Holley v. State
Decision Date | 20 July 2004 |
Docket Number | No. 1D03-3078.,1D03-3078. |
Citation | 877 So.2d 893 |
Parties | Aaron HOLLEY, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender; and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
Charlie Crist, Attorney General; and Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellee.
Aaron Holley (Appellant) contends that the trial court erred in 1) denying motions for judgment of acquittal (JOA) on the charge of robbery with a deadly weapon because a box cutter/razor knife is not a "deadly weapon" or even a "weapon" as a matter of law, and no factual evidence was presented that he used, or threatened to use, a box cutter/razor knife as such; 2) permitting irrelevant testimony (over an objection) and allowing a lay witness to give expert testimony; 3) permitting, and participating in, the State's frequent interruption of defense counsel during opening statement and closing argument, possibly suggesting to the jury that the court did not care for the defense's argument; and 4) failing to conduct an adequate inquiry upon being informed that Appellant was generally dissatisfied with his court-appointed lawyer and had implied that he should represent himself. Concluding that the evidence is legally insufficient to support Appellant's conviction for robbery with a "weapon," we are constrained to reverse the judgment and sentence in Count One and remand with directions to the trial court to enter a judgment for unarmed robbery and to re-sentence Appellant on that count. We affirm the conviction and sentence in Count Two.
The State charged Appellant with robbery with a "deadly weapon," contrary to section 812.13(2)(a), Florida Statutes (2001) (Count One); resisting an officer without violence, contrary to section 843.02, Florida Statutes (Count Two); and possession of a concealed weapon by a felon, contrary to section 790.23(1), Florida Statutes (Count Three). Count Three was severed and subsequently nolle prossed. The State filed notice of intent to seek enhanced penalties for Appellant as a prison releasee reoffender (PRR) and habitual felony offender or habitual violent felony offender. The jury found Appellant guilty of the lesser-included offense of robbery with a "weapon" in Count One and guilty as charged in Count Two. The court adjudicated Appellant guilty, classified him as a PRR, and sentenced him to concurrent terms of 30 years (Count One) and 60 days (Count Two).
The charges arose from a May 21, 2002, incident at the Food Lion grocery store in Starke. As the store manager, Mr. Tweedy, observed the interior of the store on a surveillance video located in his elevated office, Appellant removed two cartons of cigarettes, several packets of meat, and other items from the shelves and attempted to conceal them in his clothing. After contacting the police, the store manager stepped out of his office and conversed with Appellant in an effort to stall Appellant's departure. Appellant's eyes were bloodshot, his words were slurred, and he appeared to be "under the influence of something." Noticing the meat products that protruded from Appellant's pants and the cigarette cartons that bulged in his pockets as Appellant started to leave, the store manager asked whether he could have his "product" back. Appellant then placed his hand on his left rear pocket and said he had a gun, whereupon the store manager wished him "a good day" and tried to get him away from other customers and out of the store. The store manager testified he was scared and did not want to take any chances if Appellant was armed. As the store manager followed Appellant to the exit, Appellant told him to get away, or else Appellant would shoot him with his "nine." Appellant left the store and rode his bicycle directly into a police car entering the parking lot. He ran off as the officers chased him (after the store manager identified Appellant as the perpetrator). The police soon apprehended Appellant and brought him back to the Food Lion. A policeman showed the store manager certain items taken from Appellant during the search: cigarette cartons, packets of meat, candy bars, a flashlight, a pack of lighters, and a box cutter/razor knife. No gun was ever found on or around Appellant. Appellant never displayed, used, or threatened to use, the box cutter/razor knife during the incident.
The theory of defense was that Appellant's acts involved nothing more than shoplifting and, possibly, "resisting detainment." He moved unsuccessfully for a JOA on the charge of robbery with a deadly weapon. The denial of a motion for JOA presents a legal issue subject to de novo review. See Jones v. State, 790 So.2d 1194, 1197 (Fla. 1st DCA 2001) (en banc). In moving for a motion for JOA, Appellant admitted every conclusion, favorable to the State, that the jury might fairly and reasonably infer from the evidence. See Pagan v. State, 830 So.2d 792, 803 (Fla.2002).
We must determine whether the facts adduced in the State's case support the conviction for robbery with a "weapon." Count One charged robbery with a deadly weapon. § 812.13(2)(a), Fla. Stat. (2001) ( ). "Deadly weapon" is not defined in the statutes. See Butler v. State, 602 So.2d 1303, 1304 n. * (Fla. 1st DCA 1992). Subsection (2)(b) of the robbery statute addresses offenders who, in the course of committing the robbery, carried a "weapon." "Florida courts have generally utilized the statutory definition of `weapon' provided in section 790.001(13) to determine whether a particular object constitutes a `weapon' for purposes of section 812.13(2)(b)." Williams v. State, 651 So.2d 1242, 1242-43 (Fla. 2d DCA 1995); see also Stanley v. State, 757 So.2d 1275, 1276 (Fla. 4th DCA 2000). A box cutter/razor knife is not among the specifically enumerated items in section 790.001(13), Florida Statutes (2001), which defines "weapon" as "any dirk, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife." As used in this statute, "other deadly weapon" has been defined by the courts to mean either 1) an "instrument which will likely cause death or great bodily harm when used in the ordinary and usual manner contemplated by its design and construction," Robinson v. State, 547 So.2d 321, 323 (Fla. 5th DCA 1989), or 2) "an object which is used or threatened to be used during a crime in such a way that it would be likely to cause death or great bodily harm." Butler, 602 So.2d at n.*. "An object can become a deadly weapon if its sole modern use is to cause great bodily harm." Robinson, 547 So.2d at 323. A box cutter/razor knife is not a "deadly weapon" under that definition. See id. (). The other way an object can be construed as a "deadly weapon" is its particular use, or threatened use, during the crime. See Fletcher v. State, 472 So.2d 537 (Fla. 5th DCA 1985) ( ). Appellant did not display, use, or threaten to use, the box cutter/razor knife during the robbery. Because the State presented no evidence that the object was used, or threatened to be used, as a weapon, the trial court reversibly erred in denying the motion for JOA insofar as it related to any offense greater than unarmed robbery. See Gaines v. State, 869 So.2d 603 (Fla. 1st DCA 2004) ( ); Blanco v. State, 679 So.2d 792 (Fla. 3d DCA 1996); Bates v. State, 561 So.2d 1341 (Fla. 2d DCA 1990) ( ).
In his next issue, Appellant argues that the trial court abused its discretion, first, in permitting the store manager's irrelevant testimony (over relevance objections) and, second, in allowing the store manager to give expert testimony. The court allowed the store manager to testify from personal experience that he still would have been fearful had he known that the purported gun Appellant carried was actually a box cutter/razor knife. The store manager testified from...
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