Denise Williams v. State of Florida

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-498 _____________________________ DENISE WILLIAMS, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Leon County. James C. Hankinson, Judge. March 31, 2021 ON MOTION FOR CLARIFICATION AND MOTION FOR REHEARING AND REHEARING EN BANC PER CURIAM. We deny the motion for clarification filed by Denise Williams and the motion for rehearing filed by the State. On our own motion, we withdraw our previously issued opinion and substitute the following in its place to clarify our analysis of why a judgment of acquittal should have been entered on the principal-to-murder charge. Denise Williams appeals her convictions for first-degree murder and conspiracy to commit murder, arising from the death of her husband, Mike Williams. She raises multiple grounds for reversal of her convictions, and she also challenges her sentence for first-degree murder. We write to address three of her arguments: (1) The trial court erred in denying her motion for judgment of acquittal on the charge of principal to first-degree murder; (2) The trial court erred in denying her motion for judgment of acquittal on the charge of conspiracy to commit murder; and (3) The trial court erred in denying her motion to compel the State to elect between two mutually exclusive charges. Because we agree that the evidence presented at trial could not support her conviction for first-degree murder as a principal, we reverse that conviction. Finding no merit in her other arguments on appeal, we affirm her conviction for conspiracy to commit murder. I. Facts In the early morning hours of December 16, 2000, Brian Winchester and Mike Williams met to go duck hunting at Lake Seminole, like they had so many times before. Only this time, Brian planned to murder Mike. Brian and Mike, along with their respective spouses, Kathy Winchester and Denise Williams, were lifelong friends that often socialized with each other. In 1997, Brian’s and Denise’s friendship evolved into a love affair, and they began to see each other regularly. As their relationship continued, they wanted to spend more time with each other. But Denise refused to divorce Mike, for fear of having to share custody of their child. Instead, according to the State’s theory of the case, Brian and Denise hatched a plan to kill Mike. This would allow them to be together and collect on Mike’s life insurance policy. Brian was the only witness who directly connected Denise to Mike’s murder. He explained that he and Denise started thinking of ways to be together about a year to a year and a half before Mike’s murder. Brian described their planning as “very mutual,” but he also admitted that he “instigated a lot of it.” They rejected several plans, including staging a robbery of Mike’s office, before deciding to make Mike’s death look like a hunting accident. Brian explained that he planned to fake an accident in which both Mike and he would fall into the water, but he would be the 2 only survivor. Brian asserted that Denise liked this particular idea because Mike’s survival then would be up to God and she could feel better about herself if it were more like an accident and less like a murder. For their plan to work, the trip had to occur during duck hunting season and before one of Mike’s life insurance policies lapsed. Denise also wanted the duck hunting trip to happen soon so she would not have to go on an anniversary trip with Mike. Initially, Brian and Denise chose December 9, 2000, as the date for the hunting trip, and Brian made plans with Mike to go hunting on that day. But the night before the trip, Mike called Brian to tell him that Denise would not let him go. Soon after, Brian talked to Denise, and she explained that she had gotten cold feet at the last minute. Brian recalled: [W]e talked about it and we had several, you know, more conversations that, you know, look, this is - - either we’re going to go forward with this or we’re not. I mean, we’re either going to be together or we’re not. You know, like I said, the policy is ending. You’ve got that anniversary trip coming up next weekend. You know, duck season is going to be ending soon. Do you want this to happen or not? You know, I don’t want to set these plans up if this isn’t something, you know - - this isn’t something that you need to be wishy-washy about, I guess, basically. Brian and Denise met several times over the next week to discuss what to do next. Brian testified that “it was decided again that, yes, this is what were [sic] gonna do.” The next week, Brian told Mike that he had a secret hunting spot and that Mike would need to bring his waders. They met at a parking lot and drove separate cars to Lake Seminole. Normally, Brian and Mike would have talked on the phone during the drive over to the lake. But Brian told Mike that his cell phone battery was dead. Brian was concerned that if Mike called, the police later would be able figure out from cell phone data that Brian had been with Mike that morning. 3  Brian persuaded Mike to put on his waders before getting into the boat. According to Brian, falling into the water with waders on could be dangerous and lead to drowning. Brian hoped that after he pushed Mike into the water, Mike’s waders would fill up with water, he would be unable to keep himself above the surface, and he would drown. When the two men arrived at a deep area of the lake in the boat, Brian indeed pushed Mike overboard. But Mike managed to remove his waders and swim over to a tree trunk, where he called out for help. Brian panicked and then loaded a gun he had brought with him on the boat. Brian circled the boat around Mike twice before shooting Mike in the head and killing him. Brian loaded Mike’s body into his truck, drove home, returned to bed with his wife to establish an alibi, and later drove to a secluded area near his home to bury Mike’s body. Brian testified that he did all of this on his own. Denise was not there for any of it, and she was not on the phone with Brian while he murdered Mike or disposed of the body. Brian later would join the search party trying to locate Mike. Authorities found Mike’s truck and boat trailer at the Lake Seminole boat launch. They also found his boat on the shore nearby. A few weeks after he went missing, searchers found Mike’s waders and jacket in the lake. Various search and rescue teams continued to search Lake Seminole for Mike until at least February 2001. While the search for Mike continued, and nineteen days after Mike’s disappearance, Denise filed claims for the life insurance money. In June 2001, she petitioned for Mike’s death certificate, which she obtained in July 2001. When asked about Denise’s participation in Mike’s murder, Brian explained that “Denise really didn’t have to do a whole lot, other than come up with an alibi for herself and make sure that Mike went.” After the murder, Brian and Denise had limited contact with each other to avoid arousing suspicion. Mike’s mother, Cheryl, urged newspapers and the police to continue the investigation into Mike’s disappearance. This led to two confrontations with Denise. The first confrontation, in August 2001, occurred after the local newspaper published an article about 4 missing locals that mentioned Mike. Denise screamed at Cheryl, saying she never wanted to hear Mike’s name again or see Mike’s picture in the paper because she had to “get on with her life.” Denise told Cheryl that if she persisted in trying to persuade the police to launch a criminal investigation, Cheryl would not be allowed to see her granddaughter. The second confrontation occurred in January 2005 when Brian and Denise came to Cheryl’s house. Denise told her if she stopped pushing for an investigation, Cheryl could see her granddaughter. Cheryl’s other son was present and told them that he and Cheryl just wanted to know what Brian and Denise had done to Mike. Brian and Denise became mad and left. After that visit, Denise did not allow Cheryl to see her granddaughter again. Brian separated from his wife almost a year after the murder, and they divorced in 2003. Two years later, Brian and Denise married. They were together for seven years before they separated. Denise filed for divorce in 2015. During the divorce proceedings, police officers told Brian that Denise planned to tell them what really happened to Mike once the divorce was completed. After Denise refused to answer his calls, Brian kidnapped her. He broke into Denise’s car and lay in wait until she got into the car to drive to work. He was armed with a gun. Denise persuaded him to let her go, and she contacted authorities. Brian was arrested for armed kidnapping and faced life in prison. He was also charged with trying to tamper with witnesses in the kidnapping case. About a week after Brian’s arrest for the kidnapping, Denise called Brian’s ex-wife, Kathy, and asked her to “tell [Brian’s father] to get a message to Brian that I’m not talking.” Kathy eventually started working as a confidential source for police and recorded phone conversations she had with Denise. In one conversation, Kathy pretended that Brian told her that “ya’ll planned it” and that Brian’s father told her to take that secret to the grave. Denise never refuted Kathy’s allegations and seemed more concerned about what Brian may have divulged. While Brian was in jail on the kidnapping charge, he entered a proffer agreement with the State. In exchange for his cooperation 5 in finding Mike’s body and telling the State what happened, the State agreed to not recommend a life sentence on the kidnapping charge 1 and not to reference the alleged witness tampering at sentencing. The State also agreed not to use any of Brian’s testimony against him in the future so long as the State determined such testimony was truthful. II. Analysis Of the issues raised by Denise on appeal, we first address her challenges to the sufficiency of the evidence to sustain her convictions. We then explain why we reject her contention that she is entitled to a new trial based on the trial court’s refusal to compel the State to elect which charge to put to the jury: principal to first- degree murder or accessory after-the-fact to murder. A. Sufficiency of the Evidence Denise argues that the trial court should have granted her motions for judgment of acquittal on the murder and conspiracy charges against her. In considering this argument, we do not reweigh conflicting evidence or retry the case; rather, we consider “whether, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial, competent evidence to support the verdict and judgment.” Tibbs v. State, 397 So. 2d 1120, 1123 (Fla. 1981), aff’d sub nom. Tibbs v. Florida, 457 U.S. 31 (1982) (internal notes omitted). We do not reverse on a sufficiency-of-the-evidence challenge unless, in consideration of that evidence “in the light most favorable to the State,” no “rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt.” Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002). For the reasons explained below, we agree that the State failed to establish a prima facie case that Denise acted as a principal to first-degree murder, and we reverse that conviction. But we hold that the trial court 1 The State requested a forty-five-year sentence. Before Denise’s trial, Brian was sentenced to twenty years’ imprisonment followed by fifteen years’ probation for the kidnapping. 6 properly denied the motion for judgment of acquittal on the conspiracy charge. 1. Principal to First-Degree Murder By statute, a person who “commits any criminal offense against the state,” and one who “aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed,” are both subject to the same charge, conviction, and punishment for the offense as a principal in the first degree. § 777.011, Fla. Stat. (2000). Denise argues that there was not competent, substantial evidence to support her conviction as a principal to first-degree murder. She asserts that we should interpret the statute as requiring proof of (1) an intent to commit the crime and (2) the commission of a physical act in furtherance of that intent. She contends that communication alone cannot support a conviction as a principal. To address this argument, we must examine what conduct this “principal” statute criminalizes. And to do that, we look to the original meaning of the statutory terms, which had been imported by the Legislature at the beginning of statehood from English common law dating back a hundred years or more. See Bostock v. Clayton County, 140 S. Ct. 1731, 1767 (2020) (Alito, J., dissenting) (noting that “when textualism is properly understood, it calls for an examination of the social context in which a statute was enacted because this may have an important bearing on what its words were understood to mean at the time of enactment”). Rather than simply “slicing” up the statute into pieces and defining each word individually and abstractly, we consider how the terms and phrases in the statute would have been understood together in the context of the epoch during which they were first included in the statute. Id. at 1766– 67 (collecting scholarship on how the meaning of text derives from the use of words and phrases by a particular shared linguistic community within the appropriate social and linguistic context). Denise’s reading of the statute, as it turns out, runs contrary to that original meaning. Nonetheless, under the original meaning of the terms, Denise is correct that the State did not present sufficient evidence to make a prima facie case for conviction under the statute. 7  Section 777.011 represents a combination of three historically separate forms of criminal offense; they find their origins in ancient English common law. The forms were as follows: (1) principal in the first degree; (2) principal in the second degree; and (3) accessory before the fact. See Potts v. State, 430 So. 2d 900, 901 & nn.2–3 (Fla. 1982); see also id. (tracing section 777.011 back to language in earlier laws). A principal in the first degree historically was the absolute perpetrator of the crime, the one we typically would consider as having committed the crime. See id. at 901 (defining this principal as the one “who actually committed the offense”). Here, that would be Brian, who shot and killed Mike. By way of comparison, a principal in the second degree historically was at a remove from the absolute perpetrator; this person was “actually or constructively at the scene of the crime and aided or abetted in its commission.” Id. As a matter of ancient common law, there had been both a physical component and a temporal component to being a second-degree principal. That is, to be this type of principal, a person would have to be physically with or nearby the primary perpetrator (presence) and actively assisting, directing, or encouraging the primary perpetrator (i.e., aiding or abetting) as the crime is being committed (contemporaneity). Cf. 4 WILLIAM BLACKSTONE, COMMENTARIES *34 (hereinafter, Blackstone, Commentaries) (explaining that the second-degree principal is “present, aiding and abetting the fact to be done”); Montague v. State, 17 Fla. 662, 665 (1880) (noting that such a principal had to be “present, aiding and abetting at the commission of the act”); Kauz v. State, 124 So. 177, 178 (Fla. 1929) (“A principal in the second degree is one who is present aiding and abetting at the commission of a felony.”); State v. Lowery, 419 So. 2d 621, 623 (1982) (defining a second-degree principal as a “person who does not commit the crime with his own hands but is present, aiding and abetting the actual perpetrator”). To be sure, the special terms “aid” and “abet” captured the culpable conduct that would make a defendant punishable as a principal. We know from the above-referenced English common law and early supreme court decisions that there was an immediacy (i.e., a temporal proximity) to the nature of this criminal assistance—the person had to have actively participated in the offense while it was being committed by working together 8 with the absolute perpetrator. See Neumann v. State, 156 So. 237, 239 (Fla. 1934) (defining second-degree principal as “being present, aiding and abetting the commission of the felony at the time it is perpetrated” (emphasis supplied)); Staten v. State, 519 So. 2d 622, 624 (Fla. 1988) (explaining that “to be guilty as a principal for a crime physically committed by another, one must intend that the crime be committed and do some act to assist the other person in actually committing the crime” (emphasis supplied)). Significantly, the immediacy, or contemporaneity, historically inherent in the terms “aid” and “abet” would not have captured typical conspiracy conduct—that is, the mere planning or scheming together to commit a crime in the future. The otherwise culpable conduct of aiding or abetting, however, could not subject a defendant to punishment as a principal unless that conduct combined with physical proximity. In other words, at common law, if a person was not at the scene, or at least nearby, then she could not be punished as a principal. Cf. 4 Blackstone, Commentaries *36–37 (noting that absence is necessary for someone to be an accessory, because otherwise, presence would make the person a principal); Kauz, 124 So. at 178 (“The question of presence, actual or constructive, is the determinative factor between an accessory before the fact and a principal in the second degree.”); Neumann, 156 So. at 239 (holding that information was defective because it was unclear on whether “it was intended to charge the defendant [] with being present as a principal in the second degree, or as being absent but guilty as an accessory before the fact”). “Presence” did not have to “be an actual immediate standing by, within sight or hearing of the fact; [] there [could also be] a constructive presence, as when one commits a robbery or murder, and another keeps watch or guard at some convenient distance.” 4 Blackstone, Commentaries *34; cf. Henderson v. State, 70 So. 2d 358, 359 (Fla. 1954) (explaining that a principal to a robbery need not to have been actually present “provided the aider, pursuant to a previous understanding, is sufficiently near and so situated as to abet or encourage, or to render assistance to, the actual perpetrator in committing the felonious act or in escaping after its 9 commission” (emphasis supplied)); 2 Staten, 519 So. 2d at 624 (holding that driver who waited outside during fatal robbery and then drove his cohorts away as planned was a principal to the crimes); Enmund v. State, 399 So. 2d 1362, 1370 (Fla. 1981) (holding that evidence showing that the defendant was in a car “near the scene of the” robbery, “waiting to help the robbers escape with the [] money,” supported a conviction as a second-degree principal, “constructively present aiding and abetting the commission of the crime of robbery”). This overview shows us that physical proximity to the crime is an ancient judicial construct overlaid upon (rather than inherent in) the terms “aid” and “abet.” So, for a person to be principal in the second degree at common law, she must assist (“aid”) or encourage (“abet”) the actual perpetrator during the commission of the crime, but she also must be at or nearby the scene. It is worth noting here that there is significant overlap between the type of conduct that could constitute abetting and what could constitute promoting or inciting. In any event, if the conduct occurred in physical proximity to the actual crime, the defendant would be a second-degree principal; if not, the defendant would be an accessory before the fact, which we turn to next. Cf. 4 Blackstone, Commentaries *36–37 (explaining that a “procurer” of a crime, who otherwise would be an accessory before the fact, would become a principal if the person were “present” and, ostensibly, abetting); cf. Abet, BLACK’S LAW DICTIONARY (6th ed. 1990) (“To encourage, incite, or set another on to commit a crime.”). 2 A year after its decision in Henderson, the supreme court explained how a person helping with the escape following the robbery is still aiding in the perpetration of the crime as a principal. See Hornbeck v. State, 77 So. 2d 876, 879 (Fla. 1955). The robbery “is not confined to a fixed locus, but is frequently spread over considerable distance and varying periods of time,” such that the getaway with the otherwise “scrambling possession” of the “plunder” to a safer location “necessarily is as important to the execution of the plan as gaining possession of the property.” Id. (internal quotation and citation omitted). 10  Accessory before the fact was at yet another remove from the absolute perpetrator. As we just noted, this person could not be a principal of a crime because, historically, she would have been “absent at the time of the commission of a felony.” Neumann, 156 So. at 239; Kauz, 124 So. at 178. But there was more to it than just lack of physical proximity to the scene of the crime. See Potts, 430 So. 2d at 901 (explaining that “the accessory before the fact was treated quite differently” from principals in the first and second degree); Neumann, 156 So. at 239 (noting “clear and marked distinction between a principal in the second degree and an accessory before the fact”). There also was a lack of temporal proximity (i.e., contemporaneity) that distinguished a principal from an accessory. This accessory before the fact was “absent at the time of the commission of a felony,” but “beforehand counseled, hired, or otherwise procured the perpetrator to commit it.” Neumann, 156 So. at 239 (emphasis supplied). The terms typically used in Florida’s common law to capture this aspect of participation were “procure,” “counsel,” “command,” “abet,” and “hired.” See id.; Kauz, 124 So. at 178. These terms, though, date back much further. Those terms were endemic to the ancient English common law, also in reference to the accessory before the fact. See, e.g., The Case of Macdaniel (1792) 168 Eng. Rep. 60, 62; Foster 121, 125; R v. Bernard (1860) 175 Eng. Rep. 709, 710; 1 Foster and Finlason 240, 242 (defining an accessory before the fact as a person “who, being absent at the time of the offence committed, doth yet procure, counsel, command or abet another to commit a felony”); 4 Blackstone, Commentaries *36. Blackstone and the ancient cases routinely used the terms “counsel,” “hire,” and “procure,” together with terms like “command” and “advise.” Words grouped like this would have related meanings, so “counsel” and “advise” in the ancient context no doubt meant something more specific, closer to the meaning of “command,” “hire,” and “procure.” That is, “counsel” and “advise” in this context would have taken on a meaning similar to “abet.” In turn, based on the originally understood meaning of those terms, an accessory before the fact was the instigator, the promotor, the goader, or the push behind the crime—the one who, from afar and prior to the commission of the offense, set or kept everything in motion. 11  Blackstone went on to illustrate what was meant by terms like these, as follows: “If A then advises 3 B to kill another, and B does it in the absence of A, now B is principal, and A is accessory in the murder.” 4 Blackstone, Commentaries *37; see also id. (referring to an accessory before the fact as one who “commands or counsels another to commit an unlawful act”). Historically, then, for a person to be culpable as an accessory before the fact—that is, absent from the scene and not actively participating at the time the crime was committed—she would have had to have done more than simply provide some assistance in advance. Cf. Bernard, 175 Eng. Rep. at 710 (explaining that a crime being accomplished by a principal in “strict conformity with the plans and instructions of the accessory” is key to the accessory’s culpability as such). More to the point here, the terms “counsel,” “hire,” and “procure” historically would not have included the mere agreement to commit an offense or the mere scheming with someone else to commit an offense in the future, because that was not the type of conduct that would have made someone an accessory before the fact (although presumably it would have made someone a conspirator). This classification of accessory before the fact had significance in England when the punishment for any felony was death and jurists applied equity “to shield the accessories from prosecution in certain instances.” Potts, 430 So. 2d at 901; see id. (identifying as one rule the prohibition of an accessory from being “convicted without the prior conviction of the principal offender”). Since the early days of statehood, Florida has had a statute on the books to ensure that an accessory before the fact nonetheless would be treated as a principal. See ch. 1637, subch. 11, §§ 3–4, Laws of Fla. (1868); Rev. Gen. Stat. 5007–5008, at 2488–89 (1920) (requiring that an “accessory before the fact,” who “counsels, hires or otherwise procures a felony to be committed,” be punished as if she were the “principal felon”); cf. Potts, 430 So. 2d at 901 (discussing 3 Use of the term “advises” here illustrates a point made in the preceding paragraph. Advising someone “to kill another” connotes a role as a protagonist to do the conduct, rather than as a mere advisor about conduct. The term “counsel” in this context has the same or similar connotation. 12 efforts by legislative bodies in England and United States “to overcome these judge-made rules and permit the trial and conviction of accessories before the fact independent of their principals”). We explained above that the use of special terms like “aid” and “abet” (essentially to refer to conduct particular to a second-degree principal) was not an accident; and we know from our review of the old common law that neither was the preservation in statute of the terms “counsels,” “hires,” and “procures.” Indeed, the use of these terms in the early statute did not “do away with the common-law distinction between principals in the second degree and accessories before the fact, but merely [] provide[d] for the punishment of each of them in like manner as the principal felon is provided to be punished.” Neumann, 156 So. at 239. Even though the statutes using these terms already directed that punishment be the same for principals and accessories, courts continued to treat accessories before the fact differently. Potts, 430 So. 2d at 901 (observing that courts “continued to draw the line between the principal in the second degree and the accessory before the fact”); see, e.g., Kauz, 124 So. at 178–79 (reversing conviction because presence was a “vital element of distinction [that] must be plainly charged” in a second-degree principal prosecution, because in an accessory- before-the-fact, common-law prosecution, “the conviction of the principal is an essential prerequisite to a judgment of guilt against such accessory”); Neumann, 156 So. at 239–40 (same). In 1957 the Legislature attempted “to clear up this growing problem of distinguishing between the accessories and principals” by combining these different concepts of criminal liability into a single statute that later became what is the current version of section 777.011. Potts, 430 So. 2d at 902; see ch. 57-310, §§ 1–2, at 608, Laws of Fla.; § 776.011, Fla. Stat. (1957). The Legislature created a new statute that pulled the essential terms for describing a second-degree principal and an accessory before the fact from two existing statutes that it repealed. Compare § 776.01, Fla. Stat. (1955) (providing that one who “aids in the commission of a felony,” and one who is an accessory before the fact, would both be punished as a “principal felon” (emphasis supplied)); § 776.02, Fla. Stat. (1955) (providing that a person who “counsels, hires or otherwise procures a felony to be committed” could be charged and 13 convicted as an accessory before the fact), with ch. 57-310, §§ 1–2, at 608, Laws of Fla. (repealing sections 776.01 and 776.02, Florida Statutes (1955), and combining the terms into one statutory grouping: “aids, abets, counsels, hires, or otherwise procures”). The Legislature did so with the express purpose of eliminating the distinction between accessory before the fact and principal (both first and second degree) for charging, conviction, and punishment purposes. See ch. 57-310, at 608, Laws of Fla. (stating that “the legal distinctions between accessory before the fact, principal in the first degree and principal in the second degree serve no useful purpose”). To further address that “growing problem” mentioned in Potts (of courts making consequential distinctions between principals in the second degree and accessories before the fact based on “presence”), as seen in cases like Kauz and Neumann, the Legislature added language to the newly combined statute that precluded the need for a principal to be “actually or constructively present at the commission of the offense.” Ch. 57-310, § 1 at 608, Laws of Fla.; see § 777.011, Fla. Stat. This addition, especially when considered together with the retention by the Legislature of the ancient terms that had been used to reference a second-degree principal (“aids” and “abets”) and an accessory before the fact (“counsels, hires, or otherwise procures”) since the beginning of statehood, makes clear that the point of the 1957 law was simply to eliminate this “distinction between principals in the first or second degree on the one hand and accessories before the fact on the other.” Enmund, 399 So. 2d at 1369; cf. Staten, 519 So. 2d at 626 & n.3 (describing statute as eliminating common-law distinctions insofar as “the terms ‘principal’ and ‘accessory’ merely expressed the relation of the party to the crime”). Because the ancient terms were carried forward in toto from the original statute through to the new statute, there is no indication that the Legislature intended those terms to take on any then-newer meaning from 1957 or any meaning that differed from how those terms originally were understood. Thus, we consider and apply them with their retained original meaning. Chapter 57-310, Laws of Florida, then, carried forward, into one statute, the three distinct ways that one can be found equally 14 culpable for a crime in this state, albeit now notwithstanding the accessory’s absence from the scene, as follows: Whoever [1] commits any criminal offense against the state . . . or [2] aids, abets, [or 3] counsels, hires, or otherwise procures such offense to be committed . . . is a principal in the first degree . . . . § 777.011, Fla. Stat. The first way is the historical first-degree principal; the second identifies the historical second-degree principal; and the third describes the historical accessory before the fact. The legislative intent was to capture all three of these now-obsolete categories under a singular first-degree principal rubric, such that regardless of the category, the charging and punishment paradigm is the same. See State v. Dene, 533 So. 2d 265, 267 (Fla. 1988) (observing that the effect of the 1957 law was to combine the traditional definitions of the three categories “within the statutory definition of principal in the first degree”). However, the historical terms remain, and the State still must prove that a defendant engaged in conduct that is covered by one of these special terms, each of which continues to hold the meaning as originally understood when it described a particular type of criminal involvement. “Aids” and “abets,” as those terms continue to be used in the statute, retain their historical contemporaneity component (i.e., temporal immediacy) from its application to the second-degree principal classification, even while that classification (with its commensurate presence requirement) has dropped out. See generally Garzon v. State, 980 So. 2d 1038, 1039 (Fla. 2008) (discussing with approval a “principals instruction” given to a jury in the context of a case where the primary issue in dispute was whether the defendant was the person on the other end of a thirty- nine-minute phone call with the perpetrators of a home-invasion robbery, providing “instructions or guidance in executing the crimes”). “Counsels,” “hires,” and “procures” likewise retain their historical meaning to capture the “pre-offense,” instigating and promoting nature of an accessory before the fact. Cf. Dene, 533 So. 2d at 266 (holding that a defendant was a principal, even though she was not at the scene of the robbery of an elderly woman for whom she was the housekeeper and companion, where she had 15 “concocted a plan” by which her daughter and another would commit the offense); id. at 269 (discussing Lowery decision, and explaining that a defendant who “planned to rob an acquaintance,” “enlisted a cofelon to carry out the actual robbery,” and “provided the cofelon with a gun and stage-managed the crime” was a principal, even though he was not present at the crime scene). We highlight again that none of these terms historically included the conduct that would typically constitute a conspiracy (which was a different crime)—agreeing or scheming to commit a crime in the future. The combination of these terms into one statute did not expand the meaning of any of them to include such conduct, and we do not consider any of the terms to include that conduct here. With all of this in mind, Denise’s focus on distinguishing between acts and words is misplaced. Words alone could constitute criminal conduct within the terms of the statute. Words can be used to encourage, incite, procure, and even assist. See R v. John Royce (1784) 98 Eng. Rep. 81, 86–87; 4 Burr. 2073, 2082–84 (holding that a defendant was properly convicted as a principal in the second degree for being present at an ongoing crime and shouting and using words of incitement, which constitute abetting). We again look to Garzon, where the supreme court explained that “[i]f the law of principals applied, the jury could in fact convict Garzon based on [the other perpetrator’s] actions, provided Garzon had a conscious intent that the criminal acts be done and that Garzon did or said something to aid or encourage those acts.” 980 So. 2d at 1041 (emphasis supplied). This court previously has reached the same conclusion, explaining that a principal conviction may rest on “some act” or “some word which was intended to and which did incite, cause, encourage, assist, or advise the other person or persons to actually commit or attempt to commit the crime.” Grandison v. State, 160 So. 3d 90, 93–94 (Fla. 1st DCA 2015) (quoting Hall v. State, 100 So. 3d 288, 289 (Fla. 4th DCA 2012)). For these reasons, we reject the argument that a defendant may not be found guilty as a principal based solely on communications. Still, Denise is correct that the State failed to produce competent, substantial evidence to make out a prima facie case that she was a principal to murder. Her only ostensibly culpable conduct, as demonstrated by the evidence (e.g., consideration of 16 ways to kill Mike, development of an alibi, agreeing to encourage Mike to go hunting with Brian), did not constitute commanding or impelling Brian to commit the murder (the equivalent of accessory before the fact) or the assisting or encouraging of Brian as the scheme to murder Mike unfolded (the equivalent of second-degree principal). The State did not present any evidence of conduct by Denise that could meet the meaning of any of the terms in section 777.011. For instance, missing at trial was any evidence that Denise counseled, hired, or procured Brian to murder Mike, as those terms originally were understood to mean. This is to say, no evidence showed that Denise was the initiating, instigating, promoting, driving, or encouraging force behind the murder, or that she enlisted Brian to commit the murder or “stage-managed” him as he executed the plan. Cf. Dene, 533 So. 2d at 269–70; Ehrlich v. State, 742 So. 2d 447, 449–51 (Fla. 4th DCA 1999) (en banc) (affirming defendant’s convictions as a principal to two counts of second-degree murder and two counts of attempted second-degree murder, even though she was not present during the commission of the crimes, when she was the one that passed along the instruction to kill the victim). While Brian characterized the planning of the murder as “very mutual,” he also stated that he “planned a lot of it” and that he “instigated a lot of it.” Brian never testified about anything Denise did or said to incite or encourage him to commit the murder. Certainly, there was no evidence that Denise “concocted” the plan or “enlisted” Brian to murder Mike. Brian’s testimony that Denise mostly agreed with the idea of killing Mike is relevant to the conspiracy charge, as we will discuss further below. However, it does not prove that Denise was the instigating or moving force behind the murder. Notably, Denise at one point was getting cold feet about the idea, and Brian had to encourage her to be on board before he would move forward. Also missing at trial was any evidence that Denise aided or abetted Brian in the actual commission of Mike’s murder, as those terms originally were understood to mean. In fact, when asked about the steps taken before Mike’s death, Brian explained that “Denise really didn’t have to do a whole lot, other than come up with an alibi for herself and make sure that Mike went.” That testimony explained what the plan was. There was no direct or 17 indirect evidence, however, as to what, if anything, Denise actually did the day of the murder “to assist [Brian] in actually committing the crime.” Staten, 519 So. 2d at 624 (emphasis supplied). Even taking a broader view of the murder of Mike—the scheme that preceded his death, whereby Denise was to make sure Mike went on the trip with Brian—there was no evidence regarding what she did (rather than what she was supposed to do) in furtherance of the scheme that day. Cf. Terry v. State, 668 So. 2d 954, 965 (Fla. 1996) (holding that there was sufficient evidence to support conviction as principal to aggravated assault because the defendant “assisted by providing the handgun” used in the crime). As we have explained, proof of the conspiracy alone is not enough. Agreeing with someone to commit a crime or developing a criminal scheme with someone else, by itself, does not establish th