Cordell v. State of Florida

DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

CASEY CORDELL,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 2D2024-1370

June 19, 2026

Appeal from the Circuit Court for Hillsborough County; Samantha L.

Ward, Judge.

Luke Lirot, Luke Charles Lirot, P.A., Clearwater, for Appellant.

James Uthmeier, Attorney General, Tallahassee, and Tayna Alexander,

Assistant Attorney General, Tampa, for Appellee.

ATKINSON, Judge.

Mr. Casey Cordell was charged with and convicted of third-degree

murder and attempted felony murder for his actions during a "robbery

gone wrong." Mr. Cordell argues on appeal that it was error for the trial

court to deny his motion for judgment of acquittal and motion for new

trial, both of which were predicated upon his assertion of self-defense.

Mr. Cordell further argues that the trial court erroneously instructed the

jury regarding self-defense and regarding the assessment of the

credibility of certain witnesses. Finally, Mr. Cordell argues that the

cumulative effect of the errors necessitates reversal, an argument this

court need not reach. We agree with Mr. Cordell that the trial court

committed reversible error in instructing the jury, reverse the final

judgment and sentences, and remand for further proceedings consistent

with this opinion.

I.

On September 6, 2019, Mr. Cordell travelled with his friend, Mr.

Kiernan Higbee, to the residence of Mr. Manuel Simmons. Mr. Higbee

and Mr. Simmons had arranged for an exchange whereby Mr. Higbee was

to supply Mr. Simmons with narcotics in exchange for U.S. currency.

Unbeknownst to Mr. Cordell and Mr. Higbee, they were walking into a

trap. Mr. Simmons enlisted the help of Mr. Raysheid Melvin, and

together they hatched a plan to snatch narcotics from Mr. Higbee and

flee the scene without paying. Mr. Melvin was to pose as the buyer while

Mr. Simmons acted as the "middleman" who facilitated the transaction

between Mr. Higbee and Mr. Melvin. To execute their plot, they disguised

a router by wrapping it up in a black trash bag with rubber bands

wrapped around the outside of the bag to imitate a stack of money

common to Mr. Simmons's experience with these types of transactions.

Mr. Simmons and Mr. Melvin arrived at Mr. Simmons's apartment

first. When Mr. Higbee arrived, he was accompanied by Mr. Cordell and

the two were carrying a bag which contained several pounds of cannabis.

Upon their arrival, the four men smoked cannabis together as a pre-

business formality; Mr. Higbee and Mr. Cordell then removed one pound

of cannabis from the bag and passed it to Mr. Melvin for inspection. Mr.

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Melvin noted his approval and passed the disguised router to Mr.

Simmons, who in turn passed it to Mr. Cordell.

Accounts differ as to exactly what happened after the disguised

router was passed to Mr. Cordell. Mr. Simmons testified that he

immediately snatched the bag containing the rest of the narcotics off a

table and fled towards the front door of the apartment; all parties agreed

that Mr. Simmons did not make it outside the apartment with the bag.

Though there were differing theories and accounts as to how it

happened, it was undisputed that at some point Mr. Simmons's gun

wound up lying on the apartment floor. Mr. Simmons described that

gun's color as "chrome and black." According to Mr. Cordell, Mr. Melvin

jumped on top of Mr. Higbee and repeatedly punched Mr. Higbee in the

head and when Mr. Cordell looked at Mr. Simmons, Mr. Simmons was

drawing "something silver" out of his waistband. Mr. Cordell testified

that Mr. Melvin then began running at him, at which point Mr. Cordell

began shooting at silhouettes in "the direction where the threat [wa]s"

and kept shooting until he felt he was "safe" and "didn't see any threats."

Mr. Higbee testified that once Mr. Melvin got off him, Mr. Higbee

covered his head and continued lying down until after the shooting

stopped. He also testified that he saw Mr. Melvin lunge towards Mr.

Cordell and that he saw Mr. Simmons grabbing at something silver in his

waistband that looked like a knife or gun.

After the shooting stopped, Mr. Higbee grabbed the bag and ran for

the nearest exit. Mr. Simmons was shot multiple times but ultimately

made it to a hospital, survived, and testified at trial. Mr. Melvin was

killed by the gunshot wounds he sustained. Mr. Simmons testified that

while he was fleeing, he did not see Mr. Melvin or Mr. Higbee; his only

perception was that Mr. Melvin was somewhere close behind him when

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he heard Mr. Melvin make a noise after being shot. Mr. Simmons also

testified that he saw Mr. Cordell draw his gun and that prior to seeing

that gun drawn, neither he nor Mr. Melvin had made any "aggressive

movements" towards Mr. Higbee or Mr. Cordell. Mr. Cordell testified that

he was scared for his life, and his entire defense was premised upon the

justifiable use of force under sections 776.032, 776.012, and 776.013,

Florida Statutes (2019).

II.

Section 776.013 provides for the justifiable use or threatened use

of deadly force in a dwelling or residence:

A person who is in a dwelling or residence in which the

person has a right to be has no duty to retreat and has the

right to stand his ground and use or threaten to use . . .

[d]eadly force if he or she reasonably believes that using or

threatening to use such force is necessary to prevent

imminent death or great bodily harm to himself or herself or

another or to prevent the imminent commission of a forcible

felony.

§ 776.013(1)(b). On appeal, the State conceded that Mr. Cordell did not

have a duty to retreat under section 776.013(1)(b) because he was invited

to Mr. Simmons's residence.

During the trial proceedings, Mr. Cordell's attorney objected to

several proposed jury instructions, one of which included certain

language pertaining to instruction "3.6(f) Justifiable Use of Deadly

Force." On appeal, Mr. Cordell contends that the trial court committed

reversible error when it gave the "forcible felony" portion of the

instruction. See § 776.041(1) (providing that a defendant is not justified

in using force if the defendant "[i]s attempting to commit, committing, or

escaping after the commission of, a forcible felony"). The forcible felony

language provided to the jury was as follows: "However, the use of deadly

force is not justified if you find that the defendant was attempting to

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commit, committing, or escaping after the commission of felony murder

or manslaughter."

When trial counsel objected to the forcible felony instruction, he

argued that giving the instruction "could confuse the jury and make

them believe that the act of killing itself eliminates the self-defense

[argument]." Though counsel's objection was overruled, it was well

founded. Because Mr. Cordell was not charged with any forcible felony

other than those for which he was asserting the justification of self-

defense, the instruction potentially vitiated his defense by indicating to

the jury that the charged crimes themselves foreclosed the justification.

See Martinez v. State, 981 So. 2d 449, 453 (Fla. 2008) ("[T]o instruct the

jury on the forcible-felony exception in this circumstance amounted to

informing the jury that although it might conclude that Martinez acted in

self-defense when he committed an aggravated battery or attempted

murder against Rijo, the use of deadly force was not justifiable if the jury

found that Martinez committed attempted murder or aggravated

battery."). In order to avoid this "circular logic"—which "would most

probably confuse jurors because the apparent result is that the

instruction precludes a finding of self-defense and amounts to a directed

verdict on the affirmative defense"—"an independent forcible felony is

required for the forcible-felony instruction to apply." See id. at 453–54.

In other words, "the forcible felony exception to self-defense applies

only when the 'accused is charged with at least two criminal acts, the act

for which the accused is claiming self-defense and a separate forcible

felony.' " Smith v. State, 417 So. 3d 503, 507 (Fla. 5th DCA 2025)

(quoting Santiago v. State, 88 So. 3d 1020, 1022 (Fla. 2d DCA 2012)).

"Otherwise, the instruction would be ' "circular and confusing to the

jury" because it improperly instructs the jury that the very act that the

5

defendant seeks to justify as an act of self-defense prevents the same act

from being an act of self-defense.' " Id. (quoting Smith v. State, 933 So. 2d

1275, 1276–77 (Fla. 2d DCA 2006)). In this manner, the forcible felony

instruction in this case "[wa]s 'capable of misleading the jury in such a

way as to prejudice [Mr. Cordell]'s right to a fair trial,' " and,

consequently, the trial court abused its discretion by giving it. See Weir

v. State, 777 So. 2d 1073, 1076–77 (Fla. 4th DCA 2001) (first quoting

Lewis v. State, 693 So. 2d 1055, 1057 (Fla. 4th DCA 1997); and then

citing Gross v. Lyons, 721 So. 2d 304 (Fla. 4th DCA 1998), decision

approved, 763 So. 2d 276 (Fla. 2000)); Johnson v. State, 293 So. 3d 46,

53 (Fla. 1st DCA 2020) ("The giving or withholding of a proposed jury

instruction is reviewed for abuse of discretion." (citing Carle v. State, 983

So. 2d 693, 695 (Fla. 1st DCA 2008))).

III.

Mr. Cordell also argues that the trial court committed reversible

error by giving an "initial aggressor" instruction. See § 776.041(2)

(providing that a defendant is not justified in using force if the defendant

"[i]nitially provokes the use of force against himself or herself" unless a

specified exception applies).

The State correctly contends that this argument is not preserved

for appellate review. While Mr. Cordell did object to the initial aggressor

instruction during a conference with the trial court prior to the close of

evidence, Mr. Cordell was informed by the trial court that the instruction

would not be given because the State was not seeking its inclusion.

Later, just before the reading of the instructions, Mr. Cordell's defense

counsel renewed his prior objections to the jury instructions, to which

the trial court responded, "Same rulings." When the oral and written

6

instructions were provided to the jury, they inexplicably included the

initial aggressor instruction. Mr. Cordell did not object at that time.1

"Jury instruction errors are subject to the contemporaneous

objection rule." Knight v. State, 286 So. 3d 147, 151 (Fla. 2019) (first

citing State v. Weaver, 957 So. 2d 586, 588 (Fla. 2007); and then citing

State v. Delva, 575 So. 2d 643, 644 (Fla. 1991)). In most cases, "[t]he

objectives of [the contemporaneous objection] rule are satisfied 'when the

record shows clearly and unambiguously that a request was made for a

specific instruction and that the trial court clearly understood the

request and just as clearly denied the request.' " See Wong v. State, 212

So. 3d 351, 357–58 (Fla. 2017) (second alteration in original) (quoting

Wong v. State, 184 So. 3d 1122, 1124 (Fla. 2d DCA 2015), quashed by

212 So. 3d at 361); see also Thomas v. State, 419 So. 2d 634, 636 (Fla.

1982) ("[I]t is not necessary to [object] and state the grounds therefor

where the record shows, clearly and unambiguously, that the request

was made and that the trial court clearly understood the request and,

just as clearly, denied that specific request."). Here, though, the record

does not reflect that the court clearly denied counsel's request to exclude

the initial aggressor instruction—to the contrary, counsel's objection was

successful and it was explained that the instruction would not be

included.

At the time of the discussion of the instruction that led to the trial

court's initial decision to exclude the instruction, the error had not yet

occurred—counsel's objection to the instruction was successful, being

1 This contrasts with counsel's treatment of a different instruction,

whereby counsel advised the trial court between closing arguments of a

mistake in the instructions and the court advised the jurors of the

mistake and explained that a corrected written instruction would be

provided.

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well-taken by the trial court, and a potential error at that time was

successfully averted. The times at which an objection would be

necessary came later, when the errors occurred—when the trial court

read the erroneous instruction to the jury and provided it in written

form. Only then could an objection preserve the error for appeal,

because before that time no error had occurred.

However, if the instruction was erroneous, it would be

fundamental, the establishment of which would be necessary to entitle

Cordell to appellate review of the unpreserved error. See Martinez, 981

So. 2d at 450–51. "Where the challenged jury instruction involves an

affirmative defense, . . . fundamental error only occurs where a jury

instruction is 'so flawed as to deprive defendants claiming the defense . .

. of a fair trial.' " Id. at 455 (quoting Smith v. State, 521 So. 2d 106, 108

(Fla. 1988)). When the contested instruction informs the jury "on the

defendant's sole defense, 'it is more likely that the error should be

regarded as fundamental.' " See Sims v. State, 140 So. 3d 1000, 1004

(Fla. 1st DCA 2014) (quoting Bradley v. State, 127 So. 3d 806, 808 (Fla.

2d DCA 2013)); cf. Cruz v. State, 189 So. 3d 822, 830 (Fla. 4th DCA

2015) ("Fundamental error exists where the defendant's sole defense at

trial was that he acted in self-defense, and incorrect jury instructions on

the duty to retreat effectively negate that defense." (first citing Dorsey v.

State, 149 So. 3d 144, 147 (Fla. 4th DCA 2014); and then citing Richards

v. State, 39 So. 3d 431, 434 (Fla. 2d DCA 2010))).

However, before the necessity to finally resolve whether an error is

fundamental arises, this court must determine whether the instruction

was erroneous in the first place. It was not.

The relevant language of the instruction is as follows:

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The use of deadly force is not justified if you find that

the defendant used force to initially provoke the use of force

himself, unless:

1. The force asserted toward the defendant was so

great that he reasonably believed that he was in imminent

danger of death or great bodily harm and had exhausted

every reasonable means to escape the danger, other than

using deadly force on the victim.

2. In good faith, the defendant withdrew from

physical contact with the victim and clearly indicated to the

victim that he wanted to withdraw and stop the use of deadly

force, but the victim continued or resumed the use of force. [2]

"An initial aggressor instruction is proper when there is evidence in the

record that the defendant may have initially provoked the use of force

against himself." Johnson, 293 So. 3d at 55 (quoting Thompson v. State,

257 So. 3d 573, 581 (Fla. 1st DCA 2018)); see also Moorer v. State, 278

So. 3d 181, 189 (Fla. 1st DCA 2019) (quoting Thompson, 257 So. 3d at

580). At trial, the State's theory of the case was that Mr. Melvin and Mr.

Simmons never used aggression against Mr. Higbee or Mr. Cordell and

2 The proffered instruction misstated the law by providing the

following: "The use of force is not justified if you find that the defendant

used force to initially provoke the use of force himself . . . ." The

instruction omitted the word "against" and should have read as follows:

"The use of force is not justified if you find that the defendant used force

to initially provoke the use of force against himself . . . ." See §

776.041(2) (emphasis added). While that omission may have been

confusing, the instruction as a whole was nevertheless capable of

correctly instructing the jury. Despite the omission, the instruction

informed the jury that the duty to retreat or withdraw applied in the

event the jury found that Mr. Cordell initially provoked the use of force.

Jury instructions are subject to the test for harmless error, which

requires appellate courts to determine "whether there is a reasonable

possibility that the error affected the verdict." See Johnson v. State, 53

So. 3d 1003, 1007 (Fla. 2010) (quoting State v. DiGuilio, 491 So. 2d 1129,

1139 (Fla. 1986)). Because the instruction was capable of correctly

instructing the jury as to when the duty to retreat or withdraw applies,

the omission was harmless.

9

that Mr. Cordell's actions therefore did not constitute self-defense. On

appeal, Mr. Cordell argues that the initial aggressor instruction was

inapplicable to this case because "[t]here was no evidence that [Mr.

Cordell] or [Mr. Higbee] were the initial aggressors or provocateurs of the

violence that [Mr.] Simmons and/or [Mr.] Melvin committed on [Mr.]

Cordell and [Mr.] Higbee." At trial, Mr. Cordell's argument against the

instruction was premised on the State's theory that "no force whatsoever

was used against the defendant." Mr. Cordell contended that because

the State was not "claim[ing] that [Mr. Cordell] provoked any force

against himself," the instruction would be inappropriate.

In other words, Mr. Cordell objects to the initial aggressor

instruction because the State's primary theory of the case does not rely

on a presumption that the victims exerted unlawful force after being

provoked by the defendant. Thus, the argument goes, there is no

evidence that Mr. Cordell provoked force against himself—because the

State contended that the victims never exerted any force at all. But this

argument ignores the necessary implications of Mr. Cordell's own

argument. He himself quite obviously contended that force was exerted

against him. His primary argument at trial was that he acted in self

defense; his own theory necessarily required the jury to believe that he

was presented with the use or threatened use of force by the victims.

Thus, the State was entitled to have the jury instructed that Mr. Cordell

could not avail himself of the self-defense justification if the jury found

he provoked the force that he himself contends was asserted against

him. See § 776.041 (foreclosing the justification of self defense when the

defendant "[i]nitially provokes the use or threatened use of force against

himself or herself").

10

In other words, it does not matter whether the State alleged that

the victims exerted or threatened force against Mr. Cordell after being

provoked by him; if the jury believed the testimony that the victims did

exert or threaten force against Mr. Cordell and Mr. Higbee, the question

of whether Mr. Cordell provoked that force as the initial aggressor would

become relevant, justifying the initial aggressor instruction. And the

State did assert that Mr. Cordell was the initial aggressor—arguing

essentially that he was the only aggressor, having committed violence

against the victims not to defend himself but rather because he was

acting to prevent the victim from absconding with the illicit drugs.

Underlying Mr. Cordell's argument that the instruction was erroneous is

the necessary presumption that in order to justify an initial aggressor

instruction, the State must concede that the victims exerted force against

the defendant, a proposition unsupported by law or logic.

Mr. Cordell and his codefendant Mr. Higbee both advanced the

theory that Mr. Simmons and Mr. Melvin initiated the physical

aggression by, respectively, reaching for a gun or knife and punching Mr.

Higbee in the head then advancing towards Mr. Cordell. For example, in

explaining his theory during opening argument to the jury, Mr. Cordell's

counsel proffered the following chronology of events:

[A]s Mr. Higbee is being attacked, my client looks in

front of him and sees Mr. Simmons lift his shirt and brandish

a silver, shiny object in his waistband. He knows what's

about to go down and he has to act fast because Mr. Melvin is

coming to him next.

So what does he do? He takes his firearm and he

unloads as he's trying to escape the apartment. He is

defending himself and he's defending his friend, Mr. Higbee.

The State need not concede those allegations in order to justify

provision of the initial aggressor instruction. The jury was not bound by

the precise chronology of the parties' dueling theories, and the evidence

11

at trial did not foreclose the possibility that the jury might conclude that

any force that was exerted by the victims was only in response to Mr.

Cordell's initial show of force. For example, although the State used the

medical examiner's testimony that Mr. Melvin was shot in the back to

argue that Mr. Melvin was fleeing when he was shot, the very same

testimony indicated that Mr. Melvin was also shot in the front, posing the

question of whether Mr. Melvin was shot in cold blood, was shot after

aggressively advancing toward Mr. Cordell, or was only aggressively

advancing toward Mr. Cordell after being provoked by Mr. Cordell

threateningly brandishing his weapon—the latter of which would indicate

that Mr. Cordell was the initial aggressor who provoked the force

asserted against himself. At bottom, the State advanced a theory that

Mr. Cordell was the initial aggressor, Mr. Cordell advanced a theory that

he was responding to force exerted by the victims, and evidence

supported both theories. The State need not concede that the victims

asserted force against Mr. Cordell to allow for the possibility that any

such force alleged by Mr. Cordell could, in jurors' minds, have been

provoked by Mr. Cordell as the initial aggressor. Accordingly, it was not

erroneous to give the instruction. See Johnson v. State, 65 So. 3d 1147,

1149–50 (Fla. 3d DCA 2011) (holding that it was proper to instruct "the

jury as to the aggressor instruction of the Justifiable Use of Force

because there was evidence in the record that Johnson may have initially

provoked the use of force against himself" (first citing § 776.041(2), Fla.

Stat. (2010); and then citing Martinez, 981 So. 2d at 452)).

IV.

Mr. Cordell's arguments that the trial court erred by denying his

motions for judgment of acquittal and for new trial are also unavailing.

Mr. Cordell contends that he presented a prima facie case of self-defense

12

and that the State did not prove beyond a reasonable doubt that he did

not act in self-defense. A judgment of acquittal is warranted on these

grounds "when the State's evidence is legally insufficient to rebut the

defendant's testimony establishing self-defense." See Fowler v. State,

921 So. 2d 708, 711–12 (Fla. 2d DCA 2006) (first citing State v. Rivera,

719 So. 20 335, 337 (Fla. 5th DCA 1998); and then citing Sneed v. State,

580 So. 2d 169, 170 (Fla. 4th DCA 1991)).

[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 theory as unbelievable.

Cruz, 189 So. 3d at 826 (first citing Romero v. State, 901 So. 2d 260,

265–66 (Fla. 5th DCA 2005); and then citing Hampton v. State, 549 So.

2d 1059, 1060–61 (Fla. 4th DCA 1989)).

Viewing the facts and circumstances in the light most favorable to

the State, the trial court did not err by denying Mr. Cordell's motions for

judgment of acquittal. Mr. Simmons testified that prior to seeing Mr.

Cordell draw his gun, he had not seen Mr. Melvin make any "aggressive

movements" towards either Mr. Higbee or Mr. Cordell and that he did not

make any himself. Additionally, testimony elicited from law enforcement

officers and the medical examiner—such as the room-length separation

from the spent casings where Mr. Cordell was presumably standing and

the bullet holes and projectiles "near the [front] door" and the lack of any

"evidence of close range of firing"—supported an inference that Mr.

Cordell remained a good distance from the victims throughout the

shooting as opposed to a scenario in which he was firing at aggressive

assailants quickly closing the distance between them and himself. Cf.

Johnson, 293 So. 3d at 55 (holding that evidence of "gun shot trajectory

13

and the victim's injuries" can be considered to determine whether the

defendant was the initial aggressor and rebut the defendant's own

testimony).

Granted, some evidence did support Mr. Cordell's self-defense

theory. His account that he saw Mr. Simmons brandish some type of

metallic weapon was conspicuously corroborated by the discovery of Mr.

Simmons's metallic firearm left at the scene of the shooting. And the

surviving victim, Mr. Simmons, admitted that he and the other victim,

Mr. Melvin, had planned from the outset to rob the defendant and Mr.

Higbee as opposed to pay for the cannabis—a concession tending to

corroborate a theory that they might be willing to employ violence to

effectuate their design to make off with the merchandise without paying

for it.

Moreover, if the jury had concluded that Mr. Cordell had an

initially reasonable belief that deadly force "[w]as necessary to prevent

imminent death or great bodily harm to himself or" Mr. Higbee "or to

prevent the imminent commission of a forcible felony," see §

776.013(1)(b), the fact that some of the rounds struck the victims in the

back and buttocks would not categorically preclude the justification of

self-defense. The evidence adduced by all parties tended to show that

once the shooting began, it occurred in one short, continuous spree until

Mr. Simmons had escaped and Mr. Cordell felt safe. Depending on the

circumstances, evidence that victims "appeared to be retreating . . . does

not mean that the threat to [the defendant] at first reasonably

apprehended necessarily dissipated." Cf. Bouie v. State, 292 So. 3d 471,

482–83 (Fla. 2d DCA 2020) (disagreeing with a "trial court's conclusion

that [the defendant's] belief that deadly force was necessary ceased to be

reasonable when [the defendant] continued firing shots while [the victim]

14

appeared to be retreating" because "[a]n armed man can continue to pose

a threat of death or imminent bodily harm even when he is seeking cover

behind or inside a car" and the evidence showed that the "entire episode

unfolded quickly" (citing State v. Gallo, 76 So. 3d 407, 408–09 (Fla. 2d

DCA 2011))).

However, even though some evidence corroborates Mr. Cordell's

theory that he was acting in self-defense when he was forced to escalate

the physical altercation that was initiated by the victims into an inchoate

firefight in which he ultimately prevailed, there was other evidence from

which the jury could disbelieve his theory and conclude that the victims

were not the initial aggressors (or not aggressors at all). Cf. Bouie, 292

So. 3d at 482 ("[T]he State did not produce any evidence to show that the

threat of imminent death or great bodily harm which the trial court

indicated was initially reasonable to believe Mr. Favors posed would have

appeared to a reasonable person to have evaporated after Mr. Favors

used a car for cover."). "[W]hen reviewing a judgment of acquittal, the

appellate court must . . . 'consider the evidence and all reasonable

inferences from the evidence in a light most favorable to the [S]tate.' "

State v. Konegen, 18 So. 3d 697, 699 (Fla. 4th DCA 2009) (second

alteration in original) (first quoting Jones v. State, 790 So. 2d 1194, 1197

(Fla. 1st DCA 2001) (en banc); and then citing Darling v. State, 808 So.

2d 145, 156 (Fla. 2002)); see also Yudin v. State, 117 So. 3d 457, 459

(Fla. 2d DCA 2013) ("An appellate court reviews the denial of a motion for

judgment of acquittal de novo and affirms the conviction if it is supported

by competent, substantial evidence." (citing Boyd v. State, 910 So. 2d

167, 180 (Fla. 2005))). And "[i]n deciding a motion for new trial . . . on

the ground that the verdict is contrary to the weight of the evidence, the

trial court" must determine "whether a greater amount of credible

15

evidence supports one side of an issue or the other," "weigh[ing] the

evidence and . . . determin[ing] the credibility of witnesses so as to act, in

effect, as an additional juror." See Geibel v. State, 817 So. 2d 1042, 1044

(Fla. 2d DCA 2002) (first citing Fla. R. Crim. P. 3.600(b); then citing State

v. Hart, 632 So. 2d 134, 135 (Fla. 4th DCA 1994); then citing Moore v.

State, 800 So. 2d 747 (Fla. 5th DCA 2001); and then quoting Uprevert v.

State, 507 So. 2d 162, 163 (Fla. 3d DCA 1987)).

Mr. Simmons's testimony that Mr. Cordell was the initial and only

aggressor—or at least that any threat from the victims had abated before

Mr. Cordell fired fatal shots—was corroborated not only by the evidence

of the trajectory and impact of the rounds fired by Mr. Cordell, but by

Mr. Cordell's own words when he called 911 after the incident. During

that call, Mr. Cordell made the following remarks:

They are probably dead. They are on the ground not moving.

I just pulled the trigger, I didn't stop firing. I was scared for

my life. I didn't know what to do. He punched – he tried to

punch me and stuff, he came at me with a knife, I didn't

know what to do. And then they – like when I was shooting,

after they ran away from me, they saw me with a gun and

started like – I shot at them and they ran away.

Not altogether inconsistently, Mr. Simmons testified that as soon as he

handed the fake stack of money over, he "tried to snatch the bag [of

cannabis] and the pound [of cannabis] that was on the table and . . . ran

to the door," but when he reached to open the front door, he "felt a surge

go through [his] body," "dropped the bag and tried to open the door," and

when he opened the door he "got hit in the back of [his] buttocks area."

The evidence was such that the question of whether Mr. Cordell acted in

justifiable self defense was one for the jury, and the trial court did not err

by denying his motions for judgment of acquittal.

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V.

Mr. Cordell also argues that it was error to include the example

provided in the following instruction:

Accomplices and Informants. You must consider the

testimony of some witnesses with more caution than others.

For example, a witness who claims to have helped the

defendant commit a crime or has been promised immunity from

prosecution or hopes to gain more favorable treatment in his or

her own case may have a reason to make a false statement in

order to strike a good bargain with the State. This is

particularly true when there is no other evidence tending to

agree with what the witness says about the defendant. So,

while a witness of that kind may be entirely truthful when

testifying, you should consider his or her own testimony with

more caution than the testimony of other witnesses.

However, if the testimony of such a witness convinces you

beyond a reasonable doubt of the defendant's guilt, or the

other evidence in the case does so, then you should find the

defendant guilty.

(Emphasis added.) As he did in the trial court, Mr. Cordell objects to the

inclusion of the emphasized examples, arguing that Mr. Simmons was

the only witness who could fit within that example but was not a

codefendant in these proceedings, thereby confusing the jury as to how

his testimony should be treated. However, Mr. Cordell does not elaborate

on his argument that the instruction would confuse the jury. He makes

no effort to explain why application of the instruction to the testimony of

Mr. Simmons would cause confusion. Moreover, despite circumstances

tending to indicate that the instruction would not apply to Mr.

Simmons—who did not "claim[] to have helped" Mr. Cordell "commit a

crime" but rather was in an arms-length drug transaction and admitted

to his plan to rob Mr. Cordell instead—if the instruction were to be

applied to Mr. Simmons it would only tend to help Mr. Cordell at trial by

inviting heightened scrutiny of Mr. Simmons's inculpatory testimony.

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Because Mr. Cordell has not adequately explained his argument

regarding juror confusion or even mentioned how the instruction could

have prejudiced him, he has not established reversible error.

VI.

Because the trial court erred by giving the forcible felony jury

instruction, Mr. Cordell's judgment and sentences must be reversed.

Reversed and remanded.

NORTHCUTT and BLACK, JJ., Concur.

Opinion subject to revision prior to official publication.

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