Aftеr a jury trial, Jamie Grant was convicted of (1) attempted armed robbery while wearing a mask and carrying a firearm and (2) possession of a firearm with an altered serial number. We affirm in part and reverse in part, holding that the evidence was sufficient to support Grant’s convictions, but insufficient to subject him to mandatory minimum sentencing pursuant to Section 775.087(2), Florida Statutes (2010).
The State’s Case
On November 17, 2010, at apрroximately 3:20 p.m., Grant parked his car in the partially concealed driveway of a newly constructed home. He walked about 100 yards to a jewelry store, making his approach from the store’s windowless side. Once at the store, Grant “forcefully” yanked twice on the store’s entrance door with his left hand, while keeping his right hand in the front pocket of his hooded sweatshirt. The force of Grant’s tug was so “aggressive” and strong that it “shook the frame of the store” and alerted every employee to his presence.
Unknown to Grant, due to a recent “snatch and grab” incident, the store’s owner installed a security system which required customers to be “buzzed” into the store by an employee. When the owner reached for the buzzer, one employee warned of Grant’s рotential dangerousness while others yelled, “[Djon’t let him in.”
Apparently recognizing the futility of trying to enter the store, Grant took off running. While Grant was running, observers noticed that he atypically kept his right hand in his hoodie pocket, protecting a “bulging” object; however, none of the witnesses could testify as to what the object actually was. Grant drove away in his car “at a high rate of speed.” Later, the store’s owner obtained a surveillance video, which was shown to the jury at trial.
The store owner called the police shortly after Grant left the scene. Upon receiving a BOLO report, Detective Jason Jones began tailing Grant’s car in an unmarked vehicle and called for backup. Once backup arrived, Detective Jones turned on his strobe lights and honked his horn to effectuate a stop. However, Grant continued driving for another mile before eventually stopping at a red light.
Once Grant’s car came to rest, Detective Rick Lombardo approached on foot from the driver’s side, prompting the visibly sweating Grant to state that he was returning the car to his grandmother. As Detective Lombardo came closer, he suddenly yelled “gun!” after observing the butt of a handgun on the passenger seat, “partially wrapped in a pair of gloves which was underneath a black hooded sweatshirt.” Upon this announcement, Grant “twist[ed] towards th[e] direction” of the gun; however, before anything could happen, the detective forcibly removed Grant from the car, placed him on his stomach on the ground, and applied handcuffs.
A search оf Grant’s person revealed that he had hinged handcuffs in his right rear pocket and a purple velvet Crown Royal bag in his right front pocket. Following the search, Grant lamented to the detectives, “[Tjimes are tough, I usually don’t do this sort of thing.”
Additionally, from Grant’s car, officers recovered an unloaded .357-caliber revolver, a black hooded sweatshirt, sunglasses, a pair of gloves, and a “do-rag type face cover.” At trial, a firearms examiner testified that the revolver was functional, although its “serial number was obliterated.”
Trial Motions and Verdict
After the State rested, Grant made a two-fold motion for judgment of acquittal. First, Grant argued that the State failed to prove the elements of attempted armed robbery, since there was no evidence demonstrating his specific intent to cоmmit a robbery. Second, Grant contended that the evidence was insufficient to show that he “carried” a firearm at the time he tried to enter the jewelry store, since none of the witnesses could identify the object he cradled in his hoodie pocket. The motion was denied.
Following the case’s submission, the jury found the defendant guilty as charged of both counts. After a separate hearing, the trial court sentenced Grant to fifteen years imprisonment with a ten-year mandatory minimum, pursuant to section 775.087(2), Florida Statutes (2010), on the attempted robbery charge and to time served on the other charge.
Grant’s Intent to Commit Robbery
In his first issue on appeal, Grant contends that the trial court erred in denying his motion for judgment of acquittal as to attempted armed robbery, since the State failed to demonstrate his intention to
“The standard of review for the denial of a motion for judgment of acquittal is de novo.” Ortiz v. State,
A person’s intent to commit a crime is rarely gleaned from direct evidence. “When the evidence against a criminally accused person is circumstantial, a motion for judgment of acquittal should be granted if the state fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt.” Brothers v. State,
Robbery is “the taking of money or other property ... with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.” § 812.13(1), Fla. Stat. (2010). “[T]o prove attempted armed robbery, the State must show: (1) the formation of an intent to commit the crime of robbery; (2) the commission of some physical act in furtherance of the robbery; and (3) the use of a firearm.” Franqui v. State,
“The intent with which an act is accomplished is an operation of the mind.” C.E. v. State,
In the context of attempted armed robbery, “intent may be proved by considering the conduct of the accused and his colleagues before, during, and after the alleged attempt along with any other relevant circumstances.” Franqui,
Grant relies primarily upon Rose v. State,
In Rose, the victim stepped outside her home after a woman rang her doorbell and asked for directions. Id. at 378. While the victim was talking to thе woman, the defendant “came out from behind a bush,” pointed a gun at the victim’s face, and told the victim to keep quiet. Id. Terrified, the victim took off running and called the police. Id. After the women were apprehended, police found numerous suspicious items in their car, including cell phones, pairs of gloves, a black duffel bag containing duct tape, a crowbar, a shotgun, and ammunition. Id. at 379.
Upon these facts, the Fifth District held that the trial court erred in denying the defendant’s motion for judgment of acquittal since there was insufficient evidence demonstrating the defendant’s intent to commit robbery. Id. Significant in Rose was that the evidence was as suggestive of an intent to commit a number of crimes against the person — false imprisonment, kidnapping, sexual battery — as it was of the crime of robbery. Id.
No similar confusion exists over Grant’s aborted entry into the jewelry store. After parking his car in a secluded area and taking a route minimizing potential observation, Grant “forcefully” yanked twice on the jewelry store’s door, demonstrating his desire to make a .startling, powerful entrance. By covering his face with a do-rag, wearing a hoodie and gloves on a hot day, and taking flight immediately upon his failed entry, the circumstances indicated that Grant’s purpose was nefarious. This “purpose” was, in turn, narrowed by the handcuffs and purple velvet bag found on Grant’s person, suggesting that his “plan” involved taking jewelry from the store. Finally, Grant admitted that his actions had an economic motive when he explained his conduct by saying, “Times are tough.”
Viewing the evidence in the light most favorablе to the State, a rational trier of fact could find the evidence sufficient to negate the theories of innocence that Grant was either an innocent passerby or, borrowing from Rose, that he might have intended to commit any number of crimes inside the store. The trial court properly allowed the issue to go to the jury. From the State’s evidence, the jury could properly infer that Grаnt’s intent at the door of the jewelry store was to steal property inside.
Whether Grant “Carried” a Firearm During the Attempted Robbery
Grant argues that the trial court erred in denying his motion for judgment of acquittal on the firearm aspect of the attempted robbery charge because the evi
Section 812.13(2)(a) enhances a robbery to a first degree felony if a robber “car-nets] a firearm” “in the course of committing the robbery.” We agree with Grant that the evidence was insufficient to support the conclusion thаt he carried a firearm when he was at the door of the jewelry store and when he ran to his car. See, e.g., Prosser v. State,
However, section 812.13(3)(a) expressly defines the phrase “in the course of committing the robbery” to include a robber’s flight after an attempted robbery, providing:
An act shall be deemed “in the course of committing the robbery” if it occurs in an attempt to commit robbery or in flight after the аttempt or commission.
§ 812.13(3)(a), Fla. Stat. (2010).
The police began chasing Grant’s car soon after he left the scene of the attempted robbery. When Grant’s car was stopped, the handgun was within his immediate physical reach on the passenger seat, underneath his hooded sweatshirt. A common meaning of the verb “carry” is to “convey” or “transport.” Random House Dictionary of the English Language 227 (unabridged ed. 1967). By driving away with the gun right next to him, Grant conveyеd or transported it, so he “carried” the gun during his flight from the jewelry store. Therefore, Grant “carried a firearm” “in the course of committing” the attempted robbery under section 812.13(2)(a).
This holding is close to one of the holdings in Parker v. State,
The Validity of Grant’s Ten-Year Mandatory Minimum Sentence
As his final issue on appeal, Grant challenges the legality of the ten-year mandatory minimum portion of his sentence, entered pursuant to Section 775.087(2)(a), Florida Statutes (2010). We reverse because Grant was not chаrged under section 775.087(2)(a) with actually possessing a firearm “during the commission of the offense,” nor did the jury make such a finding. Rather, both the amended information and the special interrogatory submitted to the jury focused on whether Grant “carried” a firearm; the issue framed by the pleadings and the jury instructions was whether -a section 812.13(2)(a) violation occurred. The jury’s finding under section 812.13(2)(a) was insufficient to satisfy the requirements of section 775.087(2)(a).
There is a significant difference in the way sections 812.13(2)(a) and 775.087(2)(a)l.c. treat the use of a firearm. A finding that the defendant “carried” a firearm under section 812.13(2)(a) reclassifies robbery into a higher degree of felony, increasing the potential maximum of punishment.
Section 775.087(2)(a)l.c., on the other hand, subjects defendants convicted
To “enhance a defendant’s sentence under section 775.087(2), the grounds for enhancement must be clearly charged in the information.” Arnett,
This is a case that demonstrates why a finding that Grant “carried” a firearm within the mеaning of section 812.13(2)(a) is not equivalent to a finding that he “actually possessed” the gun under section 775.087(2)(a)l. The key to the analysis is that section 775.087(4) explicitly defines “possession” in a way that narrows the type of constructive possession that qualifies for the mandatory minimum sentence.
Under section 775.087(2)(a)l., the ten-year mandatory minimum applies when a defendant committed, or attemptеd to commit, an enumerated felony and, “during the commission of the offense,” the defendant “actually possessed a ‘firearm’ or ‘destructive device’ as those terms are defined in s. 790.001.” Section 775.087(4) provides that,
[f]or purposes of imposition of minimum mandatory sentencing provisions of this section, with respect to a firearm, the term “possession” is defined as carrying it on the person. Pоssession may also be proven by demonstrating that the defendant had the firearm within immediate physical reach with ready access with the intent to use the firearm during the commission of the offense, if proven beyond a reasonable doubt.
(Emphasis added). Thus, if a defendant is not “carrying” a firearm “on his person,” the State must prove beyond a reasonable doubt not only that the firearm was “within immediate physical reach with ready access” but that the defendant also had “the intent to use the firearm during the commission of the offense.” Section 812.13(2)(a) does not require the jury to make any finding about a defendant’s intent to use the firearm in deciding the issue of whether a defendant “carried” a firearm.
In this case, the amended information alleged that, during the commission of the attempted robbery, Grant “carried a firearm or other deadly weapon” and cited only to sections 812.13(1) and 812.13(2)(a), pertaining to robbery. As to the firearm portion of the charge, the jury was instructed:
If you find the defendant guilty of the crime of attempted robbery, then you must further determine beyond a reasonable doubt if “in the course of committing the armed robbery” the defendant carried a firеarm. An act is “in the course of committing the attempted robbery” if it occurs during the commission of the crime or in flight after the attempt.
If you find that the defendant carried a firearm in the course of committing the*1087 attempted robbery, you should indicate so on the verdict form.
On the verdict form, the jury found that “the State has shown beyond a reasonable doubt that the defendant carried a firearm.”
We distinguish this case from Parker,
While the jury’s finding adequately satisfied section 812.13(2)(a)’s reclassification requirements, it was insufficient to warrant imposition of a ten-year mandatory minimum sentence pursuant to section 775.087(2).
Accordingly, we reverse the mandatory minimum sentence and remand the case for resentencing.
Notes
. We also affirm the denial of Grant’s motion to sever the two charges. We note that possession of a firearm with an altered serial number is some evidence that the possessor intends to use the gun for a criminal act, because of the difficulty of tracing the firearm. As the Fourth Circuit has observed:
The Bureau of Alcohol, Tobacco, Firearms and Explosives has explained that requiring serial numbers on firearms serves the important governmental intеrests of enabling the tracking of inventory and record-keeping by licensees; tracing specific firearms used in crimes; identifying firearms that have been lost or stolen; and assisting in the prosecution of firearm offenses.
United States v. Harris,
. Grant also relies upon Thomas v. State,
. Interestingly, the jury was concerned about this issue. They sent out a question asking if "to carry" a firearm was to be on one’s person or to be in possession of a gun. The court advised the jury that they were required to rely on the instructions they had already received. The judge did not charge the jury with the definition of "possession” found in section 775.087(4).