Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-715 _____________________________ ALTO DANIELS, JR., Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Duval County. Meredith Charbula, Judge. March 16, 2021 ROWE, J. Alto Daniels Jr. appeals his convictions and sentences for attempted second-degree murder, attempted first-degree murder, and shooting or throwing deadly missiles. We agree with appointed counsel that no arguable issues appear on the face of the record and affirm. See Anders v. California, 386 U.S. 738 (1967). We write to address seven issues identified by counsel as potential errors. Facts A week before Thanksgiving, Daniels went shopping to buy a turkey. When he returned home, Daniels and his wife, L.D., argued over the best way to cook the turkey. Daniels wanted to fry the turkey, but L.D. wanted to roast it. As L.D. walked away from the argument, Daniels became angry and yelled at her. L.D. locked herself in the bathroom when Daniels started following her. But when she opened the door, Daniels was waiting outside. He grabbed L.D. by her wrists, dragged her into the kitchen, called her foul names, and taunted L.D. about her hearing impairment. When L.D. asked Daniels to let her go, he asked her where she wanted to be buried because she was dead. L.D. repeated the words to him because she could not believe what she had heard. Daniels then shoved L.D. to the floor. He punched her in the face and then kicked her in the head. Daniels was wearing motorcycle boots at the time, and L.D.’s head began to bleed. It was then that L.D. saw that Daniels had a gun in his hand. He shot L.D. in the chest. Daniels sat down, and L.D. managed to escape to her neighbor’s front porch. L.D. collapsed after telling her neighbor what happened. Soon after her neighbor called 911, he heard gunshots coming from the cul-de-sac on the street behind his house, Humberside Lane. One of the residents on Humberside Lane was D.G., who lived with his fiancée and three children. As D.G. was leaving his home he saw a man, later identified as Daniels, leaning against one of D.G.’s cars. D.G. repeatedly asked Daniels who he was and what he was doing, but Daniels never responded. When D.G. turned to walk back inside, Daniels said, “if you go into the house, I’m going to shoot you.” But D.G., concerned for the safety of his family, reentered the home. D.G. thought Daniels’ speech was “real slurred” so he assumed the man was drunk or heavily medicated. But moments after reentering his home, D.G. heard a pop. He then heard someone trying to open his front door. Moments later, a gunshot ripped through a window in D.G.’s front door. D.G. and his fiancée turned off all the lights in the house and moved the children into the laundry room. D.G.’s fiancée called 911, while Daniels kept trying to enter the home through the front door and then shot out the front window. D.G. heard multiple shots fired, but lost count after six or seven. Eventually, Daniels gave up and walked away. But as he was walking down Humberside Lane, Daniels encountered two police officers. One of the officers saw a handgun in Daniels’ possession and commanded him to stop. The officer then took Daniels into custody. 2 Meanwhile, L.D. was taken to UF Shands Hospital, where she remained for thirteen days. She suffered multiple injuries including two broken ribs, a broken sternum, a collapsed right lung, and a lacerated left lung. The State charged Daniels with attempted first-degree murder of L.D., felony battery of L.D., attempted first-degree murder of D.G., and shooting or throwing deadly missiles into D.G.’s home. Along with the testimony of the victims and witnesses, the State presented the testimony of a firearms analyst. He explained that the gun Daniels was carrying when he encountered the police fired the casings and bullets recovered during the investigation. The defense presented Daniels’ testimony to support his defense of involuntary intoxication. Daniels stated that he took Diazepam for anxiety. On the day of the confrontation, he believed that he took his medication as prescribed. But he admitted that he also had “a drink.” Daniels claimed that his doctor told him it was okay to drink alcohol while taking Diazepam. He testified that he recalled making a sandwich when he returned from his trip to the grocery store. But Daniels claimed he did not remember arguing with his wife. In fact after making the sandwich, his next memory was waking up in the back of a police car. Daniels maintained that he did not intend to shoot his wife. In rebuttal, the State presented the testimony of the officer that interviewed Daniels after his arrest. The officer explained that Daniels reported buying bourbon and vodka when he left the house that day and that he had a drink in a parking lot before returning home. Daniels also told the officer that he had been drinking all day on an empty stomach. The jury found Daniels guilty of attempted second-degree murder of L.D., attempted first-degree murder of D.G., and shooting or throwing deadly missiles into D.G.’s house. The jury found him not guilty of battery of L.D. The trial court sentenced Daniels to consecutive prison terms of thirty years for attempted second-degree murder, forty years for 3 attempted first-degree murder, and twelve years for shooting or throwing deadly missiles. The court also imposed a thirty-year mandatory-minimum term for possession of a firearm in count one and a consecutive twenty-year mandatory-minimum term for possession of a firearm in count three. This timely appeal follows. Analysis Daniels’ appointed counsel is unable to present any good-faith assertion of reversible error. But he identified seven judicial acts for this Court to review for potential error. We address each in turn. First, counsel identifies as potential error the trial court’s denial of Daniels’ motion for judgment of acquittal on all counts. We review a trial court’s denial of a motion for judgment of acquittal de novo. See Moran v. State, 278 So. 3d 905, 908 (Fla. 1st DCA 2019). If there is competent, substantial evidence to establish every element of the crime, then judgment of acquittal is improper. Bush v. State, 295 So. 3d 179, 200 (Fla. 2020). When reviewing a ruling on a motion for judgment of acquittal, the evidence must be construed in the light most favorable to the State. Id. In count one, the State charged Daniels with attempted first- degree murder of L.D. In count three, the State charged Daniels with attempted first-degree murder of D.G. Defense counsel argued that both charges should have been dismissed because there was insufficient evidence of premeditation. “Premeditation is a fully-formed conscious purpose to kill, which exists in the mind of the perpetrator for a sufficient length of time to permit reflection.” Ford v. State, 267 So. 3d 1070, 1075 (Fla. 1st DCA 2019). It can form in a moment and need exist only “for such time as will allow the accused to be conscious of the nature of the act he is about to commit and the probable result of that act.” Id. (quoting DeAngelo v. State, 616 So. 2d 440, 441 (Fla. 1993)). There was competent, substantial evidence of premeditation to support both murder charges going to the jury. On count one, Daniels asked L.D. where she wanted to be buried because she was dead. He asked L.D. this question while beating her and before he retrieved his gun to shoot her. On count three, Daniels warned 4 D.G. that if he went back inside his home, then Daniels would shoot him. Moments later, Daniels fired shots into D.G.’s home. Both statements show that Daniels reflected on his actions before pulling the trigger. There was also competent, substantial evidence on the felony battery charge. L.D. testified that Daniels repeatedly punched her and kicked her in the head before he shot her. And there was competent, substantial evidence to support the charge of shooting missiles into a building. D.G. identified Daniels as the man that threatened to shoot him. And the State presented evidence to establish that Daniels’ handgun fired the bullets recovered from D.G.’s house. Thus, the trial court properly denied the motion for judgment of acquittal. Next, counsel suggests that this Court consider whether the trial court erred in denying Daniels’ motion for new trial. We review the trial court’s ruling for an abuse of discretion. Franklin v. State, 286 So. 3d 962, 965 (Fla. 1st DCA 2020). Florida Rule of Criminal Procedure 3.600(a)(2) provides that a new trial should be granted when the verdict is contrary to the law or the weight of the evidence. In determining whether to grant a new trial motion, the trial court must act, in effect, as an additional juror and consider the weight of the evidence to “see whether a greater amount of credible evidence supports one side over the other.” Franklin, 286 So. 3d at 965. Here, the trial court emphasized that it acted as another juror when it considered whether the jury’s verdict was contrary to the weight of the evidence. Thus, the court used the correct standard to consider this claim. And a review of the record shows that the trial court did not abuse its discretion when it determined that a greater amount of credible evidence pointed to Daniels’ guilt. The third potential error identified by counsel also stems from the court’s ruling on the new trial motion. But this argument depends on a different ground. Daniels argued that the trial court incorrectly instructed the jury that the State charged Daniels with felony battery. Before jury selection, the court told the jury that Daniels was charged with felony battery. But then the trial court immediately corrected itself and confirmed that Daniels had been 5 charged with domestic battery. When the trial court informed the potential jurors of the elements of the offense, it called the charge domestic battery. The trial court called the charge felony battery only once. Daniels cannot show that this isolated reference caused reversible error requiring a new trial—particularly because the jury acquitted him on the battery charge. Thus, the trial court did not err when it denied the motion for new trial on this ground. Counsel’s fourth, fifth, and sixth claims of potential error relate to Daniels’ request for a jury instruction on involuntary intoxication. Counsel suggests that the trial court may have erred when it instructed the jury that the involuntary intoxication defense did not apply to the lesser-included offenses of the first- degree murder charges. Next, counsel questions whether the trial court erred when it allowed the State to argue that the involuntary intoxication defense did not apply to the lesser-included offenses. And then, counsel suggests that the court may have erred when it prevented defense counsel from arguing in closing that if the jury found Daniels was involuntarily intoxicated, then it had to find Daniels not guilty of counts one and three. Each of these claims of potential error lack merit. The Legislature abolished the defense of voluntary intoxication when it enacted section 775.051, Florida Statutes. Even so, evidence of a defendant’s involuntary intoxication is admissible to show that he could not form the specific intent to commit a crime. See § 775.051, Fla. Stat. (2015); In re: Std. Jury Instructions in Crim. Cases—Report 2018–13, 272 So. 3d 1210, 1214–15 (Fla. 2019); Fla. Std. Jury Instr. (Crim.) 3.6(e)(1). The defendant must show that he “unexpectedly bec[ame] intoxicated by prescribed medication that [wa]s taken in a lawful manner.” Jacobson v. State, 171 So. 3d 188, 190 (Fla. 4th DCA 2015) (quoting Montero v. State, 996 So. 2d 888, 891 (Fla. 4th DCA 2008)). Still, evidence of involuntary intoxication is admissible only to negate the intent required for specific intent crimes. See Patton v. State, 784 So. 2d 380, 387 (Fla. 2000) (explaining that evidence of involuntary intoxication can negate the intent needed for specific intent crimes); Cobb v. State, 884 So. 2d 437, 438 (Fla. 1st DCA 2004) (observing that evidence of a defendant’s intoxication is limited “to those circumstances where the defendant’s lack of specific intent or insanity is attributable to the use of a 6 prescription medication ‘pursuant to a lawful prescription’”) (citations omitted). Attempted second-degree murder and attempted manslaughter by act are both lesser-included offenses of counts one and three. Both offenses are general intent crimes. See State v. Brady, 745 So. 2d 954, 957 (Fla. 1999) (holding that attempted second-degree murder is a general intent crime); Montgomery v. State, 70 So. 3d 603, 606 (Fla. 1st DCA 2009) (holding that attempted manslaughter is a general intent crime). Count one also included a lesser-included offense of simple battery for intentionally touching or striking L.D. because Daniels’ charge of felony battery stemmed from multiple simple battery convictions. This is also a general intent crime. See Crittenden v. State, 137 So. 3d 1170, 1172 (Fla. 1st DCA 2014) (explaining that felony battery is a general intent crime unless the enhancement statute requires specific intent); Lewis v. State, 817 So. 2d 933, 934 (Fla. 4th DCA 2002) (on motion for rehearing) (explaining that felony battery is a general intent crime because the element of intent for felony battery is identical to simple battery). Because all the lesser- included offenses were general intent offenses, evidence of Daniels’ alleged involuntary intoxication was not admissible to negate the intent required for those offenses. Thus, the trial court’s rulings on Daniels’ involuntary intoxication claims were correct. Finally, defense counsel identifies as potential error the trial court’s failure to sustain a golden rule objection during the State’s closing argument. But defense counsel did not preserve this argument by making a golden rule objection. See Pryor v. State, 48 So. 3d 159, 162 (Fla. 1st DCA 2010); Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982) (holding that “in order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below”). Even so, the argument identified by appellate counsel—defense counsel’s objection to the prosecutor using a bar fight as an example of manslaughter by act—was not a golden rule argument. “‘Golden rule’ arguments are arguments that invite the jurors to place themselves in the victim’s position during the crime and imagine the victim’s suffering.” Mosely v. State, 46 So. 3d 510, 520 (Fla. 2009). The prosecutor’s example of a bar fight never placed 7 the jury in the victim’s position, nor did it invite the jury to imagine the victim’s suffering. Because none of the potential errors identified by counsel reveal “any arguable issues apparent on the face of the record,” we affirm Daniels’ convictions. See In re Anders Briefs, 581 So. 2d 149, 151 (Fla. 1991). As to Daniels’ sentences, all are legal. Attempted second- degree murder with a firearm is a first-degree felony punishable by up to thirty years’ imprisonment. §§ 775.082(3)(b), 775.087(1)(b), 777.04(4)(c), 782.04(2), Fla. Stat. (2015). Daniels’ mandatory-minimum term of thirty years’ imprisonment is authorized by statute. § 775.087(2)(a)3., Fla. Stat. (2015). Thus, his sentence of thirty years’ imprisonment with a thirty-year mandatory-minimum term is legal. Attempted first-degree murder with a firearm is life felony punishable by up to a term of years not to exceed life. §§ 775.082(3)(a)3., 775.087(1)(a), 777.04(4)(c), 782.04(2), Fla. Stat. (2015). Daniels’ mandatory-minimum term of twenty years’ imprisonment is authorized by statute. § 775.087(2)(a)2., Fla. Stat. (2015). Thus, his sentence of forty years’ imprisonment with a twenty-year mandatory-minimum term is legal. Shooting or throwing deadly missiles into a dwelling is a second-degree felony, punishable by up to fifteen years’ imprisonment. §§ 775.082(3)(d), 790.19, Fla. Stat. (2015). Thus, his sentence of twelve years’ imprisonment is legal. Because our independent review of the record reveals no errors warranting reversal, we AFFIRM. OSTERHAUS and LONG, JJ., concur. 8 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Jessica J. Yeary, Public Defender, and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, Tallahassee, for Appellee. 9