       Third District Court of Appeal
                               State of Florida

                           Opinion filed April 26, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D15-1868
                         Lower Tribunal No. 10-849-D
                             ________________


                              Eduardo Castillo,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Rodney Smith,
Judge.

     Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public
Defender, for appellant.

     Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney
General, for appellee.


Before SUAREZ, C.J., and LAGOA and SCALES, JJ.

     LAGOA, J.
      Eduardo Castillo (“Castillo”) appeals from his conviction and sentence for

second degree murder with a deadly weapon. On appeal, Castillo raises two

arguments. First, Castillo argues that the trial court erred in overruling defense

counsel’s objection to comments made by the State in closing argument. Second,

Castillo argues that the trial court improperly reclassified his second degree murder

conviction from a felony of the first degree to a life felony pursuant to section

775.087(1)(a), Florida Statutes (2015).

      With regard to the first argument, we find that the error was harmless, and

affirm Castillo’s conviction for second degree murder without further discussion.

With regard to the second argument, we agree that the State failed to introduce any

substantive evidence that Castillo had actual possession of a deadly weapon. We

therefore conclude that the reclassification of Castillo’s conviction to a life felony

constitutes fundamental error and remand to the trial court for resentencing without

reclassification under section 775.087(1)(a).

I.    FACTUAL AND PROCEDURAL HISTORY

      The State charged Castillo and his co-defendants by information with the

second degree murder of Luis Rodriguez (“Rodriguez”) in violation of section

782.04(2), Florida Statutes (2015). The information alleged that Rodriguez was

killed by “BEATING AND/OR STRIKING HIM REPEATEDLY” and that

“during the course of committing said offense, [Castillo] carried, used, or



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threatened to use a deadly weapon, to wit: A BAT AND/OR A STICK AND/OR A

ROCK.”

      At trial, the State presented the testimony of several witnesses who either

witnessed or were involved in the attack. Joel Forcelledo (“Forcelledo”) testified

that on the night of January 7, 2010, he was working as a security guard at a

nursing home when he heard screaming in a nearby parking lot. Forcelledo saw

several individuals chasing one male who was running and fell down. When the

victim fell, he was beaten with a bat but Forcelledo could not identify any of the

attackers. Forcelledo called 911 and then rushed to aid the victim.

      T.L.1 testified that on the night in question she witnessed Rodriguez running

from a group of at least ten boys that were members of the Bout That Life (“BTL”)

gang.2 At trial, T.L. identified “Teddy,” “Baby,” and “Young Money,” but she did

not identify Castillo. T.L. saw “Teddy” slam Rodriguez to the floor and also saw

“Baby” throw a rock at the victim. She further testified that the entire group of

boys participated in hitting and kicking Rodriguez. When T.L.’s father screamed

that the police were coming, the group dispersed, and T.L. went to the aid of

Rodriguez.

1Because T.L. was a minor at the time of the attack, we refer to her in this opinion
only by her initials.
2 T.L. testified that she was familiar with the gangs operating in her neighborhood
as her brother was a member of the rival gang, Riverside. T.L. further testified that
neither she nor Rodriguez were members of the Riverside gang.

                                         3
         The State presented the testimony of two other witnesses who identified

Castillo as participating in the attack on Rodriguez. Specifically, Daniel Salas

(“Salas”) 3 testified that on the night of January 7, 2010, he, Castillo, and others

beat Rodriguez, and that during the beating, Castillo “grabbed [Rodriguez] by the

shirt and started punching him in the face.” Salas did not testify that Castillo used

a stick or other weapon.

         Rodriguez’s friend, Mauricio Ordonez (“Ordonez”),4 also testified at trial.

Ordonez testified that on the night of January 7, he and Rodriguez were at

Riverside Elementary School when they heard the name of the gang, BTL, being

screamed behind them.5 A group of people, including Castillo, began to chase him

and Rodriguez, so they ran. At trial, Ordonez identified “Baby,” “Castillo,”6

“Teddy,” “Alex,” and “Young Money” as part of the group that chased him on the

night of January 7. On direct examination, Ordonez testified that he did not see

any part of the beating because he became separated from Rodriguez while they

were running and he hid in a building. The State then elicited testimony from

3   The State did not charge Salas in the information referenced in this case.
4 Castillo’s brief refers to this witness as Mauricio Perez. As the trial transcript and
the Statement of Facts in Support of Arrest Warrant contained in the record refer to
this witness as Mauricio Ordonez, we refer to him as such in this opinion.
5Ordonez testified that he was familiar with the BTL gang and the Riverside gang
but that neither he nor Rodriguez were members.
6   At trial, Ordonez identified Castillo by his nickname “Tito.”

                                            4
Ordonez concerning a prior inconsistent statement—specifically, that on January 8,

2010, the day after the beating, Ordonez contacted the police and told them that he

saw Rodriguez “get beat to death.” Ordonez testified that his January 8 statement

to the police was not true, that he had not seen any part of the beating, and that he

lied to the police so that his friend “could get justice.” During defense counsel’s

cross-examination of Ordonez concerning his January 8 statement to the police, the

following exchange occurred:7

             Q.    Then you went on to say that you observed Tito,
             Tito Castillo, repeatedly hit the victim with a long stick,
             that was a lie too, wasn’t it?

             A.     Yes.

             Q.      Now, I believe on direct examination that you
             testified that your reason for going into the police
             department and lying was that you wanted to seek justice
             for your friend?

             A.     Yes.

(Emphasis added).

      The jury subsequently found Castillo guilty of second degree murder and

checked a box on the verdict form finding that Castillo “carried, displayed, or used

a deadly weapon.” Based on the jury’s finding, the trial court reclassified
7 The trial transcript reflects that during cross-examination, defense counsel was

apparently reading from Ordonez’s statement to the police. The State objected to
defense counsel “reading something not in evidence, improper impeachment,” and
to defense counsel “reading from something that’s not a prior sworn statement.”
The trial court overruled the objections.


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Castillo’s conviction for second degree murder from a felony of the first degree8 to

a life felony pursuant to section 775.087(1)(a).9 Castillo was sentenced to life, and

this appeal ensued.

II.   ANALYSIS

      On appeal, Castillo argues that the State failed to prove that he used or had

actual possession of a deadly weapon during the commission of the crime and,

therefore, the trial court erred in reclassifying his second degree murder conviction

from a felony of the first degree to a life felony pursuant to section 775.087(1)(a).10

8  Section 782.04(2) provides in part that “murder in the second degree . . .
constitutes a felony of the first degree.”
9 Section 775.087(1)(a) states as follows:



             (1) Unless otherwise provided by law, whenever a person
             is charged with a felony, except a felony in which the use
             of a weapon or firearm is an essential element, and
             during the commission of such felony the defendant
             carries, displays, uses, threatens to use, or attempts to use
             any weapon or firearm, or during the commission of such
             felony the defendant commits an aggravated battery, the
             felony for which the person is charged shall be
             reclassified as follows:

             (a) In the case of a felony of the first degree, to a life
             felony.
10 Both Castillo and the State agree that Castillo’s conviction could not be
reclassified based on a co-defendant’s possession of a deadly weapon. Indeed, the
law is well-settled that that section 775.087(1) does not permit vicarious
enhancement. See State v. Rodriguez, 602 So. 2d 1270, 1272 (Fla. 1992) (“We
hold that, when a defendant is charged with a felony involving the ‘use’ of a
weapon, his or her sentence cannot be enhanced under section 775.087(1) without
evidence establishing that the defendant had personal possession of the weapon

                                          6
Castillo concedes that the issue of the sufficiency of the evidence as to the

allegation that he used or possessed a deadly weapon was not raised below as his

counsel did not object to the verdict form or preserve the issue in any way.

Because the issue was not preserved, the standard of review is fundamental error.

      In Monroe v. State, 191 So. 3d 395, 401 (Fla. 2016), the Florida Supreme

Court, in addressing fundamental error, explained that “reviewing courts should

proceed with caution when considering whether a fundamental error has occurred.”

The Supreme Court further explained, “[w]e have even more narrowly applied the

fundamental error doctrine to alleged errors of insufficient evidence.”           Id.

(emphasis added). Indeed, there are only two instances where an unpreserved

challenge to the sufficiency of the evidence can be reviewed. Id.; see also F.B. v.

State, 852 So. 2d 226, 230 (Fla. 2003) (“[W]e hold that, with two exceptions, a

defendant must preserve a claim of insufficiency of the evidence through timely

challenge in the trial court.”). The first exception concerns death penalty cases and

is therefore not applicable here.    See F.B., 852 So. 2d at 230.       The second

exception “occurs when the evidence is insufficient to show that a crime was

committed at all.” Id.

during the commission of the felony.”); Connolly v. State, 172 So. 3d 893, 910
(Fla. 3d DCA 2015) (“We agree with the defendant that his conviction for second
degree murder could not be reclassified under section 775.087(1) based on a co-
defendant's possession or use of a weapon or firearm during the commission of the
murder.”); see also Campbell v. State, 935 So. 2d 614, 618 (Fla. 3d DCA 2006);
Chase v. State, 74 So. 3d 1138, 1139 (Fla. 2d DCA 2011).

                                         7
             Thus, an argument that the evidence is totally insufficient
             as a matter of law to establish the commission of a crime
             need not be preserved. Such complete failure of the
             evidence meets the requirements of fundamental error-
             i.e., an error that reaches to the foundation of the case
             and is equal to a denial of due process.


852 So. 2d at 230-31; accord Monroe, 191 So. 3d at 401 (stating that an

unpreserved challenge to the sufficiency of the evidence can be reviewed “when

there is insufficient evidence that a defendant committed any crime”) (emphasis in

original); see, e.g., Troedel v. State, 462 So. 2d 392, 399 (Fla. 1984) (finding that

“a conviction imposed upon a crime totally unsupported by evidence constitutes

fundamental error”); Stanton v. State, 746 So. 2d 1229, 1230 (Fla. 3d DCA 1999)

(same).

      Here, the State argues that Castillo’s conviction was properly reclassified

based upon his actual possession of a stick, and that this conclusion is supported by

Ordonez’s acknowledgement during cross-examination of his prior inconsistent

statement made to the police on January 8, the day after Rodriguez’s murder.

Specifically, the State relies upon Ordonez’s response of “yes” to defense

counsel’s question:    “Then you went on to say that you observed Tito, Tito

Castillo, repeatedly hit the victim with a long stick, that was a lie too, wasn’t it?”

The State argues that the jury did not find Ordonez’s testimony that he lied to the

police to be credible, that they “apparently believed his original statement,” and



                                          8
that this constitutes substantive evidence that Castillo was in possession of a stick

during the attack.

      Under section 90.801(2)(a), Florida Statutes (2015), prior inconsistent

statements can be admitted as substantive evidence “if the declarant testifies at the

trial or hearing and is subject to cross-examination concerning the statement and

the statement is . . . [i]nconsistent with the declarant's testimony and was given

under oath subject to the penalty of perjury at a trial, hearing, or other proceeding

or in a deposition.” § 90.801(2)(a), Fla. Stat. (2015). The law is well-established

that “a statement given under oath during a police investigation is not a statement

given at an ‘other proceeding’ and consequently is not admissible as substantive

evidence under section 90.801(2)(a).” Pearce v. State, 880 So. 2d 561, 569 (Fla.

2004) (citing State v. Delgado-Santos, 497 So. 2d 1199 (Fla. 1986)); see also S.L.

v. State, 993 So. 2d 1108, 1110 (Fla. 4th DCA 2008) (holding that police officer’s

testimony as to the victim’s prior inconsistent statements made to him on day of

the alleged crime were not admissible as substantive evidence and could not be

used to support a finding of guilt). Here, Ordonez’s prior inconsistent statement to

police was not given at a trial, hearing, or other proceeding or in a deposition.

Accordingly, while Ordonez’s prior inconsistent statement could be used for

impeachment, Ordonez’s prior inconsistent statement cannot constitute admissible

substantive evidence.11



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III.   CONCLUSION

       Because the State presented no substantive evidence that Castillo used or

had personal possession of a deadly weapon, i.e., a stick, during the commission of

the crime, we find that the trial court erred in reclassifying Castillo’s conviction

from a felony of the first degree to a life felony pursuant to section 775.087(1)(a).

Accordingly, we affirm Castillo’s conviction, but reverse his sentence and remand

for resentencing without reclassification under section 775.087(1). Castillo shall

be present at the resentencing.

       Affirmed in part; reversed in part and remanded for resentencing.




11   Although not necessary to this Court’s analysis to reverse Castillo’s
reclassification under section 775.087(1)(a), we note that the State’s argument that
Castillo’s conviction was properly reclassified suffers from an additional infirmity.
In a criminal prosecution, even where a prior inconsistent statement is admissible,
“a prior inconsistent statement standing alone is insufficient to prove guilt beyond
a reasonable doubt.” State v. Moore, 485 So. 2d 1279, 1281 (Fla. 1986); see also
Santiago v. State, 652 So. 2d 485, 486 (Fla. 5th DCA 1995) (where the only
evidence offered by the state to substantiate the charge of attempted murder is the
prior inconsistent statement of its own witness, the evidence is insufficient to
support a conviction). In the case at issue, the State presented no testimony, other
than Ordonez’s acknowledgment on cross-examination of his prior inconsistent
statement, to support the State’s allegation that Castillo used or possessed a stick or
deadly weapon during the commission of the crime. As such, even if Ordonez’s
prior inconsistent statement was admissible as substantive evidence, Ordonez’s
testimony alone would be insufficient as a matter of law to prove Castillo’s actual
use or possession of a deadly weapon.


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