Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT MONROE GODWIN MONTGOMERY, JR., ) ) Appellant, ) ) v. ) Case No. 2D18-1119 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed February 12, 2020. Appeal from the Circuit Court for Hillsborough County; Nick Nazaretian, Judge. Howard L. Dimmig, II, Public Defender, and Christine Trakas Thornhill, Special Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Michael Schaub, Assistant Attorney General, Tampa; and C. Todd Chapman, Assistant Attorney General, Tampa (substituted as counsel of record), for Appellee. BLACK, Judge. Monroe Montgomery was convicted of aggravated battery with a weapon (great bodily harm) and armed trespass. He challenges only his conviction and sentence for aggravated battery. Montgomery raises claims of error with regard to jury instructions and argues that the trial court erred in permitting the victim to testify regarding injuries caused by Montgomery's codefendant. We affirm the unchallenged conviction and sentence for armed trespass but reverse the conviction and sentence for aggravated battery. The testimony of the victim and the security video entered into evidence established the following: In 2017, Montgomery and his codefendant, Lorenzo Godwin, were drinking on the property of a convenience store. The victim worked at the convenience store and was aware that Montgomery had previously been trespassed from the property. The victim exited the store and profanely told Montgomery and Godwin to leave the property. Montgomery approached the victim with a box cutter in his hand and began "swinging it everywhere." The victim avoided being cut and shoved Montgomery off of the convenience store property and toward the road. From his position in the median area of the road, Montgomery then threw a milk crate which struck the victim. In response, the victim ran toward Montgomery and struck him with his fist. During the brief physical altercation, the victim was on top of Montgomery, punching Montgomery in the face. Montgomery used the box cutter to slice the victim's side. According to the victim, after the victim strong-armed Montgomery into loosening his grip on the box cutter, Godwin and a third person—Montgomery's nephew—assisted in disarming Montgomery; the victim testified that the nephew took the box cutter out of Montgomery's hand and that Godwin separated the men. He also testified that Godwin showed no aggression toward him and had been trying to break up the fight. The victim -2- testified that he "backed off" because the box cutter was no longer in Montgomery's hand. The separation was brief. The victim testified that he became angry when he realized that Montgomery had sliced his side; he "wanted revenge." The victim, having returned to the convenience store property, ran across the road to an intersection where Montgomery and Godwin then stood. The victim again engaged in a physical altercation with Montgomery and was on top of Montgomery until he felt pain in his back. The pain caused him to adjust his position and allowed Montgomery to gain the upper hand. Godwin ultimately pulled Montgomery off of the victim. The victim testified that he did not recall Montgomery asking for Godwin's help at any time. After the altercation had ended, the victim discovered that he had been stabbed in the back three times. It was only upon viewing the security video from the store that he discovered it was Godwin who had stabbed him. The victim testified regarding the injuries caused by Montgomery. Over Montgomery's objections, the victim also testified to the injuries caused by Godwin. The injuries caused by Godwin were significant, including a collapsed lung, and required the victim to undergo two surgeries. The victim was permitted, again over objection, to remove his shirt and show the jury scars caused by Godwin's actions as well as a scar from the box cutter. After the close of evidence and during the charge conference, multiple issues arose as to jury instructions. Montgomery objected to the giving of the principals instruction, arguing that there was no evidence to support that Godwin's actions in stabbing the victim were at the request of or in assistance of Montgomery's crime. The -3- trial court perceived the evidence as establishing the basis for the principals instruction because Montgomery "used" the stabbing to gain the upper hand and continued to beat the victim with his fists after the stabbing. There was a lengthy discussion between defense counsel and the court as to this point. When the court finally turned to the State for its position, the prosecutor presented a less detailed explanation for why the principals instruction should be given and ultimately agreed with the court's perception of why the instruction was appropriate. The court determined that it would give the principals instruction. Montgomery also objected to the inclusion of the forcible felony instruction in the instruction on justifiable use of nondeadly force. After the court determined over the State's objection that the justifiable use of nondeadly force instruction would be given, the court agreed to the State's request to include: "However, the use or threatened use of non-deadly force is not justified if you find that the defendant was attempting to commit, committing or escaping after the commission of an applicable forcible felony." Montgomery argued that the State's requested instruction nullified the self-defense instruction for the aggravated battery, rendering it meaningless. The State argued in closing that Montgomery was guilty of aggravated battery for using the box cutter to slice the victim's side during the first physical altercation in the median and that he was guilty of aggravated battery as a principal to Godwin's stabbing of the victim. The information charged one count of aggravated battery; the verdict form was general and did not require the jury to choose between two batteries or to determine whether the battery was committed by Montgomery himself or as a principal. The jury found Montgomery guilty as charged, and Montgomery was -4- sentenced to eighteen years in prison as a habitual felony offender on the aggravated battery conviction and to a concurrent ten years on the trespass conviction. In his first issue on appeal, Montgomery argues that the trial court abused its discretion in giving the principals instruction. We agree. The uncontroverted evidence established that Montgomery held a box cutter in his hand at the time of the trespass, that he initiated contact with the victim by approaching him and waiving the box cutter around, and that he still held the box cutter at the time of the first physical altercation in the median. The first physical altercation ended after Montgomery had cut the victim's side, the victim had strong-armed Montgomery into releasing his grip on the box cutter, the nephew had removed the box cutter, and Godwin had assisted in breaking Montgomery and the victim apart. Godwin and Montgomery then walked to a different location but within the immediate area of the convenience store (the intersection). The uncontroverted evidence also established that upon discovering that he had been "sliced," the victim sought revenge and he "charged" at Montgomery. The two engaged in a physical altercation, but no weapons were involved. The victim was on top of Montgomery when he felt pain in his back; Montgomery then took control of the fight. It was not until after the two had been separated again and the victim had reviewed the video footage from the convenience store that the victim realized he had been stabbed in the back by Godwin. The victim testified that he did not recall Montgomery asking Godwin for help. Montgomery contends that the State's evidence was insufficient to support the principals instruction for aggravated battery. He argues that the actions at issue can be separated into three incidences: (1) the armed trespass; (2) the physical altercation -5- in the median where the victim was sliced with the box cutter; and (3) the physical altercation in the intersection where the victim was stabbed by Godwin. Montgomery suggests that the undisputed facts show that it was the victim who initiated the last altercation, reengaging with Montgomery. The State contends that the testimony and video evidence established that Montgomery had a conscious intent that the aggravated battery—the stabbing—be done and that Montgomery assisted in the stabbing or caused Godwin to stab the victim. The State's argument is premised on the fact that Montgomery was the initial aggressor—he approached the victim with the box cutter and began swinging it around while still on the convenience store property—which led to the first and second physical altercations, both occurring off the property. The State does not deem the incidents to be separate, having occurred within an undisputed span of eight to ten minutes. The State contends that "Montgomery's initiation and continuation of the fight with [the] victim caused and assisted Lorenzo Godwin to stab the victim." (Emphasis added.) We note that while this aligns with the State's minimal argument at trial, it is significantly different than the court's apparent basis for giving the instruction. "While it is true that the trial court has broad discretion in instructing the jury, it is also true that a trial court errs when it gives an instruction that has no factual basis in the record." Masaka v. State, 4 So. 3d 1274, 1284 (Fla. 2d DCA 2009) (citation omitted). "Thus, giving the principals instruction is error when there is no evidence that the defendant had a conscious intent that the crime be committed and did some act or said some word which was intended to and in fact did incite [or assist] a third party to commit the crime with which the defendant is charged." Id. And because "[j]ury -6- instructions requested by the State 'must relate to issues concerning evidence received at trial,' " the trial court errs when it "instruct[s] the jury on principals where there is no evidence to support an aiding and abetting theory of guilt because the jury may be confused by the instruction." Senser v. State, 243 So. 3d 1003, 1010-11 (Fla. 4th DCA 2018) (quoting Lewis v. State, 693 So. 2d 1055, 1057 (Fla. 4th DCA 1997)). "Such an error is not harmless when it is capable of misleading the jury in such a way that the defendant's right to a fair trial is prejudiced." Banks v. State, 219 So. 3d 19, 32 (Fla. 2017) (quoting McGriff v. State, 12 So. 3d 894, 895 (Fla. 1st DCA 2009)). As given in this case the instruction on principals provided: If the defendant helped another person or persons commit a crime, the defendant is a principal and must be treated as if he had done all the things the other person or persons did if: 1. the defendant had a conscious intent that the criminal act be done and 2. the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist, or advise the other person or persons to actually commit the crime. To be a principal, the defendant does not have to be present when the crime is committed. See State v. Dene, 533 So. 2d 265 (Fla. 1988). See Fla. Std. Jury Instr. (Crim.) 3.5(a). Whether the undisputed evidence supports a principals theory of guilt is an issue of law. See Theophile v. State, 78 So. 3d 574, 578 (Fla. 4th DCA 2011). And whether a trial court abuses its discretion in the giving of the principals jury instruction is dependent upon whether the evidence supports the principals theory as a matter of law. See Hanks v. State, 43 So. 3d 917, 917-18 (Fla. 2d DCA 2010) (citing Masaka, 4 So. 3d -7- at 1284). Montgomery asks us to first conclude that the stabbing was a distinct act and to then conclude that the principals instruction was improperly given in the absence of evidence that Montgomery had a conscious intent that the battery be committed and acted in a way which incited, caused, encouraged, assisted, or advised Godwin to actually commit the crime. Montgomery was charged with a single count of aggravated battery but the State proceeded on dual theories: that he committed the crime himself when he used the box cutter to slice the victim and that he committed the crime as a principal to Godwin's stabbing of the victim. Thus, although double jeopardy is not implicated in this case because there was a single charge, the tests applicable to double jeopardy analyses are helpful: for crimes to be considered to have occurred in more than one criminal episode, the defendant must have had time to form a new criminal intent for each offense and intent is critical to the principals theory of guilt. See Gammage v. State, 277 So. 3d 735, 742 (Fla. 2d DCA 2019). Where there is evidence of intervening acts, changes in location, or the formation of a new criminal intent, there is generally more than one criminal episode. Cf. id. Montgomery suggests that there are three distinct episodes at issue. But in order for Montgomery to gain relief, there need be only two: the stabbing and everything that happened before it. Thus, we do not determine whether the armed trespass and the first physical altercation in the median comprised one continuous episode. The record and the undisputed evidence supports the conclusion that the second physical altercation occurring at the intersection was a separate episode and -8- not a continuation of Montgomery's initial interaction with the victim. The victim and Montgomery had been separated physically, Montgomery was not armed, and the victim "charged" Montgomery by running at him in anger after discovering that he had been sliced by the box cutter. The victim's own testimony presents a sufficient temporal break to form a new intent, as well as an intervening act: the victim's decision to charge Montgomery. See, e.g., Nicholson v. State, 757 So. 2d 1227, 1228 (Fla. 4th DCA 2000) (affirming two convictions for throwing a missile into a dwelling where the defendant threw one brick in the back window of the house and then ran around the side of the house and threw another brick through another window); cf. Mercer v. State, 219 So. 3d 936, 938 (Fla. 1st DCA 2017) ("[B]ecause the punch and kick were upon the same victim, occurred at the same location, and both occurred during the course of approximately one minute, we find that the two acts were part of a single criminal episode."). On the facts of this case, the disarming of Montgomery likewise constituted an intervening act: the battery ended when Montgomery was disarmed, and there was no evidence of another weapon present at that time. Cf. Dwyer v. State, 743 So. 2d 46, 50 (Fla. 5th DCA 1999) (Harris, J., dissenting) ("[T]he victims were overcome and disarmed. There was no evidence that they had access to any other weapons. [The defendants] had the only weapons shown by the record and were in control of the scene. Nothing prevented them, except perhaps a desire for retribution, from then getting into their vehicle and driving away. Indeed that is exactly what they say they did after the shooting and after a car passed which observed the incident and might well have sent help. Nothing in the record indicates why they could not have done so before the shooting."). Further, Montgomery's armed trespass is an act distinct from the -9- stabbing. See Graham v. State, 207 So. 3d 135, 139 (Fla. 2016) ("[W]hen the impulse is single, but one indictment lies, no matter how long the action may continue [it is a continuous but single offense]. If successive impulses are separately given, even though all unite in swelling a common stream of action, separate indictments lie." (first alteration in original) (quoting Blockburger v. United States, 284 U.S. 299, 302 (1932)); cf. Harris v. State, 111 So. 3d 922, 924 (Fla. 1st DCA 2013) ("The altercation between Appellant and his girlfriend began on the patio of their home where he grabbed her, pushed her, and put his fingers in her nose and mouth, and continued until the pair landed in the yard on the ground with Appellant sitting on his girlfriend choking her. These facts reflect one continuous battery—an uninterrupted series of acts, as opposed to distinct acts separated by time, intervening acts, or different locations." (emphasis added)). The State's argument to the jury supports this conclusion: So Monroe Montgomery is on the property. He gets pushed off of the property. He then engages in a mutual fight with the victim. And for all intents and purposes, [the victim] is getting the best of him. He ends up on top of him and the defendant, Monroe Montgomery, ends up slicing him on his side. You can see it. He's slicing him simultaneously as [the victim] is punching him in the face. So that is the first aggravated battery great bodily harm and deadly weapon that the defendant has been proven guilty of. But when we get into this principal theory is when that fight ends. The victim is standing off to the side. The defendant goes to the street corner and then victim runs over to where . . . Montgomery is on the street corner . . . . [H]e's already committed an aggravated battery great bodily harm and deadly weapon just moments before that in the median. . . . . . . So when they get over to the corner, they engage in this fight again and the victim again is getting the best of Mr. Montgomery. Now, it's not a crime that he's getting the best of [Montgomery] because they are fighting and Mr. Montgomery ends up on his back. Then Lorenzo Godwin - 10 - ends up coming into the fight. He has a large knife that you can see on the video. It is up in the air and it stabs one, two, three times in the back of the victim . . . . . . . Montgomery is there just inches away from [Godwin]. He is able to see what [Godwin] is doing. . . . [B]ut you have to pay attention to what Monroe Montgomery is doing at that moment, too. Monroe Montgomery is still pummeling the victim in the face. (Emphasis added.) The State argued two aggravated batteries but charged only one; and the State's argument is at odds with its assertion that this was a single "common stream of action." Cf. Gammage, 277 So. 3d at 744. The evidence does not establish that Montgomery knew Godwin was armed, and there is no evidence that Montgomery intended for Godwin to commit the offense and did some act that assisted Godwin in actually committing it. See Theophile, 78 So. 3d at 578. But even if the State's evidence could be viewed as establishing that Montgomery intended for the aggravated battery to occur subsequent to his loss of the box cutter, the physical altercation that occurred virtually simultaneously with the stabbing does not meet the requirements for giving the principals instruction. There is no evidence that Montgomery and Godwin were "act[ing] in concert to commit" the battery. See State v. Tovar, 110 So. 3d 33, 35 (Fla. 2d DCA 2013). In fact, Godwin had assisted in breaking up the first physical altercation and had not been acting aggressively toward the victim until the stabbing; there was no evidence of a common criminal scheme. Cf. Williams v. State, 34 So. 3d 768, 770 (Fla. 2d DCA 2010); Hunter v. State, 149 So. 3d 158, 159 (Fla. 4th DCA 2014). And there is no evidence indicating that Montgomery's actions while the victim was on top of him, beating him about the face and upper body, were intended to reduce the victim's ability to defend himself from the stabbing. Cf. Tovar, 110 So. 3d at 35-36 ("According to the testimonies of State - 11 - witnesses Mr. Fox and Mr. Barkley, Mr. Tovar joined in the fight between Mr. Robbins and Mr. Barkley by grabbing the latter around the neck and arms, thereby reducing Mr. Barkley's ability to defend himself from Mr. Robbins' blows, blows inflicted by fist and knife."). Further, to the extent that the trial court gave the principals instruction based on Montgomery's actions immediately after the stabbing—gaining the upper hand in the fight and continuing to pummel the victim—the law does not support giving the principals instruction upon such evidence. See Hall v. State, 100 So. 3d 288, 289 (Fla. 4th DCA 2012) (reversing conviction for grand theft on principals theory and holding that "while there was evidence from which a jury might have concluded that the defendant became aware of the crime after it was committed, there was no evidence the defendant had any prior knowledge of a criminal plan or had an intent that the [crime] be committed"); see also Donaldson v. State, 722 So. 2d 177, 184 (Fla. 1998) ("[A] person convicted as a principal to a crime cannot also be convicted as an accessory after the fact to the same crime, since these two offenses are mutually exclusive." (citing Staten v. State, 519 So. 2d 622, 625 (Fla. 1988)); Bowen v. State, 791 So. 2d 44, 50 (Fla. 2d DCA 2001) ("[A] person cannot be convicted as both a principal in a crime and as an accessory after the fact to the same crime, and the crime of accessory after the fact cannot arise until the underlying crime is complete." (citing Staten, 519 So. 2d at 625)). The evidence did not support the giving of the principals instruction. And the error in giving the principals instruction was not harmless, even in light of the evidence of Montgomery's use of the box cutter. "[T]he verdict does not reveal whether the jury relied on the principals theory to convict" Montgomery, see Hanks, 43 So. 3d at - 12 - 918, and while the victim bears a scar from the box cutter slice, the overwhelming majority of the injury testimony was specific to the stabbing and it is impossible to say that the stabbing evidence did not contribute to the verdict, see St. Pierre v. State, 228 So. 3d 583, 588 (Fla. 4th DCA 2017). Montgomery's related issue—that the trial court should not have permitted the victim to testify to the injuries he sustained as the result of being stabbed by Godwin—is necessarily resolved in Montgomery's favor based on our conclusion that the principals instruction should not have been given. The injuries caused by Godwin's actions are only relevant to the charges against Montgomery as a principal; because the facts do not support the giving of the principals instruction, the victim's injuries resulting from the stabbing are not relevant to the charge of aggravated battery. Cf. McGriff v. State, 417 So. 2d 300, 301 (Fla. 3d DCA 1982) ("A witness may testify as to the extent of an injury or show the injury itself where it is relevant to the crime charged against the defendant."). Montgomery also argues that the trial court erroneously overruled his objection to the giving of the forcible felony instruction following the justifiable use of nondeadly force instruction. See §§ 776.012(1), .041, Fla. Stat. (2017). He contends that because he was not charged with a forcible felony other than the aggravated battery the instruction could not be given. The State responds that the instruction was properly given because Montgomery was charged with the separate felony of armed trespass. The standard forcible felony instruction, given—if applicable—following a self-defense instruction, provides: "However, the [use] [or] [threatened use] of non- - 13 - deadly force is not justified if you find that (defendant) was attempting to commit, committing, or escaping after the commission of a[n] (applicable forcible felony listed in § 776.08, Fla. Stat.)." Fla. Std. Jury Inst. (Crim.) 3.6(g). Forcible felony is defined as treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual. § 776.08, Fla. Stat. (2017). Section 776.012 governs the justifiable use of force in defense of person and provides that a person is justified in using force, including deadly force, to defend "himself or herself or another" if the person reasonably believes that it is necessary to use such force. § 776.012(1)-(2), Fla. Stat. (2014). Section 776.041, however, provides an exception to the justifiable use of force in defense of person and states that "[t]he justification described in the preceding sections of this chapter is not available to a person who . . . [i]s attempting to commit, committing, or escaping after the commission of, a forcible felony." § 776.041(1), Fla. Stat. (2014) (emphasis added). Grant v. State, 266 So. 3d 203, 205 (Fla. 4th DCA 2019) (alterations in original). The exception in section 776.041 clearly applies where the person claiming self-defense was engaged in an independent or separate forcible felony at the time. Id. at 206. Giving the forcible felony instruction in the absence of an independent forcible felony is error. Martinez v. State, 933 So. 2d 1155, 1157 (Fla. 3d DCA 2006) (citing Giles v. State, 831 So. 2d 1263, 1265-66 (Fla. 4th DCA 2002)), aff'd but criticized, 981 So. 2d 449 (Fla. 2008). The forcible felony exception instruction "applies only when 'the accused is charged with at least two criminal acts, the act for which the accused is - 14 - claiming self-defense and a separate forcible felony.' " Santiago v. State, 88 So. 3d 1020, 1022 (Fla. 2d DCA 2012) (quoting Giles, 831 So. 2d at 1265). Contrary to the State's argument that Montgomery was charged with an independent felony, the statute requires more than just a felony—it requires an independent forcible felony. Trespass is not a felony; and armed trespass is not a forcible felony. See § 810.09(2)(c), Fla. Stat. (2017) ("If the offender is armed with a firearm or other dangerous weapon during the commission of the offense of trespass on property other than a structure or conveyance, he or she is guilty of a felony of the third degree . . . ."). And, as argued by Montgomery, the defendant must have been engaged in the independent forcible felony at the time of the self-defense. See Santiago, 88 So. 3d at 1022. The act for which Montgomery claimed justifiable use of force was not the trespass but the battery, and at the time of the battery neither he nor the victim were on the store property. Further, the instruction actually given during Montgomery's trial was, "However, the use or threatened use of non-deadly force is not justified if you find that the Defendant was attempting to commit, committing, or escaping after the commission of Aggravated Battery and Felony Battery." Thus, the instruction given to the jury in this case was specific to the crimes of aggravated battery and felony battery, only one count of which Montgomery was charged. The analysis supplied by the supreme court in Martinez, is applicable: Thus, to instruct the jury on the forcible-felony exception in this circumstance amounted to informing the jury that although it might conclude that Martinez acted in self-defense when he committed an aggravated battery . . . against [the victim], the use of deadly force was not justifiable if the jury found that Martinez committed . . . aggravated battery. This circular logic would most probably confuse jurors because the apparent result is that the - 15 - instruction precludes a finding of self-defense and amounts to a directed verdict on the affirmative defense. 981 So. 2d at 453 (emphasis omitted). The trial court abused its discretion in giving the instruction on the forcible felony exception to the justified use of nondeadly force. And based on the analysis provided in Martinez, we cannot conclude that the error was harmless in this case. The conviction and sentence for armed trespass are affirmed. The conviction and sentence for aggravated battery are reversed, and we remand for further proceedings. Affirmed in part; reversed in part; remanded. MORRIS and LUCAS, JJ., Concur. - 16 -