          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                          No. 1D17-3359
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PERRY JAMES FORD, JR.,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Escambia County.
John L. Miller, Judge.

                          March 13, 2019


JAY, J.

     In this appeal from his conviction and sentence for first-degree
murder, Appellant claims that (1) the trial court erred in denying
his motion for judgment of acquittal; and (2) his sentence of life
imprisonment without parole is excessive and constitutes cruel
and unusual punishment. We affirm Appellant’s sentence without
further discussion. See Lockhart v. State, 44 Fla. L. Weekly D150
(Fla. 1st DCA Dec. 31, 2018); Romero v. State, 105 So. 3d 550 (Fla.
1st DCA 2012). For the reasons that follow, we also affirm the
denial of Appellant’s motion for judgment of acquittal.
                                 I.

     Appellant was indicted for first-degree murder on the dual
theories of premeditation and felony murder (with robbery as the
underlying felony). At trial, it was established that the seventy-
five-year-old victim lived alone, had mobility issues, and used a
walker for balance. Appellant’s grandmother was one of the
victim’s best friends and her caregiver as well. Appellant also
assisted the victim on occasion. On June 21, 2016, the victim
reported that she suspected that Appellant had stolen cash from
her hospital room. Appellant admitted to law enforcement that he
had stolen money from the victim, that the victim had confronted
him about the theft, and that he promised to pay the victim back.

     On August 10, 2016, Katie Shea reported that her car had
been burglarized and that her checkbook and a .22 Ruger
handgun—with a laser sight and her name engraved on it—had
been stolen from the vehicle. Three days later, Appellant went with
his friend, Joewaki Hamilton, to a credit union ATM to cash two of
Shea’s checks, which was recorded by the ATM surveillance video.
Hamilton saw Appellant in possession of a gun equipped with the
laser. Deandre Scott, another of Appellant’s friends, saw Appellant
in possession of the same gun, which Appellant kept in his book
bag.

     In the early morning hours of September 9, 2016, the victim
received three calls from the same phone number that was
registered to Appellant’s younger brother, Kendrick Rodgers. The
first call was received at 12:23 a.m. and lasted ten minutes, the
second call was received at 12:35 a.m. and lasted two minutes, and
the third call was received at 12:42 a.m. and lasted six minutes. At
12:52 a.m., the victim’s home security system indicated that the
victim’s front door was opened and closed and that the alarm was
deactivated. The front door was left open for one minute and ten
seconds and then closed at 12:54 a.m. The next activity was at 1:05
a.m. when the front door was opened and closed.

     For the next 33.5 hours, there was no activity detected by the
system until another friend of the victim, Clara Reeves, went to
the victim’s house after not hearing from her, found the door
unlocked, and entered the house to find the victim dead in her

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bedroom. According to Reeves, the victim was very safety
conscious, would never open the door to strangers, and preferred
that visitors call her before they came over late at night.

     When the crime scene was processed, there were no signs of
forced entry, and all the windows and doors were secured. The
victim’s wallet was found opened, but her purse and cell phone
were missing. A spent shell casing from a .22 firearm was found
near the victim’s body. An autopsy determined that the victim had
been struck in the head—which caused a laceration that likely
stunned her—and shot in the head at close range, which killed her.
A firearms expert determined that the fatal gunshot came from the
stolen .22 Ruger, which was recovered during an unrelated traffic
stop—not involving Appellant—in November 2016.

     After reviewing the victim’s cell phone records, Detective
Shannon Briarton of the Pensacola Police Department spoke to
Kendrick Rodgers, who allowed her to examine his cell phone.
Briarton determined that the calls to the victim had been erased
from the phone. However, analysis of the cell phone records
indicated that the phone was moving in relation to the cell phone
towers when the calls were made and that the last call was
received by a cell phone tower in the vicinity of the victim’s home.
Briarton then executed a search warrant of Appellant’s home and
found gloves, a box containing two blank checks belonging to Katie
Shea, and the victim’s debit card.

     Afterwards, Briarton made contact with Appellant after
advising him of his rights. During the interview, Appellant said
that it had been months since he was at the victim’s home, and
that he was at the apartment of his friend, Shaniya James, on the
night of the murder. Appellant admitted that he had his brother’s
phone and called the victim from James’ apartment while he was
drunk on the night of the murder, but denied going to the victim’s
house.

     Briarton spoke to Shaniya James and determined that
Appellant had been making calls to her at 1:37 a.m. on the morning
of the murder. James knew Appellant from high school and denied
seeing Appellant that night because she worked from 3:45 p.m.
until midnight and then spent the night at her parents’ home.

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Appellant did not have a key to her apartment and was not allowed
to stay there while she was away. The back door to her apartment
did not close properly, but James used a piece of plywood to keep
the back door closed.

     Detective Christopher Forehand of the Pensacola Police
Department obtained a warrant for Appellant’s Facebook
messages with his friend, Joewaki Hamilton. While Forehand
found the corresponding time and date stamps with Hamilton’s
messages, the messages themselves had been deleted. However, on
Hamilton’s cell phone, the Facebook Messenger account showed a
series of six messages—and their contents—occurring on
September 8 and 9, 2016. At 11:39 p.m. on September 8, 2016,
Appellant messaged Hamilton that he wanted to meet with
Hamilton “when I get done doing this shit.” Later, at 1:42 a.m.,
Appellant sent a message to Hamilton saying “WYA—Where you
at—I tried to link up with y’all.”

     After the State rested, defense counsel moved for a judgment
of acquittal on the grounds that the circumstantial evidence
presented by the State did not establish that Appellant killed the
victim, or that the killing was premeditated, or rebut Appellant’s
reasonable hypothesis of innocence that he was at Shaniya James’
house during the commission of the murder. The trial court denied
the motion. After the defense rested, the trial court denied
Appellant’s renewed motion for judgment of acquittal. The jury
returned a verdict finding Appellant guilty as charged. The trial
court imposed the mandatory sentence of life in prison without
parole. This appeal followed.

                               II.

     Appellant claims that the trial court erred in denying his
motion for judgment of acquittal because the State’s
circumstantial evidence neither established that he committed the
murder nor rebutted his reasonable hypothesis of innocence. To
withstand a motion for judgment of acquittal in a case based
wholly on circumstantial evidence, the evidence, viewed in a light
most favorable to the State, must be inconsistent with any
reasonable hypothesis of innocence proposed by the defendant.
State v. Law, 559 So. 2d 187, 188-89 (Fla. 1989). This special

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standard “requires that the circumstances lead ‘to a reasonable
and moral certainty that the accused and no one else committed
the offense charged. It is not sufficient that the facts create a
strong probability of, and be consistent with, guilt. They must be
inconsistent with innocence.’” Lindsey v. State, 14 So. 3d 211, 215
(Fla. 2009) (quoting Frank v. State, 163 So. 223 (Fla. 1935)). Under
this standard, “[s]uspicions alone cannot satisfy the State’s burden
of proving guilt beyond a reasonable doubt”; rather, “‘[i]t is the
actual exclusion of the hypothesis of innocence which clothes
circumstantial evidence with the force of proof sufficient to
convict.” Ballard v. State, 923 So. 2d 475, 482 (Fla. 2006) (quoting
Davis v. State, 90 So. 2d 629 631-32 (Fla. 1956)).

     Viewed in a light most favorable to the State, the evidence
pointed to Appellant as the only possible suspect. In June 2016,
the victim had accused Appellant—whom she knew through
Appellant’s grandmother—of stealing from her. Subsequently,
Appellant was seen in possession of the murder weapon, a .22
Ruger with a laser sight that was stolen along with some checks
during a vehicle burglary in August 2016. Appellant cashed two of
those stolen checks three days after the burglary. After midnight
on September 9, 2016, Appellant made three cell phone calls to the
victim, the last of which ended at 12:48 a.m. Four minutes later,
the victim’s home security system indicated that the front door was
opened and closed and that the alarm was deactivated. The front
door was left open for one minute and ten seconds and then closed
at 12:54 a.m. The next activity was at 1:05 a.m. when the front
door was opened and closed.

     For the next 33.5 hours, there was no activity detected until
the victim’s friend went to the victim’s house after not hearing
from her, found the door unlocked, and entered the house to find
the victim dead in her bedroom with a fatal gunshot wound to the
head. There were no signs of forced entry, and all the windows and
doors were secured. The victim was known to be very safety
conscious, was characterized as someone who would never open
the door to strangers, and preferred that visitors call her before
they came over late at night.

    This circumstantial evidence connected Appellant to the crime
through a firm timeline that established that the elderly victim

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admitted Appellant—a person she knew—into her home late at
night within minutes of receiving a call from Appellant and that—
no more than ten minutes later—Appellant shot her with a firearm
that he acquired from a prior burglary. Although Appellant
claimed that he was at the apartment of his friend, Shaniya James,
on the night of the murder, and that he called the victim from
James’ apartment, this hypothesis of innocence was inconsistent
with (1) James’ testimony that she was not with Appellant on that
night, Appellant did not have the key to her apartment, and
Appellant did not have permission to be in her apartment when
she was not there; (2) cell tower data showing that Appellant’s cell
phone was moving when he made the calls to the victim; (3)
Appellant’s Facebook messages to his friend, Joewaki Hamilton,
suggesting that Appellant was not at James’ apartment when the
victim was murdered; and (4) the deleted calls to the victim on
Appellant’s cell phone as well as his messages to Hamilton on his
Facebook account. Because this evidence was sufficient for a jury
to find within “a reasonable and moral certainty” that Appellant
and no one else committed the murder, the trial court properly
denied the motion for judgment of acquittal. See Kline v. State, 223
So. 3d 482 (Fla. 1st DCA 2017) (holding that circumstantial
evidence was sufficient for the jury to find within “a reasonable
and moral certainty” that Kline, and no one else, murdered his wife
where the evidence connected Kline to the crime through a firm
timeline, he was the last person to see his wife alive, their
marriage was unhappy, he made inculpatory statements in a letter
to his ex-wife, and his hypothesis of innocence was implausible).

                                III.

     Alternatively,     Appellant    claims    that    the    State’s
circumstantial evidence failed to establish that either the murder
was premeditated or the victim was robbed during the commission
of the murder. Premeditation is a fully-formed conscious purpose
to kill, which exists in the mind of the perpetrator for a sufficient
length of time to permit reflection. Johnston v. State, 863 So. 2d
271, 285 (Fla. 2003). “Premeditation can be formed in a moment
and need only exist ‘for such time as will allow the accused to be
conscious of the nature of the act he is about to commit and the
probable result of that act.’” DeAngelo v. State, 616 So. 2d 440, 441
(Fla. 1993) (quoting Asay v. State, 580 So. 2d 610, 612 (Fla. 1991)).

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“‘Where the element of premeditation is sought to be established
by circumstantial evidence, the evidence relied upon by the state
must be inconsistent with every other reasonable inference’ in
order to defeat a motion for judgment of acquittal.” * Jones v. State,
36 So. 3d 903, 907 (Fla. 4th DCA 2010) (quoting Cochran v. State,
547 So. 2d 928, 930 (Fla. 1989)). “Premeditation may be inferred
from the nature of the weapon used, the presence or absence of
adequate provocation, previous difficulties between the parties,
the manner in which the homicide was committed and the nature
and manner of the wounds inflicted.” Id. (quoting Cochran, 547 So.
2d at 938).

     Viewed in a light most favorable to the State, the evidence
established that Appellant arranged a visit with the victim after
midnight, traveled to the victim’s home armed with a firearm,
pistol whipped the victim, shot her in the head with the firearm at
close range, and took her purse and cell phone before he left. This
evidence was inconsistent with a lack of premeditation because
there was sufficient time for Appellant to be conscious of the
nature of the act he was about to commit and the probable result
of that act. Moreover, this evidence was sufficient to establish that
Appellant robbed the victim of her purse and cell phone during the
commission of the murder. Thus, the circumstantial evidence was
legally sufficient to support the verdict of first-degree murder.

    AFFIRMED.

B.L. THOMAS, C.J., and BILBREY, J., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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    *We  emphasize that this special standard applies here only
because the evidence of Appellant’s guilt is entirely circumstantial.
Knight v. State, 186 So. 3d 1005, 1010-11 (Fla. 2016).

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Andy Thomas, Public Defender, and David A. Henson, Assistant
Public Defender, Tallahassee, for Appellant.

Ashley B. Moody, Attorney General, and Kaitlin Weiss, Assistant
Attorney General, Tallahassee, for Appellee.




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