Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-1206 _____________________________ BOOKER T. OLIVER, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Duval County. Linda F. McCallum, Judge. April 15, 2020 ROWE, J. Booker T. Oliver appeals his judgment and sentence for possession of a firearm by a convicted felon. He argues that the trial court erred when it denied his motion for judgment of acquittal because his possession of the firearm was necessary to ensure his safety. Because the evidence, when viewed in the light most favorable to the State, was legally sufficient to submit the case to the jury, the motion for judgment of acquittal was properly denied. Facts The incident leading to the charge against Oliver arose when Eric Turner confronted Oliver and “Big Tony” about their involvement in an attack on Turner’s friend. Turner believed that Oliver and “Big Tony” were responsible for the attack on Turner’s friend. Turner challenged Oliver and “Big Tony” to a fight; they refused. As Turner began walking away, he saw Oliver approach a nearby car and return with a firearm. Turner told Oliver to shoot him if he wanted, stating “because if I get around my corner, you know what I’m saying, that I’m going to do something.” Seconds later, Turner spotted Officer K.O. Platt and flagged him down for help. Turner told Officer Platt that Oliver had a gun. Platt ordered Oliver to stop and turn around. Platt saw a gun in Oliver’s back pocket and arrested him. Oliver told the officer that Turner spat on him and that Oliver just bought the gun from a neighborhood kid. Oliver told the officer repeatedly that he planned to shoot Turner. At the close of the State’s case, defense counsel moved for a judgment of acquittal. That Oliver was a convicted felon was not in dispute. And Oliver did not dispute that he possessed a firearm. Even so, defense counsel argued that Oliver carried the weapon out of necessity. Counsel argued that Oliver’s belief that Turner could seriously injure him justified his possession of the firearm. The trial court denied the motion. Oliver testified. He asserted that during the incident, Turner walked toward him and spat in his face. When Oliver drew his arm back to punch Turner, Turner reached into his pocket and said, “I got something for you, I got something for you.” Oliver thought Turner had a firearm, so he backed away. Oliver claimed that he feared for his life because he was not in good health and could not defend himself against Turner. “Big Tony” gave Oliver a firearm, and the police arrived moments later. At the close of its case, Oliver’s counsel renewed the previous motion for judgment of acquittal. The trial court denied the motion, finding that whether Oliver had a legal justification for possessing the firearm was a question properly submitted to the jury. The jury found Oliver guilty as charged. This timely appeal follows. 2 Analysis We review a trial court’s ruling on a motion for judgment of acquittal de novo. Moran v. State, 278 So. 3d 905, 908 (Fla. 1st DCA 2019). And we construe the evidence in the light most favorable to the State. Holmes v. State, 278 So. 3d 301, 304 (Fla. 1st DCA 2019). If there is competent, substantial evidence to establish each element of the crime, then judgment of acquittal is improper. Id. And when the facts are disputed on an affirmative defense raised by the defendant, the case should be submitted to the jury. See Krupkin v. State, 119 So. 3d 1267, 1270 (Fla. 1st DCA 2013). Oliver concedes that he was a convicted felon and that he possessed a firearm at the time of his arrest. Thus, viewing the evidence in the light most favorable to the State, the evidence was legally sufficient to establish both elements of the charge of possession of a firearm by a convicted felon. See Fla. Std. Jury Instr. (Crim.) 10.15. Even so, Oliver argues that his case should not have been submitted to the jury because his possession of the firearm was justified on grounds of necessity. We disagree. In some cases, a convicted felon’s possession of a firearm is justified and not subject to criminal sanctions. Marrero v. State, 516 So. 2d 1052, 1054 (Fla. 3d DCA 1987). For example, possession of a firearm is justified when the defendant can establish these elements of necessity: (1) the defendant reasonably believed that his action was necessary to avoid an imminent threat of death or serious bodily injury to himself or others, (2) the defendant did not intentionally or recklessly place himself in a situation in which it would be probable that he would be forced to choose the criminal conduct, (3) there existed no other adequate means to avoid the threatened harm except the criminal conduct, (4) the harm sought to be avoided was more egregious than the criminal conduct perpetrated to avoid it, and (5) the defendant ceased the criminal conduct as soon as the necessity or apparent necessity for it ended. 3 Knight v. State, 187 So. 3d 307, 309 (Fla. 5th DCA 2016) (quoting Bozeman v. State, 714 So. 2d 570, 572 (Fla. 1st DCA 1998)). But here, the facts were in dispute over whether Oliver established the necessity defense. Turner testified at trial. He admitted that he confronted Oliver. But Turner denied spitting in Oliver’s face or threatening him with a firearm. If the jury accepted this portion of Turner’s testimony, Oliver could not meet the first element of the necessity defense. Turner also testified that Oliver did not arm himself until Turner was walking away from Oliver. If the jury accepted this testimony, Oliver could not prove the third element of the necessity defense because he could have allowed Turner to walk away rather than arm himself. Because there was evidence from which the jury could have concluded that Oliver did not need to possess the firearm, the case was properly submitted to the jury. See Krupkin, 119 So. 3d at 1270 (observing that an affirmative defense should not be resolved by a judgment of acquittal where the facts are disputed). Thus, the trial court correctly denied the motion for judgment of acquittal. Oliver’s judgment and sentence are AFFIRMED. RAY, C.J., and TANENBAUM, J., 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 Justin F. Karpf, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee. 4