               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT



RICHARD STARKS, JR.,                         )
                                             )
              Appellant,                     )
                                             )
v.                                           )          Case No. 2D15-1762
                                             )
STATE OF FLORIDA,                            )
                                             )
              Appellee.                      )
                                             )

Opinion filed March 22, 2017.

Appeal from the Circuit Court for Pasco
County; Susan L. Gardner, Judge.

Howard L. Dimmig, II, Public Defender, and
Carol J. Y. Wilson, Assistant Public
Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, and
Susan M. Shanahan, Assistant Attorney
General, Tampa, for Appellee.



BADALAMENTI, Judge.

              Richard Starks, Jr., appeals his jury conviction for second-degree murder.

Starks's charge stems from his fatal beating of a guest at a house party. He contends

that the trial court erred by denying his motion for judgment of acquittal because it

erroneously determined that punching a victim to death is imminently dangerous under
Florida's second-degree-murder statute. We hold that the State presented sufficient

evidence to establish that Starks's barehanded punching of an unconscious and seated

victim was "imminently dangerous" conduct within the meaning of section 782.04(2),

Florida Statutes (2011). We affirm Starks's conviction in all respects.

                    I. FACTS AND PROCEDURAL BACKGROUND

              Viewed in the light most favorable to the jury's verdict, the trial evidence

demonstrated as follows: On a late Saturday evening, Starks was a guest at a house

party in Pasco County along with the victim, Sam Smith. The victim was one of the first

guests to arrive at the party, arriving at approximately 6:00 p.m., with both his fiancée

and his younger sister. Starks arrived to the party later in the evening.

              Immediately upon his arrival, Starks was hostile to the victim. Starks

initially mistook the victim for someone named Brian, whom Starks disliked. Starks's

demeanor toward the victim—who he thought was Brian—became loud and aggressive.

The victim did not respond to Starks's hostility but instead tried to back out of the

situation. Eventually the victim's identity was cleared up, but this incident was only the

first in a series of Starks's provocations toward the victim.

              Later in the evening, the victim commented that Starks was a "ginger"—a

person with red hair. Starks took great offense to the label, even though he did not

seem to understand what it meant, and he angrily confronted the victim a second time

that evening. Starks indicated that he wanted the verbal confrontation to become

physical, but the victim again declared that he did not want to fight Starks.

              The third confrontation between Starks and the victim would prove to be

fatal. Toward the end of the night, the victim was sitting in a plastic chair outside of the



                                            -2-
house, underneath a carport. The trial testimony reflects that, at this point in the

festivities, Smith "had started drinking quite a bit" and had become "very incoherent,

laying in the chair." Starks was also outside in the area where the victim was seated.

The victim overheard the party's host speaking with the victim's fiancée. The victim

interpreted this interaction as flirtation and made a comment to the host while still

seated in the plastic chair. At that point, Starks inserted himself into the fray and told

the victim not to "insult [his] friend like that."

               The victim ignored Starks's third attempt at provocation that evening, but

Starks nevertheless advanced toward the still-seated victim. The victim never

attempted to put his hands up in defense, to get out of the chair, or to try and defend

himself in any manner. One of the guests attempted to intercept Starks before he

reached the victim, but Starks broke free and punched the seated victim on the left side

of his face. Starks's first punch knocked the victim unconscious and the victim's body

went limp in the plastic chair.

               A guest then pulled Starks back from the victim's limp body, but Starks

broke free a second time, landing a second series of punches to the head of the

still-seated, still-unconscious, and still-limp victim. Yet again, a guest attempted to

restrain Starks, but Starks broke loose for a third time, delivering a third series of

punches to the defenseless victim's head. In total, Starks broke free from three

attempts by partygoers to restrain him. The partygoers who witnessed the entire attack

testified that Starks landed between six and twelve punches to the victim's head,

despite the victim appearing incoherently drunk prior to being hit and despite Starks's

first punch having rendered the victim unconscious.



                                                -3-
              A party guest testified that, after Starks was pulled away from the victim a

final time, she heard Starks repeatedly bragging about how he had "whooped" the

victim.

              The party's host then told Starks to leave and the host's girlfriend called 9-

1-1. At the conclusion of Starks's series of attacks, the unconscious victim was

slumped over in his chair, his face looked pale and bruised, his neck was awkwardly

turned, his nose and mouth were bleeding, there was a pained expression on his face,

and he did not appear to be breathing normally. The party's host attempted to perform

CPR on the victim for approximately twenty minutes, until law enforcement officers and

paramedics arrived at the scene at approximately 1:00 a.m.

              A paramedic who responded to the incident testified that the victim was

not breathing and had no neural activity but did have a faint heartbeat. The paramedic

stated that the victim had blood around his mouth and nose, that the victim's jaw

appeared broken, and that the orbits of the victim's eyes were bruised and swollen. The

paramedic remarked that, due to the injuries to the victim's jaw, he did not require a

laryngoscope to open the victim's mouth, which was "highly unusual." Instead, the

paramedic merely used his hand and forefinger to pull the victim's injured jaw down and

gain sight of the victim's vocal chords in order to place an artificial airway device.

              The victim was transported to a hospital, arriving at approximately

3:00 a.m., and was pronounced dead soon after. When the party's host contacted

Starks and informed him of the victim's death, Starks profanely indicated that he did not

care. In fact, Starks tried to get one of the guests from the party to help set up an alibi




                                             -4-
for where Starks had been that night, but the guest refused to help Starks in that

manner.

              A medical examiner testified that the victim's cause of death was blunt

trauma to the head and neck and that the manner of death was homicide. The

examiner explained that he found multiple injuries to the victim's body, including a

broken bone in the victim's neck, a cranial hemorrhage, and multiple soft-tissue injuries

to the victim's face. The examiner opined that the cranial hemorrhage was likely the

fatal injury to the victim, insomuch as it likely affected the victim's ability to breathe. The

examiner also opined that there was no way for the victim to suffer the variety of injuries

that he suffered from just one punch. Instead, the examiner opined that the victim's

injuries were indicative of being punched at least three times or perhaps as many as

one hundred times.

              On redirect examination, the State asked the examiner if striking someone

who is already unconscious is "imminently dangerous." The examiner sought

clarification for this question by asking the State if it meant to inquire, "Would that be

bad to strike an unconscious person?" The State agreed with the examiner's

rephrasing of its question, and the examiner then answered, "In general terms, yes."

              On recross examination, Starks's counsel dwelled on this point by

immediately asking the examiner if he meant that striking an unconscious person was

"just bad" but not "imminently dangerous." The examiner clarified, "I don't really know

what 'imminently dangerous' is but if you have somebody that's been beaten to

unconsciousness and you continue that would, you know . . . not be good for their

health."



                                             -5-
             At the close of the State's case-in-chief, defense counsel moved for

judgment of acquittal. The basis for the motion was narrow. Defense counsel argued

only that the State had failed to prove Starks's actions on the night of the homicide were

imminently dangerous. The thrust of defense counsel's motion was derived from the

testimony of the medical examiner. Specifically, defense counsel took the medical

examiner's testimony to mean that punching an unconscious person was not imminently

dangerous and therefore could not support a conviction of second-degree murder.

Instead, defense counsel suggested that a conviction on the lesser included offense of

voluntary manslaughter might be more appropriate. The trial court denied Starks's

motion and, because Starks did not present a case-in-chief, the court then charged the

jury as to the elements of second-degree murder and six lesser included offenses. The

jury found Starks guilty as charged of second-degree murder. The court sentenced

Starks to thirty years' imprisonment.

                                    II. DISCUSSION

             Starks argues that the trial court erred by denying his motion for judgment

of acquittal on the second-degree-murder charge because the State presented

insufficient trial evidence that his punching the victim was imminently dangerous and

evincing a depraved mind under section 782.04(2). Starks concedes that his trial

counsel did not present argument for judgment of acquittal on all elements of

second-degree murder. Instead, his trial counsel limited the motion for judgment of

acquittal to whether the State presented sufficient evidence that Starks's continuous

punching of the victim after the victim was unconscious was an "imminently dangerous"

act.



                                           -6-
              "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) (citing Tibbs v. State,

397 So. 2d 1120 (Fla. 1981)). "If, after viewing the evidence in the light most favorable

to the State, a rational trier of fact could find the existence of the elements of the crime

beyond a reasonable doubt, sufficient evidence exists to sustain a conviction." Id.

(citing Banks v. State, 732 So. 2d 1065, 1067 (Fla. 1999)). "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." Lynch v. State, 293 So. 2d 44, 45 (Fla. 1974).

A. Determining Whether an Act is "Imminently Dangerous"

              Section 782.04(2) defines second-degree murder as "[t]he unlawful killing

of a human being, when perpetrated by any act imminently dangerous to another and

evincing a depraved mind regardless of human life, although without any premeditated

design to effect the death of any particular individual . . . ." Our supreme court has

explained that, in order to establish an act as "imminently dangerous to another and

evincing a depraved mind," the State must show that the act (or acts) was such that "(1)

a person of ordinary judgment would know is reasonably certain to kill or do serious

bodily injury to another, and (2) is done from ill will, hatred, spite or an evil intent, and

(3) is of such a nature that the act itself indicates an indifference to human life." State v.

Montgomery, 39 So. 3d 252, 255-56 (Fla. 2010) (quoting Bellamy v. State, 977 So. 2d

682, 683 (Fla. 2d DCA 2008)); see also Fla. Std. Jury Instr. (Crim.) 7.4 (defining the

word "act" to include "a series of related actions arising from and performed pursuant to

a single design or purpose").



                                              -7-
               Starks argues that his repeated punches to the victim's head were not

imminently dangerous acts because punching a victim is not "reasonably certain to kill

or do serious bodily injury." Montgomery, 39 So. 3d at 255. In fact, Starks goes a step

further by inviting us to take a categorical approach. That is, he asserts that a

conviction for second-degree murder cannot be sustained where the death is caused by

the act of punching. We reject both arguments.

               Our analysis begins, as it should, with the statutory text. Section

782.04(2) states that second-degree murder occurs when the death is "perpetrated by

any act imminently dangerous." (Emphasis added.) By its plain and ordinary meaning,

the phrase "any act" is broad and not limited to a specific kind of act. See § 782.04(2);

Fla. Std. Jury Instr. (Crim.) 7.4; see also United States v. Gonzales, 520 U.S. 1, 5

(1997) ("Read naturally, the word 'any' has an expansive meaning, that is, 'one or some

indiscriminately of whatever kind.' " (quoting Webster's Third New International

Dictionary 97 (1976))).

               In accordance with this broad statutory language, Florida case law

upholding convictions for second-degree murder logically encompasses a broad range

of acts found to be imminently dangerous. See, e.g., Young v. State, 250 So. 2d 922,

923 (Fla. 2d DCA 1971) (act of stabbing the victim with a knife); Henry v. State, 145 So.

3d 924, 928 (Fla. 4th DCA 2014) (act of hitting the victim fifteen to twenty times with a

baseball bat); Millan v. State, 932 So. 2d 557, 560 (Fla. 3d DCA 2006) (act of beating

the victim with a bat and a tire iron before slitting his throat).

               It may be especially obvious that certain acts, like stabbing someone, are

more reasonably certain to kill or do serious bodily injury than the act of punching



                                              -8-
someone. But the text of the second-degree-murder statute does not call upon trial

courts to evaluate imminent danger based on how one defendant's chosen act of

inflicting injury upon a victim stacks up against another's. Accordingly, Starks's

categorical focus on the general dangerousness of the act of punching belies what the

statute's text actually says. The legal analysis does not exclusively turn on the

particular act one chooses in order to inflict harm on another. Whether Starks killed the

victim by stabbing him with knife, clobbering him with a baseball bat, or punching the

victim with his fists is only part of the imminent danger analysis under section 782.04(2).

              Whether an act is imminently dangerous turns on the facts of a particular

case focusing on whether "a person of ordinary judgment would know" that the act was

"reasonably certain to kill or do serious bodily injury" to the victim. Montgomery, 39 So.

3d at 255 (quoting Bellamy, 977 So. 2d at 683); Fla. Std. Jury Instr. (Crim.) 7.4. Thus,

our analysis of whether the State presented sufficient evidence that Starks's act of

repeatedly punching the victim was "imminently dangerous" will focus on whether

Starks's actions were such that a person of ordinary judgment would know that those

acts are reasonably certain to kill or do serious bodily injury to the victim.

              Apart from the statutory language, Florida courts have repeatedly upheld

convictions of second-degree murder for deaths caused by punching. See Storey v.

State, 13 So. 2d 912, 913 (Fla. 1943) (upholding a second-degree-murder conviction

where a twenty-four-year-old defendant began punching "an inoffensive and

unoffending old man in his declining years" while the old man was seated and then

continued his barrage as he dragged the old man out of his truck); Dillen v. State, 202

So. 2d 904, 906 (Fla. 2d DCA 1967) (finding that "there was adequate evidence" to



                                             -9-
support a conviction of second-degree murder where the State charged defendant with

"unlawfully and feloniously mak[ing] an assault" on a minor child "with a deadly weapon,

to-wit: his hands and fists"); Larsen v. State, 485 So. 2d 1372, 1373 (Fla. 1st DCA 1986)

(finding sufficient evidence to uphold a second-degree-murder jury conviction where

defendant struck "hard across the face" his ninety-five-pound wife who was partially

physically disabled); see also 2 Wayne R. LaFave, Substantive Criminal Law § 14.2 (2d

ed.), Westlaw (database updated October 2016).

              A common factor in all of these cases is that they each involved a

defendant punching a victim who was especially and visibly susceptible to harm. See

LaFave, supra, § 14.2 ("[I]n appropriate cases, generally involving big men attacking

small, frail men or women or children, and generally involving the repeated use of hands

and feet, an inference of an intent to kill may properly be drawn."). Naturally, these

cases do not imply that punching someone will always be imminently dangerous, nor do

they imply that a trier of fact is restricted by any specific type of vulnerability that the

victim may have been suffering from—older, younger, smaller, or sicker. Again, the

analysis of whether a defendant's act is imminently dangerous in the milieu of

second-degree murder turns on a case-by-case determination as to whether the

defendant's actions were reasonably certain to kill or do serious bodily injury to the

victim. See Larsen, 485 So. 2d at 1373 ("The grade or degree of a homicide, and the

intent with which a homicidal act was committed are questions of fact dependent upon

the circumstances of the case, and are typically for resolution by a jury.").

              For example, in Storey, the twenty-four-year-old defendant beat a

seventy-year-old victim to death after a minor vehicle accident. 13 So. 2d at 912-13.



                                             - 10 -
The angered defendant got out of his car, ran toward the victim's truck, reached in the

truck's window, and began repeatedly punching the victim in the head and face. The

defendant then pulled the victim out of his truck, causing the victim's head to hit the

truck's running board and the pavement below. Id. at 913. A jury convicted the

defendant of second-degree murder. Id. at 912. On appeal, the supreme court held

that the facts of the case supported the conviction. Id. at 913. The supreme court

explained that the Storey defendant "must be presumed to have intended the natural

ordinary consequences of his wilful [sic] and deliberate acts" because one must "have

known that by beating an aged man about the head and face as he did, and dragging

him from the truck feet first, serious and fatal injuries might result as a consequence."

Id. (emphasis added). The Storey court focused on whether the natural ordinary

consequences of the defendant's conduct of punching an "aged man" in the head and

face and dragging him would ordinarily cause serious bodily harm. Id. As the supreme

court instructed, it was immaterial that the victim's death may have been caused by the

defendant's punch or something else. Id. ("Whether death came as a result of the

blows inflicted by the appellant, or from the fall on the pavement, or from a combination

of both, is immaterial."). Instead, the supreme court focused on the defendant's acts

and the factual circumstances surrounding those acts to determine whether they were

imminently dangerous.

              Cases like Storey, Dillen, and Larsen underscore that the relevant inquiry

to determine whether a defendant's act is imminently dangerous under section

782.04(2) is whether "a person of ordinary judgment would know" that the defendant's

conduct "is reasonably certain to kill or do serious bodily injury." Montgomery, 39 So.



                                           - 11 -
3d at 255 (quoting Bellamy, 977 So. 2d at 683); see also Larsen, 485 So. 2d at 1373

(noting that "the relative harm-causing potential" between the defendant and victim in

that case distinguished it from other cases where a second-degree-murder conviction

was reversed). The defendant can act by using his fist, a knife, a baseball bat, or any

other instrumentality, but the instrumentality is not necessarily dispositive in determining

whether the act is imminently dangerous. Cf. Young, 250 So. 2d at 923; Henry, 145 So.

3d at 928; Millan, 932 So. 2d at 560. The inquiry should focus on the whole picture

surrounding the victim's death rather than focusing its lens on any one factor as being

dispositive.

B. The Imminent Danger of Starks's Actions

               Having explained the framework for determining whether an act is

imminently dangerous, we now turn to whether the State presented sufficient evidence

to determine that Starks's punching of the victim was imminently dangerous conduct for

purposes of the second-degree-murder statute.

               Starks tried to goad the victim into a fight soon after Starks arrived at the

house party. Throughout the evening, Starks repeatedly confronted the victim for varied

reasons and tried to provoke a fight despite the victim's attempts to avoid confrontation.

Starks finally got his chance when the victim was drunkenly sitting in a plastic chair

outside of the house. After the victim made an offhand comment about the party's host,

Starks seized the opportunity to engage in a physical altercation, charging at the still-

seated victim and punching him.

               The victim lost consciousness, went limp after Starks's first blow, and

never attempted to defend himself. Despite the fact that the victim was slumped



                                            - 12 -
unconscious in his chair and not defending himself, Starks continued to beat the victim's

limp, unconscious body in a series of attacks. Even though some of the guests at the

party repeatedly tried to restrain Starks—not once, not twice, but three times—he broke

free and relentlessly went back to pummel the victim's face and head. The victim was

unconscious, never put his hands up, and was visibly slumped in a chair after drinking

heavily, but Starks continued to punch him again and again. For purposes of the

imminent danger inquiry in section 782.04(2), repeatedly punching a victim in this

state—seated, unconscious, defenseless, and appearing very incoherent—is not

meaningfully different from punching the victims in cases like Storey, Dillen, and

Larsen.1

              At bottom, this was a savage, one-sided beating upon an unconscious

victim by an attacker whose rage had been building from several encounters with the

victim throughout the course of an evening. Mr. Starks's actions on that fatal night

reveal that he was a combustible element ready to explode upon the unfortunate victim.

The State presented sufficient evidence that a reasonable person in Starks's position

would know that repeatedly punching the defenseless, limp victim in the face and head

was reasonably certain to kill or do serious bodily injury to the victim. See § 782.04(2).



              1We    have identified decisions from other jurisdictions, with similar
second-degree-murder statutes, upholding convictions for defendants who punched
seated, incoherent, or unconscious victims to death. See People v. Cravens, 267 P.3d
1113, 1119 (Cal. 2012) (upholding a second-degree-murder conviction where defendant
sucker-punched a "fatigued and intoxicated" victim who had just been jumped by the
defendant's friends); People v. Watts, 583 N.Y.S.2d 373, 373-74 (N.Y. App. Div. 1992)
(upholding second-degree-murder conviction where defendant knocked the victim down
and kept punching the victim after he "lay motionless on the ground"); Wilkerson v.
State, 336 P.3d 1188, 1201 (Wyo. 2014) (upholding second-degree-murder conviction
where the defendant punched a victim who was seated on a barstool, knocked the
victim off the stool, and continued beating the victim).
                                           - 13 -
Viewing the trial record in the light most favorable to the jury's guilty verdict, the trial

court did not err in denying Starks's motion for judgment of acquittal. See Pagan, 830

So. 2d at 803 (citing Banks, 732 So. 2d at 1067). The State presented the jury with

competent, substantial evidence to conclude beyond a reasonable doubt that Starks's

actions on that fatal evening were "imminently dangerous." See § 782.04(2); Pagan,

830 So. 2d at 803 (citing Banks, 732 So. 2d at 1067).

C. Fundamental Error and Ineffective Assistance on the Face of the Record

              Finally, we recognize that Starks attempts to argue that the State also

failed to prove the "depraved mind" element of second-degree murder, although Starks

laudably admits that he did not preserve this issue in his motion for judgment of

acquittal. See Fla. R. Crim. P. 3.380(b) (providing that a motion for judgment of

acquittal "must fully set forth the grounds on which it is based").

              "A fundamental error 'must reach down into the validity of the trial itself to

the extent that a verdict of guilty could not have been obtained without the assistance of

the alleged error.' " Monroe v. State, 191 So. 3d 395, 401 (Fla. 2016) (quoting F.B. v.

State, 852 So. 2d 226, 229 (Fla. 2003)). To demonstrate that Starks's actions evinced a

depraved mind, the State needed to have shown that those actions were "done from ill

will, hatred, spite or an evil intent." Montgomery, 39 So. 3d at 256 (quoting Bellamy,

977 So. 2d at 683). As previously explained in detail, Starks repeatedly tried to instigate

a fight with the victim over the course of a party lasting several hours and then, when he

finally got his chance, Starks mercilessly beat the victim's unconscious body until the

victim died. Starks believes that the time frame of his actions that night is not long

enough to support a second-degree-murder conviction because "[h]atred, spite, evil



                                             - 14 -
intent, or ill will usually require more than an instant to develop." Light v. State, 841 So.

2d 623, 626 (Fla. 2d DCA 2003) (citing Hooker v. State, 497 So. 2d 982 (Fla. 2d DCA

1986)). But in this case, Starks had more than an instant to develop a depraved mind—

indeed, he had several hours. Cf. Morgan v. State, 127 So. 3d 708, 718 (Fla. 5th DCA

2013) (reversing on the basis of an improper self-defense instruction, but upholding the

evidentiary basis of defendant's second-degree-murder conviction, where defendant

met victim at a bar and murdered him later that night). There is no fundamental error—

or any error—with respect to the State establishing that Starks acted with a depraved

mind. See Montgomery, 39 So. 3d at 255-56 (quoting Bellamy, 977 So. 2d at 683).

              Having found no error with respect to the depravity element in the first

instance, defense counsel could not have been ineffective for failing to move for

judgment of acquittal on that ground. See Dennis v. State, 109 So. 3d 680, 690 (Fla.

2012) ("[C]ounsel cannot be deemed ineffective for failing to make a meritless

argument." (citing Schoenwetter v. State, 46 So. 3d 535, 546 (Fla. 2010))).

              We affirm Starks's remaining issue without comment and affirm Starks's

conviction in all respects.

              Affirmed.



VILLANTI, C.J., and CASANUEVA, J., Concur.




                                            - 15 -
