       Third District Court of Appeal
                               State of Florida

                        Opinion filed December 20, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D15-709
                         Lower Tribunal No. 12-7548B
                             ________________


                               Oba Newbhard,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Maria Elena
Verde, Judge.

     Carlos J. Martinez, Public Defender, and Marti Rothenberg and Jeffrey Paul
DeSousa, Assistant Public Defenders, for appellant.

      Pamela Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant
Attorney General, for appellee.


Before SALTER, EMAS and LOGUE, JJ.

      EMAS, J.
      INTRODUCTION

      Oba Newbhard was convicted by a jury of the crimes of attempted felony-

murder, robbery with a firearm, and aggravated assault (two counts). In this

appeal, Newbhard contends that the trial court erred in denying his motion for

judgment of acquittal on the charge of attempted felony-murder because the State

relied upon the same act to prove both the attempted felony-murder and the

underlying robbery offense. We affirm, because the State established at trial that

the attempted felony-murder included an intentional act that was not an essential

element of the underlying robbery offense.

      FACTS

      The evidence at trial, in a light most favorable to upholding the jury’s

verdict, established the following:

      On the night of March 21, 2012, David Montesino, his girlfriend Janette

Garcia, and their six-year old daughter were leaving their third-floor apartment to

get something to eat. Montesino began walking down the stairs with his daughter,

with Garcia not far behind. When Montesino reached the bottom of the stairs and

began walking towards his car, he was approached by Newbhard, who was

pointing a gun at him and demanding Montesino hand over the gold chain around

Montesino’s neck. Montesino took several steps back, at which time Newbhard

grabbed Montesino’s daughter, pointed the gun to her head, and demanded that



                                        2
Montesino hand over his chain.         When Montesino confronted Newbhard,

Newbhard released the daughter.

      By this point, Garcia had reached the bottom of the stairs, and Newbhard

grabbed Garcia and pointed the gun to her head, again demanding that Montesino

hand over his chain. Montesino agreed to give Newbhard his chain and, as he took

off the chain and held it in his hand, Newbhard released Garcia.

      Newbhard and Montesino continued to argue and, during this time,

Montesino knocked Newbhard’s hat off his head, allowing Montesino a clear view

of Newbhard’s face. Thereafter, Montesino began to run, but Newbhard shot

Montesino twice—once in the hand and once in the leg. After Montesino was shot,

and while still running away from Newbhard, Montesino threw his gold chain at

Newbhard.      Newbhard then fled the scene with Montesino’s gold chain.

Montesino survived his injuries, and both he and Garcia identified Newbhard as

the perpetrator.

      Newbhard was arrested and charged by amended information with, inter

alia, armed robbery of Montesino; attempted felony-murder with a deadly weapon

upon Montesino; aggravated assault with a firearm upon the daughter; and

aggravated assault with a firearm upon Garcia.

      Following a jury trial, Newbhard was convicted of all counts. The trial court

adjudicated Newbhard guilty and sentenced him to life in prison on the armed



                                         3
robbery and the attempted felony-murder and to five years in prison for each

aggravated assault, all sentences to run concurrently.1 This appeal follows.

      ANALYSIS

      We look first to the relevant language of the felony-murder and robbery

statutes, as well as the allegations contained in the information. We then consider

the evidence presented at trial to determine whether, as Newbhard asserts, the State

relied upon the same intentional act in proving both the felony-murder and the

underlying robbery offense.

      The attempted felony-murder statue provides in relevant part:

      Any person who perpetrates or attempts to perpetrate any felony
      enumerated in s. 782.04(3)2 and who commits, aids, or abets an
      intentional act that is not an essential element of the felony and that
      could, but does not, cause the death of another commits a felony of
      the first degree . . . .

§ 782.051(1), Fla. Stat. (2012).

      The robbery statute provides in relevant part:

      (1) “Robbery” means the taking of money or other property which
      may be the subject of larceny from the person or custody of another,
      with intent to either permanently or temporarily deprive the person or


1 Newbhard was also charged with possession of a firearm by a convicted felon.
The court severed that count for trial and, following the trial and convictions on the
above-described counts, Newbhard entered a plea to this remaining charge and was
sentenced to a three-year mandatory minimum sentence, to run concurrent with the
sentences for the other counts.
2 Robbery is an enumerated felony. See § 782.04(3)(d), Fla. Stat. (2012).

                                          4
      the owner of the money or other property, when in the course of the
      taking there is the use of force, violence, assault, or putting in fear.

      ...

      (2)(a) If in the course of committing the robbery the offender carried a
      firearm or other deadly weapon, then the robbery is a felony of the
      first degree, punishable by imprisonment for a term of years not
      exceeding life imprisonment or as provided in s. 775.082, s. 775.083,
      or s. 775.084.

      ...

      (3)(b) An act shall be deemed “in the course of the taking” if it occurs
      either prior to, contemporaneous with, or subsequent to the taking of
      the property and if it and the act of taking constitute a continuous
      series of acts or events.

§ 812.13, Fla. Stat. (2012).

      Count Six of the information, charging Newbhard with attempted felony-

murder, alleged that Newbhard

      did, by an act imminently dangerous to another and evincing a
      depraved mind regardless of human life, while engaged in the
      perpetration of, or in attempt to perpetrate, robbery, and did
      commit, aid, or abet an intentional act that is not an essential
      element of the felony and that could, but does not, cause the death of
      another, to wit: DAVID MONTESINO, by SHOOTING AT HIM,
      and during the course of the commission of the offense, said
      defendant discharged a firearm or destructive device, and as a result of
      the discharge, death or great bodily harm was inflicted upon DAVID
      MONTESINO, a human being and in the commission of said felony,
      the defendant carried, displayed, used, threatened, or attempted to use


                                         5
      a weapon, to wit: A FIREARM in violation of s. 782.051(1) and s.
      775.087, Fla. Stat. . . . . (Emphasis added).

      Importantly, and as the highlighted portion above shows, the State alleged,

as the underlying felony, robbery or attempted robbery.

      Count Two, charging robbery, alleged that Newbhard

      did unlawfully, by force, violence, assault, or putting in fear, take
      certain property, to wit: A NECKLACE AND/OR PENDANT. . ., the
      property of DAVID MONTESINO, with the intent to temporarily or
      permanently deprive the above-named owner(s) or custodian(s) of the
      said property, and/or during the course of the commission of the
      offense, said defendant discharged a firearm or destructive device, and
      as a result of the discharge, death or great bodily harm was inflicted
      upon DAVID MONTESINO. . . .

      In order to prove the crime of robbery, the State had to establish that “in the

course of the taking there is the use of force, violence, assault, or putting in fear.”

§ 812.13(1), Fla. Stat. To constitute robbery under the statute, it is not necessary to

prove that the use of force was precisely contemporaneous with the taking itself.

Instead the use of force will support a robbery conviction if it “occurs either prior

to, contemporaneous with, or subsequent to the taking of the property and if it [the

use of force, violence, assault or putting in fear] and the act of taking constitute a

continuous series of acts or events.” § 812.13(3)(b).

      Newbhard asserts that the shooting of the firearm—i.e., the “intentional act”

relied upon for the felony-murder charge—also constituted the “use of force,

violence, assault or putting in fear” for the underlying robbery. Newbhard points to

the fact that the robbery was not
                                          6
completed (that is, Montesino did not give up the gold chain) until after Newbhard

shot Montesino. Therefore, Newbhard argues, the act of shooting Montesino with

a firearm constituted the use of force “in the course of the taking” and therefore

could not simultaneously be relied upon by the State as the intentional act

necessary to support a conviction for felony-murder. Newbhard argues that his

conviction and sentence for attempted felony-murder must therefore be reversed.

      The State counters that the evidence at trial established that Newbhard

engaged in multiple acts, any one of which could serve to satisfy the use of force

element of robbery. The State is correct that the evidence at trial established that

Newbhard engaged in multiple acts involving the use of force. For example:

      • When Newbhard initially pointed the gun at Montesino and
        demanded that he hand over his gold chain;

      • When Newbhard later grabbed Montesino’s daughter, pointed the
        gun to her head, and demanded Montesino hand over his chain;
        and

      • When Garcia reached the bottom of the stairs, Newbhard grabbed
        Garcia, pointed the gun to her head, and demanded Montesino
        hand over his chain.

      Any one of these acts, standing alone, was sufficient to satisfy the robbery

statute’s requirement that “in the course of the taking there is the use of force,

violence, assault, or putting in fear.”

      The infirmity in Newbhard’s argument is that it overlooks one important

point: in order to prove attempted felony-murder, the State was not required to


                                          7
establish that Newbhard successfully completed the underlying robbery; rather, the

attempted felony-murder offense could be established by proof that Newbhard

committed or attempted to commit the underlying robbery. See § 782.051(1), Fla.

Stat. (2012) (providing: “Any person who perpetrates or attempts to perpetrate any

felony enumerated in s. 782.04(3) . . . .”).

      Thus, in establishing the crime of attempted felony-murder, the use of force

element of the underlying felony (robbery or attempted robbery) was established

by proof that Newbhard pointed a gun at Montesino and demanded his gold chain;

or by proof that Newbhard grabbed the daughter and pointed a gun to her head and

demanded the chain; or by proof that Newbhard grabbed Garcia and pointed a gun

to her head and demanded the chain. The fact that Newbhard did not succeed in

obtaining the chain as a result of any one of these acts is irrelevant to proof of the

attempted robbery as the underlying offense of attempted felony-murder.

      In similar fashion, the fact that Newbhard later used force, violence, assault

or putting in fear against Montesino—by shooting Montesino and thereafter

obtaining possession of the gold chain—is not essential to proving that Newbhard,

while attempting to perpetrate a robbery, committed the additional intentional act

of shooting Montesino.3

3 To adopt Newbhard’s reasoning would appear to produce this anomalous result:
where the defendant managed to successfully complete the robbery and obtain the
property by shooting the victim, the defendant could not be convicted of attempted
felony-murder. However if, even after shooting the victim, the defendant was still
unable to obtain the victim’s property, the defendant could be convicted of
                                         8
      Newbhard relies for his position on Milton v. State, 161 So. 3d 1245 (Fla.

2014). In Milton, the defendant fired multiple gun shots at a crowd of people

standing in front of a house. The defendant was charged with, inter alia, three

counts of attempted felony-murder (involving three separate victims), and the

underlying felony alleged for each of these counts was attempted second-degree

murder. For each of these counts, the same individual constituted the victim of

both the attempted felony-murder and the underlying attempted second-degree

murder. Id. at 1246. The State alleged that the intentional act—which could have

resulted in each victim’s death but was not an essential element of the underlying

attempted second-degree murder—was Milton’s act of discharging a firearm. Id.

at 1247. Relevant to our discussion, Milton was convicted of three counts of

attempted felony-murder. This court affirmed those convictions.

      On appeal to the Florida Supreme Court, the defendant in Milton argued that

because the discharge of a firearm was the only act that could satisfy an essential

element of the attempted second-degree murder (intentionally committing an act

that could have resulted, but did not result in, the victim’s death),4 this same act




attempted felony-murder.
4 See State v. Florida, 894 So. 2d 941, 945-46 (Fla. 2005) (receded from on other

grounds by Valdes v. State, 3 So. 3d 1067 (Fla. 2009)) (holding that an essential
element of attempted second-degree murder is that “the defendant intentionally
committed an act that could have resulted, but did not result, in the death of
someone”).
                                         9
could not also be relied upon as the “intentional act” necessary to prove the

attempted felony-murder.

      The State countered that because the defendant fired multiple gun shots,

only the initial shot was an essential element of the underlying attempted second-

degree murder, and the subsequent shots fired by Milton were not an essential

element of the underlying felony.       The Supreme Court rejected the State’s

argument, holding that “Milton’s single act of discharging a firearm did not satisfy

the ‘intentional act’ element of attempted felony murder, as it was an essential

element of the underlying attempted second-degree murder.” Id. at 1250. The

Court vacated the attempted felony-murder conviction.

      Milton is distinguishable, given that the underlying felony in that case was

attempted second-degree murder, and given the Court’s determination that the

multiple discharges of the firearm constituted a single act. Under those particular

facts, the act of discharge was an essential element of both the attempted felony

murder and the attempted second-degree murder. No such facts or circumstances

are present in the instant case.

      Newbhard’s reliance on Coicou v. State, 867 So. 2d 409 (Fla. 3d DCA 2003)

(quashed on other grounds, 39 So. 3d 237 (Fla. 2010)), is similarly misplaced. In

Coicou, a meeting was arranged at which an individual named Artis was going to

buy cocaine from Coicou. When the two met up, Artis handed his money to

Coicou. After counting the money,
                                        10
Coicou showed Artis the cocaine. When Artis asked to sample the drugs, Coicou

pulled out a gun, shot Artis, and left the scene with the buyer’s money. Artis

survived, and Coicou was charged with attempted first-degree felony-murder. The

underlying felony alleged was robbery. Coicou was convicted and, on appeal, this

court reversed the conviction for attempted first-degree felony murder, holding:

      Here, Coicou took Artis' money. Artis testified that he voluntarily
      handed the money to Coicou. The use of force occurred after Artis
      handed the money to Coicou The use of force, the shooting, was itself
      an essential element of the underlying robbery and was not an
      independent act as required by section 782.051(1). It follows then that
      the robbery offense could not also be considered for the attempted
      felony murder charge. Without this additional proof of force, the State
      failed to prove the main charge against Coicou, the attempted felony
      murder charge. Thus, the trial court erred in denying Coicou’s motion
      for judgment of acquittal.

      (Internal citations omitted.)

      In Coicou, a single act of force was used to effectuate both the robbery and

the attempted murder. Here, by contrast, the defendant engaged in a separate and

discrete use of force, violence, assault or putting in fear against three different

individuals in attempting to commit the underlying robbery.

      The instant case is instead analogous to Williams v. State, 182 So. 3d 11

(Fla. 3d DCA 2015)(en banc), in which we held, on facts and charges

indistinguishable in all relevant respects to the instant case, that “the later act of

shooting the victim in the abdomen is an intentional act separate and distinct from


                                         11
that of pointing the firearm at the victim’s head and demanding that she hand over

her bag.” Id. at 15.

      As in Williams, Newbhard’s actions of pointing the gun at Montesino and

demanding the gold chain; later grabbing the daughter and pointing the gun at her

head while demanding the chain; and still later then turning the gun on Garcia

while demanding the chain, are separate and distinct acts, any one of which would

alone suffice to establish the use of force element for the underlying attempted

robbery. The fact that Newbhard later shot Montesino, and by the use of such

force was able to successfully complete the robbery, did not serve to convert that

subsequent act of shooting into an essential element of the underlying attempted

robbery.

      Affirmed.




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