Johnson v. State, 82-755

• Decision Date: 14 July 1983
• Docket Number: No. 82-755,82-755
• Citation: 436 So.2d 248
• Parties: Isaiah Eugene JOHNSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 248

436 So.2d 248

Isaiah Eugene JOHNSON, Appellant, v. STATE of Florida, Appellee.

No. 82-755.

District Court of Appeal of Florida,

Fifth District.

July 14, 1983.

Rehearing Denied Aug. 17, 1983.

Appeal from Circuit Court, Brevard County; Gilbert S. Goshorn, Jr., judge.

James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

AFFIRMED.

DAUKSCH and SHARP, JJ., concur.

COWART, J., concurs specially with opinion.

COWART, Judge, concurring specially:

With pistol in hand, appellant circled a vehicle, containing two passengers in the rear seat area, while trying to get a clear shot at an intended victim, Ricky Joiner, who was trying to keep the vehicle between appellant and himself. Bullets aimed by appellant at his victim hit the top of the vehicle trunk, the bottom of the vehicle trunk and a panel near the rear window. One bullet was also fired through the open window on the driver's side and passed through the vehicle and broke the window at the front passenger's side. Appellant was charged, tried and convicted of an aggravated assault on Ricky Joiner and also a violation of section 790.19, Florida Statutes (1981), which makes it a felony crime to wantonly or maliciously shoot any firearm at, within or in any vehicle which is being used or occupied by any person.

Citing Golden v. State, 120 So.2d 651 (Fla. 1st DCA 1960), appellant claims the trial judge erred in denying his motion for a judgment of acquittal made during trial because the evidence was clear that he was shooting at his victim and only incidentally shot at and into the vehicle. The relevant facts in Golden were that Golden and one Pearce Jernigan had a bitter and heated argument while Jernigan was standing in the yard of his home. After Golden shot two deputies, Jernigan ran into his house with Golden in hot pursuit. Golden fired his pistol at Jernigan several times both before and after entering the house. Bullets struck both the exterior and interior of the house and one bullet struck Jernigan during his flight for safety. Golden was charged, tried and convicted of assault with intent to kill and a violation of section 790.19, Florida Statutes (1957 amended Ch. 59-458 Laws of Florida 1958). The appellate court affirmed the assault charge but reversed the conviction of wantonly or maliciously shooting at or into Jernigan's house. ¹

The basis for appellant's motion at trial and argument on appeal is the following language from Golden The gravamen of the offense is the wanton or malicious shooting at or into a house. Although the evidence contained in the record clearly reveals that appellant was maliciously and wantonly shooting his pistol during the controversy, his malicious and wanton attitude was directed only toward [the victim]. There is no evidence which either directly or by inference could be said to establish the fact that appellant was wantonly or maliciously shooting at or into the house per se. ... We are forced to conclude that the statute was never intended to apply to the factual situation presented by the evidence in this case. (emphasis added)

120 So.2d at 653.

Before the trial court and on appeal appellant argues that Golden establishes a "per se test" that requires a specific intent to shoot at or into the object on account of (per) the object itself (se) and that the malicious and wanton intention be directed specifically or only toward the object, and that Golden holds that the statute is not violated where the shooting at or into the object is merely incidental to an intention of firing at a specific intended human target. This is the way Golden is commonly read and understood. ² There is absolutely no question but that in this case the defendant's violence and fury were directed only at Ricky Joiner and not at the vehicle. ³

"Wantonly" means an act done intentionally and with design; with reckless disregard for the rights of others; without excuse and heedless of consequences; an act done under circumstances evincing a lawless, destructive spirit. "Maliciously" describes an act done with a condition of mind that shows a heart regardless of social duty and bent on mischief; evidencing a design to do an intentional wrongful act toward another, or toward the public, without any legal justification or excuse and with the knowledge that injury or damage will, or may likely be caused to another person or to the property of another person. In fact, "malice" in its common acceptation, means ill will towards some person. The disjunctive adverbs, "wantonly or maliciously," refer to that mental condition which would naturally and in common experience be expected to be the attitude of one who, with reckless disregard of the potential deadly consequences, intentionally and for no good and lawful purpose discharges a firearm at, within or into an object known to contain, or to often contain, human beings, as distinguished from the lack of intent of one who accidently discharges a firearm or the mind and attitude of one who, without intending any wrong or harm, innocently shoots a firearm under apparently safe conditions. Inanimate objects, such as houses and cars, seldom so offend a person as to become the subject of a malicious and wanton attitude and of a wrath such as would cause one to shoot the object per se. Such rare occurrences could hardly have been what the statute was intended...