           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
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                         No. 1D16-3860
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JONATHAN CHARLES,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


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

                        August 24, 2018


WOLF, J.

     Appellant challenges his convictions and sentences for
second-degree felony murder and burglary. He argues the State’s
circumstantial evidence failed to rebut his reasonable hypothesis
of innocence which constituted fundamental error. We find the
evidence was sufficient and affirm.

                             FACTS

     Appellant was charged by information with burglary and
second-degree felony murder of Tyrone Ward, who was shot by a
resident during the commission of the burglary. The State alleged
appellant was in actual possession of a firearm for both offenses.
     At trial, the State presented evidence that appellant and
Tyrone Ward broke into an occupied apartment. A neighbor
testified she saw two men working together to kick down her
neighbors’ front door. They had a black bag at their feet. One of
the residents of that apartment hid in his en suite bathroom
while his front door was being kicked down. The resident heard
someone kick in his bedroom door and search his room. The
intruder then opened the bathroom door where the resident was
hiding, and the resident shot and killed the intruder. The
resident exited his bedroom and saw a second intruder standing
on the other side of the apartment. The resident fired a shot in
his direction to “hold him back” while the resident fled. He did
not see a firearm in either man’s hand.

     A second resident saw one of the intruders run down the
back steps and flee in a red SUV, holding his shoulder. He took a
picture of the SUV. Police stopped a vehicle matching the one
photographed by the victim. A female was driving. There was
blood in the driver’s seat and a receipt from Walmart for
painkillers. Appellant was later arrested at the home of a second
woman. He was taken to the hospital for a shoulder injury,
photos of which were submitted to the jury.

    At the victims’ apartment, police found a black bag in the
foyer containing a gun, duct tape, two cell phones, and
identification belonging to Ward. The residents stated the bag
and gun did not belong to them.

     Officers searched appellant and Ward’s cell phones. Directly
prior to the incident, Ward texted an unknown number and
stated, “I need a ride south side for this lick.” An officer testified
a “lick” is a robbery, and the incident took place on the south side
of town. Ward then texted appellant and asked, “you got the
other stick.” Appellant responded, “SMH [shaking my head].
Nah. Look like we don’t need it.” An officer testified a “stick” is a
firearm. Ward replied, “okay OMW [on my way].” Appellant then
texted, “am finnin try go get one.”

    Officers testified that location data placed appellant’s phone
near the victims’ apartment at the time of the incident. Then, his
phone traveled to the vicinity of the address of the woman who

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owned the red SUV with blood in the driver’s seat. It then
traveled to the area of Walmart at the same time reflected on the
receipt for pain killers. Finally, it traveled to the apartment
where appellant was later arrested.

    Appellant’s counsel moved for judgment of acquittal, arguing
that while the State “may have evidence to go forth with a
burglary or . . . second degree murder” charge, there was no
evidence that appellant was in actual possession of a firearm.
The court denied the motion.

     The jury found appellant guilty as charged of second-degree
felony murder and burglary but found he was not in actual
possession of a firearm. The court sentenced appellant to
concurrent terms of 35 years in prison for each offense. This
timely appeal follows.

                             ANALYSIS

     “This Court reviews a defendant’s unpreserved claim that a
trial court committed fundamental error de novo.” Croom v. State,
36 So. 3d 707, 709 (Fla. 1st DCA 2010).

     Appellant argues the evidence was insufficient to prove
either burglary or second-degree felony murder. He concedes that
circumstantial evidence placed him in the victims’ apartment,
where he was shot and then fled. However, he argues mere
knowledge that an offense is being committed and mere presence
at the scene of the crime is insufficient to establish participation
in the offense. He asserts there is no direct evidence that he had
prior knowledge of or intent to commit the burglary and murder
along with Ward, and the State’s circumstantial evidence that he
was in the apartment did not rebut his reasonable hypothesis of
innocence that he merely gave Ward a ride. He concedes he failed
to preserve this argument but asserts his convictions are
fundamental error because the evidence did not prove that he
committed the charged offenses. This argument fails for several
reasons.

    First, appellant cannot raise for the first time on appeal an
argument that the special circumstantial evidence standard

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applies. “A special standard of review of the sufficiency of the
evidence applies where a conviction is wholly based on
circumstantial evidence. Where the only proof of guilt is
circumstantial, no matter how strongly the evidence may suggest
guilt, a conviction cannot be sustained unless the evidence is
inconsistent with any reasonable hypothesis of innocence.” State
v. Law, 559 So. 2d 187, 188 (Fla. 1989) (internal citations
omitted). However, “[t]he 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.” Id. (quoting State v. Allen, 335 So. 2d 823, 826 (Fla.
1976)).

     This court held that where counsel makes a mere boilerplate
motion for judgment of acquittal, “the issue of whether the State
presented evidence inconsistent with Appellant’s version of
events was not preserved because counsel did not argue that this
was a wholly circumstantial evidence case, thus triggering the
special standard of review under which the trial court would have
been required to rule on the motion. Nor did counsel outline a
theory of defense and argue that the circumstantial evidence was
consistent, rather than inconsistent, with that theory.” Newsome
v. State, 199 So. 3d 510, 513 (Fla. 1st DCA 2016).

     Here, as in Newsome, appellant’s counsel failed to preserve a
claim that the evidence was wholly circumstantial, and thus the
special standard of review for circumstantial evidence claims was
not triggered. Instead, in moving for judgment of acquittal,
counsel conceded the State “may have evidence to go forth with a
burglary . . . or second degree [felony] murder” charge, and
challenged only the sufficiency of the evidence that appellant was
in actual possession of a firearm. Thus, appellant’s challenge to
the sufficiency of the evidence for the burglary and second-degree
murder charges is reviewable only for fundamental error.

    Insufficient evidence constitutes fundamental error only
where the State failed to prove that the defendant “committed
any crime.” Monroe v. State, 191 So. 3d 395, 401 (Fla. 2016).
Here, there was sufficient evidence that appellant committed a
crime. Appellant concedes circumstantial evidence placed him in

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the apartment as one of the intruders. Eyewitnesses saw only
two intruders, and one eyewitness testified that both intruders
worked to break down the front door to the victims’ apartment.
Thus, there was evidence that appellant participated in the
commission of the offense and was not merely present at the
scene of the crime. Cf. Garcia v. State, 899 So. 2d 447, 450 (Fla.
4th DCA 2005) (“Mere knowledge that an offense is being
committed and mere presence at the scene of the crime are
insufficient to establish participation in the offense.”). Appellant
and Ward also texted about bringing a gun, and Ward indicated
to an unknown third party that he was going to commit a
robbery. Thus, the State presented sufficient evidence that
appellant committed a crime – specifically, the charged offenses
of burglary and second-degree felony murder. * As such, we
affirm.

    AFFIRMED.

OSTERHAUS and WINSOR, 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 A. Victoria Wiggins,
Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez,
Assistant Attorney General, Tallahassee, for Appellee.

    *  Even if the special circumstantial evidence standard
applied here, the State’s evidence that appellant was one of the
two intruders who broke down the door and entered the victims’
apartment was inconsistent with appellant’s theory of defense
that he merely gave Ward a ride. Thus, even under that
standard, the evidence would have been sufficient.

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