Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT DALE MASSAD, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D21-849 July 15, 2022 Appeal from the Circuit Court for Pasco County; Mary M. Handsel, Judge. J. Jervis Wise of Brunvand Wise, P.A., Clearwater, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Jonathan S. Tannen, Assistant Attorney General, Tampa, for Appellee. SMITH, Judge. Dale Massad, the former mayor of the city of Port Richey, appeals his conviction and sentence rendered after a jury found him guilty of conspiracy to obstruct justice falsely under the color of law. See §§ 843.0855(4), 777.04, Fla. Stat. (2018). Mr. Massad argues the trial court erred in denying his motion for judgment of acquittal. We agree and reverse. I. Mr. Massad was charged with one count of conspiracy to commit obstruction of justice. Specifically, the State charged Mr. Massad with conspiring with the city's acting mayor, Terence Rowe, to obstruct justice in violation of section 843.0855(4), which provides: A person who falsely under color of law attempts in any way to influence, intimidate, harass, retaliate against, or hinder a public officer or employee involving the discharge of his or her official duties by means of, but not limited to, threats of or actual physical abuse or harassment, or through the use of simulated legal process, commits a felony of the third degree, punishable as provided in [section] 775.082, [section] 775.083, or [section] 775.084. The evidence presented at trial established that at the time of this alleged crime, Mr. Massad was being held at the Pasco County Jail on other charges not directly relevant to this appeal.1 Mr. 1 Mr. Massad was charged in separate cases with (1) four counts of practicing medicine without a license in case number 19- CF-1154 and (2) five counts of attempted first-degree murder in 2 Massad resigned from the position of mayor after his arrest in these other cases. Upon Mr. Massad's resignation, Mr. Rowe became the acting mayor of Port Richey.2 On March 3, 2019, Mr. Rowe sent an email to the city clerk requesting a copy of Officer Donald Howard's personnel file. Officer Howard had been directly involved in the investigation of Mr. Massad, and his ultimate arrest, for the charges of practicing medicine without a license. Approximately two hours after the email, Mr. Rowe took a call from Mr. Massad who was calling from the Pasco County Jail. This call was recorded. Mr. Massad started the conversation by asking Mr. Rowe if he had received the letter Mr. Massad had sent him. Mr. Rowe stated that he had not received the letter. Mr. Massad then replied, "Well, I'll sum it up." Mr. Massad proceeded to discuss a dredging project he had case number 19-CF-1155. The attempted first-degree murder charges arose from Mr. Massad's actions in allegedly opening fire on officers when they attempted to execute the arrest warrant associated with the practicing medicine without a license charges. Neither of these cases are at issue in this appeal. 2 Mr. Rowe previously held the position as Mr. Massad's vice- mayor when Mr. Massad held the position of mayor. 3 supported as mayor. Mr. Massad had planned to fund this dredging project by disbanding the Port Richey Police Department and having the Pasco County Sheriff's Office police the city. It was clear from the conversation that Mr. Massad believed he had been investigated and arrested because of his proposal to disband the police department. The conversation continued and turned to Mr. Massad's arrest. Mr. Rowe told Mr. Massad that he conveyed to everyone that the arrest was a "political assassination." Mr. Massad replied, "They wanted me out," and he warned Mr. Rowe to be careful. The conversation then proceeded: Mr. Massad: I believe Howard was fired - - hired illegally, fired legally and rehired - - rehired illegally.3 I don't know why, but he's in on everything. Mr. Rowe: I know. Mr. Massad: Okay. So anything you can do is good. Mr. Rowe: I know. This don't go down without - somebody's been joking about the old movie Godfather, 3 Two years before Mr. Massad's arrest, Officer Howard was fired by the City Manager after it was discovered that several officers were engaging in activities believed to be impeding their ability to police the city. Officer Howard exercised his right to arbitration, which lasted five months. At the conclusion of the arbitration proceedings, it was ordered that Officer Howard be fully reinstated and that no adverse actions be taken against him. 4 you know, somebody's got to answer for this you, you know. Mr. Massad: Yeah. Mr. Rowe: I want to know, you know, this doesn't go down without somebody answering for it. Mr. Massad: This is a serious deal. I mean, it's looking like that, as far as I'm concerned, that the police coming in, marshal [sic] law, because they do what they want. They do what they want. They probably do (indiscernible) old Frank got to work you know. But generally around, if you're not somebody, they'll push you right off the curb and work with somebody with a big mouth. The two men continued the conversation discussing Mr. Massad's plans related to the dredging project. Mr. Massad commented that he was concerned that the dredging project would never happen as long as there is a police department, to which Mr. Rowe responded, "All right. Well, anyway, like I said, I'm on top of it." The day after Mr. Rowe's telephone call with Mr. Massad, the clerk responded to the request for Officer Howard's personnel file, stating that she would notify Mr. Rowe when the file was ready. On March 6, 2019, Mr. Rowe followed up with the clerk inquiring as to the status of his request. Sometime thereafter, the file was sent to 5 Mr. Rowe. On March 11, 2019, Mr. Rowe emailed the clerk again, this time asking for any and all documents concerning Officer Howard's arbitration hearing. In the interim, the City Manager learned that Mr. Rowe had requested Officer Howard's personnel file—he warned Officer Howard that "Terry Rowe is coming after you." Officer Howard then contacted an agent with the Florida Department of Law Enforcement who was involved in Mr. Massad's case and requested the examination of Mr. Massad's recorded telephone conversations. Based upon the June 3, 2019, telephone conversation between Mr. Massad and Mr. Rowe, the agent secured a search warrant for Mr. Rowe's house. The results of that search revealed a copy of Officer Howard's personnel file and the letter Mr. Massad had referenced in the June 3, 2019, telephone conversation. The letter made no mention of Officer Howard but did discuss ongoing city business, including the dredging project. Mr. Rowe was subsequently arrested, and both men were charged with conspiracy to obstruct justice. At Mr. Massad's trial, the parties stipulated that officer personnel files and the records related to Officer Howard's 6 arbitration hearing all constitute public records that are subject to disclosure pursuant to chapter 119, Florida Statutes. The City Manager testified that there are no special procedures for city officials, such as the mayor, to follow when requesting these types of records. The City Manager also testified that the mayor has no authority to hire or terminate police officers—that ability rests solely with the City Manager. The State introduced the recording of the June 3, 2019, telephone conversation between Mr. Massad and Mr. Rowe. And Officer Howard testified regarding the circumstances surrounding Mr. Massad's initial charges and arrest. After the State rested, Mr. Massad moved for judgment of acquittal, arguing there was no evidence of a conspiracy to do anything unlawful. The trial court denied Mr. Massad's motion. II. We review the trial court's denial of a motion for judgment of acquittal de novo. Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002). A motion for judgment of acquittal is designed to challenge the legal sufficiency of the evidence. If the State presents competent evidence to establish each element of the crime, a motion for judgment of acquittal should be denied. A trial court should not grant a motion for judgment of acquittal unless the evidence, 7 when viewed in a light most favorable to the State, fails to establish a prima facie case of guilt. State v. Odom, 862 So. 2d 56, 59 (Fla. 2d DCA 2003) (citing State v. Williams, 742 So. 2d 509, 510 (Fla. 1st DCA 1999)). "The crime of conspiracy consists of an express or implied agreement between two or more persons to commit a criminal offense." Mickenberg v. State, 640 So. 2d 1210, 1211 (Fla. 2d DCA 1994) (citing Ramirez v. State, 371 So. 2d 1063, 1065 (Fla. 3d DCA 1979)). The State is required to "prove an agreement and an intention to commit" a specific offense. Id. "A conspiracy charge focuses primarily on the intent of the defendant. It must be shown not only that the defendant intended to combine with another, but that they combined to achieve a particular act which is criminal." Bullington v. State, 616 So. 2d 1036, 1039 (Fla. 3d DCA 1993) (emphasis added) (first citing Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 6.4, at 76 (1986); and then citing Lavette v. State, 442 So. 2d 265 (Fla. 1st DCA 1983)). A conspiracy is only criminal when the parties plan to do something illegal. See Ginsberg v. Lennar Fla. Holdings, Inc., 645 So. 2d 490, 502 (Fla. 3d DCA 1994). 8 Here, the State charged Mr. Massad with conspiracy to obstruct justice falsely under the color of law. See §§ 777.04, 843.0855(4). Specifically, the State alleged that Mr. Massad conspired with Mr. Rowe to violate section 843.0855(4), which provides: A person who falsely under color of law attempts in any way to influence, intimidate, harass, retaliate against, or hinder a public officer or employee involving the discharge of his or her official duties by means of, but not limited to, threats of or actual physical abuse or harassment, or through the use of simulated legal process, commits a felony of the third degree, punishable as provided in [section] 775.082, [section] 775.083, or [section] 775.084. But here, there was no evidence that anyone acted falsely under color of law in an attempt to influence, intimidate, harass, or retaliate against Officer Howard. The only evidence presented by the State was that Mr. Rowe asked the clerk for a copy of Officer Howard's personnel file and documents associated with Officer Howard's arbitration proceeding. The State stipulated that these files were public records subject to disclosure under chapter 119, Florida Statutes. Mr. Rowe requesting and obtaining these files can hardly be said to be illegal, nor considered "acting falsely under color of law." While it is certainly conceivable that Mr. Rowe could 9 have used these documents in an attempt to intimidate or retaliate against Officer Howard, there was no evidence of such an attempt, nor was it the topic of any discussion between Mr. Massad and Mr. Rowe. Not only was there no evidence of the alleged underlying crime, but there was no evidence of an agreement between Mr. Massad and Mr. Rowe to use these documents for the purpose of intimidation or retaliation against Officer Howard, especially given the timing of Mr. Rowe's request, which was made prior to the June 3, 2019, telephone conversation. On this record the State failed to establish through competent substantial evidence that Mr. Massad entered into an agreement with Mr. Rowe to use his position as acting mayor in order to falsely intimidate, harass, or retaliate against Officer Howard in the discharge of his official duties. We have previously noted that "[o]ne danger that lurks in the criminal charge of conspiracy is the tendency to make the crime so elastic, sprawling and pervasive as to defy meaningful definition." Mickenberg, 640 So. 2d at 1211 (citing Ramirez, 371 So. 2d at 1066-67). That appears to be the case here—two friends and coworkers talking about one person's 10 pending criminal case does not amount to criminal conspiracy. There was nothing illegal about Mr. Rowe's requests to the clerk for the subject files pertaining to Officer Howard, and there was even less evidence to indicate that Mr. Massad had anything to do with Mr. Rowe's initial request for Officer Howard's personnel file, where the requested records preceded the June 3, 2019, telephone conversation. We conclude, therefore, that the evidence was insufficient to survive Mr. Massad's motion for judgment of acquittal, even when considering this evidence in the light most favorable to the State. Accordingly, we reverse Mr. Massad's conviction for conspiracy to obstruct justice. Reversed and remanded with instructions to vacate the judgment and sentence. CASANUEVA and LaROSE, JJ., Concur. Opinion subject to revision prior to official publication. 11