            FIRST DISTRICT COURT OF APPEAL
                   STATE OF FLORIDA
                  _____________________________

                          No. 1D18-1224
                  _____________________________

AMOS MOORER,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Leon County.
James C. Hankinson, Judge.

                           July 23, 2019


LEWIS, J.

     Appellant, Amos Moorer, challenges his convictions for
attempted second-degree murder and raises two issues pertaining
to the jury instructions given at his trial. Appellant argues that
the justifiable use of deadly force instruction was fundamentally
erroneous because it included the “otherwise engaged in criminal
activity” language, but no instruction on the alleged criminal
activity. He further asserts that the trial court erred by giving the
aggressor instruction over his objection. For the reasons that
follow, we affirm.
                          BACKGROUND

     Appellant was charged with two counts of attempted first-
degree murder after he shot Sara Renee Wilson, his ex-girlfriend,
and Jahmai Makonnan Bassett, her boyfriend at the time. At trial,
Wilson testified that she and Appellant broke up in the spring of
2016. They stayed in touch over the summer and he visited her at
her new Tallahassee apartment. Prior to the incident, they last
saw each other on July 4th, when Wilson ended their relationship
for good and Appellant said “he was going to put himself out of his
misery.” Between the July 4th break-up and the August 11th
incident, Appellant tried to contact Wilson from random phone
numbers because she had blocked his number and would plead for
her to get back together with him, but she did not call him, invite
him over, or share with him anything about her life.

     On August 11th, before it got dark, Wilson took her dog for a
walk, and the dog alerted to the bushes next to her apartment
building. In the bushes, Wilson saw Appellant laying on his
stomach on the ground. Upon emerging from the bushes,
Appellant asked Wilson to take the dog home and talk to him. She
said she would, but only “to get away from him.” Wilson was
scared and observed that Appellant “was like he wasn’t there,” “it
was like a person [she has] never seen. Like the look in his eyes
was different. Like [she has] never seen him like that before.”
Wilson did not know that Appellant was coming over, and she did
not say anything to him about her “weed man” being there.

     Once inside her apartment, Wilson told Bassett that her ex-
boyfriend was in the bushes and then called her sister. Wilson
assumed Appellant left because she did not see him or his car when
she looked out the window. Bassett stepped outside to wait for the
Uber he had already requested because the drivers tended to go to
the wrong location. Bassett had never met Appellant, did not know
his name or what he looked like, and was not upset about his
presence. While Bassett was outside waiting for his ride, Wilson
was standing in her doorway. At that point, Appellant pulled up
in his car right in front of them. Wilson asked Appellant to leave,
but he exited his car and started shooting. Appellant first shot at
Bassett and then came after Wilson. Once Bassett ran off to
Wilson’s right, Appellant “started running towards . . . [Wilson]

                                2
and [she] heard [more] gunshots.” Appellant was facing and
looking at Wilson as the gunshots continued and he made it all the
way to her doorway. When Appellant saw Wilson was shot, he
“just took off running.”

     Wilson knows Appellant owns a .45 gun, whereas Bassett does
not own a gun and did not have one with him on the day of the
incident. Wilson did not see Bassett do anything with his pants or
waistband, but she could not see everything clearly because of the
stairwell. When asked if she heard Bassett yell, curse, or make
threats, Wilson explained, “I heard him say the same thing I said,
just leave, she asked you to leave”; “he said something along the
lines of the same thing I said. He asked, please - - she asked you to
please leave.” Wilson hung up with her sister to call 911, the
recording of which was admitted into evidence and reflected that
she told the dispatcher, “[Appellant] just came up here and I
opened the door and he just started shooting at me.” Bassett was
upset with Wilson after the incident and did not want anything to
do with her.

     Several witnesses corroborated Wilson’s account of the
incident. Shannon Walsh, Wilson’s sister, testified that shortly
before 8:00 p.m. on August 11th, she received a phone call from
Wilson, who sounded “worried, scared.” While they were on the
phone, Walsh heard Wilson repeatedly say, “please leave,
[Appellant]; we’ve asked you to leave.” Walsh also heard Bassett
talking and observed that he was not yelling. “Literally right
after” Wilson asked Appellant to leave, Walsh heard gunshots and
screaming. The recording of Walsh’s 911 call was admitted into
evidence and reflected that she reported that Appellant “showed
up at [Wilson’s] house in the bushes,” he had been stalking Wilson
for a while, Wilson politely asked him to leave and told him she did
not want to talk to him and he was “freaking [her] out,” “and that’s
when he just shot.”

      Michael Wilson, a resident at Wilson’s apartment complex
and of no relation to her, testified that he saw Appellant stand up
in between two vehicles, “bolt[] out in front of the vehicles,” and
“[stick] his arm out like this and start[] firing” at Bassett, who was
in the doorway area of the apartment and then ran to his right
before falling to the ground. Appellant looked around and then

                                  3
said to Wilson, who had been standing in her doorway and was
entering her apartment, “where do you think you’re going” and
followed her. Michael heard gunshots as Appellant bolted from
between the vehicles, after Bassett ran, and as Appellant was
going towards Wilson.

     Neither the resident who assisted Bassett at the scene nor the
forensic specialist who collected Bassett’s belongings at the
hospital saw a gun on him. Wilson and Bassett were shot multiple
times in the leg and foot. Five spent casings and three projectiles
were collected at the crime scene, which an expert in ballistics
testified were fired from a Hi-Point .45 caliber semiautomatic
pistol. Sergeant Christopher Corbitt, an expert in historical
communication records analysis, testified that based on
Appellant’s phone records, he determined that on the day in
question, Appellant entered Leon County about 6:14 p.m., was
around the crime scene at 7:52 p.m., was moving away from the
scene at 7:55 p.m., and was back in Jacksonville at 10:59 p.m.

     Appellant testified that he had broken up with Wilson and
they last spoke about ten days before the incident. On August
11th, Appellant was going to the Pensacola area for vacation and
decided to stop at the leasing office of Wilson’s apartment complex
to see if he could obtain another lease for her because he knew her
lease was about to expire and she was having issues with it.
Appellant still loved Wilson, but was not intending on seeing her,
so he parked and walked where she could not see him. When
Appellant saw Wilson walking the dog, he squatted down in the
bushes in an attempt to avoid her, though he was not trying to
hide. When the dog alerted Wilson to the bushes, Appellant stood
up and she “kind of bust[ed] out laughing.” Appellant asked to talk
to Wilson for a minute, and she said, “give me a second, . . . my
weed man is here.” Appellant thought Wilson was referring to
“Seven,” with whom he did not want any contact because his
understanding was that Seven was a gang member and she had
his dog. Appellant had taken Wilson to Seven’s house to buy
marijuana, but never actually met him.

   Appellant then went to his car to pull into the apartment
complex because Wilson said “he was going to leave.” When
Appellant parked directly in front of Wilson’s apartment, he saw

                                4
her in the doorway and a man walking away from the apartment.
While Appellant was still in his car, the man—Bassett—turned
around and headed towards him. Appellant explained, “[Bassett]
just had a pissed off look on his face. He just looked angry. He was
on his cell phone when he was walking towards me,” “[a]nd at this
point I’m only, you know, making assumptions.” Appellant told
Bassett that he did not have a problem with him and was there to
talk to Wilson. Bassett had gold teeth and tattoos, which made
Appellant think he was Seven. As Bassett was “still pacing back
and forth on the sidewalk,” he was “fumbling [in his pocket and
then waistband] with what [Appellant] believe[d] to be a firearm.”
Believing that Bassett was armed, Appellant started looking for
his firearm, a Hi-Point .45. Appellant asked Wilson to talk to him,
but she said she could not and looked at Bassett, which made
Appellant think that Bassett was holding her against her will.
Appellant asked Bassett if they had a problem, to which Bassett
responded, “I don’t know, you tell me. . . [F]*** . . ., if you know
something, you better get somewhere before you get your wig
split.” Appellant understood that statement to be a threat to cause
him death or severe bodily harm, and he was very scared.
Appellant drew his weapon because he believed Bassett was about
to shoot him.

      After Appellant fired the first shot at Bassett, Bassett
continued to face Appellant and started backing up, and then he
“turns and runs and he falls [on his back] left of Wilson’s front
door.” At that point, Appellant saw that Bassett’s hands were
empty and he stopped firing because he was not trying to kill
Bassett and felt he could leave. Appellant added, “Before I couldn’t
-- I felt like, like he just forced me out of the car; like I didn’t have
any other option.” Once Bassett fell to the ground, Appellant
“turned around and walked back to the car.” Appellant never tried
to shoot Wilson and was unaware that she was injured. Appellant
returned to Jacksonville without calling the police because Wilson
“is involved with some stuff” and he did not want her to get into
trouble for it.

     On cross-examination, Appellant testified that when he
arrived at the apartment complex around 7:00 p.m. or so, he
parked at a nearby restaurant and found the leasing office closed.
After leaving the office, “[Appellant] kind of walked around the

                                   5
apartment complex. [He] was like looking where [Wilson] was at.”
Appellant was outside of Wilson’s apartment for twenty minutes
or so watching if there were any men coming and going from her
apartment. He explained, “When I got ready to come back, that’s
when I saw her coming toward me and I kind of basically tried to
hide from her. I didn’t want her to know I was there.” Bassett
initially did not say anything to or make any gestures toward
Appellant and looked angry based on having tattoos, gold teeth,
and dreads. When Bassett started to approach and make
comments, Appellant did not roll up his window or drive away
because he was worried about Wilson. Wilson had told Appellant
that she was keeping Seven’s dog because he was jailed “for a long
time and he wasn’t going to be getting out any time soon.”

     The defense called Roy Bedard as an expert in self-defense,
and he testified that Appellant recounted features he commonly
sees in cases of fear-based stress response. Bedard opined that
Appellant felt his life was in imminent danger and that Appellant’s
actions were objectively reasonable and the use of deadly force in
response to his perceived deadly threat was appropriate. On cross-
examination, Bedard agreed that Appellant sounded very
educated on the use of force.

     On rebuttal, Corbitt testified that Appellant’s phone records
indicated his presence in the area of the apartment complex from
6:17 until 7:55 p.m.

     The defense requested instruction on justifiable use of deadly
force, and the jury was instructed in part as follows:

         [Appellant] was justified in using or threatening to
    use deadly force if he reasonably believed that such force
    or threat of force was necessary to prevent imminent
    death or great bodily harm to himself or another, or the
    imminent commission of a murder against him. If
    [Appellant] was not otherwise engaged in criminal
    activity and was in a place he had a right to be, then he
    had no duty to retreat and had the right to stand his
    ground.

        In deciding whether [Appellant] was justified in the
    use or threatened use of deadly force, you must consider
                                6
    the circumstances . . . . However, the defendant had no
    duty to retreat if he was not otherwise engaged in
    criminal activity and was in a place where he had a right
    to be.

         However, the use or threatened use of deadly force is
    not justified if you find that [Appellant] used force or the
    threat of force to initially provoke the use or threatened
    use of force against himself, unless: . . . .

Appellant objected only to the aggressor portion of the instruction.

     During closing argument, the defense contended that
Appellant acted in self-defense and that he had no duty to retreat
because he was there lawfully and “did not go there that day with
this set of facts to commit any crime whatsoever.” In rebuttal, the
State argued that only Appellant and his expert, who merely relied
on what he told him, claimed that he acted in self-defense. The
State discussed the reasons why Appellant should not be believed,
addressing the weighing of credibility factors. The State also
discussed the conflicts in Appellant’s testimony and argued in part
as follows:

         [Appellant] says he was there for only about 20 or 25
    minutes. . . . He was actually at the apartment complex
    from 6:15 to 7:55. . . . And it is not reasonable to believe
    that he was going to the apartment complex after hours
    to try to take over this lease . . . that [] doesn’t end in three
    weeks for this girl that he hasn’t talked to.

         He was at the apartment complex, because he is
    stalking her and he wanted to see if she was with another
    man and he was obsessed with her and he couldn’t leave
    it alone. And he waited out there for an hour and 40
    minutes.

           He says -- the defendant says that he and Ms. Wilson
    were talking up to this point. Up until 10 days before,
    everything is fine. Yet, if everything is fine between them
    . . ., why is he having to park at a nearby restaurant? . . .



                                   7
        And if everything is okay with her, . . . why did he
    hide in the bushes? . . .

        In your self-defense instructions . . ., the last
    paragraph . . . says: If [Appellant] was not otherwise
    engaged in criminal activity and was in a place where he
    had a right to be, then he had no duty to retreat . . . .

         What did we learn from Sergeant Corbitt? He was at
    this place for an hour and 40 minutes and he was hiding
    in the bushes. He is stalking her. Even if, let’s say, his
    whole story about all of this is true, about everything
    Jahmai Bassett did with him, he is still not able to be
    there. He is otherwise engaged in criminal activity. He is
    stalking her.

The State then discussed the evidence that conflicted with
Appellant’s self-defense claim.

     Appellant was convicted on each count of the lesser offense of
attempted second-degree murder, and he was sentenced to
concurrent terms of thirty years of imprisonment, with a minimum
mandatory term of twenty years for the firearm. This appeal
followed.

                              ANALYSIS

   “Otherwise engaged in criminal activity” instruction

     An unpreserved error in a jury instruction may be reviewed
only for fundamental error. Olivera v. State, 58 So. 3d 352, 353
(Fla. 1st DCA 2011) (noting that jury instructions are subject to
the contemporaneous objection rule). An issue of fundamental
error is reviewed de novo, and an error is fundamental when it
reaches down into the validity of the trial to the extent that a guilty
verdict could not have been obtained without its assistance. Elliot
v. State, 49 So. 3d 269, 270 (Fla. 1st DCA 2010). In determining
whether a jury instruction constitutes fundamental error, we must
consider the effect of the erroneous instruction in the context of the
remaining instructions, the evidence adduced, and counsel’s
arguments and trial strategies. Hardison v. State, 138 So. 3d 1130,
1132 (Fla. 1st DCA 2014); see also Hunter v. State, 8 So. 3d 1052,

                                  8
1070 (Fla. 2008) (considering the totality of the circumstances in
determining whether the unpreserved error in the jury
instructions was fundamental). “[T]he fundamental error doctrine
‘should be applied only in rare cases where a jurisdictional error
appears or where the interests of justice present a compelling
demand for its application.’” Martinez v. State, 981 So. 2d 449, 455
(Fla. 2008) (citation omitted).

     A jury instruction involving an affirmative defense, instead of
an element of the crime, is fundamentally erroneous only where it
is so flawed as to deprive the defendant of a fair trial. Id. at 455-
57. A defendant is deprived of a fair trial if the error in the jury
instruction divests him of his sole or primary defense strategy and
the defense is supported by trial evidence that cannot be
characterized as weak. Id. (finding that the error in the forcible
felony instruction was not fundamental for two reasons: self-
defense was not the defendant’s only strategy, and his self-defense
claim was extremely weak); see also Hall v. State, 260 So. 3d 1152,
1153 (Fla. 1st DCA 2018) (explaining the same and concluding that
the failure to instruct the jury on the parental-discipline
affirmative defense did not constitute fundamental error because
“although Appellant’s sole defense was that the child’s injuries
occurred while Appellant was disciplining him, that defense was
extremely weak because there was no evidence that the child
committed any misbehavior that would arguably justify discipline.
Rather, the undisputed evidence showed that the child was given
a whipping for trying to prevent Appellant from hitting his mother
in the car.”); Day v. State, 119 So. 3d 485, 486-90 (Fla. 1st DCA
2013) (finding that the trial court did not fundamentally err in
failing to give the prescription defense despite it being the
appellant’s sole theory of defense because “[i]n contrast to our prior
opinions on this issue, Appellant’s defense was supported by
evidence that can only be characterized as weak and the prosecutor
did not make an egregiously, incorrect argument regarding this
defense”).

     The justifiable use of deadly force instruction that was given
in this case was the standard instruction in effect when Appellant’s
crimes were committed in 2016 and it contained the “otherwise
engaged in criminal activity” language and no direction for the


                                  9
trial court to define the alleged criminal activity. * See Fla. Std.
Jury Instr. (Crim.) 3.6(f); see also § 776.012(2), Fla. Stat. (2016) (“A


    * In 2018, the standard jury instruction on justifiable use of
deadly force was amended, whereby the underlined portions were
added:

    Give if applicable. §§ 776.012(2), 776.031(2), Fla. Stat.
    Defendant not in a dwelling or residence or defendant was
    in a dwelling or residence but had no right to be there.
    Where appropriate, the court should state or define the
    applicable criminal activity that the defendant may have
    been engaged in.

    (Defendant) was justified in [using] [or] [threatening to
    use] deadly force if [he] [she] reasonably believed that
    such [force] [or] [threat of force] was necessary to prevent
    [imminent death or great bodily harm to [himself]
    [herself] [or] [another] [or] [the imminent commission of
    (applicable forcible felony listed in § 776.08, Fla. Stat.)
    against [himself] [herself] [or another]]. If (defendant)
    was not otherwise engaged in criminal activity and was
    in a place [he] [she] had a right to be, then [he] [she] had
    no duty to retreat and had the right to stand [his] [her]
    ground.

         ....

    Give the paragraph below when there is evidence that the
    defendant was engaged in criminal activity or was not in
    a place where he or she had a right to be, which means
    there was a duty to retreat. Morgan v. State, 127 So. 3d
    708 (Fla. 5th DCA 2013). Where appropriate, the court
    should state or define the applicable criminal activity that
    the defendant may have been engaged in.

    If (defendant) was otherwise engaged in criminal activity
    or was not in a place [he] [she] had a right to be, then the
    [use] [or] [threatened use] of deadly force was not justified
    unless [he] [she] used every reasonable means within
    [his] [her] power and consistent with [his] [her] own
                                  10
person who uses or threatens to use deadly force in accordance
with this subsection does not have a duty to retreat and has the
right to stand his or her ground if the person using or threatening
to use the deadly force is not engaged in a criminal activity and is
in a place where he or she has a right to be.”).

     Appellant’s first argument on appeal is that the justifiable use
of deadly force instruction was fundamentally erroneous because
it included the “otherwise engaged in criminal activity” language,
but the jury was not instructed on the alleged criminal activity of
stalking. Appellant properly concedes that the alleged error was
not preserved. Appellant’s sole theory of defense was self-defense,


    safety to avoid the danger before resorting to the [use] [or]
    [threatened use] of deadly force. . . .

           ....

    If the evidence is in dispute about whether the defendant
    was in a dwelling or residence or whether the defendant
    had a right to be there or whether the defendant was
    engaged in criminal activity, the trial judge must craft a
    special instruction for the paragraph below.

    In deciding whether (defendant) was justified in the [use]
    [or] [threatened use] of deadly force, you must consider
    the circumstances by which [he] [she] was surrounded at
    the time the [force] [or] [threat of force] was used. . . .
    However, the defendant had no duty to retreat if [he]
    [she] was [not otherwise engaged in criminal activity and
    was in a place where [he] [she] had a right to be] [was in
    a dwelling or residence in which [he] [she] had a right to
    be].

Fla. Std. Jury Instr. (Crim.) 3.6(f). The amended instruction is to
be given “for crimes committed on or after July 1, 2017.” Id.; see
also In re Standard Jury Instructions in Criminal Cases-Report
2017-07, 257 So. 3d 908 (Fla. 2018). The amended instruction did
not apply in this case because the crimes were committed in 2016.



                                 11
but the evidence supporting that defense was weak. Appellant
provided testimony that was both internally inconsistent and
contradicted by the testimony of witnesses.            For example,
Appellant testified on direct examination that he was not trying to
hide from Wilson, he thought Bassett was Seven, and he could not
initially leave because he felt like Bassett forced him out of the car
and he had no other option. By contrast, Appellant testified on
cross-examination that he was trying to hide from Wilson, she had
told him that Seven was in jail for a long time, and he did not
initially leave because he was worried about Wilson. Appellant
also claimed that Bassett approached him and threatened him,
whereas Wilson testified that Bassett simply asked him to leave,
and both Wilson and Walsh testified that Appellant started
shooting after Wilson asked him to leave. Appellant further
asserted that he walked back to his car once Bassett fell and did
not try to shoot Wilson, but Wilson and Michael testified that after
shooting Bassett, Appellant advanced towards Wilson while
shooting at her. The only other witness Appellant presented was
Bedard, the self-defense expert, whose testimony was primarily
based on what Appellant had told him.

     Furthermore, although the State argued that Appellant was
engaged in the criminal activity of stalking, it did so only in
rebuttal to the defense’s argument that Appellant had no duty to
retreat; it did not misstate the law on self-defense or on the crime
of stalking, much less make an egregiously incorrect argument
about self-defense; and its primary argument was that Appellant’s
self-defense claim should be rejected because his testimony was
not credible and his claim was refuted by the evidence. As noted
above, the self-defense instruction the trial court gave was the
standard instruction in effect when Appellant’s crimes were
committed. See State v. Floyd, 186 So. 3d 1013, 1022 (Fla. 2016)
(noting that the standard jury instructions are presumed correct).
Based on the foregoing, we conclude that the alleged error in the
jury instruction does not rise to the level of fundamental error.

                      Aggressor instruction

     A trial court’s decision to give or withhold a jury instruction is
reviewed for an abuse of discretion. Thompson v. State, 257 So. 3d
573, 580 (Fla. 1st DCA 2018). The standard jury instruction on

                                  12
justifiable use of deadly force contains the following aggressor
instruction: “However, the [use] [or] [threatened use] of deadly
force is not justified if you find that (defendant) used [force] [or]
[the threat of force] to initially provoke the [use] [or] [threatened
use] of force against [himself] [herself], unless: . . . .” Fla. Std. Jury
Instr. (Crim.) 3.6(f); see also § 776.041, Fla. Stat. (2016) (“The
justification described in the preceding sections of this chapter is
not available to a person who . . . [i]nitially provokes the use or
threatened use of force against himself or herself, unless . . . .”).
“An initial aggressor instruction is proper when there is evidence
in the record that the defendant may have initially provoked the
use of force against himself.” Thompson, 257 So. 3d at 581 (citing
Johnson v. State, 65 So. 3d 1147 (Fla. 3d DCA 2011)); see also Fla.
Std. Jury Instr. (Crim.) 3.6(f) (stating that the aggressor
instruction is to be given “if applicable”).

      Appellant’s second claim of error on appeal is that the trial
court erred by giving the aggressor instruction over his objection
because it was not supported by the evidence. In so arguing,
Appellant relies exclusively on his testimony, ignoring the conflicts
in the evidence. For instance, while Appellant claimed that
Bassett looked angry and approached him as he was making a
threat, Wilson testified that Bassett was not upset about his
presence and they both asked him to leave. Walsh similarly
testified that she could hear Bassett talking and he was not yelling
and that she heard gunshots “literally right after” Wilson asked
Appellant to leave. Appellant further testified that when Bassett
fell to the ground, he ceased firing and returned to his car, but
Wilson and Michael both testified that he continued to shoot and
went after Wilson. Thus, the trial court did not err by giving the
aggressor instruction because there was record evidence that
Appellant may have initially provoked the use of force.

     Accordingly, we affirm Appellant’s convictions.

     AFFIRMED.

OSTERHAUS and M.K. THOMAS, JJ., 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.
               _____________________________


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

Ashley Moody, Attorney General, and Benjamin L. Hoffman,
Assistant Attorney General, Tallahassee, for Appellee.




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