Anthony MUNGIN, Appellant, v. STATE of Florida, Appellee, 689 So. 2d 1026

PER CURIAM. Anthony Mungin, a prisoner under a sentence of death, appeals his conviction of first-degree murder and the penalty imposed. We have jurisdiction based on

article V, § 3(b)(1) of the Florida Constitution. We affirm both the conviction and the death sentence. Betty Jean Woods, a convenience store clerk in Jacksonville, was shot once in the head on September 16, 1990, and died four days later. There were no eyewitnesses to the shooting, but shortly after Woods was shot a customer entering the store passed a man leaving the store hurriedly with a paper bag. The customer, who found the injured clerk, later identified the man as' Mungin. After the shooting, a store supervisor found a $59.05 discrepancy in cash at the store.

Mungin was arrested on September 18, 1990, in Kingsland, Georgia. Police found a .25-ealiber semiautomatic pistol, bullets, and Mungin’s Georgia identification when they searched his house. An analysis showed that the bullet recovered from Woods had been fired from the pistol found at Mungin’s house. Jurors also heard Williams rule evidence of two other crimes. They were instructed to consider this evidence only for the limited purpose of proving Mungin’s identity.

First, William Rudd testified that Mungin came to the convenience store where he worked on the morning of September 14, 1990, and asked for cigarettes. When Rudd turned to get the cigarettes, Mungin shot him in the back. He also took money from a cash box and a cash register. Authorities determined that an expended shell recovered from the store came from the gun seized in Kingsland. Second, Thomas Barlow testified that he saw Meihua Wang Tsai screaming in a Tallahassee shopping center on the afternoon of September 14, 1990. Tsai had been shot while working at a store in the shopping center.

A bullet that went through Tsai’s hand and hit her in the head had been fired from the gun recovered in Kingsland. The judge instructed the jury on both premeditated murder and felony murder (with robbery or attempted robbery as the underlying felony), and the jury returned a general verdict of first-degree murder.

In the penalty phase, several witnesses who knew Mungin while he was growing up testified that he was trustworthy, not violent, and earned passing grades in school. ■ Mun-gin lived with his grandmother from the time he was five, but Mungin left when he was eighteen to live with an uncle in Jacksonville. An official from the prison where Mungin was serving a life sentence for the Tallahassee crime testified that Mungin did not have any disciplinary problems during the six months Mungin was under his supervision.

Harry Krop, a forensic psychologist, testified that he found no evidence of any major mental illness or personality disorder, although Mungin had a history of drug and alcohol abuse. Krop said he thought Mungin could be rehabilitated because of his normal life before drugs, his average intelligence, and his clean record while in prison. The jury recommended death by a vote of seven to five. The trial judge followed the jury’s recommendation and sentenced Mun-gin to death. In imposing the death penalty, the trial judge found two aggravating factors:

(1) Mungin had previously been convicted of a felony involving the use or threat of violence to another person; and

(2) Mungin committed the capital felony during a robbery or robbery attempt and committed the capital felony for pecuniary gain. The trial judge found no statutory mitigation and gave minimal weight to the nonstatutory mitigation that Mungin could be rehabilitated and was not antisocial. Mungin raises nine issues on this direct appeal. I. GUILT PHASE We first address Issue 2, where Mun-gin argues that the evidence was not sufficient to support first-degree murder. The trial judge instructed the jury on both premeditated and felony murder, and the jury returned a general verdict of first-degree murder.

We agree with Mungin only that the judge erred in denying his motion for judgment of acquittal as to premeditation. Premeditation is “a fully formed conscious purpose to Mil that may be formed in a moment and need only exist for such time as will allow the accused to be conscious of the nature of the act he is about to commit and the probable result of that act.” Asay v. State, 580 So.2d 610, 612 (Fla.), cert. denied, 502 U.S. 895, 112 S.Ct. 265, 116 L.Ed.2d 218 (1991).

In a case such as this one involving circumstantial evidence, a conviction cannot be sustained — no matter how strongly the evidence suggests guilt — unless the evidence is inconsistent with any reasonable hypothesis of innocence. McArthur v. State, 351 So.2d 972, 976 (Fla.1977). A defendant’s motion for judgment of acquittal should be granted in a circumstantial-evidence ease “if the state fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt.” State v. Law, 559 So.2d 187, 188 (Fla.1989).

The State presented evidence that supports premeditation: The victim was shot once in the head at close range; the only injury was the gunshot wound; Mungin procured the murder weapon in advance and had used it before; and the gun required a six-pound pull to fire. But the evidence is also consistent with a Mlling that occurred on the spur of the moment. There are no statements indicating that Mungin intended to Mil the victim, no witnesses to the events preceding the shooting, and no continuing attack that would have suggested premeditation.

Although the jury heard evidence of collateral crimes, the jury was instructed that this evidence was admitted for the limited purpose of establishing the shooter’s identity. Although the trial judge erred in denying the motion for judgment of acquittal as to premeditation, we do not reverse Mungin’s first-degree murder conviction because the judge correctly denied the motion as to felony murder.

The evidence shows that Mungin entered the store carrying a gun, that $59.05 was missing from the store, that money from the cash box was gone, that someone tried to open a cash register without knowing how, and that Mungin left the store carrying a paper bag. We find that this evidence supports robbery or attempted robbery, and there is no reasonable hypothesis to the contrary. Because the evidence does not support premeditation, it was error to instruct the jury on both premeditated and felony murder. See McKennon v.

State, 403 So.2d 389 (Fla.1981) (finding error to instruct on robbery as it relates to felony murder where there was no basis in the evidence for the robbery instruction). However, the error was clearly harmless in this case. The evidence supported conviction for felony murder and the jury properly convicted Mungin of first-degree murder on this theory.

While a general guilty verdict must be set aside where the conviction may have rested on an unconstitutional ground or a legally inadequate theory, reversal is not warranted where the general verdict could have rested upon a theory of liability without adequate evidentiary support when there was an alternative theory of guilt for which the evidence was sufficient. Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 871 (1991).

The Supreme Court explained this distinction in Griffin as follows: Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law—whether, for example, the action in question is protected by the Constitution, is time barred, or fails to come within the statutory definition of the crime. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error.

Quite, the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, since jurors are well equipped to analyze the evidence, see, Duncan v. Louisiana, 391 U.S. 145, 157, 88 S.Ct. 1444, 1451, 20 L.Ed.2d 491 (1968).

As the Seventh Circuit has put it: “It is one thing to negate a verdict that, while supported by evidence, may have been based on an erroneous view of the law; it is another to do so merely on the chance—remote, it seems to us—that the jury convicted on a ground that was not supported by adequate evidence when there existed alternative grounds for which the evidence was sufficient.” United States v. Townsend, 924 F.2d 1385, 1414 ([7th Cir.] 1991). Griffin, 502 U.S. at 59-60, 112 S.Ct. at 474.

Based upon the foregoing, we find no reasonable possibility that the erroneous instruction contributed to Mungin’s conviction, and thus the error was harmless. State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Therefore, Mungin is not entitled to relief on this basis. II. PENALTY PHASE When Mungin was tried for the instant ease, he was serving a life sentence as an habitual offender for the Tallahassee crime.

As his first penalty phase issue (Issue 4), Mungin argues that fundamental error occurred when a defense witness testified during the penalty phase that inmates serving life sentences are eligible for conditional release and could be freed from prison in as little as five years. Glenn Young, a correction/probation officer at the Cross City Correctional Institution, had supervised Mungin after his arrival at the prison. During questioning by defense counsel, Young said, “[L]ife doesn’t really mean life.

I mean, it means life, but there are inmates that are released with a life sentence.” Mungin maintains that this testimony presented an erroneous picture of what happens to inmates serving life sentences. He did not, however, make a contemporaneous objection to preserve this issue. Any error that occurred was not fundamental. See State v. Smith, 240 So.2d 807, 810 (Fla.1970) (defining fundamental error as error that goes to the foundation of the case or to the merits of the cause of action). Young’s testimony did not go to the foundation of the case.

We also note that Mungin invited this testimony because Young was his witness. Although the State sought to capitalize on this apparently unexpected testimony, defense counsel elicited on redirect examination that inmates serving life sentences typically are not eligible for early release. Further, the trial court correctly instructed the jury on the law at the time for sentences in capital cases: death or life in prison with a minimum mandatory term of twenty-five years. Thus, we find no merit to this issue.

Mungin argues in Issue 6 that the trial judge should have specifically instructed the jury that Mungin’s age at the time of the crime — twenty-four—could be considered in mitigation. See § 921.141(6)(g), Fla.Stat. (1991). Instead, the trial court gave the general instruction that jurors could consider “[a]ny aspect of the defendant’s character or record and any other circumstances of the offense.” This Court has held that, under certain circumstances, the general instruction on mitigation is sufficient to allow a jury to rely on the evidence and assign whatever weight it wishes to a defendant’s age. Cave v.

State, 476 So.2d 180, 187-88 (Fla.1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2907, 90 L.Ed.2d 993 (1986); see also Smith v. State, 492 So.2d 1063, 1067 (Fla.1986) (“We do not establish a maximum age below which the instruction must always be given.”). We have observed that “age is simply a fact, every murderer has one.” Echols v. State, 484 So.2d 568, 575 (Fla.1985), cert. denied, 479 U.S. 871, 107 S.Ct. 241, 93 L.Ed.2d 166 (1986). How a defendant’s age is viewed may differ from case to case. Compare Huddleston v. State, 475 So.2d 204, 206 (Fla.1985) (age of twenty-three was mitigating factor) with Lara v.

State, 464 So.2d 1173, 1179 (Fla.1985) (age of twenty-five did not require instruction on age as a mitigating circumstance). The better practice may be to give the specific instruction on age, but, under the circumstances of this case, the judge did not abuse his discretion in failing to give the instruction. Nothing about Mun-gin’s age constitutes mitigation for this crime. The record reflects that Mungin had no neurological impairment, did well in school, and was about one credit short of graduation from high school. He left home at age eighteen to live with an uncle in Jacksonville.

Although Mungin had used drugs and alcohol, there was no evidence to suggest that he was under the influence of either substance at the time of the crime. Thus, we find no error on this issue. In Issue 7, Mungin argues that the trial judge erred in failing to find and give some weight to unrebutted nonstatutory mitigation. We find this issue to be without merit. Our decision in Campbell v.

State, 571 So.2d 415, 419 (Fla.1990), requires a sentencing court to expressly evaluate in its written order each mitigating circumstance proposed by the defendant to determine whether the evidence supports it and whether any proposed nonstatutory mitigation is truly mitigating. Mungin says that the trial judge did not specifically evaluate the substance of the evidence from relatives and others who knew him during high school and that the sentencing order does not mention his good prison record or Dr. Krop’s testimony that Mungin had used alcohol and drugs for about four years.

The sentencing order reflects that the trial judge heard the testimony of witnesses who knew Mungin through his high school years, but attached “no significance or value” to this testimony because most of the witnesses had had little or no contact with Mungin since he was eighteen years old. We have reviewed the record and do not believe that the trial judge abused his discretion in dismissing this evidence as irrelevant to his sentencing decision. Further, the sentencing order’s reference to the fact that Mungin was capable of rehabilitation encompasses his prison record and the reference to Dr.

Krop’s findings on Mun-gin’s mental state encompasses drug and alcohol use. We find no merit to Issue 5 (jury instructed on and found merged aggravating factor of robbery and pecuniary gain). We also find that Issue 8 is without merit because we uphold the merged aggravating factor of robbery and pecuniary gain and we find that the trial judge appropriately evaluated the mitigation. Under a proportionality review, the death sentence is warranted. The points raised in Mungin’s final issue (Issue 9) — whether his conviction and death sentence are unconstitutional — are either not preserved or without merit.

Accordingly, although we do not find premeditation, we find sufficient evidence of felony murder and affirm Mungin’s conviction of first-degree murder. We also affirm the death sentence. It is so ordered. GRIMES, C.J., and OVERTON, SHAW, KOGAN, HARDING and WELLS, JJ., concur. ANSTEAD, J., dissents with an opinion. . Williams v. State, 110 So.2d 654, 659, 662 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959); see also § 90.404(2), Fla.Stat. (1991). . § 921.141(5)(b), Fla.Stat. (1991). .§ 921.141 (5)(d), (f), Fla.Stat. (1991).

The trial judge recognized that these two aggravating factors merged and treated them as one aggravator. He also instructed jurors that if they found these two aggravators, they were to count them as one. .

Whether (1) the trial court erred in overruling a defense objection to the State’s peremptory strike of a black prospective juror; (2) the evidence was sufficient to support first-degree murder; (3) the trial court erred in allowing the State to introduce irrelevant evidence that Mun-gin shot a collateral crime victim in the spine; (4) fundamental error occurred when a defense witness testified in the penalty phase that inmates serving life sentences are eligible for conditional release and could be released in as little as five years; (5) the trial court erred in instructing the jury on and in finding the aggravating circumstances of robbery and pecuniary gain; (6) the trial court erred in refusing to instruct the jury that Mungin's age could be considered in mitigation; (7) the trial court erred in failing to find and give some weight to unrebutted nonstat-utory mitigation; (8) the death sentence is appropriate if this Court eliminates the aggravating circumstances of robbery and pecuniary gain and considers mitigation that the trial court failed to find; and

(9) Mungin's conviction and death sentence are unconstitutional. . See Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931) (reversing general guilty verdict under a California statute that prohibited the flying of red flags on three alternative grounds, one of which violated rights guaranteed by the First Amendment). . See, Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957) (reversing general guilty verdict for conspiracy where one of the possible bases for conviction was legally inadequate because of a statutory time bar). .Mungin raises two other guilt-phase issues.

Issue 1 (whether trial court erred in overruling a defense objection to the State's peremptory challenge of a black prospective juror) has not been preserved for our review. Any error in Issue 3 (concerning introduction of evidence that Mun-gin shot a collateral crime victim in the spine), was harmless. The State did not dwell on or unduly emphasize where that victim was shot.