Willie Seth CRAIN, Appellant, v. STATE of Florida, Appellee, 894 So. 2d 59

PER CURIAM. This is a direct appeal of convictions of first-degree murder and kidnapping and a sentence of death. We have jurisdiction. For the reasons that follow, we conclude that the State presented legally sufficient evidence of first-degree felony murder based on kidnapping with intent to inflict bodily harm, and therefore affirm the murder conviction and the sentence of death. I. FACTS AND PROCEDURAL HISTORY Willie Seth Crain, a then fifty-two-year-old Hillsborough County fisherman and crabber, was charged with the September 1998 kidnapping and first-degree murder of seven-year-old Amanda Brown.

At the time, Amanda was three feet, ten inches tall and weighed approximately forty-five pounds. The evidence introduced at trial establishes that on September 9, 1998, Crain’s daughter, Cynthia Gay, introduced Crain to Amanda’s mother, Kathryn Hartman, at a bar in Hillsborough County. Crain and Hartman danced and talked for four hours, until 1:30 or 2:00 in the morning, then went to Hartman’s residence, a trailer located in Hillsborough County, where they remained for approximately thirty minutes. Amanda was spending the night with her father and was not present.

However, two photographs of Amanda and some of her toys were visible in the trailer. Before Crain left, Hartman made it clear to Crain that she wanted to see him again. The next afternoon, September 10, 1998, Crain returned to Hartman’s trailer. Hartman testified that Crain smelled of alcohol and carried a cup with a yellow liquid in it. Amanda was present. Crain began talking to Amanda about her homework. He pulled some money out and told Amanda that if she got her homework right, he would give her a dollar. He eventually gave her two dollars.

Crain and Amanda sat at the kitchen table playing games and working on her homework. At some point during the afternoon, Crain became aware that Amanda had a loose tooth. After wiggling the tooth, Crain offered Amanda five dollars to let him pull the tooth out, but she refused. Hartman testified that the tooth was not ready to be pulled out. Crain remained at Hartman’s residence for approximately one hour. Before he left early in the afternoon, Crain accepted Hartman’s invitation to return for dinner that evening. Crain returned to Hartman’s trailer shortly after 7 p.m.

Crain still smelled of alcohol and carried the same or a similar plastic cup with a colored liquid. After dinner, Hartman and Crain played more games with Amanda. At some point, Crain mentioned that he had a large videotape collection and invited Hartman and Amanda to his trailer to watch a movie. Amanda asked if he had “Titanic,” which she stated was her favorite movie. Crain stated that he did have “Titanic” and Amanda pleaded with her mother to allow them to watch the movie. Hartman was initially reluctant because it was a school night, but she finally agreed.

Crain drove Hartman and Amanda approximately one mile to his trailer in his white pickup truck. They began watching the movie in Crain’s living room but were interrupted by a telephone call from Crain’s sister. Crain said he did not get along with his sister and asked Hartman to speak to her. At the conclusion of a twenty- to twenty-five-minute phone conversation with Crain’s sister, Hartman found the living room unoccupied.

Hartman opened a closed door at the rear of the trailer without knocking, and found Amanda and Crain sitting on the bed in Crain’s bedroom, watching the movie “Titanic.” Both were dressed and Amanda was sitting between Crain’s sprawled legs with her back to Crain’s front. Crain’s arms were around Amanda and he appeared to Hartman to be showing Amanda how to work the remote control. Hartman testified that although she was not overly concerned about what she observed at that time, she nevertheless picked Amanda up and sat Amanda beside her on the bed.

Crain, Hartman, and Amanda then watched the movie together in Crain’s bedroom. Crain testified at trial that they watched the movie in his bedroom because it was the only air-conditioned room in the trailer. At some point in the evening, Amanda and Hartman used Crain’s bathroom together. While they were in the bathroom, Hartman did not notice Amanda bleeding from any location that Hartman could observe. Hartman did notice a blue cover on the back of the toilet seat. Amanda did not use the bathroom at any other time that evening.

At another point in the evening, Hartman asked Crain if he had any medication for pain. Crain offered her Elavil and Valium. He also offered her some marijuana, which she declined. Crain told Hartman that the Elavil would “really knock the pain out” and would make her sleep for a long time. Hartman elected to take five, five-milligram Valium tablets. Crain took one Valium tablet. Eventually, Hartman decided that it was time to leave. Crain drove Hartman and Amanda back to their residence and accompanied them inside. Amanda took a shower.

While checking on Amanda during the shower and helping her dry off and get ready for bed, Hartman did not notice any sores or cuts on Amanda’s body. According to Hartman, Crain suggested that Amanda should not go to sleep with wet hair, so Crain blow-dried Amanda’s hair in Hartman’s bathroom without Hartman present. According to Hartman, when Amanda went to sleep in Hartman’s bed around 2:15 a.m., the loose tooth was still in place and it was not bleeding. According to Hartman, she told Crain, who appeared to be intoxicated at that time, that he could lie down to sober up but she was going to bed.

The time was approximately 2:30 a.m. Within five minutes of Hartman going to bed, Crain entered Hartman’s bedroom and lay down on the bed with Hartman and Amanda. Hartman testified that she neither invited Crain to lie in her bed nor asked him to leave. Crain was fully clothed and Amanda was wearing a nightgown. Amanda was lying between Hartman and Crain. Penny Probst, a neighbor of Hartman, testified that at approximately 12 midnight on September 10-11,1998, she saw a white truck parked immediately behind Hartman’s car in Hartman’s driveway.

In the early morning hours of September 11, Probst observed the truck parked at the side of Hartman’s residence with the lights on and the engine running. Probst heard the truck leave after about five minutes. Hartman slept soundly through the night. When she awoke in her bed alone the next morning, she discovered that Amanda was missing. Hartman testified her alarm clock read 6:12 a.m. when she awoke. Hartman immediately called Crain on his cell phone. At that time, he was at the Courtney Campbell boat ramp in Hillsborough County loading his boat. He told Hartman that he did not know where Amanda was.

Hartman then called the police and reported Amanda’s disappearance. At trial, the State presented the testimony of fisherman Albert Darlington, who witnessed Crain towing his boat into the Courtney Campbell loading area at approximately 6:15 a.m. on September 11, 1998. Darlington testified that Crain pulled up to the boat ramp and backed his boat trailer and truck into the water until the truck’s front tires were halfway submerged. Crain then got out of his truck and boarded his boat wearing what appeared to be a two-tone maroon shirt and dark slacks, and carrying what appeared to be a rolled-up item of clothing.

Crain unhooked his boat and launched it in an overall “odd” manner. Darlington further testified that in the eighteen months prior to Amanda’s disappearance, on two occasions Crain told Darlington that Crain had the ability to get rid of a body where no one could find it. At around 8:30 a.m. on September 11, Detective Mike Hurley located Crain in his boat in Upper Tampa Bay. Crain was dressed in “slickers” (rubber pants fisherman wear over their clothes), a blue t-shirt, and loafers. Crain and Hurley returned to the boat ramp in Crain’s boat. On the ride back, Hurley noticed a small scratch on Crain’s upper arm.

At the boat ramp, Crain removed his slickers, revealing jeans with the zipper down. Hurley took Crain to the police station for questioning. Crain was cooperative but denied having anything to do with Amanda’s disappearance. At the police station, Detective A1 Bracket interviewed Crain. Crain told Bracket that he left Hartman’s house alone at about 1:30 in the morning, went home and accidentally spilled bleach in his own bathroom. Crain claimed that he did not like the smell of bleach, so he spent four hours cleaning his bathroom from about 1:30 to 5:30 in the morning.

Later in the same interview, Crain said he cleaned his bathroom with bleach, as was his custom, then cleaned the rest of the house until 5:30 a.m., at which time he left to go crabbing. During the questioning, Bracket noticed multiple scratches on Crain’s arms and asked Crain how he got them. Crain claimed that he received the scratches while crabbing, but became defensive when Bracket asked him to demonstrate how the scratches were inflicted. Photographs of Crain’s body were taken on the morning of September 11, 1998.

A forensic pathologist testified at trial that the scratches on Crain’s arms probably occurred within a few hours to a day before the photos were taken. Although the pathologist could not identify the source of the scratches with certainty, he testified that all but two of the scratches were more likely to be caused by the fingernails of a seven-year-old child than by another cause. The pathologist also testified that there was one cluster of small gouges on Crain’s arm, and it was more likely that these gouges were caused by the small grasping hand of a child of about seven years of age than by another cause.

During a search of Crain’s residence, Bracket noticed the strong smell of bleach and recovered an empty bleach bottle. Bracket testified that there were obvious signs of grime and dirt around the edges of the bathroom sink. A blue fitted rug that would go around the base of the toilet was found in Crain’s dryer. Another detective applied Luminol, a chemical that reacts both with blood and with bleach, to Crain’s bathroom.

The detective testified that the floor, the bathtub, and the walls “lit up.” Bracket also recovered two pieces of toilet tissue from the inside rim of Crain’s toilet and observed what appeared to be a small blood stain on the seat of the toilet. The tissue pieces, the toilet seat, and the boxer shorts -that Crain was wearing on the morning of September 11, 1998 were collected and analyzed for DNA evidence.

A forensic scientist for the Florida Department of Law Enforcement (FDLE) testified at trial that two blood stains were found on the toilet seat, one blood stain was found on one of the pieces of toilet tissue, and one blood stain was found on the boxer shorts. The FDLE forensic scientist testified that the blood stain on the boxer shorts and one of the stains from the toilet seat contained DNA consistent with the DNA extracted, from personal items belonging to Amanda Brown.

The second stain on the toilet seat and the stain on the tissue contained DNA consistent with a mixture of the DNA profiles of Amanda and Crain. Testimony established that the probability of finding a random match between the DNA profile on the boxer shorts and Amanda’s known DNA profile is approximately 1 in 388 million for the Caucasian population. Detective Hurley supervised an extensive, two-week search for Amanda in Upper Tampa Bay, the land surrounding Upper Tampa Bay (including the Courtney Campbell Causeway), and the land area surrounding the Crain and Hartman residences. Amanda’s body was never found.

The maroon shirt and dark pants that Darlington saw Crain wearing on the morning of September 11, 1998, also were never recovered. At trial, the State introduced the testimony of Linda Miller, Maryann Lee, and Frank Stem. Miller and Lee, who were neighbors of Crain’s daughter, Gay, testified about a conversation with Crain that occurred at Gay’s home on the first Saturday after Amanda’s disappearance.

Miller and Lee both testified that Miller said to Crain, “Don’t worry, you don’t have anything to worry about,” and “Just remember, you didn’t do anything, you didn’t hurt that little girl.” According to the testimony of Miller and Lee, Crain responded, ‘Tes, I did do it; yes, you’re right, I didn’t hurt her, I didn’t do anything.” Gay testified that Crain said, stuttering, “yes, I did ... did ... didn’t do it; yes, you’re right, I didn’t hurt her.” Frank Stem, Crain’s friend and in-law, testified that about one month prior to Amanda’s disappearance, Stem helped Crain lay crab traps in a “special” location.

At' that time, Crain told Stem that other crabbers would steal the crab traps if they knew of the spot. After Amanda disappeared and during a conversation regarding competing crabbers finding his crab traps, Crain told Stem that if Stem revealed the location of the traps “that it Could bury him,” meaning Crain, or that Stem had enough “evidence to bury him.” At the conclusion of the State’s case, Crain moved for judgments of acquittal of first-degree murder and kidnapping based on the insufficiency of the evidence. The trial court denied Crain’s motion.

Crain then testified in his defense and denied that he was involved in Amanda’s death. He stated that he last saw Amanda while she lay sleeping in her mother’s bed in the early morning hours of September 11, 1998.

On the first-degree murder charge in count I, the trial court instructed the jury on the dual theories of premeditated murder and felony murder based on kidnapping “with intent to commit or facilitate the commission of homicide or to inflict bodily harm upon the victim.” On the kidnapping charge in count II, the court instructed the jury that the State had to prove that Crain acted “with intent to commit or facilitate the commission of a homicide.” The jury found Crain guilty of first-degree murder on a general verdict form. The jury also found Crain guilty of kidnapping as charged.

In the penalty phase, the jury unanimously recommended the death sentence. The trial court found three aggravators: (1) prior violent felonies (great weight), (2) the murder was committed during the course of a kidnapping (great weight), and (3) the victim was under the age of twelve (great weight). The court found no statutory mitigators and eight nonstatutory mitigators, and imposed the death sentence.

Crain raises five issues on appeal: (1) the evidence was insufficient to establish that the murder of Amanda was premeditated; (2) the evidence was insufficient to establish an essential element of kidnapping, that Amanda was abducted with the intent to commit or facilitate commission of a homicide; (3) the trial court committed fundamental error by giving different jury instructions in the felony murder and kidnapping counts as to the elements of kidnapping; (4) the kidnapping conviction relied on by the State for an aggravating circumstance was not supported by the evidence; and

(5) Florida’s death penalty scheme is unconstitutional. We address those issues that are necessary to our resolution of this case. Because our analysis regarding the sufficiency of the evidence to sustain Crain’s conviction is dependent upon our determination of whether the felony murder jury instruction constituted fundamental error, we discuss that issue first. II. FELONY MURDER JURY INSTRUCTION The indictment on which Crain was tried and convicted charged him in count I with the premeditated murder of Amanda Brown between September 10 and 11, 1998.

Count II of the indictment charged Crain with kidnapping Amanda on the same dates “with the intent to commit or facilitate the commission of a felony, to wit, homicide” in violation of

section 787.01(l)(a)(2), Florida Statutes (1997). The kidnapping statute found in

section 787.01, Florida Statutes (1997), defines the offense in pertinent part as follows: (l)(

a) 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: 1. Hold for ransom or reward or as a shield or hostage. 2. Commit or facilitate commission of any felony. 3. Inflict bodily harm upon or to terrorize the victim or another person. 4. Interfere with the performance of any governmental or political function.

The trial court instructed the jury on first-degree felony murder in count I as follows: Before you can find the defendant guilty of First Degree Felony Murder, the State must prove the following three elements beyond a reasonable doubt: One, that Amanda Victoria Brown is dead; two, that the death occurred as a consequence of and while Willie Seth Crain was engaged in the commission of Kidnapping; three, that Willie Seth Crain was the person who actually killed Amanda Victoria Brown. “Kidnapping” is the forcible or secret confinement, abduction or imprisonment of another, against that person’s will and without lawful authority.

The Kidnapping must be done with the intent to commit or facilitate the commission of homicide or to inflict bodily harm upon the victim. (Emphasis added.) On the separate kidnapping charge in count II, the court gave the following instruction: Before you can find the defendant guilty of Kidnapping, the State must prove the following three elements beyond a reasonable doubt: One, that Willie Seth Crain forcibly, secretly or by threat confined, abducted or imprisoned Amanda Victoria Brown, a child under the age of 13 years, against her will; two, that Willie Seth Crain had no lawful authority; three, that Willie Seth Crain acted with the intent to commit or facilitate the commission of homicide. (Emphasis added.) Thus, while the trial court instructed the jury only on the intent to commit or facilitate the commission of homicide under

section 787.01(l)(a)(2) as to the kidnapping charge in count II, the trial court instructed the jury that it could find Crain guilty of felony murder based on kidnapping in count I if it found that he abducted Amanda with either the intent to commit or facilitate the commission of homicide or the intent to inflict bodily harm upon her under

section 787.01(l)(a)(3). Crain argues that because kidnapping with intent to commit homicide was the kidnapping specifically charged in count II of the indictment, the trial court erred in instructing the jury on kidnapping with intent to inflict bodily harm as an alternate method of establishing felony murder based on kidnapping. The State asserts that the trial court did not commit reversible error in instructing the jury on the latter element under an indictment charging premeditated murder. On the facts of this case, we agree.

Although Crain asserts on appeal that this instruction was in error, his trial counsel did not object to the instruction when presented with a packet of corrected jury instructions before closing arguments in the guilt phase of the case. With regard to claims of error pertaining to jury instructions, we have held that “[ijssues pertaining to jury instructions are not preserved for appellate review unless a specific objection has been voiced at trial.” Overton v. State, 801 So.2d 877, 901 (Fla.2001); see also Urbin v. State, 714 So.2d 411, 418 n. 8 (Fla.1998).

Because this issue was not preserved by an objection, Crain argues that the felony murder instruction constitutes fundamental error. When constitutional rights are implicated, we have considered issues for the first time on appeal as fundamental error where the error “goes to the foundation of the case or the merits of the cause of action and is equivalent to a denial of due process.” J.B. v. State, 705 So.2d 1376, 1378 (Fla.1998). To determine whether the felony murder instruction based on kidnapping with intent to inflict bodily harm constitutes fundamental error, we must consider two lines of precedent.

First, due process prohibits a defendant from being convicted of a crime not charged in the information or indictment. See Aaron v. State, 284 So.2d 673, 677 (Fla.1973) (“The right of persons accused of serious offenses to know, before trial, the specific nature and detail of crimes they are charged with committing is a basic right guaranteed by our Federal and State Constitutions.”); Long v. State, 92 So.2d 259, 260 (Fla.1957) (“[Wjhere an offense may be committed in various ways, the evidence must establish it to have been committed in the manner charged in the indictment.”); Lewis v.

State, 53 So.2d 707, 708 (Fla.1951) (“No principle of criminal law is better settled than that the State must prove the allegations set up in the information or the indictment.”). Consistent with this principle, the Third District Court of Appeal has held that a kidnapping conviction cannot be sustained on evidence of an intent element not charged in the indictment. See Mills v. State, 407 So.2d 218 (Fla. 3d DCA 1981). The significance of the intent element flows from the status of kidnapping as a specific intent crime. See Sochor v. State, 619 So.2d 285, 290 (Fla.1993).

Modern, statutory kidnapping as codified in

section 787.01, Florida Statutes, differs from its lesser included offense of false imprisonment in its requirement of proof by the State of one of the four intent elements set out in the statute. See Sean v. State, 775 So.2d 343, 344 (Fla. 2d DCA 2000). As stated in Keith v. State, 120 Fla. 847, 163 So. 136 (1935), the “gist of the offense” is the felonious act of a confinement or abduction with a specific intent. Id. at 138-39.

On the other hand, it is well settled that if an indictment charges premeditated murder, the State need not charge felony murder or the particular underlying felony to receive a felony murder instruction. See Woodel v. State, 804 So.2d 316, 322 (Fla.2001); Gudinas v. State, 693 So.2d 953, 964 (Fla.1997); Kearse v. State, 662 So.2d 677, 682 (Fla.1995). We have held that in felony murder situations the notice required by due’ process of law and supplied by the charging document as to other offenses is provided instead by our State’s reciprocal discovery rules and by the enumeration in

section 782.04(l)(a)(2), Florida Statutes (2003), of the felonies on which the State may rely to establish first-degree felony murder. See Kearse, 662 So.2d at 682; see also O’Callaghan v. State, 429 So.2d 691, 695 (Fla.1983). As long as the definition of the underlying felony provided to the jury is sufficiently definite to assure the defendant a fair trial, “[i]t is not necessary ... to instruct on the elements of the underlying felony with the same particularity as would be required if the defendant were charged with the underlying felony.” Brumbley v.

State, 453 So.2d 381, 386 (Fla.1984); see also Gudinas, 693 So.2d at 964 (“We have repeatedly rejected claims that it is error for a trial court to allow the State to pursue a felony murder theory when the indictment gave no notice of the theory.”). In this case, the State relied on kidnapping to support the felony murder theory of first-degree, murder and also charged kidnapping in a separate count of the indictment. However, the instruction on the offense of kidnapping relied upon for felony murder and the instruction on the separate count of kidnapping do not correspond.

In the absence of an objection to these divergent instructions, the question becomes whether it was fundamental error for the trial court to give an instruction on the kidnapping underlying felony murder in count I different from the instruction given on kidnapping as charged in count II.

We resolve this issue by examining the rationale behind case law allowing instruction on felony murder based on an indictment charging premeditated murder, by looking to the instruction given to Crain’s jury on the relationship between the two counts, and finally by looking for any indications in the record that Crain was surprised or prejudiced by the divergent instructions. First, as we have previously explained, the State need not charge felony murder in a first-degree murder indictment.

Second, separate treatment of felony murder and the underlying felony comports with the standard jury instructions which were given in this case: A separate crime is charged in each count of the indictment and while they’ve been tried together, each crime and the evidence applicable to it, must be considered separately and a separate verdict returned as to each. A verdict of guilty or not guilty as to one crime, must not affect your verdict as to the other crime charged. The jury did not request clarification of the felony murder or kidnapping instructions.

Accordingly, we assume that the jury understood and properly applied the instructions, and independently assessed Crain’s guilt on each count. See Burnette v. State, 157 So.2d 65, 70 (Fla.1963) (stating that an appellate court must assume that a juror, if properly instructed, will comply with the obligations of the oath and render a true verdict according to the law and the evidence); see also Sutton v. State, 718 So.2d 215, 216 & 216 n. 1 (Fla. 1st DCA 1998), and cases cited therein, (“applying the well-established presumption that juries follow trial court instructions”).

Third, we note that Crain’s argument on appeal that the indictment gave him constitutionally insufficient notice of felony murder resting on kidnapping with intent to inflict bodily harm is not compelling on these facts. The record contains no indication that Crain was surprised or otherwise prejudiced at trial by the felony murder instruction. The proposed jury instructions provided to Crain’s attorney included the alternative of intent to inflict bodily harm as an element of felony murder based on kidnapping.

Not only did defense counsel fail to object or otherwise claim surprise, but Crain’s attorney specifically referred to the wording of the felony murder instruction in his closing argument. Moreover, Crain’s defense at trial in this case was that he was in no way responsible for the disappearance and death of Amanda, not that he lacked the requisite intent. On this record, we cannot conclude that there was any unfair surprise, failure of notice, or denial of due process as to the felony murder instruction on kidnapping.

In light of these considerations, we conclude that the trial court did not commit fundamental error in instructing the jury on “intent to inflict bodily harm” as an alternative to “intent to commit homicide” in defining the underlying felony of kidnapping. In light of this conclusion, we next determine whether the evidence is sufficient to sustain Crain’s convictions. III. SUFFICIENCY OF EVIDENCE A.

Applicable Law In cases in which the evidence of guilt is wholly circumstantial, it is the trial judge’s task to review the evidence in the light most favorable to the State to determine the presence of competent evidence from which the jury could infer guilt to the exclusion of all other inferences. See State v. Law, 559 So.2d 187, 189 (Fla.1989). A reviewing court must assess the record evidence for its sufficiency only, not its weight. We explained in Tibbs v.

State, 397 So.2d 1120 (Fla.1981), aff'd, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982): The weight and the sufficiency of evidence are, in theory, two distinct concepts most often relevant at the trial court level. Sufficiency is a test of adequacy. Sufficient evidence is “such evidence, in character, weight, or amount, as will legally justify the judicial or official action demanded.” In criminal law, a finding that the evidence is legally insufficient means that the prosecution has failed to prove the defendant’s guilt beyond a reasonable doubt.

Weight, at least in theory, is a somewhat more subjective concept. The “weight of the evidence” is the “balance or preponderance of evidence.” It is a determination of the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other. As a general proposition, an appellate court should not retry a case or reweigh conflicting evidence submitted to a jury or other trier of fact.

Rather, the concern on appeal must be whether, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial, competent evidence to support the verdict and judgment. Legal sufficiency alone, as opposed to evidentiary weight, is the appropriate concern of an appellate tribunal. Id. at 1123 (citations and footnotes omitted) (quoting Black’s Law Dictionary 1285,1429 (5th ed.1979)). Although the jury is the trier of fact, a conviction of guilt must be reversed on appeal if it is not supported by competent, substantial evidence.

See Long v. State, 689 So.2d 1055, 1058 (Fla.1997). In this regard, we have explained: A judgment of conviction comes to this Court with a presumption of correctness and a defendant’s claim of insufficiency of the evidence cannot prevail where there is substantial competent evidence to support the verdict and judgment. The fact that the evidence is contradictory does not warrant a judgment of acquittal since the weight of the evidence and the witnesses’ credibility are questions solely for the jury. It is not this Court’s function to retry a case or reweigh conflicting evidence submitted to the trier of fact.

Donaldson v. State, 722 So.2d 177, 182 (Fla.1998) (quotation marks and citations omitted). The State acknowledges that the evidence of intent in this case is entirely circumstantial. In Law, this Court reiterated the standard of review in circumstantial evidence cases: “Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” 559 So.2d at 188 (citing McArthur v. State, 351 So.2d 972 (Fla.1977), and Mayo v. State, 71 So.2d 899 (Fla.1954)). B.

Corpus Delicti Crain assumes for the purposes of argument that there is sufficient evidence to support the jury conclusion that Amanda is dead and that he killed her. However, in capital cases, this Court independently assesses the sufficiency of the evidence to determine if it is legally sufficient. See Mansfield v. State, 758 So.2d 636, 649 (Fla.2000). Thus, we must determine whether there was sufficient evidence to establish that the alleged victim is dead and that the defendant killed her.

Despite the inability of authorities to find the victim’s body, there is competent, substantial evidence, inconsistent with any reasonable hypothesis of innocence, to establish that Amanda is dead and that Crain killed her, establishing two of the three essential elements of first-degree murder. See Fla. Std. Jury Instr. (Crim.) 7.2. These elements subsume the corpus delicti for murder, which consists of the victim’s death via the criminal agency of another. See Meyers v. State, 704 So.2d 1368, 1369 (Fla.1997).

The corpus delicti of murder can be proven circumstantially, even without any evidence of the discovery of the victim’s body. See id.; see also Bassett v. State, 449 So.2d 803, 807 (Fla.1984). In this case, the extraordinary unlikelihood that a seven-year-old child would voluntarily disappear from her sleeping mother’s side in the middle of the night and remain alive but never be seen or heard from again is strong circumstantial evidence of her death. See Epperly v.

Commonwealth, 224 Va. 214, 294 S.E.2d 882 (1982) (establishing corpus delicti based on evidence of eighteen-year-old victim’s character, traits, habits, and relationships, which negated theories of suicide, natural death, accidental death, justifiable, or excusable homicide, or continuing life in absentia).

In addition to the abrupt and permanent disappearance of a young child supporting the inference that Amanda is dead, there is also evidence that Amanda was last seen alive in the presence of Crain, that Amanda’s blood was found on Crain’s boxer shorts, and that scratch marks consistent with a young girl’s fingernails were found on Crain’s body.

Finally, although not independently determinative, we note that Crain’s oddly targeted bleaching of his bathroom in the middle of the night along with his unusual behavior the next morning support a conclusion that Crain’s actions with Amanda the previous evening were unlawful and resulted in her death. Thus, we conclude that the totality of these circumstances constitutes substantial, competent evidence from which the jury could reasonably have excluded all inferences other than that Amanda is dead and that Crain killed her. Cf.

Meyers, 704 So.2d at 1370 (concluding that the State presented sufficient circumstantial evidence of corpus delicti in case involving disappearance of fourteen-year-old victim, and evidence of injuries to defendant including fingernail scratches). C. First-Degree Murder The jury found Crain guilty of first-degree murder on a general verdict form that did not specify whether the verdict was based on premeditated or felony murder.

A general guilty verdict rendered by a jury instructed on both first-degree murder alternatives may be upheld on appeal where the evidence is sufficient to establish either felony murder or premeditation. See Jones v. State, 748 So.2d 1012, 1024 (Fla.1999); Mungin v. State, 689 So.2d 1026, 1029-30 (Fla.1995). We conclude that the evidence is sufficient to establish first-degree felony murder based on kidnapping with the intent to inflict bodily harm. Crain, a fifty-two-year-old man who met Amanda at her mother’s house on the day before she disappeared, showed an immediate interest in the child.

Crain played games with Amanda and gave her money for her homework, drew with her, and told her about his collection of movies. This initial, apparently benign conduct led to several instances of closer contact, including Crain and Amanda disappearing into his bedroom to watch “Titanic,” Hartman subsequently discovering Amanda sitting between Crain’s legs, and Crain insisting on blow-drying Amanda’s hair. Perhaps most significantly, the last time Hartman saw Amanda, she was sleeping next to Crain in Hartman’s bed.

Although Hartman did not prevent any of these close contacts, it is reasonable for the jury to have inferred from the evidence of Crain’s conduct that Crain had taken steps to ingratiate himself to Amanda. In addition, the evidence showed that on the night of Amanda’s disappearance, a witness living near Amanda’s trailer saw a vehicle that matched the description of Crain’s truck with its lights on and engine running for approximately five minutes before she heard the truck being driven away.

From the evidence of Crain’s interest in Amanda, the fact that he was present when Amanda was last seen asleep in her mother’s bed, Hartman’s testimony that she slept through the night, and the neighbor’s observations of Crain’s truck, the jury could reasonably have inferred to the exclusion of all other hypotheses that Crain .took Amanda from the trailer without the consent of her mother. This conduct establishes an unlawful confinement under the kidnapping statute.

See § 787.01(l)(b) (“Confinement of a child under the age of 13 is against her or his will within the meaning of [kidnapping] if such confinement is without the consent of her or his parent or legal guardian.”). However, as noted above, in order to establish a kidnapping the State must also prove that the unlawful confinement occurred with a specific intent.

In this regard we note that the Second District Court of Appeal has affirmed a conviction of attempted kidnapping with intent to inflict bodily harm or terrorize the victim in reliance on evidence similar to that in this case, specifically that the defendant took a young, sleeping child from his bed in the middle of the night. See Sean, 775 So.2d at 344. Here, in addition to circumstances similar to Sean, the State also presented evidence that blood consistent with Amanda’s DNA was found on Crain’s boxer shorts and taken from the toilet tissue found in Crain’s toilet bowl.

Further, multiple scratches and one cluster of gouges were observed and photographed on Crain’s arms. All but two of the scratches were more likely to have been caused by the fingernails of a seven-year-old child than by any other cause. The cluster of small gouges was more likely to have been caused by a small grasping hand consistent with that of a seven-year-old child than by another cause. Based on this evidence, we conclude that the State presented legally sufficient evidence of a kidnapping with the intent to inflict bodily harm.

The DNA blood evidence linked to Amanda that was found on Crain’s boxer shorts tends to establish that Amanda bled while Crain was wearing his boxer shorts. Moreover, the DNA evidence indicating a mixture of blood from Crain and Amanda found on the toilet seat and tissue in Crain’s bathroom establishes that Amanda and Crain both bled at some point during the kidnapping. When considered in light of the DNA evidence, the scratch and gouge marks on Crain’s arms are indicative of a struggle between Crain and Amanda.

We note that at the time of her death Amanda was three feet ten inches tall and weighed approximately forty-five pounds. Crain was a fifty-two-year-old man of normal height and weight, engaged in a physically demanding profession. Combined with the disparate height and weight, we conclude that the evidence that a struggle occurred between Amanda and Crain which resulted in both parties’ blood loss and numerous scratches and gouges to Cram’s arms is a compelling indication of Crain’s intent to inflict bodily harm on Amanda.

Our conclusion in this case is consistent with a Virginia Supreme Court decision on analogous facts. In Epperly, the Supreme Court of Virginia considered whether, in the absence of a body and a confession, the evidence was sufficient to support a jury verdict of first-degree premeditated murder. In that case, the defendant and the victim met at a bar and went to a lake house that belonged to a friend of the defendant. The victim’s sister reported her missing the next evening. The police ultimately arrested the defendant for her murder despite the fact that the victim’s body was never found.

In affirming the defendant’s conviction for first-degree murder the Virginia Supreme Court noted that a “spattering of tiny droplets of blood through two rooms, the bloodstained clothing, the broken ankle bracelet, the large bloodstain on the carpet, and the disparity of size and strength between [the victim] and the defendant are all circumstances from which the jury could properly infer that she was subjected to a savage beating, resulting in her death.” Epperly, 294 S.E.2d at 892.

In this case, we determine that the circumstantial evidence supports a verdict of first-degree murder based on felony murder with the underlying felony being kidnapping with intent to inflict bodily harm. The evidence of an abduction, the drops of blood, the DNA evidence, the disparity of size and strength, and the evidence of a struggle between Amanda and Crain are all circumstances from which a jury could properly infer, to the exclusion of any reasonable hypothesis of innocence, that Crain abducted and intentionally harmed Amanda before her death.

The fact that we cannot pinpoint when the actual bodily harm and subsequent killing occurred in relation to the time Crain first kidnapped Amanda does not undermine this conclusion. See Van Gotum v. State, 569 So.2d 773, 776 (Fla. 2d DCA 1990) (holding that the continuing unlawful confinement and the intent to commit grand theft existed simultaneously and involved the same victim and established a confinement with the intent to commit theft). It is sufficient if the State establishes that the unlawful confinement and the specific intent at some point existed simultaneously and' involved the same victim. See id.

Accordingly, we find sufficient evidence of a killing in the course of a kidnapping with the intent to inflict bodily harm. On this basis, we affirm the first-degree murder conviction. D. Kidnapping We next address whether the evidence is legally sufficient to support the conviction of kidnapping with the intent to commit a homicide as charged in count II of the indictment. Unlike the murder charge, which subsumes all valid felony murder theories, the State cannot rely on the unpled alternative of intent to inflict bodily harm as to this count.

The State argues that the luminol evidence demonstrates that a large amount of blood was spilled in the bathroom and therefore establishes that the kidnapping was committed with an intent to kill. The State’s argument on this point invites this Court to stack inferences, which we decline to do. As we stated in Miller v.

State, 770 So.2d 1144, 1149 (Fla.2000), “the circumstantial evidence test guards against basing a conviction on impermissibly stacked inferences.” The reaction to luminol in Crain’s bathroom may support an inference that Crain was attempting to cover something up rather than cleaning his bathroom in the middle of the night. However, there is no evidence from which the jury could have inferred that there was ever a substantial quantity of blood indicative of a prolonged attack and, therefore, a killing with premeditated intent.

Although the DNA blood evidence found on the tissue and the toilet seat in Crain’s bathroom independently establishes that Amanda’s blood was deposited in Crain’s bathroom, it does not establish how much she bled, what caused her to bleed, or where she was killed. Because of the presence of bleach, it is impossible to tell how much of the luminol “glow”---if any — -was attributable to blood and how much was attributable to bleach.

To support its theory that the murder was committed with premeditation, the State also relies on evidence that Crain left his truck running outside Hartman’s trailer on the night of Amanda’s disappearance, exhibited unusual behavior the next morning, and attempted to conceal his crime. These facts evince a plan to remove Amanda from her mother’s residence and to eliminate all evidence of her presence at his residence, but do not support an inference that Crain’s intent at any specific point in time was to kill her. See generally Norton v.

State, 709 So.2d 87, 93 (Fla.1997) (“Efforts to conceal evidence of premeditated murder are as likely to be as consistent with efforts to avoid prosecution for any unlawful killing.”); Hoefert v. State, 617 So.2d 1046, 1049 (Fla.1993); see also Smith v. State, 568 So.2d 965, 968 (Fla. 1st DCA 1990). The impossibility of better reconstructing the circumstances of Amanda’s death leaves us unable to conclude that the State presented legally sufficient evidence of a specific intent to kill.

Therefore, we conclude that competent, substantial evidence does not exist to support the jury verdict of kidnapping with intent to commit homicide. Accordingly, pursuant to

section 924.34, Florida Statutes (1997), we reverse the judgment of guilt of kidnapping and direct the trial court on remand to enter judgment for false imprisonment, and to resentence Crain accordingly. IV. PROPORTIONALITY OF DEATH SENTENCE Although Crain does not raise the proportionality of his death sentence as a separate issue on appeal, this Court has an independent duty to perform a proportionality review of all death sentences. See Rimmer v. State, 825 So.2d 304, 331 (Fla.2002). Proportionality review “is not a comparison between the number of aggravating and mitigating circumstances.” Terry v.

State, 668 So.2d 954, 965 (Fla.1996) (quoting Porter v. State, 564 So.2d 1060, 1064 (Fla.1990)). Rather, our proportionality review requires us to consider the totality of the circumstances in each case, and to compare these circumstances with other capital cases to determine whether death is warranted. See Rimmer, 825 So.2d at 331; Porter, 564 So.2d at 1064.

In this case, Crain’s death sentence was supported by three aggravating factors found by the trial court: the murder was committed during the commission of a felony (kidnapping), the defendant was convicted of prior violent felonies (sexual battery and aggravated child abuse), and the victim was under the age of twelve. The trial court rejected statutory mitigating factors, and the nonstatutory mitigation is far from compelling. First, the trial court’s finding of nonstatutory mental health impairment was based on the fact that Crain was a pedophile and substance abuser.

Second, as noted by the State, the trial court’s finding that Crain had the capacity to form loving relationships with his children was a “charitable” finding as none of Crain’s children testified during the penalty phase and the defense filed a motion in limine prior to trial to prohibit the State from eliciting testimony concerning Crain’s sexual abuse of his own children. The trial court also found that Crain had an abusive childhood, was deprived of educational benefits, and had a good prison record.

In his fourth issue, Crain asserts that the trial court erred in relying on the aggravator of murder in the course of a felony under

section 921.141(5)(d), Florida Statutes (1997), because the evidence of the crime of kidnapping is legally insufficient. Assuming without deciding that Crain is correct in light of this Court’s reduction of the separate kidnapping conviction to false imprisonment, we conclude that any error in finding the “murder in the course of a felony” aggravator is harmless beyond a reasonable doubt. This case is analogous to Geralds v.

State, 674 So.2d 96, 104 (Fla.1996), in which this Court concluded that the erroneous finding of the “cold, calculated, or premeditated” aggra-vator was harmless based on two valid aggravators — that the murder was heinous, atrocious, or cruel, and that the murder was committed during a robbery/burglary — three mitigators that the trial court gave little weight, and a unanimous death recommendation.

Moreover, we conclude that any error in finding the aggravator of murder in the course of a felony does not affect our proportionality review based on the weight of the two remaining valid aggravators under the circumstances of this case. In making this determination, we remain mindful that proportionality review is not a simple comparison of aggravators and mit-igators, and we look to, other capital cases involving child victims under twelve in which we have found death sentences proportional. In Lukehart v.

State, 776 So.2d 906 (Fla.2000), this Court affirmed a death sentence for the murder of a five-month-old child. We determined that the murder was “significantly aggravated by the existence of the prior conviction for felony child abuse,” in which Lukehart caused a closed-head injury to his girlfriend’s eight-month-old daughter by shaking her, and concluded that the “prior felony aggravator is an exceptionally weighty aggravating factor under the circumstances of the present case.” Id. at 926. In Stephens v.

State, 787 So.2d 747 (Fla.2001), we found a death sentence proportional for the murder of a child aged three years, four months. We concluded that “like Luke-hart, Stephens’ prior violent felony was given great weight and is similar to the events which led to the present murder.” Id. at 760. This Court further observed that the record demonstrated that the defendant “was indifferent to the fate of [the] helpless child” and, therefore, concluded that the death penalty was proportional under the circumstances. Id. at 760.

During the penalty phase in this case, the State submitted - copies of judgments and sentences for five counts of sexual battery and one count of aggravated child abuse. The State also offered the testimony of three child victims of Crain’s previous sexual assaults. The three female victims all testified that Crain began abusing them when they were between the ages of seven and nine years of age. One of the victims endured Crain’s repetitive abuse on a monthly basis for five years. The victims also testified that Crain threatened them with extensive bodily harm or death should they reveal his abuse to anyone.

Thus, as we found in Lukehart, the prior felony aggravator is an exceptionally weighty aggravating factor under the circumstances of the present case, and as we concluded in Stephens, Crain’s history of victimization of children similar in age to the victim in this ease increases the magnitude of the prior violent felony aggravator. In light of the strength of the aggravating factors, the relatively weak mitigation, and our affirmance of death sentences in comparable eases, we conclude that the death penalty is a proportional punishment. Y.

CONSTITUTIONALITY OF DEATH PENALTY In a supplemental brief, Crain raises the issue of the constitutionality of Florida’s death penalty scheme in the wake of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). This Court addressed the contention that Florida’s capital sentencing scheme violates the United States Constitution under Appren-di and Ring in postconviction appeals in Bottoson v. Moore, 833 So.2d 693 (Fla.2002), and King v. Moore, 831 So.2d 143 (Fla.2002), and denied relief.

We have also denied relief in direct appeals where, as in this case, the trial judge has found the aggravating factor of previous conviction of a violent felony. See Duest v. State, 855 So.2d 33, 49 (Fla.2003), cert denied, 541 U.S. 993, 124 S.Ct. 2023, 158 L.Ed.2d 500 (2004); see also Doorbal v.

State, 837 So.2d 940, 963 (Fla.) (stating that prior violent felony aggravator based on contemporaneous crimes charged by indictment and on which defendant was found guilty by unanimous jury “clearly satisfies the mandates of the United States and Florida Constitutions”), cert. denied, 539 U.S. 962, 123 S.Ct. 2647, 156 L.Ed.2d 663 (2003). Additionally, the advisory sentence of death in this case was by a unanimous vote. In Anderson v.

State, 863 So.2d 169, 189 (Fla.2003), cert. denied, 541 U.S. 940, 124 S.Ct. 1662, 158 L.Ed.2d 363 (2004), we pointed to the unanimous death recommendation as well as a prior violent felony aggravator in rejecting an Appren-di/Ring claim in direct death appeal. We have also rejected Apprendi/Ring claims in other direct death appeals involving unanimous death recommendations. See Conahan v. State, 844 So.2d 629, 642 n. 9 (Fla.), cert. denied, 540 U.S. 895, 124 S.Ct. 240, 157 L.Ed.2d 172 (2003); Chavez v. State, 832 So.2d 730, 767 (Fla.2002), cert. denied, 539 U.S. 947, 123 S.Ct. 2617, 156 L.Ed.2d 637 (2003).

Accordingly, we conclude that Crain is also not entitled to relief. VI. CONCLUSION For the foregoing reasons, we affirm the conviction of first-degree murder and sentence of death in this case, and reduce the conviction of kidnapping to false imprisonment. It is so ordered. PARIENTE, C.J., and ANSTEAD, QUINCE, and CANTERO, JJ., concur. QUINCE, J., specially concurs with an opinion, in which PARIENTE, C.J., and CANTERO, J., concur. LEWIS, J., concurs in result only with an opinion. WELLS, J., concurs in part and dissents in part with an opinion. . See art. V, § 3(b)(1), Fla. Const. .

At the time she took the Valium, Hartman had a twelve-year addiction to pain pills. Crain testified at trial that he was unaware of the addiction. . Michelle Rogers, another neighbor of Hartman, testified that she saw a light blue truck parked behind Hartman's car at approximately 10:30 p.m. on September 10, 1998. Rogers further testified that she saw a light blue truck positioned beside the residence at 10:45 p.m. on September 10, 1998.

Rogers stated that she left her residence around 11 p.m. and when she returned' at 2:30 a.m., she observed the truck parked on the side of the residence with the lights on. .It is undisputed that these comments occurred during a discussion between Crain and Darlington regarding Crain’s disagreements with other crabbers about Crain’s claims that they had stolen from Crain’s crab traps. . Crain testified at trial that he left Hartman’s residence between 2:30 and 3:30 in the morning. .

Crain testified at trial that he cleaned his bathroom with bleach at around 3 a.m. and left to go crabbing between 5 a.m. and 6 a.m. . The blood stains were very small. The blood stain on the tissue was not visible to the human eye. When a North Carolina laboratory performed an independent analysis on V the blood evidence, its expert could not find enough DNA on the tissue stain to corroborate the testimony of the FDLE forensic scientist ' identifying Crain and Amanda as the sources of the tissue stain. . Stem's daughter was married to Cram’s son. .

The nonstatutory mitigators the trial court found were: (1) nonstatutory mental health impairment (some weight); (2) mental problems exacerbated by the use of alcohol and drugs, both legal and illegal (some weight);

(3) Crain was an uncured pedophile (some weight);

(4) Crain had a history of abuse and an unstable home life (modest weight);

(5) Crain was deprived of the educational benefits and social learning that one would normally obtain from public education (modest weight);

(6) Crain had a history of hard, productive work (some weight);

(7) Crain had a good prison record (modest weight); and

(8) Crain had the capacity to form loving relationships (modest weight). . In discussing the anticipated instruction on felony murder, counsel stated: They still have to prove under the felony murder theory, they have to prove that Amanda Victoria Brown is dead and that she died — the death occurred as a consequence of and while Willie Seth Crain was engaged in the commission of kidnapping. The instruction further says that the kidnapping must be done with the intent to commit or facilitate the commission of homicide or to inflict bodily harm upon the victim. .

We do not address whether the felony murder instruction given in this case would have constituted harmful error had Crain preserved the issue with a proper objection. . Crain has not asserted in his appeal that the evidence was insufficient to prove either that Amanda is dead or that he killed her. . Justice Wells' partially dissenting opinion in this case includes the assertion that this case is distinguishable from Meyers only in the absence of a confession, which Justice Wells deems fatal to Crain’s conviction.

However, unlike Meyers, in which the defendant's confession was necessary to establish that the victim’s death was caused by the defendant's criminal act, see 704 So.2d at 1370, in this case the circumstantial and physical evidence was such that the jury could lawfully have concluded that it was the defendant and no one else who committed the killing. . Crain asserted at trial and on appeal that he obtained the scratch marks while crabbing.

Relying on testimony from the medical examiner that he could not determine with any degree of certainty whether the scratches were caused by fingernails or crab traps, Justice Lewis states in his separate opinion that "[t]he State did not offer definitive evidence that Crain's version of the facts was not true” regarding the origin of the scratch marks. See infra at 86. However, we note that the circumstantial evidence standard requires this Court to take every inference in the light most favorable to the State. See Law, 559 So.2d at 189.

The State offered evidence that Cram's version of the events was untrue — namely the medical examiner’s testimony that the scratches were more likely to have been caused by the fingernails of a seven-year-old girl than by a crab trap. Applying the review standard for circumstantial evidence to this evidence, we conclude that the jury could have properly rejected Crain’s version that the scratches came from crabbing. . The October 1, 1998, arrest report reflects that Crain was six feet tall and weighed 150 pounds. .

Because we determine that the evidence is sufficient to support a first-degree felony murder conviction, we decline to directly address Crain's argument that the evidence is insufficient to establish first-degree premeditated murder. Any error in instructing the jury on premeditated murder based on insufficient evidence of premeditation is necessarily harmless.

See Jones, 748 So.2d at 1024 (“[E]ven if the evidence does not support premeditated murder, any error in charging the jury on that theory is harmless where the evidence supports a conviction for felony murder, which has also been charged.”); Mungin, 689 So.2d at 1029-30 (concluding that error in instructing on felony murder was "clearly harmless” where evidence supported conviction for felony murder and the jury properly convicted defendant of first-degree murder on this theory). .

Section 924.34 provides: When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense. . False imprisonment does not require specific intent. See State v. Sanborn, 533 So.2d 1169, 1170 (Fla.1988) (concluding that the general intent of false imprisonment is included in the specific intent of kidnapping).

Section 787.02, Florida Statutes (1997), provides in pertinent part: (l)(

a) The term "false imprisonment” means forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will. (

b) Confinement of a child under the age of 13 is against her or his will within the meaning of this

section if such confinement is without the consent of her or his parent or legal guardian.