
    Henry E. CRUTCHFIELD, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 90-1819.
    District Court of Appeal of Florida, Fourth District.
    Dec. 4, 1991.
    Rehearing En Banc Denied Jan. 8, 1992.
    Richard L. Jorandby, Public Defender, and Barbara J. Wolfe, Asst. Public Defender, West Palm Beach, for appellant.
    Robert A. Butterworth, Atty. Gen., Tallahassee, and Melynda L. Melear, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant was charged by indictment with first degree murder and after a jury trial was found guilty of second degree murder with a firearm, a lesser included offense. He was adjudicated guilty and sentenced to seventeen years imprisonment with a three year mandatory minimum, followed by ten years probation. This appeal follows. We affirm.

Appellant’s conviction for the killing of his twin brother, Harry, was tried under a theory of transferred intent, the state contending that appellant intended to shoot a deputy sheriff rather than his brother. Appellant contended that he did not intend to shoot anyone, and that the firearm went off by accident when he tripped over a rug.

We conclude the trial court did not err in denying appellant’s motion for judgment of acquittal. See State v. Law, 559 So.2d 187 (Fla.1989), and Cochran v. State, 547 So.2d 928 (Fla.1989).

GLICKSTEIN, C.J., and WARNER, J., concur.

GARRETT, J., dissents with opinion.

GARRETT, Judge,

dissenting.

I respectfully dissent for three reasons. First, I believe that the state failed to establish a prima facie case that appellant intended to shoot a deputy sheriff. The state merely stacked inference upon inference to support its theory of why the shooting occurred. Second, the state failed to present evidence from which the jury could have excluded every reasonable hypothesis except that of guilt. Thus, the trial judge should have granted the motion for a judgment of acquittal made by appellant at the close of the state’s case. Third, assuming, arguendo, that the state established a pri-ma facie case, I believe that the state failed to produce competent, substantial evidence to contradict appellant’s version of the events. The state also stacked inference upon inference to support its theory of how the shooting occurred. Therefore, in any event, the trial judge should have granted the motion for a judgment of acquittal made by appellant at the close of all the evidence in the case.  