The State-prosecuted a bevy of Manatee County residents based on alleged street gang activity. After most of the defendants entered into plea agreements, Jimmy Sanchez was tried alone. Sanchez was charged with racketeering, § 895.03(3), Fla. Stat. (2006), and conspiracy to commit racketeering, § 895.03(4). During his trial, Sanchez sought a judgment of acquittal on both charges, but the court denied his motion. The jury convicted him of both crimes. We agree with Sanchez’s assertion that the evidence was insufficient to support his convictions. Therefore, we reverse and remand with directions to discharge him.
The original information charged that Sanchez committed racketeering and conspiracy to commit racketeering by engaging in a pattern of racketeering activity evidenced by two predicate acts: possession of a concealed weapon and aiding the escape of Ben Garcia, another person charged in the information. See § 895.02(l)(a)(24), (38) (defining the predicate acts as “racketeering activity”); § 895.02(4) (defining “[pjattern of racketeering activity” as “engaging in at least two incidents of racketeering conduct”). The information was later amended to allege robbery, murder, and aggravated assault as additional predicate acts. See § 895.02(l)(a)(21), (22), (28). These predicate offenses were based on allegations that Sanchez acted as a principal to code-fendant Aurelio Ibarra’s commission of a robbery during which Ibarra killed a man, and that Sanchez was a principal to Ibar-ra’s commission of an aggravated assault.
Sanchez’s motion for judgment of acquittal asserted that the evidence was insufficient to prove any of the alleged predicate acts. The trial court entered a written order denying Sanchez’s motion. However, in her oral remarks, the judge expressed some reservations.
I will tell you that there were some close issues with some of the predicate offenses, and the one that probably concerned me the most was the aiding an escape. And so while I have denied the motion on the aiding escape, I’m going to propose to you all, and let you talk about it, a suggestion on the jury instructions, and that is that we outline in the jury instructions the special interrogatories for the jury to elect which, if any, or all, predicate offenses they would base their decision on, if there were a guilty in this case.
And the reason for that is if there is a guilty verdict, and if I am incorrect, there would be no guidance at all for the attorneys as to what the decision of the jury was. So if, for example, I’m incorrect on aiding an escape, and that were one of the predicate offenses the jury had found defendant guilty of, we wouldn’t know that, and then necessarily there would have to be another trial in this ease.
Thus, the jurors were given an interrogatory verdict in which they were to indicate which, if any, predicate offenses were proved under both the racketeering and the conspiracy to commit racketeering charges. Ultimately, the jurors determined that the State proved just two predicate offenses: possession of a concealed weapon and aiding an escape.
The substantive racketeering charge.
To convict an accused of racketeering under section 895.03(3), the State must prove that he engaged in two incidents of racketeering conduct. In this case, Sanchez’s conviction on the racketeering charge rested on the jury’s finding that he committed the predicate offenses of possessing a concealed weapon and aiding an escape. However, we conclude that the trial judge’s reservations about the latter charge were well taken; the evidence was insufficient to prove that Sanchez aided an escape. Therefore, his racketeering conviction must be reversed. Cf. Mese v. State, 824 So.2d 908, 911 n. 2 (Fla. 3d DCA 2002); Di Sangro v. State,
When considering this issue we have viewed the evidence in a light most favorable to the State. See Pagan v. State,
When cross-examined, the sergeant acknowledged that Garcia had not escaped. But on redirect he opined that if the deputy had not been positioned at the side of the house, Garcia would have “gotten away.”
It is a third-degree felony under section 843.12, Florida Statutes (2006), if a person “knowingly aids or assists a person in escaping, attempting to escape, or who has escaped, from an officer or person who has or is entitled to the lawful custody of
To prove the “knowing” element of the crime, the State had to demonstrate both that Sanchez knew the police were attempting to serve an arrest warrant and that he knew Garcia was attempting an escape. Cf. King,
As for Garcia’s purported “escape,” the only evidence was that he went inside the residence and then was heard in the backyard, presumably within the curtilage of his home. The State offered nothing to suggest that Garcia knew that a warrant had been issued for his arrest, that Garcia was trying to escape from his residence, or that Sanchez had any inkling that Garcia was trying to avoid an arrest. In fact, the testimony that Garcia responded to the deputy’s call by stepping forward rather than running away belies any implication that he was attempting an escape.
Without doubt, Sanchez lied to law enforcement. The sergeant saw Sanchez and Garcia walk into the house together, but Sanchez denied that he had seen his friend. But merely giving the police false information generally will not support a criminal conviction, not even a misdemean- or conviction for resisting an officer without violence, § 843.02, commonly referred to as “obstruction.” See W.W. v. State,
The conspiracy to commit racketeering charge.
We now turn to Sanchez’s conviction for conspiracy to commit racketeering under section 895.03(4). This crime may be proved in one of two ways. “The government may either prove (1) that a defendant agreed to the overall objective of the conspiracy or (2) that the defendant personally committed two predicate acts, thereby participating in a single objective conspiracy.” Mese,
The Florida standard jury instruction for a section 895.03(4) offense tracks these alternate ways of proving the crime:
3. At the time the defendant joined the conspiracy, [he] did so with the specific intent either to personally engage in at least two incidents of racketeering, as alleged in the Information, or [he] spe-cifícally intended to otherwise participate in the affairs of the ‘enterprise’ with the knowledge and intent that other members of the conspiracy would engage in at least two incidents of racketeering, as alleged in the Information, as part of a “pattern of racketeering activity.”
Fla. Std. Jury Instr. (Crim.) 26.8. (emphasis supplied).
Here, the State alleged in the amended information that Sanchez participated in a racketeering conspiracy by committing the same five predicate offenses that were alleged against him in the substantive racketeering count. At the prosecutor’s request, the trial court listed the alleged predicate acts in its jury instruction on the conspiracy charge.
Under the State’s approach, proof of all the alleged predicate offenses would have satisfied either of the methods for proving conspiracy to commit racketeering. The jury could convict Sanchez on the conspiracy count if it determined that he personally committed two predicate offenses (carrying a concealed firearm and aiding Garcia’s escape), or that he intended that
The jury rejected the allegations that Sanchez acted as a principal to Ibarra’s crimes. But it convicted him of the conspiracy count based on its finding that he personally committed two predicate acts, possession of a concealed weapon and aiding Garcia’s escape. As we discussed in our analysis of the substantive racketeering conviction, the evidence was insufficient to prove that Sanchez aided in the escape of Garcia, and in fact, the evidence did not even establish that Garcia was attempting to escape. Thus, for the purpose of proving the conspiracy charge based on Sanchez’s intent to “personally engage in at least two incidents of racketeering,” the concealed weapon crime was the only predicate act both found by the jurors and supported by the evidence. This one act was insufficient to support the conviction under that theory of conspiracy.
Because the State failed to prove either of the charges against Sanchez, we must reverse his convictions and remand with directions to discharge him.
Reversed and remanded with directions.
Notes
. We note that at Sanchez’s trial the jurors were instructed that resisting an officer without violence was a lesser included charge of the predicate act of aiding an escape. That instruction is not at issue on appeal. But it is important to remember that Sanchez was not on trial for the crime of aiding an escape. That offense was alleged solely as a predicate act underlying the racketeering charges for which he was being tried. We doubt that it is
. Although the standard jury instruction on the substantive racketeering charge under section 895.03(3) requires that the predicate acts alleged in the information to be read to the jurors, Fla. Std. Jury Instr. (Crim.) 26.7, the instruction on conspiracy to commit racketeering under section 895.03(4) does not, Fla. Std. Jury Instr. (Crim.) 26.8.
. To be guilty as a principal to a crime, the defendant must, among other things, have "a conscious intent that the criminal act be done.” Fla. Std. Jury Instr. (Crim.) 3.5(a).