final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Duval County. Mark Borello,
Thomas, Public Defender, and Barbara J. Busharis, Assistant
Public Defender, Tallahassee, for Appellant.
Jo Bondi, Attorney General, Kaitlin Weiss, Assistant Attorney
General, and Virginia Harris, Assistant Attorney General,
Tallahassee, for Appellee.
convicted Keshon Williams of attempted second-degree murder,
possession of a firearm by a convicted felon, and two counts
of aggravated assault with a deadly weapon. Williams received
a thirty-year sentence for the attempted murder, another
thirty-year sentence for the firearm possession, and shorter
concurrent terms for the aggravated assaults. On appeal,
Williams challenges only the aggravated assault convictions.
events that led to Williams's convictions all took place
at some sort of neighborhood bonfire. Williams was there, as
was his longtime friend Elroy Howard. In a tense and profane
exchange, Williams accused Howard of speaking ill of
Williams's grandmother. For whatever reason, Williams
then pulled out a MAK-90 semiautomatic rifle, pointed it at
Howard, and fired off several shots in Howard's general
direction. This was the basis for the attempted
murder and firearm-possession convictions, neither of which
leaves the two aggravated assault convictions, which Williams
argues are not supported by evidence. The victims of the
charged assaults were two of Williams's other longtime
friends, Fredrika Dixon and Gary Byrd, who were standing
nearby when Williams shot at Howard. Williams argues that he
never actually threatened either of them, so the trial court
should have granted his acquittal motion as to the assault
charges. We review this claim de novo. Pagan v.
State, 830 So.2d 792, 803 (Fla. 2002).
true that there was no evidence that Williams pointed his gun
at Dixon or Byrd. And it is true that there was no evidence
that Williams explicitly threatened either of them. He never
said, for example, "I'm going to kill you."
Cf. Schepman v. State, 146 So.3d 1278, 1285 (Fla.
5th DCA 2014). But an aggravated assault conviction requires
neither a pointed gun nor an explicit threat. Instead, it
requires an "assault, " see section
784.021(1)(a), Florida Statutes (2014), which is "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. (2014). So the first question is
whether a reasonable jury could have concluded from the
evidence that Williams intentionally and unlawfully
threatened Dixon and Byrd "by word or act." In
addressing this question, we consider the evidence in a light
most favorable to the State. See Lukaszewski v.
State, 111 So.3d 212, 213 (Fla. 1st DCA 2013).
jury heard evidence that Williams told Howard he wanted to
kill him "so bad" he could "taste it."
Around the same time, Williams said of Dixon and Byrd:
"If those two motherfuckers want to stand right there
I'll kill your ass. I know them two bitches going to put
me in prison." Williams then started shooting in several
directions-not just towards Howard-striking a fence, a gate,
a chair, and a house. At some point, Byrd confronted
Williams, trying to convince Williams to stop. Williams
responded with a racial slur and a demand that Byrd
"shut the hell up." Byrd and Dixon both hid behind
a vehicle until Williams rode away on his bicycle.
these facts, we have little trouble concluding that a
reasonable jury could find Williams intentionally threatened
Byrd. When Williams demanded that Byrd shut up, Williams was
armed with a semiautomatic rifle, had just tried to kill
someone, and had just screamed a racial slur at Byrd. A jury
could infer from this that the demand to "shut the hell
up" was more than an everyday request-that it was an
intentional threat to harm Byrd if he continued talking.
Cf. Manuel v. State, 16 So.3d 833, 835 (Fla. 1st DCA
2005) ("[T]aking the evidence in a light most favorable
to the State, intent can be inferred from the circumstances
of the incident.").
It is a
closer call as to Dixon. Williams said if Dixon wanted to
stand where she stood, "I'll kill your ass, "
presumably referring to Howard. He also said that she
"might want to move out from around here"-or
something like that. And he said he knew she would put him in
prison. Although we cannot discern exactly what Williams
hoped to communicate, a reasonable jury could conclude from
these statements-and the surrounding circumstances-that
Williams intentionally threatened Dixon with harm.
as to both Byrd and Dixon, a reasonable jury could find
Williams had an apparent ability to do harm and that his
firing the rifle and trying to kill someone would create a
well-founded fear that violence was imminent. The ...