          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                         No. 1D17-1347
                 _____________________________

ANTONIO DEVON WILLIAMS,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Escambia County.
John L. Miller, Judge.

                           June 8, 2018


JAY, J.

     In this direct criminal appeal, Appellant—Antonio Devon
Williams—appeals his judgment of conviction and sentence for
attempted second-degree murder. In its special interrogatory
verdict, the jury found that during the offense Appellant possessed
and discharged a firearm, causing great bodily harm. In his sole
point on appeal, Appellant argues the trial court erred in denying
his motion for judgment of acquittal because the State’s evidence
was legally insufficient to prove he acted out of ill will, hatred,
spite, or evil intent. We disagree and affirm.

                                I.

    The testimony and evidence presented by the State revealed
that Appellant and Javier Chandler had been childhood friends
and, on the day of the offense, were still neighbors. Chandler, who
was twenty-six years old at the time of the trial, testified that
Appellant, a few years’ Chandler’s junior, had been like a little
brother to him growing up. As they grew older they grew apart, yet
remained on speaking terms, especially on those occasions when
Appellant desired to purchase a firearm.

     February 22, 2016, was just such an occasion. Chandler left
work mid-afternoon to begin “calling around” to locate the gun
Appellant wanted. After making several calls, he was successful in
locating a seller and purchased a gun for Appellant. He claimed he
did not have Appellant accompany him because he wanted to
negotiate a price with the seller that would allow him to make a
small profit when he asked Appellant for the cash. After the
purchase, Appellant asked Chandler to drive him to Walmart so
that he could buy bullets for his new “strap.” According to
Chandler, the two went into Walmart, but Chandler exited the
store a short time later to finish smoking some marijuana.

     After they left Walmart, the conversation turned to the price
of the gun. Chandler revealed to Appellant that he had hoped to
turn a profit of $50 for negotiating the purchase. It appeared to
Chandler, however, that Appellant was trying to back out of the
deal, which frustrated Chandler because he had taken time off
from work to help Appellant locate the firearm.

     When they pulled into Appellant’s driveway, Chandler said
that Appellant exited the car and walked in front of the vehicle,
brandishing a pistol different from the one Chandler had procured.
Chandler indicated that his driver’s side door was “cracked” and
his window was down. Chandler could not believe that Appellant
would try to shoot him in broad daylight within earshot of the
neighbors. Yet, Appellant demanded to know where his new gun
was and accused Chandler of having taken the weapon. Chandler
tried to persuade Appellant to “change his mind,” but the next
thing he knew, he “woke up” still in his car with the door “wide
open,” but across the street from Appellant’s house.

     Chandler ran to his grandmother’s house—which was one or
two doors down—and knocked on the door. His last memory was
seeing his grandmother, who testified that when she opened the
door, Chandler collapsed, bleeding profusely. Later, Chandler
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would recall having seen Appellant standing in his driveway
across the street, watching him as he was running toward his
grandmother’s house. Appellant was still holding the gun he had
just used to shoot Chandler. Chandler’s grandmother also saw
Appellant watching from across the street while holding
something that looked like “a stick.” She later learned it was a gun.

     Investigator Jimmie Tatum with the Escambia County
Sheriff’s Office responded to the shooting. He was directed to
Appellant’s house and spoke to Appellant’s mother. Appellant was
not present and his mother did not know where he was, but she
permitted Investigator Tatum—and the deputies who had
accompanied him—to conduct a protective sweep of her home.
From the number of firearms and ammunition he observed in plain
view in Appellant’s bedroom, Investigator Tatum was able to
obtain a search warrant for the house, as well as one for Chandler’s
car. No weapons or contraband were found in the car. After a be-
on-the-lookout (“BOLO”) for Appellant was dispatched and he was
featured on the news and on “social media,” Appellant turned
himself in to the sheriff’s office. There, he was interviewed by
Investigator Tatum, and the recorded interview was played for the
jury during the State’s case-in-chief.

     During the interview, Appellant’s version of events proved to
differ somewhat from Chandler’s subsequent statement to
Investigator Tatum and his trial testimony. Appellant’s story
included his active participation in the purchase of the gun from
the seller. He admitted to Investigator Tatum that when he left to
buy the gun with Chandler, he armed himself with another gun “to
make sure . . . nothing happened or anything.” He then set off with
Chandler. At the seller’s home, Appellant took the gun outside and
fired some rounds to assure the gun was operable.

     Afterwards, he and Chandler drove to Walmart for the bullets.
Before he went inside the store, however, Appellant placed his
newly purchased “strap” in his book bag, which also held his other
gun. The two then entered the store, but immediately split up.
Appellant walked to the back of the store where the ammunition
was sold, while Chandler went off to purchase something for his
girlfriend. Because there was an issue regarding the correct size of
the bullets needed for the gun, Appellant found Chandler and the

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two walked back outside to Chandler’s car to look at the gun.
According to Appellant, when they got back to the car, Appellant
looked in his book bag and discovered the new gun was missing,
although his other gun was still in the bag. Appellant suspected
that while they were separated, Chandler had returned to the car
and taken the gun. Appellant told Chandler to drive him home.

     Appellant informed Investigator Tatum that when the two
men arrived at Appellant’s house, they got out of the car and began
looking for the gun. At this point, according to Appellant, Chandler
got “feisty.” Appellant claimed he told Chandler that he did not
want to fight with him; he just wanted Chandler to give him his
gun. Chandler got back in the car and tried to pull away, but
Appellant walked up to Chandler’s partially opened door. He
claimed Chandler knew all along that Appellant was armed. While
Appellant was standing at Chandler’s driver’s side door, Chandler
began “fidgeting like he was going for his pocket,” and Appellant
thought he was going to use Appellant’s “strap” to shoot him. He
told Investigator Tatum that he thought Chandler was “on
something” like “some type of drugs.”

     He then explained that, although he did not see Chandler
holding a gun, his “adrenaline took over” and he “hurr[ied] up and
fired.” Appellant thought he had missed Chandler altogether, but
then he noticed “it [was] kind of oozing a little bit on the side of his
neck[.]” Appellant watched as Chandler’s car rolled backwards and
he saw Chandler jump out and run to his grandmother’s house
with “something” in his hand. That “something” later turned out
to be Chandler’s cell phone. Appellant informed Investigator
Tatum that he did not call the police because he was afraid the gun
he had just purchased—which he believed was on Chandler’s
person at that time—was “hot” and he did not want to get into
trouble. He claimed he did not mean to shoot Chandler because,
had he intended to do so, he could have “busted the whole clip” on
him.

    Appellant related that he next turned and entered his house
to get another weapon, fearing that Chandler and his “people”
might return to “shoot up” his mother’s house. At that point,
Investigator Tatum wondered aloud why, when Appellant believed
Chandler had taken his gun and he “knew sh*t was fixing to get

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crazy,” he just did not say “f**k it and walk away,” forgetting about
the money. Appellant explained that he did not want to “take
another loss”: his dirt bike was “messed up”; his PlayStation was
broken; and someone had stolen his dirt bike a year ago. He
complained that he had let too many things “slide,” and he was
“thinking about the money.”

     After the State rested, defense counsel moved for a judgment
of acquittal, arguing the State had not proved the elements of
second-degree murder, namely that “the act was imminently
dangerous to another in demonstrating a depraved mind without
regard to human life.” He urged that there had to be “some
evidence where a jury could find that the defendant’s actions were
more deliberate than impulsive,” distinguishing the facts of the
instant case from those in Perez v. State, 187 So. 3d 1279 (Fla. 1st
DCA 2016), while relying on the analysis in Rayl v. State, 765 So.
2d 917 (Fla. 2d DCA 2000).

     Taking the evidence in a light most favorable to the State, the
trial court highlighted the facts establishing that the two men had
been arguing about the price of the gun; Appellant walked around
to the driver’s side of the car with his gun drawn; Appellant did
not want to “take another loss”; and Appellant was angry,
believing that Chandler had taken his newly purchased gun. The
court also considered Appellant’s actions after the shooting, such
as his failure to render aid to his “lifetime friend” and his flight
from home when he did not “resurface for another 24 hours.” The
trial court concluded there was sufficient evidence to present the
case to the jury.

                                 II.

     We review the denial of a motion for judgment of acquittal de
novo. Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002) (citation
omitted). And, as did the trial court, we “must consider the
evidence and all reasonable inferences from the evidence in a light
most favorable to the state.” Jones v. State, 790 So. 2d 1194, 1197
(Fla. 1st DCA 2001) (en banc). “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.” Pagan,
830 So. 2d at 803; see also Perez, 187 So. 3d at 1281 (“If the
                                  5
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.”).

     “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.’” Perez, 187 So. 3d at 1281-82 (quoting §
782.04(2), Fla. Stat.) “The depraved-mind element of second-
degree murder requires ‘ill will, hatred, spite, or an evil intent.’”
Id. at 1282 (quoting Poole v. State, 30 So. 3d 696, 698 (Fla. 2d DCA
2010)). Typically, the requisite intent can be inferred from the
circumstances of the case. Id. (citing Antoine v. State, 138 So. 3d
1064, 1074 (Fla. 4th DCA 2014)). But, “[t]o 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.” Id. (citing Wiley v. State, 60 So. 3d 588,
591 (Fla. 4th DCA 2011); Dorsey v. State, 74 So. 3d 521, 522 (Fla.
4th DCA 2011)).

      In the present case, Appellant asserts that even when taken
in a light most favorable to the State, the evidence proved only that
his act of shooting Chandler was an “impulsive overreaction” to
Chandler’s “fidgety” behavior and did not rise to the level of the
necessary ill will, hatred, spite, or evil intent needed to prove the
charged offense of attempted second-degree murder. Appellant
distinguishes the circumstances of the instant case from those in
Perez, and, instead, compares them favorably to the facts related
in Poole v. State, 30 So. 3d 696 (Fla. 2d DCA 2010), Bellamy v.
State, 977 So. 2d 682 (Fla. 2d DCA 2008), Rayl, and McDaniel v.
State, 620 So. 2d 1308 (Fla. 4th DCA 1993).

     Because the facts in Perez are so similar to those in the instant
case, they bear quoting here:

    [Perez] 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
                                  6
    neighborhood basketball games, but their differences
    remained unresolved.

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

         Surprised and angry, Coley pushed the gun away
    and continued moving towards [Perez], asking if [Perez]
    was seriously pulling a gun on him. From an arm’s length
    away, [Perez] put the gun on Coley’s stomach, and it
    “went off.” Coley called [Perez’s] name and said, “[Y]ou
    shot me.” [Perez] answered, “I know. I should have killed
    you.” As Coley’s friend scrambled away from the scene,
    [Perez] 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. [Perez]
    then left on his bicycle.

Perez, 187 So. 3d at 1281.

     Perez claimed that the shooting was merely an “impulsive
overreaction” to Coley’s invitation to fight, relying on Poole,
Bellamy, Rayl, and McDaniel, for support. We noted that in those
four cases, the appellate courts concluded the 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.” Id. at 1282.



                                7
     For instance, in Poole the defendant stabbed an unarmed
victim when the victim angrily lunged at him inside a cramped
recreational vehicle, where the victim was stronger and larger
than the defendant and had a reputation for violence, particularly
when he had been drinking, as he had been on the night in
question. Poole, 30 So. 3d at 697-98. The facts in Bellamy showed
that the defendant stabbed one victim when he was outnumbered
and pushed against a wall, then stabbed another victim after being
pushed to the ground by a crowd of brawlers. Bellamy, 977 So. 2d
at 684. In Rayl, the defendant shot the victim twice after the victim
“bust[ed] open” the door to his place of business and confronted
him while threatening to kill him (after having made that same
threat throughout the day), was allegedly armed, and was possibly
lunging at the defendant following the first shot. Rayl, 765 So. 2d
at 919-20. Lastly, in McDaniel, the defendant stabbed his son after
the son hit the defendant in the mouth and knocked him to the
ground. McDaniel, 620 So. 2d at 1308. As we emphasized in Perez:
“These cases essentially involved imperfect self-defense claims.”
Perez, 187 So. 3d at 1282 (citing Dorsey, 74 So. 3d at 524). In other
words, the defendant’s behavior in each case could only be
characterized as an overreaction to the show of threatening force;
it did not evince ill will, hatred, spite, or an evil intent.

      Likewise, in Dorsey, the Fourth District noted that
“‘[a]lthough 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.’” Dorsey,
74 So. 3d at 524 (quoting Light v. State, 841 So. 2d 623, 626 (Fla.
2d DCA 2003)). The Fourth District further observed that,
“‘[h]atred, spite, evil intent, or ill will usually require more than
an instant to develop.’” Id. (quoting Light, 841 So. 2d at 626). Thus,
it held in Dorsey that the evidence was insufficient to sustain the
conviction for second-degree murder where it was uncontested that
the defendant was backed up to a car when he was confronted by
a small crowd of men, including the heavily-intoxicated victims,
heated words were exchanged, one of the victims punched the
defendant in the face, and appellant pulled out his gun and shot
both victims at close range. The victims died due to their wounds.
The Fourth District explained its ruling:



                                  8
    Although a jury could reasonably find that the
    defendant’s use of a gun was excessive, thereby negating
    a finding of self-defense, no evidence was presented that
    the defendant acted out of ill will, hatred, spite, or an evil
    intent. Furthermore, we reject the State’s argument that
    the defendant’s demeanor before the confrontation was
    sufficient to prove beyond a reasonable doubt that he
    acted with a depraved mind. The defendant’s use of
    deadly force occurred only after he was attacked, and the
    State has pointed to no record evidence that the
    defendant had any previous grudge against these victims
    or any ongoing disputes between them.

Id. at 525.

     But in Perez, we distinguished the foregoing decisions on the
basis that even though Coley had challenged Perez to a fight and
advanced toward him, the evidence did not “necessarily establish
that when [Perez] shot Coley he was ‘impulsively acting out of fear
to save himself.’” Perez, 187 So. 2d at 1282 (comparing Antoine, 138
So. 3d at 1074 (distinguishing “impulsive overreaction” cases from
those in which the evidence implied that the defendant was not
“impulsively acting out of fear to save himself” but was
“administering street justice”)). We further held that while “the
evidence showed the shooting was a response, and indeed an
overreaction to Coley’s challenge to fight,” id., there was testimony
that “provided a basis from which the jury could find that [Perez’s]
reaction was more deliberate than impulsive.” Id. This Court also
relied on Perez’s statement that he “should have killed” the victim
in order to distinguish the case from the “impulsive overreaction”
decisions.

     Here, although there is no direct statement by Appellant that
he “should have killed” Chandler, we nonetheless consider the
facts to be on par with those in Perez, and distinguishable from
those in Dorsey, Poole, Bellamy, Rayl, and McDaniel. Appellant
and Chandler had been childhood friends, but there was no
evidence that they had remained close friends once they reached
adulthood. It would appear, though, that they remained cordial
enough for Appellant to rely on Chandler to locate guns for him to
purchase. That latter facet of their relationship—more so than the

                                  9
daily civil rapport they might have shared—serves to explain the
heightened tension that arose between them on February 22, 2016.
Significantly, the gun in question was never found. But, as far as
Appellant’s having known Chandler long enough to develop enmity
against him—the factor discussed in Dorsey—we conclude there
was adequate evidence to satisfy that consideration.

     In this case, the evidence—taken in a light most favorable to
the State—showed that Appellant decided ahead of time to arm
himself because, in his experience, any good will behind firearm
deals could easily dissolve into distrust, or worse. From this it is
reasonable to assume that Appellant was suspicious and primed
for a fight even before he left with Chandler. Next, once at
Walmart, when Appellant claimed he noticed the gun he had
allegedly purchased was missing from his book bag, his suspicion
caused him to assume that Chandler was the culprit. Chandler
testified that once they returned to Appellant’s house, Appellant
became increasingly hostile. At that point, the jury could have
found that Appellant bore a distinct grudge against Chandler.
That grudge, or sense of “enmity,” intensified once a search of
Chandler’s car did not produce the gun.

     In addition, Appellant admitted to Investigator Tatum that he
had been upset over the earlier theft of his dirt bike and that he
had not wanted to suffer anymore “losses”—words very similar to
those spoken by Perez. Thus, the most reasonable view of the
evidence taken in a light favorable to the State, establishes that
when Appellant walked around to the driver’s side of the car and
shot Chandler, sufficient ill will, hatred, spite, or evil intent had
already taken root in Appellant’s mind.

                                III.

    Accordingly, we conclude, as did the trial court, that the
evidence was capable of supporting a guilty verdict for attempted
second-degree murder. Perez, 187 So. 3d at 1281. As a result, we
find the trial court properly denied Appellant’s motion for
judgment of acquittal.

    AFFIRMED.

LEWIS and ROBERTS, 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.
               _____________________________


Andy Thomas, Public Defender, and Kathleen Stover, Assistant
Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross,
Assistant Attorney General, Tallahassee, for Appellee.




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