J.S. v. State, s. 4D14–3775

• Decision Date: 04 January 2017
• Docket Number: 4D14–4031,4D14–4033,Nos. 4D14–3775,4D14–4032,s. 4D14–3775
• Parties: J.S., a Child, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

207 So.3d 903

J.S., a Child, Appellant,

v.STATE of Florida, Appellee.

Nos. 4D14–3775

4D14–4031

4D14–4032

4D14–4033

District Court of Appeal of Florida, Fourth District.

[January 4, 2017]

Carey Haughwout, Public Defender, and Virginia Murphy, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L. Comras, Assistant Attorney General, West Palm Beach, for appellee.

Lee, Robert W., Associate Judge.

The appellant was adjudicated delinquent for the charge of burglary with assault while armed. The appellant timely appeals the trial court's decision, as well as three violation-of-probation petitions which have been consolidated into this appeal. Specifically, the appellant challenges the trial court's determination that all the elements of the crime of assault were proven. Because we agree that the evidence was insufficient to prove all elements of the crime of assault, we reverse.

Facts

Between 1:30–2:00 a.m., the victim in this case heard noise behind his home which also housed his auto-repair business. When he came outside to investigate, he saw one of his trucks moving because someone was yanking the hitch of the vehicle. The victim approached the vehicle and noticed the appellant touching the truck.

As the victim got closer to the truck, he noticed a second person at a different vehicle. Because of the positioning of the vehicles, the victim was now between the two burglars. The appellant dropped to his knees while the other burglar began to approach the victim. At this point, the victim raised his personal firearm, scaring off the second burglar who began to run away.

While brandishing his own firearm, the victim then approached the first burglar who was now on the ground. He saw the appellant "moving his right arm towards something, like he's going to grab something." The victim thought it might be a weapon and became afraid. Before the appellant was able to reach anything, the victim reached down and removed what turned out to be a weapon—a pellet gun—from the appellant's waist. This was the first point at which the victim actually saw the weapon. At the delinquency hearing, the victim acknowledged that he did not know what the appellant was doing in reaching for his waist, but assumed the "wors[t] case scenario." The victim further testified that the appellant never threatened him. The victim held the appellant at gunpoint on the ground until the police arrived.

The State ultimately charged appellant with burglary with assault or battery while armed, as well as carrying a concealed weapon. The case proceeded to a delinquency hearing. After the State rested, and then again after the close of evidence, the appellant moved for a judgment of dismissal, arguing that the crime of assault was not proven because there was no evidence of a threat. These motions were denied, and the trial court found appellant delinquent on both charges.

On appeal, the juvenile argues that his adjudication of delinquency for the charge of burglary of conveyance with assault while armed should be reversed, and the case remanded for the trial court to instead sentence him on the charge of burglary of a conveyance with a weapon, for which he concedes evidence of all the elements was introduced.

Analysis

The denial of a motion for judgment of dismissal in a juvenile case is de novo . If upon viewing the evidence in the light most favorable to the State we find the evidence does not support the juvenile's guilt, we must reverse. D.J.D. v. State , 143 So.3d 1115, 1118 (Fla. 4th DCA 2014).

Under Florida law, the crime of assault is comprised of three elements: (1) an intentional, unlawful threat by word or act; (2) an apparent ability to carry out the threat; and (3) creation of a well-founded fear that violence is imminent. § 784.011, Fla. Stat. (2014). The issue in this case is focused on the first element: did the appellant intend to threaten the victim?

In this case, there is no evidence that appellant verbally "threatened" the victim. The case therefore rises or falls on whether there was an overt act that the juvenile intentionally threatened the victim.

The appellant argues that there was insufficient evidence of a word or overt act constituting a threat based on his intent. He relies on the testimony that he was only reaching towards his waist and never actually drew or pointed the pellet gun at the victim. He further argues that the pellet gun was concealed, and the victim did not see it until the victim seized it.

On the other hand, when focusing on the issue of an "intentional threat," the State relies on the evidence showing that the juvenile reached for something around his waist area, which was ultimately revealed to be a pellet gun. The State, in essence, argues that an intention to threaten, and the threat itself, can be inferred from this action.

When determining whether the first element of the crime of assault is met, the focus is the perpetrator's intent and "not the reaction of the person perceiving the word or act." Benitez v. State , 901 So.2d 935, 937 (Fla. 4th DCA 2005). Therefore, we must consider the appellant's actions—rather than the victim's fear—to determine whether the evidence shows a sufficient act or acts from which we can infer an intentional threat.

Florida case law presents several cases in which the appellate court discusses the requirement of an intentional threat as an element of the charge of assault. See, e.g. , Denard v. State , 30 So.3d 595, 596 (Fla. 5th DCA 2010) ; Benitez , 901 So.2d at 937 ; Lifka v. State , 530 So.2d 371, 375 (Fla. 1st DCA 1988) ; Battles v. State , 288 So.2d 573, 574–76 (Fla. 2d DCA 1974). The case most clearly on point is Benitez , upon which the appellant heavily relies.

In Benitez , the officer pulled over a vehicle after he observed it operating without tail lights. 901 So.2d at 936. As the officer walked up to the vehicle, the driver acted suspiciously and moved his hand behind his back. Id. The officer became "seriously concerned" and was in "absolute fear." Id. The officer managed to open the door of the vehicle and restrain the driver. Id. After he did so, "[h]e looked behind the defendant and saw that his hand was holding a dark-colored pistol." Id. The pistol had been pointed at the officer's knees. Id....