ALLEN DONALDSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a kidnapping conviction cannot stand if the victim did not obey the assailant's commands, and that refusing a voice demonstration was error, though harmless.
Appellant was convicted of kidnapping and burglary. The victim reported the assailant had an accent, and appellant sought to demonstrate his voice, wh…
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STEVENSON, Judge.
Appellant, Allen Donaldson, was tried by jury and convicted of kidnapping and burglary of a conveyance with assault. Donaldson was sentenced to concurrent twenty year sentences on each count as an habitual felony offender. We affirm in part and reverse in part.
We reverse the conviction and sentence for kidnapping on the authority of Rogers v. State, 660 So. 2d 237, 241 (Fla.1995). There, under circumstances strikingly similar to those in the instant case, our supreme court held that a conviction for kidnapping could not stand where the victim/automobile driver, although threatened with a weapon, never obeyed the assailant’s commands to proceed in certain directions, or to stop the car. We also agree with appellant that the trial court erred in refusing to permit him to display his voice before the jury, unless he took the witness stand. Appellant wanted to demonstrate his voice because the victim had told the police that the assailant had an accent. The cases have held that the display of a physical characteristic, such as tattooed arms or the sound and quality of a human voice, is permissible non-testimonial evidence. United States v. Bay, 762 F. 2d 1314 (9th Cir.1984) (tattooed arms); Macias v. State, 515 So. 2d 206 (Fla.1987)(speak±ng voice). Nevertheless, in view of the overwhelmingly strong evidence of guilt in this case, we find the error harmless. State v. DiGuilio, 491 So. 2d 1129 (Fla.1986).
We have considered the other issues raised on appeal and find no error. Accordingly, we affirm the conviction and sentence for burglary of a conveyance with assault.
Affirmed in part; reversed in part.
GLICKSTEIN, J„ and LUCY C. BROWN, Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Rogers v. State, 660 So. 2d 237 (Fla. 1995)
- MacIas v. State, 515 So. 2d 206 (Fla. 1987)
- United States v. Thaeeb BAY, 748 F.2d 1344 (9th Cir. 1984)