Opinion
No. 97-2801.
September 16, 1998. Rehearing Denied November 4, 1998.
Appeal from the Circuit Court, Dade County, Robert Scola, J.
Bennett H. Brummer, Public Defender, and Sheryl J. Lowenthal, Assistant Public Defender, for appellant.
Robert A. Butterworth, Attorney General, and Lara J. Edelstein, Assistant Attorney General, for appellee.
Before COPE, GERSTEN and SHEVIN, JJ.
Defendant-appellant Ricardo Olivera appeals his conviction for second-degree murder and attempted second-degree murder. We affirm.
First, we conclude that the admission of the disputed autopsy photograph into evidence was within the discretion of the trial judge and that the photograph was not unfairly prejudicial. See Kirby v. State, 625 So.2d 51, 54 (Fla. 3d DCA 1993). The photograph at issue was not of the same graphic nature as those erroneously admitted in Hoffert v. State, 559 So.2d 1246, 1249 (Fla. 4th DCA 1990). We also conclude that the evidence on the charge of second-degree murder was sufficient to be presented to the jury.
Defendant's final claim is that the trial court erred in instructing the jury on attempted second-degree murder because the standard jury instructions do not require the state to prove that the defendant intended to kill. We reject that claim on the authority of Gentry v. State, 437 So.2d 1097, 1099 (Fla. 1983); Pitts v. State, 710 So.2d 62, 63 (Fla. 3d DCA 1998); and Galdamez v. State, 713 So.2d 1128, 23 Fla. L. Weekly D1749 (Fla. 3d DCA July 29, 1998).
Affirmed.