          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D17-4086
                  _____________________________

JEFFREY ALAN MACKEY,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Duval County.
Marianne L. Aho, Judge.

                         August 14, 2019

B.L. THOMAS, J.

     Appellant was tried and convicted of second-degree murder for
killing his ex-wife. 1 Appellant raises three issues on appeal, which
we discuss below as two related issues.

                               Facts

    A co-worker and friend of the victim testified that the victim
had confided in her that she did not want a sexual relationship
with Appellant. She testified that Appellant would visit the

    1 Appellant and the deceased were married from 1986 to 1991
and had two children together. From 1996 to 2006, Appellant was
married to another woman, who lived in Missouri at all times
relevant to this appeal; Appellant and that ex-wife had one son.
victim’s work, where the victim would introduce him as her
“roommate” or “friend.” The victim told Appellant she wanted to
move out of the Jacksonville home he provided to her, but the
victim was concerned about how Appellant would receive this
news. Appellant returned from Missouri to discuss the matter
with the victim. That evening, the witness received a text from the
victim indicating that everything was fine and that Appellant had
even agreed to keep paying rent on the home so the victim could
live there while he stayed in Missouri.

     The matter seemed resolved, but the victim did not show up
for work and the witness grew concerned. She went to the victim’s
home to check on her welfare and saw the victim’s car but no sign
that anyone was home. The witness filed a missing person report.

     When law enforcement did a wellness check at the home, they
found no body or any sign of foul play. A detective found the
victim’s cell phone and car keys in the home. Detectives learned
Appellant was the victim’s ex-husband, and that he had traveled
to Missouri to visit his son and other ex-wife. Detectives traveled
to meet Appellant, arriving in Missouri at around 3 a.m. They
asked for Appellant’s consent to search the Jacksonville home,
which he freely gave.

     Appellant was initially very cooperative with police; he drove
his own car to a local sheriff’s office and gave a statement to
detectives. The detectives did not have probable cause to arrest
Appellant or to search his ex-wife’s property in Missouri. In his
first interview, Appellant pretended he had no idea where the
victim might be.       When asked if Appellant thought law
enforcement might find a body, he said “I hope not.” Appellant also
told the detectives that he urged one of his sons born during his
marriage with the victim to try to reach the victim by text.
Appellant himself texted the victim while driving back to Missouri
on the night of her disappearance.

    During the interview with police, Appellant claimed to suffer
from short-term memory loss due to early-onset Alzheimer’s
disease. The testifying detective saw no sign of this condition and
Appellant had no difficulty with dates and timelines.



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     Appellant described his post-divorce relationship with the
victim as amicable, telling detectives how happy the victim was
with him and their housing arrangement. He claimed the victim
would introduce him to her coworkers as her “sweetie.” Appellant
told the detectives that the victim’s promiscuity was a reason for
their divorce, and that the victim had been using an online dating
service and seeing other men before her disappearance. Appellant
said he had called one man who lived in Michigan and told him to
stop communicating with the victim. He told detectives that
shortly before the victim’s disappearance, she went on a date and
engaged in sexual activities with a man named Hunter. Detectives
later confirmed that the victim had in fact spent time with a man
by that name.

     But Appellant also made false statements about men in the
victim’s life. He told detectives that the last time he saw the
victim, she was leaving with a “biker,” a scenario he later admitted
was false.

    When police returned to search the victim’s home, a cadaver
dog alerted at the deceased’s bed, although the bed appeared
undisturbed. A detective testified that police found no evidence of
blood or foul play on the bed or in the home. Police investigated
the trailer park’s trash-disposal arrangement, learning that
tenants had to pay a fee and get help from a park employee to
access locked garbage dumpsters. Appellant had not paid any fee
and had not used the dumpsters during the relevant time-frame.

     Appellant’s ex-wife from Missouri testified that Appellant had
reunited with the victim about a year before the victim’s death.
She stated that Appellant often complained that the victim treated
him poorly that year and never appreciated all he did for her. The
witness testified that she urged Appellant to discontinue the
relationship.

     The ex-wife testified that Appellant promised to help their son
attend a graduation event in Missouri shortly before the date of
the victim’s disappearance. The night before the graduation event,
however, Appellant received a text from the victim saying she was
moving out of the Jacksonville home. Appellant stated he had to
return to Jacksonville, departing the very next morning. Although
his ex-wife assumed Appellant would stay in Jacksonville for
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several weeks, he surprised her by returning quickly to Missouri.
She testified that he appeared calm and collected when he
returned, and he had brought the victim’s dog with him. His
explanation for the quick return was that the victim urged him to
go back and spend time with his son.

    The next day, Appellant took their son to a golf camp. At the
time, the witness did not know that the victim’s body was in
Appellant’s trunk.

    The ex-wife testified that when law enforcement first
contacted her after the victim’s disappearance, she asked
Appellant what had happened in Jacksonville with the victim, but
Appellant insisted that all he knew was his ex-wife had left with a
man on a motorcycle she met online. The ex-wife warned
Appellant to contact the police and “clear this up because that
could lead to something serious.”

     After purportedly calling the detectives, Appellant suggested
that the family should all go out to dinner. At the outing, they
dined and joked about the whereabouts of the deceased, wondering
“if we’ll ever see her again.”

     Appellant’s ex-wife informed police that after Appellant’s
initial interview, he began making comments about harming
himself. Considering Appellant an endangered person and a
possible suspect, detectives tracked Appellant to a hotel in St.
Augustine. Appellant again voluntarily agreed to talk with law
enforcement, but this time the detective provided Miranda
warnings and advised him of his right to counsel and right to
remain silent. He waived his rights and spoke with police.

      In his second interview, Appellant told detectives he knew “it
was so wrong to cover this up [because] I thought, I am really
making a bad mistake.” According to Appellant, after their
divorce, he and the victim would occasionally engage in sexual
intercourse, but the victim would act like she did not enjoy sex with
Appellant. He told the detectives that on the evening of her death,
the victim told him about an act of oral sex with Hunter, which
filled Appellant with conflicting emotions. Appellant said he was
“furious” and claiming, “[m]ost guys would have beat her to death.”
But he stated that he also enjoyed hearing the details of the
                                 4
liaison, and he climbed into bed with the victim that night thinking
she would be willing to engage in the same sex act with him.

    Appellant told police that the victim grabbed a handgun he
had bought her, pointed it at him, and told him to “suck on this.”
He said that when she put the gun down, he impulsively picked it
up and it discharged accidentally, shooting the victim in the head.

     Appellant said he thought law enforcement would quickly
arrive due to the loud gunshot. He claimed he lay in bed with the
victim, hugging her for about an hour, until he realized the police
were not coming. He then wrapped the victim’s body in a sleeping
bag and drove to Missouri with the body in the car. When he
arrived in Missouri, he did not tell his ex-wife or son anything
about the killing.

    After his ex-wife went to work in the morning, Appellant
drove his son to an event, with the victim’s body still in the trunk.
Appellant later buried the body in a large hole near the property
and covered it with ten bags of decorative rocks.

     Believing detectives had already seized the gun from the ex-
wife’s home in Missouri, Appellant told police “you guys have the
gun? Do you? You don’t?” He told the detectives that the gun was
in a bedroom in his ex-wife’s home in Missouri and repeated “I
thought you guys had it.” He stated, “I left a bullet there, shell
casing. Did they find that?” The detectives informed Appellant
they had not.

     Appellant denied putting the gun directly against his ex-wife’s
head. When confronted by the detective about how unlikely it was
to shoot the victim in the head without intentionally doing so,
especially in the low light of the early-morning hours, Appellant
said “right.” Yet he continued to deny that he intentionally shot
the victim or hurt her in any way.

     In the interview recording, the detective confronted Appellant
about the lack of any sign of a shooting in the home, asking
Appellant if he changed the sheets or did anything to hide the
blood. Appellant denied this, but he could not explain why there
was no blood on the bed despite the victim supposedly lying there
for an hour after her death. Appellant said the victim lost a large

                                 5
amount of blood onto a pillow that he took and later burned in
Missouri. The detective also confronted Appellant about lying to
police in his first interview and about allowing the victim to lie in
the ground for seven days while Appellant “took the scenic route”
back to Florida along the gulf coast, camping out at the beach along
the way.

     The detective next confronted Appellant about attempting to
cover his tracks by sending a text to the victim’s phone while she
lay dead in his car. Appellant said, “I think I did a lot of covering”
and admitted he tried to confuse law enforcement.

     The Chief Medical Examiner for Jackson County Missouri
testified that the gunshot wound to the back of the victim’s head
was likely a contact wound. The medical examiner testified that
muzzle imprints and skin lacerations caused by direct contact with
gunpowder demonstrated that Appellant pressed the gun directly
to the victim’s skin. The examiner testified that the absence of
stippling 2 also demonstrated that the gun barrel was in direct
contact with the victim. Most significantly, the presence of soot in
the victim’s brain demonstrated that the gun was pressed against
her head, as soot would be found around the entry point of the
wound or dispersed in areas outside the victim’s brain if the wound
was not a contact wound. Slight decomposition was the only
reason the medical examiner could not say definitively that the
wound was inflicted with direct gun barrel contact. The examiner
testified that the wound was not a “near-contact,” “close-range,” or
“intermediate-range” wound. In the medical examiner’s opinion,
the manner of death was homicide.

     The State’s firearm expert testified that the gun used to shoot
the victim was a .380 auto-caliber handgun. When tested with the
magazine, the gun fired properly. The witness testified that he
performed a “trigger-pull” test, which involves a rod placed on the
gun’s trigger in the vertical position. The test concluded the gun

    2 Stippling occurs when gunpowder is not driven directly into
the wound by a contact discharge, but rather burns the skin
around the bullet entry. Stippling consists of small red dots near
a wound caused by a gun discharge away from the point of entry –
in the case of a hand gun, about three feet away.

                                  6
required 10.5 pounds of pressure to successfully pull the trigger,
unlike a “hair trigger” gun with about 2.5 pounds or less of trigger-
pull. The witness also testified that the gun had no altered
mechanisms or defects which would cause it to discharge without
the trigger being pulled.

    The State played a video over defense counsel’s objection,
showing law enforcement locating and exhuming the victim’s body
in Missouri. The trial court had previously directed that the video
not display any nudity, and it did not. The video showed officers
removing a sleeping bag from a hole in the ground and then
removing the victim’s body from the sleeping bag.

     Appellant’s sole witness was an expert on Alzheimer’s as it
relates to injuries. The witness had examined Appellant and his
case file and had reviewed depositions of Appellant’s living ex-wife.
The witness confirmed that Appellant had been diagnosed with
Alzheimer’s before the shooting, and that he had stopped working
due to his disability. The witness described Appellant’s condition
as early-onset Alzheimer’s disease, testifying that this condition
can affect impulse control and cause “mental inflexibility.” The
witness opined that Appellant’s condition contributed to the
“bizarre” behavior of transporting his ex-wife’s body to Missouri.

     On cross-examination, the witness stated he was not
testifying that Appellant’s disease caused him to shoot the victim
or that Appellant was unable to formulate intent. The witness also
acknowledged that false statements were not a condition of early-
onset Alzheimer’s disease. He acknowledged that Appellant knew
the difference between right and wrong.

     In the State’s closing argument, the prosecutor argued that
Appellant “loved the victim to death.” He asserted that Appellant
was so obsessed with the victim that he provided her a home,
bought her gifts, and even disregarded his own son to appease her.
He allowed the victim to date other men while he cooked her meals
and paid some of her bills; Appellant did anything to keep the
victim in his life. The prosecutor argued that the reason Appellant
carried the victim’s body from Jacksonville to Missouri, rather
than putting the body in some remote location along the way, was
to keep her close to him even in death.

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     The prosecutor emphasized that Appellant’s expert witness
admitted that early-onset Alzheimer’s would not exclude an intent
to shoot the victim or to evade detection. The prosecutor noted that
Appellant took many steps to confuse law enforcement and lied
about crucial details. He argued that Appellant could not have laid
in bed with the victim because the bed had no blood on it and was
undisturbed. The prosecutor also asserted that the only way the
gun could have discharged soot into the victim’s brain was by a
direct contact wound.

     The prosecutor argued that although no one could ever know
exactly what happened before the shooting, Appellant’s intent
could be proven by his actions. “Actions speak louder than words,”
the prosecutor emphasized.

     Defense counsel argued that the firearm expert admitted that
guns can and do discharge accidentally, and the medical
examiner’s testimony did not prove that the wound could not have
been inflicted by accident.      Defense counsel asserted that
Appellant’s early-onset condition explained his behavior after an
accidental shooting, and that the State failed to prove otherwise.
Defense counsel emphasized that Appellant was not on trial for
what he did with the victim’s body after the purported accident.
Counsel urged the jury to find Appellant not guilty because the
shooting was accidental.

                              Analysis

     Appellant asserts that the State failed to present sufficient
evidence to sustain the second-degree murder conviction. We
reject this argument.

     Second-degree murder is an unlawful killing committed
without premeditation that is perpetrated “by any act imminently
dangerous to another and evincing a depraved mind regardless of
human life[.]” § 782.04(2), Fla. Stat. (2017). A depraved mind
regardless of human life may be established by competent,
substantial evidence that the defendant acted with ill will, hatred,
spite, or an evil intent. Peoples v. State, 251 So. 3d 291, 303 (Fla.
1st DCA 2018). Even without any express testimony about a
defendant’s malice or state of mind, “the circumstances
surrounding the fatal act can prove ill will, spite, hatred or evil
                                 8
intent.” Id. In Peoples, this Court held that competent, substantial
evidence demonstrated the requisite mental state, reasoning that
“no one ‘accidently’ or ‘negligently’ plunges a seven-inch knife
blade six inches into the chest of another person.” Id. at 302. We
also observed that the supreme court “held that the act of striking
another person with a loaded pistol that discharged and killed the
victim” was an act constituting second-degree murder. Id. at 301
(citing State v. Bryan, 287 So. 2d 73, 76 (Fla. 1973)).

     When considering an argument challenging legal sufficiency,
we review the evidence presented by the State in a light most
favorable to the verdict of guilt. Robinson v. State, 267 So. 2d 567,
568 (Fla. 1st DCA 2019); see also Lynch v. State, 293 So. 2d 44, 45
(Fla. 1974) (“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.”).

     Here, assuming the jury drew all inferences and viewed all
evidence adverse to Appellant, the jury could have found that
Appellant was obsessed with the victim and provided her a home
in hopes she would continue to have sexual relations with him.
When Appellant learned she was moving out, he left Missouri
almost immediately, dropping his plans to attend an event with
his son, so that he could convince the victim to continue living in
the home he provided her.

     The victim expressed her concerns about Appellant to her
friend. The victim considered Appellant her “roommate” or
“friend,” as the friend testified, contrary to Appellant’s claim that
she referred to him as her “sweetie.” The jury could have
concluded from this evidence that the victim did not wish to
continue an intimate relationship with Appellant.

     Appellant knew the victim was using dating websites and that
she had sex with a man the very weekend Appellant dropped his
plans in Missouri to travel to Jacksonville for her. But when the
victim described the details of her sexual encounter with the other
man, Appellant became jealous and angry, later attempting to
pressure her to engage in the same sex acts with him to no avail.
When Appellant told police that the victim pointed the gun at him
and told him to “suck on this,” the jury could have found that it
                                 9
was actually Appellant who made that comment to the victim,
before pressing the gun against her head and killing her with a
single shot.

     With the victim bleeding profusely onto her pillow, Appellant,
a physician’s assistant, quickly wrapped the body into a sleeping
bag to prevent contamination of the home, took the bloody pillow
and the victim’s dog, and fled to Missouri. He left her cell phone
and car at the home because he planned to tell law enforcement he
did not know where she might be located. With no body and no
evidence of foul play, Appellant thought law enforcement would
not obtain enough evidence to arrest him. The jury could further
have concluded that Appellant showed no remorse when he arrived
in Missouri after killing the victim. He drove his son to a
graduation event with the victim’s body in the car. He bought
supplies to cover up the body and buried the victim on nearby
property. He enjoyed dinner and alcohol and laughed about the
missing victim, knowing he had just shot and killed her.

     The jury could ultimately have concluded that, after law
enforcement tracked Appellant to the St. Augustine hotel and
woke him in the early morning, his confidence shattered, and he
confessed. Appellant did not realize that detectives had no gun
and no probable cause to search the Missouri home. The jury could
have rejected Appellant’s self-serving statements that the shooting
was an accident, statements inconsistent with Appellant’s
comments that he was angry, even humiliated, and that another
man “would have beat her to death.” The jury could have afforded
great weight to the medical examiner’s testimony that the victim
died from a contact wound.

     We need not decide whether the evidence of Appellant’s guilt
was purely circumstantial, because even applying the heightened
standard of review set forth in Orme v. State, 677 So. 2d 258, 262
(Fla. 1996), all of this evidence was inconsistent with Appellant’s
hypothesis of innocence. Therefore, it was for the jury to decide
whether to return a verdict of guilt or acquit Appellant. See State
v. Law, 559 So. 2d 187, 189 (Fla. 1989).

     Appellant also challenges the court’s admission of the video of
police removing the victim’s body from the hole. Defense counsel
argued below that the videotaped evidence was not relevant
                                10
because Appellant admitted he buried the body, and thus the State
had no need or justification to present the evidence.

     First, we reject Appellant’s argument that the video evidence
was not necessary. “[R]elevancy rather than necessity” is the test
for admission of potentially inflammatory photographs or video
evidence of a crime. Pope v. State, 679 So. 2d 710, 713-14 (Fla.
1996). Here, the video evidence of the exhumation was relevant.
Although Appellant admitted he transported the body to Missouri
and buried it, he also asserted he shot the victim by accident. His
partial admission did not bar the State from introducing relevant
evidence that could confirm or contradict his inculpatory or
exculpatory statements.

     Although defense counsel asserted that the sole issue was
whether the victim’s death was accidental, this understates
disputed issues like the manner of death and the explanation for
the lack of blood at the crime scene. Defense counsel argued at
trial that the gun might have been upside-down when fired, and
that the lack of blood was simply due to the blood gathering on a
pillow that was later burned. The exhumation video could have
helped the jury determine whether to believe Appellant’s story or
the medical examiner’s theory, as the video showed how Appellant
attempted to hide the body.

     Appellant’s theory of the case was that Appellant’s actions
after the shooting were consistent with early-onset Alzheimer’s
disease, and that the shooting itself was an accident. The State
argued that Appellant’s actions evinced intent and rational
thought, consistent with consciousness of guilt. The exhumation
video, which showed the condition of the body in the sleeping bag
and the rocks used to cover the hole, could have helped the jury
determine whether Appellant was acting rationally or erratically.
Considering these disputed issues, the video was not inadmissible
on relevance grounds unless its probative value was substantially
outweighed by unfair prejudice.

     In addition, there was no unfair prejudice in admitting the
evidence. The videotape was not particularly gruesome or
inflammatory such that the trial court was required to grant a
mistrial following its admission. Although the video shows a dead
body, and although photographs from the exhumation and autopsy
                                11
also provided evidence of the manner of death, the video provided
jurors a clear presentation without being overly sensational or
needlessly cumulative. See Nixon v. State, 572 So. 2d 1336, 1342
(Fla. 1990) (upholding the admission of several photographs of the
burned body of the victim, even though cause of death and nature
of death had been clearly established). Therefore, the trial court
did not commit error in admitting the video or in denying
Appellant’s motion for a mistrial based on the admission of this
evidence.

    AFFIRMED.

RAY, C.J, and WINOKUR, J., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


James P. Hill and Jacqueline Rae Luker of Tassone, Dreicer, &
Hill, Jacksonville, for Appellant.

Ashley Moody, Attorney General, and Amanda D. Stokes,
Assistant Attorney General, Tallahassee, for Appellee.




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