07-0132 WAYNARD DUAN v. STATE OF FLORIDA

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State: Florida

Court: Florida First District Court

Docket No: 07-0132

Case Date: 12/26/2007

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA WAYNARD DUAN, Appellant, v. STATE OF FLORIDA, Appellee. _____________________/ NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D07-0132

Opinion filed December 26, 2007. An appeal from the Circuit Court for Duval County. James L. Harrison, Judge. Nancy A. Daniels, Public Defender, and Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellant. Bill McCollum, Attorney General, and Donna A. Gerace and Giselle Lylen Rivera, Assistant Attorneys General, Office of the Attorney General, Tallahassee, for Appellee.

PER CURIAM. Appellant Waynard Duan argues that his jury conviction for extortion, pursuant to section 836.05, Florida Statutes (2006), should be reversed because the statute does not apply to conduct which injures only the victim's mental well being. We hold that the trial court did not err by denying the appellant's motion for acquittal and

instructing the jury that "[a] threat to a person's mental well-being can constitute a threat of injury to a person within the meaning of extortion. An injury to a person is not required to be a physical injury." I. BACKGROUND Mrs. Bailey testified she first met appellant in December 2005, through a mutual friend, Troy Kelley. The three worked together for America Online and became friends, meeting socially after work or on the weekends. After several months, Mrs. Bailey confided in appellant and Mr. Kelley that her husband, Robert Bailey, was physically abusive; Mrs. Bailey testified she remembered telling appellant and Mr. Kelley details of the abuse, and that she was scared of her husband. In February 2006, Robert Bailey was arrested on domestic violence charges. His trial was scheduled for May 30, 2006. Appellant and Mr. Kelley were subpoenaed as witnesses. Subsequently, in March 2006, Mrs. Bailey explained she and Mr. Kelley had a "falling out." She testified Mr. Kelley confessed he had feelings for her, and told her he wanted to be more than friends; she refused. Their conversation escalated into a heated argument, and ultimately she demanded he leave. Mrs. Bailey testified that after their argument things between them remained tense. She no longer socialized with either Mr. Kelley or the appellant. 2

A week before her husband's trial, Mrs. Bailey received a phone call at home, just before midnight. She recognized appellant's voice as the caller. Appellant told her he knew of several witnesses subpoenaed to testify at the trial, and that he would make sure her husband was acquitted unless she agreed to pay him $2,500. The two arranged to meet in the early morning hours of May 24, 2006, in the parking lot of a grocery store in Duval County. Mrs. Bailey recorded the meeting, which was played for the jury. On the tape, appellant reasserted his threat to make sure Robert Bailey got out of jail; he stated that if Mrs. Bailey did not pay him the $2,500, he and the other witnesses would "walk in there and say we don't know anything." Mrs. Bailey is also heard on the tape, pleading with appellant: "It's not what I want. It's what's right. Plain and simple. It's what's right. He abused me for four . . . years. I cried on my way home every day wondering if he was going to beat me again. It's not what I want. It's what's right." At the end of their meeting, Mrs. Bailey told appellant she needed a few days to think about his offer. Later that day, Mrs. Bailey met with the Assistant State Attorney and Officer Brian Welch, and turned over the recorded conversation. The State subsequently filed the charges for extortion. At the conclusion of the State's case, appellant moved for a judgment of acquittal, arguing the State failed to prove each element of extortion. Specifically, he 3

asserted there was no evidence he physically threatened the victim, that he implied harm to her property, or otherwise that he threatened to reveal a secret or damage her reputation; rather, the evidence only showed the victim suffered a mental injury, or an injury to her emotional well-being. Appellant argued the victim's mental injury was insufficient to meet the elements of extortion, set forth in section 836.05, Florida Statutes. In response, the State conceded that there was no evidence appellant threatened to reveal a secret about the victim, nor was there evidence appellant threatened to reveal information which would damage the victim's reputation. Similarly, the State conceded there was no evidence that appellant threatened injury to Ms. Bailey's property. Finally, and significantly, the State conceded there was no evidence that appellant threatened physical injury. The State argued, however, that the case law supports the conclusion that the crime of extortion encompasses threats which cause the victim mental or emotional injury. Ultimately, the trial judge agreed, and denied appellant's motion. During the conference on jury instructions, appellant renewed his objection to the court's earlier ruling that "injury to the person," as that phrase is used in the extortion statute, does not contemplate a mental injury. The trial court denied appellant's objection. Accordingly, the jury was instructed as follows: 4

Waynard Yinn Duan, the defendant in this case, has been accused of the crime of extortion. To prove the crime of extortion, the State must prove the following four elements beyond a reasonable doubt: (1) Waynard Yinn Duan made a verbal communication to Daina Marie Bailey; (2) by such communication Waynard Yinn Duan unlawfully threatened an injury to the person of Daina Marie Bailey; (3) the threat was made maliciously; (4) the threat was made with the intent to extort money or any pecuniary advantage. A threat to a person's mental well-being can constitute a threat of injury to a person within the meaning of extortion. An injury to a person is not required to be a physical injury. The jury returned a verdict finding appellant guilty of extortion as charged in the information. He was sentenced to one year in prison. Appellant presently appeals his judgment and sentence. II. ANALYSIS In this appeal, appellant asserts the trial court erred in denying his motion for judgment of acquittal, because section 836.05, Florida Statutes, does not include threats of injury to the victim's mental or emotional well being for the purpose of extorting money or other pecuniary gain. Section 836.05, Florida Statutes, provides: Whoever, either verbally or by a written or printed communication, maliciously threatens to accuse another of any crime or offense, or by such communication maliciously threatens an injury to the person, property or reputation of another, or maliciously threatens to expose another to disgrace, or to expose any secret affecting another, or to impute any deformity or lack of chastity to another, with intent thereby to extort money or any pecuniary advantage whatsoever, or with intent to compel the person so threatened, or any other person, to do any act or 5

refrain from doing any act against his or her will, shall be guilty of a felony of the second degree.

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