Johnson v. State
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2006
ERNEST JOHNSON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D04-2854
[July 26, 2006]
ON MOTION
TO
SET ASIDE MANDATE
WARNER, J.
We grant the motion to set aside mandate, withdraw our prior opinion
and substitute the following in its place.
We affirm the conviction and sentence of appellant for second degree
murder with a firearm. The appellant contends that his conviction
should be reversed because it was based entirely on circumstantial
evidence which did not refute the appellant’s reasonable hypothesis of
innocence. We conclude that this was not a circumstantial evidence
case, and even if it were, the evidence easily overcomes any reasonable
hypothesis of innocence. With respect to his sentence, we also conclude
that the trial court did not err in considering two prior convictions proved
by a photograph of the appellant and not by fingerprints.
“[C]ourts should not grant a motion for judgment of acquittal unless
the evidence is such that no view which the jury may lawfully take of it
favorable to the opposite party can be sustained under the law.” Lynch v.
State, 293 So. 2d 44, 45 (Fla. 1974). A special standard of review
applies, however, when proof of the offense depends entirely on
circumstantial evidence. Boyd v. State, 910 So. 2d 167, 180 (Fla. 2005).
In such a case, 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.” State v. Law, 559 So. 2d
187, 188 (Fla. 1989).
The appellant argues that the case against him was entirely
circumstantial because there was no confession, and none of the state’s
eyewitnesses saw a gun or specifically testified that they saw the
appellant shoot the victim. Contrary to the appellant’s position, there
was “direct” evidence that the appellant shot the victim. An eyewitness
testified that she saw the appellant’s arm extended toward the victim and
further saw smoke and sparks come from the appellant’s hand. The
victim dropped to the ground and died. This constitutes direct evidence
that the appellant caused the victim’s death even though no gun was
found and no other physical evidence tied the appellant to the crime.
In the present case, two eyewitnesses testified that they saw the
appellant extend his arm and hand toward the victim’s head. One
witness, Tanya, testified that she saw the appellant’s hand “jump” during
two shots. Furthermore, another witness, Leona, testified that she saw
smoke and sparks of fire coming from the appellant’s hand and that the
appellant was holding something silver in his hand. Leona testified that
she saw the appellant then walk to the front of the victim and again saw
smoke and sparks coming from his hand. Moreover, Leona testified that
she heard the appellant say, “That’s for my brother.”
Quite simply, there is no reasonable hypothesis of innocence
consistent with the following evidence presented by the state: 1) the
appellant extended his arm and hand toward the victim’s head while
holding a silver object; 2) the eyewitnesses heard several sounds
consistent with gunfire; 3) the appellant’s hand was observed “jumping”
with smoke and sparks coming out; and 4) the victim fell over and died.
The state therefore presented sufficient evidence from which the jury
could exclude every reasonable hypothesis of innocence. While the
credibility of many of the witnesses was severely tested at trial, the state
still presented a prima facie case, and the appellant has not suggested
what his reasonable hypothesis of innocence is. We assume that his
claim is that he was not the shooter, but multiple witnesses testified that
he was at the scene, and other witnesses testified as to remarks he made
there. The appellant’s challenge to his conviction is meritless.
As to his sentence, the appellant contends that the court erred in
considering two prior convictions on his scoresheet, because they were
not proved by fingerprints to be his convictions.
Although the
fingerprints on the judgment could not be compared to the appellant’s
current prints, the Department of Corrections’ fingerprint card for these
offenses also contained a photo identification of the appellant. Because
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of the photo identification, the state carried its burden of proof on the
issue. See Wencel v. State, 768 So. 2d 494 (Fla. 4th DCA 2000) (holding
that the state carried its burden of proof under the Prison Releasee
Reoffender Act through photographic evidence rather than fingerprint
comparison). The appellant could have presented evidence to rebut the
state’s proof, but he chose not to do so. Therefore, the trial court did not
err in relying on the identification evidence presented.
Affirmed.
GROSS and HAZOURI, JJ., CONCUR.
*
*
*
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Richard Oftedal, Judge; L.T. Case No. 02-5674 CFA02.
Victoria Vilchez of Victoria Vilchez & Associates, P.A., West Palm
Beach, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Thomas A.
Palmer, Assistant Attorney General, West Palm Beach, for appellee.
Not final until disposition of timely filed motion for rehearing.
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