Bates v. State, 2D03-3578.

• Court: Florida District Court of Appeals
• Writing for the Court: DAVIS.
• Citation: Bates v. State, 883 So.2d 907 (Fla. App. 2004)
• Decision Date: 06 October 2004
• Docket Number: No. 2D03-3578.,2D03-3578.
• Parties: Harry BATES, Jr., Appellant, v. STATE of Florida, Appellee.

883 So.2d 907

Harry BATES, Jr., Appellant, v. STATE of Florida, Appellee.

No. 2D03-3578.

District Court of Appeal of Florida, Second District.

October 6, 2004.

James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Appellee.

DAVIS, Judge.

Harry Bates, Jr., challenges his conviction for improper exhibition of a firearm, arguing that he only displayed the barrel of a shotgun, not the entire shotgun, and that the trial court gave improper jury instructions regarding self-defense. While we find no merit in Bates' argument that he did not improperly display a firearm,¹ we reverse and remand for a new trial because we conclude that the self-defense jury instruction that the trial court gave amounted to fundamental, reversible error.

Bates was initially charged with three counts of aggravated assault, and the jury found him guilty of three counts of the lesser included charge of improper exhibition of a firearm. Two of the three counts were later vacated for reasons not relevant to this appeal.

These proceedings arose out of events that occurred in a Wal-Mart parking lot on the day after Thanksgiving. After shopping, Aretha Welsh, her son, and her nephew had gotten into her car in the parking lot when they discovered that Bates' truck was blocking their egress from the parking spot. Welsh honked her horn, and Bates came up to her car window. When Welsh asked Bates to move his truck, Bates called Welsh a name; Welsh and the two boys then exited the vehicle. A dispute ensued that included a great deal of yelling and name-calling. Although Bates subsequently got into his truck and moved it forward slightly, he then put it into reverse and began pointing what appeared to be a shotgun covered with a white towel at Welsh and the two boys through the truck's window while he threatened them verbally. They could see the two holes of the barrel of a double-barreled shotgun beneath the white towel. Bates then drove away but returned soon afterwards, at which point the police officers who had responded to the scene arrested him. Bates was charged with three counts of aggravated assault.

It was determined at trial that what Bates had pointed at Welsh and the two boys was not a complete shotgun; it was only the barrel of a shotgun covered with a white towel. Bates claimed at trial that he was acting in self-defense when he pointed the barrel of the shotgun at them because he became afraid when the teenage boys exited the car and approached him.

The offending jury instruction read as follows: "The use of nondeadly force is not justifiable if you find the following: One, the defendant was attempting to commit, committing or escaping after the commission of Aggravated Assault."

Although Bates' trial counsel did not object to the...