Third District Court of Appeal State of Florida
Opinion filed November 6, 2024. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D23-0434 Lower Tribunal No. F20-15994 ________________
Eduardo Acosta, Appellant,
vs.
The State of Florida, Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Daryl E. Trawick, Judge.
Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.
Ashley Moody, Attorney General, and David Llanes, Assistant Attorney General, for appellee.
Before LOGUE, C.J., and EMAS and SCALES, JJ.
LOGUE, C.J. A jury convicted Eduardo Acosta of two counts of attempted second-
degree murder, two counts of aggravated assault, and one count of armed
robbery with a firearm, the jury finding that, in the course of committing the
crimes, the Defendant discharged a firearm. The trial court sentenced him
accordingly. The Defendant appeals his convictions and sentences. After
careful examination of the record, we find the trial court committed no
reversible error and affirm.
BACKGROUND
On November 3, 2020, the day of the 2020 presidential election,
Alfredo Garcia and Wilson Peralta encountered the Defendant on a small
island in Biscayne Bay near the Rickenbacker Causeway. An altercation
occurred between the Defendant, Garcia, and Peralta that resulted in the
State charging the Defendant with two counts of attempted first-degree
murder, two counts of aggravated assault, and one count of armed robbery.
Garcia and Peralta were the victims of these crimes. What happened during
this altercation is disputed.
At trial, the victims testified the following occurred. Garcia owned a jet
ski and attached a blue flag to it that read, “I’m Ridin’ with Biden.” On
November 3rd, around noon, Garcia and Peralta took the jet ski to the island.
2 Beforehand, they smoked marijuana but testified they did not smoke enough
to feel impaired.
They spent a few hours alone on the island, sipping White Claws, until
a small group of people arrived on jet skis. The Defendant was in this group.
Garcia was interested in the Defendant’s jet ski, so he approached him and
asked him what year it was. The Defendant then reacted aggressively,
lunging at Garcia and insulting him. He shouted at Garcia telling him that
Biden was a child molester and called Garcia a Mexican child rapist. The
people with the Defendant grabbed the Defendant and held him back. The
Defendant was eventually released, went over to Garcia’s jet ski, and tore
down Garcia’s Biden flag. Garcia then took out his phone and began
recording short clips of the Defendant. Peralta also intervened, telling the
Defendant to calm down. The Defendant did not calm down. Instead, he
reached for a black bag in the dry compartment of his jet ski. The other
people with the Defendant tried taking the bag away from him. Garcia then
called 911 and requested police intervention.
Before the police could arrive, the Defendant jetted away with his
friends. Peralta testified that he saw the friends ski over to a party boat
nearby. But the Defendant circled around and came back. Seeing the
Defendant was back, Garcia and Peralta hopped onto Garcia’s jet ski and
3 tried to leave. As they did, they saw the Defendant go for the black bag again.
Peralta testified that he saw the Defendant open the black bag and pull out
a black handgun with a yellow stripe. The two then jetted off the island
without putting on life jackets. But the Defendant chased them.
Garcia drove while Peralta hung onto him from behind. They went
about 60 miles per hour. At one point, Peralta turned around and saw the
Defendant pointing his gun at them. Garcia and Peralta both testified they
then heard the gun fire once and a bullet fly by their heads. Terrified, Garcia
began to intentionally drive erratically to lose the Defendant. They then came
upon a boat and drove in circles around it yelling for help. Garcia then took
too sharp of a turn and the two were thrown off.
As they were treading water, the Defendant drove up to them. He went
up to Peralta first, pointed the gun to his head and told him to admit that he
was a child molester. Peralta told the Defendant that he was just a kid and
begged for his life. The Defendant spared Peralta, then went to Garcia and
did the same. The Defendant then warned Garcia and Peralta to never come
back to the island again or he would kill them. The Defendant then drove
over to Garcia’s jet ski, tied it to his and towed it away.
A couple of the Defendant’s friends then skied over to Garcia and
Peralta, picked them up, and dropped them back off on the island. A police
4 boat arrived minutes later. The police took Garcia and Peralta to Key
Biscayne where the two had parked. Garcia then used an iPad to find his jet
ski. He was able to do so because he left his cell phone in it and was able to
locate his cell phone via the iPad. The police then recovered Garcia’s jet ski
from a manatee sanctuary that had signs around it restricting public entry.
Within the next day, Garcia began to scour social media for the
Defendant. He quickly identified the Defendant’s personal and professional
Instagram accounts. On one of the Defendant’s accounts, the Defendant
posted two videos he recorded prior to November 3rd. In one video, Garcia
is seen with his Biden flag on the same island. At one point, the video
zoomed in on Garcia and the Defendant is heard calling Biden supporters
pedophiles. Garcia was shown the video at trial, and he identified himself in
the video and the Defendant’s voice. The other video showed the Defendant
filming flags with President Donald Trump’s name on them and he appeared
to have a positive reaction.
During cross, the defense attempted to impeach both victims’
testimony of the chase by playing security footage shot from Key Biscayne.
The defense suggested through its questioning that the video did not show
a chase occurred. The defense conceded that a gun was fired in the video.
5 But the defense intimated that the bullet did not land in a manner consistent
with the gun being fired intentionally at the victims.
The State also admitted a 911 call made by an anonymous witness.
The witness stated that she saw someone point a gun and shoot at two
people on a jet ski in the location of the incident.
When the State rested the Defendant moved for a judgment of acquittal
on the attempted murder and the robbery charges.1 Starting with the robbery
charge, the Defendant argued that the State did not prove that he used force
or the threat of force to take Garcia’s jet ski. He reasoned the evidence did
not show that (1) he “contemporaneously” pointed his gun at the victims and
took the jet ski; (2) he intended to take the jet ski when he pointed the gun at
the victims; and (3) the victims had control over the jet ski when he took it.
The Defendant contended that, at most, his actions amounted to aggravated
assault and theft, but not robbery.
As to the attempted murder charges, the Defendant argued the State
did not prove that the Defendant intentionally fired his gun. Rather, the
security footage showed he accidentally fired it. The defense maintained that
a splash of water could be seen in the video right after the gun fired, and the
1 The defendant “stipulate[d] that the prima facie elements have been met” for the aggravated assault counts.
6 location of the splash was inconsistent with the theory that the Defendant
shot at the victims. Thus, the Defendant clearly did not intend to shoot at
them.
After the trial court denied the motion, the Defendant testified and
relayed a different version of events. In relevant part, he testified that the
victims had been drinking and smoking marijuana right before the interaction.
He also testified that Garcia was the initial aggressor, that Garcia randomly
came up behind him and tried to strangle him, and that Peralta recorded the
interaction from behind a tree. Further, when his friends left the island, the
victims drove off at the same time, leaving the Defendant alone on the beach.
But he saw the victims returning to the island, and he feared they were going
to harm him, so he left and followed behind them to make sure they could
not shoot at him, even following them as they circled the boat. He explained
that he pulled out his gun at that point. And that the gun accidentally
discharged when he did so because the water was choppy. He admitted
taking Garcia’s jet ski. But he explained he did so not to permanently deprive
them of it, but because he did not want the victims to get back on the jet ski
and threaten him further.
At the close of all evidence, the Defendant renewed his motion for a
judgment of acquittal. The trial court again denied it.
7 The jury ultimately returned a guilty verdict, finding the Defendant guilty
as charged on all counts but the attempted first-degree murder charges,
instead finding him guilty of two counts of attempted second-degree murder.
The jury also found, in the special interrogatories, that the Defendant
discharged a firearm in the commission of the robbery. The trial court entered
its judgment accordingly.
Before the trial court entered its sentences, the Defendant moved for
a new trial and renewed its motion for a judgment of acquittal a second time.
In arguing for a new trial, the Defendant maintained the jury could not find he
discharged a firearm during the robbery because such a finding was contrary
to the weight of the evidence, which indicated the gun was shot prior to when
the alleged robbery began. In his second renewed motion for a judgment of
acquittal, the Defendant raised the same issues as at trial. After a hearing,
the trial court denied the motions.
The trial court then held a sentencing hearing. There the trial court
determined that because the jury found the Defendant discharged his gun
during the commission of his attempted murders and robbery, his sentences
for these convictions were “enhanced” to the 20-year mandatory minimum
found in § 775.087(2), Florida Statutes. The Defendant timely appealed his
convictions and sentences.
8 ANALYSIS
The Defendant argues the trial court erred when it admitted the
Defendant’s Instagram videos, and when it denied his motions for a judgment
of acquittal and for a new trial. None of these arguments have merit.
A. The Defendant Failed to Preserve the Issue of the Admission of the Instagram Videos.
The Defendant maintains his Instagram videos were irrelevant to the
State’s case and the trial court thus erroneously admitted them. But the
Defendant did not move to exclude or otherwise object to the admission of
the videos. The issue is thus unpreserved for this Court’s review. See Lubin
v. State, 286 So. 3d 811, 813 (Fla. 3d DCA 2019) (holding that the
defendant’s failure to contest the admission of character evidence at trial
precluded him from raising the issue on appeal).
Moreover, the Defendant did not argue that the admission of the videos
fell under the fundamental error exception to the preservation rule. Nor can
he, as the videos were ultimately relevant to show the Defendant saw Garcia
before the incident with his Biden flag which would go to the issue of
premeditation. Plus, the video the Defendant took of the Trump flags was
admissible because the State’s theory was that the Defendant was, at least
in part, politically motivated. See § 90.404, Fla. Stat. (2024) (“Similar fact
evidence of other crimes, wrongs, or acts is admissible when relevant to
9 prove a material fact in issue, including, but not limited to, proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident, but it is inadmissible when the evidence is relevant
solely to prove bad character or propensity.”).
B. The Trial Court Correctly Denied the Defendant’s Motions for a Judgment of Acquittal.
The Defendant contests the sufficiency of the evidence supporting his
armed robbery and attempted second-degree murder convictions. “When the
defendant in a criminal appeal challenges the sufficiency of the State’s
evidence, the appellate court conducts a de novo review of the trial record to
ensure that the guilty verdict is supported by competent, substantial
evidence regarding each element of the charged crime.” Garcia v. State, 373
So. 3d 1213, 1222 (Fla. 3d DCA 2023), rev. denied, SC2023-0668, 2023 WL
6389749 (Fla. Sept. 29, 2023) (quoting Rodriguez v. State, 335 So. 3d 168,
171 (Fla. 3d DCA 2021)). “In conducting its review of the record, the
appellate court does not reweigh the evidence, but simply determines
whether competent, substantial evidence has been presented by the State
as to each element of the crime.” Id. (citing Durousseau v. State, 55 So. 3d
543, 556 (Fla. 2010)). And the State did so here.
10 1. Robbery Conviction
To prove armed robbery, the State needed to show the Defendant (1)
took “property which may be the subject of larceny from the person or
custody of another”; (2) “with intent to either permanently or temporarily
deprive the person” of the property; (3) “when in the course of the taking . . .
use[d] [ ] force, violence, assault, or putting in fear”; and (4) “in the course of
the taking . . . carried a firearm or other deadly weapon.” §§ 812.13(1), (2)(a)
Fla. Stat. (2024).
The Defendant argues the State failed to prove the first and second
elements.2 As to the first element, the Defendant argues that because he
took the jet ski after the victims were thrown off it, and when it was floating
away from them, he did not take it from their custody. But “property need not
be in ‘the actual physical possession or immediate presence of the person
who was robbed’ for a taking to occur.” Ridgeway v. State, 128 So. 3d 935,
938 (Fla. 1st DCA 2013) (quoting Perry v. State, 801 So. 2d 78, 86–87 (Fla.
2001)). “Property is taken from ‘the person or custody of another’ if it is
sufficiently under the victim’s control so that the victim could have prevented
2 The Defendant also contests the third and fourth elements to the extent the jury found that he carried and discharged his gun during the commission of the robbery. But because he raised this issue in his motion for a new trial and not in the acquittal motions, we address these issues in our analysis of the trial court’s denial of the Defendant’s motion for a new trial.
11 the taking if she had not been subjected to the violence or intimidation by the
robber.” Perry, 801 So. 2d at 87.
The State presented sufficient evidence showing that the Defendant
instilled fear in the victims and this fear prevented them from swimming back
to the jet ski. While the Defendant suggests the jet ski may have drifted too
far from the victims for them to swim to it, other than the Defendant’s
speculation, nothing in the record indicates it had. Thus, there was sufficient
evidence to support the jury’s finding that the jet ski was in the victims’
custody when the Defendant took it.
As to the second element, the Defendant contends that when he used
force, he did not do so with the intent of taking the jet ski. The taking was an
“afterthought” constituting theft—but not robbery.
The “afterthought” theory has been squarely addressed by the Florida
Supreme Court.
Where an “afterthought” argument is raised, the defendant’s theory is carefully analyzed in light of the entire circumstances of the incident. If there is competent, substantial evidence to uphold the robbery conviction, and no other motive for the [use of force] appears from the record, the robbery conviction will be upheld. Conversely, in those cases where the record discloses that, in [using force], the defendant was apparently motivated by some reason other than a desire to obtain the stolen valuable, a conviction for robbery (or the robbery aggravator) will not be upheld. Id. (quoting Beasley v. State, 774 So. 2d 649, 662 (Fla. 2000)).
12 Based on the entire circumstances surrounding this incident, it was
reasonable for the jury to find that the Defendant’s goal was to take the jet
ski. The Defendant ripping the Biden flag off the victims’ jet ski and his
comments disparaging Biden could reasonably indicate he did not want the
victims driving the jet ski around the island flying the Biden flag ever again.
Further, the Defendant pointed his gun at the victims while they were
treading water and threatened to kill them if they ever went back to the island.
From this evidence, a jury could also reasonably find the Defendant was
intimidating the victims to not only make them fear retaliation if they returned
to the island, but also so he could take the jet ski and ensure they could not.
There was therefore sufficient evidence to support the jury’s finding that the
Defendant used force with the intent of taking the jet ski.
The trial court therefore properly denied the Defendant’s motions for a
judgment of acquittal on his armed robbery conviction.
2. Attempted Second-Degree Murder Convictions
To prove attempted second-degree murder, the State needed to show
that the Defendant attempted3 to kill a human being by engaging in “any act
3 “A person who attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such offense, but fails in the perpetration or is intercepted or prevented in the execution thereof, commits the offense of criminal attempt[.]” § 777.04(1), Fla. Stat. (2024).
13 imminently dangerous to another and evincing a depraved mind regardless
of human life, although without any premeditated design to effect the death
of any particular individual.” § 782.04(2), Fla. Stat. (2024). The Florida
Supreme Court explained that a defendant must have “intentionally
committed” the imminently dangerous act. Coicou v. State, 39 So. 3d 237,
241 (Fla. 2010) (quoting State v. Florida, 894 So. 2d 941, 945 (Fla. 2005)
(receded from on other grounds)).
The Defendant maintains the State did not prove he intentionally shot
at the victims. He claims that the security footage “conclusively” shows that
he accidentally discharged his gun—and because the footage contradicts
the victims’ testimony indicating he pointed his gun at them and shot, the trial
court should have found that the video negated the testimony and entered a
judgment of acquittal.
The Defendant relies on Wiggins v. Florida Department of Highway
Safety & Motor Vehicles, 209 So. 3d 1165 (Fla. 2017) to argue that a court
can independently review a video and find that testimony allegedly
contradicting that video is incompetent and insufficient. But Wiggins is
inapplicable here. It held that a court conducting a first-tier review of a “DUI
license suspension . . . applies the correct law by rejecting [ ] testimony . . .
when that testimony is contrary to and refuted by objective real-time video
14 evidence.” Id. at 1175. Its holding is narrowly limited to DUI appeals, so it
does not apply to this attempted second-degree murder appeal.
The law in Florida is currently unsettled as to whether, in other
contexts, a court can review a video and independently find that it completely
invalidates other evidence. Compare Lopez v. Wilsonart, LLC, 275 So. 3d
831, 834 (Fla. 5th DCA 2019), approved, 308 So. 3d 961 (Fla. 2020) (“[B]y
finding that the video evidence, as compelling as it was, completely negated
both the independent eyewitness testimony as well as the [ ] expert’s opinion,
the trial court improperly weighed competing evidence on material facts [at
summary judgment under the old standard]. . . . [I]t would be the jury’s job to
assess the credibility of the [ ] witnesses as to the cause of the accident and
to weigh and compare [ ] conflicting evidence, including the videotape.”) with
Scott v. Harris, 550 U.S. 372, 380–81 (2007) (“Respondent’s version of
events is so utterly discredited by the record that no reasonable jury could
have believed him. The Court of Appeals should not have relied on such
visible fiction [at summary judgment]; it should have viewed the facts in the
light depicted by the videotape.”).
Even so, the extent to which a video can ever conclusively show intent
is questionable. Particularly here where the video is taken from far away and
is grainy. The splash the Defendant claims was the result of the bullet
15 landing, could also be the result of any number of things, including a fish
jumping out of the water. Even if the splash was from the bullet hitting the
water, its location merely suggests that the Defendant’s aim was off. It does
not indicate whether he intended to pull the trigger. The jury was thus free to
conclude, in light of all the evidence presented, that the Defendant intended
to shoot the gun at the victims.
The trial court thus properly denied the Defendant’s motion for a
judgment of acquittal on the attempted second-degree murder conviction.
C. The Trial Court Correctly Denied the Defendant’s Motion for a New Trial.
The Defendant argues there should be a new trial on the armed
robbery charge because, against the manifest weight of the evidence, the
jury found that the Defendant discharged his gun during the commission of
the robbery. The State responds that this issue is not reviewable on direct
appeal. If it is, the trial court correctly denied the motion for new trial. While
the State’s procedural argument is unpersuasive, it correctly maintains that
the trial court did not abuse its discretion when it found that the jury’s finding
was not contrary to the manifest weight of the evidence.
16 1. The Jury’s Finding Is Reviewable on Direct Appeal.
In special interrogatories, the jury found that the Defendant discharged
his gun during the commission of the robbery. The State contends this finding
was an element of the sentencing enhancement found in § 775.087(2)(a)2.,
but was not an element of the underlying robbery which only required “force”
be proven. And this was proven when the Defendant pointed his gun at the
victims when they were in the water. So, the propriety of the jury’s finding is
a sentencing issue unrelated to the underlying conviction which the
Defendant needs to first raise in a Florida Rule of Criminal Procedure
3.800(b) motion. While this may be a sentencing issue in part, the issue also
goes to the underlying conviction—and to the extent it is a sentencing issue,
it is one reviewable on direct appeal.
The jury’s findings of fact triggered a mandatory minimum sentence of
20 years in prison. See § 775.087(2)(a)2., Fla. Stat. (2024) (“Any person who
is convicted of a felony or an attempt to commit a felony listed in sub-
subparagraphs 1.a.-p. or sub-subparagraph 1.r. [which include robbery], . . .
and during the course of the commission of the felony such person
discharged a ‘firearm’ . . . shall be sentenced to a minimum term of
imprisonment of 20 years.”). Challenging the sufficiency of this finding is not
contemplated in rule 3.800(b).
17 Rule 3.800(b) is used to challenge errors made by the trial court in its
sentencing orders, but not errors in the sentencing process. As the Florida
Supreme Court explained in Jackson v. State, 983 So. 2d 562, 572 (Fla.
2008), it has “never held that any error that happens to occur in the
sentencing context constitutes a ‘sentencing error’ under [rule 3.800(b)].
Instead, errors [it has] recognized as ‘sentencing errors’ are those apparent
in orders entered as a result of the sentencing process.” It gives examples
of rule 3.800(b) sentencing errors which include: “claims that the defendant
was improperly habitualized,” “that the sentence exceeds the statutory
maximum,” “that the scoresheet was inaccurate,” “that the trial court
improperly imposed a departure sentence,” and so forth. Id. These examples
are technical errors in the trial court’s order.
The validity of the jury’s finding on a question of fact that triggers a
mandatory sentence is not a technical issue and is reviewable on direct
appeal. See, e.g., Pula v. State, 652 So. 2d 981, 982 (Fla. 5th DCA 1995)
(“The validity of written reasons to support an upward departure from the
permissible guidelines sentence is an issue that should and must be raised
in the context of the direct appeal.”).
Moreover, the jury’s finding relates to the underlying armed robbery
conviction. An element of robbery is the use of force. Shooting the gun would
18 satisfy this element. So, while the special interrogatory may have been
included because it went to the sentencing issue, we cannot ignore the fact
that it also satisfied an element of the robbery conviction. And this Court can
certainly review the sufficiency of this finding on direct appeal.
2. The Jury’s Finding Is Not Contrary to the Evidence.
The Defendant argues that the trial court should have granted him a
new trial on the armed robbery conviction and corresponding mandatory
sentence because the jury’s finding that he discharged a firearm in the
course of committing the robbery is “contrary to . . . the weight of the
evidence.” Fla. R. Crim. P. 3.600(a)(2). “A trial court’s denial of a motion for
a new trial is reviewed under an abuse of discretion standard. In order to
demonstrate abuse, the nonprevailing party must establish that no
reasonable person would take the view adopted by the trial court.” Tundidor
v. State, 221 So. 3d 587, 603 (Fla. 2017) (quoting Stephens v. State, 787
So. 2d 747, 754 (Fla. 2001)). The trial court did not abuse its discretion.
The jury finding that a firearm was discharged during the incident is not
contrary to the weight of the evidence. Indeed, the Defendant does not
contest this fact. Rather, he argues that the evidence does not support the
finding that the gun was fired as part of a “continuous series of acts.”
19 The robbery statute defines force used “in the course of the taking” as
force occurring “either prior to, contemporaneous with, or subsequent to the
taking of the property and if it and the act of taking constitute a continuous
series of acts or events.” § 812.13(3)(b), Fla. Stat. (2024). The sentencing
statute uses the phrase “during the course of the commission of the felony,”
which is substantially the same phrase. § 775.087(2)(a)2., Fla. Stat. (2024).
Under these definitions, the jury’s finding is not contrary to the weight
of the evidence. The gun was fired during a rapid sequence of events ending
with the Defendant taking the jet ski. There may have been a slight pause in
the events, but not enough to tip the scales. The trial court thus did not abuse
its discretion when it determined the jury’s finding was not contrary to the
weight of the evidence.
Affirmed.