final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Duval County. Russell
Thomas, Public Defender, and Kathleen Stover, Assistant
Public Defender, Tallahassee, for Appellant.
Moody, Attorney General, and Steven E. Woods, Assistant
Attorney General, Tallahassee, for Appellee.
Holmes appeals his conviction for second-degree murder. He
argues that his motion for judgment of acquittal should have
been granted because the State failed to prove that he acted
with ill will, hatred, spite, or evil intent and that the
shooting of the victim was not an accident. We affirm.
victim was Holmes's on-again-off-again girlfriend and the
mother of Holmes's son. One afternoon, Holmes and the
victim planned to go to a bar to watch a football game. They
left the child at Holmes's apartment in the care of
Holmes's roommate. The victim and Holmes then drove to
the bar and had a few drinks. While at the bar, Holmes
received several phone calls from another woman. The victim
became upset and asked Holmes to drive her home.
driving the victim home, they picked up their son from
Holmes's apartment. On the drive to the victim's
home, the victim sat in the back seat with the child.
he was driving, Holmes claims that the victim accused him of
being unfaithful to her and suggested that she should have
ended their relationship. He asserts that the victim slapped
his hat and his glasses off and pulled his chain necklace. He
said that he told her to chill out, but she slapped his phone
out of his hand when he tried to check a text message. When
Holmes picked up the phone again, the victim began hitting
him in the head even though Holmes repeatedly asked her to
claims that he was in fear of his life and the life of his
son, so he pulled out his 9mm pistol and pointed it behind
him into the back seat at the victim. The gun fired, and the
victim was shot.
the shooting, Holmes did not immediately call 911 or seek any
assistance to aid the victim. Instead, Holmes kept on
driving, disposed of the gun, called his roommate, and
returned to his apartment. Holmes told his roommate that the
victim had been shot in a drive-by shooting. The roommate
called 911 and began driving Holmes and the victim to the
nearest hospital. The police dispatcher instructed them to
pull over because police with medical training were on the
way. But when police arrived, the victim was found dead.
Holmes was questioned by the police, he gave conflicting
versions of the events leading to the victim's death.
First, he claimed that the victim was shot during a drive-by
shooting. Next, he said the victim grabbed the gun and
intentionally shot herself. Finally, Holmes admitted that his
first two explanations were false and claimed instead that
the shooting was accidental. Holmes explained that he and the
victim were fighting when they left the bar and got back into
the car. Holmes was angry that the victim was hitting him
while he was driving. He claimed that when he pointed the gun
at the victim, he thought the safety was on, but when the
victim slapped at his wrist, the gun went off.
story that the shooting was accidental was contradicted by
the State's expert witnesses. Experts testified that the
bullet was fired from fewer than three inches from the
victim's head, causing the bullet to enter her brain and
exit through her right ear. Experts also testified that the
gun had multiple working safety features, including a
trigger-lock safety. Finally, contrary to Holmes's claim
that the gun fired when the victim slapped at his hand,