       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT
                              July Term 2014

                          ADRIAN L. HUNTER,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D12-1357

                           [October 15, 2014]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Karen Miller, Judge; L.T. Case No. 2009CF011625AXX.

  Andrew F. Rier and Daniel Tibbitt of Andrew Rier, P.A., Miami, for
appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers,
Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

   We affirm appellant’s convictions for battery of one victim and third-
degree felony murder of another, rejecting appellant’s claim that a jury
instruction on principals was fundamentally erroneous. Not only did
defense counsel affirmatively agree to the instruction, thus waiving any
error, see Martinez v. State, 98 So. 3d 1190 (Fla. 3d DCA 2012), but we
conclude that there was evidence to support the instruction.

   Appellant Hunter was called on the phone by his co-defendant,
Shanovia Mack, who was his cousin. She was angry with Valcourt, one of
the victims in this case, for having hit her earlier in the evening. She
wanted Hunter to help her confront and fight Valcourt. Other witnesses
testified that she said she wanted the victim “murked,” which is sometimes
a slang term for murdered. Hunter met with the co-defendant, Mack, and
brought his brother along. The three went to confront the victim, Valcourt.
Mack testified that she expected that they would beat up Valcourt.
Witnesses testified that the two men got out of the car, and the brother
confronted both victims, pistol-whipping one of them. During the pistol-
whipping, the gun discharged, killing Valcourt. Although the state
proceeded on the theory that the appellant was the person with the gun
who shot the victim, there was also sufficient evidence to support the
principal jury instruction in that appellant was responsible for bringing
his brother to the confrontation, and they all knew they were going to fight
the victim. Appellant claimed that the action of his brother in shooting
the victim was an independent act not expected or intended by him.

   Shavers v. State, 86 So. 3d 1218 (Fla. 2d DCA 2012), relied on by
appellant, is distinguishable. There, Shavers was charged with first degree
murder and first degree robbery for stealing cash from a drug dealer and
shooting him. The state’s theory was that Shavers shot the victim during
a robbery while a witness looked on. The state presented evidence that
Shavers had asked several people at a party to help him rob the victim but
no one agreed. At some point during the night, Shavers and the victim
were alone with a man named Peterson. Peterson claimed that he saw
Shavers shoot and rob the victim. There was evidence that Shavers and
another person, Bailey, went on a spending spree with the victim’s drug
money. At trial, Shaver’s theory was that Bailey shot the victim while
Peterson looked on, and Peterson misidentified Shavers as the shooter in
order to protect Bailey, who was Peterson’s childhood friend. Of most
relevance to this case, there was no evidence that Shavers acted in concert
with Bailey to commit the murder or to rob the victim. Thus, the principals
instruction, which was objected to, should not have been given. Id. at
1224.

   In contrast, in this case Hunter brought his brother to the scene, even
though Mack called only Hunter to assist her in confronting and fighting
the victim. Thus, at the very least they were intending to commit a battery.
Both men got out of the car to confront the victims. After the victim was
shot, both men ran and escaped the scene. It was for the jury to assess
whether the discharge of the brother’s firearm constituted an independent
act or a crime within the foreseeable consequences of the criminal conduct
set in motion. “Whether a defendant knows of a criminal act ahead of time
or physically participates in the crime, participation with another in a
common criminal scheme renders the defendant guilty of all crimes
committed in furtherance of that scheme.” Jackson v. State, 18 So. 3d
1016, 1026 (Fla. 2009).

   Given the facts of this case, there was no error in giving the principal
instruction. Appellant also alleges that the information failed to charge
him as a principal, but that claim is meritless, as the information does not
need to include such language. State v. Roby, 246 So. 2d 566, 571 (Fla.
1971).

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  For the foregoing reasons, we affirm appellant’s conviction.

CONNER and KLINGENSMITH, JJ., concur.

                          *        *         *

  Not final until disposition of timely filed motion for rehearing.




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