ROGER E. CARUTHERS, Appellant,
STATE OF FLORIDA, Appellee.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Mindy F. Solomon, Judge; L.T. Case No.
Haughwout, Public Defender, and Ian Seldin, Assistant Public
Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Richard
Valuntas, Assistant Attorney General, West Palm Beach, for
appeals his convictions for two counts of aggravated assault
with a firearm, challenging the admission of a video
recording and the trial court's refusal to instruct the
jury on a lesser included offense. We find no error in
admitting the video recording into evidence. However, we find
that, based on the charging document and evidence adduced at
trial, improper exhibition of a firearm was a permissive
lesser included offense of attempted first-degree murder. We
further find that the trial court committed per se reversible
error in refusing to give the instruction, as it was one step
removed from the convicted offense.
had a verbal altercation with appellant at a convenience
store. During the altercation, appellant pulled out a gun,
hit the gun on the counter, and said he had a bullet for the
woman and her fiancé. The woman left the store and
went across the street to the park. Appellant followed her,
repeatedly yelling that he was going to kill her and her
family, some of whom were also at the park. He later fired
shots at the woman and her aunt as they tried to drive away.
Appellant was charged with two counts of attempted
trial, the court refused defense counsel's request for an
instruction on improper exhibition of a firearm as a lesser
included offense. Instead, the trial court instructed the
jury on the lesser included offenses of attempted
second-degree murder, aggravated assault with a firearm, and
simple assault. The jury convicted appellant of two counts of
aggravated assault with a firearm.
review the trial court's decision not to give the
requested jury instruction de novo because the "facts
are undisputed and the legal determination to be made on
appeal is whether an offense is a permissive lesser included
offense to the crime charged." Piggott v.
State, 140 So.3d 666, 668 (Fla. 4th DCA 2014).
Florida Standard Jury Instructions identify necessarily
lesser-included offenses (category one) and permissive
lesser-included offenses (category two). See Moore v.
State, 932 So.2d 524, 527 (Fla. 4th DCA 2006).
"Although the schedule is presumptively correct and
complete, trial courts are charged with the responsibility to
determine and properly instruct the jury on the prevailing
law." Williams v. State, 957 So.2d 595, 599-600
(Fla. 2007) (citations, alteration, and quotation marks
permissive lesser included offense exists when 'the two
offenses appear to be separate [on the face of the statutes],
but the facts alleged in the accusatory pleadings are such
that the lesser [included] offense cannot help but be
perpetrated once the greater offense has been.'"
Sanders v. State, 944 So.2d 203, 206 (Fla. 2006)
(alterations in original) (citation omitted). See also
Amado v. State, 585 So.2d 282, 282 (Fla. 1991)
("Permissive lesser included offenses are those offenses
that may or may not be lesser included offenses depending on
the pleadings and the evidence presented."). Upon
request, the judge must instruct the jury on permissive
lesser included offenses of the crime charged which are
supported by the information and evidence. Wimberly v.
State, 697 So.2d 1272, 1273 (Fla. 4th DCA 1997).
schedule of lesser included offenses for first-degree murder
lists aggravated assault and simple assault as permissive
lesser included offenses. See Fla. Std. Jury Instr.
(Crim.) 6.2. Additionally, the schedule of lesser included
offenses for aggravated assault lists both improper
exhibition of a firearm and assault as necessarily included
offenses. See Fla. Std. Jury Instr. (Crim.) 8.2.
state correctly concedes, improper exhibition of a firearm is
a lesser included offense in this case. The elements of
improper exhibition of a firearm are: (1) having or carrying
a firearm; (2) exhibiting the firearm in a rude, careless,
angry, or threatening manner, and (3) doing so in the
presence of one or more persons. See Fla. Std. Jury
Instr. (Crim.) 10.5; see also § 790.10, Fla.
Stat. (2013). As to one victim, the information alleged that
appellant "did brandish and discharge a firearm in the
direction of [the victim] while verbally threatening [the
victim] and others." As to the other victim, the
information alleged that appellant "did run toward [the
victim] and others while discharging a firearm and verbally
threatening to kill them." Additionally, the evidence at
trial supported each of the elements of improper exhibition
of a firearm.
failure to instruct on the next immediate lesser-included
offense, one step removed from the offense of conviction,
constitutes per se reversible error. Daugherty v.
State, 211 So.3d 29 (Fla. 2017); McCloud v.
State, 209 So.3d 534 (Fla. 2017). This is because the
jury must be given "a fair opportunity to exercise its
inherent 'pardon' power by returning a verdict of
guilty as to the next lower crime." State v.
Abreau, 363 So.2d 1063, 1064 (Fla. 1978). Where,
however, "the trial court fails to properly instruct on
a crime two or more degrees removed from the crime for which
the defendant is ...