Bassallo v. State Of Fla., 4D08-5068

• Court: Court of Appeal of Florida (US)
• Parties: BIENVENIDO BASSALLO, Appellant, v. STATE OF FLORIDA, Appellee.
• Docket Number: No. 4D08-5068,4D08-5068
• Decision Date: 10 November 2010

BIENVENIDO BASSALLO, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-5068

District Court Of Appeal Of The State Of Florida
Fourth District

July Term 2010
November 10, 2010

Polen, J.

Appellant, Bienvenido Bassallo, appeals his conviction for aggravated assault with a deadly weapon, raising four issues for our consideration. We write only to address appellant's argument that the trial court abused its discretion in giving a self-defense instruction that indicated the defense applied only if the victim suffered an "injury," when no injury occurred, which negated the theory of the defense. We reverse and remand for a new trial on this issue alone.

Appellant, a foreman at Arrow Directional Boring, was charged with aggravated assault with a deadly weapon, following an altercation with another foreman, Curt Curtis, at the company yard. The dispute arose over some equipment that appellant borrowed without Curtis's permission. When Curtis confronted appellant he responded, "F[---] you, you're a piece of s[---]." The men exchanged words, and Curtis got in his truck to leave. Appellant followed him, and pulled on the open window, so Curtis could not roll it up. Appellant screamed, "get out of the truck, I'm going to beat your ass, get out of the truck." When Curtis got out, he saw that appellant had a knife in his hand. Appellant lunged at Curtis and swung the knife around. At this point, two of Curtis's crew members, David Stokes and Ralph Krites stepped in. Curtis ran around to the back of the truck. He testified: "The door was still open, and I got back in my truck while he's chasing me around with the knife and lunging to the guys who's grabbing him, telling them no. And they are trying to push him back and he's trying to stab me." The blade was four or five inches long. Curtis said he was afraid; he had no weapon. When Curtis got back into the truck, he rolled the windows up and called 911.

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Appellant beat on the hood of the truck with the butt of the knife, denting the hood. Curtis backed up and blocked the entrance to the gate. Appellant went inside the shop, and the police arrived shortly thereafter.

Police found a knife inside the shop, which Curtis identified as the one appellant used. At trial, Curtis identified photos of the knife, as well as the knife itself. Curtis demonstrated how appellant held, and swung the knife. Curtis said the knife cut through his shirt, though he never gave the shirt to police. He claimed he did not realize it was cut until he got home.

Curtis acknowledged he was a "big guy," but said he did not attack appellant because appellant was waving a knife around, and Curtis wanted to get away from him.

Four of Curtis's crew members — David Stokes, Rodolpho Briones, Daniel Briones-Rodriguez, and Ralph Krites — witnessed the altercation, and all saw appellant with a knife in his hand, trying to get to Curtis. Appellant was in a rage, "very angry, very out of control." He looked like he was going to hit Curtis. Stokes and Krites tried to calm appellant down, but he kept saying "No, don't hold me, don't hold me back." When Curtis was at the rear of the truck, Briones saw him grab a "stick" — a 2x4 — though he never approached appellant with it. Briones grabbed a shovel. He did not "brandish" it to appellant, but grabbed it just in case appellant cut somebody. After the altercation, appellant went inside the shop. The police arrived shortly thereafter. Briones saw the knife again after an officer found it. He had worked with appellant before, and said that appellant always had that blade with him — either in his pocket or in his car.

On cross-examination, Briones testified that he and his brother worked for appellant's crew, until appellant fired his brother. Briones and his brother were then transferred to Curtis's crew. The brothers said they were not testifying because they were mad at appellant or because they feared losing their jobs. It had been a long time, and they were able to work for another crew within the company.

Krites testified that, when appellant lunged at Curtis with the knife, Curtis ran behind the truck and appellant chased him. Krites got between the men, grabbed appellant and pushed him backwards. Curtis then got in his truck, backed up to block appellant from leaving, and called the police. Appellant banged on the hood of the truck with the

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knife, told Curtis to get out and called him names. Appellant then went inside the shop.

Krites identified photos of the cabinet inside the shop where the knife was found. He said the cabinet was used to store chemicals, and he had never seen a knife in there. The officer showed Krites the knife after she found it, and Krites identified it as that used by appellant to threaten the victim.

On cross-examination, Krites testified that he had been transferred from appellant's crew to Curtis's crew just a few weeks before the incident. Appellant had tried to get Krites fired. Krites was upset about this, but "was kind of happy that [he] got off his crew." He had only worked for appellant for about two weeks.

Officer Byrne responded to the scene after receiving a call that a male was threatening other subjects with a knife. Byrne found appellant in the warehouse and patted him down. He had a soap stone device in one of his pockets. Byrne Mirandized appellant and he gave a statement. He admitted to having an altercation with the victim, but denied having a knife in his possession or using a knife to threaten anybody. After appellant was detained, Byrne searched the warehouse for the weapon. She recovered a folding knife inside a cabinet. The victim identified the knife. Officer Byrne also looked at the victim's vehicle, and noticed a dent on the hood.

Crime scene technician Matz examined the knife found on the scene. The blade was approximately three inches long. No fingerprints were recovered. Matz testified that the handle was rough, and not the type of surface to which fingerprints normally adhere. She also testified that it is "fairly easy" to wipe away fingerprints, with the hands or a cloth, etc.

The defense called Dayne Innis, one of appellant's former crew members. Innis was working the fusion machine that evening, when he saw Curtis get out of a truck, and begin arguing with appellant. Innis looked away for a few minutes, to concentrate on what he was doing. When he looked back up, he saw Curtis pull a 2x4 piece of wood out of the bed of the truck. Curtis held the wood as if to threaten appellant, and was within striking range. David Stokes stepped in and attempted to lead appellant away. Innis continued working, and the police arrived a few minutes later. Innis never saw appellant with a knife, but he could not say for sure, because the truck was blocking his view. On cross-examination, he admitted he was about 100 feet away, and that he was not watching the altercation the entire time.

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Kevin Washington, also a member of appellant's crew, was working with a machine when he saw Curtis pull into the yard, get out of a truck, and start screaming at appellant. The men argued as Curtis turned and walked back to his truck; appellant followed him. Washington turned away at this point, and went back to what he was doing. He heard someone say "whoa, whoa, whoa, guys, you need to...