Johnson v. State, 4D04-2854.
| Decision Date | 26 July 2006 |
| Docket Number | No. 4D04-2854.,4D04-2854. |
| Citation | 936 So.2d 672 |
| Parties | Ernest JOHNSON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Victoria Vilchez of Victoria Vilchez & Associates, P.A., West Palm Beach, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
ON MOTION TO SET ASIDE MANDATE
We grant the motion to set aside mandate, withdraw our prior opinion and substitute the following in its place.
We affirm the conviction and sentence of appellant for second degree murder with a firearm. The appellant contends that his conviction should be reversed because it was based entirely on circumstantial evidence which did not refute the appellant's reasonable hypothesis of innocence. We conclude that this was not a circumstantial evidence case, and even if it were, the evidence easily overcomes any reasonable hypothesis of innocence. With respect to his sentence, we also conclude that the trial court did not err in considering two prior convictions proved by a photograph of the appellant and not by fingerprints.
"[C]ourts should not grant a motion for judgment of acquittal unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law." Lynch v. State, 293 So.2d 44, 45 (Fla.1974). A special standard of review applies, however, when proof of the offense depends entirely on circumstantial evidence. Boyd v. State, 910 So.2d 167, 180 (Fla.2005). In such a case, 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." State v. Law, 559 So.2d 187, 188 (Fla.1989).
The appellant argues that the case against him was entirely circumstantial because there was no confession, and none of the state's eyewitnesses saw a gun or specifically testified that they saw the appellant shoot the victim. Contrary to the appellant's position, there was "direct" evidence that the appellant shot the victim. An eyewitness testified that she saw the appellant's arm extended toward the victim and further saw smoke and sparks come from the appellant's hand. The victim dropped to the ground and died. This constitutes direct evidence that the appellant caused the victim's death even though no gun was found and no other physical evidence tied the appellant to the crime.
In the present case, two eyewitnesses testified that they saw the appellant extend his arm and hand toward the victim's head. One witness, Tanya, testified that she saw the appellant's hand "jump" during two shots. Furthermore, another witness, Leona, testified that she saw smoke and sparks of fire coming from the appellant's hand and that the appellant was holding something silver in his hand. Leona testified that she saw the appellant then walk to the front of the victim and again saw smoke and sparks coming from his hand. Moreover, Leona testified that she heard the appellant say, "That's for my brother."
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