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Benitez v. State4/27/2005
fendant had the ability to carry out the threat. The court denied the motion. The jury found the defendant guilty on all charges.
"The standard of review for the denial of a motion for judgment of acquittal is whether the verdict is supported by substantial, competent evidence." Perry v. State, 846 So. 2d 584, 586 (Fla. 4th DCA 2003). The defendant now argues the trial court erred in denying the motion for judgment of acquittal because the evidence failed to show he threatened the officer by word or act. In essence, he suggests there was no proof of the first element of an "assault."
Section 784.011, Florida Statutes (2004), defines an assault as "an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent." § 784.011(1), Fla. Stat. (2004). The statute requires proof of three elements: (1) an intentional, unlawful threat; (2) an apparent ability to carry it out; and (3) creation of a well-founded fear that the violence is imminent. See Viveros v. State, 699 So. 2d 822, 825 (Fla. 4th DCA 1997).
Here, there was substantial, competent evidence to support a well-founded fear on the part of the deputy based upon the defendant's lack of responsiveness to the deputy's commands, coupled with his movements, and the existence of an object in the defendant's hand. The real question is whether the defendant intentionally and unlawfully threatened the deputy.
We are extremely mindful of the dangers faced by law enforcement daily even during what appear to be routine traffic stops. We do not underestimate the apprehension experienced by the deputy under the circumstances presented. However, the defendant's act of placing his hand behind his back, while alarming to the deputy, is not substantial, competent evidence the defendant intentionally and unlawfully threatened the deputy.
Assault is a crime which requires intent. The "threat" element addresses the defendant's intent, not the reaction of the person perceiving the word or act. It is the defendant's word or act that must be reviewed to determine whether it constitutes a "threat," not the reaction of the person perceiving the word or act. For this reason, the court should have granted a judgment of acquittal on the aggravated assault charge.
We find no merit in the other issues raised. We reverse the conviction for aggravated assault on a law enforcement officer with a firearm and remand the case to the trial court to vacate that conviction and resentence the defendant on the remaining charges.
Reversed and Remanded.
KLEIN and GROSS, JJ., concur.
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