DeJesus v. State

98 So.3d 105

Emanuel DeJESUS, Appellant,

v.STATE of Florida, Appellee.

No. 2D10–5955.

District Court of Appeal of Florida, Second District.

July 18, 2012.

James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.

SILBERMAN, Chief Judge.

Emanuel DeJesus seeks review of his judgment and sentence for robbery, battery, and assault. DeJesus argues that the trial court abused its discretion in denying his request for a special jury instruction on taking property as an afterthought. We agree and reverse.

DeJesus stood trial on charges of robbery with a firearm, aggravated battery with a firearm, and aggravated assault with a firearm. The charges arose from an incident that occurred at the apartment of Vanessa Bracho, a woman who had been dating both DeJesus and Nerber Iglesia, the victim. DeJesus had lent Vanessa his cell phone, but she had refused to return it and would not accept DeJesus's calls. On the day of the incident, the victim was visiting Vanessa at her apartment. DeJesus texted Vanessa from the cell phone of his friend Pablo Muniz and asked her to return his phone. Vanessa called Muniz's cell phone and spoke with Muniz. According to the victim, Vanessa was trying to provoke a fight between the victim and DeJesus. The victim decided to leave because he did not want to be involved. But DeJesus testified that an angry male, presumably the victim, called Muniz's phone and threatened to beat up DeJesus if he showed up at Vanessa's apartment.

DeJesus, Muniz, and a third man arrived at Vanessa's apartment shortly thereafter. According to the victim, the men were wielding firearms and pistol-whipped him, knocked him to the ground, and kicked him. While the victim was curled up in a fetal position pretending to be unconscious, the men talked about killing him. Vanessa interrupted and convinced the men to rob the victim instead. The men took the victim's cell phone, wallet, Bluetooth earpiece, and car keys. Then they resumed kicking and hitting him, and Vanessa joined in the attack. The men finally left, and Vanessa left with them. On the way out of the apartment complex, they stole some papers from the victim's car.

Although DeJesus did not testify at trial, the State admitted his prior testimony in which he admitted to hitting the victim but claimed he did so in self-defense. According to DeJesus, when he arrived at the apartment the victim was battering Vanessa. DeJesus, who was a former champion amateur boxer, intervened, and the victim swung at him. DeJesus ducked and hit the victim. Vanessa walked past the two to retrieve DeJesus's cell phone from her bedroom, and the victim turned on Muniz. After the victim swung at Muniz, Muniz punched the victim, knocking the victim to the floor. According to DeJesus, it was Vanessa who went though the seemingly unconscious victim's pockets on her own initiative.

At trial, DeJesus requested the following special jury instruction on afterthought: “If the evidence shows that the taking of property occurred as an afterthought to the use of force or violence against the victim, the taking does not constitute robbery, but may still constitute theft.” The trial court refused to give the instruction, and it is this ruling that is the subject of DeJesus's appeal.

To establish entitlement to a special jury instruction, the defendant must prove the following three factors: (1) the special instruction correctly states the law and is not confusing or misleading, (2) the standard instruction is not adequate to explain the theory of defense, and (3) there is evidence supporting the special jury instruction. Wheeler v. State, 4 So.3d 599, 605 (Fla.2009). In denying DeJesus's request for the special instruction on taking property as an afterthought, the trial court determined that he had not proven these three factors. We disagree.

As to the first factor, the special instruction correctly states the law and is not confusing or misleading.

One of the differences between a robbery and a theft is that in a robbery, “in the course of the taking there is the use of force, violence, assault, or putting in fear.” If the force or violence is motivated by a reason other than to rob the victim, then the taking of the property would not constitute a robbery.

Perkins v. State, 814 So.2d 1177, 1178 (Fla. 4th DCA 2002) (citation omitted); see also Mahn v. State, 714 So.2d 391, 397 (Fla.1998) (holding that the State failed to prove a robbery because the evidence established...