Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-1856 _____________________________ DEMETRIC DENARIO CARTER, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Escambia County. Jeffrey Burns, Judge. October 9, 2020 M.K. THOMAS, J. Demetric Carter has appealed his judgment and sentence on three counts of attempted first-degree murder of law enforcement officers. Carter raises two claims, the second of which is affirmed without further comment. Mr. Carter’s first argument—that the trial court erred in denying his motion for judgment of acquittal— is affirmed as explained herein. I. Facts The evidence presented at trial documented that Mr. Carter walked into a bank shortly after it opened and demanded that the bank employees call the police and to have the officers meet him behind the building. The 911 call entered at trial reflected an employee’s statement that Mr. Carter told her that she “needed to call 911 right now, before he takes it out on us.” The shooting incident that followed was captured in its entirety by Deputy (now Sergeant) Roberts’ dashcam, which was entered into evidence at trial. The video shows Sgt. Roberts’ vehicle entering an empty parking lot while Mr. Carter leaned against a concrete barrier. Mr. Carter can be seen immediately reaching towards his back-right pocket with his right hand. Sgt. Roberts then drew his weapon and began forcefully telling Mr. Carter to keep his hands up while asking what he had on him. Mr. Carter can then be seen walking around the parking lot with his hands raised, at which point Sgt. Roberts was able to see Mr. Carter’s back pocket and confirm that he indeed had a handgun. The video captures Mr. Carter repeatedly refusing Sgt. Roberts’ orders to get on the ground. Additional deputies arrived on scene. Dep. Pope can be seen approaching several yards to Sgt. Roberts’ right, while Dep. Busbee did the same from his left. Once he had two “lethal-coverage officers,” Sgt. Roberts can be seen holstering his firearm and stating that he was going to use his taser, after which Mr. Carter can immediately be heard saying “don’t do that.” As Sgt. Roberts drew his taser, Mr. Carter turned his body to the right so that he faced Dep. Busbee while reaching towards his back-right pocket. He then drew his gun with his right hand before Sgt. Roberts fired the taser. Sgt. Roberts then fired his taser and Mr. Carter appeared to be hit, as he contorted his body to the right. After this, the video documents Mr. Carter raising his arm and aiming the gun at Dep. Busbee before he began firing. No other movements can be seen from Mr. Carter between his drawing the gun and his firing it, indicating that the gun was loaded with a round chambered prior to the encounter. Mr. Carter was then hit by return fire from Deputies Busbee and Pope and fell. The video shows Mr. Carter falling onto his stomach while Sgt. Roberts approached from the front in an apparent effort to detain him. Mr. Carter then turned his fire towards Sgt. Roberts, causing Roberts to jump backwards. Mr. Carter then angled himself slightly more towards the left so that 2 he faced Dep. Pope while continuing to fire, causing her to jump as well. Mr. Carter then dropped the gun and was detained. Additional evidence adduced at trial indicated that Mr. Carter’s gun fired at least seven shots during the incident and that the gun was recovered with the slide locked back, indicating the magazine was completely emptied during the exchange. After deliberations, the jury returned a verdict of guilty as charged to three counts of attempted first-degree murder of a law enforcement officer. Mr. Carter was then sentenced to three consecutive terms of life. Mr. Carter appeals his judgment and sentence, claiming that the State failed to sufficiently prove the required intent element applicable to the crimes charged. Consequentially, he argues that the trial court erred in denying his motion for judgment of acquittal. II. Legal Analysis A trial court’s ruling on a motion for judgment of acquittal is reviewed de novo. See Veney v. State, 217 So. 3d 1189, 1190 (Fla. 1st DCA 2017). Previously, this Court would have been tasked with reviewing the trial court’s denial according to two possible standards, depending on whether the State’s case was “wholly circumstantial,” or whether there was some direct evidence regarding any of the elements. See Knight v. State, 186 So. 3d 1005, 1010 (Fla. 2016). However, the Florida Supreme Court has recently eliminated use of the “unwarranted, confusing, and out of sync” circumstantial evidence standard, regardless of the status of the evidence presented at trial. Bush v. State, 295 So. 3d 179, 199– 201 (Fla. 2020) (discussing the uselessness of the circumstantial evidence standard and discontinuing its application in Florida). In light of Bush, the standard of review to be applied in all criminal cases where the sufficiency of the evidence is analyzed is whether the State presented competent, substantial evidence to support the verdict. Id. at 200-01. Pursuant to the supreme court’s declaration that Florida now joins “all federal courts and the vast majority of state courts in abandoning” a different standard for evaluation on appeal of a wholly circumstantial evidence case, we 3 forego any further analysis regarding other standards of review and instead review the trial court’s denial of Mr. Carter’s motion for judgment of acquittal according to the competent, substantial evidence standard. Id. at 184. This standard requires that a court must consider the evidence and all reasonable inferences that may be drawn therefrom in a light most favorable to the State. See id. at 200; Huggins v. State, 889 So. 2d 743, 765–66 (Fla. 2004). If the court making the assessment determines that competent, substantial evidence was presented from which a reasonable factfinder could find guilt beyond all reasonable doubt as to each element, the motion for judgment of acquittal must be denied. * Bush, 295 So. 3d at 200–01. In proving up Mr. Carter’s charges of attempted first-degree murder, the State was required to present evidence on three elements: (1) Mr. Carter did some act intended to cause the death of each of the three deputies; (2) that he did so with a premeditated design to kill; and, (3) that his act would have resulted in the death of each of the deputies except that he failed to do so. Fla. Std. Jury Instr. (Crim.) 6.2. Mr. Carter argues that the State did not present sufficient evidence regarding the premeditation element. We disagree. We affirm the trial court’s denial of Mr. Carter’s motion for judgment of acquittal because the record contains competent, substantial evidence from which a reasonable factfinder could determine he was acting with a fully formed, premeditated design. The supreme court has determined the following in regard to premeditation: * “Competent, substantial evidence” is, in essence, relevant and material evidence which a reasonable mind would accept as adequate to support a conclusion. See Bush, 295 So. 3d at 201 (quoting De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957)). 4 This Court has explained that premeditation is not just the intent to kill; it is “a fully formed conscious purpose to kill. This purpose may be formed a moment before the act but must exist for a sufficient length of time to permit reflection as to the nature of the act to be committed and the probable result of that act.” Evans v. State, 177 So. 3d 1219, 1240 (Fla. 2015), receded from on other grounds by Johnson v. State, 252 So. 3d 1114 (Fla. 2018) (quoting Bolin v. State, 117 So. 3d 728, 738 (Fla. 2013)). In assessing the evidence in the light most favorable to the State as required, we agree that the evidence could be reasonably taken as supporting that Mr. Carter had such a fully formed conscious purpose against the three responding deputies. Mr. Carter’s statements in the bank reasonably suggest a sinister purpose. His remark that he did not want to “take it out on” the employees further indicates his desire to channel this purpose specifically against any deputies who would respond as he requested. The fact that he fired his gun after drawing it without any additional movements on his part reasonably indicates that Mr. Carter had planned for the moment by loading and chambering a round to make his gun ready to fire. This evidence supports that Mr. Carter had a fully formed conscious purpose to kill on which he had ample time to reflect before firing his gun at law enforcement officers. There is a second aspect to Mr. Carter’s acquittal argument which warrants discussion. He argues that, in addition to insufficient evidence of premeditation, there was also insufficient evidence presented that he was acting with intent to cause death when he pulled the trigger. Mr. Carter argues that the evidence— namely, the fact that he was tasered immediately before shooting—suggests that his shooting the gun was not actually a voluntary action at all but was instead the result of involuntary muscle contraction from being tasered. Here again, the evidence presented could be reasonably taken as demonstrating guilt. Sgt. Roberts testified that it was possible for an individual to retain control over motor functions even while being tasered. Further, graphs showing the efficacy of Roberts’ taser shot during the 5 incident which were entered into evidence demonstrate that the taser probes were only actually able to form an effective connection for a fraction of a second, and that they failed to deliver any charge to Mr. Carter otherwise. This is supported by the video of the incident, which shows Mr. Carter briefly react to being hit before regaining composure and raising the gun towards Dep. Busbee before firing. Mr. Carter’s argument is, in large part, an effort at a reweighing of the evidence, which we are specifically prohibited from doing. Tibbs v. State, 397 So. 2d 1120, 1123 (Fla. 1981). Even if Mr. Carter’s argument could itself be a reasonable assessment of what the evidence shows, it is not the controlling inquiry. The record contains competent, substantial evidence from which a factfinder could reasonably have found guilt as to all the elements of the crimes charged. Accordingly, Mr. Carter’s conviction must be affirmed. AFFIRMED. ROBERTS and OSTERHAUS, JJ., concur. _____________________________ 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 Ross S. Haine, II, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee. 6