       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          DEMETRIUS ELDER,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                             Nos. 4D18-2891
                             and 4D18-2892

                              [May 27, 2020]

   Consolidated appeals from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Ernest A. Kollra, Judge; L.T. Case Nos.
03-006938CF10E and 14-010348CF10A.

  Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant
Public Defender, West Palm Beach, for appellant.

  Ashley Moody, Attorney General, Tallahassee, and Jessenia J.
Concepcion, Assistant Attorney General, West Palm Beach, for appellee.

GROSS, J.

   The rejection of a proposed jury instruction and the exclusion of
relevant evidence, both pertaining to the defense in this case, require that
we reverse and remand for a new trial.

   Appellant Demetrius Elder was charged by information with
manslaughter with a deadly weapon for the stabbing death of the victim,
Fakhradeen Muhammad Knight. His defense at trial was that he stabbed
the victim in defense of his codefendant, Armando Baptista.

    At the time of the manslaughter charge, Elder was on probation for
twenty counts of grand theft. The probation was imposed as part of a 2006
sentence in which the trial court withheld adjudication on forty counts of
grand theft and one count of petit theft. As to the grand theft counts, the
trial court sentenced Elder to concurrent terms of five years of probation
on twenty counts, followed by concurrent terms of five years of probation
on the remaining twenty counts.
   Following the victim’s death, a probation officer filed a violation-of-
probation affidavit, alleging that Elder violated his probation by, among
other things, committing a homicide offense.

   Although Elder did not testify at trial, his pretrial testimony from a
Stand Your Ground hearing was played for the jury. The stabbing
occurred in a Chevrolet Impala stopped at a stop sign. Elder testified that
he was behind the wheel, experiencing a coughing fit caused by a serious
medical condition. His codefendant sat in the front passenger seat. The
victim walked to the passenger side of the car. One thing led to another
and a tussle ensued. Both men ended up on the front seat of the Impala,
with the victim on top. Elder got out of the car, walked around to the
passenger side, and tried to pull the victim off the codefendant, without
success.

   According to Elder, the codefendant screamed that the victim was
trying to kill him. Elder could not separate the two men. He saw a knife
on the floorboard, picked it up, and stabbed the victim once in the back.
The victim ultimately died from multiple stab wounds.

   The State presented the eyewitness testimony of the victim’s girlfriend,
who gave a different version of the struggle in the Impala. The girlfriend
testified that the victim was a passenger in her car. The Impala was in
front of them and stopped at a stop sign for “a couple of minutes,” even
though the Impala “had plenty of opportunity to go.” The victim
approached the Impala. The codefendant got out of the car. A discussion
ensued outside the car. When the victim attempted to shake hands with
the codefendant, the codefendant attacked him. The victim then grabbed
the codefendant in a “bear hug,” and both men wound up inside the
Impala.

    Elder got out of the driver side of the Impala, came around behind the
car, and told the girlfriend, “You better come get your man.” The girlfriend
went to the passenger side and tried to get the victim off the codefendant,
but the victim was still holding the codefendant in a bear hug. Elder was
standing behind the girlfriend. As the girlfriend was tugging at the back
of the victim’s shirt, the victim screamed, “He’s got a f—ing knife.” The
girlfriend yelled at Elder to get the knife from the codefendant. He reached
into the car and the codefendant handed him the knife. The girlfriend
pulled the victim off the codefendant and saw that the victim was covered
in blood. The girlfriend pulled the victim’s wrist and said, “Baby, come on,
let’s go.” However, Elder and the codefendant “both start[ed] pounding
him.” The girlfriend held up her phone and said that she was calling 911.

                                    -2-
At that point, Elder and the codefendant left. The girlfriend lifted the
victim’s shirt and saw multiple stab wounds. An ambulance took the
victim to the hospital, where he later died.

    The jury found Elder guilty of the lesser-included offense of culpable
negligence, a misdemeanor. At the sentencing hearing, the trial court gave
full and thoughtful consideration of an appropriate sentence. As to
culpable negligence, the trial court sentenced Elder to time served. On the
violation of probation, the prosecutor asked the judge to sentence Elder to
five years on all twenty counts, for a total of 100 years in prison. The court
declined to sentence Elder to prison, terminated Elder’s probation
unsuccessfully, and adjudicated him guilty on twenty counts of grand theft
and one count of petit theft.

   Elder raises five points on appeal. We affirm on two without comment.
We reverse for a new trial on the culpable negligence charge and for a new
hearing on the violation of probation.

  The trial court abused its discretion in denying Elder’s request for a jury
instruction on the presumption of fear for justifiable use of deadly force, as
         established by section 776.013(1), Florida Statutes (2013)

    During the charge conference, defense counsel requested that the court
give the standard jury instruction modeled on section 776.013, Florida
Statutes, which creates a presumption of reasonable fear of death or great
bodily harm if “the person against whom the defensive force was used” was
in the process of unlawfully and forcefully entering an occupied vehicle or
had already done so.

   The standard jury instruction on the presumption of reasonable fear
states:

      (Defendant) is presumed to have held a reasonable fear of
      imminent peril of death or great bodily harm to [himself]
      [herself] [another] when [using] [or] [threatening to use]
      defensive force that was intended or likely to cause death or
      great bodily harm to another if:

         a. The person against whom the defensive force was
         [used] [or] [threatened to be used] was in the process
         of unlawfully and forcefully entering, or had
         unlawfully and forcibly entered, a dwelling,
         residence, or occupied vehicle, or if that person had
         removed or was attempting to remove another against

                                     -3-
          that person’s will from the dwelling, residence, or
          occupied vehicle; and
          b. (Defendant) knew or had reason to believe that an
          unlawful and forcible entry or unlawful and forcible
          act was occurring or had occurred.

Fla. Std. Jury Instr. (Crim.) 3.6(f) (emphasis added); see also § 776.013(1),
Fla. Stat. (2013). 1

                                   Discussion

   “We review a trial court’s decision to give or withhold a proposed jury
instruction for an abuse of discretion.” Calkins v. State, 170 So. 3d 888,
889 (Fla. 4th DCA 2015).

    A trial court’s failure to give a requested instruction constitutes
reversible error if: (1) the requested instruction accurately states the law;
(2) the facts of the case support the instruction; and (3) the instruction is
necessary to allow the jury to properly resolve all issues in the case.
Campbell v. State, 812 So. 2d 540, 544 (Fla. 4th DCA 2002).

   “A criminal defendant is entitled to have the jury instructed on the law
applicable to his or her theory of defense where there is any evidence to
support it, no matter how weak or flimsy.” Gregory v. State, 937 So. 2d
180, 182 (Fla. 4th DCA 2006). “In deciding whether to give a requested
charge, a trial judge may not weigh the evidence before him in determining
whether the instruction is appropriate; it is enough if the defense is
suggested by the evidence presented.” Chavers v. State, 901 So. 2d 409,
410 (Fla. 1st DCA 2005) (internal quotation marks omitted). “However
disdainful the trial judge may feel about the merits of the defense from a
factual standpoint is beside the point.” Johnson v. State, 789 So. 2d 1071,
1072 (Fla. 1st DCA 2001).

   Here, the trial court reversibly erred in refusing to give the instruction
on the presumption of reasonable fear, because Elder’s testimony and
statement to police provided evidence upon which a jury could have found
that the victim “had unlawfully and forcibly entered” Elder’s occupied

1 The 2013 version of the statute was still in effect at the time of the incident in
April 2014. The statute was subsequently amended to include language
regarding “threatening to use” defensive force. See § 776.013(1), Fla. Stat. (2014).
However, the “threatening to use” language would not have applied to the facts
of this case in any event.


                                       -4-
vehicle. For example, Elder claimed that when he was coughing and trying
to breathe at the stop sign, he felt his car move and heard the codefendant
ask, “D, you know this n—er?” Although Elder said he did not see who
opened the door, he claimed that he looked over and saw the victim on top
of the codefendant in the passenger seat, physically striking him. Elder
also claimed that the codefendant had not gotten out of the car.
Regardless of whether the victim or the codefendant opened the door,
Elder’s statement and testimony would support a jury finding that the
victim was the aggressor and had “unlawfully and forcibly” entered the
Impala to attack the codefendant, who was still seated in the car.

   Elder’s version of events supported the conclusion that, even though
he did not know how the victim entered the vehicle, he “had reason to
believe that an unlawful and forcible entry or unlawful and forcible act
was occurring or had occurred.” Fla. Std. Jury Instr. (Crim.) 3.6(f)
(emphasis added).

    Because there was some evidence—even if weak or flimsy—to support
the defense that the victim had unlawfully and forcibly entered Elder’s
vehicle, the defense was entitled to a jury instruction on the presumption
of reasonable fear. The requested instruction was an accurate statement
of the law, was supported by some evidence, and was necessary to allow
the jury to resolve all issues in the case. The jury needed to understand
that the law presumed Elder to have held a reasonable fear of imminent
peril of death or great bodily harm to himself or the codefendant if the jury
believed (1) that the victim had unlawfully and forcibly entered the
occupied vehicle and (2) that Elder had “reason to believe” such an entry
had occurred. The general instruction on the justifiable use of deadly force
did not inform the jury of this presumption.

   The error in denying this instruction was not harmless. This was a
close case, as evidenced by Elder’s conviction of culpable negligence, a
lesser-included offense. Thus, there is a reasonable possibility that the
error in denying the instruction affected the verdict. See State v. DiGuilio,
491 So. 2d 1129, 1135 (Fla. 1986).

    The trial court abused its discretion in barring Elder from presenting
testimony from a medical doctor regarding Elder’s diagnosis of myasthenia
                                    gravis

   As alluded to above, Elder testified during his Stand Your Ground
hearing that he has a disease called myasthenia gravis, which affects his
muscles and makes it hard for him to breathe. According to Elder, when
the Impala reached the stop sign where the fight ultimately occurred, he

                                    -5-
stopped to cough and catch his breath. He opened the door and stuck his
head outside for about five or ten seconds to get some fresh air.

    Prior to trial, Elder moved for leave to present the testimony of a medical
doctor that he “suffers from myasthenia gravis, a chronic autoimmune
neuromuscular disease that causes weakness in the skeletal muscles,
which are responsible for breathing and moving parts of the body,
including the arms and legs.” The defense argued that the proffered
testimony was “relevant and admissible to rebut the State’s suggestion
that Elder and [the codefendant] were waiting at the stop sign for [the
victim] in order to attack him, and also to rebut the testimony of [the
girlfriend] regarding the punching and kicking after the fact.”

    The court addressed the issue at trial. Because the State “didn’t put
any evidence on that the reason for the stop was to cause the fight,” the
trial court ruled that it would not allow the doctor’s testimony concerning
Elder’s medical condition. The trial court reasoned that the defense had
“nothing to rebut,” so the proffered testimony “wouldn’t be relevant.”

                                 Discussion

    “Relevant evidence is evidence tending to prove or disprove a material
fact.” § 90.401, Fla. Stat. (2018). By contrast, “[w]hen evidence is offered
to prove a fact which is not a matter in issue, it is said to be immaterial.”
Charles W. Ehrhardt, Florida Evidence, § 401.1 (2019 ed.). “A trial court
has broad discretion in determining the relevance of evidence and such a
determination will not be disturbed absent an abuse of discretion.” Sexton
v. State, 697 So. 2d 833, 837 (Fla. 1997).

    Evidence may be relevant to “put the defense theory of the case in a
proper context.” Jacobs v. State, 962 So. 2d 934, 936 (Fla. 4th DCA 2007).
“[W]here evidence tends in any way, even indirectly, to establish a
reasonable doubt of [the] defendant’s guilt, it is error to deny its
admission.” Rivera v. State, 561 So. 2d 536, 539 (Fla. 1990). Put
differently, “[i]f there is any possibility of a tendency of evidence to create
a reasonable doubt, the rules of evidence are usually construed to allow
for its admissibility.” Vannier v. State, 714 So. 2d 470, 472 (Fla. 4th DCA
1998).

   Here, evidence of Elder’s diagnosis was relevant to prove a material
fact—whether Elder’s physical condition made it unlikely that he would
pursue activity requiring violent physical exertion. Also, his diagnosis was
relevant to put the defense theory of the case in proper context by showing
that he stopped his car at the stop sign due to a coughing fit caused by

                                     -6-
his medical condition, not to lie in wait for the victim. This evidence had
some probative value in establishing the identity of the initial aggressor in
the confrontation.

     The error in excluding the medical doctor’s testimony was not harmless.
Although Elder described his medical condition, the jury might have given
it little weight because he was the defendant on trial, not a medical expert.
Myasthenia gravis is a serious condition akin to the more well-known “Lou
Gehrig’s Disease.” The jury could have considered the doctor’s testimony
significant in evaluating the testimony of the victim’s girlfriend, who said
that Elder and his codefendant pounded on the victim outside of the car
after the stabbing.

         Elder is not entitled to a new Stand Your Ground hearing

   In 2014, when Elder encountered the victim, a defendant had the
burden to prove Stand Your Ground immunity by a preponderance of the
evidence. See Bretherick v. State, 170 So. 3d 766, 779 (Fla. 2015).

   In 2017, before Elder’s Stand Your Ground immunity hearing took
place, the legislature amended section 776.032, Florida Statutes, by
adding subsection (4), which altered the burden of proof at Stand Your
Ground immunity hearings. See Ch. 2017-72, § 1, Laws of Fla.

   Section 776.032(4) now provides that “once a prima facie claim of self-
defense immunity from criminal prosecution has been raised by the
defendant at a pretrial immunity hearing, the burden of proof by clear and
convincing evidence” is on the State. § 776.032(4), Fla. Stat. (2017).

   After hearing all the evidence at the pretrial Stand Your Ground
hearing, the trial court denied the motion to dismiss. The court ruled that
Elder “did not meet his burden by the greater weight or preponderance of
credible evidence.” The trial court found that the victim’s girlfriend’s
testimony was more believable than that of Elder.

   Significantly for this case, the court further ruled that even if the most
recent version of section 776.032(4) were “retroactively applied to put the
burden on the State,” the State still met its burden.

   Elder argues that because he improperly bore the burden of proof at
his pretrial Stand Your Ground hearing, we should remand for a second
hearing where the State would bear that burden of proof.



                                    -7-
                                Discussion

   Recently, in Love v. State, 286 So. 3d 177, 190 (Fla. 2019), the Florida
Supreme Court held that “[s]ection 776.032(4) is a procedural change in
the law and applies to all Stand Your Ground immunity hearings
conducted on or after the statute’s effective date.”

   Under Love, section 776.032(4) should have been applied to Elder’s
Stand Your Ground immunity hearing, which was conducted after the
statute’s effective date. However, the trial court made an express finding
that even if the new statute were applied to this case, the State met its
burden.

    Under similar circumstances, two of our sister courts have held that
where the trial court has ruled that the defendant was not entitled to
immunity regardless of which party had the burden of proof, the defendant
is not entitled to a new Stand Your Ground hearing. See Maddox v. State,
288 So. 3d 1223, 1224 (Fla. 5th DCA 2019) (holding that where the trial
court placed the burden of proof on the defendant at the Stand Your
Ground hearing but nonetheless ruled that the State presented clear and
convincing evidence that the defendant was not entitled to immunity, “no
useful purpose would be served in requiring a new Stand Your Ground
hearing because his claim failed under either burden of proof”); Mency v.
State, 44 Fla. L. Weekly D1537, 2019 WL 2439558, at *1 (Fla. 1st DCA
June 12, 2019) (“[T]he trial court stated that regardless of who had the
burden, the appellant was not entitled to immunity. This ruling implies
that the trial court made a ruling under both standards. Because the trial
court applied the correct standard, the trial court did not err.”).

   Elder disagrees with these decisions and argues that the remedy should
be a new Stand Your Ground hearing because the burden of proof changes
the entire complexion of the hearing. He relies upon Martin v. State, 43
Fla. L. Weekly D1016, 2018 WL 2074171 (Fla. 2d DCA May 4, 2018),
disapproved of on other grounds by Love v. State, 286 So. 3d 177 (Fla.
2019), which held that when a trial court improperly places the burden of
proof on the defendant at a Stand Your Ground hearing, the remedy is to
reverse for a new hearing, rather than to reverse for reconsideration of the
motion to dismiss based on the evidence presented at the original hearing.

   We conclude that Martin is not controlling because it did not address a
situation where a trial court’s initial Stand Your Ground ruling
encompassed both standards of proof. We agree with the reasoning of
Mency and Maddox. We therefore decline to order a new Stand Your
Ground hearing.

                                    -8-
   Affirmed in part, reversed in part and remanded to the circuit court for
both a new trial and a new violation of probation hearing.

GERBER and FORST, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




                                   -9-
