Grant v. State

• Decision Date: 07 May 2014
• Docket Number: No. 4D12–2801.,4D12–2801.
• Citation: 138 So.3d 1079
• Parties: Jamie Gerard GRANT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

138 So.3d 1079

Jamie Gerard GRANT, Appellant,

v.STATE of Florida, Appellee.

No. 4D12–2801.

District Court of Appeal of Florida,

Fourth District.

May 7, 2014.

Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

GROSS, J.

After a jury trial, Jamie Grant was convicted of (1) attempted armed robbery while wearing a mask and carrying a firearm and (2) possession of a firearm with an altered serial number. We affirm in part and reverse in part, holding that the evidence was sufficient to support Grant's convictions, but insufficient to subject him to mandatory minimum sentencing pursuant to Section 775.087(2), Florida Statutes (2010).¹

The State's Case

On November 17, 2010, at approximately 3:20 p.m., Grant parked his car in the partially concealed driveway of a newly constructed home. He walked about 100 yards to a jewelry store, making his approach from the store's windowless side. Once at the store, Grant “forcefully” yanked twice on the store's entrance door with his left hand, while keeping his right hand in the front pocket of his hooded sweatshirt. The force of Grant's tug was so “aggressive” and strong that it “shook the frame of the store” and alerted every employee to his presence.

Unknown to Grant, due to a recent “snatch and grab” incident, the store's owner installed a security system which required customers to be “buzzed” into the store by an employee. When the owner reached for the buzzer, one employee warned of Grant's potential dangerousness while others yelled, “[D]on't let him in.” This reaction derived not only from Grant's aggressive entry attempt, but primarily from the way he was dressed; despite being a hot day, Grant was wearing a hooded sweatshirt over his head, gloves, and a “do-rag” covering his face from his nose down. Further, when Grant tried to open the door, he kept his right hand in the “sagging” front pocket of his hoodie, as if he was cradling a heavy object.

Apparently recognizing the futility of trying to enter the store, Grant took off running. While Grant was running, observers noticed that he atypically kept his right hand in his hoodie pocket, protecting a “bulging” object; however, none of the witnesses could testify as to what the object actually was. Grant drove away in his car “at a high rate of speed.” Later, the store's owner obtained a surveillance video, which was shown to the jury at trial.

The store owner called the police shortly after Grant left the scene. Upon receiving a BOLO report, Detective Jason Jones began tailing Grant's car in an unmarked vehicle and called for backup. Once backup arrived, Detective Jones turned on his strobe lights and honked his horn to effectuate a stop. However, Grant continued driving for another mile before eventually stopping at a red light.

Once Grant's car came to rest, Detective Rick Lombardo approached on foot from the driver's side, prompting the visibly sweating Grant to state that he was returning the car to his grandmother. As Detective Lombardo came closer, he suddenly yelled “gun!” after observing the butt of a handgun on the passenger seat, “partially wrapped in a pair of gloves which was underneath a black hooded sweatshirt.” Upon this announcement, Grant “twist[ed] towards th[e] direction” of the gun; however, before anything could happen, the detective forcibly removed Grant from the car, placed him on his stomach on the ground, and applied handcuffs.

A search of Grant's person revealed that he had hinged handcuffs in his right rear pocket and a purple velvet Crown Royal bag in his right front pocket. Following the search, Grant lamented to the detectives, “[T]imes are tough, I usually don't do this sort of thing.”

Additionally, from Grant's car, officers recovered an unloaded .357–caliber revolver, a black hooded sweatshirt, sunglasses, a pair of gloves, and a “do-rag type face cover.” At trial, a firearms examiner testified that the revolver was functional, although its “serial number was obliterated.”

Trial Motions and Verdict

After the State rested, Grant made a two-fold motion for judgment of acquittal. First, Grant argued that the State failed to prove the elements of attempted armed robbery, since there was no evidence demonstrating his specific intent to commit a robbery. Second, Grant contended that the evidence was insufficient to show that he “carried” a firearm at the time he tried to enter the jewelry store, since none of the witnesses could identify the object he cradled in his hoodie pocket. The motion was denied.

Following the case's submission, the jury found the defendant guilty as charged of both counts. After a separate hearing, the trial court sentenced Grant to fifteen years imprisonment with a ten-year mandatory minimum, pursuant to section 775.087(2), Florida Statutes (2010), on the attempted robbery charge and to time served on the other charge.

Grant's Intent to Commit Robbery

In his first issue on appeal, Grant contends that the trial court erred in denying his motion for judgment of acquittal as to attempted armed robbery, since the State failed to demonstrate his intention to commit a robbery at the time he tried to enter the jewelry store. However, the surrounding circumstances, including Grant's unusually forceful entry attempt, his attire, his flight, and his admission of an economic motive, were sufficient to send the issue of his intent to the jury.

“The standard of review for the denial of a motion for judgment of acquittal is de novo.” Ortiz v. State, 36 So.3d 901, 902 (Fla. 4th DCA 2010) (citing Pagan v. State, 830 So.2d 792, 803 (Fla.2002)). “ ‘If after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.’ ” Garrido v. State, 97 So.3d 291, 298 (Fla. 4th DCA 2012) (quoting Williams v. State, 59 So.3d 373, 375 (Fla. 4th DCA 2011)).

A person's intent to commit a crime is rarely gleaned from direct evidence. “When the evidence against a criminally accused person is circumstantial, a motion for judgment of acquittal should be granted if the state fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt.” Brothers v. State, 853 So.2d 1124, 1125 (Fla. 5th DCA 2003). In such circumstances, “the proper task of the trial judge is to review the evidence, taking it in the light most favorable to the state, in order to determine whether there is competent evidence from which the jury could infer guilt to the exclusion of all other inferences.” Martin v. State, 728 So.2d 775, 776 (Fla. 4th DCA 1999) (citing State v. Law, 559 So.2d 187, 189 (Fla.1989)). “The State is not ... required to rebut every possible scenario which could be inferred from the evidence. Rather it must introduce competent evidence which is inconsistent with the defendant's theories.” Schwarz v. State, 695 So.2d 452, 454 (Fla. 4th DCA 1997) (citing Law, 559 So.2d at 189).

Robbery is “the taking of money or other property ... with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.” § 812.13(1), Fla. Stat. (2010). “[T]o prove attempted armed robbery, the State must show: (1) the formation of an intent to commit the crime of robbery; (2) the commission of some physical act in furtherance of the robbery; and (3) the use of a firearm.” Franqui v. State, 699 So.2d 1312, 1317 (Fla.1997). “The overt act necessary to fulfill the requirements of attempted robbery ... must be adapted to effect the intent to commit the crime; it must be carried beyond mere preparation, but it must fall short of executing the ultimate design.” Mercer v. State, 347 So.2d 733, 734 (Fla. 4th DCA 1977) (citing Gustine v. State, 86 Fla. 24, 97 So. 207 (1923); Groneau v. State, 201 So.2d 599 (Fla. 4th DCA 1967)).

“The intent with which an act is accomplished is an operation of the mind.” C.E. v. State, 342 So.2d 979, 980 (Fla. 2d DCA 1976). “Because direct evidence of intent is rare, and intent is usually proven through inference, ‘a trial court should rarely, if ever, grant a motion for judgment of acquittal on the issue of intent.’ ” Manuel v. State, 16 So.3d 833, 835 (Fla. 1st DCA 2005) (quoting Washington v. State, 737 So.2d 1208, 1215 (Fla. 1st DCA 1999)).

In the context of attempted armed robbery, “intent may be proved by considering the conduct of the accused and his colleagues before, during, and after the alleged attempt along with any other relevant circumstances.” Franqui, 699 So.2d at 1317 (citing Cooper v. Wainwright, 308 So.2d 182, 185 (Fla. 4th DCA), cert. dismissed,312 So.2d 761 (Fla.1975)). However, the State “must present some competent, substantial evidence from which the jury could infer the defendant's intent to deprive the victim of property.” Fournier v. State, 827 So.2d 399, 401 (Fla. 2d DCA 2002). Mere suspicion, by itself, is insufficient. Ballard v. State, 923 So.2d 475, 482 (Fla.2006).

Grant relies primarily upon Rose v. State, 68 So.3d 377 (Fla. 5th DCA 2011), as an example of unsubstantiated intent.² However, that case is distinguishable because there were fewer markers in Rose of an economic motive for the crime than existed in this case.

In Rose, the victim stepped outside her home after a woman rang her doorbell and asked for directions. Id. at 378. While the victim was talking to the woman, the defendant “came out from behind a bush,” pointed a gun at the victim's face, and told the victim to keep quiet. Id. Terrified, the victim took off running and called the police. Id. After the women were apprehended, police found numerous suspicious items in...