           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
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                         No. 1D17-774
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JAMES ALFRED JACOBSON,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Duval County.
James Daniel, Judge.

                           June 8, 2018


ROWE, J.

      James Alfred Jacobson appeals his conviction for second-
degree murder, arguing that the trial court should have granted
his motion for judgment of acquittal. Jacobson contends that the
State failed to prove that he acted with ill will, hatred, spite, or
evil intent and that the shooting of the victim was an accident. We
affirm.

    The murder victim, Bryan Edwards, lived across the street
from Jacobson and his girlfriend, Rebecca Brantley. Jacobson and
Brantley frequently purchased marijuana from Edwards, who
grew marijuana plants in his home. But after Jacobson failed to
pay for marijuana on several occasions, Edwards refused to sell to
him again until he paid the $250 he owed Edwards.
    Jacobson was in dire financial straits. He and Brantley lived
with Brantley’s grandmother. Both were unemployed and owed
the grandmother $1,200 in unpaid rent. They had also been
threatened with eviction.

     On the day of the murder, Jacobson told his friend, Joey
Waters, that he was preparing for an armed robbery in a couple of
hours. Jacobson told Waters that he was going to do “a lick” (slang
for robbery), invited Waters to participate in the robbery, and also
asked Waters for a “burner” (slang for an untraceable gun).
Waters told Jacobson that he could not provide a gun.

    Later that day, Jacobson and Brantley were at the home of
Brantley’s brother and girlfriend, where they were using
marijuana. When they ran out of drugs, Jacobson told the others
he would approach Edwards and try to sell him a sawed-off
shotgun in exchange for money or more marijuana. Jacobson left
to see Edwards at his home. Shortly after Jacobson arrived,
Edwards was shot in the face at close range with the sawed-off
shotgun Jacobson had brought with him. But after Edwards was
wounded, Jacobson did not call 911 or seek any assistance to aid
Edwards. Instead, Jacobson ransacked Edwards’s home, taking
marijuana, a pistol, a gold chain, and a camera belonging to
Edwards.

     Jacobson then returned to the home of Brantley’s brother and
his girlfriend. Jacobson, Brantley, and the others smoked the
marijuana Jacobson had stolen from Edwards. Jacobson confessed
to Brantley that he had killed Edwards or at least gravely injured
him. Jacobson told Brantley that he intended to sell the shotgun
to Edwards, but when Jacobson pulled the shotgun from the bag,
the shotgun went off because the hammer was already cocked.
Then Jacobson threatened to kill Brantley, saying he “might as
well do you, too. At least I know I’ll get away with it.” Brantley
said Jacobson started laughing and said it was a joke.

    The next day Jacobson took Brantley to a pawn shop where
Brantley pawned the gold chain and camera Jacobson had stolen
from Edwards’s home. Later, after Jacobson and Brantley had
been charged and were in custody in the medical wing of the jail,

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Jacobson attempted to intimidate Brantley a second time,
mouthing to her that “You’re fucking dead.”

                        Standard of Review

     The appropriate standard of review on a motion for judgment
of acquittal is the de novo standard. Dunn v. State, 206 So. 3d 802,
804 (Fla. 1st DCA 2016). If the State presents competent evidence
to establish every element of the crime, then judgment of acquittal
is improper. State v. Odom, 862 So. 2d 56, 59 (Fla. 2d DCA 2003).
When reviewing a court’s ruling on a motion for judgment of
acquittal, the evidence must be construed in the light most
favorable to the State. Perez v. State, 138 So. 3d 1098, 1100 (Fla.
1st DCA 2014).

                              Analysis

    Jacobson argues that the trial court should have granted the
motion for judgment of acquittal because his actions amounted to
manslaughter by culpable negligence, not second-degree murder.
Jacobson contends that the shooting was accidental and that there
was no evidence to prove that he acted with ill will, hatred, spite,
or evil intent when he shot Edwards. Rather, he argues the
shooting was the result of culpable negligence.

     The primary distinction between manslaughter and second-
degree murder is that “manslaughter is committed when one kills
as a result of his culpable negligence and it is murder in the second
degree when one kills while perpetrating an act imminently
dangerous to another and evincing a depraved mind regardless of
human life.” Marasa v. State, 394 So. 2d 544, 545 (Fla. 5th DCA
1981); § 782.04, Fla. Stat. (2013). An act is imminently dangerous
to another and evinces a depraved mind when the act is such that
“(1) a person of ordinary judgment would know is reasonably
certain to kill or do serious bodily injury to another, and (2) is done
from ill will, hatred, spite or an evil intent, and (3) is of such a
nature that the act itself indicates an indifference to human life.”
State v. Montgomery, 39 So. 3d 252, 255-56 (Fla. 2010).

   When proving the required state of mind for second-degree
murder, evidence of “[p]ointing a loaded gun at the head of the

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victim and then firing has frequently been held to be an act
‘imminently dangerous to another and evincing a depraved mind
regardless of human life.’ ” Gibbs v. State, 904 So. 2d 432, 435 (Fla.
4th DCA 2005). Here, Jacobson pulled out a loaded shotgun with
the hammer cocked, and Edwards was shot in the head at close to
point-blank range. Viewed in the light most favorable to the State,
the evidence amply demonstrated an act imminently dangerous to
another.

     In determining whether Jacobson acted with ill will, hatred,
spite, or evil intent, the trial court properly considered his conduct
before and after the shooting. Sandhaus v. State, 200 So. 3d 112,
115 (Fla. 5th DCA 2016). The evidence at trial showed that
Jacobson was desperate for money. He was jobless. He owed
$1,200 in unpaid rent and had been threatened with eviction. He
owed Edwards $250 and Edwards refused to sell him more
marijuana until the debt was paid. Hours before the shooting,
Jacobson asked his friend Waters to take part in an armed robbery
and asked for an untraceable gun. Jacobson then went to see
Edwards and purportedly attempted to sell Edwards a sawed-off
shotgun in exchange for money or marijuana—despite Jacobson’s
admission that Edwards had already told him he would not sell
marijuana to him until the $250 debt was paid. Considering the
evidence in the light most favorable to the State, a reasonable jury
could find that Jacobson harbored ill will, hatred, spite, or an evil
intent toward Edwards.

     Jacobson’s conduct following the shooting also demonstrates
that he harbored ill will toward Edwards and that the shooting
was no accident. After Edwards was shot, Jacobson did not call
911 or seek medical attention for Edwards. Instead, he rummaged
through Edwards’s house, searched for and took Edwards’s
possessions that were easy to pawn, and stole marijuana.
Jacobson also held onto Edwards’s house key and planned to
return to the house to steal more items. He then smoked the
marijuana he had stolen from Edwards and confessed to Brantley
that he shot Edwards. After confessing, Jacobson tried to
intimidate Brantley, threatening to kill her, too, stating that he
“might as well do you, too. At least I know I’ll get away with it.”
This admission is another indication that Jacobson committed an
intentional act when he shot Edwards. When viewed in the light

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most favorable to the State, a reasonable jury could find that
Jacobson shot Edwards in the face out of ill will, hatred, spite, or
evil intent.

    AFFIRMED.

B.L. THOMAS, C.J., 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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Andy Thomas, Public Defender, and Nada M. Carey, Assistant
Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg,
Assistant Attorney General, Tallahassee, for Appellee.




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