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

                             THAROD BELL,
                               Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D12-2417

                           [December 3, 2014]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Karen Miller, Judge; L.T. Case No. 2008CF017526DXX.

  Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers,
Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

    Appellant, Tharod Bell, appeals his judgment and sentence after a jury
found him guilty of two counts of attempted first-degree murder, five
counts of armed robbery, five counts of aggravated assault, and five counts
of false imprisonment. Bell argues that the trial court erred in giving the
felony murder instruction and in denying his motion for judgment of
acquittal. We disagree, and affirm.

    Bell was charged by information with three counts of attempted first-
degree murder, six counts of robbery with a firearm, five counts of
aggravated assault with a firearm, and five counts of possession of a
firearm while committing a false imprisonment arising from a robbery-
turned-attempted murder occurring at a Dunkin Donuts.

   On the day before Thanksgiving 2008, officers were dispatched to a
Dunkin Donuts in Delray Beach. When officers arrived, they found the
store in disarray; there was furniture overturned, blood, and bone
fragments on the floor.
    Officers learned that four men entered the Dunkin Donuts around
10:30 p.m., masked, and dressed in black. Patrons were told to get on the
floor and throw their money on the floor. Although witnesses testified that
all of the people inside the store complied with this request, one of the
masked men, who was carrying a shotgun, shot two men in the face. While
both men survived, they suffered severe injuries. As the masked men were
leaving the store, the third gunshot victim pulled up to the restaurant,
flashed his lights at them, and the gunman shot him as well. The third
gunshot victim also survived, but experienced facial injuries from
“buckshot.”

   A week later, officers searched a townhome that was suspected to be
occupied by one of the participants in the crime. The search yielded
various credit cards and driver’s licenses of the Dunkin Donuts patrons,
as well as yellow shotgun shells, the same color as the shells found at the
scene.

   A.G., one of the persons living in the townhome, testified that five men,
including Bell, met at the townhome on the night of the crime. She saw
them dressed in black from “head to toe,” and at one point, all but one left
the townhome, borrowing her car. She saw one of the men retrieve a
shotgun from under the couch. She stated that the four men returned a
few hours later carrying a black backpack. When the men poured out the
contents of the backpack, A.G. saw credit cards, checks, and money. A.G.
also testified that a few days after three of the men were arrested, Bell and
another suspect returned to the townhome, asked for the shotgun, and
left taking it with them.

   The day after officers searched the townhome, Bell and another suspect
were stopped at the seaport and detained. Bell told officers he was
attempting to board a cruise ship to the Bahamas.

   Bell then gave a recorded interview with detectives that was played for
the jury. In this interview, Bell claimed that he participated in the robbery
only because the shooter threatened to kill him if he did not participate.
He also stated that, while the four men were driving to the Dunkin Donuts,
the shooter stated: “this time I’m going after lives, I’m claiming bodies.”

   During the trial, Bell objected to the trial court instructing the jury on
attempted felony murder. Bell argued that the State never alleged
attempted felony murder in the original or any amended information. He
also argued that the State specifically mentioned “premeditated” in the
information, so the State should be entitled to travel only under the theory
of attempted premeditated murder, not attempted felony murder, for the

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first-degree murder counts. The trial court overruled this objection, and
instructed the jury on attempted felony murder, as well as attempted
premeditated murder. The trial court also denied Bell’s motion for
judgment of acquittal as to the counts of attempted first-degree murder.

   The jury found Bell guilty of two counts of attempted first-degree
murder, five counts of robbery with a firearm, five counts of aggravated
assault with a firearm, and five counts of possession of a firearm while
committing a false imprisonment. Bell was adjudicated guilty on all
counts, and sentenced to seven life sentences and ten concurrent fifteen
year sentences. This appeal follows.

Felony Murder Instruction

   “Generally speaking, the standard of review for jury instructions is
abuse of discretion, but that discretion, as with any issue of law is strictly
limited by case law.” Krause v. State, 98 So. 3d 71, 73 (Fla. 4th DCA 2012)
(quoting Lewis v. State, 22 So. 3d 753, 758 (Fla. 4th DCA 2009)) (internal
quotation marks omitted).

   The information charged Bell with first-degree murder, and specifically
mentions “premeditation” in the explanatory portion. Bell argues that,
since the State did not mention felony murder in the information, it was
error for the trial court to instruct on felony murder.

    Our supreme court has held that the State can pursue either a theory
of felony murder or premeditated murder when it charges a defendant with
premeditated murder. See Parker v. State, 904 So. 2d 370, 382-83 (Fla.
2005) (“It is well established that an indictment which charges
premeditated murder permits the State to prosecute a defendant under
alternative theories of premeditated and felony murder when the
indictment charges premeditated murder.”); Kearse v. State, 662 So. 2d
677, 682 (Fla. 1995) (“The State need not charge felony murder in an
indictment in order to prosecute a defendant under alternative theories of
premeditated and felony murder when the indictment charges
premeditated murder.”).


   We have held the same. See Stanley v. State, 57 So. 3d 944, 948 (Fla.
4th DCA 2011) (recognizing our supreme court’s holding that the state
does not have to charge felony murder when the indictment charges
premeditated murder in order to travel under that theory and using this
concept to support its holding). We have also held similarly as to the
crimes of attempted felony murder and attempted premeditated murder.

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See Dempsey v. State, 72 So. 3d 258, 260-61 (Fla. 4th DCA 2011) (“[W]e
conclude that [the defendant] could have been charged with attempted
first-degree murder, and the State could have prosecuted [the defendant]
under either attempted premeditated murder or attempted felony murder,
without violating his right against double jeopardy.”).

   Therefore, the trial court did not err in giving the felony murder
instruction.

Motion for Judgment of Acquittal

   Bell argues on appeal, only as to the attempted first-degree murder
charges, that the trial court erred in denying his motion for judgment of
acquittal. “In reviewing a motion for judgment of acquittal, a de novo
standard of review applies.” Pagan v. State, 830 So. 2d 792, 803 (Fla.
2002).

   Since the main evidence used against Bell was his own confession, the
State provided direct evidence of his guilt. See Meyers v. State, 704 So. 2d
1368, 1370 (Fla. 1997) (“Because confessions are direct evidence, the
circumstantial evidence standard does not apply in the instant case.”).
Because the State provided direct evidence, the standard for the judgment
of acquittal is:

            A defendant, in moving for a judgment of
            acquittal, 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. The courts should not grant a motion
            for judgment of acquittal unless the evidence is
            such that no view which the jury may lawfully
            take of it favorable to the opposite party can be
            sustained under the law. Where there is room for
            a difference of opinion between reasonable men
            as to the proof or facts from which an ultimate
            fact is sought to be established, or where there is
            room for such differences as to the inferences
            which might be drawn from conceded facts, the
            Court should submit the case to the jury for their
            finding, as it is their conclusion, in such cases,
            that should prevail and not primarily the views of
            the judge.


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Lynch v. State, 293 So. 2d 44, 45 (Fla. 1974).

   The State proceeded under both a premeditation and a felony murder
theory for the attempted first-degree murder charges. The jury was
instructed that the elements of attempted felony murder are: (1) Bell
committed or attempted to commit a robbery; (2) while engaged in the
commission, attempted commission or escape from the immediate scene
of a robbery, the defendant committed or aided or abetted an intentional
act that is not an essential element of robbery; and (3) this intentional act
could have, but did not, cause the death of the victims. See also Fla. Std.
Jury Instr. (Crim.) 6.3.

   Bell admitted to the jury throughout the trial that he participated in the
robbery, thus satisfying element one. Bell also assisted in containing the
victims in the store while his co-assailant shot them, thus satisfying
elements two and three. Cf. State v. Blanton, 821 So. 2d 440 (Fla. 5th DCA
2002).

    The jury was instructed that the elements of attempted premeditated
murder are: (1) Bell did some act intended to cause the death of the victims
that went beyond just thinking or talking about it; (2) Bell acted with a
premeditated design to kill the victims; and (3) the act would have resulted
in the death of the victims except that someone prevented Bell from killing
the victims or he failed to do so. See also Fla. Std. Jury Instr. (Crim.) 6.2.
Additionally, Bell was charged as a principal, for which the elements are:
(1) Bell had a conscious intent that the criminal act be done; and (2) Bell
did some act or said some word which was intended to and which did
incite, cause, encourage, assist, or advise the other person or persons to
actually attempt to commit the crime. See also Fla. Std. Jury Instr. (Crim.)
3.5(a). Bell argues that the State did not provide sufficient evidence to
show that Bell had the requisite intent for attempted premeditated murder.

   “As to the intent element, the state may show either that the defendant
had the requisite intent or that he knew that the perpetrator had that
intent.” Messer v. State, 757 So. 2d 526, 529 (Fla. 4th DCA 2000). Bell
argues that the State did not prove that he had knowledge of the shooter’s
intent to kill because the shooter’s statement, “I’m claiming lives,” was
ambiguous. We find that the shooter’s statement provided sufficient
evidence for the jury to find that the shooter intended to kill people,
claiming bodies and lives, and that Bell knew of the shooter’s intent
through that statement. During the recorded interview of Bell, the
detective asked Bell, and Bell responded:



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         DETECTIVE: He meant to kill each of these - - he told you
      he meant to kill him?

          BELL: Yes. Before we left, he told us “n-----, I’m getting
      paid, but by that same time I’m grabbing bodies, I’m grabbing
      lifes.” [sic]

    In Lewis v. State, 22 So. 3d at 758, we held that the trial court properly
denied the defendant’s motion for judgment of acquittal, and the jury could
have inferred the defendant’s conscious intent “to commit a robbery
because he heard [the co-defendant]’s statement that they were ‘fittin’ to
go get this money,’ he was told he would get some of the money, he joined
[the two co-defendants] in jumping over a gate into the community, and
he knew that [the two co-defendants] had guns.” The instant case has
very similar facts. Similar to the defendant in Lewis, Bell heard the
shooter make a statement of an intent to commit the crime, participated
in the robbery, arguably knew he would benefit from the robbery based on
his participation, and also knew that the shooter had a shotgun with him
during the robbery.

   We therefore affirm Bell’s convictions and sentence.

   Affirmed.

WARNER, MAY and CONNER, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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