          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                          No. 1D14-5700
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DEONTREZ LEVON KITT,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Escambia County.
Jan Shackelford, Judge.

                        November 30, 2018


PER CURIAM.

     In this direct appeal from his conviction and sentence for first-
degree felony murder and armed burglary, Appellant claims that
the trial court abused its discretion by denying his request for a
jury instruction on the independent act doctrine. We disagree and
affirm.

     During its case-in-chief, the State presented testimony that
Appellant and three cofelons went to the victim’s apartment with
firearms to rob the victim of drugs and money. The victim and his
fiancée were taken to the living room where Appellant threatened
to shoot the victim’s fiancée if the victim did not disclose the
location of a box containing drugs. Appellant also struck the victim
in the head with a gun. After ransacking the apartment for about
an hour in a search for drugs and money, the intruders discussed
taking the victim with them and trying to get a ransom. Appellant
told the victim’s fiancée that they were going to kidnap the victim
for ransom and warned her not to call the police. The victim was
transported from the scene in the trunk of the victim’s car. While
Appellant was following behind the victim’s car, the victim escaped
from the trunk and was shot and killed by one of Appellant’s
cofelons.

     At the charge conference, defense counsel requested a jury
instruction on the independent act doctrine, which was denied by
the trial court. The jury returned a verdict finding Appellant
guilty as charged with a specific finding that Appellant actually
possessed a firearm. The trial court adjudicated Appellant guilty
and imposed concurrent life sentences. This appeal followed.

     “The ‘independent act’ doctrine arises when one cofelon, who
previously participated in a common plan, does not participate in
acts committed by his cofelon, ‘which fall outside of, and are foreign
to, the common design of the original collaboration.’” Ray v. State,
755 So. 2d 604, 609 (Fla. 2000) (quoting Ward v. State, 568 So. 2d
452, 453 (Fla. 3d DCA 1990)). “An independent act instruction is
appropriate only when the actions of the cofelon who allegedly
acted outside the scope of the original plan were not foreseeable
based on the actions a defendant set in motion.” Rodriguez
v. State, 147 So. 3d 1066, 1068 (Fla. 3d DCA 2014) (emphasis in
original). Thus, “where . . . the defendant was a willing participant
in the underlying felony and the murder resulted from forces
which they set in motion, no independent act instruction is
appropriate.” Ray, 755 So. 2d at 609.

     Appellant claims that the trial court abused its discretion by
denying his request for a jury instruction on the independent act
doctrine because the murder of the victim was outside the common
plan to rob and then kidnap the victim for ransom. However, it was
unquestionably foreseeable that someone could be shot or killed
during the events set in motion by Appellant. In particular, it was
foreseeable that the victim might flee in the course of the
kidnapping and be shot and killed in order to prevent him from
contacting the police. See Jones v. State, 804 So. 2d 551, 552 (Fla.
3d DCA 2002) (“A killing in the face of either verbal or physical

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resistance by a victim is properly viewed as being within the
original criminal design.”).

     Accordingly, the trial court did not abuse its discretion by
concluding that Appellant was not entitled to an independent act
jury instruction. See Parker v. State, 458 So. 2d 750, 752-53 (Fla.
1984) (holding that the trial court did not err in failing to give a
requested instruction on the independent act of a cofelon because
the victim’s murder was a natural and foreseeable culmination of
the motivations for the original kidnapping where Parker, at the
very least, was aware that the victim was being driven to woods
against his will as part of the ongoing terrorization for failure to
pay his drug debt); Rodriguez, 147 So. 3d at 1068-69 (holding that
Rodriguez was not entitled to an independent act jury instruction
where Rodriguez orchestrated the entire sequence of events by
going to the victim’s house armed with a firearm and bringing
three cofelons, who he knew would be armed with firearms, to
assist him in confronting and “scaring” the victim, and it was
hardly unforeseeable that violence would occur or that someone
could be shot or killed during this armed confrontation); Cannon
v. State, 18 So. 3d 562, 564 (Fla. 1st DCA 2009) (holding that
Cannon was not entitled to a jury instruction on the independent
act doctrine at his trial for first-degree murder and armed robbery
where Cannon helped plan the armed robbery and the murder of
the resisting victim was the foreseeable result of the forces set in
motion by Cannon and his co-defendant); Roberts v. State, 4 So. 3d
1261, 1264-65 (Fla. 5th DCA 2009) (holding that Roberts was not
entitled to a jury instruction on the independent act doctrine at his
trial for murder, robbery, and kidnapping where Roberts knew of
and participated in the robbery, knew that a co-defendant was
armed and shot a victim, and put the kidnapping victim in a stolen
getaway van).

    AFFIRMED.

RAY, KELSEY, and JAY, 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.
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Valarie Linnen, Atlantic Beach, for Appellant.

Pamela Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant
Attorney General, Tallahassee, for Appellee.




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