Jones v. State, 4D02-3207.
| Decision Date | 31 March 2004 |
| Docket Number | No. 4D02-3207.,4D02-3207. |
| Citation | 869 So.2d 1240 |
| Parties | Kevin JONES, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Carey Haughwout, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
Appellant was convicted and sentenced for robbery with a deadly weapon, the deadly weapon being a BB gun having the appearance of a .9 millimeter hand gun. He complains that the court erred in denying his motion for judgment of acquittal on that portion of the verdict finding him guilty of being armed with a deadly weapon because the BB gun was destroyed by the state prior to trial and, thus, was not presented to the jury. The state offered no other proof to show the BB gun was likely to inflict death or great bodily harm. On the controlling authority of Dale v. State, 703 So.2d 1045 (Fla.1997), we agree with appellant and reverse his conviction.
While victim Joyce Snelten was in a rental car parking lot, a man walked up behind her, held a gun about an inch from her temple, and told her to drop her purse, before leaving in an old red vehicle. According to the victim, the gun was "frightening" and "shiny black" with a rectangular barrel. She acknowledged that she did not know what kind of a gun it was. After the gunman ripped her purse from her arm, she crouched by the side of a rental car in fear of being shot.
Officer Hatfield responded to a 911 call, and he spoke to the victim. She described the suspect, weapon, and vehicle. Another officer saw a vehicle that matched the description, watched it pull over, and saw appellant, who fit the description of the suspect, get out. The officer detained appellant until Officer Hatfield arrived with the victim who identified appellant as the man who robbed her. Officer Hatfield found a BB gun in a cooler in the front passenger's seat of appellant's car. At first he thought it was a real gun, but soon realized it was a BB gun. The evidence technician who processed all of the evidence also at first thought the BB gun was a real gun. Inside the cooler in which the BB gun was found were pellets for the gun. No one testified that the BB gun was actually loaded with pellets when found by the detectives.
Unfortunately, sometime prior to trial the gun was mistakenly destroyed by the state. At trial, after the presentation of its witnesses, the state introduced a photograph of the BB gun. It did not introduce any evidence about its operation. Appellant moved for judgment of acquittal on the ground that the state failed to demonstrate that the BB gun was a deadly weapon.
In his defense, appellant testified and denied any involvement. He said that the BB gun found in his car was a cheap spring model which "couldn't hurt a fly." He did not recall whether it was loaded at the time of the incident. After testifying, appellant renewed his motion for judgment of acquittal, which was also denied. The trial court found that the question of whether a BB gun is a deadly weapon was a question for the jury, and the jury found appellant guilty of robbery with a deadly weapon.
A motion for judgment of acquittal is reviewed under a de novo...
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