          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                 FOURTH DISTRICT

                           MARCUS JAMAL JERRY,
                                Appellant,

                                        v.

                             STATE OF FLORIDA,
                                  Appellee.

                                 No. 4D15-3921

                                  [July 5, 2017]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Charles E. Burton, Judge; L.T. Case No.
502013CF010976C.

  Fredrick R. Susaneck of Levine & Susaneck, P.A., Palm Springs, for
appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel,
Assistant Attorney General, West Palm Beach, for appellee.

FORST, J.

   In this appeal from convictions and life sentences for two counts of first
degree murder with a firearm while wearing a mask, two counts of
attempted first degree murder with a firearm while wearing a mask, and
one count of robbery with a firearm while wearing a mask, Appellant
Marcus Jerry raises four issues for our consideration. We hold, without
further discussion, that Appellant did not properly preserve his first issue
on appeal, and we affirm without prejudice to Appellant raising his
attorney’s failure to preserve the arguments made with respect to this
issue in a 3.850 post-conviction motion alleging ineffective assistance. 1
Otherwise, as discussed herein, we determine that Appellant’s arguments
on the remaining three issues are without merit, although we
independently note a problem with Appellant’s sentence separate from the
issue raised by counsel. Our affirmance on this issue is without prejudice
for Appellant to raise a post-conviction motion under Florida Rule of
Criminal Procedure 3.800(a) or another appropriate rule to correct his

1   We offer no opinion on the merits of such a motion should one be made.
sentence.

                               Background

   Early one morning, a convenience store was robbed. One man first
cased the store to see who was present. After he left, two men, masked
and armed, entered. Inside, the two masked men shot and killed two
customers, shot at but missed two employees, and stole money from the
register. When the two men returned to their vehicle, they drove away.

   During law enforcement’s investigation of these crimes, officers located
the man who was seen on video casing the store. He claimed that there
were four men involved—two other men were the masked men who entered
the store, and Appellant was the getaway driver. The first man (“the
Witness”) then identified Appellant in two photographic line-ups.

    Before the eventual severing of Appellant’s case from the cases against
the two actual shooters, Appellant filed a notice with the court stating that
he “adopts and joins in any and all previously motions filed on behalf of
any of the co-defendants in this case to what ever [sic] effect they may have
on the above named defendant.” The notice failed to specify any particular
motion or motions Appellant sought to adopt. The trial court treated this
notice as a motion and denied it without a hearing. The court found that
the motion was “vague, non-specific and non-descript,” and stated that
the court “ha[d] no idea” which motions Appellant was attempting to adopt.
The order did suggest, however, that the court would be receptive to a
future motion by Appellant to adopt his co-defendants’ motions if specific
ones were identified by title or docket number. No future motion was ever
filed.

    The last piece of trial evidence relevant on appeal was the introduction
of the line-up photos used by the Witness to identify Appellant. The latter
objected to these photos only on the basis that the photos were overly
prejudicial because they revealed a small facial tattoo which Appellant,
with the court’s permission, had attempted to hide from the jury
throughout the trial.

   The jury convicted Appellant on all counts. However, it found that
Appellant did not actually possess a firearm or wear a mask, even while
determining that he was guilty of the crimes “with a firearm while wearing
a mask.”

                                 Analysis


                                     2
    As noted above, we affirm Appellant’s first issue (as to whether the trial
court erred by admitting testimony regarding the contents of Appellant’s
cell phone and/or the historical phone records from Appellant’s provider)
without discussion, as this issue was not preserved in the trial court
through a proper and timely objection on the specific legal ground raised
on appeal. Aills v. Boemi, 29 So. 3d 1105, 1109 (Fla. 2010).

    Appellant’s second issue on appeal argues that the trial court erred by
admitting the photo line-ups used by the Witness to identify Appellant.
We review the trial court’s determination for an abuse of discretion. Mazza
v. State, 25 So. 3d 659, 661 (Fla. 4th DCA 2010). Defendant’s argument
in his briefs appeared to be that the identification process was unduly
suggestive. See id. To the extent that this is his argument, we hold both
that this issue was unpreserved 2 and that it is without merit. 3 However,
at oral argument, Appellant’s attorney clarified that his argument was
solely regarding the prejudicial nature of the photographs. See § 90.403,
Fla. Stat. (2015). Although this Court was able to locate the small tattoo
on Appellant’s face after a close examination of the photographs in the
record, we cannot determine from the trial transcript whether this tattoo
would have also been visible to the jury when they looked at Appellant’s
face in the courtroom. 4 The record does not clearly demonstrate that the
trial court abused its discretion in determining that the probative value of
the line-up photo was not substantially outweighed by the danger of unfair
prejudice.

   Appellant next argues that the trial court reversibly erred by denying
his motion to adopt all motions filed by his co-defendants. Although he is
correct that adoption by reference is a well-accepted practice, Appellant’s
motion in this case was not an adoption by reference so much as it was a
request for the court to wade through the entire records of multiple cases
searching for anything that might benefit Defendant. Although they arise
from different circumstances, we adopt here the reasoning of Simmons v.
State, 42 So. 3d 824 (Fla. 4th DCA 2010), and Spera v. State, 971 So. 2d
754 (Fla. 2007). In those cases, this Court and the Florida Supreme Court

2 At trial, Appellant explicitly stated that he was only objecting to the introduction
of the photographs, not to the introduction of the identification.
3 The Witness testified that he knew Appellant “[p]retty much all his life” and that

he was in the vehicle with Appellant while the crimes in this case occurred.
Considering all the circumstances, there was not a “substantial likelihood of
irreparable misidentification” even assuming the procedure was unnecessarily
suggestive. Mazza, 25 So. 3d at 661.
4 Defendant wore makeup to cover the tattoo, but the prosecutor said that it was

still visible. The judge, however, suggested earlier that he could not see the tattoo
even before the makeup was applied.

                                          3
held that the appropriate disposition of a vague motion is to allow for a
more precise motion to be made. Simmons, 42 So. 3d at 824; Spera, 971
So. 2d at 725. Here, that is exactly what happened. The trial court,
justifiably unwilling to shoulder the heavy burden of performing the task
expected of Appellant’s counsel, denied Appellant’s motion without
prejudice and invited Appellant to re-file a motion which identified the
specific motions of his co-defendants he sought to adopt. We affirm the
trial court’s handling of this matter.

    Finally, Appellant argues that his convictions must be reversed because
the jury was inconsistent in finding him guilty of the charged crimes while
simultaneously finding that he did not possess a gun or wear a mask. “An
inconsistent verdicts claim presents a pure question of law and is reviewed
de novo.” Brown v. State, 959 So. 2d 218, 220 (Fla. 2007). “As a general
rule, inconsistent jury verdicts are permitted in Florida.” Id. (quoting State
v. Powell, 674 So. 2d 731, 732 (Fla. 1996)). The only exception to this rule
is when “an acquittal on one count negates a necessary element for
conviction on another count.” Id. (quoting Powell, 674 So. 2d at 733).
Here, because the jury did not acquit Appellant of anything, this exception
does not apply.

   Although Appellant’s argued claim of error regarding his conviction is
without merit, we recognize that the trial court may have improperly
classified his attempted murder and robbery charges and/or illegally
enhanced the sentences for those charges. In State v. Rodriguez, 602 So.
2d 1270 (Fla. 1992), the Florida Supreme Court held that section
775.087(1), Florida Statutes, which deals with enhancing a crime when a
weapon is possessed, requires that the defendant be the actual person to
possess the weapon. Rodriguez, 602 So. 2d at 1271. In Wright v. State,
810 So. 2d 873 (Fla. 2002), the court held the same with regard to section
775.0845, which enhances crimes when a mask is worn. Wright, 810 So.
2d at 874. Under this line of cases, Appellant’s crimes apparently should
have been scored without the firearm or mask enhancements because the
jury found that he did not actually possess a firearm or wear a mask.
Rodriguez, 602 So. 2d at 1271; Wright, 810 So. 2d at 874; see also Ford v.
State, 145 So. 3d 202, 203 (Fla. 1st DCA 2014) (applying Rodriguez);
Juarez v. State, 65 So. 3d 110, 111 (Fla. 4th DCA 2011) (same). As stated,
however, Appellant has not raised this particular argument to this Court,
and we are therefore unable to grant him relief at this time. Our affirmance
on this point is without prejudice to Appellant filing a motion under Florida
Rule of Criminal Procedure 3.800(a) to correct his sentence, a motion
under Rule 3.850 alleging ineffective assistance of trial counsel for failing
to bring this error to the attention of the trial court, or a petition under
Florida Rule of Appellate Procedure 9.141(d) alleging ineffective assistance

                                      4
of appellate counsel for failing to raise this issue in this Court. 5

                                  Conclusion

    We affirm this case in its entirety. Appellant failed to preserve his
argument that his phone information should be suppressed, and we
therefore do not reach the merits of that issue. We further conclude that
the record does not demonstrate the trial court abused its discretion in
determining that the line-up photograph was not unduly prejudicial and
that the trial court did not err in denying Appellant’s overbroad motion to
adopt (especially because the trial court expressed a willingness to
consider a more focused motion). Finally, although we hold that the
verdicts in this case were not truly inconsistent, we recognize the apparent
problem with the classification/enhancement of Appellant’s crimes and
affirm on this issue without prejudice to Appellant filing an appropriate
motion addressing the problem.

    Affirmed.

WARNER and DAMOORGIAN, JJ., concur.

                              *         *          *

    Not final until disposition of timely filed motion for rehearing.




5Again, we offer no opinion on the merits of any ineffective assistance claims that
may be raised.

                                        5
