Polk County, defendant's actions constituted single criminal episode of kidnapping).
See § 787.01(1)(a), Fla. Stat. (2017) ("The term ‘kidnapping’ means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will ...." (Emphasis added)).
Whether or not Watkins was sincere in telling M.M. that he would take her back when they left High Bridge Road, Watkins continually confined M.M. The State's assertion that M.M. "voluntarily" reentered Watkins's car ignores the reality of her situation; Watkins's actions rendered M.M. stranded in a secluded, rural area with no way to return to safety. Accordingly, Watkins's actions constituted a single, criminal episode of kidnapping.
Next, we conclude that Watkins's actions during the events were not predicated on distinct acts. "Pursuant to the ‘distinct acts’ test, a single criminal impulse may be punished only once ‘no matter how long the action may continue,’ while separate, successive impulses may be punished separately ‘even though all unite in swelling a common stream of action.’ " Jacobs v. State, 272 So. 3d 838, 841 (Fla. 2d DCA 2019) (citations omitted). "In determining whether acts are ‘distinct,’ courts consider ‘factors such as whether there was (1) a temporal break between the acts, (2) intervening acts, (3) a change in location between the acts; and/or (4) a new criminal intent formed.’ " Id. (quoting Partch v. State, 43 So. 3d 758, 761 (Fla. 1st DCA 2010) ). As stated, although Watkins moved M.M. to different locations, there was no temporal break during M.M.'s confinement. Additionally, the record does not reflect any intervening acts during the confinement, and Watkins's statement that he intended to take M.M. back when they left the third location is undermined by his subsequent actions of driving around "aimlessly." Thus, Watkins's actions were not predicated on distinct acts.
Because Watkins's actions arose from the same criminal episode and were not based on distinct acts, in order "[t]o avoid a violation of double jeopardy, each offense must contain an element not within the other." Fleming, 227 So. 3d at 1257 (quoting Graves v. State, 95 So. 3d 1033, 1036 (Fla. 5th DCA 2012) ). "[O]ffenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial." § 775.021(4)(a), Fla. Stat. (2017). In both Flagler County and Volusia County, juries found Watkins guilty of violating section 787.01(1)(a)(2) and/or (3), which require proof of the same elements. As such, we conclude that Watkins's Flagler County kidnapping conviction violated the constitutional prohibition against double jeopardy.
We also note that "[t]he constitutional prohibition against double jeopardy does not preclude multiple punishments for multiple offenses arising out of the same conduct in a single criminal episode if the legislature intends to authorize separate punishments." Weitz v. State, 275 So.3d 707, 709, 2019 WL 2307971, *1 (Fla. 2d DCA May 31, 2019) (citing Valdes v. State, 3 So. 3d 1067, 1069 (Fla. 2009) ). However, the legislature has not expressed an intent to authorize separate punishments relating to kidnapping pursuant to section 787.01(1)(a), the statute under which Watkins was convicted.
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Accordingly, we affirm Watkins's Flagler County convictions of attempted second-degree murder and sexual battery, but reverse Watkins's Flagler County conviction of kidnapping, and remand for resentencing.
AFFIRMED IN PART; REVERSED IN PART and REMANDED.
ORFINGER, J., and WHITE, K., Associate Judge, concur.