       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT
                              July Term 2014

                      KENNETH BERNARD LAWS,
                            Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D11-1252

                          [September 10, 2014]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Jeffrey J. Colbath, Judge; L.T. Case No.
2010CF010031BMB.

   Philip J. Massa of Philip J. Massa, P.A., West Palm Beach, (withdrawn
as counsel after filing brief) and Ronald Hurst, Greenacres, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber,
Assistant Attorney General, West Palm Beach, for appellee.

CONNER, J.

   Kenneth Bernard Laws appeals his judgment and sentence after a jury
found him guilty of first-degree murder, robbery with a firearm while
masked, conspiracy to commit robbery with a firearm while masked, and
three counts of false imprisonment with a firearm. The charges arose from
a robbery resulting in the shooting death of the store owner. Laws argues
that the trial court erred by (1) excluding photographs and testimony of a
defense witness, (2) giving the standard jury instruction on principals
when conspiracy was one of the charged crimes, and (3) denying his
motion for judgment of acquittal as to one of the counts of false
imprisonment. We affirm, and write to discuss only the second issue.

   Laws asserts in his brief that “[i]t is error to instruct a jury on the
Principal theory on a conspiracy charge.” He cites Evans v. State, 985 So.
2d 1105 (Fla. 3d DCA 2008), in support of this assertion. In Evans, the
Third District determined that Evans’s conviction for conspiracy had to be
vacated for a new trial because the standard instruction on principals (“the
principals instruction”) was given to the jury. However, the procedural
posture of the issue presented in Evans is completely different from the
procedural posture of the issue in this case.

    In Evans, Evans was convicted of three counts of substantive offenses
and six counts of conspiracy. Id. at 1106. At the charge conference, the
trial court proposed to give the principals instruction. Evans objected on
the basis that it was legally impossible to be a principal to a conspiracy,
arguing “either you are a member or not.” Id. More importantly, Evans
specifically asked that the trial court explain to the jury that the principals
instruction applied to the substantive offense and not the conspiracy
offenses. Id. The State contended the principals instruction was sufficient
without any cautionary explanation and the trial court agreed. Id.

    Relying on several opinions rendered by all of the district courts in
Florida which hold that a person aiding and abetting another in the
commission of a crime is insufficient to convict either person of a
conspiracy to commit the substantive offense, the Third District concluded
“[t]rial counsel’s objection to the principal instruction was well taken” and
reversed the convictions for conspiracy, remanding for a new trial. Id.
Although not explicitly stated, we construe Evans to hold it is reversible
error not to grant a request for a limiting instruction regarding the
principals instruction when the defendant is charged with substantive
charges to which the instruction is applicable, as well as conspiracy. We
do not construe Evans to hold that the principals instruction is
inappropriate whenever conspiracy is tried along with substantive
offenses.1

   In this case, Laws was charged with five substantive offenses and one
conspiracy offense. During the charge conference, prior to discussing
either the conspiracy instruction or the principals instruction, an issue
came up as to the wording of the instructions for the murder and robbery
charges. A draft of proposed instructions was prepared using the following
language: “Kenneth Bernard Laws, or others with whom Kenneth Barnard
Laws was acting as a principal.” Laws objected to the wording stating:
“No, I would ask that that language be stricken. They’ll be instructed on
principals later on.” The trial court sustained the objection and struck the
words “or others with whom Kenneth Barnard Laws was acting as a

1 Evans was a post-conviction relief proceeding, alleging ineffective assistance of
appellate counsel for failure to raise on appeal the objection Evans raised at trial
to the principals instruction. However, it is not the post-conviction proceeding
context which makes the procedural posture of Evans different from this case. It
is the manner in which the issue was raised before the trial court that makes the
procedural posture different.

                                         2
principal” from all the substantive offenses.     After discussing the
instructions for murder and robbery, the trial court next discussed the
draft instructions for conspiracy:

      COURT:       All right. So criminal conspiracy, no lessers,
                   right? Guilty, not guilty, here’s the instruction,
                   standard; everybody all right with that?

      DEFENSE: Yes.

    Next, the court discussed the draft instructions for the three counts of
false imprisonment. The next instruction in the sequence was the
principals instruction, during which the following exchange occurred:

      COURT:       All right. Principals, standard instruction,
                   defendant objects to the law of principals?

      DEFENSE: Yes.

      COURT:       Overruled. . . .

    At no point during the charge conference, particularly when the
conspiracy and principal instructions were discussed, did Laws request an
instruction specifically advising the jury that the principals instruction did
not apply to the conspiracy charge. More importantly, Laws objected to
the language “Kenneth Bernard Laws, or others with whom Kenneth
Barnard Laws was acting as a principal” in regards to the substantive
offenses. That language would not have been used in the instruction on
conspiracy. If the language had remained for the substantive offenses, the
structure of the instructions would have made it obvious that the
principals instruction applied to the substantive offenses and not the
conspiracy offense. By asking the trial court to strike that language from
the substantive instructions and failing to ask for a limiting instruction,
Laws invited the error he complains about on appeal. Procedurally, Laws
cannot seek a reversal. See Czubak v. State, 570 So. 2d 925, 928 (Fla.
1990) (“Under the invited-error doctrine, a party may not make or invite
error at trial and then take advantage of the error on appeal.” (citations
omitted)).

   Affirmed.

GROSS and GERBER, JJ., concur.

                            *         *         *


                                      3
Not final until disposition of timely filed motion for rehearing.




                               4
