Kidnapping in Florida: Awareness of the Victim’s Presence

On May 26, 2011, the Florida Supreme Court issued an opinion in Delgado v. State (SC09-2030). This case revolves around Rogelio Delgado and perhaps the unintended consequences that can follow from stealing a vehicle.

In this case, Mr. Delgado was convicted of burglary, grand theft of motor vehicle, and kidnapping from actions stemming from a 2006 incident.  The owners of an automobile parked the truck at a furniture store, leaving a two year old child unattended and fast asleep in a car seat located in the the back seat. (The truck had an extended-cab.)  While the owners were in the store, the truck was left running and the keys in the ignition.  During this time, Delgado and a co-defendant jumped into the vehicle and drove away.  The owners, upon realizing the truck had been stolen, called 911, and within 20-30 minutes, the truck was located.  The engine was left running, the doors unlocked, and the child unharmed. However, the front-seat area of the truck had been ransacked, the radio had been removed and several items had been taken or damaged.  Although there were no eyewitnesses to the auto theft, the defendant’s actions were caught on surveillance video, and they were subsequently apprehended.

Delgado went to trial where he was found guilty of his charges.  He was sentenced to 30 years prison for the burglary, time-served on the theft charge, and mandatory life in prison for the kidnapping as a PRR offender.

On appeal, Delgado argued the State did not present sufficient evidence to get a conviction on the kidnapping charge.  He lost at the DCA level, however, when his case was reviewed by the Florida Supreme Court, they agreed with Delgado. End result: kidnapping conviction vacated due to to insufficient evidence.

The important issue was whether a defendant commits the crime of kidnapping with the intent to commit or facilitate an underlying felony where the evidence produced at trial fails to establish that he or she had knowledge of the victim‟s presence before or during the execution of that underlying felony. (Or in other words, did the State prove Delgado knew the child was in the back seat before or during the execution of the auto theft?)

In this particular case, the detective’s testimony on which the State relied demonstrated that it was difficult to see the child unless, once inside the vehicle, one were to look into the backseat or move the front seat forward. The Supreme Court stated:

There is simply no evidence in the record that the child awoke, cried, or kicked the front seat of the vehicle’s interior, thereby alerting Delgado to her presence, before or during the auto theft.

In its holding, the Supreme Court said:

…because the State failed to produce sufficient evidence demonstrating Delgado’s awareness of the child before or during his execution of the underlying felony of auto theft, the statutory requirements under section 787.01(1)(a)2. were not met.

It is important to note that this case does not say that the State can NEVER prove awareness of the victim’s presence in a kidnapping case.  In this case, the circumstances were not enough.  However, in a child kidnapping case, judges will want to uphold the conviction if they legally can.  In fact, there were three judges who dissented in this ruling, meaning Delgado came down to a close 4-3 decision. If the circumstances are right, convictions can still be obtained.

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