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

KYREE LUIS PEREZ,                       NOT FINAL UNTIL TIME EXPIRES TO
                                        FILE MOTION FOR REHEARING AND
      Appellant,                        DISPOSITION THEREOF IF FILED

v.                                      CASE NO. 1D15-510

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed April 12, 2016.

An appeal from the Circuit Court for Duval County.
Russell L. Healey, Judge.

Nancy A. Daniels, Public Defender, and Maria Ines Suber, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney
General, Tallahassee, for Appellee.




RAY, J.

      Kyree Luis Perez, Appellant, was convicted of attempted second-degree

murder for shooting his former friend, Michael Coley, in the abdomen in response

to Coley’s provocation to engage in a fist fight. Appellant argues that the trial court

should have granted his motion for a judgment of acquittal because the evidence
showed only an impulsive overreaction to Coley’s behavior, making manslaughter

the highest suitable conviction. Contrary to Appellant’s argument, the evidence

was legally sufficient for the jury to find, as it did, that Appellant shot Coley with

the ill will, hatred, spite, or evil intent necessary to support a conviction for

attempted second-degree murder. Therefore, we affirm. *

      In the light most favorable to the State, the evidence established the

following facts. Appellant and Coley were approximately nineteen and twenty

years old, respectively, at the time of the shooting. They lived in the same

neighborhood and had been good friends in middle school. At some point, for a

reason not revealed at trial, a rift developed in their relationship. They would still

interact in a civil manner for neighborhood basketball games, but their differences

remained unresolved.

      On the evening of the shooting, Coley and a friend were walking along a

street when Appellant approached them from behind on a bicycle. Appellant and

Coley exchanged words and ended up arguing face-to-face. Appellant and Coley

yelled at one another, but neither pushed, shoved, kicked, or punched the other.

During the heated verbal exchange, Coley walked toward Appellant, challenging

him to a physical fight. Coley testified that he asked Appellant for a “fair fight,”

*
 Appellant also challenges the exclusion of testimony that he attempted to elicit on
cross-examination of one of the State’s witnesses. We conclude, without further
comment, that this error was harmless under the test of State v. DiGuilio, 491 So.
2d 1129, 1135 (Fla. 1986).
                                        2
one-on-one, to finally settle their differences. Appellant stated that he “wasn’t

taking no losses,” and as Coley walked toward Appellant in pursuit of a fight,

Appellant pulled out a gun and put it in Coley’s face.

      Surprised and angry, Coley pushed the gun away and continued moving

towards Appellant, asking if Appellant was seriously pulling a gun on him. From

an arm’s length away, Appellant put the gun on Coley’s stomach, and it “went

off.” Coley called Appellant’s name and said, “[Y]ou shot me.” Appellant

answered, “I know. I should have killed you.” As Coley’s friend scrambled away

from the scene, Appellant pointed the gun at him. The friend hid behind an

electrical box, and both Coley and the friend heard a couple more gunshots shortly

after the first one. Appellant then left on his bicycle.

      Appellant’s bullet entered Coley’s abdomen, struck an artery, pierced his

lung, and lodged in his spine. Coley was temporarily paralyzed, later suffered

serious complications from blood clots, and remained under a doctor’s care at the

time of trial, approximately seven months after the incident.

      Under these facts, we find no error in the denial of Appellant’s motion for

judgment of acquittal, which focused on the intent element of attempted second-

degree murder. A trial court’s denial of a motion for judgment of acquittal is

reviewed de novo. Jones v. State, 790 So. 2d 1194, 1197 (Fla. 1st DCA 2001). If

the evidence, when considered in the light most favorable to the State, is capable of

                                            3
supporting a guilty verdict, a motion for judgment of acquittal must be denied.

See id. at 1197-98. To grant a motion for judgment of acquittal, the trial court must

find that the evidence is legally insufficient to support the elements of the crime.

Id. at 1197. Accordingly, the appropriate inquiry on appeal is whether there is

competent, substantial evidence to support the elements of the crime and, thereby,

support the trial court’s denial of the motion. Hobart v. State, 175 So. 3d 191, 199

(Fla. 2015) (quoting Jackson v. State, 25 So. 3d 518, 531 (Fla. 2009)).

      Second-degree murder is “[t]he unlawful killing of a human being, when

perpetrated by any act imminently dangerous to another and evincing a depraved

mind regardless of human life, although without any premeditated design to effect

the death of any particular individual.” § 782.04(2), Fla. Stat. (2013). The

depraved-mind element of second-degree murder requires “ill will, hatred, spite, or

an evil intent.” Poole v. State, 30 So. 3d 696, 698 (Fla. 2d DCA 2010). In most

cases, this intent must be inferred from the circumstances. Antoine v. State, 138

So. 3d 1064, 1074 (Fla. 4th DCA 2014) (quoting Williams v. State, 239 So. 2d

127, 130 (Fla. 4th DCA 1970)). To establish that the defendant acted with a

depraved mind, the State must present evidence of circumstances showing more

than an “impulsive overreaction” to an attack. Wiley v. State, 60 So. 3d 588, 591

(Fla. 4th DCA 2011) (citing Light v. State, 841 So. 2d 623, 626 (Fla. 2d DCA

2003)); Dorsey v. State, 74 So. 3d 521, 522 (Fla. 4th DCA 2011).

                                         4
      Appellant argues that the shooting was merely an impulsive overreaction to

Coley’s invitation and approach to fight. Appellant relies on four cases for support:

Poole v. State, 30 So. 3d 696 (Fla. 2d DCA 2010); Bellamy v. State, 977 So. 2d

682, 684 (Fla. 2d DCA 2008); Rayl v. State, 765 So. 2d 917, 919-20 (Fla. 2d DCA

2000); and McDaniel v. State, 620 So. 2d 1308 (Fla. 4th DCA 1993). In these

cases, the courts concluded that the State’s evidence was insufficient to establish

the intent element of second-degree murder (or attempted second-degree murder),

where the defendants reacted to either an attack or a perceived imminent attack or

were engaged in mutual physical fighting with the victims. Poole, 30 So. 3d at 697-

98 (defendant stabbed unarmed victim when victim angrily lunged at him inside a

cramped recreational vehicle, where victim was strong, larger than defendant, and

had a reputation for violence, particularly when he had been drinking, as he had on

the night in question); Bellamy, 977 So. 2d at 684 (defendant stabbed one victim

when he was outnumbered and pushed against a wall and stabbed another after

being pushed to the ground by a crowd of brawlers); Rayl, 765 So. 2d at 919-20

(defendant shot victim twice after victim “bust[ed] open” the door to his place of

business and confronted him while threatening to kill him, after making that threat

all day, allegedly being armed, and possibly lunging at defendant following the

first shot); McDaniel, 620 So. 2d at 1308 (defendant stabbed son after son hit him

in the mouth and knocked him to the ground). These cases essentially involved

                                         5
imperfect self-defense claims. See Dorsey v. State, 74 So. 3d 521, 524 (Fla. 4th

DCA 2011).

      In contrast, although the evidence in the instant case showed that Coley

challenged Appellant to a fight and actually advanced toward him, it does not

necessarily establish that when Appellant shot Coley he was “impulsively acting

out of fear to save himself.” Cf. Antoine v. State, 138 So. 3d 1064, 1074 (Fla. 4th

DCA 2014) (distinguishing “impulsive overreaction” cases where evidence

implied that defendant was not “impulsively acting out of fear to save himself” but

was “administering street justice”). While the evidence showed that the shooting

was a response, and indeed an overreaction, to Coley’s challenge to a fight, the

witnesses’ testimony provided a basis from which the jury could find that

Appellant’s reaction was more deliberate than impulsive. Cf. Rasley v. State, 878

So. 2d 473 (Fla. 1st DCA 2004) (affirming conviction for second-degree murder

where defendant fatally shot husband as husband advanced toward her in defiance

of her entreaties to stop after having violently shoved her earlier in the night, as

evidence existed from which jury could find that defendant was motivated by

anger over husband’s extramarital affair). Further, Appellant’s statement to Coley

that he “should have killed” him distinguishes the instant case from the “impulsive

overreaction” cases and suggests malice. From this contemporaneous statement

and all the circumstances, the jury could reasonably find that Appellant shot the

                                         6
victim out of ill will, hatred, spite, or evil intent and that he had no regard for the

victim’s life. Accordingly, Appellant’s conviction for attempted second-degree

murder is AFFIRMED.

ROWE and SWANSON, JJ., CONCUR.




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