           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
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                          No. 1D18-1700
                  _____________________________

KAMERON HOLMES,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Duval County.
Russell Healey, Judge.

                           August 23, 2019


ROWE, J.

     Kameron Holmes appeals his conviction for second-degree
murder. He argues that his motion for judgment of acquittal
should have been granted because the State failed to prove that he
acted with ill will, hatred, spite, or evil intent and that the shooting
of the victim was not an accident. We affirm.

                                 Facts

     The victim was Holmes’s on-again-off-again girlfriend and the
mother of Holmes’s son. One afternoon, Holmes and the victim
planned to go to a bar to watch a football game. They left the child
at Holmes’s apartment in the care of Holmes’s roommate. The
victim and Holmes then drove to the bar and had a few drinks.
While at the bar, Holmes received several phone calls from another
woman. The victim became upset and asked Holmes to drive her
home.

     Before driving the victim home, they picked up their son from
Holmes’s apartment. On the drive to the victim’s home, the victim
sat in the back seat with the child.

     While he was driving, Holmes claims that the victim accused
him of being unfaithful to her and suggested that she should have
ended their relationship. He asserts that the victim slapped his
hat and his glasses off and pulled his chain necklace. He said that
he told her to chill out, but she slapped his phone out of his hand
when he tried to check a text message. When Holmes picked up
the phone again, the victim began hitting him in the head even
though Holmes repeatedly asked her to stop.

     Holmes claims that he was in fear of his life and the life of his
son, so he pulled out his 9mm pistol and pointed it behind him into
the back seat at the victim. The gun fired, and the victim was shot.

     After the shooting, Holmes did not immediately call 911 or
seek any assistance to aid the victim. Instead, Holmes kept on
driving, disposed of the gun, called his roommate, and returned to
his apartment. Holmes told his roommate that the victim had been
shot in a drive-by shooting. The roommate called 911 and began
driving Holmes and the victim to the nearest hospital. The police
dispatcher instructed them to pull over because police with
medical training were on the way. But when police arrived, the
victim was found dead.

     When Holmes was questioned by the police, he gave
conflicting versions of the events leading to the victim’s death.
First, he claimed that the victim was shot during a drive-by
shooting.    Next, he said the victim grabbed the gun and
intentionally shot herself. Finally, Holmes admitted that his first
two explanations were false and claimed instead that the shooting
was accidental. Holmes explained that he and the victim were
fighting when they left the bar and got back into the car. Holmes
was angry that the victim was hitting him while he was driving.
He claimed that when he pointed the gun at the victim, he thought

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the safety was on, but when the victim slapped at his wrist, the
gun went off.

     Holmes’s story that the shooting was accidental was
contradicted by the State’s expert witnesses. Experts testified that
the bullet was fired from fewer than three inches from the victim’s
head, causing the bullet to enter her brain and exit through her
right ear. Experts also testified that the gun had multiple working
safety features, including a trigger-lock safety. Finally, contrary
to Holmes’s claim that the gun fired when the victim slapped at
his hand, experts testified that the gun had an above-average
trigger pull weight, and it would have required at least nine
pounds of force to fire the gun.

    Holmes moved for a judgment of acquittal, arguing that the
State failed to prove that he acted with a depraved mind. The
motion was denied. The jury found Holmes guilty of second-degree
murder with a firearm. This timely appeal follows.

                        Standard of Review

     We review an order denying a motion for judgment of acquittal
de novo. Dunn v. State, 206 So. 3d 802, 804 (Fla. 1st DCA 2016).
If the State has presented competent evidence to establish every
element of the crime, then judgment of acquittal is improper. State
v. Williams, 742 So. 2d 509, 511 (Fla. 1st DCA 1999). When
reviewing a court’s ruling on a motion for judgment of acquittal,
the evidence must be construed in the light most favorable to the
State. Perez v. State, 138 So. 3d 1098, 1100 (Fla. 1st DCA 2014).

                              Analysis

    Holmes argues that the trial court erred when it denied his
motion for judgment of acquittal because his actions amounted to
at most, manslaughter, not second-degree murder. Holmes
contends that the shooting was accidental and that there was no
evidence to prove that he acted with ill will, hatred, spite, or evil
intent when he shot the victim.

   Second-degree murder is defined as “[t]he unlawful killing of
a human being, when perpetrated by any act imminently

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dangerous to another and evincing a depraved mind regardless of
human life, although without any premeditated design to effect the
death.” § 782.04(2), Fla. Stat. (2016). The primary distinction
between second-degree murder and manslaughter is the intent to
kill. Jacobson v. State, 248 So. 3d 286, 288 (Fla. 1st DCA 2018).
Manslaughter is committed when one kills as a result of his
culpable negligence, while second-degree murder occurs “when one
kills while perpetrating an act imminently dangerous to another
and evincing a depraved mind regardless of human life.” Id.
(quoting Marasa v. State, 394 So. 2d 544, 545 (Fla. 5th DCA 1981)).
The Supreme Court of Florida has explained what constitutes
evidence of a depraved mind:

    Conduct that is imminently dangerous to another and
    evincing a depraved mind is characterized by an act or
    series of acts that: (1) a person of ordinary judgment
    would know is reasonably certain to kill or do serious
    bodily injury to another, and (2) is done from ill will,
    hatred, spite or an evil intent, and (3) is of such a nature
    that the act itself indicates an indifference to human life.

State v. Montgomery, 39 So. 3d 252, 255-56 (Fla. 2010).

     “Although exceptions exist, the crime of second-degree murder
is normally committed by a person who knows the victim and has
had time to develop a level of enmity toward the victim.” Light v.
State, 841 So. 2d 623, 626 (Fla. 2d DCA 2003). And in most cases,
the intent to kill must be inferred from the circumstances. Perez
v. State, 187 So. 3d 1279, 1282 (Fla. 1st DCA 2016). A defendant’s
conduct before and after his use of deadly force may demonstrate
the necessary intent. Jacobson, 248 So. 3d at 289.

     The circumstances of this case demonstrate that Holmes acted
with a depraved mind. Holmes and the victim were in a rocky
relationship. Holmes was angry with the victim. The victim
wanted to go home with their son and end her relationship with
Holmes. Holmes admitted that he pulled out a loaded pistol and
pointed it at the victim’s head. That act alone is competent
evidence that Holmes possessed the requisite intent to commit
second-degree murder. See id. at 288 (“[p]ointing a loaded gun at
the head of the victim and then firing has frequently been held to

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be an act ‘imminently dangerous to another and evincing a
depraved mind regardless of human life.’” (quoting Gibbs v. State,
904 So. 2d 432, 435 (Fla. 4th DCA 2005))).

     Even so, the State also presented evidence that the gun was
fired within three inches of the victim’s head and that the gun’s
safety features were in working condition. Holmes claims that he
believed the safety was on, but his failure to check the safety
followed by the act of pointing the gun into the back seat of his car
toward the victim, and their three-year-old son, amply
demonstrates his indifference to human life. His explanation that
the gun accidentally fired when the victim slapped his wrist is
called into doubt by expert testimony that it would have required
nine pounds of force to engage the trigger and fire the gun.

     Finally, Holmes’s actions after the shooting also reflect the
requisite intent to support a second-degree murder conviction.
After the victim was shot, Holmes did not stop driving the car. He
did not try to render aid. He did not call 911. And he did not drive
to a hospital. Instead, Holmes disposed of the gun, called his
roommate, and provided false reports about the shooting. These
actions support a finding that Holmes possessed ill will, hatred,
spite, or evil intent towards the victim and that the shooting was
no accident. Larsen v. State, 485 So. 2d 1372, 1374 (Fla. 1st DCA
1986) (affirming second-degree murder conviction when the
defendant showed “a wicked and corrupt disregard of the lives and
safety of others . . .[,] a failure to appreciate social duty”).

     Viewed in a light most favorable to the State, the evidence was
sufficient to allow the jury to determine whether Holmes possessed
the ill will, hatred, spite, or evil intent necessary for a second-
degree murder conviction. Thus, the trial court did not err in
denying the motion for judgment of acquittal.

    AFFIRMED.

KELSEY and M.K. THOMAS, JJ., concur.




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                _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Andy Thomas, Public Defender, and Kathleen Stover, Assistant
Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Steven E. Woods, Assistant
Attorney General, Tallahassee, for Appellee.




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