          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                         No. 1D18-1473
                 _____________________________

ERNA MCFADDEN,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Duval County.
Mark Borello, Judge.

                         April 11, 2019


JAY, J.

    The Appellant, Erna McFadden, appeals from an order
denying her postconviction motion brought pursuant to Florida
Rule of Criminal Procedure 3.850. For the reasons discussed
below, we affirm.

                                I.

     The Appellant was charged with armed robbery (count I) and
two counts of aggravated battery (counts II and III). She pleaded
guilty to counts II and III, and a jury trial was held on count I.

   At trial, the evidence showed that Dustin McDonald, a CVS
employee, saw the Appellant and another woman in the store
hiding merchandise in their purses. He alerted his coworker,
Dean Campbell, and they followed the two women to the front of
the store. Mr. Campbell was on the phone, trying to find the non-
emergency number for the police department.

     Near the exit, Mr. McDonald asked to search the Appellant’s
purse, which prompted her companion to flee. Mr. Campbell
struggled with the companion briefly before she escaped. While
Mr. McDonald was watching the other woman run away, the
Appellant slashed him across his face, chest, and hand with a
boxcutter. Concerned for the safety of Mr. McDonald and the
other customers, Mr. Campbell struggled with the Appellant. She
then slashed Mr. Campbell on the face. He disengaged from the
Appellant to assist Mr. McDonald. While he was focused on Mr.
McDonald’s injuries, the Appellant ran past Mr. Campbell and
slashed him on his left arm. He saw her get into a gold Ford
Taurus with no license plate. Mr. Campbell and Mr. McDonald
both testified that they never threatened either woman.

     The police apprehended the Appellant and her companion
two minutes down the road and less than a mile from the scene.
Both Mr. Campbell and Mr. McDonald identified them as the
individuals involved in the offenses. When the gold Taurus was
searched, police found a brown purse in the back seat and a blue
and white purse in the front passenger seat. The blue and white
purse contained items that were stolen from the CVS. The brown
purse contained a boxcutter. A fragment of the boxcutter’s blade
was discovered outside the CVS. Surveillance footage was
introduced at trial.

     Based on this evidence, the Appellant was found guilty of
count I. She was sentenced to life in prison on count I and fifteen
years in prison on counts II and III. Her convictions and
sentences were affirmed on appeal. See McFadden v. State, 129
So. 3d 1072 (Fla. 1st DCA 2014) (Table).

    The Appellant subsequently filed the instant rule 3.850
motion, raising five ineffective assistance of counsel claims. Upon
being granted leave to amend grounds one, two, four, and five,
the Appellant filed an amended motion. The trial court


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summarily denied the amended motion on the merits. This timely
appeal followed.

                                II.

     In the Appellant’s first and second grounds, she argued that
her attorney was ineffective for failing to object to the reading of
the principal instruction. She alleged that neither the
information nor the evidence showed that she acted in concert
with anyone to commit a robbery. She asserted that she was
simply shopping with the codefendant until Mr. McDonald
approached and asked to search their purses. She claimed that
she had been unaware that the codefendant was stealing until
she ran away. The Appellant alleged that she only struck the
clerk because he struck her first, not to aid in the codefendant’s
escape. She argued that if counsel had objected, she would have
been acquitted of robbery or convicted of a lesser offense.

     To prove ineffective assistance, an appellant must allege (1)
the specific acts or omissions of counsel that fell below a standard
of reasonableness under prevailing professional norms and (2)
that the appellant’s case was prejudiced by these acts or
omissions such that the outcome of the case would have been
different. Strickland v. Washington, 466 U.S. 668, 690-92 (1984).
However, “[c]ounsel cannot be deemed ineffective for failing to
make a meritless objection.” Hitchcock v. State, 991 So. 2d 337,
361 (Fla. 2008).

     “The principals instruction may be given if the evidence
adduced at trial supports such an instruction.” McGriff v. State,
12 So. 3d 894, 894 (Fla. 1st DCA 2009). Under the law applicable
to principals,

    a defendant will be treated as if he did all the acts
    performed by the others involved in the perpetration of a
    crime if (1) the defendant “ha[d] a conscious intent that
    the crime be done” and (2) the defendant “d[id] some act
    or sa[id] some word which was intended to and d[id]
    incite, cause, encourage, assist, or advise another person
    to actually commit the crime.”


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Charles v. State, 945 So. 2d 579, 581-82 (Fla. 4th DCA 2006)
(quoting R.J.K. v. State, 928 So. 2d 499, 503 (Fla. 2d DCA 2006)).

     Here, the evidence supported the jury instruction. Mr.
McDonald testified that he saw both women stealing items from
the store. When confronted about the theft, the Appellant
attacked Mr. McDonald. Both Mr. McDonald and Mr. Campbell
testified that when the attack began, they were distracted by the
codefendant and were not paying attention to the Appellant. It
was only after the Appellant injured Mr. McDonald that Mr.
Campbell struggled with her. Furthermore, the Appellant
attacked Mr. Campbell again after he had disengaged from her to
aid Mr. McDonald. This interaction was caught on video
surveillance. Under these circumstances, grounds one and two
were properly denied.

     In the Appellant’s third ground, she argued that (a) the state
failed to prove a prima facie case, (b) her conviction was obtained
through a coerced confession, (c) the prosecutor failed to disclose
favorable evidence, (d) her attorney was ineffective for failing to
object to improper prosecutorial comments, and (e) her attorney
was ineffective for failing to argue the state’s failure to prove
premeditation. However, the Appellant failed to raise these
arguments in her pro se initial brief. Therefore, appellate review
of ground three has been waived. See Duest v. Dugger, 555 So. 2d
849, 852 (Fla. 1990); Watson v. State, 975 So. 2d 572, 573 (Fla. 1st
DCA 2008).

     In the Appellant’s fourth ground, she argued that her
attorney was ineffective for failing to call an expert witness to
testify regarding her mental health issues. She alleged that Mr.
McDonald grabbed her arm and threw her into a wall, prompting
her to use the boxcutter to defend herself. She asserted that a
mental health expert could have testified that she felt threatened
under these circumstances due to her mental health issues. She
claimed that this omission left the jury without a complete
picture of her state of mind. She also argued that counsel failed
to present mitigating evidence regarding her mental health
issues.



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     The Appellant does not appear to be arguing that at the time
of the offense, she was unable to appreciate the difference
between right and wrong or understand the nature or quality of
her act. Thus, she does not seem to suggest that an insanity
defense was available. Rather, because this argument is
premised upon demonstrating her state of mind and the need to
defend herself, it appears to be a self-defense argument. Cf.
Filomeno v. State, 930 So. 2d 821, 822 (Fla. 5th DCA 2006)
(holding that a psychologist’s testimony concerning the “fight or
flight” response was admissible as state-of-mind evidence to
support a claim of self-defense).

     As an initial matter, the Appellant’s factual allegations in
this ground are inconsistent with the evidence presented at trial.
Mr. McDonald’s and Mr. Campbell’s testimony established that
the Appellant injured Mr. McDonald with the boxcutter while he
was distracted by her codefendant’s flight. Mr. McDonald did not
touch or strike the Appellant. Rather, it was Mr. Campbell who
struggled with the Appellant and only after Mr. McDonald had
been attacked. The Appellant subsequently attacked Mr.
Campbell after the struggle was over, while he was assisting Mr.
McDonald.

     Furthermore, the Appellant pleaded guilty to the aggravated
battery charges and only proceeded to trial on armed robbery.
Her attorney relied on her guilty pleas to argue that while she
committed the aggravated batteries and would be punished for
them, she neither stole property nor intended to help her
codefendant steal, and thus, she did not commit armed robbery.
The Appellant does not explain how a self-defense theory would
apply under these circumstances. Regardless, even if a self-
defense theory would apply, this ground remains facially
insufficient after an opportunity to amend, as the Appellant does
not identify her mental illness or how it affected her perceptions.
Therefore, this aspect of her claim was properly denied with
prejudice. See Fla. R. Crim. P. 3.850(f)(3).

    Insofar as the Appellant argued that counsel failed to
present expert testimony regarding her mental health as
mitigating evidence, the record reflects that counsel did present


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such testimony. Therefore, this aspect of ground four is
conclusively refuted by the record.

    In the Appellant’s fifth ground, she argued that her attorney
was ineffective for failing to make an adequate motion for
judgment of acquittal. She alleged that her attorney should have
argued that the state did not prove all the elements of robbery, as
she did not take any property, use force in the course of a taking,
or have the intent to deprive the victim of any property.

     “In moving for a judgment of acquittal, a defendant ‘admits
not only the facts stated in the evidence adduced, but also admits
every conclusion favorable to the adverse party that a jury might
fairly and reasonably infer from the evidence.’” Beasely v. State,
774 So. 2d 649, 657 (Fla. 2000) (quoting Lynch v. State, 293 So.
2d 44, 45 (Fla. 1974)). “A motion for judgment of acquittal should
only be granted if there is no view of the evidence from which a
jury could make a finding contrary to that of the moving party.”
Jeffries v. State, 797 So. 2d 573, 580 (Fla. 2001) (citing Lynch, 293
So. 2d at 45).

     Here, any motion for judgment of acquittal arguing that the
state did not prove the elements of robbery would have been
denied. When viewed in the light most favorable to the state, the
evidence introduced at trial shows that the Appellant and a
companion stole items from CVS. When two clerks confronted
them about the theft, the Appellant injured them both with a
boxcutter to aid in her and her companion’s escape. Under these
circumstances, this ground was properly denied.

    AFFIRMED.

B.L. THOMAS, C.J., and BILBREY, J., concur.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Erna McFadden, pro se, Appellant.

Ashley Moody, Attorney General, and Bryan Jordan, Senior
Assistant Attorney General, Tallahassee, for Appellee.




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