## F IRST 

## D ISTRICT 

## C OURT OF 

## A PPEAL 

## S TATE OF 

## F LORIDA

_____________________________

No. 1D 20 2 3

- 0571

_____________________________

R OGER M ARION L OFTON

,

Appellant,

v.

S TATE OF F LORIDA

,

Appellee.

_____________________________

On appeal from the Circuit Court for Escambia County

. Linda L. Nobles , Judge

.

May 8, 2024

P ER C URIAM

.

Appellant Rodger Lofton appeals the denial of his motion for postconviction relief. We affirm.

Appellant was convicted of attempted second degree murder

, and he was sentenced to a term of imprisonment of 30 years. That
conviction and sentence w ere summarily affirmed by this Court. See Lofton v. State , 237 So. 3d 263 (Fla. 1st DCA 2016). This
conviction follow ed the shooting of Anthony Booth , an acquaintance. Appellant has maintained that he was acting in
self

- defense as Booth tried to rob Appellant, but the prosecution argued Appellant shot Booth because of a dispute over real
property.2 Following the dir ect appeal, Appellant moved for postconviction relief raising five claims of ineffective assistance of trial counsel, a claim of newly discovered evidence, and a claim
that the verdict was inconsistent. After receiving a response from the State, the trial court ordered an evidentiary hearing on two grounds (two and seven) of the motion. Appellant was appointed
counsel for the hearing

.

In ground two, Appellant claimed his trial counsel was ineffective for failing to investigate and depose a witness

– Bryan Taylor (sometimes spelled Brian Taylor in the record). According to Appellant, Taylor knew Booth intended to rob Appellant and , in fact, supplied Booth with a gun. Had defense counsel investigated Taylor, Appellant’s claim of self

- defense would hav e been
bolstered , he argued

. In ground seven , Appellant alleged that Taylor sent defense counsel correspondence after the trial. Such correspondence constitutes newly discovered evidence, Appellant
claims

.

At the evidentiary hearing, Appellant’s trial counsel testified, and through cross

- examination, it was established that defense counsel was informed of the identity of Taylor before trial , but
counsel failed to investigate further

. Defense counsel acknowledged receiving a letter fro m Taylor after the trial, which he forwarded to appellate counsel.

Taylor was also called to testify at the evidentiary hearing,
but before his testimony started, the trial court warned Taylor that he would be admitting to a felony if he, a convicted fel on, testified that he possessed a firearm on the day of the shooting. In

response, Taylor stated he no longer wish ed to testify. But Appellant called him anyway. When asked whether he had sent a
letter to defense counsel and whether he had been with App ellant or Booth on the day of the shooting, he “plead[ed] the Fifth.”

On cross by the State, Taylor testified he has known Appellant
since childhood “through the neighborhood.” Likewise, he knew Booth. Taylor heard Booth had been shot, but he was addi cted to heroin back then, so everything was a “haze.” He did not attempt

to contact Appellant thereafter, Taylor testified

.3 Appellant also testified. He explained that he did tell defense counsel that Taylor was a potential witness for the defense. H e added that he previously sold drugs, and Appellant believed Booth shot him because Appellant was no longer selling drugs to him.

The trial court then entered a written order addressing all of Appellant’s claims. Pertinent to the instant appeal, the trial court found with respect to defense counsel’s failure to investigate and depose Bryan Taylor that counsel was indeed deficient given the
information provided to him. Howeve r, the trial court found that defense counsel’s deficient performance did not prejudice the
defense . The trial court observed that Taylor did not testify at the evidentiary hearing that he had prior knowledge of any intent on the part of Booth to rob Appe llant. Nor did Taylor testify, the trial court noted, that he ever supplied Booth with a gun.

The trial court also denied relief as to ground one of the

m otion , a denial which Appellant now challenges

. In that claim, Appellant had argued that defense counsel was ineffective for failing to impeach Booth’s trial testimony. Appellant claimed that Booth testified in deposition and at trial that several times he went to the back room of the residence where Appellant was to help
move items , including an air conditioning unit. Had defense counsel offered photographs of the back room, then the jury would have seen that there was very little to move out of the back room
and would have discredited Booth’s version of events , Appellant
had claimed

.

But i n denyi ng relief on this ground, the trial court found that Appellant was misrepresenting Booth’s testimony. Booth testified that he was called to the back room several times by Appellant, rather than walking to the back room several times. Moreover,
defense co unsel did ask about the air conditioner during Appellant’s trial testimony and that of another witness. Further, photographs of the residence, including the back room, were
admitted at trial , which the jury could have examined when evaluating the credibil ity of the witnesses.

On appeal, Appellant argues that defense counsel should have used “blood trail” evidence obtained from the site of the shooting
in the residence to impeach Booth’s trial testimony. This “blood4 trail ” argument was not raised below. Interestingly, in ground four of his motion, Appellant referred to the fact that “only one drop” of blood was found in the residence. This is hardly argument
that a “blood trail” would have contradicted Booth’s version of

events , and anyway, in ground fo ur, Appellant argued defense counsel was ineffective for failing to use the “one drop” and gunshot residue as evidence that Booth was a shooter as well as Appellant. Such an argument is very differen t from what has been raised on appeal. As it was not ra ised below, the “ blood trail” argument is not preserved for appellate consideration. See
Tillman v. State , 471 So. 2d 32, 35 (Fla. 1985) (“In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.”).

As for the failure of defense counsel to investigate and depose Bryan Taylor, we affirm the trial court’s concl usion that Appellant did not establish prejudice , as was his burden to do . While Taylor did appear at the evidentiary hearing, he offered no testimony
which would establish that the outcome of the trial would have
been different had he testified. While Appellant claimed in his postconviction motion that Taylor knew Booth planned to rob Appellant and that Taylor gave Booth a gun, there was no evidence
of such offere d in the postconviction proceeding. T o prevail on a claim of ineffective assistance of counsel, a movant must show both
that trial counsel ’ s performance was deficient

, and that the deficient performance prejudiced the defendant so as to deprive
him of a f air trial. See Strickland v. Washington , 466 U.S. 668 (1984); Everett v. State , 54 So. 3d 464, 471

- 72 (Fla. 2010). A
movant “ must establish prejudice by ‘ show[ing] that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. ’ ”
Green v. State , 975 So. 2d 1090, 1103 (Fla. 2008) (quoting
Strickland , 466 U.S. at 694 ). A reasonable probability is a “probability sufficient to undermine confidence in the outcome.”
Id. Given the l ack evidence that Taylor’s trial testimony would have contradicted the prosecution’s theory of the case

, had he been called, Appellant fail ed to establish he was prejudiced.5 Appellant requests that the remaining grounds in his motion be reviewed, though h e does not make any argument as to those grounds on appeal. Given the lack of specific argument on these remaining grounds, we affirm. See Givens v. State , 314 So. 3d 765 (Fla. 1st DCA 2021) (explaining an issue is abandoned when no argument is made in the initial brief).

Accordingly, the denial of postconviction relief is A FFIRMED

.

B.L. T HOMAS

, B ILBREY

, and T ANENBAUM

, JJ., concur

.

_____________________________
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or

9.331

.

_____________________________

Roger Marion Lofton, pro se

, Appellant.

Ashley Moody, Attorney General, and Zachary F. Lawton, Assistant Attorney General, Tallahassee

, for Appell ee

.