# Third District Court of Appeal

State of Florida

Opinion filed March 11, 2015.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D13- 561

Lower Tribunal No. 5

- 8533

________________



### Geralyn Graham,

Appellant,

vs.



### The State of Florida,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Miguel M. De

La O, Judge.

Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public

Defender, for appellant.

Pamela Jo Bondi, Attorney General, and Robert Martinez-Biswas, Assistant

Attorney General, for appellee.

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

SCALES, J.2

Geralyn Graham, defendant below, appeals her conviction for kidnapping and

for two counts of aggravated child abuse. 1 We affirm because the jury’s verdict is

supported by competent substantial evidence. Specifically, the evidence supports

the jury’s findings that Geralyn Graham’s conduct interfered with the performance

of a governmental function in violation of Florida’s kidnapping law and her

conduct constituted aggravated child abuse.

I. Facts

This tragic case concerns the disappearance and presumed death of four-year

old Rilya Wilson in 2000. Because the Florida Department of Children and

Families (“DCF”) placed Rilya into court-approved protective custody from which

she suffered abuse rather than enjoyed comfort and protection, this case also casts

a glaring light on DCF’s rights and responsibilities.

A. Rilya’s Custody

Geralyn Graham moved to Miami in 1994 with her partner, Pamela Graham

(“Pamela”). 2 Five years later, Geralyn Graham and Pamela met Gloria Wilson

who had a three-year old daughter named Rilya. At the time, Gloria Wilson was

expecting her second daughter, Rodricka.

1 Geralyn Graham does not appeal her conviction for child abuse (a lesser included

offense of aggravated child abuse in Count IV of the grand jury’s indictment). The

jury was unable to reach a verdict on Count I of the indictment, charging Geralyn

Graham with first-degree murder. Therefore, that charge is not before the Court.

2 There was no familial relationship between Geralyn Graham and Pamela Graham.3

Shortly after Rodricka was born in 1999, DCF took both children into

protective custody with Gloria Wilson’s consent. In December 1999, DCF

obtained court approval to place Rodricka and her sister Rilya in the temporary

custody of non-relative adults. Rodricka was placed with Pamela, while Rilya was

placed in the temporary custody of another caregiver, Pamela Kendrick. 3

In April 2000, Geralyn Graham and Pamela took Rodricka to visit Rilya at Ms.

Kendrick’s home. This visit prompted Geralyn Graham to contact a supervisor at

DCF to express concern about the conditions of Ms. Kendrick’s house.

Soon thereafter, a DCF supervisor inspected Ms. Kendrick’s home, determined

that it was in Rilya’s best interest to place Rilya elsewhere, and delivered Rilya to

Pamela’s and Geralyn Graham’s home. On April 21, 2000, Pamela received a

custody order for Rilya that awarded Pamela non-relative, temporary custody of

Rilya. In effect, Pamela and DCF became co-custodians of Rilya and Rodricka.

See §§ 39.01(59), 39.521(1)(b)3., Fla. Stat. (2000).

Pamela and Geralyn Graham agreed that, between the two of them, Geralyn

Graham would care for Rilya and Rodricka during the day while Pamela worked.

3 DCF undertook these various actions under the authority granted to DCF in

chapter 39 of the Florida Statutes (2000). DCF’s particular responsibilities toward

Rilya and Rodricka derive from section 39.521 of the Florida Statutes (2000). In a

larger sense, DCF assumes these responsibilities toward vulnerable children under

the doctrine of parens patriae

. See, e.g., Global Travel Mktg. v. Shea

, 908 So. 2d

392, 399 (Fla. 2005). When DCF places a child under protective supervision in the

home of a court-approved adult, DCF is delegating a portion of its responsibilities

for the child while still retaining a parenting role that originates in parens patriae

.4

Before long, Rilya began to exhibit chronic disobedience in her new family setting.

Geralyn Graham, in her capacity as Rilya’s main day-time caregiver, became

frustrated with Rilya and withheld affection from the child.

The evidence at trial established that Geralyn Graham further reacted to Rilya’s

disobedience by routinely locking Rilya in a laundry room for long periods of time.

Rilya was fed in the laundry room and Rilya was allowed to leave only to use the

bathroom. On one occasion, when Pamela returned home from work, Pamela

observed that Rilya had suffered severe burns from the hot-water heater in the

laundry room. Geralyn Graham resisted Pamela’s suggestion that Rilya be taken to

a doctor.

The evidence also established that Rilya regularly left her bed at night and

climbed onto a kitchen counter to eat snacks and sweets. In order to prevent such

behavior, Geralyn Graham placed plastic flex cuffs on Rilya’s wrists in order to

bind Rilya to the side of the bed. The restraining of Rilya occurred numerous times

over a several month period in 2000.

Geralyn Graham believed that Rilya was out of control and defiant. For

example, as Geralyn Graham would tell people, Rilya spread feces around the

house and used inappropriate, mature language.

Geralyn Graham also complained that the public assistance Pamela was

receiving for her custody obligations was not worth the trouble of caring for Rilya.5

At one point, Geralyn Graham inquired as to whether the DCF would take back

Rilya, but was told that DCF wanted to keep Rilya together with her younger

sister.

B. Rilya’s Disappearance

One day in December of 2000, Geralyn Graham made what seemed at that

moment to be an unremarkable call to Pamela at work. Geralyn Graham informed

Pamela that Geralyn Graham was taking Rilya and Rodricka out for a little while.

When Pamela returned home from work that night, Pamela was surprised that she

was not greeted by Rilya. Pamela searched the house looking for the four-year old

Rilya, but was told by Geralyn Graham that Rilya was not at home.

Geralyn Graham maintained that Rilya was okay and that Pamela should not

worry, but that Pamela would not be seeing Rilya anymore. Pamela pressed

Geralyn Graham for more information, but Geralyn Graham would not divulge any

specifics regarding Rilya’s whereabouts. When Pamela attempted to use the phone

to call the police, Geralyn Graham threatened Pamela with a hammer and told

Pamela to put down the phone.

Geralyn Graham told Pamela that if anyone asked Pamela the whereabouts of

Rilya, Pamela should inform people that someone from DCF picked up Rilya.

Indeed, during the ensuing months, Pamela told several witnesses that an agent

from DCF picked up Rilya, although no one from DCF had done so.6

On January 16, 2001, Pamela went to a state office to give notification that

Rilya no longer lived in the home of Pamela and Geralyn Graham so that no

further benefits for Rilya should be paid to Pamela. Later, in the spring of 2001,

Pamela and Geralyn Graham held a garage sale where they sold Rilya’s bed,

dresser, and clothes.

In April 2002, Geralyn Graham received a visit at the couple’s house from a

DCF adoption coordinator delivering a package of materials for the potential

adoptions of Rilya and Rodricka. On April 18, 2002, a DCF representative

discovered for the first time that Rilya was not living with Pamela. Geralyn

Graham told the representative that DCF had picked up Rilya for an evaluation and

that Rilya was never returned.

DCF notified law enforcement that Rilya was missing. In interviews on April

27 and April 30, 2002, Geralyn Graham repeated to law enforcement personnel

that DCF had picked up Rilya. Specifically, Geralyn Graham told law enforcement

that in January 2001, DCF picked up Rilya and that, several weeks later, another

DCF representative came to the house to gather Rilya’s clothes and toys.

Shortly thereafter, Miami-Dade County police and crime scene technicians

conducted a search of Graham’s home but found no evidence of foul play. By this

time, Rilya’s disappearance had gained significant media attention. During a7

television interview, Geralyn Graham once again stated that DCF had taken Rilya

from Graham’s home.

C. Geralyn Graham’s Arrest and Incarceration

In May 2004, Pamela decided to cooperate with law enforcement. Pamela gave

a statement explaining how both she and Geralyn Graham had punished Rilya. On

August 18, 2004, both Geralyn Graham and Pamela were charged with kidnapping

and aggravated child abuse. On that same day, at the Women’s Annex Correctional

Facility of Miami-Dade County, Geralyn Graham encountered cellmate Robin

Lunceford. On both that day and the next, August 19, 2004, Geralyn Graham

unburdened herself to Lunceford.

According to Lunceford, Geralyn Graham revealed that Rilya was a severe

disciplinary problem. Geralyn Graham described Rilya to Lunceford as a “demon”

and consistently referred to Rilya as “it.” Geralyn Graham told Lunceford that

Rilya put her “over the edge.” Ultimately, Geralyn Graham confessed to Lunceford

that, despite her efforts to “change the baby,” Grealyn Graham had smothered

Rilya with a pillow.

During their second conversation on August 19, 2004, Lunceford asked Geralyn

Graham how she had disposed of Rilya’s body. Geralyn Graham told Lunceford

that she had placed Rilya’s body in water near her house, apparently a canal. In

response to Lunceford’s direct questions regarding where Rilya’s body was8

located, Geralyn Graham responded that she was not stupid and knew the concept

of “no body, no murder.” Lunceford made notes of the August 18th and August

19th conversations almost immediately after each occurred.

Geralyn Graham’s cell location was changed within the Women’s Annex, and

in early 2005, Geralyn Graham came into contact with Maggie Carr. Carr was also

an inmate, a self-described law clerk at the facility. Geralyn Graham asked Carr to

explain the concept of corpus delicti

. Geralyn Graham and Carr discussed whether

Geralyn Graham could be indicted for murder if Rilya’s body could not be found.

“It’s gone,” Geralyn Graham told Carr in reference to Rilya.

D. Geralyn Graham’s Indictment, Trial, and Verdict

Based in part on the statements of Pamela, Lunceford and Carr, a grand jury

indicted Geralyn Graham. The indictment contained five counts: first degree

murder, kidnapping with the intent to interfere with any governmental or political

function, and three counts of aggravated child abuse.

Geralyn Graham’s criminal trial commenced in November 2012. The jury

reached its verdict on January 24, 2013, finding Geralyn Graham guilty of the

kidnapping charge (Count II), two counts of aggravated child abuse (Counts III and

V); and the lesser included offense of child abuse (Count IV). The jury did not

reach a verdict on Count I, the first-degree murder count.9

Geralyn Graham challenges her conviction for kidnapping and aggravated child

abuse.

II. Analysis

A. Kidnapping With Intent to Interfere With the Performance of any Governmental

or Political Function

Geralyn Graham argues that the trial court erred in denying her motion for a

judgment of acquittal on the kidnapping count. When a defendant moves for a

judgment of acquittal, she “admits every conclusion favorable to the adverse party

that a jury might fairly and reasonably infer from the evidence.” Lynch v. State

,

293 So. 2d 44, 45 (Fla. 1974). Our standard of review for a motion of acquittal is

de novo. Pagan v. State

, 830 So. 2d 792, 803 (Fla. 2002).

Geralyn Graham was indicted for violating section 787.01(1)(a)4., Florida

Statutes (2000). This statute reads, in relevant part, as follows:

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

. . . [i]nterfere with

the performance of any governmental or political function.

Geralyn Graham argues that her conviction for kidnapping requires reversal

because the State failed to establish beyond a reasonable doubt either that: (i) Rilya

was alive when Geralyn Graham removed Rilya from the house; or (ii) Geralyn

Graham’s confinement or abduction of Rilya was intended to interfere with the

performance of a governmental function.10

(i) Inconsistency of Theories of Prosecution

Geralyn Graham’s first argument is that the kidnapping charge is fundamentally

inconsistent with the murder charge. Graham argues that the State never

established Rilya was alive when she removed Rilya from the house. Because the

State’s trial theory was that Geralyn Graham killed Rilya by smothering her with a

pillow while at home, Graham argues the state should be precluded from

maintaining the inconsistent theory

– and the jury should not have rendered a

verdict

– that Geralyn Graham removed Rilya from the house in order to interfere

with the DCF’s statutory function of protecting children who are in temporary

custody.

In reviewing whether the trial court erred in denying Geralyn Graham’s motion

for acquittal, the issue for our determination is whether the evidence adduced at

trial was sufficient to support the conviction. Tibbs v. State

, 397 So. 2d 1120, 1123

(Fla. 1981). In other words, we must affirm if the jury’s verdict is supported by

competent substantial evidence. Id. The jury was presented with evidence that, on

the day Rilya disappeared, Geralyn Graham told Pamela in a morning phone call

that Graham was taking Rilya out for a while; and, later that day, upon Pamela’s

return from work, Geralyn Graham told Pamela that Pamela would not see Rilya

anymore, and that Rilya was okay and Pamela need not worry.11

No doubt these statements, if factual, were contrary to the State’s theory that

Geralyn Graham murdered Rilya in the couple’s home. Such inconsistency,

however, does not invalidate a conviction based on those facts, so long as the

jury’s determination is supported by competent substantial evidence, the jury

having resolved all conflicts in the evidence. Johnson v. State

, 969 So. 2d 938, 955

(Fla. 2007) (citing Tibbs

, 397 So. 2d at 1123). It is well settled that it is a jury’s

function to weigh contradictory evidence and to accept or reject it, in whole or in

part, based on its credibility. See Fitzpatrick v. State

, 900 So. 2d 495, 508 (Fla.

2005).

Geralyn Graham’s statements to Pamela, if believed by the jury, provide

substantial, competent evidence that Rilya was alive, and was confined or abducted

by Graham without Pamela’s or DCF’s consent. Therefore, the evidence supports

Graham’s conviction on kidnapping.

(ii) Interference with Performance of Governmental Function

Geralyn Graham’s second argument is that the kidnapping statute under which

she was charged does not apply to this situation. Graham argues that her alleged

removal of Rilya from the home did not “interfere with the performance of any

governmental or political function.” § 787.01(1)(a)4., Fla. Stat. (2000).

Geralyn Graham (and the dissent) cites to a comment to the Model Penal

Code’s version of the crime of kidnapping with intent to interfere with the12

performance of a governmental function, and asserts that the Model Penal Code

provision does not contemplate the type of kidnapping alleged in the instant case. 4

Essentially, Geralyn Graham urges us to read into the statute certain examples

of governmental functions found in the comment to the Model Penal Code.

Geralyn Graham’s argument suggests that only those specified examples (i.e.,

abductions of witnesses, candidates, party leaders, officials and voters) found in

the comment can constitute the type of abductions that are subject to the statute’s

protections.

We review collateral information, such as a comment to a model code, for

legislative intent only when the statute being construed is ambiguous. Holly v.

Auld

, 450 So. 2d 217, 219 (Fla. 1984) (quoting A.R. Douglass, Inc. v. McRainey

,

137 So. 157 (Fla. 1931)). The subject kidnapping statute is written in plain and

unambiguous terms. The significant language of section 787.01(1)(a)4.

– “interfere

with the performance of any governmental

. . . function”

– is susceptible of plain

meaning. Reference to collateral information is therefore unnecessary.

As charged in the indictment, the governmental function was DCF’s “protective

supervision” of Rilya in the home of an adult approved by the court. §

4 See ALI, Model Penal Code § 212.1, comment 3 to Tentative Draft No. 11 at 18

(1960). The comment refers to the abduction of witnesses, candidates, party

leaders, officials, and voters. Florida’s kidnapping statute, first adopted in 1974, is

patterned after this Model Penal Code provision, but does not include or

incorporate the examples mentioned in the comment.13

39.521(1)(b)3., Fla. Stat. (2000). Protective supervision is a legal status in

dependency cases that provides a vulnerable child a safe home, subject to court

review. § 39.01(59), Fla. Stat. (2000). In the performance of its express

governmental function of supervising and, in effect, parenting vulnerable children,

DCF is entitled to the corresponding protections afforded by Florida’s kidnapping

law.

At trial, the jury was presented with evidence that: (1) on April 21, 2001,

Pamela was granted temporary custody of Rilya; (2) Pamela’s custody of Rilya

was shared with DCF, a duly authorized agency of state government 5 ; (3) DCF

had the statutory function 6 to care for and to protect the safety and welfare of

Rilya; and (4) Geralyn Graham repeatedly misrepresented to DCF and law

enforcement officials that DCF had removed Rilya from the couple’s home.

When reviewing a trial court’s denial of a motion for judgment of acquittal, our

role as an appellate court is not to reweigh the evidence; our function is to

determine whether the evidence supported the jury’s guilty verdict. Tibbs

, 397 So.

2d at 1123. The jury determined that Geralyn Graham’s conduct was intended to,

and did, interfere with DCF’s express governmental function of protecting

5 DCF’s former director of operations in South Florida testified at trial that DCF

maintains custody of a dependent child along with the temporary custodian.

6 See §§ 20.19(1)(a), 39.001(1)(b)(1), 39.4085, and 39.521(1)(b)3., Fla. Stat.

(2000).14

children, like Rilya, who are under temporary protective supervision. The jury’s

verdict is supported by the evidence. 7

B. Aggravated Child Abuse

Geralyn Graham was also convicted of two counts of aggravated child abuse.

Specifically, the jury found that Geralyn Graham’s binding Rilya to the bed at

night (as alleged in Count III) and her punishing Rilya by locking her in a laundry

room for extended periods of time (as alleged in Count V) constituted aggravated

child abuse.

Geralyn Graham argues that the trial court erred in denying her motion for

judgment of acquittal as to these two counts.

7 We are mindful of the dissent’s concern (expressed in its footnote 9) that our

opinion could result in prosecution for kidnapping whenever a person interferes

with a state agency’s custody of a child or removes a child from the state contrary

to an order of a state agency or court. The kidnapping statute under which Geralyn

Graham was charged, section 787.01(1)(a)4., more appropriately encompasses the

totality and gravity of Geralyn Graham’s felonious conduct than the crimes defined

in sections 787.02 (false imprisonment), 787.03 (interference with custody), and

787.04 (removal of child from state). A false imprisonment under section 787.02

does not necessarily interfere with the performance of a governmental function.

Interference with custody (section 787.03) or removal from the state (section

787.04) are not necessarily forcible, secret, by threat, or against the will of the

child. Geralyn Graham’s violent acts toward Rilya, combined with her deliberate,

orchestrated effort to mislead DCF officials and interfere with DCF’s duties,

implicated section 787.01 foremost. The circumstances of this case are

extraordinary. Our opinion should not be construed to expand the meaning of

“kidnapping” or to dislocate the coordinated parts of chapter 787.15

Pertinent to these two counts, the jury was instructed that aggravated child

abuse occurs when a person “maliciously punishes” a child. See § 827.03(2)(b),

Fla. Stat. (2000). Consistent with State v. Gaylord

, 356 So. 2d 313, 314 (Fla.

1978), the trial judge instructed the jury that “maliciously” means done from “ill

will, hatred, spite or an evil intent.” 8 Geralyn Graham argues that, while her

actions might have shown bad judgment, the State offered no evidence that

Geralyn Graham’s actions were motivated by ill will, spite or hatred.

We disagree.

The jury was presented with ample evidence from which it could conclude that

Geralyn Graham’s actions in locking Rilya in a laundry room and binding Rilya to

the bed with plastic cuffs were motivated by Graham’s resentment toward and

8 Geralyn Graham also challenges the trial court’s failure to give a jury instruction

defining “maliciously” consistent with the 2003 Legislature’s amendment of the

statute. In 2003, more than two years after the crime occurred, the Legislature

amended the relevant statute by adding a new subsection which read:

For the purposes of this section, “maliciously” means wrongfully,

intentionally, and without legal justification or excuse. Maliciousness

may be established by circumstances from which one could conclude

that a reasonable parent would not have engaged in the damaging acts

toward the child for any valid reason and that the primary purpose of

the acts was to cause the victim unjustifiable pain or injury.

§ 827.03(4), Fla. Stat. (2003).

We conclude the trial court did not err by instructing the jury on the law in effect at

the time of the commission of the crime. Rock v. State

, 800 So. 2d 298, 299 (Fla.

3d DCA 2001).16

hatred for Rilya. For example, Robin Lunceford testified that Geralyn Graham

considered Rilya a “demon,” referred to Rilya as “it,” and that Rilya put Geralyn

Graham “over the edge.” The jury heard evidence that Geralyn Graham tried to

return Rilya to DCF because, to Graham, the aggravation caused by Rilya was not

worth the benefits Pamela received from DCF.

The jury’s verdict that Rilya was the victim of aggravated child abuse

administered by Geralyn Graham is supported by the evidence.

III. Conclusion

Because we conclude that the jury’s verdict was supported by the evidence

adduced at trial, we affirm Geralyn Graham’s conviction.

Affirmed.

SHEPHERD, C.J., concurs.17 Geralyn Graham v. State, 3D13-561

EMAS, J., concurring in part and dissenting in part.

I concur with that portion of the majority’s opinion which affirms the

convictions and sentences for two counts of aggravated child abuse. However, I

respectfully dissent from that portion of the majority opinion which affirms the

conviction and sentence for kidnapping.

Count II of the Indictment charged Geralyn Graham with kidnapping. In

relevant part, this count charged that Geralyn Graham,

between December 1, 2000, and December 31, 2000.

. . without

lawful authority did then and there forcibly, secretly, or by threat,

confine, abduct or imprison another person, to wit: RILYA WILSON,

a 4-year-old female child.

. ., and said confinement was without the

consent of said victim’s legal custodians, Pamela Graham, the

temporary legal custodian, and the Florida Department of Children

and Families, the legal custodian, with the intent to interfere with the

performance of any governmental function, to wit: The care, custody

and responsibility for the welfare, safety and whereabouts of RILYA

WILSON by the Department of Children and Families, a duly

authorized agency of the State of Florida, in violation of s. 787.01(1)

& (2), Florida Statutes.

. . . (Emphasis added.)

Kidnapping is a first-degree felony punishable by life imprisonment, and is

defined as follows:

(1) “Kidnapping” means forcibly, secretly, or by threat confining,

abducting or imprisoning another person against his will and without

lawful authority with intent to:

(a) Hold for ransom or reward, or as a shield or hostage; or18

(b) Commit or facilitate commission of any felony; or

(c) Inflict bodily harm upon or to terrorize the victim or other person;

or

(d) Interfere with the performance of any governmental or political

function.

(2) Confinement of a child under the age of thirteen (13) is against his

will within the meaning of subsection (1) if such confinement is

without the consent of his parent or legal guardian.

(3) Whoever kidnaps a person is guilty of a felony of the first degree,

punishable by imprisonment for a term of years not exceeding life or

as provided in chapter 775.

§ 787.01, Fla. Stat. (2000) (emphasis supplied).

The State did not charge Graham with kidnapping with the intent to hold the

victim for ransom or as a hostage, to facilitate the commission of any other felony,

or to inflict bodily harm upon or terrorize the victim. Rather, the State alleged that,

by removing the child from the custody of the Department of Children and

Families, Graham acted with the intent to “interfere with the performance of any

governmental or political function.” I conclude that the relevant statutory language

of section 787.01(1)(d) (“with intent to

. . . [i]nterfere with the performance of any

governmental or political function”) is ambiguous and, in light of the overall

statutory scheme of Chapter 787, Florida Statutes 9 ; the history and source of the

9 See and compare § 787.01, Fla. Stat. (Kidnapping) (a first-degree felony

punishable by life imprisonment, and requires proof of at least one of the four

aggravating circumstances of intent or purpose); § 787.02 (False Imprisonment) (a

third-degree felony, proscribing the same conduct as kidnapping but without any of19

legislation 10 ; the intent and meaning of this language as expressed by the

originating source upon which this legislation was based 11 ; canons of statutory

the four aggravating circumstances of intent or purpose); § 787.03 (Interference

with Custody, a first-degree misdemeanor); and § 787.04 (Removal of Child from

State Contrary to Court Order, a third-degree felony). Given the majority’s

holding, any person who interferes with custody or removes a child from the state

contrary to court order (a first-degree misdemeanor and third-degree felony,

respectively) would necessarily satisfy the “interfere with governmental or political

function” element of kidnapping, thereby subjecting them to prosecution for a

crime punishable by life imprisonment.

10 The relevant version of Florida’s kidnapping statute was first adopted in 1974,

see Ch. 74-283, Laws of Florida (1974) and is patterned after the American Law

Institute’s (ALI) Model Penal Code provision, first published in 1960, which

provided in pertinent part:

American Law Institute Model Penal Code

§ 212.1. Kidnapping

A person is guilty of kidnapping if he unlawfully removes another

from his place of residence or business, or a substantial distance from

the vicinity where he is found, or if he unlawfully confines another for

a substantial period in a place of isolation, with any of the following

purposes:

(a) to hold for ransom or reward, or as a shield or hostage; or

(b) to facilitate commission of any felony or flight thereafter; or

(c) to inflict bodily injury on or to terrorize the victim or another; or

(d) to interfere with the performance of any governmental or political

function.

11 When the American Law Institute proposed and published the Model Penal Code

provisions, it was accompanied by comments to assist and guide state legislatures

that were considering the adoption of one or more of the provisions of the Code.

With regard to the kidnapping statute, the comments to the Model Penal Code

provided:

Clause (d) [“to interfere with the performance of any governmental or

political function”] raises to the aggravated felony level certain

interference with political and governmental functions which might

otherwise be misdemeanors or felonies of the third degree, e.g.,20

construction 12 ; and case law from other jurisdictions construing the very same

statutory language found in Florida’s kidnapping statute 13

, I would hold that the

abduction of witnesses, candidates, party leaders, officials [and]

voters.

ALI, Model Penal Code, § 212.1, comment 3 to Tentative Draft No. 11 at 18

(1960) (emphasis supplied). See also ALI, Model Penal Code, § 212.1, comment

4 at 228 (1980) (noting that clause (d) was intended to “reach[] political terrorism

and the like, and classifies such conduct as among the most serious kinds of

unlawful confinement”).

12 Florida Courts have often looked to the Model Penal Code and Comments as a

guide for statutory construction of legislation adopted from and patterned after the

Code. See e.g., State v. Ecker

, 311 So. 2d 104 (Fla. 1975); Carroll v. State

, 680

So. 2d 1065, 1067 n. 3 (Fla. 3d DCA 1996) (referring to Model Code, on which

Florida statute was based, in construing criminal attempt statute and renunciation

defense); Bright v. State

, 555 So. 2d 1284 (Fla. 3d DCA 1990) (same, construing

self-defense statute); D.A. v. State

, 471 So. 2d 147 (Fla. 3d DCA 1985) (same,

construing loitering and prowling). See also

, Carolene Products Co. v. United

States

, 323 U.S. 18, 25-27 (1944) (acknowledging, as a presumption of legislative

intent, the “general rule that adoption of the wording of a statute from another

legislative jurisdiction, carries with it that jurisdiction’s previous judicial

interpretations of the wording”); State v. Aiuppa

, 298 So. 2d 391, 394 (Fla. 1974)

(same); Flammer v. Patton

, 245 So. 2d 854, 858 (Fla. 1971) (same); Dunn v.

Doskocz

, 590 So. 2d 521, 523 (Fla. 3d DCA 1991) (noting that “where a Florida

statute is patterned after a statute of another state, we may look to the judicial

interpretation of the other state as persuasive authority in interpreting the Florida

statute.”)

13 See e.g.

, Flores v. State

, 186 S.W. 3d 398 (Mo. App. 2006) (holding that

mother’s removal of her children from the court-ordered custody of the State and

taking them to Arizona did not constitute kidnapping, as this conduct did not

“interfere with the performance of a governmental or political function”); Spier v.

State

, 174 S.W. 3d 539 (Mo. App. 2005) (same, and acknowledging that this

statute, patterned after the Model Penal Code, was intended for situations of

political terrorism, such as the abduction of witnesses, candidates, party leaders,

officials, and voters); Commonwealth. v. Barfield

, 768 A.2d 343 (Pa. 2001)

(affirming appeals court determination that non-custodial parent’s removal of

children from court-ordered placement in foster care did not support kidnapping21

legislative intent was to proscribe and punish the conduct in this case as false

imprisonment rather than kidnapping. As a result, the kidnapping judgment and

sentence should be reversed and remanded for the purpose of correcting the

judgment to the necessarily lesser-included offense of false imprisonment 14 and for

resentencing on that conviction.

I therefore concur in part and dissent in part.

charge, as such conduct did not “interfere with the performance of any

governmental or political function”, the intent of which was to reach political

terrorism and the like).

14 See Fla. R. Crim. P. 3.620; State v. Sigler

, 967 So. 2d 835 (Fla. 2007)

(construing parallel statutory provision, section 924.34, Florida Statutes, to permit

appellate court to direct trial court to enter judgment for a lesser offense when all

elements of the lesser offense have been determined by the jury). Appellant

conceded, in oral argument, that the evidence presented at trial was sufficient to

sustain a conviction for false imprisonment.