ANTHONY GREEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 1998-01-28
No. 95-3916
KLEIN and GROSS, JJ., concur.
706 So. 2d 884 Florida District Court of Appeal, Fourth District (1998) Caution
Cited by 9 cases

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Synopsis

The appellate court affirmed the conviction for aggravated assault but reversed one of the convictions for improper exhibition of a firearm, holding that multiple victims in a single event do not justify multiple convictions for that offense.


Holding

The court held that the state established a prima facie case for aggravated assault, supporting the denial of the motion for judgment of acquittal. However, the court held that the appellant should not have been sentenced on two counts of improper exhibition of a firearm for a single act, regardless of the number of victims.


Headnotes

[1] A motion for judgment of acquittal should not be granted unless, when viewed in the light most favorable to the state, the evidence fails to establish a prima facie case…

[2] In moving for a judgment of acquittal, a defendant admits the facts stated in the evidence and every conclusion favorable to the adverse party that a jury might reasonabl…

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Key Quotes

“In affirming the ruling of the trial court, we must emphasize that when reviewing a motion for judgment of acquittal, the court should not grant the motion unless, when viewed in- the light most favorable to the state, the evidence does not establish a prima facie case of guilt.”

Establishes the standard for reviewing a motion for judgment of acquittal.

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Facts & Procedural History

Anthony Green was charged with several firearm offenses, including aggravated assault and improper exhibition of a firearm. During an altercation, Gre…

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Opinion of the Court
GERSTEN, CAROL R., Associate Judge.

GERSTEN, CAROL R., Associate Judge.

Appellant, Anthony Green, was charged by Information with possession of a firearm by a convicted felon, six counts of aggravated assault and possession of a firearm with a serial number removed. Count I was severed from the remaining charges. The jury found Green guilty of possession of a firearm with a serial number removed, four counts of aggravated assault, and in the two remaining counts, found him guilty of improper exhibition of a firearm, a lesser included offense of aggravated assault. Green appeals from the denial of his motions for judgment of acquittal and from his sentence on two counts of improper exhibition of a firearm.

On May 28,1994, Vanessa Robinson, Dorothea Davis, Natilie Moore, and Lawonda Ware accompanied Loretta Lewis to West Hollywood to pick up her goddaughter, Sher-ye Gaskins. While driving home, Gaskins saw Green driving his ear and asked Lewis to pull their vehicle over so Gaskins could talk to Green. When Gaskins would not get out of the car, Green got out of his vehicle and pulled out a gun 1. According to Lewis, Green then stated, “I should spray all you mothers.” When Lewis asked what he was talking about, Green further stated, “I should spray all you motherfuckers.” He then pointed the gun into the passenger window of the car. All of the occupants, with the exception of Lewis, jumped out of the car. Green then continued to hold the gun on Lewis until the police arrived. The other occupants of the car testified similarly2, each stating that they believed Green was going to shoot them and that they were in fear for their fives.

Green contends that the trial court erred in denying his motions for judgment of acquittal by failing to reduce the charges to the lesser included offense of improper exhibition of a firearm.

In affirming the ruling of the trial court, we must emphasize that when reviewing a motion for judgment of acquittal, the court should not grant the motion unless, when viewed in-the light most favorable to the state, the evidence does not establish a prima facie case of guilt. See Proko v. State, 566 So. 2d 918, 919 (Fla. 5th DCA 1990). In moving for a judgment of acquittal, the defendant admits not only the facts stated in the evidence, but admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence. See Lynch v. State, 293 So. 2d 44, 45 (Fla.), cert. discharged, 293 So. 2d 44 (Fla.1974). The state is not required to rebut every possible variation that can be concluded from the evidence, only to introduce competent evidence which is inconsistent with the defense’s theory of events. See State v. Law, 559 So. 2d 187, 189 (Fla.1989).

In the instant case, the state clearly established a prima facie case for aggravated assault. The witnesses testified to a well-founded fear that violence was about to take place, even if there was no evidence that the weapon was not pointed at any one particular person. See Blanton v. State, 388 So. 2d 1271 (Fla. 4th DCA 1980), pet. for review denied, 399 So. 2d 1140 (Fla.1981).

We do, however, agree with appellant that he should not have been sentenced to two counts of Improper Exhibition of a Firearm where he committed only one act, regardless of the number of victims.

Section 790.10, Florida Statutes (1995) provides as follows:

If any person having or carrying any ... firearm, ... shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry or threatening manner, not in necessary self-defense, the person so offending shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(Emphasis added).

In Canion v. State, 661 So. 2d 931 (Fla. 4th DCA 1995), the defendant was charged with three counts of aggravated assault of a law enforcement officer after he raised a martial arts trident in a threatening manner while in the presence of three police officers. The jury found the defendant guilty of two counts of the lesser included offense of improper exhibition of a dangerous weapon. This court held that the defendant erroneously received two convictions for the single act of improperly exhibiting a dangerous weapon and reversed as to one count. See id.

Similarly, Green’s improper exhibition occurred during a single episodic event when he pointed his gun into the car at the women. Accordingly, the Judgment and Conviction is affirmed in part and reversed in part and remanded to the trial court with directions to vacate one of appellant’s sentences for Improper Exhibition of a Firearm.

AFFIRMED IN PART; REVERSED IN PART WITH DIRECTIONS.

KLEIN and GROSS, JJ., concur. . A semi-automatic weapon with a high capacity detachable box magazine.

. Gaskins did not testify and Green moved for Judgment of Acquittal arguing that the State could not prove she was a victim. That motion was denied.


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Citator

Cited By

  • Mauldin v. State, 9 So. 3d 25 (Fla. 4th DCA 2009)
    …multiple convictions are permissible. Thus, the statute is not ambiguous as to the allowable unit of prosecution. The rule of lenity does not apply in this situation.3 We further find that Vance v. State, 472 So. 2d 734 (Fla.1985), Green v. State, 706 So. 2d 884 (Fla. 4th DCA 1998), and Canion v. State, 661 So. 2d 931 (Fla. 4th DCA 1995), relied upon by Mauldin, are distinguishable. In these cases, the courts held that multiple convictions for improper firearm display were not authorized because the statute…
  • Bass v. State, 739 So. 2d 1243 (Fla. 5th DCA 1999)
    …lant is correct in contending that he should have only been adjudicated on one count of improper exhibition of a weapon, because the exhibition of the firearm occurred in one criminal episode, although in front of several people. See Green v. State, 706 So. 2d 884 (Fla. 4th DCA 1998); Canion v. State, 661 So. 2d 931 (Fla. 4th DCA 1995). Accordingly two of the convictions for improper exhibition of a firearm must be vacated on remand. We therefore affirm the judgments for aggravated assault (counts V-VIII), b…
  • Sanders v. State, 795 So. 2d 223 (Fla. 4th DCA 2001)
    …y connected in space and time. E.g. Patterson v. State, 637 So. 2d 955, 956 (Fla. 4th DCA 1994); Watford v. State, 525 So. 2d 484, 486 (Fla. 1st DCA 1988). This case is distinguishable from Vance v. State, 472 So. 2d 734 (Fla.1985), Green v. State, 706 So. 2d 884 (Fla. 4th DCA 1998), and Canion v. State, 661 So. 2d 931 (Fla. 4th DCA 1995), relied on by Sanders. In each of those instances, the defendants engaged a group of persons in one incident at one time and place. Vance, Green, and Canion involved only o…

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