Readers may recall the 2014 trial of Michael Dunn for the killing of teenager Jordan Davis, as well as three counts of attempted murder of Davis’ friends, in an incident apparently triggered by Dunn’s annoyance with the teens’ loud music.  We covered this trial in great detail right here at Legal Insurrection.  Following his conviction Dunn filed an appeal “on the ground that the State failed to present evidence rebutting his self-defense claim.”

Yesterday, Florida’s 1st District Court of Appeal unanimously affirmed Dunn’s conviction in a concise 6-page opinion.  (That opinion is embedded below.)

There’s nothing particularly unusual about the DCA’s opinion affirming Dunn’s conviction, but it does provide an opportunity to illustrate how different the nature of an appellate review of a conviction is from the trial itself.  In casual conversation I’ve often noted that many people seem to view an appeal as a “do over” of a trial, a second swing at the ball, so to speak.  In fact, there are profound differences between a trial at which a verdict is arrived by a finder of fact (usually a jury) and an appellate review by a panel of judges.

One of these important differences is that at criminal trial essentially all the legal and factual presumptions favor the defendant rather than favor the state.  That’s of all part of the defendant being presumed innocent until proven guilty by the state beyond a reasonable doubt.

Once a defendant has been convicted at trial, however, it is presumed that the correct version of the facts is the one that was presented by the state and presumably accepted by the jury (otherwise they would not have arrived at verdict of guilty).  As noted by this appellate court:

‘There is sufficient evidence to sustain a conviction 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.’ Troy v. State, 948 So. 2d 635, 646 (Fla. 2006) [emphasis added]

Indeed, even moving for a judgment of acquittal as Dunn does here requires the defendant to concede to the version of the facts most favorable to the prosecutors.  Essentially the argument being made by the defendant is that even if all the facts favored the prosecution the defendant should still have not been convicted. As noted in this opinion affirming Dunn’s convictions:

A motion for judgment of acquittal admits not only the facts in evidence, but also every reasonable inference that can be draw in favor of the State from the evidence. Krupkin v. State, 119 So. 3d 1267, 1270 (Fla. 1st DCA 2013).

It’s not hard to see that a defendant who was unable to convince a trial jury to return a verdict of not guilty when all the legal and factual presumptions must be drawn in his favor is going to have no easier time convincing an appellate court to overturn his conviction when all the legal and factual presumptions must be drawn in the favor of the state.  Obviously, convictions can be and are overturned on appeal from time to time, but any convicted defendant generally enters the appellate process with much of the deck stacked against him.

As promised, here’s the opinion of the 1st DCA that affirms Dunn’s convictions:


[Featured picture is a screen-cap of Dunn’s testimony at trial.]

Andrew F. Branca is an attorney and the author of The Law of Self Defense, 3rd Edition.

Donations tax deductible
to the full extent allowed by law.