       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                      EDWARD JERMAINE BABBS,
                             Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D12-1425

                             [March 23, 2016]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Bernard I. Bober, Judge; L.T. Case No. 09-20236CF10A.

   Kevin J. Kulik of Kevin J. Kulik, P.A., Fort Lauderdale, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Nancy Jack,
Assistant Attorney General, West Palm Beach, for appellee.

GROSS, J.

    This case involves the murder of a young pregnant woman and her
fetus, which was viable at the time of her death. Appellant was the
biological father of the unborn child. The victim was discovered in a car
parked in a parking lot. She had been shot once in the head and once in
the abdomen. Appellant is currently serving a life sentence without the
possibility of parole. Appellant argues that the state’s evidence was
insufficient to support the trial court’s denial of his motion for judgment
of acquittal. Because the State presented competent, substantial evidence
inconsistent with appellant’s theory of innocence, we affirm.
    “The standard of review for the denial of a motion for judgment of
acquittal is de novo.” Ortiz v. State, 36 So. 3d 901, 902 (Fla. 4th DCA
2010) (citing Pagan v. State, 830 So. 2d 792, 803 (Fla.2002)). “‘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.’”
Garrido v. State, 97 So. 3d 291, 298 (Fla. 4th DCA 2012) (quoting Williams
v. State, 59 So. 3d 373, 375 (Fla. 4th DCA 2011)).
    Because there were no witnesses to the shooting and no outright
confession, this case involves circumstantial evidence.           “When the
evidence against a criminally accused person is circumstantial, a motion
for judgment of acquittal should be granted if the state fails to present
evidence from which the jury can exclude every reasonable hypothesis
except that of guilt.” Brothers v. State, 853 So. 2d 1124, 1125 (Fla. 5th
DCA 2003). In such circumstances, “the proper task of the trial judge is
to review the evidence, taking it in the light most favorable to the state, in
order to determine whether there is competent evidence from which the
jury could infer guilt to the exclusion of all other inferences.” Martin v.
State, 728 So. 2d 775, 776 (Fla. 4th DCA 1999) (citing State v. Law, 559
So.2d 187, 189 (Fla.1989)). “The State is not . . . required to rebut every
possible scenario which could be inferred from the evidence. Rather it
must introduce competent evidence which is inconsistent with the
defendant's theories.” Schwarz v. State, 695 So. 2d 452, 454 (Fla. 4th DCA
1997) (citing Law, 559 So. 2d at 189).
   The state’s evidence put appellant at the scene at the time of the
murder. The state also presented statements made by appellant showing
consciousness of guilt, and evidence to suggest a motive. Appellant had
expressed frustration about the victim’s decision to go forward with the
pregnancy. He told her that she “was ruining his life” and that “he didn’t
want anything to do with it and that she should just get rid of it.”
   The victim’s body was discovered at approximately 5:00 p.m. on
October 2, 2009, in a parked car in the parking lot of a Winn Dixie
shopping plaza. The medical examiner reported to the scene at about
11:00 p.m., and immediately noticed a gunshot wound to the victim’s
abdomen. The medical examiner estimated a 24-hour period of when
death occurred. A second gunshot wound to the back of the victim’s skull
was discovered during the autopsy.
   The victim was last seen by her cousin, Jovanna Boyd, the night before.
After receiving a text message, the victim left in a red Ford Taurus—the
same car in which her body was found. Boyd did not know where the
victim was going. Boyd called and spoke with the victim at about 10:53
p.m., during which she heard a male voice in the background. Boyd told
the victim to “beat her home.”
   At around 12:10 a.m., the victim still had not come home. Boyd called
the victim’s phone a number of times, all of which went unanswered. Boyd
called appellant at 1:06 a.m. and asked if he had seen the victim.
Appellant told Boyd that the victim had left a little while ago—about 11:00
p.m. Appellant also mentioned that the victim had left her phone with
him.


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   Earlier, on the evening of October 1, appellant went to a high school
football game with two friends, Ismael Sierra and Denzel Chandler. Sierra
and appellant were in joint possession of two guns which they kept in a
Spider-Man book bag. One of the guns was a semi-automatic, which they
were holding for a friend, and the other was a revolver, which Sierra and
appellant co-owned. While at the game, appellant purportedly got into an
altercation with an individual by the name of Jameal.
   After the game, around 10:30 p.m., Sierra, Chandler, and appellant
went to another friend’s house. Chandler and appellant left after no more
than 15 minutes. Sierra did not see the revolver after appellant left.
Chandler dropped appellant off at his house around or before 11:00 p.m.
   At 12:26 a.m., appellant called Sierra asking for a ride. Sierra was
unable to help because his car was not working. At 12:29 a.m., appellant
called Chandler asking for a ride. Appellant said that he was at the
Southwest Broward Junior Athletic Association, but that Chandler could
pick him up at a nearby McDonald’s. The Winn Dixie where the victim’s
body was found was located off the same street as the athletic association.
   Chandler drove appellant straight home, and along the way, asked him
where he had been. Appellant said that he was “at his chick’s house.”
When they got to appellant’s house, appellant threw the revolver down on
the seat of the car and told Chandler to “hold it down for him.”
   When Sierra spoke with appellant the next day, appellant told Sierra
that if anybody asked, to tell them appellant was with him from 11:00-
12:00 the night before. Later that day, Sierra spoke with appellant’s
stepdad and told him that appellant had been with him the night before.
After Sierra found out about the murder, he called appellant’s stepdad and
told him that he had lied and that appellant had asked Sierra to say that
he was with him.
   When Chandler heard that appellant was being questioned about the
murder, he threw the gun in a nearby lake, so as not to have any
involvement with the situation. Chandler later told law enforcement about
the gun, and accompanied them to the lake to show them exactly where
he threw it.
   The revolver was recovered from the lake on October 13. Four .22
caliber long rifle cartridges were found inside the gun. These were live
rounds. Also inside the gun were two shell casings, indicating that two
bullets had been discharged. Although the gun initially appeared to be
inoperable, it was made functional and test fired with similar ammunition
to that of the projectile taken from the victim’s abdomen. The projectile
was determined to be consistent with the type of ammunition that would


                                   -3-
be within one of the .22 caliber casings in the revolver. A cartridge of the
same make and caliber as those found in the revolver was also recovered
during a search of appellant’s bedroom.
   The cell phone records of both appellant and the victim also supported
the state’s case. From 9:53 – 10:20 p.m. on October 1, 14 text messages
were exchanged between the appellant and the victim. No outgoing calls
were made from appellant’s phone between 10:36 p.m. and 12:26 a.m.
There were only incoming calls. An incoming call on appellant’s phone at
12:06 a.m. pinged off a cell tower within a 2 mile radius of where the
victim’s body was found. The 12:26 a.m. call to Sierra and the 12:29 a.m.
call to Chandler both pinged off cell towers less than 2 miles from where
the body was found.
    Although appellant did not put on a case at trial, his hypothesis of
innocence was that the evidence did not show that he killed the victim. He
made a number of statements to law enforcement over the course of the
investigation, admitting that he was with the victim the night of the
murder, but asserting that he had parted ways with her by 11:00 p.m.
Appellant also tried to suggest Jameal—the individual with whom he got
into an altercation at the football game—as an alternate suspect. The only
evidence to support this possibility was a statement appellant made to
Monisha Dawkins that he saw the victim leave the football game with a
guy named Jameal. The reasonableness of this hypothesis was weakened
by Boyd’s testimony that the victim was with her all day until the victim
left that night in the red Ford Taurus.
   In light of the state’s evidence of appellant’s statements to Sierra and
Chandler, the phone records placing appellant in the vicinity of where the
victim’s body was found, the consistency of the two shell casings with the
projectile taken from the victim’s abdomen, and appellant’s conduct with
the revolver, appellant’s theory that “Jameal did it” was not a reasonable
hypothesis of innocence. Accordingly, there was no error in the denial of
appellant’s motion for judgment of acquittal.

LEVINE and CONNER, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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