Case Number: 3D15-709
Judge: Kevin M. Emas
Court: Third District Court of Appeal State of Florida
Plaintiff's Attorney: Pamela Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant Attorney General
Defendant's Attorney: Kevin M. Emas
Description: The evidence at trial, in a light most favorable to upholding the jury’s
verdict, established the following:
On the night of March 21, 2012, David Montesino, his girlfriend Janette
Garcia, and their six-year old daughter were leaving their third-floor apartment to
get something to eat. Montesino began walking down the stairs with his daughter,
with Garcia not far behind. When Montesino reached the bottom of the stairs and
began walking towards his car, he was approached by Newbhard, who was
pointing a gun at him and demanding Montesino hand over the gold chain around
Montesino’s neck. Montesino took several steps back, at which time Newbhard
grabbed Montesino’s daughter, pointed the gun to her head, and demanded that
Montesino hand over his chain. When Montesino confronted Newbhard,
Newbhard released the daughter.
By this point, Garcia had reached the bottom of the stairs, and Newbhard
grabbed Garcia and pointed the gun to her head, again demanding that Montesino
hand over his chain. Montesino agreed to give Newbhard his chain and, as he took
off the chain and held it in his hand, Newbhard released Garcia.
Newbhard and Montesino continued to argue and, during this time,
Montesino knocked Newbhard’s hat off his head, allowing Montesino a clear view
of Newbhard’s face. Thereafter, Montesino began to run, but Newbhard shot
Montesino twice—once in the hand and once in the leg. After Montesino was shot,
and while still running away from Newbhard, Montesino threw his gold chain at
Newbhard. Newbhard then fled the scene with Montesino’s gold chain.
Montesino survived his injuries, and both he and Garcia identified Newbhard as
Newbhard was arrested and charged by amended information with, inter
alia, armed robbery of Montesino; attempted felony-murder with a deadly weapon
upon Montesino; aggravated assault with a firearm upon the daughter; and
aggravated assault with a firearm upon Garcia.
Following a jury trial, Newbhard was convicted of all counts. The trial court
adjudicated Newbhard guilty and sentenced him to life in prison on the armed
robbery and the attempted felony-murder and to five years in prison for each
aggravated assault, all sentences to run concurrently.1 This appeal follows. ANALYSIS We look first to the relevant language of the felony-murder and robbery
statutes, as well as the allegations contained in the information. We then consider
the evidence presented at trial to determine whether, as Newbhard asserts, the State
relied upon the same intentional act in proving both the felony-murder and the
underlying robbery offense.
The attempted felony-murder statue provides in relevant part:
Any person who perpetrates or attempts to perpetrate any felony enumerated in s. 782.04(3)2 and who commits, aids, or abets an intentional act that is not an essential element of the felony and that could, but does not, cause the death of another commits a felony of the first degree . . . .
§ 782.051(1), Fla. Stat. (2012).
The robbery statute provides in relevant part:
(1) “Robbery” means the taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or
1 Newbhard was also charged with possession of a firearm by a convicted felon. The court severed that count for trial and, following the trial and convictions on the above-described counts, Newbhard entered a plea to this remaining charge and was sentenced to a three-year mandatory minimum sentence, to run concurrent with the sentences for the other counts. 2 Robbery is an enumerated felony. See § 782.04(3)(d), Fla. Stat. (2012). 4
the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.
. . .
(2)(a) If in the course of committing the robbery the offender carried a firearm or other deadly weapon, then the robbery is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084.
. . .
(3)(b) An act shall be deemed “in the course of the taking” if it occurs 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, Fla. Stat. (2012).
Count Six of the information, charging Newbhard with attempted felony
murder, alleged that Newbhard
did, by an act imminently dangerous to another and evincing a depraved mind regardless of human life, while engaged in the perpetration of, or in attempt to perpetrate, robbery, and did commit, aid, or abet an intentional act that is not an essential element of the felony and that could, but does not, cause the death of another, to wit: DAVID MONTESINO, by SHOOTING AT HIM, and during the course of the commission of the offense, said defendant discharged a firearm or destructive device, and as a result of the discharge, death or great bodily harm was inflicted upon DAVID MONTESINO, a human being and in the commission of said felony, the defendant carried, displayed, used, threatened, or attempted to use
a weapon, to wit: A FIREARM in violation of s. 782.051(1) and s. 775.087, Fla. Stat. . . . . (Emphasis added).
Importantly, and as the highlighted portion above shows, the State alleged,
as the underlying felony, robbery or attempted robbery.
Count Two, charging robbery, alleged that Newbhard
did unlawfully, by force, violence, assault, or putting in fear, take certain property, to wit: A NECKLACE AND/OR PENDANT. . ., the property of DAVID MONTESINO, with the intent to temporarily or permanently deprive the above-named owner(s) or custodian(s) of the said property, and/or during the course of the commission of the offense, said defendant discharged a firearm or destructive device, and as a result of the discharge, death or great bodily harm was inflicted upon DAVID MONTESINO. . . .
In order to prove the crime of robbery, the State had to establish that “in the
course of the taking there is the use of force, violence, assault, or putting in fear.”
§ 812.13(1), Fla. Stat. To constitute robbery under the statute, it is not necessary to
prove that the use of force was precisely contemporaneous with the taking itself.
Instead the use of force will support a robbery conviction if it “occurs either prior
to, contemporaneous with, or subsequent to the taking of the property and if it [the
use of force, violence, assault or putting in fear] and the act of taking constitute a
continuous series of acts or events.” § 812.13(3)(b).
Newbhard asserts that the shooting of the firearm—i.e., the “intentional act”
relied upon for the felony-murder charge—also constituted the “use of force,
violence, assault or putting in fear” for the underlying robbery. Newbhard points to
the fact that the robbery was not
completed (that is, Montesino did not give up the gold chain) until after Newbhard
shot Montesino. Therefore, Newbhard argues, the act of shooting Montesino with
a firearm constituted the use of force “in the course of the taking” and therefore
could not simultaneously be relied upon by the State as the intentional act
necessary to support a conviction for felony-murder. Newbhard argues that his
conviction and sentence for attempted felony-murder must therefore be reversed.
The State counters that the evidence at trial established that Newbhard
engaged in multiple acts, any one of which could serve to satisfy the use of force
element of robbery. The State is correct that the evidence at trial established that
Newbhard engaged in multiple acts involving the use of force. For example:
• When Newbhard initially pointed the gun at Montesino and demanded that he hand over his gold chain;
• When Newbhard later grabbed Montesino’s daughter, pointed the gun to her head, and demanded Montesino hand over his chain; and
• When Garcia reached the bottom of the stairs, Newbhard grabbed Garcia, pointed the gun to her head, and demanded Montesino hand over his chain.
Any one of these acts, standing alone, was sufficient to satisfy the robbery
statute’s requirement that “in the course of the taking there is the use of force,
violence, assault, or putting in fear.”
The infirmity in Newbhard’s argument is that it overlooks one important
point: in order to prove attempted felony-murder, the State was not required to
establish that Newbhard successfully completed the underlying robbery; rather, the
attempted felony-murder offense could be established by proof that Newbhard
committed or attempted to commit the underlying robbery. See § 782.051(1), Fla.
Stat. (2012) (providing: “Any person who perpetrates or attempts to perpetrate any
felony enumerated in s. 782.04(3) . . . .”).
Thus, in establishing the crime of attempted felony-murder, the use of force
element of the underlying felony (robbery or attempted robbery) was established
by proof that Newbhard pointed a gun at Montesino and demanded his gold chain;
or by proof that Newbhard grabbed the daughter and pointed a gun to her head and
demanded the chain; or by proof that Newbhard grabbed Garcia and pointed a gun
to her head and demanded the chain. The fact that Newbhard did not succeed in
obtaining the chain as a result of any one of these acts is irrelevant to proof of the
attempted robbery as the underlying offense of attempted felony-murder.
In similar fashion, the fact that Newbhard later used force, violence, assault
or putting in fear against Montesino—by shooting Montesino and thereafter
obtaining possession of the gold chain—is not essential to proving that Newbhard,
while attempting to perpetrate a robbery, committed the additional intentional act
of shooting Montesino.3
3 To adopt Newbhard’s reasoning would appear to produce this anomalous result: where the defendant managed to successfully complete the robbery and obtain the property by shooting the victim, the defendant could not be convicted of attempted felony-murder. However if, even after shooting the victim, the defendant was still unable to obtain the victim’s property, the defendant could be convicted of 8
Newbhard relies for his position on Milton v. State, 161 So. 3d 1245 (Fla.
2014). In Milton, the defendant fired multiple gun shots at a crowd of people
standing in front of a house. The defendant was charged with, inter alia, three
counts of attempted felony-murder (involving three separate victims), and the
underlying felony alleged for each of these counts was attempted second-degree
murder. For each of these counts, the same individual constituted the victim of
both the attempted felony-murder and the underlying attempted second-degree
murder. Id. at 1246. The State alleged that the intentional act—which could have
resulted in each victim’s death but was not an essential element of the underlying
attempted second-degree murder—was Milton’s act of discharging a firearm. Id.
at 1247. Relevant to our discussion, Milton was convicted of three counts of
attempted felony-murder. This court affirmed those convictions.
On appeal to the Florida Supreme Court, the defendant in Milton argued that
because the discharge of a firearm was the only act that could satisfy an essential
element of the attempted second-degree murder (intentionally committing an act
that could have resulted, but did not result in, the victim’s death),4 this same act
attempted felony-murder. 4 See State v. Florida, 894 So. 2d 941, 945-46 (Fla. 2005) (receded from on other grounds by Valdes v. State, 3 So. 3d 1067 (Fla. 2009)) (holding that an essential element of attempted second-degree murder is that “the defendant intentionally committed an act that could have resulted, but did not result, in the death of someone”). 9
could not also be relied upon as the “intentional act” necessary to prove the
The State countered that because the defendant fired multiple gun shots,
only the initial shot was an essential element of the underlying attempted second
degree murder, and the subsequent shots fired by Milton were not an essential
element of the underlying felony. The Supreme Court rejected the State’s
argument, holding that “Milton’s single act of discharging a firearm did not satisfy
the ‘intentional act’ element of attempted felony murder, as it was an essential
element of the underlying attempted second-degree murder.” Id. at 1250. The
Court vacated the attempted felony-murder conviction.
Milton is distinguishable, given that the underlying felony in that case was
attempted second-degree murder, and given the Court’s determination that the
multiple discharges of the firearm constituted a single act. Under those particular
facts, the act of discharge was an essential element of both the attempted felony
murder and the attempted second-degree murder. No such facts or circumstances
are present in the instant case.
Newbhard’s reliance on Coicou v. State, 867 So. 2d 409 (Fla. 3d DCA 2003)
(quashed on other grounds, 39 So. 3d 237 (Fla. 2010)), is similarly misplaced. In
Coicou, a meeting was arranged at which an individual named Artis was going to
buy cocaine from Coicou. When the two met up, Artis handed his money to
Coicou. After counting the money, 10
Coicou showed Artis the cocaine. When Artis asked to sample the drugs, Coicou
pulled out a gun, shot Artis, and left the scene with the buyer’s money. Artis
survived, and Coicou was charged with attempted first-degree felony-murder. The
underlying felony alleged was robbery. Coicou was convicted and, on appeal, this
court reversed the conviction for attempted first-degree felony murder, holding:
Here, Coicou took Artis' money. Artis testified that he voluntarily handed the money to Coicou. The use of force occurred after Artis handed the money to Coicou The use of force, the shooting, was itself an essential element of the underlying robbery and was not an independent act as required by section 782.051(1). It follows then that the robbery offense could not also be considered for the attempted felony murder charge. Without this additional proof of force, the State failed to prove the main charge against Coicou, the attempted felony murder charge. Thus, the trial court erred in denying Coicou’s motion for judgment of acquittal.
(Internal citations omitted.)
In Coicou, a single act of force was used to effectuate both the robbery and
the attempted murder. Here, by contrast, the defendant engaged in a separate and
discrete use of force, violence, assault or putting in fear against three different
individuals in attempting to commit the underlying robbery.
The instant case is instead analogous to Williams v. State, 182 So. 3d 11
(Fla. 3d DCA 2015)(en banc), in which we held, on facts and charges
indistinguishable in all relevant respects to the instant case, that “the later act of
shooting the victim in the abdomen is an intentional act separate and distinct from
that of pointing the firearm at the victim’s head and demanding that she hand over
her bag.” Id. at 15.
As in Williams, Newbhard’s actions of pointing the gun at Montesino and
demanding the gold chain; later grabbing the daughter and pointing the gun at her
head while demanding the chain; and still later then turning the gun on Garcia
while demanding the chain, are separate and distinct acts, any one of which would
alone suffice to establish the use of force element for the underlying attempted
Outcome: The fact that Newbhard later shot Montesino, and by the use of such
force was able to successfully complete the robbery, did not serve to convert that subsequent act of shooting into an essential element of the underlying attempted robbery.