THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT SARASOTA COUNTY, STATE OF FLORIDA STATE OF FLORIDA, Plaintiff, v. Case 2019 CF 8582- Count One DANIEL SANTIAGO, Defendant. MOTION TO DISMISS COMES NOW the Defendant, DANIEL SANTIAGO, by and through his undersigned attorney, pursuant to Florida Rule of Criminal Procedure 3.140 (C) (4) and moves this Honorable Court to enter an Order Dismissing Count One of the Information filed in above style cause. As grounds for said motion, Defendant Santiago would state: FACTS 1. Prior to June 6, 2019, Daniel Santiago lived most of his life in Massachusetts, and worked as a mechanic for Toyota for nineteen years. 2. Prior to moving to Florida, Mr. Santiago had been in a difficult and painful relationship with Alanah, the mother of his youngest child. He decided to move to Florida temporarily to remove himself from the emotional abuse he suffered during and after the breakup with his ex-partner. At the time he was arrested, Mr. Santiago was working for Gettel Toyota in Punta Gorda, Florida. 3. Mr. Santiago has no prior record. State of Florida 0. Daniel Santiago/ 2019 CF 8582 Motion to Dismiss 4. Mr. Santiago moved in with a co-worker, Anton Travis, Travis? girlfriend, Brandi Rolli, and Rolli?s son, Joshua. 5. All of the above roommates were aware that Mr. Santiago, was depressed, and having a difficult time with the breakup and not seeing his daughters, Mari, age 4 and Mya, age eleven. Ms. Rolli, during her deposition, noted I have seen him crying his eyes out that he could not be up north with his children. According to Anton Davis, during his deposition, stated he had depression, he caught his wife cheating, and she is keeping the baby from him. 6. On June 6, 2019, Santiago was downstairs socializing and drinking with all three of his roommates, when Santiago received a call from, Alanah, his ex-partner. Per his roommates, right after Mr. Santiago received the call from Alanah, he did not seem right, and ran upstairs. 7. During the phone call, Alanah, berated Mr. Santiago, by telling him, among other things, that he was a piece of shit and he should go ahead and kill himself, because she would never let him see their daughter. 8. At 7:10 Mr. Santiago sent a Facebook message out: My heart is broken I can?t no more sorry Kayla, Mya Marianna and my most loved friends I ?ll meet God tonight. Daddy lay and Mommy mimi I ?m done. State of Florida 0. Daniel Santiago/ 2019 CF 8582 Motion to Dismiss 9. 10. 11. 12. 13. 14. Daniel Santiago also wrote a suicide note which said: Everything I have I want Bambi to have; I will be with God, my heart hurts. The note was later located in his bedroom closet and placed in NPPD property. Daniel Santiago went into his closet and closed the door of the closet. He placed a pillowcase over his lap; the pillowcase had a picture of both Mari and Mya on the case. He also put the suicide note on his lap. He put his firearm to his temple and shot twice, moving the gun away each time. The third time he placed the gun in his mouth, and pulled the trigger, but it jammed. All of Santiago?s roommates were downstairs and heard shot, shot, click, in rapid succession, without pause in between. According to the testimony of Anton Travis, the shots were back to back, within a second. Further, all roommates agree that no more than twenty minutes had passed from the time Daniel Santiago received the call from his ex?wife, and the time they heard the shots. There was no one upstairs at the time that Daniel Santiago attempted to take his life. His roommate, Brandi Rolli, called 911, and all three roommates went outside to wait. Once law enforcement arrived, they circled the house, and a NPPD of?cer called Daniel Santiago, and asked him to come outside. Per all witnesses, Daniel came down from upstairs, without the firearm, and came outside. NPPD Officer State of Florida 0. Daniel Santiago/ 2019 CF 8582 Motion to Dismiss 15. 16. Lindsey testified during his deposition, that Daniel Santiago willingly came out of the house and was very cooperative, and was glad that they were there to help him, and wanted to thank the NPPD o??icer who had called him, talked to him, and asked him to come downstairs. Once outside, Santiago followed NPPD commands to put his hands on his head, and either kneel down or lay down on the ground. There is no question that Daniel Santiago?s sole purpose, and sole intent when he fired a firearm was to take his life. Santiago told NPPD that he felt suicidal and attempted to take his own life. 17. Santiago was detained and placed in a patrol vehicle, not for committing a crime, 18. but for an involuntary Baker Act. On July 18, 2019, the State filed an Information, charging Daniel Santiago, with Count One, Shooting at or Throwing a Deadly Missile at, within or into a Building or Vehicle, pursuant to Florida Statute, 790.19, and second?degree felony. Count Two, Using a Firearm while under the in?uence of alcoholic Beverages, chemical substances, or controlled substance, pursuant to Florida Statute, 790.151, a second?degree misdemeanor. State of Florida v. Daniel Santiago/ 2019 CF 8582 Motion to Dismiss LAW AND ARGUMENT At the time that Daniel Santiago ?red his firearm inside his bedroom closet, there is no disagreement that he was attempting to end his life. The rapid succession of the two shots and the click of the gun jamming, took a second; there was no pause or re?ection time between the two shots and the click. Based upon the facts, there is no question that the only intent Daniel Santiago had at the time he put his firearm to his head and shot twice, and then inside his mouth and pulled the trigger again, was to end his life. Anyone who takes their life or attempts to, is intending, in the act of doing so, to die. They are not intending to commit a crime against anyone else. The Florida Supreme Court, in State V. Kettell 980 So.2d 1061 (Fla. 2008) Applying the elementary principle that performing an act wantonly or maliciously requires more than merely performing the act, we hold that proof of the shooting alone is insufficient to prove the crime. In Shelden v. State, 38 So.3d 214 (2nd DCA 2010) law enforcement responded to a call about a shooting at defendant?s home. Inside the house, law enforcement discovered seven bullet holes in a wall and shell casings on the ?oor. One or more of the bullets had completely penetrated the home?s outer wall. The deputy also observed what he believed to be several divots where bullets had struck the ground several feet outside of the house. Law enforcement located defendant at a nearby gas station. At that time, Shelton admitted that he ?red his gun in his home to frighten his wife during an argument. The Court, in citing the Florida Supreme Court in State v. Kettell 980 So.2d 1063 (Fla. 2008) the mere shooting into a building does not establish intent under the State of Florida 7). Daniel Santiago/ 2019 CF 8582 Motion to Dismiss statute. Beyond the simple fact of the shooting itself, the State o?ered no proof that it was done wantonly or maliciously. Wantonly means consciously and intentionally, with reckless indz??erence or excuse and with the knowledge that damage is likely to he done to some person. Maliciously means wrongfully, intentionally, without legal justification or excuse and with the knowledge that injury or damage will or may be caused to another person or the property of another person. The Court went on to state, Here, there was no evidence that anyone was endangered by the shooting, that another?s property was threatened or that the shooter acted wrongfully or with reckless indifference to the consequences. The most that might be said from the fact that seven shots were fired is that the gun was discharged intentionally. As our Supreme Court has made clear, the act of shooting a gun alone, is insufficient to prove a crime. Tragic cases involving even the death of another, by someone with firearm, are not prosecuted even when the person who discharges a firearm, which caused a death or serious bodily, in circumstances in which there was no intent to do so: including accidental shooting of another when the person in possession of the firearm was cleaning a firearm; when a hunter mistakes a person in the distance for a deer, and shoots and kills the person; and tragically, in our community, with a father, who had all six of his children at target practice with him, and while shooting, a hot shell casing hit his neck, and he reacted by trying to get the shell casing off his body, and in doing so, shot to death one of his children. State of Florida 0. Daniel Santiago/ 2019 CF 8582 Motion to Dismiss In this case, while holding a gun to his head, Mr. Santiago, twice ?inched when he pulled the trigger, but then put the firearm in his mouth, and pulled the trigger, to make sure he did not ?inch, and could end his life. While, it seems clear, that Daniel Santiago?s only intent in shooting the gun, was to take his life, which is the most serious and final, and necessarily a self-focused action; any damage to the closet, did not put anyone in the house in danger, as no one was upstairs. None of his roommates/witnesses, ever saw Santiago with a gun or shoot his gun. Not only were they not harmed, their only concern was, and is, for the emotional well being of their friend, and explicitly not to be charged with any offense whatsoever. At the time that law enforcement detained Mr. Santiago and placed him in a patrol vehicle, it was not to criminalize him, but to take him, under the Baker Act, to the hospital. There are no materially disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant. WHEREFORE, Defendant SANTIAGO, prays this Court enter an Order Dismissing Count One of the above Information. I HEREBY specifically allege and swear to above recitation of facts in the above Motion to Dismiss. Bul 13.5. no. water; DANIEL magma, State of Florida Daniel Santiago/ 2019 CF 8582 Motion to Dismiss STATE OF FLORIDA COUNTY OF SARASOTA Sworn and subscribed before me remotely, by video conferencing with Mr. Santiago at Sarasota County Jail, Sarasota, Florida on this day of May 2020 the individual is ersonally known to me and can be positively identified by me. Notary ?1590 .W?w Notary Seal in? Q: 30, 2021 ?Sand? Bonded'nw Budget Notary SGMOES CERTIFICATE OF SERVICE I HEREBY CERTIFY that this Motion to Dismiss- Count One was e?filed with the Clerk of the Court and a copy provide to William Greiner Esquire, Office of the State Attorney, 2071 Ringling Blvd? 4th Floor, Sarasota, Florida 34237 via saoroundst?vsaolZorg: on this day of May, 2020. A courtesy copy of said Motion and case law was sent to the Honorable Charles Roberts on May M2020. LAW OFFICE OF LIANE RA. Liane McCurry, Esquire Florida Bar Number 655820 100 Wallace Avenue, Suite 210 Sarasota, Florida 34237 (941) 330-0052 Liane@McCurry.com Attorney for the Defendant Attachment: (Composite); Caselaw State v. Kettell, 980 So.2d 1061 (2008) 33 Fla. L. Weekly 8255 980 So.2d 1061 Supreme Court of Florida. STATE of Florida, Petitioner, V. Charles A. KETTELL, Sr., Respondent. No. April 24, 2008. Synopsis Background: Defendant was convicted in the Circuit Court, Pinellas County, Douglas Baird, J., of wantonly or maliciously shooting at, within, or into a building. He appealed. The District Court of Appeal, 950 So.2d 505. reversed and remanded. The state filed an application for review. Holdings: The Supreme Court, (.?antero, 1., held that: proof that a defendant fired a shot at, within, or into a building does not establish wanton or malicious intent, disapproving Holtsr'law v. State. 542 So.2d 437. and error in trial court's instruction that wanton or malicious intent was established if jury found that defendant ?red a gun in his apartment was not harmless. Decision of District Court oprpeal approved; case remanded. Attorneys and Law Firms *1062 Bill McCollum, Attorney General, Tallahassee, Florida, and Robert .I. Krauss, Assistant Attorney General, Bureau Chief, and ?than-d M. Fishkin, Assistant Attorney General, Tampa, FL, for Petitioner. James Marion Moorman, Public Defender, and Alisa Smith and Bruce P. Taylor, Assistant Public Defenders, Tenth Judicial Circuit, Bartow, FL, for Respondent. Opinion J. In this case we decide whether the crime of wantonly or maliciously shooting into a building can be established solely by proof of the shooting itself. We review Kane/l ll State. 950 So.2d 505 (Fla. 2d DCA 2007), where the trial court instructed thejury as much. The Second District Court of Appeal reversed, however, holding that the statute required more than mere proof of the shooting. That decision directly and expressly conflicts with Halter/aw v. State. 542 So.2d 437 (Fla. 5th DCA 1989), in which the court held that merely shooting at, into, or within a building establishes the elements of the crime. We have jurisdiction to resolve the con?ict. See art. V. Fla. Const.; Slum r. Kylie/l, 05?) Sold 7 7 (granting review). Applying the elementaiy principle that performing an act ?wantonly or maliciously? requires more than merely performing the act, we hold that proof of the shooting alone is insuf?cient to prove the crime. We therefore approve the Second District?s decision. State V. Kettell, 980 So.2d 1061 (2008) 33 Fla. L. Weekly 5255 l. FACTS AND PROCEDURAL HISTORY When neighbors heard shots coming from Kettell's apartment, they called 91]. Of?cers were dispatched and, upon arriving there, found Kettell alone. The apartment was ?lled with haze and smelled of gunpowder. The of?cers found a .38 caliber revolver. gun cleaning materials, and ammunition, as well as bullet holes and bullet fragments in the floor molding. Kettell later admitted to his ex-wife that he ?red the shots. He was charged with Violating section 790.19. Florida Statutes (2003), which provides, in pertinent part, that ?[wjhoevcr, wantonly or maliciously, shoots at, within, or into any public or private building shall be guilty of a *1063 felony of the second degree.? The case went to trial, where a major issue was Kettell?s intent. At trial, a controversy erupted over the jury instructions on the elements of the crime. At the charge conference, arguing that Halts-claw (the conflict case) held that intent was established solely by evidence that the defendant ?red shots within his apartment, the State proposed special jury instructions. The court reserved ruling until after closing arguments. In closing, the State argued in part that Kettell's act of ?ring his weapon was wanton and malicious because of the risk of personal injury or property damage. Defense counsel argued that the State had not established wanton or malicious intent because it failed to prove the likelihood of personal injury or property damage or Kettell's knowledge of any such likelihood. After closing arguments, the State again requested its special jury instructions because the ?jury need[ed] to be instructed that this is a per se crime.? Defense counsel objected, arguing that the special instructions negated the statute's wanton or malicious intent requirement, instead creating per se liability for shooting into a building. Considering itself bound by Halts-clan: the trial court granted the instruction. The standard jury instruction for the crime requires proof of three elements: that the defendant (1) shot a ?rearm; (2) at, within, or into a building, occupied or not; and (3) did so ?wantonly or maliciously.? Fla. Std. Jury Instr. (Crim) 10.13. These terms are de?ned in the instructions as follows: ?Wantonly? means consciously and intentionally, with reckless indifference to consequences and with the knowledge that damage is likely to be done to some person. ?Maliciously? means wrongfully, intentionally, without legal justi?cation or excuse, and with the knowledge that injury or damage will or may be caused to another person or the property of another person. 1d. The trial judge gave these standard instructions, and then gave the State's requested special instructions, which read: In other words, to sustain a conviction for wantonly or maliciously shooting at, within or into a building, the conduct must have been done with an intent to cause damage or injury. This intent element is ful?lled by a person who intentionally shoots at, within or into a building for the primary purpose or with a specific intent of shooting at a person in or near the building as well as by a person who shoots at, within or into a building per se. Ownership ofthe building is no defense to the offense ofmaliciously or wantonly shooting at, within, or into a building. (Emphasis added.) The jury found Kettell guilty. On appeal, however, the Second District reversed, ?nding that the ?rst special instruction misstated the law. Kettell. 950 So.2d at 508. *1064 11. DISCUSSION OF LAW The issue here is whether one can ?wantonly or maliciously? shoot at, into, or within a building by ?shooting at, within or into a building per se.? We hold that the answer must be The adverbs ?wantonly or maliciously? require more than the act of shooting itself. Below we (A) explain the nature of the con?ict in the district court decisions, (B) resolve the con?ict by ?rst analyzing the genesis of the phrase ?per se? in the cases interpreting the statute and then concluding that State v. Kettell, 980 So.2d 1061 (2008) 33 Fla. L. Weekly 8255 misinterpreted these decisions to remove the statute's intent requirement, and ?nally (C) reject the State's contention that giving the erroneous special instruction was harmless error. A. The Con?ict in the Cases In deciding to give the State's special instruction on intent, the trial court relied on the Fifth District Court of Appeal's decision in 542 So.2d 437. Accordingly, to de?ne the con?ict here, we ?rst examine that case. involved similar, if more violent, facts. After a night of heavy drinking, the defendant returned to his trailer, where his wife and a baby had stayed. id. at 438. When she asked about the blood on his chin, he struck her. He then retrieved a gun and several times threatened to shoot himself and her. He shot into the ?oor and then into the wall of the room where the baby was sleeping. When his wife rushed into the room to protect the child, he followed her and again ?red into the wall. He was charged with violating section 790.1?, as well as with aggravated assault and battery. The jury found him guilty on all counts, but the trial court granted a judgment notwithstanding the verdict on the charge of violating section 7'90. 9. When appealed his convictions for aggravated assault and battery, the State cross-appealed. Id. at 437738. The Fifth District reinstated conviction. In its brief opinion, the court addressed the issue as follows: attomey argues this statute did not apply because owned the trailer and either (1) the shots were made without an intent to injure anyone; or (2) the shots were not directed at anyone. None of these reasons constitute defenses to section 790.19, by its own language, nor does case law so construe it. As we said in Skinner v. State. 450 So.2d 595. 596 (Fla. 5th DCA 1984], review denied, 470 So.2d 702 (Fla.l985l: [We] hold that section 790. t) is violated by a person who intentionally shoots at, within, or into a building for the primary purpose, or with the specific intent, of shooting at a person in or near the building, as well as by a person who Shoots at, within, or into a building per se. Holtselaw, 542 So.2d at 43 5?59. In this case, the State requested the special instruction, and the trial court granted it, based on the emphasized language from above. The State argued that, based on that language, the wanton or malicious intent element is ful?lled by shooting at, within or into a building ?per se.? The Second District found that the special instruction was ?not a correct statement of the law.? Kate/l. 950 So.2d at 507. The court noted that the instruction absolved the State from proving that the act was done wantonly or maliciously. id. at 506?07. The district court then addressed the basis for the erroneous instruction?the opinion in In giving the incorrect instruction, the trial court relied on language in *1065 Hn/m/(m- State. 542 So.2d 437. 438739 (Ha. 51h DCA WW). See also Skinner v. Sir/re. 450 Sold 595. 596 (Fla. 5th DCA l984). As we have explained, we cannot accept the View that the language at issue constitutes a correct and clear statement of the law. The Halts-claw court undoubtedly sought to express the View that an offense under section 790.19 may be established without showing that the defendant shot at someone. In other words, a defendant who shoots into a building can do so wantonly or maliciously even though he does not shoot at someone. Unfortunately, the language employed in 1' lolrsr/nn' suggests that the intent element is ful?lled simply by showing that someone shot into a building without proving that the shooting was done wantonly or maliciously. State v. Kettell, 980 So.2d 1061 (2008) 33 Fla. L. Weekly 8255 Karel]. 950 Sold at 507. Thus, disagreeing with Holm-lmi' about the proof required to establish the intent element of section 700. 1 the court held the instruction erroneous; and because the instruction concerned an element of the crime, it reversed and remanded for a new trial. Id. at 507~ 08. B. Resolving the Conflict The district court opinions essentially con?ict over whether proof of the ?rst two elements of section 790.19 (shooting a ?rearm at, within, or into a building) is sufficient to establish the third (doing so wantonly or maliciously). Understanding why is inconect ?rst requires us to I) review the history of the district courts' interpretations of section 790. 19 and then (2) explain how misinterpreted these decisions to remove the statute's intent requirement. 1. The Genesis of the Phrase ?Per Se? in Interpretations of the Statute The root of the con?ict can be traced back almost ?fty years, when coutts, in describing the intent required under the statute, ?rst began to use the phrase, ?shooting at or into a building per se.? A district court ?rst used the phrase in Golden v. State, 120 Sold 651 DCA 1960 In that case, the defendant, while shooting at the victim, chased him into the victim's home. One bullet struck the victim, but others lodged in various parts of the home. Concluding that the evidence showed that the defendant's ?malicious and wanton attitude was directed only at [the victim]," not, as the statute required, ?that appellant was wantonly or maliciously shooting at or into the house per se,? the First District Court of Appeal reversed the conviction. Golden 120 So.2d at 653. Thus, the district court used the phrase ?shooting at or into the house per se? to articulate the requirement that the object of the shooting must be the building itself. Proof that a defendant was shooting at a person was insuf?cient. Over two decades later. a judge on one district court, and a panel of another, took issue with Golden. in Johnson Store, 436 5?on 248. 248 (Fla. 5th DCA 1983), the panel af?rmed without opinion the defendant's conviction under section 790.19. In a specially concurring opinion, however, Judge Cowart provided the facts, which were similar to those in tin/den. Johnson apparently circled a car while shooting at one of the passengers. Addressing the First District's opinion, Judge Cowart wrote: The disjunctive adverbs, ?wantonly or maliciously,? refer to that mental condition which would naturally and in common experience be expected to be the attitude of one who, with reckless disregard of the potential deadly consequences, intentionally and for no good and lawful purpose discharges a ?rearm at, within or into an object known to *1066 contain, or to often contain, human beings, as distinguished front the lack of intent of one who accidently discharges a ?rearm or the mind and attitude of one who, without intending any wrong or harm, innocently shoots a ?rearm under apparently safe conditions. [nanimate objects, such as houses and cars, seldom so offend a person as to become the subject of a malicious and wanton attitude and of a wrath such as would cause one to Shoot the object per se. Such rare occurrences could hardly have been what the statute was intended to prescribe. Johnson. 436 Sold at 249450 (Cowart, J., concurring specially) (emphasis added). 3 Judge Cowart concluded that ?the statute does not require that the defendant's malevolent attitude be that of a speci?c intent and that intent be in the fortn of a speci?c intention to harm the object involved.? Id. at 250. The next year, the Second District adopted the same position. Af?rming the denial of a motion to dismiss, the district court held that ?the element of wantonly shooting at or into a building is not negated by the pleaded facts that defendant ?red at a man who was in front of the building.? Ballard Store. 447 So.2d 1040. 1041 (Fla. 2d DCA 1984). That is, ?[w]antonly? does State v. Kettell, 980 So.2d 1061 (2008) 33 Fla. L. Weekly 8255 not require that the building be the target.? 1d. Then, in Skinner 1-: State, 450 So.2d 595. 595~96 (Fla. 5th 1984,, the Fifth District, with Judge Cowart now writing for the majority, used the phrasing that the court in later quoted. The court held that section 790.19 ?is violated by a person who intentionally shoots at, within, or into a building for the primary purpose, or with the speci?c intent, of shooting at a person in or near the building, as well as by a person who shoots at, within, or into the building per se." id, at 596. Thus, Judge Cowart used the phrase ?shooting into the building per se? not to hold that merely shooting into a building proves intent, but to emphasize that the target of the shooting need not be a person. The Second and Fifth Districts thus decidedly rejected the First District's interpretation in Golden. These courts did not, however, hold that ?ring into a building is per se criminal. Rather, they held that the building itselfneed not be the target ofthe shooting. A defendant's contention that he had aimed at a person in or near a building is not a defense. In response to these decisions, the First District receded from Golden. See Polite v. Stare. 454 So.2d 769. 771 (Fla. 1st DCA 1984) (receding from Golden and ?adopt[ing] the rationale expressed in Jolmson Carter v. State, 469 So.2d 775, 778 (Fla. 1st DCA 1984) (recognizing that Polite receded from Golden 2. Eliminated the Statute's Intent Requirement As detailed above, the phrase ?shooting into a building per se? arose in the context of whether the intent to shoot must be directed at the building itself. That was not the issue, however. in either this case or in Rather, the conflict here results from incorrect reliance on Skinner to address a much different defense: that the shooting was not wanton or malicious. As already noted, the court in loltsr'lmr quoted the ?per se" language in Skinner to *1067 hold that the defendant's claims (lack of malicious or wanton intent) did not ?constitute defenses to section 790.19, by its own language.? 542 Sold at 438. Thus, the court held that under the statute it is no defense that the act of shooting was not malicious or wanton. Such a holding effectively renders section 791). 19 a per se crime. The court's opinion in misinterpreted the holding of Skinner: Skinner addressed the Golden defense (that intending to shoot a person instead of a building did not establish the requisite intent under the statute). Its use of the phrase, ?shooting at or within a building per se? addressed only that defense. That was not defense, and it is not Kettell's. The reasoning in lulu-clan also disregards the plain language of the statute, which requires that the prohibited act be done ?wantonly or maliciously." As noted above, the standard jury instruction for .cciion 790.19 de?nes maliciously and wantonly as follows: ?Wantonly? means consciously and intentionally, with reckless indifference to consequences and with the knowledge that damage is likely to be done to some person. ?Maliciously? means wrongfully, intentionally, without legal justi?cation or excuse, and with the knowledge that injury or damage will or may be caused to another person or the property of another person. Fla. Std. Jury Instr. (Crim) 10.13. Therefore, as to this element, the State must prove: (I) that the act was done intentionally and recklessly without regard for the consequences; and that the defendant knew either (2) ?that damage is likely to be done. to some person" (for acting ?wantonly?) or that injury or damage will or may be caused to another person or the property of another person (for acting ?maliciously?). See Swirl; r. Store. (379 Sold 31 (Ha. 4th 19%) conviction under section 790.19 requires that the perpetrator act ?wantonly? or ?maliciously? in throwing the projectile toward an occupied or unoccupied building. In other words, the evidence must show that the defendant threw the rock with reckless indifference to the consequences or with knowledge that damage to person or property was likely to Under the statute, proof that the defendant shot at or into a building is simply insufficient to prove that the act was wanton or malicious. State v. Kette11,980 So.2d 1061 (2008) 33 Fla. L. Weekly 8255 Because the mere shooting into a building does not establish intent under the statute, the two special instructions given the jury in this case were erroneous. The instructions provided that the wanton or malicious ?intent element isful?lled by a person who shoots at, within or into a building per se and that ?[o]wnership ofthe building is no defense to the offense.? (Emphasis added.) As the Second District noted, ?the [?rst] instruction thus indicates that shooting at, within, or into a building is an act that ?standing is, without reference to the intent to cause damage or injury?is suf?cient to satisfy the intent element ofthe offense? and held ?[t]his is not a correct statement of the law.? (rite/l. 950 Sold at 506707. We agree. in fact, both of these special instructions are erroneous statements of the law. Proof that an accused ?red a shot at, within, or into a building does not establish malicious or wanton intent. The State must prove this element in accordance with the de?nitions of those terms, including the defendant's knowledge that his act may injure someone or damage someone else's property. In this case, Kettell argued that he lacked malicious or wanton intent: that the ?ring was not reckless; that the shots *1068 were directed away from people or into objects; that no one was injured and no injury was intended; that no one else?s property was damaged; and that he had no knowledge that he was likely to injure anyone or damage anyone else's property. The special instructions removed that defense because they required the jury to ?nd him guilty upon proof that he ?red into a building. C. The Error Was Harmful Having concluded that the special instructions given at trial were erroneous statements of the law, we now turn to the State's contention that any error was harmless. We disagree. Noting that the trial court gave both the standard jury instruction applicable to section 790.19 as well as the erroneous special instructions, the Second District concluded that ?in full context, the best that can be said of them is that they are contradictory and therefore confusing and misleading.? {\t'ziell. 050 Sold at 507. Accordingly, the district court reversed and remanded for new trial because the trial court did not correctly instruct the jury on the elements of the crime charged. The State argues that any error was harmless because the evidence supports the jury's ?nding of wanton or malicious intent. We have previously held that due process requires ?that a defendant be accorded the right to have a Court correctly and intelligently instruct the jury on the essential and material elements of the crime charged and required to be proven by competent evidence.? Gert/s 1: State, 6?1 Sold 915. ti? Jury instructions, however, are subject to the contemporaneous objection rule, and unpreserved claims of error cannot be raised on appeal absent fundamental error. Castor r. Sit/re. 365 Sold 70 i. 703 (F1a.l978). In Kettell's case, the trial court gave the standard instruction on the elements of the crime, including the de?nitions of the hotly disputed element of wanton or malicious intent, without alteration. Over the defendant's objection, the court at the same time instructed the jury that wanton or malicious intent was established if the jury found only that the defendant ?red a gun in his apartment. As we explained above, the judge thus erroneously instructed that shooting within a building is a per se crime. See Butler State. 493 Sold 451 . 452 (Fla. 1986') court should not give instructions which are confusing, contradictory, or misleading?). The court's error cannot be considered harmless. We have held that ?[s]ince thejury is entitled to be instructed on the elements of the offense, it cannot be harmless error to fail to do so especially when the omission is brought to the attention of the trial court by the defendant.? Scott v. State. 808 So.2d 166. 170?71 (Fla.2002), superseded on other grounds by 0 893.101. Stat. (2002), as recognized in Garcia Store. 901 Sold 788. 702 n. 1 tiilaltiti? Although the court in this case did not, as in Scott. fail to instruct the jury on an element of the crime, its use of the State's requested instruction resulted in an incorrect instruction on the law regarding a disputed element of the crime. The instruction irnpermissibly removed, or at least reduced, the State's burden to prove malicious or wanton intent beyond a reasonable doubt. The court's faulty instructions on the intent element were thus material to the jury's consideration of whether Kettell violated *1069 *"3Cllt'ill 790.19. Therefore, the error was not harmless. See see also Reed State. 837 Sold 366. 369 (Fla.20021 (holding that an erroneous jury instruction was fundamental error because the instruction contained an incorrect de?nition of an element that reduced the State's burden of proof, was ?material to what the jury had to consider to convict the petitioner,? and was ?a disputed element? at trial); Bur/mi r. State v. Ketteil, 980 Sold 1061 (2008) 33 Fla. L. Weekly 8255 State. 941 So.2d 1291, 1291 (Fla. 4th DCA 2006) (reversing and holding that the trial court erred by instructing on justi?able force because, in the absence of a separate forcible felony, the instruction ?impermissibly negate[d] the defendant's Claim of glimv'ar State. 937 Sold 277, 282 (Fla. 4th DCA 2006) (holding that fundamental error occurred where the jury was given contradictory instructions, one correct and the other incorrect). Ill. CONCLUSION We hold that the wanton or malicious intent element of the crime defined by section 790.19. Florida Statutes, is not established solely by evidence that a defendant ?red a shot at, within, or into a building. The State also must prove that the shooting was done wantonly or maliciously as those terms are defined in the standard jury instruction. We therefore approve the decision of the Second District in this case and disapprove the Fifth District's decision in l?lU/ISC/un: We remand this case for further proceedings consistent with this opinion. It is so ordered. LEWIS, 0.1., and WELLS, ANSTEAD, PARIENTE, QUINCE, and BELL, JJ., concur. All Citations 980 So.2d 106], 33 Fla. L. Weekly $255 Footnotes 1 The entire statute provides as follows: Whoever, wantonly or maliciously, shoots at, within, or into, or throws any missile or hurls or projects a stone or other hard substance which would produce death or great bodily harm, at, within, or in any public or private building, occupied or unoccupied, or public or private bus or any train, locomotive, railway car, caboose, cable railway car, street railway car, monorail car, or vehicle of any kind which is being used or occupied by any person, or any boat, vessel, ship. or barge lying in or plying the waters ofthis state, or aircraft ?ying through the airspace ofthis state shall be guilty ofa felony ofthe second degree, punishable as provided in s. 775.082, 3. 775.083, or s. 775.084. 7901?). Fla. Stat. (2003). 7 In a footnote, Judge Cowait explicated the meaning of the phrase ?per se? and the First District's use of it in Golden. Johnson. 436 Sold at 249 n. 2 (?Therefore in Golden the phrase ?the house per sc? means the house by itself; the house taken alone; the house in isolation; the house unconnected with other matters; the house in and of itself; or the house because of, or on account of, the house itself"). We reject without discussion the State's contention that it was necessary to give the erroneous instructions to Kettel's jury in order to punish defense counsel for alleged misconduct. No misconduct occurred; and even if it did, the sanction for misconduct cannot include the granting of an instruction that misstates an element of the crime. i-nd of Document . Jr li?i?l'li'w?l" Shelden v. State, 38 So.3d 214 (2010) 35 Fla. L. Weekly D1316 38 So.3d 214 District Court of Appeal of Florida, Second District. Dennis SHELDEN, Appellant, v. STATE of Florida, Appellee. No. 2Do8e5102. 1 June 11, 2010. Rehearing Denied June 29, 2010. Synopsis Background: Defendant was convicted in the Circuit Court, Manatee County, Debra .lohncs Riw, J., of shooting within or into a building, a second-degree felony, and he appealed. The District Court of Appeal, ?thutt, J., held that, in absence of evidence tending to establish the ?wanton or malicious? element of the crime of shooting within or into a building, a second-degree felony, the State failed to prove the corpus delicti so as to permit the introduction of defendant's statements to deputy. Reversed and remanded. Attorneys and Law Firms *215 James Marion Public Defender, and Alisa Smith, Assistant Public Defender, Baitow, for Appellant. Bill h?lcCollum, Attorney General, Tallahassee, and Richard M. liishlx'm, Assistant Attorney General, Tampa, for Appellee. Opinion Judge. A jury convicted Dennis Shelden ofshooting within or into a building, a second-degree felony. See it). 19. Fla. Stat. (2007). But the trial court erred by permitting evidence of Shelden's statements over defense counsel's objection that the State had not proved the corpus delicti. Accordingly, we reverse. The State presented two witnesses at Shelden's trial. One was a sheriffs deputy who testified that he responded to a call about a shooting at Shelden's home. Inside the home, he saw seven bullet holes in a wall and shell casings on the floor. One or more of the bullets had completely penetrated the home's outer wall. Outside, the deputy found what he believed to be divots where bullets struck the ground several feet from the house. The other witness, also a sheriff?s deputy, recounted that he received an alert to be on the lookout for Shelden. He located him in a car parked at an area gas station. After *216 the deputy informed Shelden of his constitutional rights, Shelden acknowledged that he had ?red a pistol inside his home in an attempt to frighten his wife during an argument. Shelden v. State, 38 So.3d 214 (2010) 35 Fla. L. Weekly D1316 The deputy was permitted to relate Shelden's statements notwithstanding defense counsel's objection that the State had not first proved the corpus delicti. The trial court overruled the objection subject to revisiting the question at a later time. When the State rested its case, defense counsel moved for a judgment of acquittal on the ground that the evidence was legally insuf?cient to prove that Shelden discharged the ?reamr willfully or wantonly. After the jury returned a guilty verdict, Shelden's counsel renewed his motion for a judgment of acquittal and reasserted his corpus delicti argument. The trial court denied the motion and reaf?rmed its earlier ruling on the admissibility of Shelden's statements to the deputy. 1t is a longstanding tenet of common law that a defendant's confession is inadmissible to prove his guilt unless the State separately proves the corpus delicti, the ?body of the crime.? Franc/211' 1: State. (199 Sold 1312. 1317 (Fla.1997) (quoting Black '5 Law Dictionary 344 (6th ed. 1990)). In other words, the State is obliged to demonstrate, by evidence other than the defendant's admission, that the crime was in fact committed. The State meets its burden to prove the corpus delicti with evidence that a crime of the type charged was committed; and (2) that the crime was committed through the criminal agency of another,? although not necessarily the defendant. As to the ?rst prong, the State need not demonstrate the commission of the crime by proof beyond a reasonable doubt. But it must submit evidence that at least tends to show each element of the relevant offense. State Ho/zlmt-lmz 048 Sold 035. 937 11m- 2d DCA 2007). We look, therefore. to the elements of the offense at hand. The Florida Supreme Court has identi?ed the elements of criminally shooting within or into a building as follows: ?that the defendant (1) shot a ?rearm; (2) at, within, or into a building, occupied or not; and (3) did so ?wantonly or maliciously.? {\Umw. var) Sold 1061. I003 (quoting Fla. Std. Jury Instr. (Crim) 10.13). Here, the State's evidence amply demonstrated that a ?rearm was discharged inside Shelden's house, thus establishing the ?rst two elements of the corpus delicti. But, apart from Shelden's statements to the arresting deputy, the State's evidence of the third element was wholly lacking. As the supreme court held in rat-H. ?the mere shooting into a building does not establish intent under the statute.? M. :11 1007. Beyond the simple fact of the shooting itself, the State offered no proof that it was done wantonly or maliciously. As defined in the standard jury instruction: ?Wantonly? means consciously and intentionally, with reckless indifference to consequences and with the knowledge that damage is likely to be done to some person. ?Maliciously? means wrongfully, intentionally, without legal justi?cation or excuse, and with the knowledge that injury or damage will or may be caused to another person or the property of another person. .1 So. 2d at 10(17.Herc, there was no evidence that anyone was endanger ed by the shooting, that another' property was threatened. or that the shooter acted wrongfully or with reckless indifference *217 to consequences. The most that might be said, from the fact that seven shots were ?red, rs that the gun was discharged intentionally. But, aside from Shelden' statements, the evidence did not reveal whether anyone other than the shooter was present at the time. Nor was there evidence, for that matter, of whether the shots were ?red in a country house or a city dwelling or whether the bullets penetrated a wall to an area outdoors that might be frequented by children or passers-by. In the absence of evidence tending to establish the ?wanton or malicious? element of the crime, the State failed to prove the corpus delicti so as to permit the introduction of Shelden's statements to the deputy. The trial court should have sustained defense counsel's objection. Reversed and remanded for a new trial. and MORRIS, 1.1., Concur. Shelden v. State, 38 $0.30! 214 (2010) 35 D1316 All Citations 38 So.3d 214, 35 Fla. L. Weekly D1316 End of Document 2020 Thomson Reuters. No claim to original US. Government Works.