KYREE LUIS PEREZ,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D15-510

_____________________________/

Opinion filed April 12, 2016.

An appeal from the Circuit Court for Duval County.

Russell L. Healey, Judge.

Nancy A. Daniels, Public Defender, and Maria Ines Suber, Assistant Public 

Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney 

General, Tallahassee, for Appellee.

RAY, J.

Kyree Luis Perez, Appellant, was convicted of attempted second-degree 

murder for shooting his former friend, Michael Coley, in the abdomen in response 

to Coley’s provocation to engage in a fist fight. Appellant argues that the trial court 

should have granted his motion for a judgment of acquittal because the evidence 
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showed only an impulsive overreaction to Coley’s behavior, making manslaughter 

the highest suitable conviction. Contrary to Appellant’s argument, the evidence 

was legally sufficient for the jury to find, as it did, that Appellant shot Coley with 

the ill will, hatred, spite, or evil intent necessary to support a conviction for 

attempted second-degree murder. Therefore, we affirm.*

In the light most favorable to the State, the evidence established the 

following facts. Appellant and Coley were approximately nineteen and twenty 

years old, respectively, at the time of the shooting. They lived in the same 

neighborhood and had been good friends in middle school. At some point, for a 

reason not revealed at trial, a rift developed in their relationship. They would still 

interact in a civil manner for neighborhood basketball games, but their differences 

remained unresolved.

On the evening of the shooting, Coley and a friend were walking along a 

street when Appellant approached them from behind on a bicycle. Appellant and 

Coley exchanged words and ended up arguing face-to-face. Appellant and Coley 

yelled at one another, but neither pushed, shoved, kicked, or punched the other. 

During the heated verbal exchange, Coley walked toward Appellant, challenging 

him to a physical fight. Coley testified that he asked Appellant for a “fair fight,” 

 

* Appellant also challenges the exclusion of testimony that he attempted to elicit on 

cross-examination of one of the State’s witnesses. We conclude, without further 

comment, that this error was harmless under the test of State v. DiGuilio, 491 So. 

2d 1129, 1135 (Fla. 1986).
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one-on-one, to finally settle their differences. Appellant stated that he “wasn’t 

taking no losses,” and as Coley walked toward Appellant in pursuit of a fight, 

Appellant pulled out a gun and put it in Coley’s face. 

Surprised and angry, Coley pushed the gun away and continued moving 

towards Appellant, asking if Appellant was seriously pulling a gun on him. From 

an arm’s length away, Appellant put the gun on Coley’s stomach, and it “went 

off.” Coley called Appellant’s name and said, “[Y]ou shot me.” Appellant 

answered, “I know. I should have killed you.” As Coley’s friend scrambled away 

from the scene, Appellant pointed the gun at him. The friend hid behind an 

electrical box, and both Coley and the friend heard a couple more gunshots shortly 

after the first one. Appellant then left on his bicycle. 

Appellant’s bullet entered Coley’s abdomen, struck an artery, pierced his 

lung, and lodged in his spine. Coley was temporarily paralyzed, later suffered 

serious complications from blood clots, and remained under a doctor’s care at the 

time of trial, approximately seven months after the incident. 

Under these facts, we find no error in the denial of Appellant’s motion for 

judgment of acquittal, which focused on the intent element of attempted seconddegree murder. A trial court’s denial of a motion for judgment of acquittal is 

reviewed de novo. Jones v. State, 790 So. 2d 1194, 1197 (Fla. 1st DCA 2001). If 

the evidence, when considered in the light most favorable to the State, is capable of 
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supporting a guilty verdict, a motion for judgment of acquittal must be denied. 

See id. at 1197-98. To grant a motion for judgment of acquittal, the trial court must 

find that the evidence is legally insufficient to support the elements of the crime. 

Id. at 1197. Accordingly, the appropriate inquiry on appeal is whether there is 

competent, substantial evidence to support the elements of the crime and, thereby, 

support the trial court’s denial of the motion. Hobart v. State, 175 So. 3d 191, 199 

(Fla. 2015) (quoting Jackson v. State, 25 So. 3d 518, 531 (Fla. 2009)).

Second-degree murder is “[t]he unlawful killing of a human being, when 

perpetrated by any act imminently dangerous to another and evincing a depraved 

mind regardless of human life, although without any premeditated design to effect 

the death of any particular individual.” § 782.04(2), Fla. Stat. (2013). The

depraved-mind element of second-degree murder requires “ill will, hatred, spite, or 

an evil intent.” Poole v. State, 30 So. 3d 696, 698 (Fla. 2d DCA 2010). In most 

cases, this intent must be inferred from the circumstances. Antoine v. State, 138 

So. 3d 1064, 1074 (Fla. 4th DCA 2014) (quoting Williams v. State, 239 So. 2d 

127, 130 (Fla. 4th DCA 1970)). To establish that the defendant acted with a 

depraved mind, the State must present evidence of circumstances showing more 

than an “impulsive overreaction” to an attack. Wiley v. State, 60 So. 3d 588, 591 

(Fla. 4th DCA 2011) (citing Light v. State, 841 So. 2d 623, 626 (Fla. 2d DCA 

2003)); Dorsey v. State, 74 So. 3d 521, 522 (Fla. 4th DCA 2011). 
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Appellant argues that the shooting was merely an impulsive overreaction to 

Coley’s invitation and approach to fight. Appellant relies on four cases for support: 

Poole v. State, 30 So. 3d 696 (Fla. 2d DCA 2010); Bellamy v. State, 977 So. 2d 

682, 684 (Fla. 2d DCA 2008); Rayl v. State, 765 So. 2d 917, 919-20 (Fla. 2d DCA 

2000); and McDaniel v. State, 620 So. 2d 1308 (Fla. 4th DCA 1993). In these 

cases, the courts concluded that the State’s evidence was insufficient to establish 

the intent element of second-degree murder (or attempted second-degree murder), 

where the defendants reacted to either an attack or a perceived imminent attack or 

were engaged in mutual physical fighting with the victims. Poole, 30 So. 3d at 697-

98 (defendant stabbed unarmed victim when victim angrily lunged at him inside a 

cramped recreational vehicle, where victim was strong, larger than defendant, and 

had a reputation for violence, particularly when he had been drinking, as he had on 

the night in question); Bellamy, 977 So. 2d at 684 (defendant stabbed one victim 

when he was outnumbered and pushed against a wall and stabbed another after 

being pushed to the ground by a crowd of brawlers); Rayl, 765 So. 2d at 919-20 

(defendant shot victim twice after victim “bust[ed] open” the door to his place of 

business and confronted him while threatening to kill him, after making that threat 

all day, allegedly being armed, and possibly lunging at defendant following the 

first shot); McDaniel, 620 So. 2d at 1308 (defendant stabbed son after son hit him 

in the mouth and knocked him to the ground). These cases essentially involved 
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imperfect self-defense claims. See Dorsey v. State, 74 So. 3d 521, 524 (Fla. 4th 

DCA 2011).

In contrast, although the evidence in the instant case showed that Coley 

challenged Appellant to a fight and actually advanced toward him, it does not 

necessarily establish that when Appellant shot Coley he was “impulsively acting 

out of fear to save himself.” Cf. Antoine v. State, 138 So. 3d 1064, 1074 (Fla. 4th 

DCA 2014) (distinguishing “impulsive overreaction” cases where evidence 

implied that defendant was not “impulsively acting out of fear to save himself” but 

was “administering street justice”). While the evidence showed that the shooting 

was a response, and indeed an overreaction, to Coley’s challenge to a fight, the 

witnesses’ testimony provided a basis from which the jury could find that 

Appellant’s reaction was more deliberate than impulsive. Cf. Rasley v. State, 878 

So. 2d 473 (Fla. 1st DCA 2004) (affirming conviction for second-degree murder 

where defendant fatally shot husband as husband advanced toward her in defiance 

of her entreaties to stop after having violently shoved her earlier in the night, as 

evidence existed from which jury could find that defendant was motivated by 

anger over husband’s extramarital affair). Further, Appellant’s statement to Coley

that he “should have killed” him distinguishes the instant case from the “impulsive 

overreaction” cases and suggests malice. From this contemporaneous statement

and all the circumstances, the jury could reasonably find that Appellant shot the 
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victim out of ill will, hatred, spite, or evil intent and that he had no regard for the 

victim’s life. Accordingly, Appellant’s conviction for attempted second-degree 

murder is AFFIRMED.

ROWE and SWANSON, JJ., CONCUR.