Mitchell v. State, 95-02169

Citation698 So.2d 555
Decision Date11 July 1997
Docket NumberNo. 95-02169,95-02169
Parties22 Fla. L. Weekly D1711 Dexter MITCHELL, Appellant, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

James Marion Moorman, Public Defender, Bartow, and Kathleen Calcutt, Assistant Public Defender, Clearwater, for Appellant.

Robert A. Butterworth, Attorney General Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellee.

ALTENBERND, Judge.

Dexter Mitchell appeals numerous convictions and sentences arising from an unusual sequence of events that occurred on October 26, 1994. During this rampage, he carried a BB pistol. He struck his estranged wife on the head with the pistol and threatened to shoot several other people. The state failed to introduce testimony that the BB pistol was operable or loaded at any time during this episode. The gun was empty when introduced into evidence and there is no testimony that a law enforcement officer ever emptied BBs from its reservoir. We conclude the evidence was sufficient to prove a prima facie case of aggravated battery with a deadly weapon. With some hesitation, we conclude that the evidence also establishes trespass with a dangerous weapon, robbery with a deadly weapon, and aggravated assault with a deadly weapon. When a defendant's words or actions imply that a device is dangerous or deadly, and the device is normally dangerous or deadly when used in its ordinary and usual manner, but at the time of the offense it is not dangerous or deadly due to a condition that cannot be observed by the victim, we conclude that a jury may find the device to be a dangerous or deadly weapon. Accordingly, we affirm the trial court in all respects.

We certify to the Supreme Court of Florida the following question of great public importance:

IF THE STATE FAILS TO PROVE THAT A BB PISTOL IS LOADED AND OPERABLE AT THE TIME OF AN OFFENSE, CAN IT BE CLASSIFIED AS A DANGEROUS OR DEADLY WEAPON WHEN THE DEFENDANT'S ACTIONS CAUSE THE VICTIM TO REASONABLY BELIEVE THAT THE BB PISTOL IS LOADED AND OPERABLE?

I. THE EVENTS

On October 26, 1994, while armed with a BB pistol that appeared to be a firearm, Mr. Mitchell went to the home of his estranged wife. Another man was at the house. Mr. Mitchell entered the house without permission. He pulled the BB pistol from his jacket and threatened to kill both his wife and her friend. He took money from his wife and attempted to take money from the man.

Mr. Mitchell's wife escaped and ran down the street. Mr. Mitchell chased her, BB pistol in hand, threatening to shoot her. She entered a chiropractor's office for protection. He followed her into the office. Inside the office, he threatened several people with the gun, and struck his wife on the head repeatedly with the butt of the gun. She sustained lacerations that required medical treatment.

Mr. Mitchell then fled to a mobile home park and entered the home of an elderly couple without their permission. He claimed he was a police officer and actually allowed them to handle the BB pistol. The evidence does not suggest that he threatened the couple with the gun. Instead, the record reveals that during the course of the trespass, he pointed the gun at himself and announced he was going to kill himself. The couple fled the mobile home as the police were arriving. After a short standoff, Mr. Mitchell threw his BB pistol from the mobile home and surrendered.

II. THE CONVICTIONS AND SENTENCES

The state charged Mr. Mitchell with fourteen offenses. At the conclusion of his trial, the jury convicted him of eleven offenses. For the events at the home of his wife, he was convicted of robbery of his wife with a deadly weapon and attempted robbery of her friend with a deadly weapon. For the events at the chiropractic office, he was convicted of trespass with a dangerous weapon, aggravated battery upon his wife with a deadly weapon, two counts of aggravated assault with a deadly weapon, and four counts of simple assault. For the events at the mobile home, he was convicted of trespass with a dangerous weapon. In total, the jury convicted Mr. Mitchell of four misdemeanors and seven felonies. The trial court imposed concurrent sentences, the longest of which is thirteen years' incarceration. We affirm the four simple assault convictions without discussion. We discuss only the issues relating to the BB pistol.

III. THE EVIDENCE CONCERNING THE BB PISTOL

The evidence concerning the BB gun is somewhat atypical. The gun was identified for introduction into evidence by Mr. Mitchell's wife. She testified that the pistol appeared to be the weapon used to threaten her and to beat her over the head. A police officer testified that the police collected the gun as evidence at the mobile home park and stored it in an evidence locker. No one testified that the gun was loaded and operable at the scene. No technician fired the weapon or testified to its power.

Because this court thought it possible that the gun, when introduced into evidence, might still have had BBs in its reservoir, we requested the actual pistol be included in our record. Even on careful examination, it looks like a black, .22 caliber semi-automatic pistol. It is a Huntington Marksman Repeater BB Pistol, which is powered by a spring, rather than a CO 2 cartridge. 1 It has a reservoir to hold BBs. Upon physical examination, there is no evidence that it is loaded. It was taped by the police to render it inoperable, but no officer testified about taping the gun. If it was unloaded by the police when they taped it, that fact is not established in the record. We recognize the possibility that Mr. Mitchell may have emptied the BB gun before he threw it out of the mobile home. However, the record contains no evidence of BBs located in the mobile home or on his person. There is no evidence that he ever fired the gun during this extended criminal episode.

Various witnesses testified that they thought the BB gun was a real firearm. Mr. Mitchell carried and used the weapon as if it were loaded. During his own testimony after his motion for judgment of acquittal had been denied, Mr. Mitchell called the BB pistol a "weapon" or "gun." He never testified that the gun was empty or inoperable. He explained that he had been in the military and handled this weapon as he had been trained to use firearms in the military.

IV. AGGRAVATED BATTERY WITH A DEADLY WEAPON

Mr. Mitchell was charged with aggravated battery for striking his wife with the pistol and causing two gashes on both sides of her head. Section 784.045(1)(a), Florida Statutes (1993), allows the state to charge aggravated battery either for use of a "deadly weapon" or for intentionally causing a "permanent disability." The state included both theories in the information and in the jury instructions. The evidence established that Mr. Mitchell used the pistol as a bludgeon and created gashes on his wife's head. Even if the pistol had been a toy gun, his intentional use of this metal object to attack his wife supported a conviction for aggravated battery. Gomez v. State, 496 So.2d 982 (Fla.App.1986). Accordingly, we affirm this conviction.

V. THE BB GUN IS NOT A FIREARM

Part of the difficulty in this and similar cases stems from the statutory definition of a "firearm." Section 790.001(6), Florida Statutes (1993), defines a "firearm" as

any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; and destructive device; or any machine gun. The term "firearm" does not include an antique firearm unless the antique firearm is used in the commission of a crime.

This definition excludes BB guns because they do not use the "action of an explosive." On the other hand, the definition includes the frame of a firearm and does not require that the firearm be loaded or operable during the criminal episode. Bentley v. State, 501 So.2d 600 (Fla.1987). See, e.g., State v. Altman, 432 So.2d 159 (Fla. 3d DCA 1983) (.22 derringer without cylinder is firearm).

Because the definition of "firearm" does not involve proof that the gun is loaded or operable, a defendant's use of a firearm during a crime can be established even if the gun is not recovered and introduced into evidence. Circumstantial evidence can be sufficient to establish the use of a firearm. Bradley v. State, 413 So.2d 1248 (Fla. 1st DCA 1982); T.T. v. State, 459 So.2d 471 (Fla. 1st DCA 1984); Meyer v. State, 498 So.2d 554 (Fla. 4th DCA 1986); Council v. State, 691 So.2d 1192 (Fla. 4th DCA 1997).

In this case, numerous witnesses testified that Mr. Mitchell committed crimes while carrying what they thought was a firearm. If Mr. Mitchell had discarded his gun between the events at the chiropractor's office and his arrest at the mobile home park, such evidence may have been sufficient to support convictions involving firearms. Because the traditional definitions of dangerous and deadly weapons do not expressly include inoperable parts of those weapons, Mr. Mitchell's decision to retain his empty BB gun makes this case far more difficult for the state to prove.

VI. ARMED TRESPASS

The state charged Mr. Mitchell with two counts of armed trespass pursuant to section 810.08(2)(c), Florida Statutes (1993). A trespasser who is armed with a "firearm or other dangerous weapon" is guilty of a third-degree felony. "Dangerous weapon" is not defined in chapter 810 or in chapter 790. The standard jury instruction, which was given in this case, defines a "dangerous weapon" as "any weapon that, taking into account the way it is used, is likely to produce death or great bodily harm." 2 Fla. Std. Jury Instr. (Crim.) 142. The concept of a "dangerous weapon," as so defined, has existed in Florida's criminal law for well over a century. See, e.g., § 782.03, Fla. Stat. (1993) (excusable homicide statute,...

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