Ambrister v. State

• Decision Date: 19 December 1984
• Docket Number: No. AV-158,AV-158
• Citation: 462 So.2d 43
• Parties: Eugene AMBRISTER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 43

462 So.2d 43

Eugene AMBRISTER, Appellant, v. STATE of Florida, Appellee.

No. AV-158.

District Court of Appeal of Florida,

First District.

Dec. 19, 1984.

Rehearing Denied Feb. 1, 1985.

Michael E. Allen, Public Defender; P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.

JOANOS, Judge.

Appellant was convicted on a charge of carrying a concealed firearm, and raises two points on appeal. Appellant alleges the trial court erred first, in denying his motion for judgment of acquittal, and second, in refusing to instruct the jury on his defense of necessity. We affirm on the first point and reverse on the second.

The charge against appellant stemmed from information given to Officer Schultz of the Tallahassee Police Department by a confidential informant, regarding appellant's alleged involvement in drug sales. The confidential informant was directed by the police to go to appellant's residence and purchase cocaine. The officers watched appellant's residence as the informant went inside. Shortly thereafter, appellant and the informant left the residence. The informant reported to the officers that he had observed small packets of white powder in appellant's possession and that appellant had said he did not have time to go through with a narcotics transaction. Following this exchange with the informant, the officers followed appellant as he drove to an apartment complex. Appellant parked his car and sat in it for approximately ten minutes. The officers watched as appellant went to a door on the second floor of the complex, knocked, and engaged in a short conversation with the person who opened the door. Appellant then ran down the stairs to his car and sped out of the parking lot. The officers followed. At trial, the officers described appellant's driving as evasive. Finally, appellant stopped his car at his grandfather's residence.

During his trial, appellant testified that the informant went to his house with a message purportedly from a party referred to as Buckethead. According to this message, Buckethead wanted appellant to look at some gold he [Buckethead] was trying to buy. The informant was supposed to meet appellant at Buckethead's apartment complex, so appellant sat in his car and waited. Finally, appellant went to the apartment, where Buckethead's wife told him Buckethead was not at home and no one else had been there. At that point, appellant decided the whole affair was an attempt to rob him. He ran to his car and drove away. When he realized he was being followed, he drove past his own house and stopped at his grandfather's place.

Officers Schultz and Slovenky, in plainclothes and an unmarked car, pulled up behind appellant's car. Appellant got out of his car--taking his pistol which had been on the front seat--with him. ¹ When appellant got out of his car, the pistol was in his hand. When he recognized Officer Schultz, he put the pistol in his pocket because "you just don't carry a gun in front of the police."

Appellant's testimony, corroborated by Officers Schultz and Slovenky, was that Officer Slovenky had drawn his gun. Appellant did not know Officer Slovenky, so it was not until he recognized Officer Schultz that he realized he was dealing with the police. When appellant saw Officer Schultz he called him by name and immediately told the officer that he [appellant] had a gun in his pocket. Appellant explained to the officers that he thought he "was being ripped off," and asked them to have somebody check his house. The officers searched appellant's vehicle, his brown money pouch, and the Georgia Street area (appellant's residence)--but no cocaine was found.

Appellant was tried on the charge of having a concealed firearm. At the close of the state's case appellant's counsel moved for judgment of acquittal, contending that the state had not presented a prima facie case against appellant. Defense counsel argued also that appellant had acted reasonably under the concept of necessity when the firearm was found on his person. The motion for judgment of acquittal was denied.

The trial court denied defense counsel's request for jury instruction dealing with the common law defense of necessity. The jury found appellant guilty of carrying a concealed firearm.

A defendant who moves for judgment of acquittal "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." Lynch v. State, 293 So.2d 44, 45 (Fla.1974). The test for submitting a case to the jury is whether "there is room for a difference of opinion between reasonable men as to the proof of facts from which an ultimate fact is sought to be established, or whether there is room for such differences as to the inferences which might be drawn from conceded facts." Id.

At the close of the state's case, the jury had heard testimony from Officers Schultz and Slovenky that prior to appellant's arrest, he recognized Officer Schultz and called him by his first name. Appellant then told the officers that he had a gun in his pocket. The officers conducted...