Ward L. Kenyon v. State of Florida

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

WARD L. KENYON,
Appellant,

Vv.

STATE OF FLORIDA,
Appellee.

No. 4D2023-1856
[December 10, 2025]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Nicole P. Menz, Judge; L.T. Case No.
312018CF000135A.

Daniel Eisinger, Public Defender, and Gary Lee Caldwell, Assistant
Public Defender, West Palm Beach, for appellant.

James Uthmeier, Attorney General, Tallahassee, and Deborah Koenig,
Senior Assistant Attorney General, West Palm Beach, for appellee.

GROSS, J.

This case arose from a melee in a sports bar where police officers tried
to serve a violation of probation warrant on the defendant. Many shots
were fired, and an officer was shot in the foot by a fellow officer. The
defendant represented himself at a jury trial. He was convicted of the three
felonies now on appeal.

We affirm the three convictions and the resulting sentences. Although
the defendant did a more than competent job representing himself,
decisions he made and actions he took during the trial drive this result.

The Charges at Trial

Before trial, Ward Kenyon (“Kenyon” or “the defendant”) pleaded no
contest to the charge of possession of a firearm by a convicted felon. He

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was sentenced to 27 years in prison as a habitual felony offender.1 	The
case went to trial on the charges of altering a firearm serial number,
carrying a concealed firearm, and attempted second-degree murder of a
law enforcement officer with a firearm and discharge.
The Evidence at Trial2
In 	October 	2017, 	uniformed 	officers 	from 	the 	Sebastian 	Police
Department went to a sports bar to serve Kenyon with an arrest warrant
for violation of probation. 	The officers included Officer Singh, Officer
Nevue, and Sergeant Garrison.
Officer Singh approached Kenyon inside the crowded, noisy bar. 	The
officer identified himself as a police officer and asked Kenyon “to come
outside to speak with us.” Officers could not tell if Kenyon was armed just
by looking at him. 	Kenyon became defensive and immediately began
moving toward an exit. 	As he started to walk away from a large crowd of
people into a more open area, Kenyon began to increase his pace.
Kenyon’s demeanor changed as he neared a pool table. 	He began
physically resisting and started to “shoulder” the officers; he also “chest
bumped” Officer Nevue. One of the officers took Kenyon’s drink and set it
on the pool table.
Kenyon and the officers were positioned between the pool tables and a
wall against which leaned plywood sheets. 	Officers attempted to place
Kenyon’s hands behind his back to handcuff him.
Kenyon bent over slightly, doing something near his waistband, and
pulled out a firearm. 	Officer Singh noticed the firearm and yelled “gun.”
Kenyon pointed the gun at Officer Singh, who testified that the barrel
of the gun flagged him “[r]ight . . . when it was brandished.” Officer Singh
explained: “As it was brandished it was pointing right towards me and then
the fight was on for the gun.”
1 In a previous appeal, case number 2023-0313, we affirmed this conviction and
sentence.
2 We state the evidence at trial in the light most favorable to the State. See, e.g.,
State v. Lee, 230 So. 3d 886, 888 (Fla. 4th DCA 2017) (in reviewing the sufficiency
of the evidence, an appellate court views the evidence in the light most favorable
to the State).

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Kenyon and Officer Singh struggled over the firearm, with the barrel
pointed at the officer’s chest. 	As Sergeant Garrison put it, “the muzzle of
[Kenyon’s] gun was pointed at Officer Singh and they were struggling over
it.”
Officer Singh placed both his hands on the gun, trying to push the
muzzle downward. 	Kenyon had his hand on the handle side of the gun,
while Officer Singh “was on the muzzle side,” with the gun “pointed at his
center mass.” 	Officer Singh was losing the struggle and did not have
control over Kenyon.
Officer Singh felt resistance as he was pushing the gun down. 	Kenyon
actively tried to bring the gun towards Officer Singh. 	If Officer Singh had
relaxed his grip, the firearm would have been pointed “right at” him.
Officer Nevue gave Kenyon a verbal command to drop the gun.
The three officers all testified that Kenyon’s firearm discharged during
the struggle. 	Around the time his gun discharged, Kenyon fell on top of
Officer Singh, and the plywood boards against the wall fell on top of the
two of them. Officer Singh agreed that the firearm was not pointed at him
at the moment it discharged. 	However, even after “a gunshot already had
gone off,” Kenyon pointed the gun right at Officer Singh’s chest.
Officer Singh gave inconsistent answers about whether the gun was
discharged while he and Kenyon were still standing, but the video shows
that the gunshots began immediately after Kenyon and Officer Singh went
to the ground.
A bar patron, called as a defense witness, testified that he had a full
view of Kenyon and the officers until Kenyon went to the ground. 	The
witness explained that Kenyon was trying to lead the officers out the back
door, but the officers wanted him to stay there, subdued him, and held
him against the wall. 	The witness did not see Kenyon point anything at
the officers. The witness heard the first gunshot when Kenyon was on the
ground.
Officer Nevue testified that the firearm was in Kenyon’s hand but also
partially in Officer Singh’s hand when it discharged. 	At that moment,
Officer Nevue decided to use deadly force and began firing his weapon.
Officer Nevue said that even after he began discharging his firearm,
Kenyon “continued to resist” and “continued to push the threat.”
Sergeant Garrison explained that Kenyon’s firearm discharged once
around the same time when Officer Nevue first fired. 	According to Officer

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Nevue, once Kenyon discharged the initial round, Kenyon’s firearm “would
not discharge a second time.”
Officer Singh got up and ran outside, where he realized that he had
been shot in the foot. The evidence showed that Officer Singh’s injury was
“in all likelihood” caused by a fellow officer.
Meanwhile, Kenyon rolled underneath a pool table, where he attempted
to “rack the slide” of his firearm to make it operable. 	Sergeant Garrison
explained that Kenyon held a firearm in one hand and placed his other
hand on top of it to rerack or clear it. 	Because Kenyon’s “firearm had
already 	been 	discharged 	once 	in 	Officer 	Singh’s 	direction,” 	Sergeant
Garrison thought Kenyon “was trying to kill Officer Singh.” 	Based on her
concern for the safety of the officers and patrons, Sergeant Garrison then
fired her weapon as well.
Officer Nevue continued firing until he could see that Kenyon was no
longer a threat. 	After Sergeant Garrison fired twice in Kenyon’s direction,
Kenyon tossed a gun to the side and rolled out from underneath the pool
table to surrender.
Kenyon had been shot several times.
Two firearms belonging to Kenyon were recovered from the scene—a .45
Colt and a 9-millimeter pistol. 	The 9-millimeter pistol had an obliterated
serial number. 	At trial, the State introduced a business record showing
that Kenyon had not applied for or been issued a concealed weapons
license.
Cell phones and security cameras captured the incident on video,
showing that the entire encounter from the officers’ arrival to Kenyon’s
apprehension lasted less than two minutes. 	The videos depict a chaotic
scene in the bar. 	A defense expert, Dr. Michael Berkland, concluded that
all shots were fired within about 11 seconds.3
Testimony from Firearm Examiner and Crime Scene
Detective
The State’s firearm examiner testified that a .45-caliber projectile found
at the scene was fired from the .45 Colt that was also recovered at the
3 Specifically, Dr. Berkland prepared a timeline showing that that all shots were
fired between the 13th second and the 24th second of a 24-second window.

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scene. He further testified that a .45 casing found at the scene either had
been fired from the .45 Colt or had been cycled through it.
The firearm examiner linked 12 casings at the scene to Nevue’s firearm
and two to Garrison’s. 	Similarly, a sergeant in the Crime Scene Unit
testified that Nevue’s gun was missing 12 rounds and Garrison’s was
missing two.
Kenyon’s Recorded Interrogations
The State introduced two recorded interrogations of Kenyon.
In the first, which occurred in the emergency room on the night of the
incident, Kenyon said that he did not intend to shoot anybody or have the
firearm go off.
In the second, which took place in the hospital two days later, Kenyon
admitted that he was in possession of a 9-millimeter and a Colt .45. 	He
later nodded his head “yes” when asked if he scratched the serial number
off the gun (i.e., the 9-millimeter). He also reiterated that he did not mean
to harm an officer or to hurt anyone. 	He claimed that he did not know
whether his gun (i.e., the Colt .45) had discharged in the bar. He explained
that he had never discharged the gun from underneath the pool table, and
that he did not know whether the gun had discharged as he was falling to
the ground.
In both statements, Kenyon repeatedly claimed that he was trying to
get rid of the guns.
Denial of Motion for Judgment of Acquittal
Kenyon moved for a judgment of acquittal on the attempted second-
degree 	murder 	charge, 	arguing 	that 	the 	evidence 	was 	insufficient 	to
support the elements of the crime. 	He maintained that the State failed to
prove he acted with malice, hatred, ill will, spite, or an evil intent against
Officer Singh, particularly since he did not know Officer Singh. 	Kenyon
also argued that the State failed to prove he committed an imminently
dangerous act demonstrating a depraved mind, since the evidence did not
show he intentionally pointed a firearm at Officer Singh or intentionally
discharged it.
The trial court denied the motion, finding that the State presented
sufficient evidence on the attempted second-degree murder charge.

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Verdict and Sentence
A six-member jury found Kenyon guilty as charged on all three counts.
On the attempted second-degree murder count, the jury made specific
findings that Kenyon “actually possessed” and “actually discharged” a
firearm. 	The trial court sentenced Kenyon to 10 years in prison as a
habitual felony offender on the altered serial number charge, a concurrent
five-year term on the concealed firearm count, and a consecutive life
sentence with a 20-year mandatory minimum on the attempted second-
degree murder of a law enforcement officer charge. 	All three counts were
consecutive to the previously-imposed 27-year sentence for the felon-in-
possession charge.
The State Presented Sufficient Evidence to Survive
Kenyon’s Motion for Judgment of Acquittal on the
Attempted Second-Degree Murder Charge
The Defendant’s Argument
Kenyon argues that the trial court erred in denying his motion for
judgment of acquittal on the attempted second-degree murder charge.
Relying upon Wiley v. State, 60 So. 3d 588 (Fla. 4th DCA 2011), where this
court found that the conduct of hitting another over the head with a loaded
gun amounted to “extremely reckless behavior” but was insufficient to
infer malice, Kenyon argues that the evidence here similarly does not
support the conviction. He emphasizes that (1) the gun discharged during
a struggle in which both he and Officer Singh had their hands on the gun,
(2) the record shows no ill will or prior difficulties between Kenyon and
Officer Singh, and (3) Kenyon had no reason to shoot Officer Singh,
especially in the presence of other officers. 	In short, Kenyon argues that
“[p]ointing a gun at an officer is not attempted murder, nor is the discharge
of the gun in a struggle.”
Discussion
The denial of a motion for judgment of acquittal is reviewed de novo.
Segal v. State, 98 So. 3d 739, 742 (Fla. 4th DCA 2012). 	“[A]n appellate
court will not reverse a conviction which is supported by competent,
substantial evidence.” 	Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002).
“In moving for a judgment of acquittal, a defendant admits not only the
facts stated in the evidence adduced, but also admits every conclusion
favorable to the adverse party that a jury might fairly and reasonably infer
from the evidence.” Petit v. State, 321 So. 3d 286, 290 (Fla. 4th DCA 2021)
(internal quotation marks omitted). A trial court should grant a motion for

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judgment of acquittal only if “the evidence is such that no view which the
jury may lawfully take of it favorable to the opposite party can be sustained
under the law.” 	Lynch v. State, 293 So. 2d 44, 45 (Fla. 1974). 	“If, after
viewing the evidence in the light most favorable to the State, a rational trier
of fact could find the existence of the elements of the crime beyond a
reasonable 	doubt, 	sufficient 	evidence 	exists 	to 	sustain 	a 	conviction.”
Pagan, 830 So. 2d at 803. “The fact that the evidence is contradictory does
not warrant a judgment of acquittal because the weight of the evidence
and the witnesses’ credibility are questions solely for the jury.” Fitzpatrick
v. State, 900 So. 2d 495, 508 (Fla. 2005), abrogated on other grounds by
Alahad v. State, 362 So. 3d 190 (Fla. 2023).
To sustain a conviction for attempted second-degree murder, the State
must prove two elements: “(1) the defendant intentionally committed an
act that could have resulted, but did not result, in the death of someone,
and (2) the act was imminently dangerous to another and demonstrated a
depraved mind without regard for human life.” Coissy v. State, 957 So. 2d
53, 55 (Fla. 4th DCA 2007). Put simply, attempted second-degree murder
requires proof of the same conduct and mental state as second-degree
murder, but without the completion of the killing. 	See Clark v. State, 207
So. 3d 1019, 1022 (Fla. 4th DCA 2017).
Conduct is considered “imminently dangerous” and demonstrating a
“depraved mind” if “it is an act or series of acts” that: (1) “a person of
ordinary judgment would know is reasonably certain to kill or do serious
bodily injury to another”; (2) “is done from ill will, hatred, spite or an evil
intent”; and (3) “is of such a nature that the act itself indicates an
indifference to human life.” 	Wiley, 60 So. 3d at 591. 	The term “depraved
mind” “has been [] defined as importing malice in the sense of ill will,
hatred, or evil intent,” Hines v. State, 227 So. 2d 334, 335–36 (Fla. 1st
DCA 1969), but “this is not to say malice is limited in its meaning to hatred,
ill will and malevolence.” Antoine v. State, 138 So. 3d 1064, 1073 (Fla. 4th
DCA 2014) (cleaned up). 	Instead, “it denotes a wicked and corrupt
disregard of the lives and safety of others . . . a failure to appreciate social
duty.” 	Id. (cleaned up).
The required intent for the depraved-mind element may be inferred from
the circumstances. 	Kenner v. State, 208 So. 3d 271, 275 (Fla. 5th DCA
2016). The defendant’s intent is typically a jury question. Larsen v. State,
485 So. 2d 1372, 1373 (Fla. 1st DCA 1986). 	Additionally, second-degree
murder does not require proof that the defendant intended to kill the
victim. 	State v. Montgomery, 39 So. 3d 252, 256 (Fla. 2010).

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“Although 	exceptions 	exist, 	the 	crime 	of 	second-degree 	murder 	is
normally committed by a person who knows the victim and has had time
to develop a level of enmity toward the victim.” 	Light v. State, 841 So. 2d
623, 626 (Fla. 2d DCA 2003). 	“Hatred, spite, evil intent, or ill will usually
require 	more 	than 	an 	instant 	to 	develop.” 	Id. 	Still, 	a 	preexisting
relationship between the defendant and the victim is not necessarily
required to sustain a conviction for second-degree murder. 	See, e.g.,
Hoefert v. State, 617 So. 2d 1046, 1047–50 (Fla. 1993); Bega v. State, 100
So. 2d 455, 457 (Fla. 2d DCA 1958). Although preexisting enmity between
a defendant and a victim may be the most common way to establish ill will,
such a previous connection is not necessary if the defendant’s actions
evince the requisite malice and disregard for life under Florida law.
The State relies on cases holding that the defendant’s discharge of a
gun constitutes an act imminently dangerous to another and evincing a
depraved mind, but those cases are factually dissimilar to this one, in that
they involved defendants who pointed a firearm directly at the victim and
fired it; none of the State’s cases involved a struggle over the gun. 	See
Gibbs v. State, 904 So. 2d 432, 435 (Fla. 4th DCA 2005) (holding that
pointing a gun at the victim and then firing constituted an imminently
dangerous act evincing a depraved mind); Edwards v. State, 302 So. 2d
479, 481 (Fla. 3d DCA 1974) (finding defendant’s act of pointing the gun
at the victim’s head and then firing to be imminently dangerous to another
and evincing a depraved mind); Dellinger v. State, 495 So. 2d 197, 198–99
(Fla. 5th DCA 1986) (finding defendant’s act of pointing rifle at wife without
knowing 	whether 	it 	was 	loaded 	and 	pulling 	trigger 	was 	sufficient 	to
demonstrate depraved mind); Mackey v. State, 277 So. 3d 762, 768–69
(Fla. 1st DCA 2019) (finding sufficient evidence to support second-degree
murder conviction where defendant pressed the gun against his ex-wife’s
head and killed her with a single shot); see also State v. Bryan, 287 So. 2d
73, 76 (Fla. 1973) (in an appeal involving jury instructions, stating that
the intentional striking of another, in anger, with a loaded pistol—where
the 	weapon 	discharged 	and 	killed 	the 	victim—constituted 	an 	act
imminently dangerous to another and evincing a depraved mind).
Kenyon relies on cases that are distinguishable from this one, as they
involve facts leaning to the less culpable, “mere recklessness” side of the
second-degree murder equation. 	For example, in Wiley, we held that the
evidence was insufficient to show a depraved mind where defendant struck
his sister’s boyfriend in the head with a loaded gun, causing it to discharge
and kill a bystander. 	60 So. 3d at 591–92. 	We observed that given the
previously friendly relationship between the defendant and the boyfriend,
the defendant’s conduct “was less a result of malice and more of extremely

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reckless behavior, which is insufficient from which to infer any malice.”
Id. at 592; see also Dorsey v. State, 74 So. 3d 521, 522 (Fla. 4th DCA 2011)
(holding evidence insufficient to support second-degree murder where
defendant shot two people as an “impulsive overreaction” to being attacked
at a keg party).
Burns v. State, 584 So. 2d 1073 (Fla. 4th DCA 1991), presents a fact
situation close to the melee in this case. 	In Burns, we held that the
evidence was sufficient to sustain a conviction for attempted second-
degree murder where the defendant, after struggling with police, picked up
an officer’s dropped gun and pointed it “at that officer while making a
motion to squeeze the trigger.” Id. at 1074, 1076. Although the defendant
made a statement admitting that he shot the officer, the police later
discovered that the officer was actually injured by a bullet fired from a
fellow officer’s gun. 	Id. at 1074.
In 	affirming 	the 	conviction, 	we 	emphasized 	that 	Florida’s 	attempt
statute encompasses “any act” toward the commission of the crime. Id. at
1076. 	We further explained that “[w]ielding and pointing a handgun at
someone is an act teeming with consequences and is reasonably understood
as an act toward the commission of murder.” 	Id. (emphasis supplied). 	We
added: “Indeed we can think of few single acts more calculated to advance
an enterprise in murder or violence.” 	Id.
Here, the trial court properly denied Kenyon’s motion for judgment of
acquittal because the evidence, viewed in the light most favorable to the
State, was sufficient for a rational trier of fact to find all the elements of
attempted 	second-degree 	murder. 	Kenyon’s 	behavior—brandishing 	a
firearm, pointing it directly at Officer Singh’s torso, and engaging in a
violent struggle for the weapon that resulted in its discharge—constituted
acts imminently dangerous to another and demonstrating a depraved
mind without regard for human life. 	As in Burns, Kenyon’s conduct of
wielding and pointing a firearm at a police officer is reasonably understood
as 	an 	act 	toward 	the 	commission 	of 	murder. 	Kenyon 	also 	actively
attempted to bring the gun toward Officer Singh’s body mass as they were
struggling for control of the weapon. 	That the firearm discharged during
the struggle underscores the imminently dangerous nature of Kenyon’s
actions, even if the firearm was not pointed at Officer Singh at the exact
moment of discharge.
The criminal conduct in this case went beyond the “extremely reckless”
behavior at issue in Wiley. 	A jury could reasonably find that Kenyon
committed acts that a person of ordinary judgment would know were
reasonably certain to kill or do serious bodily injury to another, were done

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from “ill will, hatred, spite or an evil intent,” and which indicated an
indifference to human life. 	Despite being in a crowded bar, confronted by
multiple uniformed officers, Kenyon pointed the loaded gun at Officer
Singh, resisted the officer’s efforts to disarm him, tried to bring the gun
toward the officer’s torso, engaged in a struggle that resulted in the
discharge of his weapon, and then attempted to rerack the firearm to make
it operational again. 	The attempt to rerack the firearm is probative of
Kenyon’s mental state during the earlier free-for-all, providing further
evidence that he harbored the requisite ill will, hatred, or evil intent to
support 	the 	charge 	of 	attempted 	second-degree 	murder. 	Kenyon’s
interpretations of the evidence are valid jury arguments, but all conflicts
in the evidence, and reasonable inferences to be drawn from the evidence,
are resolved in favor of the verdict.
The Trial Court Did Not Abuse Its Discretion in Allowing
the State to Offer Kenyon’s Statements to the Court on
the Motion for Judgment of Acquittal and a Phone Call
Made from the Jail
After Kenyon rested his case, the prosecution reopened its case and
introduced two additional recorded statements Kenyon made: one during
his argument on his motion for judgment of acquittal, outside the presence
of the jury, and the other during a jail call discussing that motion.
In the recorded statement from the motion for judgment of acquittal,
Kenyon stated:
I didn’t indicate to do any harm to the officers cause I didn’t.
I panicked. I had guns on me, I was in a bar. Now, the jury’s
not here, we all know why I was trying to get rid of ’em, I
panicked, I tried to run, I was gonna get rid of ’em and run.
In 	fact 	these 	officers 	say 	I 	have 	a 	known 	reputation 	for
running. 	That’s what the defendant was trying to do.
In the call from the jail, Kenyon referred to his argument on the motion
for judgment of acquittal:
Ya’ 	know, 	I 	mention 	how 	the 	jury 	wasn’t 	there. 	I 	said
everybody here knows, ya’ know and what I mean by that is
that I was trying to run just to get rid of what I had on my
person, not hurt anybody.
Kenyon objected to the admission of the statements. 	He maintained
that the statements were cumulative, irrelevant, and unfairly prejudicial

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under section 90.403, Florida Statutes, particularly due to the reference
to the jury’s absence, which he argued would lead the jury to believe he
was hiding something from them. Kenyon also asserted that his statement
in the motion for judgment of acquittal was legal argument and was not
testimonial.
We pause to note that Kenyon did not raise the objection that allowing
the introduction of the statements violated his Sixth Amendment right to
conduct his own defense under Faretta v. California, 422 U.S. 806 (1975).
Nor did Kenyon raise the issue in his briefing with this court. Because the
issue has been neither preserved nor briefed, and because any error is not
fundamental, we decline to reach this issue here, confining our concerns
to the footnote below.4
The trial court concluded that Kenyon’s statement on the motion for
judgment of acquittal was a “humongous admission” and overruled his
objections.
On appeal, Kenyon argues relevance—that the statements “did not go
to 	any 	disputed 	material 	fact”—and 	that 	any 	probative 	value 	of 	the
statements was substantially outweighed by the danger of unfair prejudice
under section 90.403, Florida Statutes (2023).
Discussion
A trial court’s rulings on the relevance of evidence and the application
of section 90.403’s balancing test are reviewed for an abuse of discretion.
State v. Hubbs, 377 So. 3d 1162, 1165 (Fla. 4th DCA 2023). 	A trial court
4 The impeachment of a Faretta defendant by that defendant’s arguments to the
court, outside the presence of the jury, appears to present a significant Sixth
Amendment issue. 	In considering the parameters of stand-by counsel under
Faretta, the Supreme Court wrote that “Faretta rights are adequately vindicated
in proceedings outside the presence of the jury if the pro se defendant is allowed
to address the court freely on his own behalf.” 	McKaskle v. Wiggins, 465 U.S.
168, 179 (1984). 	The Court observed that outside the presence of the jury, the
defendant in Wiggins “was given ample opportunity to present his own position
to the court on every matter discussed. He was given time to think matters over,
to explain his problems and concerns informally, and to speak to the judge off
the record.” 	Id. at 181. 	Similarly, the Second Circuit has emphasized that “to
avoid any ambiguity in the jury’s mind about the unsworn statements of a pro se
defendant, it should be made clear to the jury at the outset that anything he says
in his ‘lawyer’ role is not evidence against him or a co-defendant, and his remarks
are to be regarded no differently than those of the attorneys in the case.” United
States v. Sacco, 563 F.2d 552, 557 (2d Cir. 1977).

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abuses 	its 	discretion 	only 	when 	its 	action 	“is 	arbitrary, 	fanciful, 	or
unreasonable,” 	meaning 	no 	reasonable 	person 	“would 	take 	the 	view
adopted by the trial court.” 	Canakaris v. Canakaris, 382 So. 2d 1197,
1203 (Fla. 1980).
“Relevant evidence is evidence tending to prove or disprove a material
fact.” 	§ 90.401, Fla. Stat. (2023). 	All relevant evidence is admissible
unless otherwise provided by law. 	State v. McClain, 525 So. 2d 420, 421
(Fla. 1988). 	Section 90.403 precludes otherwise relevant evidence “if its
probative 	value 	is 	substantially 	outweighed 	by 	the 	danger 	of 	unfair
prejudice, 	confusion 	of 	issues, 	misleading 	the 	jury, 	or 	needless
presentation of cumulative evidence.” 	§ 90.403, Fla. Stat. (2023).
In applying section 90.403, the trial judge has “a large measure of
discretion” to decide “whether the probative value of the evidence is
substantially outweighed by any of the enumerated reasons.” 	McClain,
525 So. 2d at 422 (quoting 1 C. Ehrhardt, Florida Evidence § 403.1 at 100–
03 (2d ed. 1984)). 	Exclusion of evidence under section 90.403 “is an
extraordinary remedy which should be used only sparingly since it permits
the trial court to exclude concededly probative evidence.” 	State v. Gerry,
855 So. 2d 157, 	163 (Fla. 5th DCA 	2003) (quoting United States v.
Betancourt, 734 F.2d 750, 757 (11th Cir. 1984)).
If evidence tends to prove or disprove a material fact in a case, it is
inherently prejudicial to the opposing party. 	See United States v. Horner,
853 F.3d 1201, 1214 (11th Cir. 2017). In a criminal case, the term “unfair
prejudice” refers “to the capacity of some concededly relevant evidence to
lure the factfinder into declaring guilt on a ground different from proof
specific to the offense charged.” 	Old Chief v. United States, 519 U.S. 172,
180 (1997). 	“Examples of that type of evidence include testimony that a
defendant was arrested in a high crime area, general behavior of drug
dealers, racial slurs, traffic citations, a party’s financial status, evidence of
drug use and the criminal history of a defendant.” 	Gerry, 855 So. 2d at
160. The party seeking exclusion bears the burden of demonstrating that
the danger of unfair prejudice substantially outweighs the probative value
of the evidence. 	Datus v. State, 126 So. 3d 363, 365 (Fla. 4th DCA 2013).
Here, the trial court did not abuse its discretion in admitting Kenyon’s
statements made during his motion for judgment of acquittal and in his
jail call because the statements were relevant to material facts in dispute
and their probative value was not substantially outweighed by unfair
prejudice.

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The trial court did not abuse its discretion in finding the statements
relevant under section 90.401. 	In the statements, Kenyon acknowledged
possessing guns, trying to get rid of the guns, and attempting to run from
police. 	Those admissions went directly to issues central to the charges,
including knowledge, intent, and consciousness of guilt. 	Kenyon had not
admitted guilt to all the charges, so those issues were still in dispute. The
statements were particularly probative as to the charges of carrying a
concealed 	firearm 	and 	altering 	a 	firearm 	serial 	number. 	Kenyon’s
admissions demonstrated his knowledge that he should not have had the
guns. And even if Kenyon’s knowledge that he was not allowed to have the
guns was “undisputed” in the sense that he had already indicated such
knowledge in his police interrogations, his admissions in the JOA motion
and the jail call also demonstrated his willingness to break the law to avoid
getting caught. 	This had some probative value to the “depraved mind”
element of attempted second-degree murder, even if he claimed he did not
intend to harm the officers. 	The “depraved mind” element of attempted
second-degree murder was undoubtedly a disputed issue.
Also, 	the 	probative 	value 	of 	the 	statements 	was 	not 	substantially
outweighed by the danger of unfair prejudice under section 90.403. 	The
reference to the jury’s absence was not irrelevant and was not unfairly
prejudicial. 	Rather, it provided context for the candor with which Kenyon
spoke, and this context was necessary to fully understand the scope of the
admission. 	While Kenyon argues the jurors might have inferred from the
statements that he was “hiding” something by noting their absence, the
record does not support a conclusion that this reference was inflammatory
or misleading in a way that would lure the jury into convicting on an
improper basis.
Contrary to Kenyon’s argument, the statements did not necessarily
show that he was a convicted felon, as they instead could have referred to
the unlawful concealment or the altered serial number. 	The reference to
the jury’s absence did not suggest propensity evidence, slurs, or other
inherently inflammatory content typical of unfairly prejudicial evidence.
Although 	Kenyon 	contends 	that 	the 	evidence 	was 	cumulative,
cumulativeness alone is not a sufficient ground to exclude evidence.
Samiian v. Johnson, 	302 	So. 	3d 	966, 	982 	(Fla. 	1st 	DCA 	2020). 	A
defendant’s own words have significant probative value. 	The trial court
properly balanced the section 90.403 factors and concluded that the
probative value of the evidence was not substantially outweighed by the
danger of unfair prejudice.

14
Kenyon Opened the Door to Testimony that the Officers
Were at the Bar to Serve a VOP Warrant
Prior to trial, Kenyon moved to redact references to the VOP warrant
from the police statements, and the prosecutor agreed to the redaction.
The prosecutor instructed all State witnesses to refer to the interaction
between Kenyon and the officers as an “investigation.”
On direct examination, Officer Singh testified that he and other officers
went to the bar in response to an investigation and approached Kenyon
inside the bar. 	Officer Singh was in uniform and identified himself as a
police officer. 	He requested Kenyon to walk outside to speak with him
because the bar was loud and he wanted to give Kenyon privacy to discuss
the investigation. 	After being approached, Kenyon acknowledged Officer
Singh’s presence and began walking toward the door with the officers. As
they moved toward the exit, Kenyon “cut away” from the officer. 	During
this movement, Kenyon’s demeanor changed, and he began showing signs
of aggression.
On cross-examination, Kenyon’s questions focused on the beginning of
his 	interaction 	with 	Officer 	Singh, 	attempting 	to 	show 	that 	he 	had
complied with the officers’ requests. 	Kenyon asked whether Officer Singh
had commanded or merely requested Kenyon to leave the bar, and Officer
Singh reiterated that he had requested Kenyon to step outside for privacy
to speak about the investigation. Kenyon pursued a lengthy, detailed line
of questioning about (1) when and how the officers grabbed him during the
encounter, (2) the difference between a question and a command, (3) the
distinction between a citizen’s consensual and nonconsensual encounter
with law enforcement, and (4) that a citizen is free to leave a consensual
encounter.
At 	this 	point, 	the 	trial 	court 	ruled 	that 	Kenyon 	had 	opened 	an
evidentiary door and allowed the prosecutor to establish through Officer
Singh that the officers were at the bar to serve Kenyon a warrant for
violation of probation. 	This fact was 	reiterated on Kenyon’s recross
examination and again on the prosecutor’s second redirect.
“As an evidentiary principle, the concept of ‘opening the door’ allows the
admission of otherwise inadmissible testimony to ‘qualify, explain, or limit’
testimony or evidence previously admitted.” 	Rodriguez v. State, 753 So.
2d 29, 42 (Fla. 2000) (citations omitted). 	The doctrine is founded “on
considerations of fairness and the truth-seeking function of a trial.” 	Id.
(quoting Bozeman v. State, 698 So. 2d 629, 631 (Fla. 4th DCA 1997)).
However, 	“[t]he 	mere 	fact 	that 	testimony 	may 	be 	characterized 	as

15
incomplete or misleading does not automatically trigger the admission of
otherwise inadmissible evidence under the opening the door principle.”
Brown v. State, 294 So. 3d 367, 372 (Fla. 4th DCA 2020). 	“Rather, the
State must demonstrate a legitimate need to resort to such evidence to
correct a false impression.” 	Redd v. State, 49 So. 3d 329, 333 (Fla. 1st
DCA 2010). 	Otherwise, the rule “threatens to become a pretext for the
illegitimate 	use 	of 	inadmissible 	evidence, 	and 	the 	fairness-promoting
purpose of the rule is lost.” 	Id.
Here, the trial court did not abuse its discretion by admitting evidence
related to the VOP arrest warrant because Kenyon opened the door to the
testimony.
One of the elements of attempted second-degree murder of a law
enforcement 	officer 	is 	that 	the 	officer 	was 	“engaged 	in 	the 	lawful
performance 	of 	a 	legal 	duty.” 	§ 	782.065(2), 	Fla. 	Stat. 	(2017). 	By
exhaustively questioning whether Officer Singh issued a “command” or
merely a “request,” and by eliciting testimony about the legal difference
between consensual and nonconsensual encounters, Kenyon created the
misleading impression that the officers may not have been engaged in the
lawful performance of a legal duty. He suggested that his interaction with
Officer Singh was a consensual encounter where he could lawfully refuse
to participate and walk away.
But a citizen confronted with an outstanding arrest warrant does not
have the free choice to walk away. 	The State properly rebutted the
misleading impression by introducing evidence establishing the officers’
lawful purpose for confronting Kenyon. 	There had been no stipulation by
the defense that the officers had been engaged in the lawful performance
of a legal duty,5 so the evidence was relevant to a material issue in the
case.
The Trial Court Erred in Allowing the Impeachment of a
Defense Expert Witness by Prior Bad Acts, But the Error
was Harmless
Dr. Berkland, who taught classes in shooting reconstruction, testified
for the defense as an expert witness. 	He was a former medical examiner
5 Although Kenyon stated at one point that he was “conceding and stipulating”
that the officers “were there for an investigative purpose,” this statement was
made outside the jury’s presence in an argument to the judge. 	The jury never
heard any stipulation from Kenyon that Officer Singh was “engaged in the lawful
performance of a legal duty.”

16
who had completed a pathology residency. However, his expert testimony
had nothing to do with either medicine or pathology. 	The bulk of his
testimony pertained to a reconstruction of the shooting from acoustic
analysis. A small portion of his testimony related to the evidence handling
techniques of the police.
On direct examination, Dr. Berkland described a spectral acoustic
analysis 	he 	had 	conducted 	of 	two 	cellphone 	videos, 	which 	together
captured the audio of the incident except for a 2.8-second gap when
Kenyon was “either under the pool table or rolling toward the pool table.”
Dr. Berkland detected 16 “loud anomalies” consistent with apparent
gun discharges. 	Dr. Berkland opined that all 16 discharges of firearms
“appear to be from the officers.” 	Dr. Berkland testified that a Colt .45 is
louder than the other guns at issue, and that he did not find “an acoustic
signature of a .45 going off.” Dr. Berkland also testified that the police did
not follow proper procedures for handling the crime scene evidence. 	For
example, he noted that “one of the bags was . . . open and had not been
resealed,” and that a projectile was “roaming loose in the sack.”
Prior to cross-examination, the State sought a ruling on whether it
could question Dr. Berkland about being fired from an out-of-state medical
examiner position and being prosecuted for tampering with evidence in
Florida. The State pointed out that Dr. Berkland had testified about proper
evidence collection practices and held himself out as an expert in that field
despite having been prosecuted for improper collection of evidence during
autopsies. 	The State clarified that it did not intend to reference the case
as a conviction but rather to ask whether Dr. Berkland had been accused
of tampering with evidence, which led to a deferred prosecution agreement
and termination of employment.
Kenyon objected to the proposed impeachment. 	Among other things,
Kenyon maintained that “you cannot impeach somebody with a mere
allegation of . . . prior bad acts,” and distinguished this case from a
situation where an expert made “false entries” on a curriculum vitae
(“C.V.”), which Dr. Berkland had not done here. 	Kenyon further asserted
that allowing the questions would result in “unfair prejudice” and “mislead
the jury,” particularly because Dr. Berkland’s alleged misconduct was
unrelated 	to 	firearms 	testimony, 	such 	that 	“the 	probative 	value 	is
substantially outweighed by the danger of unfair prejudice” under the
balancing test of section 90.403.
The trial court overruled Kenyon’s objection and allowed the proposed
impeachment, except for the mention of a pretrial diversion program.

17
During cross-examination, Dr. Berkland confirmed that he had been
fired from a Missouri medical examiner’s office and that his Missouri
medical license had been revoked. When asked if he was “investigated for
improper collection of evidence” in Florida, Dr. Berkland answered that the
investigation pertained to private evidence he had in his possession, not
medical examiner evidence. 	Dr. Berkland admitted that “subsequent to
that investigation” he was “no longer employed by the Medical Examiner’s
Office in Pensacola.”
Discussion
The trial court erred by allowing Dr. Berkland to be impeached by prior
bad acts.
A party may attack the credibility of a witness by, among other things,
“[a]ttacking the character of the witness in accordance with the provisions
of s. 90.609 or s. 90.610.” 	§ 90.608(3), Fla. Stat. (2023). 	Section 90.609
allows a party to attack the credibility of a witness by evidence in the form
of reputation, but the “evidence may refer only to character relating to
truthfulness.” § 90.609(1), Fla. Stat. (2023). And section 90.610 allows a
party to attack the credibility of a witness by evidence that the witness has
been convicted of a felony or a crime involving dishonesty or a false
statement. 	§ 90.610(1), Fla. Stat. (2023).
“Evidence of particular acts of misconduct cannot be introduced to
impeach the credibility of a witness.” 	Farinas v. State, 569 So. 2d 425,
429 (Fla. 1990); see also Pantoja v. State, 59 So. 3d 1092, 1096 (Fla. 2011)
(prohibiting 	impeachment 	evidence 	of 	“particular 	acts 	of 	ethical
misconduct”); Jackson v. State, 545 So. 2d 260, 264 (Fla. 1989) (holding
that 	“general 	acts 	of 	misconduct,” 	such 	as 	a 	“police 	department
reprimand” are not proper impeachment); Aaron v. State, 345 So. 2d 641,
644 n.10 (Fla. 1977) (stating that “[g]enerally, a witness may not be
impeached by evidence of prior acts of misconduct where there has been
no conviction”).6
6 We note that Federal Rule of Evidence 608(b) permits the use of specific
instances 	of 	misconduct 	as 	a 	method 	of 	impeachment 	under 	certain
circumstances. 	Professor Ehrhardt explains that the drafters of the Florida
Evidence Code “specifically intended not to adopt provision similar to Federal
Rule 608(b) because it did not reflect the existing Florida law and because they
felt the possibility for abuse of this type of evidence was great.” 	Charles W.
Ehrhardt, Florida Evidence § 610.8 (2012 ed.).

18
“Counsel may therefore not make inquiries on cross-examination about
unethical conduct on the part of expert witnesses, or disciplinary actions
in their profession.” 	In re Commitment of DeBolt, 19 So. 3d 335, 337 (Fla.
2d DCA 2009) (internal citation omitted). 	For example, in DeBolt, the
Second District held that the trial court abused its discretion by allowing
an expert witness in a Jimmy Ryce case to be impeached with evidence
that he had been “formally disciplined and received a four-year restriction
on [his] license as a sex offender treatment provider for adolescent sex
offenders.” 	Id.
Similarly, in Tormey v. Trout, 748 So. 2d 303, 305–06 (Fla. 4th DCA
1999), we held that a defense medical expert in a civil case was improperly
impeached 	on 	cross-examination 	where 	he 	was 	questioned 	about
administrative discipline he received for his misinterpretation of an MRI,
and about accusations of “gross or repeated malpractice.” 	Even though
the expert had given “a somewhat extensive overview of his qualifications”
on direct examination, we found the impeachment improper. 	Id. at 305.
Some latitude is allowed in the cross-examination of experts regarding
their qualifications to give expert opinions. 	Such cross-examination may
involve “any matter about which the expert testifies in establishing his or
her qualifications, both as a basis of arguing that the witness is not
qualified as an expert and to argue that even if he or she is qualified, the
jury should not give the opinion testimony great weight.” 	Flores v. Miami
Dade Cnty., 787 So. 2d 955, 957 (Fla. 3d DCA 2001) (quoting Charles W.
Ehrhardt, Florida Evidence § 702.5, at 601–03 (2001)).
In Farrell v. State, 186 So. 3d 1046, 1051–52 (Fla. 4th DCA 2015), we
allowed cross-examination of an expert regarding iterations of his C.V. that
he had compiled prior to trial. 	We held that the trial court did not abuse
its discretion in allowing the State to cross-examine a defense expert about
prior versions of his C.V. in which he listed job titles he never officially
held, concluding that “[s]uch questioning was ‘germane to the matters
brought out on direct examination,’ because appellant’s counsel asked [the
witness] about his professional experience and credentials for testifying as
an expert.” Id. at 1052. We thus reasoned that “[t]he state was entitled to
cross-examine [the witness] regarding his qualifications as they related to
his credibility as an expert.” Id.
Farrell 	is 	best 	understood 	not 	as 	an 	injection 	of 	prior 	bad 	acts
impeachment into Florida law, but as a case allowing impeachment of an
expert by prior inconsistent statements made in a C.V. pertaining to his
expertise.

19
In this case, the trial court abused its discretion by permitting the State
to impeach Dr. Berkland with evidence that he had been terminated from
medical examiner positions, had lost his Missouri medical license, and had
been investigated for improper collection of evidence. 	This impeachment
constituted improper use of bad acts of professional misconduct and
veered into an impermissible character attack, contrary to sections 90.609
and 90.610 of the Florida Evidence Code and the Farinas/DeBolt/Tormey
line of cases.
Additionally, unlike cases that allow cross-examination about “any
matter about which the expert testifies in establishing” his qualifications,
Flores, 787 So. 2d at 957, the impeachment here covered an area of
expertise that had nothing to do with the bulk of the expert’s testimony.
Dr. Berkland primarily testified to a reconstruction of the shooting from
acoustic analysis, so his missteps as a medical examiner did not pertain
to the subject matter of his testimony. 	And the matters concerning the
improper collection of evidence were akin to the administrative discipline
a 	defense 	medical 	expert 	experienced 	in 	Tormey, 	and 	were 	similarly
inadmissible. 	See Tormey, 748 So. 2d at 305–06.
Where error occurs in a criminal case, the State bears the burden of
proving the error was harmless beyond a reasonable doubt. 	State v.
DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). 	The focus of harmless error
analysis is “the effect of the error on the trier-of-fact,” and the question is
whether there is a “reasonable possibility that the error affected the
verdict.” 	Id. at 1139.
The improper impeachment of the expert had no impact at all on the
two firearms convictions, so the error is harmless as to them.
The error was also harmless as to the attempted second-degree murder
conviction. 	There was abundant video and other evidence that Kenyon
had engaged in dangerous conduct. 	As to Count 3 on the verdict form,7
the jury was asked to evaluate only the attempted second-degree murder
charge because, as we explain below, Kenyon declined all lesser-included
offense instructions, such as attempted manslaughter.
The actual impeachment of Dr. Berkland about his employment and
evidence handling mishaps consisted of only a few questions, so it was
brief and isolated, comprising an insignificant part of the long trial and Dr.
Berkland’s lengthy testimony. 	The questions were isolated in scope and
the trial court minimized the prejudice by prohibiting any reference to a
7 Count 3 on the verdict form was Count 5 of the third amended information.

20
deferred 	prosecution 	agreement. 	Dr. 	Berkland’s 	testimony 	spanned
multiple days, and the vast majority of his testimony pertained to shooting
reconstruction from acoustic analysis, rather than medical testimony or
proper evidence-handling practices.
The Trial Court Did Not Err in Denying the Motion to
Dismiss the Attempted Murder Charge of the Third
Amended Information on Statute of Limitations Grounds
Attempted second-degree murder of a law enforcement officer with a
firearm is a first-degree felony, subject to a four-year statute of limitations.
See §§ 782.04(2), 777.04(4)(b), 775.087(1)(b), 775.15(2)(a), 782.065(2), Fla.
Stat. (2017). 	Because the offense here occurred on October 9, 2017, the
limitations period expired on October 9, 2021.
The original information was filed within the limitations period and
included a count charging Kenyon with attempted second-degree murder
of a law enforcement officer “on or about October 9, 2017.” 	The first
amended information was filed within the limitations period, alleging the
same date of the attempted second-degree murder offense and adding
firearm allegations.
The second amended information was filed outside the limitations
period, altering the attempted second-degree murder count to allege that
the crime occurred on or about October 9, 2017 “on one or more occasion
[sic].” 	Specifically, for an unexplained reason, the count read that “on or
about October 9, 2017, Ward Lawrence Kenyon did on one or more occasion
unlawfully, by an act imminently dangerous to another and evincing a
depraved mind regardless of human life, . . . attempt to kill and murder
[Officer Singh] . . . .” (Italics supplied). Other than adding the phrase “on
one or more occasion,” the language of that charge remained the same.
The third amended information was filed outside the limitations period;
it removed the phrase “on one or more occasion” from the attempted
second-degree murder count and returned the charge to the language used
in the first amended information.
Kenyon moved to dismiss the attempted second-degree murder charge
on statute of limitations grounds, arguing that the inclusion of the “on one
or 	more 	occasion” 	phrase 	in 	the 	second 	amended 	information
substantively broadened the charge and severed the relation-back link to
the timely-filed informations. 	The trial court denied the motion.

21
On appeal, Kenyon argues that the trial court erred in denying his
motion to dismiss because the attempted murder charge in the second-
amended 	information 	substantively 	broadened 	the 	timely 	attempted
murder charge by including an improper and duplicitous allegation that
the crime occurred “on one or more occasion,” thereby breaking the
relation-back link such that “the untimely attempted murder charge in the
third amended information could not reinstate the original timely charge.”
Discussion
The standard of review of a trial court’s denial of a motion to dismiss
based on the statute of limitations is de novo. 	Morreale v. State, 382 So.
3d 796, 797 (Fla. 5th DCA 2024).
“The sole purpose of a statute of limitations in the criminal context is
to prevent the State from hampering defense preparation by delaying
prosecution until a point in time when its evidence is stale and defense
witnesses have died, disappeared or otherwise become unavailable.” State
v. Garofalo, 453 So. 2d 905, 906 (Fla. 4th DCA 1984). 	Because “one who
has been squarely put on notice of criminal activities with which he is
charged is in a position to begin preparation of a defense on those charges,
courts have traditionally held that a valid indictment tolls the statute of
limitations[.]” 	Id.
“An information containing an inaccuracy or imperfection, which is
timely filed within the period of limitations, is also sufficient to toll [the]
statute of limitations.” 	Rubin v. State, 390 So. 2d 322, 324 (Fla. 1980).
“Courts 	should 	uphold 	indictments 	and 	informations 	if 	they 	are 	in
substantial compliance with the statutory requirements.” 	Price v. State,
995 So. 2d 401, 405 (Fla. 2008).
“A superseding indictment brought after the statute of limitations has
expired is valid so long as the original indictment is still pending and was
timely and the superseding indictment does not broaden or substantially
amend the original charges.” State v. Bonawitz, 997 So. 2d 460, 462 (Fla.
4th DCA 2008) (cleaned up). 	“A subsequently filed information, which
contains 	language 	indicating 	that 	it 	is 	a 	continuation 	of 	the 	same
prosecution, timely commenced will not be considered an abandonment of
the first information and therefore will not be barred by the statute of
limitations.” 	Rubin, 390 So. 2d at 324.
For example, in Rubin, the Florida Supreme Court held that a second
information filed outside the statute of limitations as a “Refile of Case No.
77-4257” was sufficient to link the second information back to the original,

22
timely-filed 	information. 	Id. 	Rubin 	further 	held 	that 	“the 	second
information which was filed solely to correct the inaccuracy in the name
of the corporation did not commence a new and distinct prosecution.” Id.
Consistent with these principles, our supreme court has held that the
State may amend the charging document to correct a clerical-type error
“after 	the 	applicable 	statutory 	period 	has 	elapsed, 	provided 	that 	the
amendment was not intended to actually change the substantive charge
and did not prejudice the rights of the accused to present a defense and
get a fair trial.” M.F. v. State, 583 So. 2d 1383, 1386 (Fla. 1991). Thus, in
M.F., our supreme court ruled that the State could amend a timely-filed
delinquency petition after the expiration of the filing period by changing
the allegation from sale of cannabis to sale of cocaine. 	Id. at 1384; see
also Rubin, 390 So. 2d at 324 (upholding amendment correcting the name
of the corporate victim).
Conversely, where the State abandons its original charging document
by filing an intervening information that is “[t]o all appearances . . . a
brand-new charge” with different dates and allegations, a final information
that is identical to the original will be treated as “an attempt to revive the
original” rather than as an amendment, and the linkage between the
original and final charging documents will be broken, preventing relation
back for statute of limitations purposes. 	Mead v. State, 101 So. 2d 373,
374–75 (Fla. 1958). Mead held that although the original information was
timely filed, the defendant’s conviction for grand larceny was barred by the
statute 	of 	limitations 	where 	the 	second 	information 	was 	“[t]o 	all
appearances . . . a brand-new charge” alleging different dates and amounts
of stolen copper than the original. Id. at 374. Moreover, the untimely third
information, which was “identical with the first count of the original
information,” was merely “an attempt to revive the original” after it had
been “abandoned,” such that “there was nothing in the last information to
link it with the first.” 	Id. at 374–75.
The question before us is whether the second amended information’s
addition of the phrase “on one or more occasion” broadened the attempted
second-degree murder count by rendering it “duplicitous.”
“An information is duplicitous when it joins two or more separate
offenses, or alternative means of committing the same offense, into a single
count.” 	Saldana v. State, 980 So. 2d 1220, 1221 n.1 (Fla. 2d DCA 2008).
Thus, an allegation within a single count that an act occurred on “one or
more 	occasions” 	may, 	but 	does 	not 	necessarily, 	render 	the 	count
duplicitous. For example, in the context of ongoing sexual abuse of a child,
we have held that “where the child is unable to remember the specific dates

23
on which he or she was abused, the allegation that the act occurred ‘on
one or more occasions’ is not, per se, duplicitous.” State v. Generazio, 691
So. 2d 609, 611 (Fla. 4th DCA 1997).
Also, a count is not duplicitous “if the acts charged constitute a
continuous crime, or a continuous course of conduct, or continuous acts.”
41 Am. Jur. 2d Indictments and Informations § 198 (footnotes omitted).
For instance, in Cherfrere v. State, 277 So. 3d 611, 615 (Fla. 4th DCA
2019), we held that the defendant’s acts of ramming the victim’s car and
stabbing her with a knife or machete were committed during a single
criminal episode, and thus could be properly charged as “alternative or
disjunctive allegations” in one count of attempted murder, particularly
where the defendant “would have likely raised a double jeopardy or merger
challenge if the State had charged him with two counts of attempted
murder.”
Here, 	the 	trial 	court 	properly 	denied 	the 	motion 	to 	dismiss 	the
attempted second-degree murder charge because the second amended
information did not broaden or substantially amend the original charge in
the timely-filed first amended information, and thus the relation-back
doctrine preserves the timeliness of the prosecution. 	The inclusion of the
phrase “on one or more occasion” in the second amended information was,
at most, an inexplicable imperfection that did not transform the charge
into a duplicitous or substantively broader allegation.
Contrary to Kenyon’s argument, an allegation of criminal conduct
occurring “on one or more occasion” was not inherently duplicitous where,
as here, the offense arose from a continuous criminal episode. Attempted
second-degree murder can be committed by an act or a series of acts.
Wiley, 60 So. 3d at 591. 	The violent confrontation in this case involved a
series of acts imminently dangerous to life, including repeatedly pointing
a firearm at an officer and engaging in a struggle for control of the firearm.
Kenyon’s conduct could reasonably be understood as a series of connected
acts within a single criminal transaction. Although charging such conduct
using “on one or more occasion” could be taken to refer to conduct
occurring on different days, when read in context of this case the language
attempted to capture the ongoing nature of Kenyon’s “depraved mind”
conduct without improperly charging multiple offenses in a single count.
Where acts are part of a continuous course of conduct, they may be
charged in a single count, particularly when the defendant could raise
double jeopardy or merger objections if charged in separate counts. 	The
“on one or more occasion” phrase did not expand the temporal or factual
scope beyond the original allegation of conduct on October 9, 2017.

24
Therefore, the phrase did not alter the substance of the charge and cannot
be deemed a substantial amendment for statute of limitations purposes.
This case is distinguishable from Mead, where the linkage between the
timely and untimely charging documents was severed by 	the State’s
abandonment of the original information in favor of a second information
alleging a “brand-new charge” with different dates and conduct. 	Here, no
such abandonment occurred. 	The second amended information was not
an intervening charging document with allegations of a different date or
different underlying facts that would break the linkage between the first
amended information and the third amended information. 	The second
amended information merely used slightly different phrasing to charge
substantively the same offense as the first amended information.
Significantly, all successive informations were filed in the same case,
bore the same case number, and maintained identical core allegations
regarding the date, the victim’s identity, and the nature of the offense. This
indicates a continuation of the same ongoing prosecution rather than a
new 	or 	revived 	one. 	Under 	Rubin, 	where 	the 	State 	corrects 	a 	non-
substantive 	glitch 	in 	a 	later-filed 	information 	but 	demonstrates 	a
continuation of the same prosecution under the same case number, the
amendment does not constitute a new prosecution and therefore relates
back to a timely-filed charge. 	At bar, the third amended information
simply 	restored 	the 	first 	amended 	information’s 	phrasing, 	effectively
curing the confusion generated by the allegedly “duplicitous” language of
the second amended information.
The Trial Court Did Not Commit Reversible Error by
Its Handling of Lesser-Included Offenses to the
Attempted Second-Degree Murder Charge
Kenyon objected to the inclusion of attempted manslaughter of a law
enforcement 	officer 	and 	attempted 	aggravated 	battery 	on 	a 	law
enforcement officer as lesser-included offenses of attempted second-degree
murder, asserting that those charges were time barred under the statute
of limitations. 	However, he requested instructions for the lesser-included
offenses of attempted battery and aggravated assault, confirming that he
was willing to waive the limitations defense for those offenses.
The State maintained that Kenyon could not selectively waive the
limitations defense, arguing that the waiver had to be all or nothing.8 The
8 We note that the State is entitled to have the jury charged on a permissive
lesser-included offense, even over a defendant’s objection. See State v. Johnson,

25
trial 	court 	ruled 	that 	appellant 	was 	entitled 	to 	waive 	the 	statute 	of
limitations, but he could not selectively waive the limitations defense for
some lesser-included offenses while maintaining it for others.
As a result, Kenyon declined all lesser-included offense instructions for
attempted second-degree murder.
On appeal, Kenyon argues that the trial court erred by forcing him to
choose instructions on lesser-included offenses on an all-or-none basis,
claiming that he had the right to waive his limitations defenses to lesser-
included offenses, and that the relevant case law does not authorize
“forcing the defendant into the all-or-nothing option as the trial court did
here.”
Discussion
The issue of whether a trial court is required to accept a defendant’s
waiver of a statute-of-limitations defense is reviewed de novo. 	Maclean v.
State, 291 So. 3d 589, 590 (Fla. 4th DCA 2020).
The trial court properly told Kenyon that he could not use a statute-of-
limitations objection to cherry pick the lesser-included offenses to be
charged to the jury. Therefore, Kenyon’s election to have the court instruct
the jury on no lesser offenses to attempted second-degree murder was free
and voluntary.
A defendant who successfully asserts the statute of limitations to bar
some offenses occurring out of a criminal episode cannot then waive the
statute of limitations to have the jury instructed on other lesser-included
offenses. 	Cartagena v. State, 125 So. 3d 919, 921 (Fla. 4th DCA 2013).
Where “lesser-included offenses are barred by the statute of limitations,
the trial court does not err by refusing to instruct the jury on those lesser
offenses.” 	Id. 	A defendant may, however, affirmatively waive his statute-
of-limitations defense to lesser-included offenses. 	Id. 	But one of the
requirements of an effective waiver is that “the waiver does not handicap
the defense or contravene any of the public policy reasons motivating the
enactment of the statute.” 	Id.
“The public policy reasons motivating the enactment of the statute must
be those which protect a defendant from prosecution on a charge where
601 So. 2d 219, 220 (Fla. 1992); see also State v. Washington, 268 So. 2d 901,
902 (Fla. 1972) (upholding the State’s entitlement to a jury charge on necessarily
included offenses, even over a defense objection).

26
the means of defense are hampered by the elapse of time.” 	Rembert v.
State, 476 So. 2d 721, 722 (Fla. 1st DCA 1985). 	Permitting “‘on again, off
again’ pleading and waiver of the statute of limitations would, in our
opinion, contravene the public policy reasons motivating the statute.” 	Id.
In 	Cartagena, 	this 	court 	followed 	Rembert 	and 	explained 	that 	“the
defendant cannot selectively waive his statute of limitations defense as to
the charges arising out of the criminal episode.” 	125 So. 3d at 920.
In 	Maclean, 	we 	distinguished 	Cartagena 	and 	held 	that 	where 	the
defendant did not succeed in obtaining a dismissal of any charges arising
out of the criminal episode based on the statute of limitations, the trial
court was required to accept the defendant’s waiver and instruct the jury
on a single lesser-included offense. 	291 So. 3d at 589–90. 	But, contrary
to Kenyon’s argument, Maclean does not control here because that case
did not involve a situation where the defendant was attempting to waive
the statute of limitations as to some lesser-included offenses but not
others. 	Id. at 590.
Here, the trial court properly refused to allow Kenyon to selectively
waive his statute-of-limitations defense as to the lesser-included charges
arising 	out 	of 	the 	criminal 	episode. 	Although 	Kenyon’s 	statute-of-
limitations defense was not successful, the reasoning of Cartagena still
applies. 	He was not entitled to limit the charged lesser-included offenses
to those most favorable to him. 	Allowing such gamesmanship would
contravene the public policy reasons justifying the statute of limitations.
A defendant cannot have it both ways by arguing that the lapse of time
should be disregarded for some lesser-included offenses but not others.
Conclusion
We have considered the other points raised on appeal and affirm
without further discussion.9 	Therefore, we affirm Kenyon’s convictions
and sentences.
Affirmed.
KUNTZ , C.J., and SHEPHERD, J., concur.
9 On the 12-person jury issue, we rely upon Guzman v. State, 350 So. 3d 72, 73
(Fla. 4th DCA 2022), rev. denied SC2022–1597 (Fla. June 6, 2023), cert. denied
No. 23–5173 (U.S. May 28, 2024).

Not final until disposition of timely-filed motion for rehearing.

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