Proctor v. State

• Decision Date: 21 September 2016
• Docket Number: No. 2D14–3118.,2D14–3118.
• Citation: 205 So.3d 784
• Parties: Kenneth Alton PROCTOR, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

205 So.3d 784

Kenneth Alton PROCTOR, Appellant,

v.STATE of Florida, Appellee.

No. 2D14–3118.

District Court of Appeal of Florida, Second District.

Sept. 21, 2016.

Howard L. Dimmig, II, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.

Kenneth Alton Proctor, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.

MORRIS, Judge.

Kenneth Proctor appeals five convictions and sentences entered after a jury trial. We affirm four convictions and sentences, but we reverse Proctor's conviction for aggravated assault with a deadly weapon and remand for the trial court to enter judgment for the lesser included offense of assault on a person over sixty-five and to resentence Proctor accordingly.¹

I. Facts

The State charged Proctor with the following offenses: (1) aggravated battery with a deadly weapon on a person over sixty-five, with possession of a firearm, committed against Proctor's father; (2) aggravated assault with a deadly weapon on a person over sixty-five, with possession of a firearm, also committed against his father; (3) aggravated assault with a deadly weapon, with discharge of a firearm, committed against Proctor's girlfriend; (4) grand theft of a firearm; and (5) grand theft of a motor vehicle.

At trial, the father testified that his small dog woke him up in the middle of the night. He walked out of his bedroom and spoke to his son, who told him everything was okay. The father went back to bed but was woken up again. When the father walked into his living room, he saw his son and his son's girlfriend. Proctor was holding the father's pistol in his hand, and Proctor hit his father in the face with the pistol. Proctor told the father to sit down, threatening to hurt him. The father next observed the girlfriend on her knees and Proctor holding the girlfriend by the hair, pouring vodka on her. The father tried to leave, but Proctor hit the father a few more times, knocking him to the ground at least twice. The father was ultimately able to run out of the house and across the street. He then observed his truck speeding away, even though Proctor no longer had permission to drive his father's truck. The father's truck was later found on the side of the road. The State introduced into evidence photographs of the father's injuries.

The girlfriend testified that she was hanging out with Proctor in his bedroom having a good time. At one point, Proctor walked out, and when he walked back in a few minutes later, he was acting differently. He was mad and told her that he was done. He slapped her and put a gun to her head, saying he should just kill her. She was afraid that he was going to hurt her, and she begged him not to. He then went into the kitchen and had words with his father. When Proctor returned, he pushed her head down onto a pillow and put the gun to her head, causing her jaw to pop. They struggled, and when he pulled the gun away, it fired. He then dragged her by her hair into the kitchen and poured vodka on her head. She heard Proctor arguing with his father, but she was focused on figuring out how to get of the house. Proctor dragged her by the arm outside to his father's truck. He was calmer at that point, so she went with him. As they were driving, Proctor said he should kill both of them. He headed towards an oncoming semi-truck, and they hit a culvert on the side of the road and ended up in a ditch. She grabbed the gun and exited the truck. She ran down the road, and Proctor caught up to her. She tossed the gun into some bushes. They walked to a friend's house where they talked. Proctor did not remember what happened, and when she told him, he started crying. They ultimately fell asleep. When the girlfriend woke up, she called her sister who took her to the hospital. The State introduced photographs of the girlfriend's injuries.

The State also presented the testimony of the investigating officers regarding their observations of the victims' injuries and demeanors, the condition of the father's house, and the location and condition of the truck.

The jury found Proctor guilty as charged with the exception of count one. Specifically, the jury found Proctor guilty of (1) battery on a person over sixty-five (the lesser included charge in count one); (2) aggravated assault with a deadly weapon on a person over sixty-five, with the jury finding that Proctor did not actually possess a firearm; (3) aggravated assault with a deadly weapon, with the jury finding that Proctor actually possessed and discharged a firearm; (4) grand theft of a firearm; and (5) grand theft of a motor vehicle.

Proctor was sentenced to concurrent sentences on all five counts. On counts one, four, and five, he was sentenced to five years in prison. On count two (the aggravated assault against his father), Proctor was sentenced to fifteen years with a three-year minimum mandatory term. On count three (the aggravated assault against his girlfriend), Proctor was sentenced to a twenty-year minimum mandatory term.

II. Analysis

The jury found that Proctor committed aggravated assault with a deadly weapon against his father, but the jury also found, under that same count, that Proctor did not actually possess a firearm. Proctor argues that the jury verdict on this count is a true inconsistent verdict because the jury found him guilty of aggravated assault with a deadly weapon but then found that he did not possess a firearm. He argues that the only weapon alleged to have been used in the offense was a firearm and that the jury's finding that he did not possess a firearm negates its finding that he committed aggravated assault with a deadly weapon.

In Gerald v. State, 132 So.3d 891, 893–94 (Fla. 1st DCA 2014), the appellant was convicted of aggravated assault under section 784.021, Florida Statutes, and it was clear from the evidence that the aggravated assault was based on the appellant's use of a deadly weapon, i.e., a gun. Yet, the jury specifically found on the verdict form that the appellant "did not actually possess a firearm during the aggravated assault." 132 So.3d at 892. The court held that the jury reached true inconsistent verdicts, which are not permitted in Florida. See id. at 893–94 (recognizing that true inconsistent verdicts are the one exception to the rule allowing inconsistent verdicts); see also Brown v. State, 959 So.2d 218, 220 (Fla.2007) (recognizing that "the ‘true’ inconsistent verdict exception[ ] comes into play when verdicts against one defendant on legally interlocking charges are truly inconsistent" and that "true inconsistent verdicts are ‘those in which an acquittal on one count negates a necessary element for conviction on another count’ " (quoting State v. Powell, 674 So.2d 731, 732–33 (Fla.1996) )); Shavers v. State, 86 So.3d 1218, 1221 (Fla. 2d DCA 2012) (explaining the difference between factually inconsistent verdicts, which are permitted in Florida, and legally inconsistent verdicts, which are not permitted in Florida). The court in Gerald explained:

[A]ggravated assault can only be established if an assault was committed with a deadly weapon or with an intent to commit a felony. It is undisputed that, in this case, the only evidence of a deadly weapon presented at trial was the firearm. As such, the firearm is the only basis on which the deadly weapon element could be established. Thus, it is impossible to reconcile how the jury could find that [a]ppellant committed aggravated assault with a deadly weapon, but also specifically find beyond a reasonable doubt that [a]ppellant did not possess the firearm during the commission of the assault.

Moreover, the jury could not have independently concluded that [a]ppellant committed the aggravated assault with an intent to commit a felony. The trial court did not instruct the jury on aggravated assault with an intent to commit a felony, pursuant to section 784.021(1)(b), nor could the evidence here have supported such an instruction. Instead, the jury was only instructed on aggravated assault with a deadly weapon. As such, we are left with the jury's finding, beyond a reasonable doubt, that [a]ppellant did not actually possess the firearm during the aggravated assault, which negates the critical element that elevates simple assault to aggravated assault.

Gerald, 132 So.3d at 894 ; cf. State v. Carswell, 914 So.2d 9, 12 (Fla. 4th DCA 2005) (holding that conviction for aggravated battery was not negated by finding that defendant did not possess firearm because the jury could have found aggravated battery on the alternative theory of "great bodily harm"). The Gerald court reversed and remanded for the trial court to reduce the appellant's conviction to simple assault and for resentencing. 132 So.3d at 896.

In this case, it is clear from the State's evidence and argument during trial that the only deadly weapon alleged to have been used by Proctor during this offense was his father's firearm. And the jury could not have found that Proctor committed the assault with intent to commit a felony because the jury was not instructed on that type of aggravated assault. According to Gerald, Proctor's conviction on count two was improper because the inconsistent findings on count two result in true inconsistent verdicts. In this case, the firearm finding is legally interlocked with the charge of aggravated assault with a deadly weapon because the finding of the firearm was necessary to support the conviction for aggravated assault. In other words, under the facts of this case, the firearm was a necessary element of the aggravated assault. Cf. Shavers, 86 So.3d at 1222 (holding that jury's finding that defendant did not possess a firearm was not legally inconsistent with jury's finding of guilt for first-degree murder "because the use of a firearm was not an element of" the charged murder). Thus, when the jury found that Proctor did not possess a firearm, it negated its finding that he was guilty of aggravated assault with a deadly...