JIMMY TOLIVER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jimmy Toliver appealed his second-degree murder conviction, raising four issues including claims regarding alleged revelation of his criminal record, admission of crime scene photographs, denial of a motion for judgment of acquittal, and denial of a motion for new trial. The Florida First District Court of Appeal affirmed the conviction, finding no reversible error on any of the issues presented.
The trial court did not reversibly err on any issue. The officer never stated Toliver had a criminal history, and the trial judge provided a curative instruction; the gruesome photograph was properly admitted to corroborate witness testimony and rebut accidental shooting claims; the motion for judgment of acquittal was properly denied because the State presented substantial direct evidence of guilt; and the motion for a new trial was properly denied because the conviction was supported by ample evidence.
[1] A trial court's denial of a motion for mistrial is reviewed for an abuse of discretion.
[2] A trial court properly denies a motion for mistrial when a witness's testimony does not explicitly reveal a defendant's criminal history and the court provides a curative…
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Join FLexlaw to unlock all legal intelligence“A judgment of acquittal should only be granted when the jury cannot reasonably view the evidence in any manner favorable to the opposing party.”
Establishes the legal standard for evaluating a motion for judgment of acquittal
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Join FLexlaw to unlock all legal intelligenceThe State presented direct witness testimony that Toliver brought a loaded shotgun to the crime scene, retrieved the weapon from the back seat of his …
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PER CURIAM.
Jimmy Toliver raises four issues in this appeal of his conviction and sentence for second-degree murder. We affirm.
Toliver first claims the trial court reversibly erred by not granting a mistrial after the State “revealed” his criminal record.
We review a trial court’s denial of a motion for mistrial for an abuse of discretion. See Floyd v. State, 918 So. 2d 564, 576 (Fla.2005).
We find no merit to Toliver’s argument.
First, the officer never stated that Toliver had a criminal history; rather, the officer simply said that he ran the vehicle’s tags and the appellant’s name through his patrol car’s computer. In an abundance of caution, the trial judge provided a curative instruction that no inference should be made that Toliver possessed a criminal record. The trial judge and the State further clarified that Toliver was not the registered owner of the vehicle. The trial judge properly denied the mistrial motion.
Toliver next argues the trial court reversibly erred by admitting a gruesome photograph of the crime scene. Again, we review the trial court’s determination for an abuse of discretion. See Wilson v. State, 436 So. 2d 908, 910 (Fla.1983). The State introduced the photograph to corroborate its witnesses’ testimony and to rebut any claims of accidental shooting. The trial court properly admitted the photograph. See Jackson v. State, 545 So. 2d 260, 265 (Fla.1989) (finding photographs of victim’s charred remains admissible to prove circumstances surrounding murder and to corroborate medical examiner’s testimony); Larkins v. State, 655 So. 2d 95, 98 (Fla.1995) (finding photographs of victim lying in pool of blood relevant to aid in explanation of how and where victim died).
Toliver’s third argument concerns the trial court’s denial of his motion for judgment of acquittal. A judgment of acquittal should only be granted when the jury cannot reasonably view the evidence in any manner favorable to the opposing party. See Lynch v. State, 293 So. 2d 44, 45 (Fla.1974).
At trial, the State’s case did not rely upon circumstantial evidence. To the contrary, the State presented direct witness testimony that Toliver brought a loaded shotgun to the crime scene, retrieved the weapon from the back seat of his car, aimed the weapon at the victim’s head, pulled the trigger, and fled. The State also offered testimony that the victim did not place appellant in reasonable fear. Although appellant presented some evidence going to a self-defense claim, the trial court on a motion for judgment of acquittal properly resolved all conflicts in the evidence and all reasonable inferences drawn therefrom in a light most favorable to the State. Id. As the State presented substantial evidence supporting its charge of second-degree murder, the trial court properly denied the motion.
Toliver’s final argument questions the trial court’s denial of his motion for a new trial, based upon the verdict being against the weight of the evidence. “[T]he only avenue for judicial review of the weight of the evidence is by motion for new trial at the trial court level .... [Tibbs] places sole responsibility for that discretionary decision upon the trial judge.” Robinson v. State, 462 So. 2d 471, 476-77 (Fla. 1st DCA 1984); see Tibbs v. State, 397 So. 2d 1120 (Fla.1981).
We, as an appellate court, concern ourselves only with the legal sufficiency of evidence; we do not reweigh evidence. See Tibbs, 397 So. 2d at 1123 (“[T]he concern on appeal must be whether, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial, competent evidence to support the verdict and judgment. Legal sufficiency alone, as opposed to evidentiary weight, is the appropriate concern of an appellate tribunal.”).
Here, the State presented ample evidence supporting Toliver’s conviction.
AFFIRMED.
BROWNING, C.J., KAHN and POLSTON, JJ., concur.
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Flavio Santisteban v. State, 72 So. 3d 187 (Fla. 4th DCA 2011)…weight of the evidence. Robinson v. State, 462 So. 2d 471, 476-77 (Fla. 1st DCA 1984); see also Tibbs v. State, 397 So. 2d 1120 (Fla.1981). Rather, an appellate court concerns itself only with the legal sufficiency of the evidence. Toliver v. State, 953 So. 2d 713, 715 (Fla. 1st DCA 2007). This issue is without merit. Finally, appellant claims that the court erred in downwardly departing by only one year where the evidence showed that this was an isolated incident committed in an unsophisticated manner for w…
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Toliver v. State (Fla. 1st DCA 2020)…ing failed to demonstrate manifest injustice, the petition is dismissed as procedurally barred. See Baker v. State, 878 So. 2d 1236 (Fla. 2004). Petitioner’s conviction became final in 2007 after his direct appeal was affirmed in Toliver v. State, 953 So. 2d 713 (Fla. 1st DCA 2007), rev. denied, 966 So. 2d 971 (Fla. 2007), and thus before the issuance of this Court’s opinion in Montgomery v. State, 70 So. 3d 603 (Fla. 1st DCA 2009). The holding in Montgomery does not apply retroactively to convictions th…
Authorities Cited
- Delbert Lee Tibbs v. State, 397 So. 2d 1120 (Fla. 1981)
- Lynch v. State, 293 So. 2d 44 (Fla. 1974)
- Wilson v. State, 436 So. 2d 908 (Fla. 1983)
- Larkins v. State, 655 So. 2d 95 (Fla. 1995)
- McFADDEN v. Denicola, 462 So. 2d 471 (Fla. 4th DCA 1984)
- Jackson v. State, 545 So. 2d 260 (Fla. 1989)