Full Opinion

Third District Court of Appeal State of Florida Opinion filed February 12, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D18-1504 Lower Tribunal No. 14-21152A ________________ Alexander Pena, Appellant, vs. The State of Florida, Appellee. An Appeal from the Circuit Court for Miami-Dade County, Lisa S. Walsh, Judge. Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant. Ashley Moody, Attorney General, and Brian H. Zack, Assistant Attorney General, for appellee. Before FERNANDEZ, HENDON and GORDO, JJ. GORDO, J. Alexander Pena appeals the final judgment of conviction and sentence rendered following a jury trial. Pena and his co-defendant, Renell Demetrius Jones, were charged with and convicted of first-degree felony murder, burglary with an assault or battery, armed robbery, and conspiracy to commit armed robbery, in connection with the July 2, 2012, murder of Michel Lopez-Garcia. On appeal, Pena contends that the State’s case was entirely circumstantial and that there was insufficient evidence to withstand a motion for judgment of acquittal and to support the ultimate conviction. Pena also appeals the trial court’s admission of a text message exchange between Jones and Pena the day before the robbery and murder, arguing that it was irrelevant and highly prejudicial. We affirm, as we conclude the State presented sufficient direct evidence to overcome judgment of acquittal and the trial court did not abuse its discretion in admitting the relevant text messages. FACTS AND PROCEDURAL BACKGROUND Jones, who lived in Maryland, was visiting Miami and wanted to purchase marijuana to distribute. Prior to arriving in Miami, Jones contacted Pena to arrange the drug deal. Pena then called Lopez-Garcia, his friend and a marijuana dealer, and set up the drug deal. Lopez-Garcia told Pena that he would participate in the deal only if Pena was involved. 2 On June 25, 2012, over one week before the drug deal, Pena sent a text message to Jones stating, “I found how to post without having to pay.” 1 In the days that followed, Pena and his co-defendant discussed setting up the drug deal with Lopez-Garcia. On June 30, 2012, Pena advised Jones that he could “roll out” to Miami, as the drug deal had been fully arranged. The following day, July 1, 2012, Jones flew to Miami. Before his flight, Jones and Pena exchanged several text messages, and Jones asked Pena whether he knew where to get a taser. Pena responded “Ok. Yes.” On July 2, 2012, Jones and Pena rented a silver Chevrolet Impala from Enterprise Rent-A-Car in Hallandale, Florida. Throughout the day, Pena and Lopez- Garcia exchanged phone calls and text messages to coordinate the drug deal. At 4:30 PM, Lopez-Garcia called his girlfriend and informed her that Pena and someone else were coming over. During a police interview, Pena admitted that he personally drove the Impala to Lopez-Garcia’s house with Jones. Cell site information placed Pena in the vicinity of Lopez-Garcia’s home that afternoon. Home surveillance footage from one of Lopez-Garcia’s neighbors showed a silver car back into Lopez-Garcia’s driveway at 5:36 PM. The driver and 1 The text messages exchanged between Pena and Jones in the relevant time period dealt almost exclusively with planning and coordinating the details of the drug deal. 3 passenger exited the vehicle and entered the house. The same two figures are seen entering and exiting the house several times before leaving at 5:48 PM. After the two men left the house, Lopez-Garcia called his girlfriend and asked her to hurry home because “they” had beaten him up and taken everything. She testified that he sounded out of breath. Based on her prior conversation with Lopez- Garcia, his girlfriend interpreted “they” to mean Pena and the other person he was with. Lopez-Garcia then called 911 and told the operator “I’m dying they beat me up.” When asked if the individuals had weapons, Lopez-Garcia stated “yes, they hit me with everything.” He told the operator that two males were involved in the crime. Upon arrival at the scene, police found Lopez-Garcia suffering from several stab wounds, which resulted in his death shortly thereafter. Items were broken and furniture was out of place, evidencing a struggle. Police found a Ziploc bag with marijuana on the floor and learned that four pounds of marijuana had been stolen. No murder weapon was recovered. No DNA evidence matching Pena or Jones was found. Following the robbery and murder, Pena and Jones left Miami. They returned the rental vehicle to an Enterprise Rent-A-Car in Jacksonville, Florida, on July 3, 2012. They then rented a different vehicle and drove to Maryland. Pena’s phone did not receive service from July 3, 2012, to July 7, 2012, and he never again called or texted Lopez-Garcia’s cellphone. Over two years after Lopez-Garcia’s murder, 4 Pena returned to Miami and was interviewed by police on September 17, 2014. During the interview, Pena gave several conflicting iterations of what occurred on July 2, 2012. Prior to the commencement of trial, Pena sought to exclude Jones’s text message asking whether Pena knew where to get a taser. The message, Pena argued, was irrelevant and highly prejudicial because a taser was not ultimately used in the commission of the crime. The trial judge denied the motion in limine. The main issue at trial was whether Pena knew of the robbery ahead of time or learned of it after the fact. The defense posited that Pena learned of the robbery and murder for the first time after it had occurred. Pena alleged, without any corroboration, that Jones and a third individual known only as “R” had robbed and murdered Lopez-Garcia.2 At the conclusion of the State’s case, the defense moved for judgment of acquittal on the armed robbery and conspiracy counts arguing there was insufficient circumstantial evidence to rebut Pena’s reasonable hypothesis of innocence that he was unaware a robbery was to take place. The trial court denied the motion, finding that the video surveillance footage showing the driver of the vehicle entering the house was direct evidence. 2 During their investigation, detectives never found any text messages to or from “R” and they never encountered anyone by that name. When asked what tattoos “R” had, Pena described Jones’s tattoos. 5 The jury found Pena guilty of all crimes charged in the indictment, and the trial court sentenced him to life in prison. This appeal followed. STANDARD OF REVIEW “A motion for judgment of acquittal is reviewed de novo to determine whether the evidence is legally sufficient to support the jury’s verdict.” Jefferson v. State, 243 So. 3d 1014, 1017 (Fla. 3d DCA 2018) (citing Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002)). A motion for judgment of acquittal “test[s] the legal sufficiency of the evidence presented by the State.” Id. (citing State v. Rivera, 719 So. 2d 335, 337 (Fla. 5th DCA 1998)). Thus, in considering such a motion, “all evidence is viewed in the light most favorable to the State.” Id. (citing Irizarry v. State, 905 So. 2d 160, 165 (Fla. 3d DCA 2005)). “A trial court has wide discretion concerning the admissibility of evidence, and a ruling on admissibility will not be disturbed unless there has been an abuse of discretion.” Irving v. State, 627 So. 2d 92, 94 (Fla. 3d DCA 1993) (citing Jent v. State, 408 So. 2d 1024, 1029 (Fla. 1981)). “Discretion is abused only ‘when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable [person] would take the view adopted by the trial court.’” Trease v. State, 768 So. 2d 1050, 1053 n.2 (Fla. 2000) (quoting Huff v. State, 569 So. 2d 1247, 1249 (Fla. 1990)). 6 LEGAL ANALYSIS In order to prove that Pena was a principal to first-degree felony murder, the State was required to prove (1) that he intended the robbery to be committed, and (2) that he participated in the commission of the robbery. § 782.04(1)(a)(2)(d), Fla. Stat. (2012); Rocker v. State, 122 So. 3d 898, 902 (Fla. 2d DCA 2013) (citing McBride v. State, 7 So. 3d 1146, 1148 (Fla. 2d DCA 2009)). The State presented direct evidence both as to Pena’s intent and participation. Pena and Jones rented a silver Chevrolet Impala on the morning of Lopez- Garcia’s murder—the vehicle that police later identified as the vehicle parked in Lopez-Garcia’s driveway around the time of his murder. Pena admitted that he set up the drug deal with Lopez-Garcia and that he personally drove himself and Jones to Lopez-Garcia’s house in the rented car. Video surveillance shows the driver and passenger of the silver Impala exiting the vehicle and entering Lopez-Garcia’s house several times. In Lopez-Garcia’s final phone calls to his girlfriend and 911, he clearly states “they” beat him up and had taken everything. Furthermore, the text messages between Pena and Jones in the days preceding the robbery and murder evince an intent to rob him. Specifically, Pena told Jones that he “found how to post without having to pay” and they discussed obtaining a taser. Pena argues that the State’s case was purely circumstantial and failed to rebut his reasonable hypothesis of innocence that Jones acted independently in robbing 7 and stabbing Lopez-Garcia. The State’s case against Pena was not wholly circumstantial. A heightened standard of review “applies only where all of the evidence of a defendant’s guilt—i.e., the evidence tending to show that the defendant committed or participated in the crime—is circumstantial, not where any particular element of a crime is demonstrated exclusively by circumstantial evidence.” Knight v. State, 186 So. 3d 1005, 1010 (Fla. 2016). “Where the evidence of guilt is wholly circumstantial, . . . the evidence . . . must be inconsistent with any reasonable hypothesis of innocence proposed by the defendant.” Twilegar v. State, 42 So. 3d 177, 188 (Fla. 2010) (citing Pagan, 830 So. 2d at 803). “However, where one or more of the elements of the crime are proven by direct evidence, this heightened standard of review is not applicable.” Jenkins v. State, 1 So. 3d 317, 320 (Fla. 3d DCA 2009) (citing State v. Burrows, 940 So. 2d 1259, 1262 (Fla. 1st DCA 2006)). Given the State’s presentation of direct evidence and despite Pena’s contentions to the contrary, the special standard of review for wholly circumstantial cases does not apply here. Taking the facts in the light most favorable to the State, as this Court must, the State’s direct evidence was sufficient to deny Pena’s motion for judgment of acquittal. Turning to Pena’s second point, we find no abuse of discretion in the trial court allowing admission of the text message exchange with Jones regarding obtaining a taser for the drug deal. The messages were not, as Pena alleges, character 8 evidence. The text message from Jones and Pena’s affirmative response were relevant and highly probative to demonstrate their intent to rob Lopez-Garcia at the time of the arranged drug deal. Thus, we do not find the admission of the text messages to be “arbitrary, fanciful, or unreasonable.” See Trease, 768 So. 2d at 1053 n.2 (quoting Huff, 569 So. 2d at 1249). For the foregoing reasons, we affirm. Affirmed. 9