Daniels v. State

• Decision Date: 08 June 2020
• Docket Number: No. 1D17-3675,1D17-3675
• Citation: 308 So.3d 212
• Parties: Mario DANIELS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

308 So.3d 212

Mario DANIELS, Appellant,

v.STATE of Florida, Appellee.

No. 1D17-3675

District Court of Appeal of Florida, First District.

June 8, 2020

Valarie Linnen, Jacksonville, for Appellant.

Ashley Moody, Attorney General, and Robert Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.

Winokur, J.

A jury found that Mario Daniels committed aggravated assault while possessing and discharging a firearm, in addition to other crimes. After appellate counsel filed an Anders¹ brief, we directed briefing as to whether Daniels’ motion for judgment of acquittal on his aggravated assault charge should have been granted based on the victim's testimony that she was not put in fear. After briefing, we find that our precedent requires affirmance.

Trial

In between arguments, threats, and punches, Mario Daniels and his then-girlfriend, the victim, decided to break up. Daniels packed up his belongings from the victim's house and drove, with the victim in the passenger's seat and her children in the back, to another woman's house. During the drive, Daniels threatened to shoot and kill the victim multiple times and, as the car stopped, he took out a pistol and fired it several times through a window. The victim, again in a relationship with Daniels at the time of trial, denied that Daniels had hit her and stated that she did not remember whether he shot a gun while next to her in the car. The victim acknowledged previously telling police that Daniels had shot the gun out of the car, but testified that she did not see him with a gun, no gun was pointed at her, and she was never in fear from having a gun pointed at her. The jury found that Daniels did in fact commit an aggravated assault against the victim and fired a gun.

Analysis

Section 784.011, Florida Statutes, prohibits assault, which "is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent."² Daniels argues that the statute requires that the threat must objectively be one that would put a reasonable person in fear ("well-founded") and subjectively does put the victim in fear ("creates ... fear in such other person"). Because the victim denied that she was in fear, Daniels argues that the State presented insufficient evidence of assault. We disagree.

This Court and others have held that whether the victim actually testifies that he or she was in fear is not conclusive of the fear element, as long as "a reasonable person would experience a well-founded fear of imminent harm." Tash v. Rogers , 246 So. 3d 1304, 1305 (Fla. 1st DCA 2018) ("Appellate courts apply an objective standard in determining whether a reasonable person would experience a well-founded fear of imminent harm."). See also Fussell v. State , 154 So. 3d 1233, 1236 n.5 (Fla. 1st DCA 2015) (In determining whether evidence of assault is sufficient regarding the victim's fear, "[w]e have rejected the view that the state must meet both an objective and a subjective standard.").

This issue mostly arises when a victim either does not testify or does not specifically testify as to whether he or she was put in fear by the defendant's threat, but the fact finder can infer that the victim was fearful. In this situation, every district court has held that an objective standard applies, irrespective of the lack of the victim's testimony. See, e.g. , Bryant v. State , 154 So. 3d 1164, 1165 (Fla. 2d DCA 2015) ; Johnson v. State , 888 So. 2d 691, 693 (Fla. 4th DCA 2004) (noting that "the fact the victim did not testify, and thus could not describe or articulate any such fear, does not bar a conviction"); L.R.W. v. State , 848 So. 2d 1263, 1266 (Fla. 5th DCA 2003) (holding that "[i]f the circumstances are such as would ordinarily induce fear in the mind of a reasonable person, then the victim may properly be found to have been in fear"); Calvo v. State , 624 So. 2d 838, 839 (Fla. 5th DCA 1993) (noting that "a court may find that the victim was in fear without the victim testifying as to the victim's own state of mind concerning fear"); McClain v. State , 383 So. 2d 1146, 1147 (Fla. 4th DCA 1980) (noting that "there is no requirement that the victim in an assault actually testify to his own state of mind"); Gilbert v. State , 347 So. 2d 1087, 1088 (Fla. 3d DCA 1977) (holding that "where the circumstances were such as to ordinarily induce fear in the mind of a reasonable man, then the victim may be found to be in fear, and actual fear need not be strictly and precisely shown"). However, courts have applied an objective standard even when the victim denies being in fear. See Sullivan v. State , 898 So. 2d 105, 108 (Fla. 2d DCA 2005) (holding that the deputy's "testimony that during the episode, he did not believe that violence to him was imminent" was "not dispositive" to determine if the defendant committed an assault); Thomas v. State , 183 So. 2d 297, 300 (Fla. 3d DCA 1966) ("Even though the victim herein testified that he was never in fear ... the proper rule is that if the circumstances attendant to the robbery were such as to ordinarily induce fear in the mind of a reasonable man, then the victim may be found to be in fear, and actual fear need not be strictly and precisely shown.").³ This result logically follows from the use of an objective standard. A denial of fear is certainly a factor that may be weighed against other circumstances presented, but it is not conclusive. And in this case, there is evidence to support the conclusion that Daniels’ conduct was sufficient to create well-founded fear.⁴

As Daniels’ threats and actions could create a well-founded fear of imminent violence in a reasonable person, see Williams v. State , 238 So. 3d 915, 916-17 (Fla. 1st DCA 2018), we affirm his conviction for aggravated assault.

AFFIRMED .

M.K. Thomas, J., concurs; Makar, J., concurs specially with opinion.

Makar, J., concurring specially.

The element of victim fear, and its proof at trial, is at issue in this aggravated assault case, one in which the defendant verbally threatened his on-again/off-again girlfriend and then fired a gun out of the window of the car in which they were traveling, but she disavowed any fear about the episode at trial. Defendant says a judgment of acquittal is required because the victim said she lacked fear; the State says it need only prove that the victim should have been in fear, as the jury was instructed. The language of the assault statute favors the defendant's view, but the interpretive trend in Florida has been to uphold the use of a reasonable person standard by which fear may be inferred and, as here, the victim's motive to deny fear can be explained.

To begin, by statute an " ‘assault’ is an intentional, unlawful threat by word or act to do violence to the person of another , coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent." § 784.011(1), Fla. Stat. (2020) (emphasis added). "Aggravated assault" is "an assault: (a) With a deadly weapon without intent to kill; or (b) With an intent to commit a felony." Id. § 784.021(1)(a) & (b).

By their terms, the statutory phrases "to the person of another" and "fear in such other person" clearly require that a specific victim actually be in fear as an element of an assault (or an aggravated assault). Fussell v. State , 154 So. 3d 1233, 1236 (Fla. 1st DCA 2015) ("In assault cases, the state must prove the victim was in fear."). For this reason, proof of fear in an assault case focuses upon "the person" who is the victim of the assault; it is a subjective, person-centric inquiry. Indeed, in multiple victim cases an "individual determination is called for as to each alleged victim of assault." Id. (emphasis added).

This person-centric feature of the assault statute, however, has been interpreted differently depending on whether the victim testifies or not. In cases where the victim testifies, the State must meet both a subjective and objective standard of proof; in cases where the victim does not testify, it need not. And the statutory language has been diluted by judicial reliance on caselaw involving other crimes, such as robbery, which do not have a requirement of actual victim fear.

When a victim of an alleged assault testifies , a two-part inquiry applies: the evidence must show an actual, subjective fear on her part to satisfy the statute; but the evidence must also show that her fear was "well-founded" and objectively reasonable under the circumstances. See, e.g. , L.R. v. State , 698 So. 2d 915, 916 (Fla. 4th DCA 1997) ("Where the victim testifies, the victim's subjective perception of fear, so long as it is determined to be well-founded, is sufficient to prove the element of fear."). Consistent with the assault statute's language, a subjective, actual fear on the victim's part must exist and it must be objectively "well-founded" to establish the element of victim fear.¹ Both a subjective fear and an objective basis for that fear must be shown; it is misnomer to say otherwise.

When the victim of an alleged assault does not testify , and her subjective, actual fear is unknown , an exception has evolved to the long-standing general rule² that the assault victim must be shown to have actually experienced fear. To fill the evidentiary gap, courts have used a substitute for the required element of actual fear: whether a reasonable (but imagined) person would feel fear under the circumstances; if so, it can be inferred that the victim must have too.

Under this approach, the defendant can be convicted of assault without evidence of the victim's actual fear, provided evidence exists that she should have been fearful; indeed, one victim's testimony that she was fearful can be deemed sufficient to prove fear by a second victim who did not testify, in essence a form of...