IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

STEPHEN LAMONT EARLY,                NOT FINAL UNTIL TIME EXPIRES TO
                                     FILE MOTION FOR REHEARING AND
      Appellant,                     DISPOSITION THEREOF IF FILED

v.                                   CASE NO. 1D15-316

STATE OF FLORIDA,

      Appellee.


_____________________________/

Opinion filed March 3, 2017.

An appeal from the Circuit Court for Bradford County.
David L. Reiman, Judge.

Andy Thomas, Public Defender, and Pamela D. Presnell, Assistant Public Defender,
Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Matthew Pavese and Robert Lee, Assistant
Attorneys General, Tallahassee, for Appellee.




JAY, J.

      Appellant raises four issues in this direct appeal from his conviction and

sentence for the second-degree murder of Quinton Epps with a weapon, a knife.

After careful consideration, we affirm the conviction and sentence, and write only

to address Appellant’s two arguments asserting (1) Stand Your Ground immunity
and (2) common-law self-defense. With respect to both of these arguments,

Appellant asserts that the evidence must be considered undisputed in his favor

because the victim died, and because there were no eyewitnesses to the crime,

leaving only his own testimony. We reject this reasoning.

      (1) Stand Your Ground Immunity.

      Appellant argues that the trial court committed reversible error by denying his

motion to dismiss pursuant to section 776.032(1), Florida Statutes (2012), because

he established by a preponderance of the evidence that he reasonably believed it was

necessary to use deadly force to prevent imminent death or great bodily harm to

himself under section 776.012. Section 776.032(1) provides that a person using force

as permitted by sections 776.012, 776.013, or 776.031, Florida Statutes (2012), “is

immune from criminal prosecution and civil action for the use of such force” subject

to certain exceptions. The defendant bears the burden of proving entitlement to this

immunity by a preponderance of the evidence. Bretherick v. State, 

,

775 (Fla. 2015); Spires v. State, 

, 1176 (Fla. 3d DCA 2015); Hair v.

State, 

, 805 (Fla. 1st DCA 2009).

      When reviewing the trial court’s ruling on a motion to dismiss based on

immunity under section 776.032(1), the appellate court must apply the same

standard of review applicable to a ruling on a motion to suppress. 

; Mederos v. State, 

, 11 (Fla. 1st DCA 2012); 

805. Therefore, the trial court’s legal findings are reviewed de novo while the trial

court’s factual findings are reviewed for competent substantial evidence. Viera v.

State, 

, 604 (Fla. 3d DCA 2015); 

; 

. Moreover, the trial court’s decision is “‘clothed with a presumption

of correctness, and the [appellate] court must interpret the evidence and reasonable

inferences and deductions derived therefrom in a manner most favorable to

sustaining the trial court’s ruling.’” 

(citations omitted).

      (2) Self-Defense.

      Appellant also argues that the trial court erred in denying his motion for

judgment of acquittal because the state failed to rebut his reasonable hypothesis of

self-defense. The question of whether a defendant acted in justifiable self-defense is

generally a question for the jury. Morgan v. State, 

, 717 (Fla. 5th

DCA 2013); Stinson v. State, 

, 292 (Fla. 1st DCA 2009); Rasley v.

State, 

, 476 (Fla. 1st DCA 2004). “Once the defense presents a prima

facie case of self-defense, the state must disprove the defense beyond a reasonable

doubt.” 

; 

; 

. “If the state fails to sustain its burden, the trial court must grant a motion for

judgment of acquittal in favor of the defendant.” 

.

“However, a motion for judgment of acquittal based on self-defense should not be

granted unless ‘the evidence is such that no view which the jury may lawfully take

                                            3
of it favorable to the opposite party can be sustained under the law.’” 

v. State, 

, 45 (Fla. 1974)); 

; 

-77.

      “[E]ven when there are no other witnesses to the events besides the defendant,

a jury is not required to accept the defendant’s testimony in support of [his] self-

defense theory as true. Instead, it must consider the probability or improbability of

the defendant’s credibility in light of the circumstances established by other

evidence.” Leasure v. State, 

, 14 (Fla. 2d DCA 2012) (citations omitted).

“Thus, a motion for judgment of acquittal should be denied where a jury could

reasonably infer guilt and reject the defendant’s explanation of self-defense, either

because the defendant gave false, inconsistent, or incriminating statements, or

because a common sense view of the circumstantial evidence would allow the jury

to reject the defendant’s story as unbelievable.” Cruz v. State, 

, 826

(Fla. 4th DCA 2015).

                            Appellant’s Trial Testimony

      After initially giving law enforcement four different versions of events, at

trial, Appellant admitted that he had lied to police earlier because he was confused,

scared, and nervous. He testified to the following fifth version of events. He and the

victim were romantically involved, and had a history of disputes that sometimes

turned physical but had previously involved only use of bare hands, no weapons. He

                                          4
considered his partner possessive and was tiring of the relationship. On the night in

question, the couple were living at a hotel, but Appellant had been out of town

visiting family and friends, and the victim—apparently—did not like being left

behind.

      When he returned to the hotel, Appellant called the victim to let him know

that he was outside. Appellant went inside to use the bathroom, and the victim

walked outside and got into the driver’s seat of the car. When Appellant came out,

he got in the back seat of the vehicle. Appellant said he wanted to go back to his

mother’s house, and the victim said he would take him. When Appellant called his

mother and told her that he was coming home, the victim turned around in the

driver’s seat and began punching Appellant repeatedly in the head. Appellant leaned

down to try to grab the door latch so he could get out of the vehicle, and as he felt

around, he found a knife on the floor. According to Appellant, the victim’s repeated

blows prevented him from opening the door. Appellant was afraid he was going to

be seriously injured. While the victim was still striking him, Appellant “jabbed” the

victim with the knife to stop the attacks. Because the victim continued hitting him,

he “jabbed” the victim again with the knife; and after that, the attacks ended. When

he saw that the victim was injured, Appellant called 911.




                                         5
                               Other Evidence at Trial

      During its case-in-chief, the state presented evidence reflecting the following

sequence of events. Just prior to 4:00 a.m. on April 21, 2013, the sheriff’s office

received two simultaneous 911 calls from what appeared to be the same caller on

two different phones. The caller stated that his cousin had stabbed himself in the side

and urged the operator to “come on now please.” Two police officers were

dispatched to the hotel immediately. They heard someone shouting for help from the

rear of the hotel, where they found Appellant standing by the driver’s door of a car.

Appellant had small black objects in each hand, and threw the object from his left

hand into the car. An officer ordered Appellant onto the ground and found a folding-

blade pocket knife in Appellant’s front pocket. Appellant also had a cell phone in

his right hand. A very bloody fixed-blade knife was found on the ground nearby, and

a second cell phone, also bloody, was found inside the car. Appellant had fresh blood

droplets under his eye and on his right forearm, and blood that appeared to be older

and dried inside his lip. He did not have any obvious injuries, however.

      The victim was in the driver’s seat of the car, with blood coming from his

mouth, and his left side and front were soaked in blood. Despite efforts at

resuscitation, the victim was declared dead at the scene. During the autopsy, the

medical examiner identified two sharp force injuries to the victim’s left lateral chest

wall, one of which was the cause of death. The medical examiner admitted that it

                                          6
was plausible that the victim was sitting in the front seat while he was stabbed by a

person in the back seat. Swabs taken from the knife, cell phone, Appellant’s right

forearm, Appellant’s right cheek, and Appellant’s lip and chin all gave chemical

indications for the presence of blood. DNA from these swabs matched the victim’s

DNA profile. A partial DNA profile obtained from the victim’s fingernail clippings

matched Appellant’s DNA profile.

                      Appellant’s Multiple Versions of Events

      Appellant’s first version, given to the 911 dispatcher, was that his “cousin”

stabbed himself in the side.

      Appellant’s second version, given at the scene of the crime after Appellant

was read his rights and agreed to talk, was that when he came out the rear door of

the hotel into the rear parking lot area, he saw a black male dressed in black running

from the vehicle and out of the parking area. When the officer pressed Appellant on

the need to find the person who attacked the victim, Appellant replied that he did not

hurt the victim, that he loved the victim very much, and that he “wouldn’t do this.”

       Appellant’s third version, given under questioning at the police station, was

consistent with his trial testimony on the background and status of his relationship

with the victim, Appellant’s visit with friends out of town, and his return to the hotel

after the victim called him. Appellant claimed that he was walking to the hotel

bathroom when he saw the victim coming out of their room and walking toward the

                                           7
back door. Appellant then claimed that as soon as he came out of the bathroom, he

saw a black male running out of the parking area, whereupon he went out to the car,

saw the victim inside and bleeding under his armpit, and called 911. After further

questioning, Appellant stated that the blood in his mouth was the result of play

fighting or “slap boxing” with his cousin earlier in the evening.

      Appellant’s fourth version, given later in the interview at the police station,

was that he and the victim had an argument after he returned to the hotel; that he

passed the victim coming out of their room as he walked to the bathroom; that the

victim appeared angry; that he went to the car where the victim was sitting in the

front seat; that he got into the back seat because he was concerned that the victim

was going to hit him; that he argued with the victim, who was apparently jealous

that Appellant had left him at the hotel; and that when he told the victim he was

getting out of the car, the victim shoved him, hit him in the head, and tried to attack

him with a knife, which resulted in the victim being stabbed.

      Appellant’s fifth version, given when police challenged Appellant about how

the victim was stabbed, was that the victim had repeatedly hit Appellant in the head

and this caused Appellant to pick up a knife on the floor and stab the victim in self-

defense. This fifth version was consistent with Appellant’s trial testimony.




                                          8
                               Appellant’s Arguments

      On appeal, Appellant argues that he was entitled to a dismissal of the charges

under the Stand Your Ground Law, and was entitled to a judgment of acquittal for

self-defense as a matter of law. Contrary to Appellant’s assertion on appeal, the

evidence in this case was far from undisputed. As the only surviving witness to the

stabbing, Appellant’s credibility was a critical issue with respect to both of his

arguments. That credibility was undermined by the fact that he gave numerous

inconsistent statements regarding the stabbing and fully admitted that he lied to law

enforcement. These inconsistent statements, coupled with the physical evidence,

were legally sufficient to establish that Appellant (1) was not entitled to Stand Your

Ground immunity and (2) was not entitled to a judgment of acquittal for self-defense.

      Stand Your Ground Immunity. Even Appellant’s final version of what

happened—particularly his claim that the victim was the aggressor and inflicted

injuries on Appellant—cast substantial and material doubt on his credibility and on

the reasonableness of his claim to have been in fear of great bodily harm or death.

Specifically, the close confines of the interior of a car, especially with the victim in

the driver’s seat and having to reach over or between the seats to contact Appellant

in the back seat—and Appellant claiming to be cowering behind the protections of

the seat structure—cast doubt on the reasonableness of any argument that the victim

was, or could have been, inflicting blows that might lead to death or great bodily

                                           9
harm. Appellant had no visible injuries despite his claim that the victim hit him

multiple times in the head. Fresh blood on Appellant’s right forearm, right cheek,

lip, and chin was identified as belonging to the victim. Collectively, this evidence

justified the trial court’s refusal to confer Stand Your Ground immunity on

Appellant.

      Moreover, the trial court could have found it improbable that Appellant

propitiously discovered a kitchen knife on the car floor while he was being viciously

attacked from the front seat by the victim. A more plausible scenario would be that

Appellant brought the knife to the vehicle, got into an argument with the victim, and

stabbed the victim as he was preparing to drive away. Because Appellant gave a

multiplicity of contradictory statements about the events surrounding the stabbing

and because Appellant’s trial testimony was inconsistent with the physical evidence,

the trial court properly concluded that Appellant failed to prove his entitlement to

Stand Your Ground immunity by a preponderance of the evidence. See 

(agreeing with the trial court that “because of the myriad of

inconsistencies in her statements and the inconsistent medical evidence, Leasure

failed to prove entitlement to immunity by a preponderance of the evidence”).

      Self-Defense. The same reasoning and the same result apply to Appellant’s

claim of self-defense. The jury was not required to accept Appellant’s testimony as

true, but was required to evaluate his credibility in light of all of the

                                         10
evidence. 

. Because Appellant was the only surviving

witness to the stabbing, his credibility was a critical issue. As previously stated, that

credibility was seriously undermined when he gave numerous false and inconsistent

statements regarding the stabbing to the 911 operator and both police officers.

Appellant’s final version of what happened was called into question by testimony

that Appellant had no visible injuries, that fresh blood on Appellant was identified

as belonging to the victim, and that Appellant told the police investigator that the

suspected dried blood in his mouth was the result of his play fighting with his cousin

earlier in the evening. Finally, a jury could find it implausible that Appellant

miraculously discovered a kitchen knife on the car’s back floorboard while

defending himself from a front seat onslaught by the victim.

      Because a jury could reasonably reject Appellant’s self-defense claim based

on a belief that Appellant gave false and contradictory statements and because a

common sense view of the circumstantial evidence could allow a jury to reject

Appellant’s ultimate explanation of what occurred as not being credible, the trial

court properly denied Appellant’s motion for judgment of acquittal. See 

-15 (affirming the denial of murder defendant’s motion for judgment

of acquittal based on self-defense where defendant’s numerous inconsistent

statements cast significant doubt on her assertions that she had a reasonable fear of

death or great bodily harm and her version of events was not consistent with the

                                           11
evidence); 

(holding that the state’s evidence was sufficient

to rebut defendant’s theory of self-defense where the state presented evidence that

defendant lied to both the 911 operator and the police about her involvement in the

shooting and one of the police officers testified that the defendant did not appear

disheveled and did not have any bruises that would indicate that she was recently the

victim of domestic violence).

                                        Conclusion.

      Having concluded that the trial court’s rulings were proper, we affirm

Appellant’s conviction and sentence for second-degree murder with a weapon.

      AFFIRMED.

LEWIS and WETHERELL, JJ., CONCUR.




                                         12