SIXTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 6D2023-0921

Lower Tribunal No. 21-CF-016057

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JOSE MIKE ESPICHAN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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Appeal from the Circuit Court for Lee County.

J. Frank Porter, Judge.

July 19, 2024

STARGEL, J.

Jose Mike Espichan appeals his judgment and sentence for second-degree 

murder with a firearm.1 Espichan, who claims that the shooting was in self-defense, 

argues that the trial court: (1) committed fundamental error by instructing the jury on 

the justifiable use of deadly force and a possible duty to retreat in connection 

therewith, without stating or defining the applicable criminal activity that Espichan

1 This case was transferred from the Second District Court of Appeals to this 

Court on January 1, 2023.
2 

may have been “otherwise engaged in” that would have given rise to a duty to retreat; 

(2) abused its discretion by prohibiting a defense witness from testifying about the 

victim’s reputation for violence; and (3) committed reversible error by refusing to 

include in the jury instruction on the justifiable use of deadly force the offense of 

aggravated assault as a possible felony which Espichan could have been justified in 

using deadly force to resist. We find merit only in the third issue and conclude that 

Espichan is entitled to a new trial on that basis. Accordingly, we reverse.

Background

Espichan was charged by information with second-degree murder for the 

shooting death of Jesus Milian Cabrera. At trial, Cabrera’s girlfriend, Caitlyn 

Hidalgo, testified that she and Cabrera lived with Cabrera’s father at a home on Palm 

Lane in Fort Myers. Two weeks before the shooting, Cabrera and Hidalgo had an 

argument with a neighbor, Marissa Greenlee, about Hidalgo’s missing dog. The 

argument escalated, and Hidalgo claimed that Greenlee threatened to shoot her. 

Hidalgo then shoved Greenlee to the ground and allegedly spat in her face. Greenlee 

called the police, but Hidalgo and Cabrera left before they arrived.

On September 1, 2021, Hidalgo was home with Cabrera when Cabrera’s father 

took Cabrera’s truck to go to the store. Cabrera, realizing that his father did not know 

that the emergency brake was on, tried to call his father, but his father didn’t answer. 

Cabrera, Hidalgo, and two of their children got into Hidalgo’s car to follow Cabrera’s 
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father. They pulled up behind the truck at a stop sign on Palm Lane, and Cabrera got 

out to speak to his father. A car pulled behind them, which Hidalgo recognized as a 

white Cadillac belonging to Greenlee. Hidalgo stuck her hand out to wave at the 

Cadillac and made what she described as “childish” faces at Greenlee. Hidalgo could 

not see anyone in the passenger seat of the Cadillac, but she heard a male voice 

coming from the vehicle. Cabrera then approached the passenger side of the Cadillac. 

Hidalgo testified that Cabrera was not walking aggressively as he approached the 

Cadillac, and she did not see any weapons or firearms on him. Hidalgo could not see 

or hear what transpired while Cabrera was near the Cadillac, but then she heard 

gunshots. Hidalgo watched as Cabrera walked away from the vehicle, looked at her, 

was shot, and then fell to the ground. The Cadillac drove off.

After receiving calls about the shooting, law enforcement located the Cadillac,

conducted a traffic stop, and took a female and male matching the descriptions of the 

suspects into custody. After being detained, Espichan gave a recorded interview to 

law enforcement, which was played for the jury at trial. During the interview, 

Espichan told the officers that he was traveling to Miami to introduce his girlfriend to 

his family when he saw the car and the truck leaving at the same time. Espichan told 

Greenlee to slow down and let them leave “because [he] already knew they were 

trouble.” Once they left, they encountered the car and the truck blocking the street at 

the stop sign. The man got out of the car and started walking around. The girl in the 
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passenger seat started waving at them through the mirror, so Espichan waved back 

and asked her to move the car. The girl started laughing, and Espichan asked her 

again to move the car. The man, who had been talking to the old man in the truck,

came around and started getting aggressive. Espichan told the man to move the car, 

and he got more aggressive, so Espichan got his gun out of the glovebox and stepped 

outside. Espichan told the man to back up and leave them alone, but the man kept 

coming toward Espichan. When the man got close, Espichan opened fire. Espichan 

stated that he did not see the man with any weapons, but the man was bigger than him, 

was coming toward him in an aggressive manner, and the man’s girlfriend had 

previously assaulted Espichan’s girlfriend. Espichan also stated that he was in fear 

for his life and his family’s lives and that he felt he had to defend his family.

An autopsy revealed that Cabrera sustained a fatal gunshot wound to the back 

of his head. There were additional wounds to Cabrera’s upper left shoulder from a 

bullet that went through his shoulder and reentered his body in the armpit area; an 

entrance wound on the left side of his torso; two entrance wounds on his back above 

the right buttock; an entrance wound to his right thigh; and wounds from a shot that 

entered his right leg, traveled though both legs, and exited his left thigh. The medical 

examiner testified that the wounds to Cabrera’s thighs were caused with him facing 

the shooter and that the impact could have caused him to spin around. However, it 

was also possible that the shots to his back occurred first and caused him to spin 
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forward. Therefore, it was possible that Cabrera was advancing or walking away at 

the time he was first struck.

During its case-in-chief, the defense called Greenlee, who testified that during 

the argument about Hidalgo’s missing dog, Cabrera had made threats against her and 

Espichan. Greenlee told Espichan about the confrontation with Hidalgo and the 

threats made by Cabrera. On the date of the shooting, Greenlee and Espichan were 

leaving the house with Greenlee’s children when she pulled up behind Cabrera’s truck 

and Hidalgo’s car blocking the road at the stop sign. Cabrera got out of his car and 

walked up to the truck while Hidalgo was waving at Greenlee’s vehicle. Cabrera then 

started walking aggressively towards Greenlee’s vehicle. Greenlee testified that

Cabrera was looking at Espichan and holding his waistband, and “[i]t looked like he 

was holding a gun.” Espichan took his gun out of the glove box and told Cabrera to 

move his car so that they could go. Cabrera got closer, and Espichan warned him to 

back up. Cabrera kept getting closer, and when he reached the passenger door, shots 

were fired. Greenlee stated that she fled the scene after the shooting because she was 

scared.

On cross-examination, the State pressed Greenlee as to whether she saw any 

sort of weapon on Cabrera during the incident. Greenlee responded, “I did not see a 

weapon, but it looked like he was holding a gun in his waistband.” When specifically 
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asked whether she saw a gun in Cabrera’s waistband, Greenlee stated “I thought I did, 

yes.”

During the charge conference, the defense requested a jury instruction on the 

justifiable use of deadly force. While the State did not oppose the instruction in 

general, it objected to the defense’s request to include aggravated assault as one of 

the applicable felonies that Espichan could have been justified in using deadly force 

to resist. See Fla. Std. Jury Instr. (Crim.) 3.6(f) (2022). The State argued that 

aggravated assault was not applicable because there was no evidence that Cabrera had 

a deadly weapon and explained, “[I]f they present even a scintilla of evidence towards 

that, then it’s supposed to come in, but we don’t think that there’s a scintilla of 

evidence of the agg[ravated] assault.” The defense countered that Greenlee’s 

testimony supported the inclusion of aggravated assault in the instruction because she 

thought that Cabrera had a gun when he approached the vehicle.

The trial court ultimately agreed with the State and refused to include 

aggravated assault in the self-defense instruction. However, the court granted 

Espichan’s request to include the offense of burglary in the instruction. The given 

instruction based on Standard Jury Instruction 3.6(f) read in pertinent part:

The use of deadly force is justifiable if Jose Espichan reasonably 

believed that the force was necessary to prevent imminent death or great 

bodily harm to himself while resisting: 

another’s attempt to murder him, 
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or any attempt to commit Burglary.2

. . . . 

Jose Espichan was justified in using deadly force if he reasonably 

believed that such force was necessary to prevent imminent death or 

great bodily harm to himself or another or the imminent commission of 

Burglary against himself or another. If Jose Espichan was not otherwise 

engaged in criminal activity and was in a place he had a right to be, then 

he had no duty to retreat and had the right to stand his ground. 

At the conclusion of trial, the jury found Espichan guilty as charged of seconddegree murder. The trial court adjudicated Espichan guilty and sentenced him to fifty 

years in prison, followed by a lifetime of probation. This timely appeal follows.

Analysis

A trial court’s decision to give or withhold a proposed jury instruction is 

reviewed for an abuse of discretion. Lantz v. State, 263 So. 3d 279, 283 (Fla. 1st DCA 

2019). However, the trial court’s discretion is limited in a criminal proceeding 

“because a criminal defendant is entitled to have the jury instructed on his or her 

theory of defense if there is any evidence to support this theory, so long as the theory 

is recognized as valid under the law of the state.” Worley v. State, 848 So. 2d 491, 

492 (Fla. 5th DCA 2003). Florida courts have consistently held that “[a] criminal 

defendant is entitled to have the jury instructed on the law applicable to his or her 

theory of defense where there is any evidence to support it, no matter how weak or 

2 The instruction then proceeded to list the two elements constituting burglary 

and other definitions relevant to that offense.
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flimsy.” Gregory v. State, 937 So. 2d 180, 182 (Fla. 4th DCA 2006) (collecting 

cases). Indeed, we recently stressed the importance of giving a defendant’s requested 

instruction on self-defense where there is any evidence to support the instruction, no 

matter how slight. Gonzalez v. State, 49 Fla. L. Weekly D878 (Fla. 6th DCA Apr. 19, 

2024).

In the present case, Espichan argues that aggravated assault should have been 

included in the self-defense instruction based on Greenlee’s testimony that it looked 

like Cabrera was holding a gun as he approached her vehicle. “Florida law justifies 

the use of deadly force if someone ‘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.’” 

Jackson v. State, 253 So. 3d 738, 740 (Fla. 1st DCA 2018) (quoting § 776.012(2), Fla. 

Stat.); see also § 782.02, Fla. Stat. (2021) (“The use of deadly force is justifiable when 

a person is resisting any attempt to murder such person or to commit any felony upon 

him or her or upon or in any dwelling house in which such person shall be.”). 

Aggravated assault is defined as an assault: (a) with a deadly weapon without intent 

to kill or (b) with an intent to commit a felony. § 784.021(1), Fla. Stat. (2021).

3

 “For 

statutory purposes, a ‘deadly weapon’ needn’t be a firearm; it is simply an object used 

3 The legislature included aggravated assault in the list of forcible felonies for 

purposes of chapter 776. § 776.08.
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or threatened to be used in a way likely to produce death or great bodily harm.” State 

v. McGhee, 174 So. 3d 470, 471-72 (Fla. 1st DCA 2015). While the statute provides 

that aggravated assault can be committed without a deadly weapon when there is an 

intent to commit a felony, since Espichan does not argue that version of the offense 

is applicable here, our analysis is limited to aggravated assault as an assault with a 

deadly weapon without intent to kill.

Looking to the evidence in this case, the evidence clearly suggests that Cabrera 

was not armed at the time of the shooting. Hidalgo’s testimony and Espichan’s 

statement to law enforcement indicated that Cabrera did not have any weapons as he 

approached Greenlee’s vehicle, and no weapons were found on or near his body at 

the crime scene. Nevertheless, Greenlee testified that when Cabrera was approaching

her vehicle, he was holding his waistband and that it looked like he was holding a 

gun. Greenlee later clarified on cross-examination that although she did not actually 

see a weapon, “it looked like he was holding a gun in his waistband.”

In light of Greenlee’s testimony, we agree with Espichan that the trial court’s 

refusal to include aggravated assault in the self-defense instruction constituted 

reversible error. Regardless of how strongly other evidence may have suggested that 

Cabrera was unarmed at the time of the shooting, because there was at least some

evidence that Cabrera possessed a gun when he approached the vehicle and attempted 

to assault Espichan, Espichan was entitled upon request to have this theory included 
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in the self-defense instruction. Though we are mindful of Espichan’s statement to 

law enforcement that he did not see Cabrera with any weapons before opening fire, 

this goes to the weight the jury may have given Espichan’s theory of self-defense, not 

whether there was a legal basis to include aggravated assault in the self-defense 

instruction. See Elder v. State, 296 So. 3d 440, 444 (Fla. 4th DCA 2020) (“[A] trial 

judge may not weigh the evidence before him in determining whether the instruction 

is appropriate; it is enough if the defense is suggested by the evidence presented.”

(quoting Chavers v. State, 901 So. 2d 409, 410 (Fla. 1st DCA 2005))); Vila v. State, 

74 So. 3d 1110, 1112 (Fla. 5th DCA 2011) (“In determining whether to give a 

requested instruction, the trial court should consider the evidence presented without 

weighing the evidence, as the latter is a task for the jury.”); Dias v. State, 812 So. 2d 

487, 491 (Fla. 4th DCA 2002) (“The question of self-defense is one of fact[] and is 

one for the jury to decide where the facts are disputed.”).

Finally, similar to our decision in Gonzalez, we cannot find the error in 

instructing the jury in this case to be harmless beyond a reasonable doubt because said

error went to the heart of Espichan’s sole defense. “Notwithstanding the remoteness 

that a different result may occur, our courts have long held that the ‘[f]ailure to give 

a standard jury instruction is reversible error when the omitted standard jury 

instruction goes to the heart of the defendant’s case.’” Gonzalez, 49 Fla. L. Weekly

at D881 (alteration in original) (quoting Arboleda v. State, 645 So. 2d 48, 50 (Fla. 3d 
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DCA 1994)). During closing arguments, the defense argued that Espichan acted 

reasonably in response to Cabrera aggressively approaching the vehicle and reaching 

for a firearm in his waistband. The defense also suggested that after the shooting, 

Cabrera’s father disposed of Cabrera’s firearm before police arrived. The trial court’s 

ruling impermissibly narrowed Espichan’s defense by removing a potential basis, 

however unlikely, for the jury to find that his actions were justified.

Conclusion

Although the evidence that Cabrera was armed with a deadly weapon as he 

approached Greenlee’s vehicle was slight, it was sufficient under Florida law to 

obligate the trial court to include aggravated assault in the jury instruction on the 

justifiable use of deadly force. Because the trial court’s failure to do so went to the

heart of Espichan’s defense, the error was not harmless. Accordingly, we reverse the

judgment and sentence and remand for a new trial.

REVERSED and REMANDED.

WOZNIAK and MIZE, JJ., concur.

Howard L. “Rex” Dimmig, II, Public Defender, and J. Rafael Rodriguez, Special 

Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Helene S. Parnes, Senior 

Assistant Attorney General, Tampa, for Appellee.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING 

AND DISPOSITION THEREOF IF FILED