          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                         No. 1D17-316
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CURTIS JAMES JACKSON,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Jackson County.
Shonna Young Gay, Judge.

                         August 10, 2018


PER CURIAM.

    Curtis James Jackson appeals his conviction for aggravated
battery with a firearm. He raises two issues on appeal, one of
which we find meritorious. We reverse and remand for a new trial
because the trial court erred by not giving the jury instruction Mr.
Jackson sought on the justifiable use of deadly force.

     Mr. Jackson and another man had an altercation at a
nightclub that ended when Mr. Jackson shot and wounded the
victim. The victim testified that he exchanged words with Mr.
Jackson and “the next thing I know I had got shot.” Mr. Jackson
on the other hand testified that the victim escalated the fight when
he cornered Mr. Jackson against a wall and began punching him
on both sides of the face. He claimed that one of the punches left
him with nerve damage to his eye. More than that, he feared the
victim’s punches could break his medically vulnerable neck and
shoulder. He showed a scar at trial from a cervical surgery, and
the jury viewed a video of his interrogation in which Mr. Jackson
claimed to have had multiple prior neck and shoulder surgeries
and expected additional surgery. Mr. Jackson testified that the
victim punching him was a big guy.

     Mr. Jackson asserts that on these facts it was error for the
court to not give his requested instruction on justifiable use of
deadly force. A criminal defendant “is entitled, upon request and
by law, to have the jury instructed on his theory of defense if any
evidence supports that theory, so long as the theory is valid under
Florida law.” Goode v. State, 856 So. 2d 1101, 1104 (Fla. 1st DCA
2003) (emphasis in original). “This is true even if the only evidence
of the defense is provided by the defendant’s own testimony, and
even if that testimony is weak or improbable.” Williams v. State,
588 So. 2d 44, 45 (Fla. 1st DCA 1991). In determining whether to
give the requested instruction, the court may not weigh the
credibility of the evidence that supports giving the instruction. See
Chavers v. State, 901 So. 2d 409, 410 (Fla. 1st DCA 2005). “[I]t is
enough if any evidence supports the defense.” Barnes v. State, 108
So. 3d 700, 702 (Fla. 1st DCA 2013).

    Florida law justifies the use of deadly force if someone
“reasonably believes that using or threatening to use such force is
necessary to prevent imminent death or great bodily harm to
himself or herself or another or to prevent the imminent
commission of a forcible felony.” § 776.012(2), Fla. Stat. In most
cases, a person in a fist fight lacks a sufficient justification to use
deadly force. Here, however, we conclude that the jury could have
viewed the combined evidence “as reasonably suggestive of a
threat [of imminent death or great bodily harm] to a person in
appellant’s position.” Chavers, 901 So. 2d at 411.

   We therefore REVERSE the judgment and sentence and
REMAND for a new trial.

WOLF, OSTERHAUS, and WINSOR, JJ., concur.




                                  2
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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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Andy Thomas, Public Defender, and M.J. Lord, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Steven E. Woods,
Assistant Attorney General, Tallahassee, for Appellee.




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