Perez v. State

• Court: Florida District Court of Appeals
• Writing for the Court: RAY, J.
• Citation: Perez v. State, 187 So.3d 1279 (Fla. App. 2016)
• Decision Date: 12 April 2016
• Docket Number: No. 1D15–510.,1D15–510.
• Parties: Kyree Luis PEREZ, Appellant, v. STATE of Florida, Appellee.

187 So.3d 1279

Kyree Luis PEREZ, Appellant,

v.STATE of Florida, Appellee.

No. 1D15–510.

District Court of Appeal of Florida, First District.

April 12, 2016.

Nancy A. Daniels, Public Defender, and Maria Ines Suber, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.

RAY, J.

Kyree Luis Perez, Appellant, was convicted of attempted second-degree murder for shooting his former friend, Michael Coley, in the abdomen in response to Coley's provocation to engage in a fist fight. Appellant argues that the trial court should have granted his motion for a judgment of acquittal because the evidence showed only an impulsive overreaction to Coley's behavior, making manslaughter the highest suitable conviction. Contrary to Appellant's argument, the evidence was legally sufficient for the jury to find, as it did, that Appellant shot Coley with the ill will, hatred, spite, or evil intent necessary to support a conviction for attempted second-degree murder. Therefore, we affirm.^*

In the light most favorable to the State, the evidence established the following facts. Appellant and Coley were approximately nineteen and twenty years old, respectively, at the time of the shooting. They lived in the same neighborhood and had been good friends in middle school. At some point, for a reason not revealed at trial, a rift developed in their relationship. They would still interact in a civil manner for neighborhood basketball games, but their differences remained unresolved.

On the evening of the shooting, Coley and a friend were walking along a street when Appellant approached them from behind on a bicycle. Appellant and Coley exchanged words and ended up arguing face-to-face. Appellant and Coley yelled at one another, but neither pushed, shoved, kicked, or punched the other. During the heated verbal exchange, Coley walked toward Appellant, challenging him to a physical fight. Coley testified that he asked Appellant for a "fair fight," one-on-one, to finally settle their differences. Appellant stated that he "wasn't taking no losses," and as Coley walked toward Appellant in pursuit of a fight, Appellant pulled out a gun and put it in Coley's face.

Surprised and angry, Coley pushed the gun away and continued moving towards Appellant, asking if Appellant was seriously pulling a gun on him. From an arm's length away, Appellant put the gun on Coley's stomach, and it "went off." Coley called Appellant's name and said, "[Y]ou shot me." Appellant answered, "I know. I should have killed you." As Coley's friend scrambled away from the scene, Appellant pointed the gun at him. The friend hid behind an electrical box, and both Coley and the friend heard a couple more gunshots shortly after the first one. Appellant then left on his bicycle.

Appellant's bullet entered Coley's abdomen, struck an artery, pierced his lung, and lodged in his spine. Coley was temporarily paralyzed, later suffered serious complications from blood clots, and remained under a doctor's care at the time of trial, approximately seven months after the incident.

Under these facts, we find no error in the denial of Appellant's motion for judgment of acquittal, which focused on the intent element of attempted second-degree murder. A trial court's denial of a motion for judgment of acquittal is reviewed de novo. Jones v. State, 790 So.2d 1194, 1197 (Fla. 1st DCA 2001). If the evidence, when considered in the light most favorable to the State, is capable of supporting a guilty verdict, a motion for judgment of acquittal must be denied. See id. at 1197–98. To grant a motion for judgment of acquittal, the trial court must find that the evidence is legally insufficient to support the elements of the crime. Id. at 1197. Accordingly, the appropriate inquiry on appeal is whether there is competent, substantial evidence to support the elements of the crime and, thereby, support the trial court's denial of the motion. Hobart v. State, 175 So.3d 191, 199 (Fla.2015) (quoting Jackson v. State, 25 So.3d 518, 531 (Fla.2009) ).

Second-degree murder is "[t]he unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual." § 782.04(2), Fla. Stat. (2013). The depraved-mind element of second-degree murder requires "ill will, hatred, spite, or an evil intent." Poole v. State, 30 So.3d 696, 698 (Fla. 2d DCA 2010). In most cases, this intent must be inferred from the circumstances. Antoine v. State, 138 So.3d 1064, 1074 (Fla. 4th DCA 2014) (quoting Williams v. State, 239 So.2d 127, 130 (Fla. 4th DCA 1970) ). To establish that the defendant acted with a depraved mind, the State must present evidence of circumstances showing more than an "impulsive overreaction" to an attack. Wiley v. State, 60 So.3d 588, 591 (Fla. 4th DCA 2011) (citing Light v. State, 841 So.2d 623, 626 (Fla. 2d DCA 2003) ); Dorsey v. State, 74 So.3d 521, 522 (Fla. 4th DCA 2011).

Appellant argues that the shooting was merely an impulsive overreaction to Coley's invitation and approach to fight. Appellant relies on four cases for support: Poole v. State, 30 So.3d 696 (Fla. 2d DCA 2010) ; Bellamy v. State, 977 So.2d 682, 684 (Fla. 2d DCA 2008) ; Rayl v. State, 765 So.2d 917, 919–20 (Fla. 2d DCA 2000) ; and McDaniel v. State, 620 So.2d 1308 (Fla. 4th DCA 1993). In these cases, the courts concluded that the State's evidence was insufficient to establish the intent element of second-degree murder (or attempted second-degree murder), where the defendants reacted to either an attack or a perceived imminent attack or were engaged in mutual physical fighting with the victims. Poole, 30 So.3d at 697–98 (defendant stabbed unarmed victim when victim angrily lunged at him inside a cramped recreational vehicle, where victim was strong, larger than defendant, and had a reputation for violence, particularly when he had been drinking, as he had on the night in question); Bellamy, 977 So.2d at 684 (defendant stabbed one victim...