(The following article appeared originally on Adam Bantner’s blog at https://tampacrimeattorneys.com/the-outer-limits-of-an-aggravated-assault-charge/)
By: Adam L. Bantner, II, Board Certified Criminal Trial Law Attorney
An “assault” is defined 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.” Fla. Stat. 784.011. Simple assault is a second-degree misdemeanor punishable by up to 60 days in county jail. As such, an assault is composed of three elements: (1) an intentional, unlawful threat by word or act; (2) an apparent ability to carry out the threat; and (3) creation of a well-founded fear that violence is imminent.
For a person to be convicted of an assault, there needs to be an intentional threat towards the victim. When considering this element, the focus is on the perpetrator’s intent and “not the reaction of the person perceiving the word or act.” Benitez v. State, 901 So. 2d 935, 937 (Fla. 4th DCA 2005). J.S. v. State, 207 So.3d 903 (Fla. 4th DCA 2017). In J.S., the Court overturned the adjudication of delinquency because the defendant’s act of pulling out a pellet gun, while he was on the ground, was not intended as a threat to the victim, who was brandishing his firearm.
In February 2018, the First DCA decided Williams v. State, 43 Fla. L. Weekly D496a (Fla. 1st DCA 2018). Williams seems to stretch its logic in deciding the Williams threatened his two victims so that he committed an Aggravated Assault (he was using a firearm at the time of the alleged assaults). Here are the facts relevant to the assaults (Byrd and Dixon are the alleged victims of the assaults and Howard is the victim of an attempted murder):
The 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.
From these facts, the Court decided that the statement “shut the hell up” coupled with the prior acts of firing the gun, was actually a threat to harm Byrd if he continued talking and not a mere request to be quiet. With regards to Dixon, the Court even admitted that they could not discern Williams’ intent with regards to Dixon, but nonetheless held that a reasonable jury could find that Williams threatened Dixon by stating that he would kill Howard and that Dixon and Byrd would put him in prison. I’m not certain how they got there, but they did.
The take away for Williams is that if a defendant is firing rounds at one person and makes any statement to other people in the area, there’s a chance that he or she could be convicted of Aggravated Assault with regards to the people to whom he or she was talking. For Williams, it didn’t really matter as his aggravated assault sentences were concurrent to his 30-year sentence for the attempted murder of Howard, but the practitioner needs to be aware that bystanders to a crime have a chance to become victims as well under the logic of Williams.