         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D17-850
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ALBERT STEPHENS,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Leon County.
Angela C. Dempsey, Judge.

                          May 16, 2019


WINSOR, J.

    After a burglary in Tallahassee’s Capital City Country Club
neighborhood, Albert Stephens was charged with grand theft and
burglary of a dwelling. He was convicted and sentenced to prison.
This is his appeal.

     The evidence at trial showed that someone forcibly entered
the victims’ home and stole electronics and other items. A golf
course employee had reported suspicious men and an unfamiliar
car outside the home, and police issued a BOLO for the car and
men. Officers promptly found a car matching the description at a
nearby gas station, but the car sped off when officers approached.
A man then exited the gas station and briefly ran after the car,
waving his arms and yelling for it to stop. When officers ordered
that man to stop, he fled on foot. Officers apprehended the man,
who turned out to be Stephens. Surveillance video showed that
Stephens had been in the car before police arrived and had gone
inside the store to pay for gas. The car (which had been stolen) was
quickly found abandoned. Stolen electronics were inside the car, as
were socks with Stephens’s DNA. A sock was also found in the yard
at the crime scene, but DNA testing on it was inconclusive.

     Stephens’s first argument on appeal is that his counsel was
ineffective. Specifically, he argues that his counsel should have
moved for a judgment of acquittal relating to the value of the stolen
property. The grand-theft conviction required proof that the
property at issue was worth at least $100, see § 812.014(2)(d), Fla.
Stat., and the jury found that it was. Stephens argues that the
evidence was such that no reasonable juror could have made that
finding *—and that had counsel made an appropriate motion, the
court would have acquitted as to grand theft.

     Generally, claims of ineffective assistance of counsel are not
cognizable on direct appeal. Sorey v. State, 252 So. 3d 853, 855 (Fla.
1st DCA 2018). There are rare exceptions to this general rule, see
Monroe v. State, 191 So. 3d 395, 404 (Fla. 2016), but no exception
applies here. To succeed with an ineffective-assistance-of-counsel
claim on direct appeal, the appellant must demonstrate
“indisputable prejudice,” among other things, Morales v. State, 170
So. 3d 63, 67 (Fla. 1st DCA 2015), and Stephens cannot do that.
Even assuming the evidence was insufficient to support the
conviction—an issue we need not reach—there would not be
indisputable prejudice unless it was clear the State could not have
cured any insufficiency by reopening the case and presenting
additional evidence. See Sorey, 252 So. 3d at 856 (Winsor, J.,
concurring); see also Corzo v. State, 806 So. 2d 642, 645 (Fla. 2d
DCA 2002) (holding that “failure to move for a judgment of


    *  The evidence included, among other things, victim testimony
that the stolen property included a two-year-old television bought
new for “about $700,” a Nintendo Wii that was “probably three
years old” and purchased for “about 199,” a laptop that was “two
or three years old,” originally purchased for around $1,200, and a
gift card with “about $25, $30” on it.

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acquittal when the State has not proved an essential element of its
case, when it is clear that the State could not reopen its case to prove
that essential element, amounts to ineffective assistance of counsel
that may sometimes be adequately assessed from the record on
direct appeal” (emphasis added)). Stephens’s ineffective-assistance
claim, then, will have to wait for an appropriate postconviction
proceeding.

     Stephens next argues that the court erred in giving a principal
instruction, an issue we review only for an abuse of discretion, see
Langston v. State, 789 So. 2d 1024, 1026 (Fla. 1st DCA 2001)
(noting standard of review for jury-instruction issues). The court
instructed the jury that “[i]f the defendant helped another person
or persons commit or attempt to commit a crime, the defendant is
a principal and must be treated as if he had done all the things the
other person [] did,” so long as Stephens “had a conscious intent
that the criminal act be done” and did something to “cause,
encourage, assist, or advise the other person or persons to actually
commit or attempt to commit the crime.” See Fla. Std. Jury Instr.
(Crim.) 3.5(a). It is error to give this instruction if no evidence
supports the principal theory. Banks v. State, 219 So. 3d 19, 32
(Fla. 2017). Here, though, there was no error because there was
evidence that Stephens acted in concert with another in
committing the burglary. A witness saw two men by the house, one
coming from behind the home, the other watching the witness.
(The witness also saw someone moving around inside the house
around the same time.) There was evidence of forced entry and
stolen items. Evidence showed Stephens had been in the car (in
which stolen property was found), fled on foot immediately
thereafter when officers approached the car, and had been wearing
socks found in the car. There was enough evidence to justify the
principal instruction.

     Stephens’s third argument is that the court should have
granted a judgment of acquittal as to grand theft. We review this
issue de novo. Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002).
Stephens contends that all evidence against him was
circumstantial and that the State did not present evidence
inconsistent with his theory of innocence. See Hodgkins v. State,
175 So. 3d 741, 746 (Fla. 2015) (“Where the only proof of guilt is
circumstantial, no matter how strongly the evidence may suggest

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guilt, a conviction cannot be sustained unless the evidence is
inconsistent with any reasonable hypothesis of innocence.”
(quoting Thorp v. State, 777 So. 2d 385, 389 (Fla. 2000))). Here,
Stephens’s theory of innocence was that the car’s driver picked him
up after the burglary—that while he happened to be in the car
when officers approached, he had not participated in the burglary.
At least two pieces of evidence are inconsistent with this theory.
First, Stephens fled after officers approached, and fleeing is
consistent with recent participation in a crime. Second, the
evidence showed that very little time passed between the burglars’
departing the home and the officers’ apprehending Stephens.

     Stephens argues that there was enough time to pick up a
passenger and that it was logical to flee even if he had not
participated in the crime. And it is true that neither of these facts
conclusively disproves Stephens’s theory of innocence. But there
was enough to deny the motion for judgment of acquittal. “Under
the circumstantial evidence standard, when there is an
inconsistency between the defendant’s theory of innocence and the
evidence, when viewed in a light most favorable to the State, the
question is one for the finder of fact to resolve and the motion for
judgment of acquittal must be denied.” Durousseau v. State, 55 So.
3d 543, 557 (Fla. 2010); see also id. (“The state is not required to
rebut conclusively every possible variation of events which could
be inferred from the evidence, but only to introduce competent
evidence which is inconsistent with the Defendant’s theory of
events.” (marks omitted) (quoting State v. Law, 559 So. 2d 187
(Fla. 1989)).

     Finally, we reject Stephens’s argument that there was
insufficient evidence to support the burglary conviction. As with
the grand theft conviction, there was enough evidence, and it was
up to the jury to decide whether to accept Stephens’s theory of
innocence.

    AFFIRMED.

LEWIS and M.K. THOMAS, 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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Joseph C. Bodiford and Gannon M. Coens of Bodiford Law, PA,
Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Julian Markham, Assistant
Attorney General, Tallahassee, for Appellee.




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