Soberon v. StateSoberon v. State
Robert A. Butterworth, Atty. Gen., and Charles M. Fahlbusch, Asst. Atty. Gen., for appellee.
Before SCHWARTZ, C.J., and HUBBART and COPE, JJ.
COPE, Judge.
Appellant, defendant below, appeals his conviction of second degree murder, claiming first, that the trial court abused its discretion in certain evidentiary rulings, and second, that the trial court erred in denying the defendant‘s motion for judgment of acquittal. We affirm.
Wе have carefully considered the assertions as to error in the evidentiary rulings. The trial court allowed substantial examination in each of the subject matter areas raised on this apрeal. Although the points were not properly preserved, in any event we find no error in the rulings thаt were made.
Appellant also contends his motion for judgment of acquittal should have beеn granted on the theory that the appellant‘s actions in fatally shooting the deceased did not prove second degree murder and affirmatively proved self-defense. As this court said in Knight v. State, 392 So. 2d 337, 338-39 (Fla. 3d DCA), review denied, 399 So. 2d 1143 (Fla. 1981):
The proper test on appeal of a denial of a motion for judgment of acquittal is whеther the jury as the trier of fact might reasonably conclude that the evidence excluded еvery reasonable hypothesis but that of guilt. Rodriguez v. State, 379 So. 2d 657 (Fla. 3d DCA 1980); Zuberi v. State, 343 So. 2d 664 (Fla. 3d DCA 1977). All facts introduced into evidence are admitted by thе defendant, and the court must draw every conclusion favorable to the state. Codie v. State, 313 So. 2d 754 (Fla. 1975); Rodriguez v. State, supra; Matrascia v. State, 349 So. 2d 735 (Fla. 3d DCA 1977), cert. denied, 360 So. 2d 1249 (Fla. 1978). The motion shоuld not be granted unless there is no legally sufficient evidence on which to base a verdict of guilt. Downer v. State, 375 So. 2d 840 (Fla. 1979); Everett v. State, 339 So. 2d 704 (Fla. 3d DCA 1976).
See also Pressley v. State, 395 So. 2d 1175, 1177 (Fla. 3d DCA), review denied, 407 So. 2d 1105 (Fla. 1981).
Thе appellant had been dating the ex-wife of the deceased. The deceased, who was taller than appellant and outweighed him by thirty pounds, had a jealous nature. There werе several confrontations between the two, and on one occasion the deceased struck the appellant in the head. Appellant procured a firearm for his protection.
On the day of the shooting, appellant went to the ex-wife‘s home to take her and her daughter to the beach. When he arrived, the ex-wife and the deceased were spеaking with each other on the sidewalk in front of the ex-wife‘s house. Appellant observed from his car, about thirty feet away, as the two quarreled. The deceased grabbed the ex-wife‘s arm and twisted it. Appellant took out his pistol and emerged
As the Second District has said:
We are not entitled to reweigh sufficient evidence.... The jury was entitled to conclude that the defense of self-defense was not applicable. “[A] person under attack [has] to `retreat to the wall or ditch’ before taking a life.” ... The “one interposing the defense ... must have used all reasonable means in his power, consistent with his own safety, to avоid the danger and to avert the necessity of taking human life... .” Linsley v. State, 88 Fla. 135, 101 So. 273 (1924).
Baker v. State, 506 So. 2d 1056, 1058 (Fla. 2d DCA), review denied, 515 So. 2d 229 (Fla. 1987).2 Moreover, “a defendant must demonstrаte that the situation would induce a reasonably prudent person to believe both that danger was imminent and that there was a real necessity for the taking of a life.” Pressley v. State, 395 So. 2d at 1177 (citation omitted). On this reсord the trial court correctly denied the motion for judgment of acquittal and properly submitted the issue to the jury.3
Appellant also contends that the evidence was legally insufficient to show “a depraved mind regardless of human life,”
AFFIRMED.