                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

KENNETH KARLSTON                      NOT FINAL UNTIL TIME EXPIRES TO
NEWSOME,                              FILE MOTION FOR REHEARING AND
                                      DISPOSITION THEREOF IF FILED
      Appellant,
                                      CASE NO. 1D15-3680
v.

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed September 6, 2016.

An appeal from the Circuit Court for Duval County.
Mark J. Borello, Judge.

Rick A. Sichta, Susanne K. Sichta, and Joseph Hamrick of The Sichta Firm,
Jacksonville, for Appellant.

Pamela Jo Bondi, Attorney General, and Quentin Humphrey, Assistant Attorney
General, Tallahassee, for Appellee.




WETHERELL, J.

      Appellant was convicted of attempted first-degree murder, kidnapping, and

armed robbery. He raises two issues in this direct appeal, only one of which merits

discussion: whether the trial court erred in denying his motion for judgment of
acquittal on all counts. We affirm this issue for the reasons that follow, and we

affirm the other issue without discussion.

                         Factual and Procedural Background

          On June 10, 2014, Marcel Jean-Gilles, a 71-year old taxi driver, was

stabbed and robbed inside his taxi after picking up two men from a hotel in

downtown Jacksonville. At trial, Jean-Gilles testified that the man in the front seat

grabbed his hands, held them to the steering wheel, and demanded all his money,

while the man in the back seat stabbed him in the neck. Jean-Gilles gave the man

in the front seat all the cash he had in his pocket (approximately $20), but the man

was unsatisfied and continued to demand more money. After a struggle with the

man in the front seat, during which the man in the back seat cut the side of Jean-

Gilles’ neck under his ear, Jean-Gilles was able to get out of the taxi and run away.

Jean-Gilles, who suffered “life threatening” wounds, was unable to identify the

attackers, but he testified that the two men were his first and only customers that

night.

         At some point during the attack, Jean-Gilles’ taxi crashed into a steel barrier

at the end of a dead-end street. George Johnson testified that he heard the crash, so

he looked out the window and saw three men running away from the taxi in

different directions. Johnson went to his bedroom to call 911, and then he went




                                            2
back to the window. The police arrived approximately ten minutes later. While

waiting for the police to respond, Johnson did not see anyone in or around the taxi.

       During the investigation of the incident, law enforcement found Appellant’s

fingerprint on the handle of the rear passenger door of Jean-Gilles’ taxi. In an

interview with police, Appellant denied that he had ever been in the taxi or that he

was involved in the attack on Jean-Gilles, but he agreed to submit a DNA sample.

Appellant’s DNA was a match for DNA taken from a brown hat that was

recovered from the back seat of the taxi the night the incident occurred. Jean-

Gilles told investigators that the hat was not inside his taxi before the two men

attacked him.

       At the close of the State’s case, defense counsel moved for a judgment of

acquittal, stating:

              [Counsel]:     As the state has rested the defense enters
                             a motion for a J.O.A. on the standard
                             after reviewing the evidence in light of
                             the favor of the prosecution a trier of fact
                             could not have found essential elements
                             of the crimes alleged beyond a
                             reasonable doubt in Tibbs versus
                             Florida.[1]

              THE COURT: Anything else?

1
  Presumably, counsel was referring to Tibbs v. State, 397 So. 2d 1120 (Fla. 1981),
in which the court outlined the difference between the weight and the sufficiency
of the evidence and explained that “a finding that the evidence is legally
insufficient means that the prosecution has failed to prove the defendant’s guilt
beyond a reasonable doubt.”
                                         3
             [Counsel]:      No Your Honor

In response, the State argued that the applicable standard for the motion was “a

prima faci[e] case of guilt” and that it had proven all of the elements of the charged

offenses. The trial court agreed and denied the motion.

      Appellant then testified on his own behalf. He claimed that he was riding

his bike from his cousin’s house when he happened upon an empty taxi with its

doors open and the engine running. He looked inside and saw what he thought was

a plastic bag of crack cocaine on the rear floorboard, so he got inside the taxi to

look under the seats. During his search, he took off the hat he was wearing and

mistakenly left it on the back seat. He then saw some “stains” on the front seat that

“scared” him, so he got on his bike and rode away. According to Appellant, his

entire encounter with the taxi lasted approximately one to two minutes.

      Following this evidence, defense counsel renewed the motion for judgment

of acquittal “[f]or the record” without additional argument, and the trial court again

denied the motion. The jury found Appellant guilty as charged on all counts, and

the trial court sentenced him to life in prison for the attempted murder and two

consecutive 40-year terms for kidnapping and armed robbery.

                                      Analysis

      On appeal, Appellant argues that the trial court erred in denying his motion

for judgment of acquittal for two reasons: first, he contends that the evidence was

                                          4
legally insufficient to prove he committed the charged offenses; and, second, he

contends that this was a wholly circumstantial evidence case and the State failed to

present evidence inconsistent with his version of events. The State argues that

neither of these issues were properly preserved for appellate review. We agree.

      There are two legally distinct issues that can be raised by a defendant in a

motion for judgment of acquittal: (1) whether the State has presented legally

sufficient evidence to establish each element of a charged offense; and (2) in a case

where the only proof of guilt is circumstantial, whether the evidence presented by

the State is inconsistent with any reasonable hypothesis of innocence, including the

defendant’s own version of events. See Hodgkins v. State, 175 So. 3d 741, 746

(Fla. 2015) (distinguishing these two issues by explaining that a “special standard

of review of the sufficiency of the evidence” applies in cases based wholly on

circumstantial evidence (quoting Thorp v. State, 777 So. 2d 385, 389 (Fla. 2000)));

Dausch v. State, 141 So. 3d 513, 517 (Fla. 2014) (same); see also Knight v. State,

186 So. 3d 1005, 1009-10 (Fla. 2016) (upholding the use of the circumstantial

evidence standard when ruling on motions for judgment of acquittal).

      Pursuant to the rules of criminal procedure, a motion for judgment of

acquittal “must fully set forth the grounds on which it is based.” Fla. R. Crim. P.

3.380(b). Accordingly, to preserve either or both of the above issues, the precise

legal argument as to why the evidence is insufficient to sustain a conviction must

                                         5
be presented to the trial court. See Woods v. State, 733 So. 2d 980, 984 (Fla.

1999) (“To preserve an argument for appeal, it must be asserted as the legal ground

for the objection, exception, or motion below.”); § 924.051(1)(b), Fla. Stat.

(defining an argument as “preserved” when it was “sufficiently precise that it fairly

apprised the trial court of the relief sought and the grounds therefor”). In other

words, in moving for a judgment of acquittal, a defendant must identify the

element, or elements, of a crime for which he or she contends the evidence is

lacking, and, if the evidence is purely circumstantial, outline his or her theory of

defense and explain why it is not inconsistent with the circumstantial evidence. A

“boilerplate” motion is not enough. See Romero v. State, 901 So. 2d 260, 265

(Fla. 4th DCA 2005) (describing a boilerplate motion as one in which a defendant

merely argues that “the state failed to present a prima facie case”).

       Here, defense counsel made a boilerplate motion for judgment of acquittal,

which was not sufficient to preserve either of the issues Appellant raises in this

appeal regarding the denial of that motion. As to whether the State presented

legally sufficient evidence to support Appellant’s convictions for attempted first-

degree murder, kidnapping, and armed robbery, the issue was not preserved

because counsel did not point to any elements of those crimes for which he

believed evidence was lacking. Likewise, the issue of whether the State presented

evidence inconsistent with Appellant’s version of events was not preserved

                                          6
because counsel did not argue that this was a wholly circumstantial evidence case,

thus triggering the special standard of review under which the trial court would

have been required to rule on the motion. Nor did counsel outline a theory of

defense and argue that the circumstantial evidence was consistent, rather than

inconsistent, with that theory.

                                    Conclusion

      In sum, because Appellant did not properly preserve the arguments raised on

appeal concerning the denial of his motion for judgment of acquittal, we affirm the

trial court’s ruling on that issue. And because we find no merit in the other issue

raised by Appellant, we affirm his judgment and sentence.

      AFFIRMED.

B.L. THOMAS and WINSOR, JJ., CONCUR.




                                          7
