final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Jeffrey R. Levenson, Judge; L.T. Case No.
Haughwout, Public Defender, and Anthony Calvello, Assistant
Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman,
Assistant Attorney General, West Palm Beach, for appellee.
Saint-Fort ("the defendant") challenges his
conviction for trespass while armed with a dangerous weapon.
He argues that the rock he raised up and aimed-but did not
throw-at a security guard could not constitute a dangerous
weapon under section 810.09(2)(c), Florida Statutes (2015),
and thus his motion for a judgment of acquittal should have
been granted and a judgment of guilt entered on the lesser
included offense of trespass. We disagree and affirm.
evidence adduced at trial established that the defendant
became involved in a heated argument with a security guard at
a grocery store regarding the defendant's trespass on the
commercial property. The defendant threatened to hit the
guard over the head with a brick. The defendant then walked
across the street where he retrieved a rock from a
construction site. The rock was "big enough that [the
security guard] could see it from across the street."
The defendant ran back toward the guard, who yelled,
"Don't come onto the property, don't
cross." Instead of heeding the command, the defendant
"hurdled the bushes" and came within six feet of
the security guard. The defendant lifted his arm and drew it
back as if to throw the rock at the guard. When the guard
unholstered his gun, the defendant fled. Upon his arrest, the
rock was recovered. It was ultimately entered into evidence
810.09(2)(c) provides that the offense of trespass is a
felony of the third degree "[i]f the offender is armed
with a firearm or other dangerous weapon during the
commission of the offense." The term "dangerous
weapon" is not defined in chapter 810, which governs
burglary and trespass. See § 810.011, Fla.
Stat. (2015). However, the standard jury instruction for
trespass on property other than a structure or conveyance
defines "dangerous weapon" as "any weapon
that, taking into account the manner in which it is used, is
likely to produce death or great bodily harm." Fla. Std.
Jury Instr. (Crim.) 13.4. Our courts have thus looked to
whether a weapon has been used in a manner likely to cause
great bodily harm or death in determining whether a weapon is
a dangerous weapon. See Brown v. State, 896 So.2d
808, 810 (Fla. 5th DCA 2005) (finding an antique firearm the
defendant stole during the course of a burglary was not a
dangerous weapon); McCoy v. State, 789 So.2d 489,
490 (Fla. 2d DCA 2001) (holding that a pocketknife used to
cut a porch screen during a burglary was not a dangerous
weapon); Arroyo v. State, 564 So.2d 1153, 1154-55
(Fla. 4th DCA 1990) (holding that a pocketknife found on a
burglar was not a dangerous weapon where the burglar did not
make any threatening gestures with the knife).
because our courts have viewed the terms "dangerous
weapon" and "deadly weapon" as having the same
meaning, see Jones v. State, 885 So.2d 466, 468
(Fla. 4th DCA 2004); King v. State, 779 So.2d 466,
467 (Fla. 2d DCA 2000), opinions involving the classification
of a weapon as a deadly weapon provide guidance. This court
has explained that whether a weapon is deadly '"is a
question of fact to be determined by the jury from the
evidence, taking into consideration its size, shape and
material and the manner in which it was used or was capable
of being used.'" Simmons v. State, 780
So.2d 263, 265 (Fla. 4th DCA 2001) (quoting Duba v.
State, 446 So.2d 1167, 1169 (Fla. 5th DCA 1984)).
Further, "a simple threat with an item does not, alone,
render that item deadly for the purpose of sentence
enhancement." Suit v. State, 901 So.2d 986, 988
(Fla. 4th DCA 2005).
certain circumstances, a rock can be a dangerous or deadly
weapon. Compare J.P. v. State, 128 So.3d 61, 61-62
(Fla. 3d DCA 2013) (finding that quarter-sized rocks the
child was "merely flick[ing]" at the victim did not
constitute deadly weapons (alteration in original)), with
A.H. v. State, 577 So.2d 699, 700 (Fla. 3d DCA 1991)
(finding a rock was a deadly weapon where it was the size of
a baseball and was thrown at the victim but "hit a
nearby wall with a loud 'boom' five to ten feet from
where the [victim] was standing").
defendant argues that the rock in this case did not
constitute a deadly weapon because the defendant merely
displayed it and caused no harm. Opinions of this court have
held that the threatened use of an object in a manner likely
to cause death or great bodily harm may transform the object
into a deadly or dangerous weapon.
McCoy v. State, 493 So.2d 1093, 1094 (Fla. 4th DCA
1986), a suspected shoplifter broke away from store employees
and pulled a small pocketknife out of his pocket. With his
back to the wall, he waved it at the employees and warned
them to leave him alone. Id. The employees testified
that the defendant did not attempt to hurt them. Id.
On appeal of his conviction for multiple counts of aggravated
assault with a deadly weapon, this court affirmed, reasoning
that "there was sufficient evidence from which the jury
could have concluded the manner in which appellant used the
small pocketknife constituted an assault with a deadly
weapon." Id. at 1095.
another case, this court found that an unknown object
constituted a deadly weapon where the defendant walked up to
a drive-through window of a restaurant, displayed what
appeared to be a bomb, and threatened to "blow that
bitch up" if someone didn't open the cash drawer and
give him money. Suit, 901 So.2d at 987-88. The court
noted that the fact that the object was not recovered was not
dispositive. Id. at 988.
third case, this court implied that behavior indicating the
planned use of a pocketknife would have established that it
was a dangerous weapon for purposes of enhancement
under the burglary statute. J.W. v. State, 849 So.2d
1111, 1111-12 (Fla. 4th DCA 2003) (finding that a pocketknife
was not a dangerous weapon where the defendant forcibly
entered a home with the pocketknife in his hand but "did
not threaten the resident with it or wave it at her");
see also Santiago v. State, 900 So.2d 710, 712 (Fla.
3d DCA 2005) ("[A] jury may conclude that a weapon is