       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          STATE OF FLORIDA,
                              Appellant,

                                     v.

                       DANIEL LAMONT SEPHES,
                               Appellee.

                              No. 4D18-981

                            [January 9, 2019]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Glenn D. Kelley, Judge; L.T. Case No. 50-2017-CF-003784-
AXXX-MB.

    Ashley Brooke Moody, Attorney General, Tallahassee, and Paul Patti,
III, Assistant Attorney General, West Palm Beach, for appellant.

   Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public
Defender, West Palm Beach, for appellee.

CONNER, J.

    The State appeals, contending the trial court erred in granting post-
trial a renewed motion for judgment of acquittal, after a jury found
Defendant Daniel L. Sephes guilty as charged. The State contends that it
proved by direct evidence that Defendant was guilty and that the trial court
improperly applied the circumstantial evidence standard in granting the
acquittal. We determine that the trial court used the correct standard, but
improperly applied it. Thus, we reverse and remand the case for the trial
court to proceed with an appropriate sentencing disposition.

                               Background

   Defendant was charged with being a felon in possession of a firearm or
ammunition. Prior to trial, Defendant’s motion for statement of particulars
was granted, and the State responded by alleging that Defendant
possessed a firearm on March 13, 2015.
   At trial, a law enforcement officer testified that on March 13, 2015,
around 6:30 a.m., he was on a police motorcycle and conducted a traffic
stop on a speeding car. After the officer turned on his blue light to signal
the stop, the car did not stop right away, but eventually turned into the
entrance of a gated apartment complex and stopped. As the officer was
getting off of his motorcycle, the driver’s side door of the car opened, and
he observed a man get out of the driver’s seat, go around the open door
and start to run towards the complex. The officer testified that he was
unable to describe the man other than to give his sex and race and
describe him as about the same height and weight as the officer – six-foot
and 250 pounds.

    The officer testified that as he started to chase the man, he heard
“[s]omething metallic hit the payment [sic] just at the front of the car.” He
said he could not see what the object was until he got around the car,
which he estimated took “[l]ike a second,” and saw that the object was a
handgun. He estimated that the firearm was about ten or twelve feet in
front of the car. He then testified:

      Um, I saw the firearm and I looked at the male. The male
      looked back at me. He looked at the firearm, and I said, “Stop,
      police.” I didn’t want him going towards the gun. He turned
      around and ran back into the apartment complex.

The officer further testified that it was his impression that the fleeing man
turned around to look at him and the firearm as if he wanted to go back
and retrieve the firearm.

   On cross-examination, the officer admitted that he did not see anything
in the fleeing person’s hand, any bulges on the person, or the person
gripping his waistband. He conceded he did not remember specific
identifying factors regarding the person who fled, such as hair or facial
hair, and also stated that if he were given a photo line-up, he probably
could not identify the person he saw flee.

   The officer testified that he stayed in the area of the car and firearm
because he did not want to leave the firearm unattended. As he was
waiting for a crime scene investigator to arrive, a woman came from within
the apartment complex and said, “That’s my car.” The woman was later
identified as Defendant’s girlfriend.

   The crime scene investigator testified that he took the firearm back to
the lab and swabbed it for DNA. He testified that he used one swab to
swab the outside of the firearm, including the grips, trigger, slide, and

                                     2
sights, and then another swab to swab the magazine. He explained that
he preferred to swab the top of the magazine, since “as you’re loading
bullets into the magazine, you’re pushing them down into the top of the
magazine, so there’s a lot of skin contact as such where I normally will
swab the opening of the top of the magazine to collect DNA.” He also said
he swabbed the live rounds inside the magazine. On cross-examination,
he admitted that he did not know when the magazine was loaded. The
crime scene investigator testified that he tried to process the firearm for
fingerprints, but he did not get any useable prints.

   The car was towed to the impound lot and searched. Men’s clothing
was found on the backseat, as well as a dry cleaning receipt in the open
glovebox. The receipt was in the name of Defendant and was admitted as
an exhibit.

    Two DNA analysts were called by the State to testify. The combination
of their testimony established that the swab of the outside of the firearm
revealed there were three or more contributors, one of whom was a male,
but due to the complexity of the mixture, no DNA profile could be
identified.   As to the swab of the magazine, the sample matched
Defendant’s DNA.

   Cross-examination of one of the DNA analysts revealed that a person’s
DNA can be transferred to an object in multiple ways without the person
actually touching the object. The cross-examination revealed a transfer of
DNA could occur without a person touching the object by: (1) a person
shaking hands with a third person and the third person later touching the
object; (2) the object coming in contact with clothing worn by a person,
since DNA is very prone to rubbing off on clothing; and (3) the object being
close by when a person sneezes.

   The State called the owner of the vehicle to testify. The owner was the
mother of the woman who came up to the motorcycle officer and claimed
the vehicle was hers. The owner testified that she allows her daughter to
use her vehicle. She also testified that she knew Defendant and that her
daughter was dating Defendant. The owner testified as to the numbers
composing her daughter’s cellphone number.

    The State called the records custodian for inmate telephone calls at the
jail. The records custodian testified that while Defendant was in jail, there
were 771 attempted connections to the daughter’s cellphone number by
the Defendant attempting to place a call from the jail, and 260 completed
calls to the daughter’s cellphone number.



                                     3
   The State rested and Defendant moved for a judgment of acquittal.
Defendant put forth two reasonable hypotheses of innocence: (1) that there
was a secondary transfer of Defendant’s DNA onto the firearm; and (2) that
Defendant touched the magazine on a different and unknown date rather
than on March 13, 2015. The motion was denied. Defendant rested
without presenting evidence and then renewed his motion for judgment of
acquittal. The trial court expressed doubts about the case, reserved ruling
on the renewed motion, and allowed the jury to deliberate on the case.

   After deliberating, the jury found Defendant guilty as charged,
including the special interrogatory finding that Defendant actually
possessed the firearm. After the verdict, the trial court allowed the State
and Defendant to submit memoranda of law regarding the reserved ruling
on the renewed motion for judgment of acquittal. After considering both
memoranda, the trial court granted the motion.                Applying the
circumstantial evidence standard, the trial court found that the State’s
evidence was not inconsistent with the two reasonable hypotheses
advanced by Defendant. The State gave notice of appeal.

                             Appellate Analysis

    The State’s sole argument on appeal is that the trial court erred in
granting Defendant’s renewed motion for judgment of acquittal following
the jury’s verdict finding Defendant guilty of felon in possession of a
firearm. We apply a de novo standard of review. Pagan v. State, 830 So.
2d 792, 803 (Fla. 2002).

   The State argues that the circumstantial evidence standard should not
apply in this case, because the facts at issue in this case, the time at which
Defendant’s DNA was deposited on the firearm and how it was deposited,
are not elements of the crime. We disagree with the State’s argument that
the circumstantial evidence standard does not apply. As our supreme
court explained in Knight v. State, 186 So. 3d 1005 (Fla. 2016):

      We now expressly hold that the circumstantial evidence
      standard of review applies only where all of the evidence of a
      defendant’s guilt—i.e., the evidence tending to show that the
      defendant committed or participated in the crime—is
      circumstantial, not where any particular element of a crime is
      demonstrated exclusively by circumstantial evidence.

Id. at 1010. Applying Knight, two of the important parts of this standard
are whether the defendant committed or participated in the crime. Here,
the two facts at issue – Defendant’s identity and how Defendant’s DNA got

                                      4
on the firearm—go to whether Defendant committed the crime. More
importantly, although the DNA evidence in this case shows that
Defendant’s DNA was on a portion of the firearm at the time it was seized
by law enforcement, such evidence does not show, by itself, his
involvement in a crime. That is because the DNA evidence presents the
possibility his DNA was transferred to the firearm without him being in
possession of it or touching it. Thus, we agree with Defendant that the
circumstantial evidence standard applies to the ruling on the motion for
judgment of acquittal.

   “When the evidence of guilt is wholly circumstantial, it must be
inconsistent with any other reasonable hypothesis of innocence.” Jackson
v. State, 180 So. 3d 938, 949 (Fla. 2015). Therefore, we next look to
Defendant’s reasonable hypotheses of innocence, and determine if the
State provided any evidence inconsistent with the theories.

    The trial court, as well as Defendant, heavily rely on our decision in
Finley v. State, 139 So. 3d 940 (Fla. 4th DCA 2014) in support of the
conclusion that the State’s evidence was not inconsistent with Defendant’s
hypothesis of innocence. Although the facts of that case are somewhat
similar to the facts of the instant case, the facts in Finley that we found
determinative demonstrate why Defendant was not entitled to an acquittal
in this case.

    In Finley, the defendant was also charged with felon in possession of a
firearm, where officers responded to a burglary of defendant’s home, found
his home had been “ransacked,” and “found a handgun lying on a box
spring left exposed by an overturned mattress.” Id. at 941. The burglar
was apprehended as officers were responding to the scene. Id. Officers
dusted the handgun and magazine for fingerprints, and none were found.
Id. They also swabbed the handgun and magazine for DNA, finding a
match to the defendant. Id. However, the DNA expert testified that there
was a second contributor of DNA, and testified regarding “secondary
transfer” of DNA, whereby DNA can be transferred from one object to a
second, without the DNA owner touching the second object. Id. The
defendant moved for a judgment of acquittal at the end of the State’s case-
in-chief, which the trial court denied, the jury found the defendant guilty,
and the defendant appealed. Id.

   On appeal, we first addressed whether the State’s evidence was direct
or circumstantial, and found that the circumstantial evidence standard
applied. Id. at 942. Applying the special standard, we found that the trial
court erred in denying the defendant’s motion for judgment of acquittal,
because the State failed to provide evidence inconsistent with defendant’s

                                     5
reasonable hypothesis of innocence: that the handgun was left by the
burglar, and the DNA evidence on the handgun was the result of a
secondary transfer. Id. at 943. We explained that there was no evidence
presented inconsistent with the defendant’s theory, such as: (1) the
burglar testifying that the gun was not his; (2) a test using the burglar’s
DNA to provide evidence to rebut the hypothesis; or (3) a DNA test using
separate swabs from multiple areas of the handgun and magazine, so it
was not clear where the defendant’s DNA was found on the handgun or
magazine. We concluded that “[t]here was no evidence provided as to when
or how the DNA evidence became present on the handgun.” Id.

    In this case, the trial court granted the renewed motion for judgment of
acquittal on the basis that Defendant advanced two reasonable hypotheses
of innocence that: (1) the DNA found on the firearm was due to secondary
transfer; and (2) his DNA was deposited on the firearm prior to March 13,
2015. As to the first hypothesis of innocence, Defendant argued that the
firearm may at some point have been on the pile of clothes on the backseat
of the car, those clothes may have belonged to Defendant, and the clothes
may have had his DNA on them, which would have served as a medium
for a transfer of his DNA. Additionally, Defendant argued to the jury that
the deposit of his DNA could have occurred by transfer when some
unknown and unidentified person touched the magazine after having
touched him, some unknown and unidentified person had contact with
some other unknown and unidentified object that Defendant touched and
subsequently the other person touched the magazine, or Defendant may
have sneezed in the presence of a third unknown and unidentified person
who then touched the magazine.

   The problem with Defendant’s hypotheses of innocence, based on a
secondary transfer of his DNA to the firearm, is that his theories do not
present reasonable hypotheses, since they rely on multiple layers of
speculation. Cf. Ayalavillamizar v. State, 134 So. 3d 492, 496 (Fla. 4th
DCA 2014) (“The notion that some random intruder broke into the victim’s
apartment shortly after appellant left, found appellant’s sledgehammer in
the closet, killed the victim with the hammer at least three to six hours
before her body was found, and did so without taking any valuables, is not
a reasonable hypothesis of innocence.”).

   More importantly, the primary hypothesis of transfer from touching
clothing on the back seat of the car fails to account for the fact that
Defendant’s DNA was found inside the firearm. Finding Defendant’s DNA
inside of the firearm would be inconsistent with the hypothesis of
secondary transfer, since it does not appear logical, and therefore
reasonable, that the magazine would have been separated from the firearm

                                     6
while lying on the clothing. This is a significant difference from the facts
of Finley, where it was unknown as to which portion of the firearm the
defendant’s DNA was found. See Finley, 139 So. 3d at 943.

   Likewise, Defendant’s theories that he shook hands with some third
party or sneezed in close proximity to the firearm, and afterwards a third
person loaded the magazine into the gun rely on multiple levels of
speculation, including that this unknown and unidentified person knew
the car owner or her daughter, and also had access to the car that was
stopped by the officer on March 13. Thus, we conclude the evidence that
Defendant’s DNA was found inside the firearm was sufficient to rebut
Defendant’s reasonable hypothesis of innocence based on a theory of
secondary transfer of his DNA. Additionally, the facts of this case make
Finley inapposite, where the reasonable hypothesis regarding secondary
transfer was based on a potential known second party that could have
possessed the firearm – the burglar. Therefore, while the proffered
hypothesis of innocence was reasonable in Finley, the proffered
hypotheses in this case were not because of the multiple layers of
speculation.

   Defendant’s second reasonable hypothesis of innocence is that his DNA
was deposited on the firearm on a different date than March 13, 2015.
That hypothesis is grounded on the theory that the State had to prove that
Defendant’s DNA was deposited on the gun on March 13, 2015. Pretrial,
the defense sought to firm up this hypothesis by obtaining a statement of
particulars which sought “[t]he date that Sephes is alleged to have
possessed the firearm.” (emphases added). While it is true that the State
attempted to prove the identity of the person who dropped the firearm by
way of DNA evidence, in asserting his second hypothesis of innocence,
Defendant focused his argument on the fact that the State was unable to
prove beyond a reasonable doubt that Defendant’s DNA was deposited on
the firearm on March 13, 2015. Thus, Defendant equated the State’s
inability to prove the date on which Defendant’s DNA was deposited on the
gun with the inability to prove Defendant possessed the firearm on March
13.

   Although Defendant is correct that the time of possession of the firearm
was essential in this case, Defendant’s timing argument regarding the
deposit of his DNA does not create a reasonable hypothesis of innocence
under the facts of this case. Reasonable doubt was defined in the jury
instructions as “not a mere possible doubt, a speculative, imaginary, or
forced doubt.” Fla. Std. Jury Instr. (Crim.) 3.7. Extrapolating from the
definition of “reasonable” under the applicable jury instruction, a
reasonable hypothesis of innocence is a hypothesis that is something more

                                     7
than a theory that is possible, speculative, imaginary, or forced. Therefore,
in this case, simply postulating speculative theories as to how Defendant’s
DNA may have been deposited on the firearm sometime prior to March 13,
2015 does not assert a reasonable hypothesis of innocence as to the crime
of possession of a firearm by a felon.

    Additionally, Defendant’s argument regarding the timing of the deposit
of his DNA on the firearm magazine is a bit of a red herring argument.
There was certainly enough evidence to connect the firearm to the person
who fled from the motorcycle officer. The motorcycle officer testified that
after hearing the metallic noise and seeing a firearm on the ground a short
distance from the car, he saw the fleeing suspect look back at the firearm
on the ground. That establishes Defendant possessed a firearm that day,
if there was other sufficient evidence to prove the identity of the fleeing
suspect. In other words, the DNA evidence is simply a corroborating piece
of evidence of identity, in addition to other evidence presented to the jury.

    We agree with the State’s arguments that the evidence was sufficient to
allow the jury to decide whether Defendant was the person who fled. In
addition to Defendant’s DNA being found inside the firearm, there was
evidence that (1) Defendant matched the suspect’s race, height, and build,
(2) the romantic relationship between Defendant and the daughter of the
owner of the car, (3) the daughter was regularly using the car around the
time the vehicle was stopped, (4) the daughter was the one who
approached the officer and sought to retrieve the car shortly after the
suspect fled, (5) a laundry receipt for Defendant’s clothes was found in the
car, (6) men’s clothing was present on the back seat of the car, and (7)
Defendant made numerous telephone calls to the daughter from jail after
his arrest. The combination of all that evidence was sufficient to allow the
jury to decide if Defendant fled from the officer on March 13, even without
the DNA evidence. Finally, we agree with the State’s argument that flight
with the firearm before dropping it was evidence of consciousness of guilt.

    We disagree with Defendant’s argument that the State’s evidence
required an improper stacking of inferences in order to support guilt. See
Brown v. State, 672 So. 2d 648, 650 (Fla. 4th DCA 1996) (“Circumstantial
evidence is insufficient when it requires pyramiding of assumptions or
inferences in order to arrive at the conclusion of guilt.”) There is a
difference between putting pieces of a puzzle together and stacking
inferences and assumptions. In this case, there were multiple pieces of
evidence for the jury to consider to link Defendant to the crime. We are
not persuaded by Defendant’s argument that impermissible inference
stacking would have to be used for the jury to find Defendant guilty beyond
a reasonable doubt.

                                     8
   We conclude the trial court erred in granting the renewed motion for
judgment of acquittal. We reverse and remand for the trial court to
reinstate the jury’s verdict and to proceed accordingly.

   Reversed and remanded for further proceedings.

TAYLOR and CIKLIN, JJ., concur.

                           *       *        *

   Not final until disposition of timely filed motion for rehearing.




                                   9
