author:
PER CURIAM.
      LEWIS, J.,

text:
    Johnny Mack Sketo CALHOUN, Appellant, v. STATE of Florida, Appellee.
    No. SC12-1086.
    Supreme Court of Florida.
    Oct. 31, 2013.
    Rehearing Denied May 2, 2014.

      Nancy A. Daniels, Public Defender, and W.C. McLain, Assistant Public Defender, Tallahassee, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, and Stephen R. White, Assistant Attorney General, Tallahassee, FL, for Appellee.
   PER CURIAM.

This case is before the Court on appeal from a judgment of conviction of first-degree murder and a sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

BACKGROUND

Johnny Mack Sketo Calhoun and Mia Chay Brown were both reported missing on December 17, 2010. On December 20, Brown’s remains were found bound and burnt in her car, which had been lit on fire in the woods of Alabama. Calhoun, thought to be the last person to see Brown alive, was found hiding in the frame of his bed inside his trailer on December 20.

Guilt Phase

Brown worked at Charlie’s deli and grocery store in Esto, Florida. Harvey Glenn Bush saw Brown working at Charlie’s deli around 1 to 1:30 p.m. on December 16, 2010, and knew Brown drove a white car. Bush heard Calhoun ask Brown for a ride that evening and Brown responded that she would pick him up after work at approximately 8 to 9 p.m.

Brown drove to Jerry Gammons’ trailer in a light colored, four-door car and knocked on his door at about 8:40 p.m. on December 16. Brown asked for Calhoun, and Gammons told her that Calhoun did not live there. America’s Precious Metals junkyard, where Calhoun’s trailer was located, is approximately one road down from Gammons’ trailer.

Brandon Brown, Brown’s husband, talked with Brown at lunch time on December 16 while she was working at Charlie’s deli. Brown usually got off of work at approximately 9 p.m. Brandon called Brown at 10 p.m. because she was not home. Brandon fell asleep on the couch at about 10:80 p.m., and when he woke up at 2 a.m., his wife was still not home. It was unusual for Brown not to come home; Brandon started calling family members to find her.

Sherry Bradley, the manager at Gladstone’s convenience store located between Enterprise and Hartford, Alabama, testified that Calhoun came into her store between 5:80 and 6:00 a.m. on December 17, 2010, and bought cigarettes. Bradley noticed scratches and dried blood on his hands and sores on his face. Calhoun was wearing a white shirt that had spots of blood on it and there was something black underneath his fingernails. She asked Calhoun about his appearance, and he responded that he had been deer hunting. Calhoun was driving a white, four-door car with a Florida license plate. Darren Bratchelor, a former schoolmate of Calhoun’s, also saw Calhoun at the convenience store at about 6 a.m. After that day, Bradley left town for a few days, but when she returned, another employee had posted a missing persons flyer in the store, on which she recognized Calhoun’s photograph.

Chuck White, a patrol officer for Holmes County, Florida, arrived at America’s Precious Metals at 8 a.m. on December 17. White looked in Calhoun’s trailer and found clothes and trash scattered everywhere. Calhoun was not there. On cross-examination, White testified that Sketo Calhoun (“Sketo”) and Terry Ellenburg, co-owners of America’s Precious Metals, told him that there had been a break-in at the junkyard, that there were pry marks on Calhoun’s trailer door, and that the skid steer loader, or Bobcat, had been hot-wired and moved. White noticed many tire tracks around the yard. White acknowledged that he did not secure Calhoun’s trailer before he left the yard.

Brett Bennett, a cattle broker in Geneva, Alabama, noticed smoke from the highway on December 17 at approximately 11 a.m. Keith Brinley, a school maintenance employee in Geneva, Alabama, also saw a big fire behind the Bennett residence at about that same time.

Tiffany Brooks, a resident of Hartford, Alabama, found Calhoun in her family’s shed on the morning of December 18, 2010. Calhoun was on the ground wrapped in sleeping bags that the family kept around the freezer. Calhoun was wearing overalls and a white t-shirt and was wet and dirty. Brooks brought Calhoun into the house and the family washed his clothes, gave him new clothes, let him shower and nap, and gave him some food. Steven Bledshoe, Tiffany’s boyfriend, called the Brooks’ residence and told them about the missing persons flyer he saw with Calhoun and Brown’s pictures on it. Calhoun told the Brooks he did not know Brown but she was probably the person who was supposed to pick him up at his trailer the night before. Calhoun had the Brooks drop him off at a dirt road. Glenda Brooks, Tiffany’s mother, also testified to these events.

Brittany Mixon, Calhoun’s ex-girlfriend, testified that she went to school with Brown and that Brown knew Calhoun through her and from working at the convenience store. On December 16, Mixon stayed at her father’s house and expected Calhoun to come over that night but he never came. Mixon drove to America’s Precious Metals on the morning of December 17 to find Calhoun because he did not have a phone to call. Mixon used to live in Calhoun’s trailer with him but moved out in October of that year. She testified that they had lost the key to the trailer so they had had to pry the door open to get inside the trailer. Mixon asked Sketo if he had seen Calhoun, but he had not. Mixon looked inside Calhoun’s trailer; no one was inside, but the trailer was ransacked. Lieutenant Michael Raley of the Holmes County Sheriffs Office investigated Brown’s missing persons report. He called Mixon, who told Raley about a campsite in Hartford, Alabama, approximately ten miles from America’s Precious Metals, where Mixon and Calhoun would camp. The campground was on the property of Charlie Skinnard, Calhoun’s brother-in-law. Mixon met the Brooks family once while camping with Calhoun. She took Raley to the campsite. Raley noted that the burnt car was off of Coleman Road, approximately 1,488 feet away from Calhoun’s campsite. The Brooks’ residence was approximately 1.5 miles from the burnt car.

Angie Curry, Priscilla Strickland, and Mixon went to Calhoun’s trailer around 4 p.m. on December 17. Mixon went into the trailer and found wine, a purse, and menthol cigarettes. They took the items and called the police. Brandon identified the purse as belonging to Brown. When Mixon gave Brown’s purse to Raley, Raley sent a police officer to Calhoun’s trailer to secure it until they got a search warrant. On cross-examination, Mixon acknowledged that Sketo and Ellenburg told her that the trailer had been broken into and not to go in it, but she did anyway. She stated that Calhoun did not smoke cigarettes and did not have cable television service in his trailer.

Dick Mowbry, former game warden for Geneva County, Alabama, participated in a search for Brown and Brown’s vehicle on December 20, 2010. He found a burnt, white Toyota with no license plate. The entire inside of the car was burnt and while he was looking through the front of the car, he saw a rib cage in the trunk, so he called the police.

Mike Gillis, with the Alabama Bureau of Investigation, responded on December 20 to the call regarding the burnt vehicle. Remains of a body were in the trunk of the car. There was what looked like coaxial cable wrapped around the wrists of the body; duct tape was also found in the car.

On December 21, 2010, Dr. Stephen Boudreau, a medical examiner for Alabama, received the human remains found inside the burnt car. The remains were badly burnt; the hands and lower limbs had been burnt off. Dr. Boudreau was able to identify the remains as female because the uterus and vagina were not destroyed, but the sex organs were denatured, or heated, to such an extent that there was no way to analyze them. He found coaxial cable wrapped around what was left of the remains’ upper arms and tape on the neck. Dr. Boudreau determined that the cause of death was smoke inhalation and thermal burns and that the death was a homicide. He found soot embedded in the airway of the lungs’ mucus blanket and carbon monoxide in the back tissue, meaning that the victim had inhaled smoke. Dental x-rays matched those of Brown’s. On cross-examination, the defense elicited that no foreign DNA was found in Brown’s vagina. Dr. Boudreau also acknowledged that no ends of the coaxial cable were found, and that he could not determine whether Brown was conscious or not when she inhaled the smoke or at what point in time she would have lost consciousness.

On December 20, 2010, Jeffery Lowry, deputy state fire marshal with the Alabama Fire Marshal’s Office, took debris samples from the burnt car and sent them to the Alabama and Florida laboratories. Jason Deese, an arson investigator for the Florida Bureau of Fire and Arson, testified that on December 22, 2010, he inspected the car. The vehicle identification number (VIN) was matched to a 2000 Toyota Avalon. Brown owned a four-door 2000 Toyota Avalon. The fire originated in the driver’s seat and passenger compartment; it was not an engine fire. Perry Kous-siafes, senior crime laboratory analyst for the Florida Fire Marshal’s Office, received six samples from the car on December 30, 2010. The samples from the right front quarter and left quarter of the car tested positive for ignitable liquid.

Trevor Seifret, a crime lab analyst for the Florida Department of Law Enforcement (FDLE), testified that blood found on the cardboard of a roll of duct tape taken from Calhoun’s trailer was a major donor match to Brown and a minor donor partial match to Calhoun. Blood found on blankets taken from Calhoun’s trailer were total matches to Calhoun and Brown. DNA from hair found in Calhoun’s trailer also matched Brown; Seifret testified that DNA is found on hair only when the hair is pulled out of the scalp.

Jennifer Roeder, a digital evidence crime analyst for FDLE, testified that an SD memory card found in Calhoun’s trailer was from Brown’s camera, and based on the time and date stamps of other pictures on the camera, the last picture was taken between 3:30 and 4:00 a.m. on December 17, assuming no one reset the clock on the camera.

On December 20, 2010, Harry Hamilton, captain of the Holmes County Sheriffs Department, seized Calhoun’s trailer pursuant to a search warrant. He noticed that the evidence tape on the door had been broken. He found Calhoun hiding under his mattress in the bed frame in his trailer. Calhoun had scratches on his hands, arms, and neck.

Raley executed a second search of Calhoun’s trailer on December 28 at the impound yard of the Holmes County Sheriffs office after Brown’s remains had been found. He found a TV face down on the mattress of the bed and a DVD player. A VCR was on the floor and the top was off, with wires tangled in the corner. A converter box with outputs for a coaxial cable and a TV with a coaxial coupling were found, but no coaxial cable was found in the trailer.

The State rested, and the defense provided witnesses as follows. José Martinez, owner of the Friendly Mini-Mart, testified that Calhoun came to his store on December 16 and bought a pack of cigars, wine, and apple cider. He never knew Calhoun to buy cigarettes.

Matt Crutchfield who lived near America’s Precious Metals was awakened on December 17 between 1 and 3:30 a.m. by a loud bang. He had heard the noise before and thought it came from the recycling plant. Monica Crutchfield, his wife, was also awakened by a loud noise that came from America’s Precious Metals, but she testified that she had never heard that noise before. Darlene Madden, who lived one block from America’s Precious Metals, awoke to a loud noise that sounded like cars colliding at approximately 2:30 to 3:00 a.m. She testified that she may have heard a second noise but did not get up to investigate it.

John Sketo, Calhoun’s father and co-owner of America’s Precious Metals, testified that Calhoun’s trailer was located beside the scrap yard. Sketo arrived at the scrap yard at approximately 7:30 a.m. on December 17 and noticed that the Bobcat was missing from the place it had been the day before. He also noticed that the door to Calhoun’s trailer was open. Sketo testified that none of this was like that the day before. Ellenburg called the police. El-lenburg and Sketo found the Bobcat by the loading dock, and they thought it had pushed something off of the dock. Tread marks on the ground had not been there the day before. Sketo looked in Calhoun’s trailer and it looked like someone had searched it; drawers were open and things were strewn about. Sketo saw a small grill on Calhoun’s bed, which usually remained outside the trailer. Sketo did not see anyone in the trailer. He did not see a purse on the floor of the trailer. Sketo exited the trailer and left the door open.

Mixon arrived at the junkyard and asked if Sketo had seen Calhoun. Sketo replied that he had not and told Mixon not to go into the trailer because someone had broken into it, but Mixon went into the trailer anyway. Mixon was in the trailer for about one minute. Then Mixon left the junkyard. Sketo went back into the trailer and found Calhoun’s gun leaning against the couch on the floor. Sketo testified that if the gun had been there the first time he went into the trailer he would have noticed it. He stated that the gun was not there before Mixon went into the trailer. On cross-examination, the State elicited from Sketo that he did not see Mixon carry the gun or anything else into the trailer.

Ellenburg testified that he arrived at the junkyard at approximately 7:30 a.m. on December 17. He stated that Calhoun’s door did not have pry marks on it the day before, and Calhoun’s trailer was not in disarray the day before. He did not see a gun in the trailer the first time he looked. He stated that the tire tracks near the loading dock and next to the Bobcat looked like they were made by a dual-wheeled vehicle. A corner of the cement steps was also knocked off, and had not been like that the day before.

Lieutenant Raley searched a barn in Pine Oak Community in Geneva, Alabama, and a license tag bracket matching the description of one on Brown’s car was found at the property. There was also a piece of cardboard that had oil and tire marks on it. Brown’s family told Raley that her car had a small oil leak. However, Raley could not trace the oil stain or the bracket to Brown’s car.

On February 28, 2012, the jury returned a verdict of guilty of first-degree murder and kidnapping.

Penalty Phase

The State moved for admission of all evidence from the guilt phase into the penalty phase and rested.

The defense provided witnesses as follows. Pastor A.J. Lombarin, Cliff Jenkins, and Ryan George, all ministers to Calhoun, each testified that Calhoun was devoted to Christian study and ministered to other inmates while awaiting the instant trial. Patrick O’Dell, an inmate, testified that Calhoun invited him to bible study and was his mentor, teacher, and minister, and changed the course of O’Dell’s life by telling him to take responsibility for his actions. Jerry Pappas, an inmate, testified that Calhoun was like a brother to him and changed his life for the better. Darryl Williams, a former inmate, testified that Calhoun helped him change and encouraged him to witness to others outside of the jail.

Lieutenant Bill Pate, a security officer at the Holmes County jail, testified that Calhoun had no behavioral problems while incarcerated and that his only prior criminal record was driving while his license was suspended and violating probation.

Charlie Skinner, Calhoun’s brother-in-law, testified that Calhoun was generous to a fault and that he had given his life to God. Sharon Calhoun, Calhoun’s mother, testified that Calhoun and his father had a close relationship. Calhoun has a son with whom he is very close and to whom he is a good father. Calhoun also treated Mixon’s son like his own son. Sharon testified that Calhoun was a good student, a boy scout, never got into trouble, and sends preachers to his father to help counsel him.

The jury recommended a sentence of death by a vote of nine to three.

Spencer - Hearing

Betsy Spann, Calhoun’s sister, testified that Calhoun was like her best friend and kept her out of trouble while they were growing up. Sharon Calhoun testified that Calhoun had found God and that Calhoun was innocent. John Searcy, a minister who had gone to counsel Calhoun on the night of the verdict, testified that Calhoun had actually counseled him that night. Following the conclusion of the Spencer hearing, the trial court allowed victim impact statements from Brown’s family members.

The trial court found three aggravators: (1) cold, calculated, and premeditated (CCP) — very great weight; (2) during the commission of a kidnapping — great weight; and (3) for the purpose of avoiding arrest — very great weight. The trial court found one statutory mitigator: no significant history of criminal activity — significant weight, and five nonstatutory miti-gators: (1) good jail conduct pending and during trial — little weight; (2) positive role model to other inmates — some weight; (3) capable of forming loving relationships— little weight; (4) childhood history — little weight; and (5) defendant will be incarcerated for the remainder of his life with no danger to others — minimal weight. The trial court gave the jury recommendation of death great weight. The trial court concluded that the aggravating circumstances far outweighed the mitigating circumstances and sentenced Calhoun to death for the murder of Brown and 100 years of imprisonment for the kidnapping of Brown.

Calhoun appeals, raising the following three issues for this Court’s review: (1) whether the trial court erred in excluding Calhoun’s exculpatory statements to police under the rule of completeness; (2) whether the trial court erred in finding the aggravators of CCP and avoiding arrest; and (3) a Ring claim. We also review the sufficiency of the evidence and proportionality. For the reasons that follow, we affirm Calhoun’s convictions and sentences.

ANALYSIS

I. Rule of Completeness

Calhoun asserts that the trial court abused its discretion in allowing the State to ask Lieutenant Raley about statements Calhoun made to him during an interview without admitting the entire interview under the rule of completeness. Calhoun contends that his statements that (1) he was at the Brooks’ residence on Saturday, December 18, 2010, and (2) Brown had never been to his trailer before, were out of context and, in fairness, the rest of Calhoun’s interview with Raley should have been admitted to provide the context of these statements.

As a general rule of law, self-serving statements are not admissible under section 90.808(18), Florida Statutes (2009). However, section 90.108 provides:

(1) When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him or her at that time to introduce any other part or any other writing or recorded statement that in fairness ought to be considered contemporaneously. An adverse party is not bound by evidence introduced under this section.

§ 90.108(1), Fla. Stat. (2009).

The purpose of this statute, known as the rule of completeness, is to “avoid the potential for creating misleading impressions by taking statements out of context.” Larzelere v. State, 676 So.2d 394, 401 (Fla.1996). “[P]arties may seek the introduction of other statements when those statements ‘in fairness ought to be considered contemporaneously’ with the introduction of the partial statement,” but “[s]uch a fairness determination falls within the discretion of the trial judge.” Id. at 402. Review of this issue is for abuse of discretion. Id.

Kaczmar v. State, 104 So.3d 990, 1000-01 (Fla.2012) (alterations in original).

First, this issue was not properly preserved for appellate review. Calhoun never proffered the specific statements from the interview he sought to admit to the trial court. See 90.104(l)(b), Fla. Stat. (2009) (“A court may predicate error, set aside or reverse a judgment, or grant a new trial on the basis of admitted or excluded evidence when a substantial right of the party is adversely affected and [w]hen the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer of proof or was apparent from the context within which the questions were asked.”); see generally Blackwood v. State, 777 So.2d 399, 410-11 (Fla.2000) (“In order to preserve a claim based on the court’s refusal to admit evidence, the party seeking to admit the evidence must proffer the contents of the excluded evidence to the trial court.” (citing Lucas v. State, 568 So.2d 18, 22 (Fla.1990); Jacobs v. Wainwright, 450 So.2d 200, 201 (Fla.1984))). Thus, Calhoun must demonstrate that the error, if any, was fundamental, which it was not. Fundamental error is “defined as error that reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Anderson v. State, 841 So.2d 390, 403 (Fla.2003).

Even if Calhoun had properly preserved this claim, Calhoun would not be entitled to relief. Calhoun contends that the trial court erred in finding that his statements were inadmissible solely on the basis that they were self-serving. See Christopher v. State, 583 So.2d 642, 646 (Fla.1991) (“Once the officer testified in the state’s case-in-chief about one portion of Eberhardt’s statements to him, the court erred in sustaining the state’s hearsay objection for the reason that his statements he was ‘high’ or intoxicated were self serving.”) (quoting Eberhardt v. State, 550 So.2d 102, 105 (Fla. 1st DCA 1989)). We agree. Here, the trial court erred in excluding Calhoun’s statements for the reason that they were self-serving without making a determination based on fairness.

Nonetheless, any error in excluding these statements is harmless beyond a reasonable doubt because there is no reasonable possibility that exclusion of the redacted statements affected the outcome of the jury’s verdict. See State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986); see also Larzelere, 676 So.2d at 402. The statements with which Calhoun asserts error were only two statements out of the extensive record in this case. Additionally, both statements were cumulative to other information elicited during the trial.

Calhoun’s statement that he was at the Brooks’ residence on December 18 was cumulative to the testimonies of Tiffany and Glenda Brooks, who both testified that Calhoun was in their shed on the morning of December 18. Regarding Calhoun’s statement that Brown had never been to Calhoun’s trailer before, Calhoun contends that he should have been allowed to clarify that the statement meant any time before the night of December 16 and that he did not know if Brown made it to his trailer on December 16. This information that Calhoun contends should have been admitted is cumulative to the testimonies of Glenda and Tiffany Brooks that Calhoun told the Brooks that Brown was probably the girl who was supposed to pick him up. This implies that Calhoun was not at his trailer when Brown arrived the night she was supposed to pick him up. Additionally, during the defense’s case-in-chief, the defense introduced testimony from Sketo and Ellenburg that someone had broken into Calhoun’s trailer the night of December 16. This also implies that someone other than Calhoun was at Calhoun’s trailer when Brown arrived and therefore, Calhoun did not know if Brown arrived at his trailer that night. Thus, the information Calhoun seeks to introduce through the rule of completeness, that he did not know if Brown arrived at his trailer on December 16 and that his statement that Brown had never been to his trailer before December 16, was in fact provided to the jury. Accordingly, any error in not admitting these statements under the rule of completeness is harmless beyond a reasonable doubt.

II. Aggravating Factors

Calhoun asserts that the trial court erred in finding the avoiding arrest and cold, calculated, and premeditated (CCP) aggravators. In reviewing the trial court’s finding of an aggravating circumstance, this Court’s “task on appeal is to review the record to determine whether the trial court applied the right rule of law for each aggravating circumstance and, if so, whether competent substantial evidence supports its finding.” McWatters v. State, 36 So.3d 613, 641 (Fla.2010) (quoting Lynch v. State, 841 So.2d 362, 368 (Fla.2003)). The sentencing order shows that the trial court applied the correct rules of law in making these determinations. Thus, the only question is whether there is competent, substantial evidence in the record to support the findings of avoiding arrest and CCP.

a. Avoiding Arrest

The avoiding arrest aggravator is applicable when “[t]he capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.” § 921.141(5)(e), Fla. Stat. (2009). “The avoid arrest aggravator focuses on the motivation for the crimes.” Jennings v. State, 718 So.2d 144, 151 (Fla.1998) (citing Stein v. State, 632 So.2d 1361, 1366 (Fla.1994)).

Where the victim is not a police officer, “the evidence [supporting the avoid arrest aggravator] must prove that the sole or dominant motive for the killing was to eliminate a witness,” and “[m]ere speculation on the part of the state that witness elimination was the dominant motive behind a murder cannot support the avoid arrest aggravator.” However, this factor may be proved by circumstantial evidence from which the motive for the murder may be inferred, without direct evidence of the offender’s thought processes.
In other cases, this Court has found it significant that the victims knew and could identify their killer. While this fact alone is insufficient to prove the avoid arrest aggravator, we have looked at any further evidence presented, such as whether the defendant used gloves, wore a mask, or made any incriminating statements about witness elimination; whether the victims offered resistance; and whether the victims were confined or were in a position to pose a threat to the defendant.

Buzia v. State, 926 So.2d 1203, 1209-10 (Fla.2006) (some emphasis omitted) (quoting Parker v. State, 873 So.2d 270, 289 (Fla.2004)).

The trial court’s finding of the avoiding arrest aggravator is not supported by competent, substantial evidence in this case. Most of the facts on which the trial court relied in support of finding this aggravator were based on Calhoun’s attempts to avoid arrest after Brown’s death, not on his motive to kill Brown. Very little information exists about what happened between Calhoun and Brown in the events leading up to Brown being put in the trunk of her car and dying from smoke inhalation and thermal burns in the woods. While it is true that Brown was able to identify Calhoun, “this alone is insufficient to support application of this aggravator.” Zack v. State, 753 So.2d 9, 20 (Fla.2000) (citing Consalvo v. State, 697 So.2d 805 (Fla.1996)). Based on the lack of evidence in the record of any motive to kill Brown, the trial court’s finding that Calhoun’s sole or dominant motive for the murder was to avoid arrest is based on speculation. Accordingly, we strike this aggravator.

Nonetheless, we find that the error is harmless beyond a reasonable doubt. See DiGuilio, 491 So.2d at 1138; see also Zack, 753 So.2d at 20. Error in finding an impermissible aggravator can only be harmless beyond a reasonable doubt if there is no reasonable possibility that the evidence presented in mitigation is sufficient to outweigh the remaining ag-gravators. See Hill v. State, 643 So.2d 1071, 1073 (Fla.1994). In addition to the avoiding arrest aggravator, the trial court found CCP, which the trial court gave very great weight, and is considered one of the weightiest aggravators. See Larkins v. State, 739 So.2d 90, 95 (Fla.1999) (noting that CCP is one of “the most serious aggravators set out in the statutory sentencing scheme ... ”). The trial court also found the aggravator of kidnapping, which the trial court gave great weight. The trial court found only one statutory miti-gator of no significant history of criminal activity — significant weight, and five non-statutory mitigators which were allotted minimal, little, and some weight as follows: (1) good jail conduct pending and during trial — little weight, (2) positive role model to other inmates — some weight, (3) capable of forming loving relationships — little weight, (4) childhood history — little weight, and (5) will be incarcerated for the remainder of his life with no danger to others— minimal weight. Considering the remaining aggravators and the limited mitigation in this case, we find that there is no reasonable possibility that the error contributed to the sentence. Accordingly, we find that the error in finding the avoid arrest aggravator is harmless beyond a reasonable doubt.

b. CCP

In order to establish the CCP aggravator, the evidence must show:

that the killing was the product of cool and calm reflection and not an act prompted by emotional frenzy, panic, or a fit of rage (cold); that the defendant had a careful plan or prearranged design to commit murder before the fatal incident (calculated); that the defendant exhibited heightened premeditation (premeditated); and that the defendant had no pretense of moral or legal justification.

Franklin v. State, 965 So.2d 79, 98 (Fla.2007) (citing Jackson v. State, 648 So.2d 85, 89 (Fla.1994)). “ ‘CCP involves a much higher degree of premeditation’ than is required to prove first degree murder.” Deparvine v. State, 995 So.2d 351, 381-82 (Fla.2008) (quoting Foster v. State, 778 So.2d 906, 921 (Fla.2000)).

“The focus of the CCP aggravator centers on the manner in which the defendant executed the crime.” McGirth v. State, 48 So.3d 777, 793 (Fla.2010) (citing Walker v. State, 957 So.2d 560, 581 (Fla. 2007)). While circumstantial evidence can be used to support an aggravating factor, “the circumstantial evidence must be inconsistent with any reasonable hypothesis which might negate the aggravating factor.” Harris v. State, 843 So.2d 856, 866 (Fla.2003) (quoting Hildwin v. State, 727 So.2d 193, 194 (Fla.1998)). Here, there is competent, substantial evidence to support the trial court’s finding of CCP.

The first prong of the test for CCP is that the killing was the product of cool and calm reflection and not an act prompted by emotional frenzy, panic, or a fit of rage. Here, the deliberate nature of Calhoun’s actions establishes that the murder was not prompted by emotional panic or a fit of rage. Brown had been bound and put in the trunk of her car, driven into the woods in Alabama approximately ten miles from Calhoun’s home and left to die of smoke inhalation and thermal burns after Calhoun doused the car with ignitable fluid and lit it on fire. Based on these facts, this crime was not prompted by emotional frenzy, but rather a product of cool and calm reflection. See generally Wright v. State, 19 So.3d 277, 299 (Fla.2009) (“Wright had ample opportunity during the ten-mile abduction drive to the orange grove to reflect on his actions and abort any intent to kill. Instead, Wright chose to shoot each victim in the head at close range. These actions establish the cold nature of the murders.”) (citation omitted).

Regarding the second prong of CCP — that the defendant had a careful plan or prearranged design to commit murder before the fatal incident — where a defendant arms himself in advance, kills execution-style, and has time to coldly and calmly decide to kill, the element of “calculated” is supported. Wright, 19 So.3d at 299. “Taking a victim to an isolated location or choosing an isolated location to carry out an attack can ... be indicative of a plan or prearranged design to kill.” Franklin, 965 So.2d at 99 (citing Thompson v. State, 648 So.2d 692, 696 (Fla.1994); Wuornos v. State, 644 So.2d 1000, 1008 (Fla.1994)). Here, the last picture on Brown’s camera was taken around 3 a.m. at Calhoun’s residence. Calhoun was then seen in what appears to have been Brown’s car at approximately 6:00 a.m. at a convenience store in Alabama. A large fire in the area in which Brown’s burnt car and her remains were eventually found was not seen until approximately 11 a.m. later that morning. Considering all of these factors, Calhoun’s actions were over a long enough period of time to support a finding that Calhoun coldly and calmly decided to kill Brown. See Wright, 19 So.3d at 299 (finding the calculated element of CCP was met and stating, “The drive to the orange grove afforded Wright time to coldly and calmly make the final plan and decision to kill the victims.”); Knight v. State, 746 So.2d 423, 436 (Fla.1998) (upholding CCP and stating, “Even if Knight did not make the final decision to execute the two vie-tims until sometime during his lengthy journey to his final destination, that journey provided an abundance of time for Knight to coldly and calmly decide to kill.”); Fennie v. State, 648 So.2d 95, 99 (Fla.1994) (“The lengthy and drawn out nature of this crime clearly indicates [the defendant] carefully contemplated his actions prior to the fatal incident.”).

Regarding the third prong — that the defendant exhibited heightened premeditation, this Court has “previously found the heightened premeditation required to sustain this aggravator where a defendant has the opportunity to leave the crime scene and not commit the murder but, instead, commits the murder.” Lynch, 841 So.2d at 373 (quoting Alston v. State, 723 So.2d 148, 162 (Fla.1998)). Here, Brown was bound and placed in the trunk of her car. Calhoun drove her at least ten miles north, across the Florida state line, into the woods of Alabama. Calhoun could have left Brown bound in the trunk, but instead, he doused the car with an ignitable fluid and set the car on fire. See Wright, 19 So.3d at 300 (“Wright had ample opportunity, from the time he encountered the victims in the supermarket parking lot to when he stopped the car in the orange grove, to release the victims and leave the crime scene without committing two murders.”); see also Fennie, 648 So.2d at 99 (“The lengthy nature of the crime also goes to the heightened premeditation necessary to establish this aggravating factor”).

Finally, it is clear that the fourth element — that the murder was committed with no pretext of legal or moral justification — was satisfied. The record is devoid of any evidence of a threatening act by Brown prior to the murder that would constitute a pretext of legal or moral justification. See generally Hertz v. State, 803 So.2d 629, 651 (Fla.2001) (“As to Hertz, there is no construction of the facts that would support even a fragmentary claim of excuse or justification, or of a defense to homicide, because the victims here were bound and helpless when killed.”) (citing Walls v. State, 641 So.2d 381, 388 (Fla. 1994)).

“While CCP may be established by circumstantial evidence, this Court will consider any reasonable hypothesis of innocence offered by the defense that might be inconsistent with and negate this aggravating factor.” Wright, 19 So.3d at 300 (citing Gordon v. State, 704 So.2d 107, 114 (Fla.1997)). Calhoun contends that because Brown could have already been unconscious before he put her in the trunk, he could have thought he was burning a dead body rather than killing Brown when he drove her to the woods and set the car on fire. For support, Calhoun notes that the trial court found that the State did not establish the especially heinous, atrocious, or cruel (HAC) aggravator because it was unclear whether Brown was already unconscious by the time she was put in the trunk and burned.

As the State contends, however, if Calhoun thought that Brown was already dead before being put in the trunk of her car, it would be unnecessary for him to bind her arms and apply duct tape around her neck as Calhoun did. As testified to by the medical examiner, although he could not determine at what point Brown became unconscious, Brown was still breathing when the car was burned, as evidenced by smoke found in her lungs. Based on these facts, the evidence is inconsistent with this hypothesis that might negate the aggravating factor.

Additionally, Calhoun’s contention that the trial court’s rejection of HAC necessarily negates a finding of CCP is incorrect. Different elements must be satisfied for each aggravator. Compare Barnhill v. State, 834 So.2d 836, 849-50 (Fla.2002) (“HAC Acuses on the means and manner in which the death is inflicted and the immediate circumstances surrounding the death, rather than the intent and motivation of a defendant, where a victim experiences the torturous anxiety and fear of impending death.”), with McGirth, 48 So.3d at 793 (“The focus of the CCP ag-gravator centers on the manner in which the defendant executed the crime.”); see also Oyola v. State, 99 So.3d 431, 443 (Fla.2012) (“In evaluating whether HAC is present, a trial court focuses on the victim’s perception of the circumstances — not the perpetrator’s viewpoint.”) (emphasis in original). Thus, rejection of the proposed HAC aggravator does not necessarily negate a finding of CCP.

Based on the above, there is competent, substantial evidence to support the trial court’s finding of CCP.

III. Ring

Calhoun asserts that Florida’s death penalty statute violates the United States Supreme Court decision in Ring. “[W]e have repeatedly rejected constitutional challenges to Florida’s death penalty under Ring.” Ault v. State, 53 So.3d 175, 206 (Fla.2010) (citing Jones v. State, 845 So.2d 55, 74 (Fla.2003); Bottoson v. Moore, 833 So.2d 693 (Fla.2002); King v. Moore, 831 So.2d 143 (Fla.2002)). We decline to revisit our decisions in Bottoson and King on this issue. Also, because the jury found Calhoun guilty of kidnapping, it found the facts supported the trial court’s application of the “during the course of a kidnapping” aggravator, which satisfies the requirements of Ring. See, e.g., Salazar v. State, 991 So.2d 364, 378 (Fla.2008) (“Also, because the jury found Salazar guilty of burglary and attempted murder, it found the facts supporting the trial court’s application of the ‘during the course of a felony aggravator.”); Johnson v. State, 969 So.2d 938, 961 (Fla.2007) (“Second, Johnson is not entitled to relief under Ring because the ‘murder in the course of a felony ag-gravator’ rests on the separate convictions of kidnapping and sexual battery, which satisfies Sixth Amendment requirements”.).

IV. Sufficiency of the Evidence

Although not raised by Calhoun, “this Court has a mandatory obligation to independently review the sufficiency of the evidence in every case in which a sentence of death has been imposed.” Miller v. State, 42 So.3d 204, 227 (Fla.2010); Jones v. State, 963 So.2d 180, 184 (Fla.2007). “In determining the sufficiency of the evidence, the question is whether, after viewing the evidence in the light most favorable to the State, a rational trier of fact could have found the existence of the elements of the crime beyond a reasonable doubt.” Miller, 42 So.3d at 227 (quoting Bradley v. State, 787 So.2d 732, 738 (Fla.2001)).

“Where a conviction is based wholly upon circumstantial evidence, a special standard of review applies.” McDuffie v. State, 970 So.2d 312, 330 (Fla.2007) (quoting Darling v. State, 808 So.2d 145, 155 (Fla.2002)).

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. The question of whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine, and where there is substantial, competent evidence to support the jury verdict, we will not reverse.

Reynolds v. State, 934 So.2d 1128, 1145-46 (Fla.2006) (quoting Darling, 808 So.2d at 155).

[This Court’s] view of the evidence must be taken in the light most favorable to the state. The state is not required to rebut conclusively every possible variation of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant’s theory of events. Once that threshold burden is met, it becomes the jury’s duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt.

McDuffie, 970 So.2d at 330 (quoting Orme v. State, 677 So.2d 258, 262 (Fla.1996)).

The jury in this case was instructed on both premeditated murder and felony-murder. Because the guilty verdict was rendered on a general form, the evidence must support either premeditated murder or felony-murder. Dessaure v. State, 891 So.2d 455, 472 (Fla.2004).

Premeditation is defined as more than a mere intent to kill; it is a “fully formed conscious purpose to kill.” Evans v. State, 838 So.2d 1090, 1095 (Fla.2002) (quoting Woods v. State, 733 So.2d 980, 985 (Fla.1999)). “This purpose may be formed a moment before the act but must exist for a sufficient length of time to permit reflection as to the nature of the act to be committed and the probable result of that act.” Bradley v. State, 787 So.2d 732, 738 (Fla.2001) (quoting Woods, 733 So.2d at 985). Premeditation may be inferred from such facts as “the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed, and the nature and manner of the wounds inflicted.” Id. (quoting Norton v. State, 709 So.2d 87, 92 (Fla.1997)). “Leaving a wounded, living victim trapped in a burning vehicle is sufficient evidence from which to infer premeditation.” Kocaker v. State, 119 So.3d 1214, 1226 (Fla.), cert. denied, -U.S. -, 133 S.Ct. 2743, 186 L.Ed.2d 200 (2013).

There is sufficient evidence to support Calhoun’s conviction for first-degree murder. Harvey Glenn Bush saw Calhoun ask Brown for a ride on December 16, 2010, and Brown responded that she would pick him up after work. Brown drove a 2000 white, four-door Toyota Avalon. Brown drove up to Jerry Gammons’ trailer in a light colored, four-door ear and knocked on his door at about 8:40 p.m. on December 16, and asked for Calhoun. Calhoun’s trailer was located approximately one road from Gammons’ trailer.

Brown’s purse was found in Calhoun’s trailer. Blood found on a roll of duct tape in Calhoun’s trailer was a major donor match to Brown’s DNA and a minor donor partial match to Calhoun’s DNA. Blood found on blankets taken from Calhoun’s trailer matched Calhoun and Brown. DNA from hair that had been pulled out of the scalp and found in Calhoun’s trailer also matched Brown.

Calhoun came into the convenience store in which Sherry Bradley worked in the early morning of December 17. Bradley noticed scratches and dried blood on Calhoun’s hands. Calhoun had on a white shirt that had spots of blood on it and his fingernails had black underneath them. Calhoun was driving a white, four-door car with a Florida license plate.

Witnesses noticed smoke from the highway in Geneva, Alabama, on December 17, at approximately 11 a.m. Dick Mowbry found a burnt white Toyota with no license plate on December 20. The VIN on the car was matched to a 2000 Toyota Avalon. Samples from the right front quarter and left quarter of the car tested positive for ignitable liquid. The entire inside of the car was burnt and Brown’s remains were found in the trunk. The hands and lower limbs had been burnt off. Dr. Stephen Boudreau, the medical examiner, determined that the cause of death was smoke inhalation and thermal burns and that the death was a homicide.

Tiffany Brooks found Calhoun in her family’s shed on December 18, on the ground wrapped in sleeping bags. Investigator Raley went to the site of Brown’s car on December 20. Raley noted that the car was near Coleman Road approximately 1,488 feet from Calhoun’s campsite. The Brooks’ residence was approximately 1.5 miles from Brown’s car.

Based on the above, there is sufficient evidence to support the finding of first-degree murder.

Additionally, we find that there is sufficient evidence to support a finding of felony-murder. Calhoun was convicted of kidnapping pursuant to section 787.01(l)(a)2., Florida Statutes (2009).

(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:
2. Commit or facilitate commission of any felony.

There is sufficient evidence to support the conviction of kidnapping. As stated above, witnesses placed Brown as having been last seen headed toward Calhoun’s trailer on the night of December 16 and witnesses heard Brown tell Calhoun she would pick him up that night. Her blood and hair were found in his trailer. Brown’s remains were found in the trunk of her car in the woods in Alabama with coaxial cable wrapped around what remained of her upper arms and duck tape around her neck. The medical examiner testified that smoke and carbon dioxide were found in her lung tissue, indicating that Brown was alive while she was bound in the trunk of the car and the car was lit on fire. As provided above, the medical examiner testified that Brown died as a result of smoke inhalation and thermal burns, and that the death was a homicide. Therefore, there is sufficient evidence to support the conviction of kidnapping with intent to facilitate the commission of the felony of murder.

The hypothesis of innocence that Calhoun was not at his trailer when Brown arrived to pick him up on the night of December 16 and someone else broke into Calhoun’s trailer and killed Brown is negated by the evidence presented by the State. Specifically, Calhoun’s blood was found on items in his trailer that also contained Brown’s blood. Sherry Bradley saw Calhoun driving a car that matched the description of Brown’s car in the early morning of December 17. When Bradley asked Calhoun how he got scratches and blood on him, Calhoun responded that he had been deer hunting. The theory that someone broke into Calhoun’s trailer was negated by Brittany Mixon’s testimony that she and Calhoun lost the key to his trailer months before and had to pry the door open each time they used the door. The theory that Mixon framed Calhoun for the murder by planting evidence in his trailer is negated by the testimonies of other witnesses who watched her each time Mixon went into Calhoun’s trailer on December 17. The witnesses testified that Mixon never brought anything into Calhoun’s trailer and only stayed inside about one minute each time she went inside the trailer. Thus, the evidence was inconsistent with Calhoun’s hypothesis of innocence that another individual committed the murder.

In light of the foregoing, we find that the evidence sufficiently established each element of premeditated first-degree murder and felony-murder.

Proportionality

“[T]o ensure uniformity in death penalty proceedings, ‘we make a comprehensive analysis in order to determine whether the crime falls within the category of both the most aggravated and the least mitigated of murders, thereby assuring uniformity in the application of the sentence.’ ” Floyd v. State, 913 So.2d 564, 578 (Fla.2005) (quoting Anderson v. State, 841 So.2d 390, 407-08 (Fla.2003)). We have described our “proportionality review” as involving “a thoughtful, deliberate proportionality review to consider the totality of circumstances in a case, and to compare it with other capital cases.” Tillman v. State, 591 So.2d 167, 169 (Fla.1991) (quoting Porter v. State, 564 So.2d 1060, 1064 (Fla.1990) (emphasis omitted)). “This entails ‘a qualitative review by this Court of the underlying basis for each aggravator and mitigator rather than a quantitative analysis.’ In other words, proportionality review ‘is not a comparison between the number of aggravating and mitigating circumstances.’ ” Offord v. State, 959 So.2d 187, 191 (Fla.2007) (citations and emphasis omitted).

As discussed above, we have stricken the trial court’s finding of the avoiding arrest aggravator. The trial court appropriately found two aggravators: (1) cold, calculated, and premeditated (very great weight), and (2) during the commission of a kidnapping (great weight). The trial court also gave the jury recommendation of death by a vote of nine to three great weight. The trial court found one statutory mitigator: no significant history of criminal activity (significant weight), and five nonstatutory mitigators: (1) good jail conduct pending and during trial (little weight), (2) positive role model to other inmates (some weight), (3) capable of forming loving relationships (little weight), (4) childhood history (little weight), and (5) will be incarcerated for the remainder of his life with no danger to others (minimal weight).

The death sentence is proportional in this case. See Hayes v. State, 581 So.2d 121, 127 (Fla.1991) (affirming death sentence where evidence established two aggravating circumstances of CCP, and commission during a robbery and pecuniary gain merged as one, one statutory miti-gator of age, and nonstatutory mitigators of low intelligence, learning disabled, and deprived background); see generally Foster, 778 So.2d at 920-22 (finding the death penalty proportional where the trial court found two aggravators, avoid arrest and CCP, both accorded great weight, no statutory mitigators and twenty-three nonstat-utory mitigators, assigned very little to no weight); Sliney v. State, 699 So.2d 662, 671-72 (Fla.1997) (finding death penalty proportional with two aggravating circumstances, commission during a robbery and avoid arrest, two statutory mitigators, age and lack of criminal history, and several nonstatutory mitigators, good prisoner, politeness, good neighbor, caring person, good school record, gainful employment).

CONCLUSION

Based on the foregoing, we affirm Calhoun’s convictions of kidnapping and first-degree murder and his respective sentences of 100 years of imprisonment and death.

It is so ordered.

PARIENTE, QUINCE, LABARGA, and PERRY, JJ., concur.

POLSTON, C.J., and CANADY, J„ concur in result.

LEWIS, J., concurs in part and dissents in part, with an opinion.

LEWIS, J.,

concurring in part and dissenting in part.

I concur in the opinion with regard to all phases of the analysis except striking the “avoid arrest” aggravating factor. The sole, dominant, and fundamental motive for the actual death here was to avoid arrest, the proof of which was supported by competent, substantial evidence.

      . Spencer v. State, 615 So.2d 688 (Fla.1993).

      . Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).


source: Caselaw Access Project

author: PER CURIAM. PARIENTE, J.,

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Susan K.W. ERLENBACH, Respondent.
    No. SC10-1793.
    Supreme Court of Florida.
    May 1, 2014.
    John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL; Adria E. Quíntela, Staff Counsel, The Florida Bar, Sunrise, FL; and Jan K Wichrowski, Bar Counsel, The Florida Bar, Orlando, FL, for Complainant.
    Mark Stephen Peters of Berry and Peters, Viera, FL, for Respondent.
   PER CURIAM.

We have for review an uncontested referee’s report recommending that Susan K.W. Erlenbach be found guilty of professional misconduct and suspended for eighty-nine days, followed by a two-year period of probation. We have jurisdiction. See art. V, § 15, Fla. Const. After considering the parties’ responses to our order to show cause, we approve the referee’s findings of fact and recommendations of guilt. We disapprove the recommended sanction and, instead, impose a one-year suspension, followed by a two-year period of probation.

FACTS

The Florida Bar filed a complaint alleging that Respondent Susan K.W. Erlen-bach had engaged in ethical misconduct. The case was referred to a referee to make findings of fact, recommendations as to guilt, and recommend a disciplinary sanction. Before the referee, the parties stipulated to facts that support a recommendation that Respondent is guilty of violating Rules Regulating the Florida Bar 3-4.3 (commission of an act that is unlawful or contrary to honesty and justice) and 4-8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation). The referee has submitted a report to the Court based on the parties’ stipulation, in which the referee made the following findings of fact and recommendations.

Respondent has failed to file timely joint tax returns for the tax years 1997, 1998, 1999, 2000, 2001, 2002, 2004, 2005, and 2006, even after the extensions permitted by the Internal Revenue Service (IRS). Also, Erlenbach sought and received a discharge of liability for the taxes, interest, and penalties due for tax years 1998, 1999, 2000, 2001, 2002, 2003, 2004, and 2005. She presently owes taxes, interest, and penalties to the Department of Treasury for tax years 2006, 2007, 2008, and 2009. The failure to file tax returns as required by the Internal Revenue Code is a violation of the Bar rules. See Fla. Bar v. Behm, 41 So.3d 136 (Fla.2010); Fla. Bar v. Marks, 376 So.2d 9 (Fla.1979).

There was no evidence that Respondent attempted to evade responsibility for personal income taxes. The delays in filing the personal tax returns occurred during periods when Erlenbach was preoccupied not only with her law practice but with caring for several members of her extended family who had serious medical conditions from the middle 1990s through 2006. The IRS has imposed significant financial penalties and interest for the late tax returns, but has not charged her with a crime. Respondent has made payments in excess of $500,000 toward past due taxes, interest, and penalties.

In addition, Erlenbach withheld federal income tax, social security tax, and Medicare tax from employees of her professional association, “Susan K.W. Erlenbach, P.A.,” but failed to pay the sums withheld over to the Department of the Treasury as required by the Internal Revenue Code. Respondent engaged in this activity intermittently from 2006 through 2008. As a result, the IRS determined that Respondent’s professional association and Respondent individually owe a total of $13,634.05. Erlenbaeh and the IRS have agreed to a payment plan, which Erlenbaeh is following by making monthly payments as required by the agreement. More than half of this debt had been paid by the time of the hearing before the referee. The referee found that Erlenbach’s failure to remit employment taxes was not based upon greed or selfish motivation. Her lifestyle was not, and is not, lavish. The referee found that her failure to pay the withhold-ings and the employer’s matching share is due to poor business management of her practice’s finances.

Erlenbach’s intentional failure to pay the Department of the Treasury the funds that were withheld from her employees constitutes violations of 26 U.S.C. § 7202, “Willful failure to collect or pay over tax,” and 26 U.S.C. § 7203, “Willful failure to file return, supply information, or pay tax.” Although Erlenbaeh has not been charged with or convicted of any misdemeanor or felony for her misdeeds, the failure to pay the funds withheld from employees to the federal government violates Bar rules 3-4.3 and 4-8.4(c). Respondent has a repayment agreement with the IRS and is performing her obligations under the agreement. Also, she has admitted that her failure to file timely joint personal tax returns, failure to pay her joint income tax obligations, and failure to pay withholdings violate Bar rules 3-4.3 and 4 — 8.4(c). Er-lenbach has accepted responsibility for her misconduct.

With regard to aggravating factors, Respondent has been the subject of three prior disciplinary proceedings. The first ease, in 2001, resulted in a finding of minor misconduct, admonishment, and one year of probation. For the second case, which occurred in 2006, Erlenbaeh received a public reprimand and two years of probation. In the third case, in 2007, she was the subject of a petition for contempt for failing to comply with the terms of her disciplinary probation. She was suspended in July 2007 subject to her suspension being lifted upon compliance with the terms of probation. Respondent’s suspension was lifted in October 2007 and she completed her probationary period without further incident. Her prior disciplinary cases in 2006 and 2007 are aggravating factors.

The second aggravating factor is that Respondent’s repeated late filing of tax returns and failure to pay taxes demonstrate a pattern of misconduct. She failed to pay over her employees’ withheld taxes to the federal government in 2006, 2007, and 2008.

The third aggravating factor is that Er-lenbach has been practicing law since 1982, so she is experienced as an attorney.

As for mitigating factors, Respondent has admitted that she failed to pay federal income taxes, failed to timely file federal income tax returns, and failed to pay money withheld from her law firm’s employees. She has admitted to violating Bar rules 3-4.3 and 4-8.4(c). Erlenbaeh has accepted responsibility for her misconduct, expressed remorse, and cooperated during these proceedings.

An extensive number of judges and attorneys testified that Respondent is an able advocate who vigorously represents her clients in a capable and professional manner. The witnesses’ testimonies indicate that Respondent enjoys a good professional and ethical reputation among her clients, other attorneys, and the judiciary. She provides valuable legal services to her clients, many of whom could not afford an attorney but for her.

Next, Respondent has put in place procedures to avoid any continued violation of the regulations regarding tax withholdings. Also, she has established a payment schedule to repay the taxes due and has paid more than fifty percent of those amounts.

Further, Erlenbach provides services as an advocate to many clients who are underprivileged and whose rights would otherwise not be protected by a skilled advocate. She has actively provided legal services for the less fortunate for the past twenty years.

In addition, the personal and emotional problems Respondent was experiencing were a substantial contributing factor in her misconduct. Her financial problems occurred during the same period that: (1) her husband had been diagnosed with and was being treated for cancer, and (2) there was an economic decline in her geographic area due to termination of the space shuttle program. Also, she suffers from depression and severe anxiety.

. As a disciplinary sanction, the referee recommended an eighty-nine-day suspension, followed by a two-year period of probation, and payment of disciplinary costs totaling $4,274.20. The conditions of probation would include quarterly reports to the Bar reflecting payment of all taxes due for Respondent’s law firm’s employees and payment of any personal income tax due on Respondent’s individual income. As a term of probation, Erlenbach would submit to the IRS an offer and compromise concerning her personal tax debt.

THE COURT’S REVIEW

After the referee submitted the report, the Court reviewed the referee’s findings and recommendations. See R. Regulating Fla. Bar 3-7.7(a)(2) (the Court shall review all reports of referees recommending probation, public reprimand, suspension, disbarment, or resignation pending disciplinary proceedings). Considering the Court’s established case law, the referee’s recommended sanction did not appear to be appropriate. Of the six eases cited by the referee to support the recommended sanction, five cases were decided in or before 1985. The sixth case was decided in 1994. The sanctions imposed in those specific cases are lenient when compared to more recent case law. In 2002, the Court commenced imposing more severe sanctions for attorney misconduct. See Fla. Bar v. Rotstein, 835 So.2d 241, 246 (Fla.2002). Thus, for the instant case, the Court issued an order directing the parties to show cause why it should not disapprove the referee’s recommended discipline and why a harsher sanction should not be imposed. See R. Regulating Fla. Bar 3-7.7(c)(6)(A) (the Court may direct the parties to submit briefs directed to the appropriateness of the disciplinary measure recommended by the referee). The parties have filed separate responses to the order, which are discussed below.

ANALYSIS

In reviewing a referee’s recommended discipline, this Court’s scope of review is broader than that afforded to the referee’s findings of fact because, ultimately, it is our responsibility to order the appropriate sanction. See Fla. Bar v. Anderson, 538 So.2d 852, 854 (Fla.1989); see also art. V, § 15, Fla. Const. However, generally speaking, this Court will not second-guess the referee’s recommended discipline as long as it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions. See Fla. Bar v. Temmer, 753 So.2d 555, 558 (Fla.1999).

Respondent asserts that the referee’s recommended sanction is supported. She cites several cases to support a non-rehabilitative suspension, all but two of which were decided well over twenty-five years ago in the 1960s through 1980s. One of the more recent cases Erlenbach cites is Florida Bar v. Smith, 650 So.2d 980 (Fla.1995). Respondent argues that Smith supports the referee’s recommended sanction because the respondent in Smith received a six-month suspension based on his conviction for tax evasion. However, Respondent is misguided because the Court imposed a three-year suspension in Smith. Further, under the Court’s more recent case law, such as Behm, 41 So.3d at 138, it is likely Smith would receive a more severe sanction if his case were decided today.

The Bar also argues that the referee’s recommended sanction is supported. The Bar relies upon Florida Bar v. Pearce, 631 So.2d 1092 (Fla.1994), in which the respondent received a forty-five-day suspension for failing to file personal income tax returns for a period of two years. Here, Erlenbach failed to file timely joint tax returns for nine years, which violated Bar rules 3-4.3 and 4~8.4(c). Further, she withheld funds for federal income tax, social security tax, and Medicare tax from her employees, but did not pay those funds to the Treasury Department as required by federal law. This misconduct constitutes additional violations of Bar rules 3-4.3 and 4-8.4(c). Thus, the misconduct in Pearce is significantly different from the misconduct in the present case. However, the Court’s statement in Pearce directly speaks to Erlenbach’s conduct — attorneys have a “special obligation to obey the law.” Id. at 1092.

It is well established that attorneys’ compliance with tax requirements is an issue that the Court takes very seriously. The Court has stated that “As guardians of the law, lawyers have a special obligation to honor the law themselves, including the tax laws.” Fla. Bar v. Del Pino, 955 So.2d 556, 560-61 (Fla.2007). In Del Pino, the respondent received a three-year suspension based in part on her conviction for filing a false motion for an extension to file and pay taxes. Id. at 558-59. The Court expressly noted that, but for significant mitigation, the respondent in Del Pino would have been disbarred. Id. at 563. Also, the Court clearly stated that it will discipline “attorneys for failing to live up to the duty of every citizen to pay federal income taxes.” Id. at 561.

In Florida Bar v. Weed, 559 So.2d 1094, 1096 n. 4 (Fla.1990), we expressly approved the referee’s finding that the respondent’s “failure to file tax returns amounted to engaging in illegal conduct involving moral turpitude_” This misconduct, along with other misdeeds, resulted in a three-year suspension for Weed. See Smith, 650 So.2d at 981-82 (suspending an attorney for three years for tax evasion and other misconduct where the attorney had underreported his income due to financial pressures and an inability to pay the full tax owed).

Similarly, in Florida Bar v. Cimbler, 2008 WL 2522532, *1 (Fla.2008) (table citation at 994 So.2d 306 (Fla.2008)), the Court stated that “Cimbler’s failure to timely file income tax returns and to timely pay income taxes is condemned and constitutes a failure of responsibility and a failure to be a responsible citizen.” The Court disapproved the referee’s recommended period of suspension, stating that “Such actions by a member of The Florida Bar warrant a longer suspension than that recommended by the referee.” The Court imposed a two-year suspension followed by a three-year period of probation as the appropriate sanction.

In the instant case, Erlenbach failed to file timely joint tax returns for nine years, even after the extensions permitted by the IRS. Next, although Respondent received a discharge of liability for the taxes, interest, and penalties due for tax years 1998, 1999, 2000, 2001, 2002, 2003, 2004, and 2005, she still owes taxes, interest, and penalties for the 2006, 2007, 2008, and 2009 tax years. Erlenbach is clearly failing to abide by the laws that citizens are required to address each year. Further, the misconduct at issue is not an isolated lapse of judgment. Erlenbach’s failures to comply with the tax requirements extend over a significant span of time — the referee found she has failed to comply with tax requirements for 13 years — which is intolerable as she is a professional who is responsible for assisting others with their legal issues. In Florida Bar v. Lord, 433 So.2d 983, 986 (Fla.1983), the Court found the respondent’s repeated failures to file income tax returns for an extended period “reflected] a flagrant and deliberate disregard for the very laws which respondent took an oath to uphold.”

Next, Respondent engaged in additional misconduct by withholding federal taxes from her employees, but then failing to pay the sums withheld to the federal government. This failure occurred “intermittently from 2006 until 2008.” We note that Respondent filed her quarterly tax returns in a timely manner even when she was unable to remit the entire amount of taxes owed; thus, it appears she was candid with the IRS about these financial problems.

Erlenbach’s conduct violates the Bar rules because she has committed acts that are unlawful or contrary to honesty and justice (rule 3-4.3) and she has engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation (rule 4-8.4(c)). The Court has repeatedly shown that it views an attorney’s compliance with the tax laws as a very serious matter. See Behm, 41 So.3d at 148-149 (the Court discussed disciplinary cases involving attorneys and tax requirements which resulted in disbar-ments or three-year suspensions).

Case law demonstrates that attorneys who fail to comply with tax laws are subject to severe sanctions. Here, the referee found that Erlenbach did not seek to evade paying taxes; rather, she did not have the financial means to make the payments. Also, Respondent has a repayment agreement with the IRS and the referee found that she is meeting her financial responsibilities under the agreement. Further, the referee found significant mitigation. For these reasons, we find that the appropriate sanction for Respondent is a one-year suspension followed by a two-year period of probation. The conditions of probation include quarterly reports to the Bar reflecting payment of all taxes due for Respondent’s law firm’s employees and payment of any personal income tax due on Respondent’s individual income.

CONCLUSION

Accordingly, we approve the referee’s findings of fact, recommendations of guilt, and award of costs. We disapprove the referee’s recommended sanction of suspension for eighty-nine days. Susan K.W. Erlenbach is hereby suspended from the practice of law for one year, followed by a two-year period of probation. The suspension will be effective thirty days from the date of this opinion so that Susan K.W. Erlenbach can close out her practice and protect the interests of existing clients. If Respondent notifies this Court in writing that she is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the suspension effective immediately. Susan K.W. Erlenbach shall fully comply with Rule Regulating the Florida Bar 3-5.1(h), “Notice to Clients.” Respondent shall accept no new business from the date this opinion is filed until she is reinstated by order of this Court.

Further, we approve the referee’s recommended conditions of probation, which include quarterly reports to The Florida Bar reflecting payment of all taxes due for Respondent’s law firm’s employees and payment of any personal income tax due on Respondent’s individual income.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Susan K.W. Erlenbach in the amount of $4,274.20, for which sum let execution issue.

It is so ordered.

POLSTON, C.J., and QUINCE, CANADY, and LABARGA, JJ., concur.

LEWIS, J., concurs in result.

PARIENTE, J., dissents with an opinion, in which PERRY, J., concurs.

PARIENTE, J.,

dissenting.

I respectfully dissent from the majority’s decision to reject the referee’s recommended discipline, which was agreed to by The Florida Bar and the Respondent, consisting of an eighty-nine-day suspension followed by a two-year period of probation, and instead suspend the Respondent for one year followed by a two-year period of probation. In imposing a much harsher sanction than was recommended by the referee and concluding that the referee’s recommended discipline was without a reasonable basis in existing case law, the majority, in my view, erroneously relies on prior cases from this Court that are readily distinguishable from this case. While a review of this Court’s recent decisions on similar issues reveals that disbarment or a prolonged suspension, as imposed by the majority, is appropriate in some cases where an attorney fails to timely file tax returns, this Court has not recently addressed a case presenting misconduct that is similarly less aggravated and more mitigated as the Respondent’s, which was not predicated upon selfish motive and did not result in a criminal conviction as in the cases cited by the majority.

Unlike the majority, I would uphold the referee’s recommended discipline, which is a conclusion that is supported by the fact that the purposes behind lawyer discipline are not furthered — and are actually thwarted — by the sanction imposed by the majority. In addition to the fact that no clients were harmed by the Respondent’s actions and that there is extensive mitigation in this case, the extended rehabilitative suspension imposed by the majority will cause great hardship to the Respondent’s pro bono clients and will also impair the Respondent’s ability to meet her continuing obligations to the Internal Revenue Service (IRS).

The discipline being imposed on the Respondent arises from her failure to timely file joint personal tax returns and her failure to pay her employees’ withheld taxes to the federal government. As the majority acknowledges, there was “no evidence that Respondent attempted to evade responsibility for personal income taxes.” Majority op. at 870. Indeed, as the majority notes, the failures that produced the misconduct at issue occurred as a result of the Respondent’s inability to pay the required taxes, during a time that she was “caring for several members of her extended family who had serious medical conditions.” Id. Further, the Respondent has subsequently taken responsibility for her actions, has entered into a monthly payment plan with the IRS to repay her back taxes, and has already made payments to the IRS in excess of $500,000.

As for the Respondent’s failure to pay her employees’ withheld taxes to the IRS, the majority also recounted the referee’s findings that the Respondent’s “failure to remit employment taxes was not based upon greed or selfish motivation,” and that the Respondent’s “lifestyle was not, and is not, lavish.” Majority op. at 371. Instead, as noted by the referee, the Respondent’s failure to pay the withholdings and the employer’s matching share was based solely upon the Respondent’s poor management of her practice’s finances. While this certainly does not justify her misconduct, it illustrates that the Respondent’s actions do not justify the severe sanction imposed by the majority. Moreover, the Respondent has also accepted responsibility for this misconduct and has entered into another payment plan with the IRS in order repay the employment taxes she failed to remit.

On the other side of the equation, the Respondent also presented substantial mitigating evidence before the referee, who was able to fully weigh this mitigating evidence in recommending appropriate discipline. The referee heard testimony from no less than nineteen witnesses, including distinguished judges and lawyers, who testified as to the Respondent’s good character and reputation, her continued commitment to provide legal services to the poor, and the fact that her derelictions were not motivated by personal greed but by personal circumstances. Indeed, it is undisputed that the Respondent has actively provided legal services for the less fortunate for the past twenty years.

The majority itself notes the “extensive number” of judges and attorneys who testified that the Respondent “is an able advocate who vigorously represents her clients in a capable and professional manner ... enjoys a good professional and ethical reputation among her clients, other attorneys, and the judiciary ... [and] provides valuable legal services to her clients, many of whom could not afford an attorney but for her.” Majority op. at 371. Some of the distinguished jurists who testified on the Respondent’s behalf included Judges Bruce W. Jacobus and Vincent Torpy, of the Fifth District Court of Appeal, and Judge J. Preston Silvernail, of the Eighteenth Judicial Circuit Court.

While the majority explicitly acknowledges all of this mitigation, it nevertheless concludes that even though the Bar continues to advocate for the agreed-to sanction recommended by the referee, the failure to file joint personal tax returns for such a lengthy period of time deserves much more serious discipline. Although I appreciate the aggravating factors found by the referee, and admit that failing to file tax returns constitutes serious misconduct, I conclude that the underlying misconduct in this case is substantially different than in the cases relied on by the majority and that this case involves the type of mitigation that does not require a rehabilitative sanction. Both of these factors differentiate this case from this Court’s recent decisions in which the Court has disciplined attorneys for failing to timely file tax returns.

In Florida Bar v. Behm, 41 So.3d 136, 148-149 (Fla.2010), this Court discussed the range of recent cases in which this Court has disciplined attorneys who failed to timely file tax returns. For example, in Florida Bar v. Del Pino, this Court suspended an attorney for three years who had failed to file personal tax returns for several years based on a selfish motive, was convicted of two felonies, and had filed a false application for extension of time to file an income tax return. 955 So.2d 556, 558-59 (Fla.2007); see also Fla. Bar v. Smith, 650 So.2d 980, 981-82 (Fla.1995) (suspending an attorney for three years for two tax evasion convictions and other misconduct); Fla. Bar v. Nedick, 603 So.2d 502, 503 (Fla.1992) (disbarring an attorney based on a conviction for tax evasion and for filing a false tax return based upon a dishonest or selfish motive); Fla. Bar v. Weed, 559 So.2d 1094, 1096 (Fla.1990) (suspending an attorney for three years where the attorney was convicted for failure to file tax returns and also neglected legal matters). The majority relies on Del Pino, as well the other cases cited in Behm, as support for rejecting the referee’s recommended discipline and imposing a much harsher sanction. This reliance is misplaced, however, as each of these cases is readily distinguishable from this case.

Unlike the cases cited in Behm, the Respondent in this case did not willfully seek to avoid paying taxes, was truthful, was not charged with or convicted of any related crime, and has subsequently taken significant steps to remedy her past derelictions. Moreover, the mitigating circumstances underlying the Respondent’s misconduct demonstrate that her misconduct is qualitatively different than the misconduct in those cases where this Court has imposed harsh discipline. These differences highlight why the type of discipline imposed by this Court in the past is inappropriate in this case and provide support for imposing the type of discipline recommended by the referee.

The only recent case cited by the majority that could potentially support the majority’s rejection of the referee’s recommended discipline is Florida Bar v. Cimbler, 994 So.2d 306 (Fla.2008) (table decision), in which this Court suspended an attorney for two years for failure to timely file tax returns. However, Cimbler is unpublished and provides no background into the attorney’s misconduct. In the absence of any factual context for this Court’s decision to impose a two-year suspension in Cimbler, it is unclear whether this case is on point, and thus it cannot form the basis for overturning the referee’s recommended discipline because it does not establish that the referee’s recommended sanction had no reasonable basis in existing case law.

Additionally, the discipline imposed by the majority does not further the purposes that underlie attorney discipline, as articulated by this Court. In determining whether a sanction is appropriate, this Court has stated that it takes into account the following three purposes:

First, the judgment must be fair to society, both in terms of protecting the public from unethical conduct and at the same time not denying the public the services of a qualified lawyer as a result of undue harshness in imposing penalty. Second, the judgment must be fair to the respondent, being sufficient to punish a breach of ethics and at the same time encourage reformation and rehabilitation. Third, the judgment must be severe enough to deter others who might be prone or tempted to become involved in like violations.

Behm, 41 So.3d at 150 (quoting Fla. Bar v. Barrett, 897 So.2d 1269, 1275-76 (Fla.2005)). In light of these purposes, I believe the harsh sanction imposed by the majority is inappropriate. Although the majority’s sanction is undeniably severe enough to satisfy this Court’s goal of deterring future misconduct, this penalty does not further the remaining two purposes of attorney discipline.

In imposing attorney discipline, this Court must not deny the public the services of a qualified lawyer as a result of undue harshness. Id. As recognized by both the referee and the majority, many of the Respondent’s clients could not afford a lawyer if she did not agree to represent them. By suspending the Respondent from the practice of law for an extended period of time, this Court is denying the public the services of á competent lawyer, willing to represent those who would otherwise go unrepresented, for longer than is necessary to adequately punish the Respondent for her misconduct.

Further, the harsh punishment imposed by the majority is unfair to the Respondent, because it will severely impede her ability to satisfy her obligations to the IRS. Without the ability to practice law for one year, the Respondent will surely experience difficulty in making the monthly payments she is obligated to make pursuant to her IRS payment plans. In my opinion, where an attorney has admitted her misconduct, has shown remorse, and has taken steps to repay the taxes that she previously failed to pay, it is counterintui-tive to impose a lengthy suspension that will surely impair that attorney’s ability to repay the unpaid .taxes that are at the center of the misconduct.

It is also important to note that the majority’s decision to impose much harsher discipline than was recommended by the referee and was agreed to by The Florida Bar disregards the important considerations underlying this Court’s historical deference to a referee’s recommended discipline. See Fla. Bar v. Glueck, 985 So.2d 1052, 1058 (Fla.2008) (“[Gjenerally speaking, this Court will not second-guess the referee’s recommended discipline as long as it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions.”). This Court has explained that it generally defers to the discipline recommended by the referee in bar discipline cases because “[t]he referee, as finder of fact in Bar disciplinary proceedings, is in a unique position to assess the credibility of witnesses and appraise the circumstances surrounding alleged violations,” and that the referee “occupies a favored vantage point for assessing key considerations — such as a respondent’s degree of culpability and his or her cooperation, forthrightness, remorse, and rehabilitation (or potential for rehabilitation).” Fla. Bar v. Lecznar, 690 So.2d 1284, 1287-88 (Fla.1997). By rejecting the. referee’s recommended discipline without any precedent showing that the sanction put forth by the referee was inappropriate, the majority discounts the referee’s superior vantage point in assessing the unique nature of the Respondent’s case and neglects this Court’s historical deference to the referee’s recommended discipline.

Although the majority is correct that this Court takes very seriously an attorney’s compliance with tax requirements, this concern does not, standing alone, justify the harsh sanction that is imposed by the majority in this case. In my view, the mitigating circumstances that contributed to the Respondent’s misconduct, as well as the mitigating evidence presented before the referee, support the referee’s recommended discipline. Accordingly, because the majority’s rejection of the referee’s recommended discipline, which was agreed to by The Florida Bar and the Respondent, is predicated upon distinguishable case law and because the much harsher sanction imposed by the majority does not further this Court’s purposes for attorney discipline, I dissent.

PERRY, J., concurs.

        . The Court issued an order directing the parties to show cause why it should not disapprove the referee's recommended sanction and why a harsher sanction should not be imposed. Fla. Bar v. Erlenbach, SC10-1793 (Fla. Feb. 13, 2013).

      . Although Respondent relies on one case stating that it was issued in 1997, the case was actually issued in 1977. Fla. Bar v. Ryan, 352 So.2d 1174 (Fla. 1977).

      . The sanction imposed by the majority is actually more disparate from the referee’s recommended discipline than it first appears. Under the sanction imposed by the majority, not only will the Respondent be unable to practice law for one year, but, upon the expiration of that suspension, she will have to seek reinstatement — a procedure that is not automatic and oftentimes extends an attorney’s suspension by a substantial, additional period of time. See R. Regulating Fla. Bar 3-7.10 (providing the procedure through which a “lawyer who is ineligible to practice due to a court-ordered disciplinary suspension of 91 days or more’’ may seek to be reinstated to membership in good standing with The Florida Bar).