DEVIN LAVONNE BRYANT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Devin Bryant appeals his conviction for aggravated assault with a deadly weapon, arguing the State failed to prove the victim feared imminent harm because the victim did not testify. The court affirmed the conviction, holding that circumstantial evidence—shooting at a group including the victim, causing them to run and duck—was sufficient to establish the required elements without the victim's testimony.
The court held that the circumstantial evidence was sufficient to establish both required elements. The fact that Freytes-Calderon did not testify as to his fear is not dispositive; the circumstances of being shot at and ducking to avoid being shot ordinarily induce fear in a reasonable person.
[1] Aggravated assault with a deadly weapon can be proven by evidence that the defendant shot at a group of people, causing them to run and duck, and that at least one person…
[2] A victim's testimony of fear is not dispositive in proving the fear element of aggravated assault when other evidence demonstrates circumstances that would ordinarily ind…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“elements of an offense cannot be established by mere inference”
Bryant's argument regarding required proof, citing Von Deck; the court acknowledged this proposition but found it distinguishable
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBryant shot at a group of men that included victim Leugim Freytes-Calderon, causing the men to run and duck down. One man in the group testified he wa…
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Devin Lavonne Bryant appeals his judgment and sentence for aggravated assault with a deadly weapon as against victim Leugim Freytes-Calderon.1 We conclude that the circuit court properly denied Bryant’s motion for judgment of acquittal, and we therefore affirm.
Bryant argues that because Freytes-Calderon did not testify at trial, the State failed to prove two elements of the crime: that he [Bryant] threatened to do violence toward Freytes-Calderon and that Freytes-Calderon was in fear of imminent harm. See § 784.011(1), Fla. Stat. (2011). Bryant primarily relies on State v. Von Deck, 607 So.2d 1388 (Fla.1992), and Viveros v. State, 699 So.2d 822, 825 (Fla. 4th DCA 1997), for the proposition that “elements of an offense cannot be established by mere inference.” Von Deck, 607 So.2d at 1389 (citing State v. Dye, 346 So.2d 538, 541 (Fla.1977)).
While we do not question that proposition, we find those cases are distinguishable. Von Deck did not provide an explanation of the facts and addressed a different legal issue than the one presented in this case. 607 So.2d at 1389. And in Viveros, there was no evidence that the victim had even been “aware of or comprehended the events preceding the shooting” nor was there any evidence that the victim had been in fear. 699 So.2d at 826.
*1165Here, the evidence reflected that Bryant was observed shooting at a group of men, which included Freytes-Calderon, causing the men to run and duck down. One of the men who was in the group testified that as a result of the incident, he was “in shock” and “scared.” We hold that these circumstances were such that they would “ ‘ordinarily induce fear in the mind of a reasonable man.’ ” Sullivan v. State, 898 So.2d 105, 108 (Fla. 2d DCA 2005) (quoting Gilbert v. State, 347 So.2d 1087, 1088 (Fla. 3d DCA 1977)); see also Jefferson v. State, 186 So.2d 842, 843 (Fla. 2d DCA 1966) (holding that evidence was sufficient to establish aggravated assault where appellant was seen pointing and firing a gun at two women); Johnson v. State, 888 So.2d 691, 692 (Fla. 4th DCA 2004) (holding that evidence was sufficient where appellant verbally threatened victim and pointed gun at him and then at a group of people causing everyone to scatter); L.R.W. v. State, 848 So.2d 1263, 1265-66 (Fla. 5th DCA 2003) (holding that evidence was sufficient where there was testimony that appellant was seen threatening the victim and that other people were afraid); Parker v. State, 389 So.2d 336, 337 (Fla. 4th DCA 1980) (holding that “a victim who sees another person in the act of shooting at him evidences a well-founded fear of imminent bodily harm when he ducks to avoid being shot”). The fact that Freytes-Cal-deron did not testify as to his fear is not dispositive. See Sullivan, 898 So.2d at 108. We therefore affirm Bryant’s judgment and sentence for aggravated assault with a deadly weapon as against Freytes-Calderon.
Bryant also challenges a scrivener’s error appearing on the face of the judgment. The judgment form erroneously indicates that he pleaded guilty, despite the fact that the record reflects that he was convicted after a jury trial. The State concedes error. We therefore remand for the limited purpose of correcting the scrivener’s error. See Willingham v. State, 48 So.3d 173, 173 (Fla. 2d DCA 2010).
Affirmed and remanded.
NORTHCUTT and SILBERMAN, JJ., Concur.
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Mantecon v. State, 373 So. 3d 929 (Fla. 1st DCA 2023)…her after the shooting that he had been trying to “hit as many witnesses as possible.” Under these circumstances, there was sufficient evidence from which the jury could infer that Mantecon intentionally threatened the victims. Cf. Bryant v. State, 154 So. 3d 1164, 1165 (Fla. 2d DCA 2015) (holding that sufficient evidence supported a conviction for aggravated assault with a deadly weapon when the defendant fired into a group of men that included the intended 2 Although Martin and King were the victims of the…
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Daniels v. State (Fla. 1st DCA 2020)…y the defendant’s threat, but the fact finder can infer that the victim was fearful. In this situation, every district court has held that an objective standard applies, irrespective of the lack of the victim’s testimony. See, e.g., Bryant v. State, 154 So. 3d 1164, 1165 (Fla. 2d DCA 2015); Johnson v. State, 888 So. 2d 691, 693 (Fla. 4th DCA 2004) (noting that “the fact the victim did not testify, and thus could not describe or articulate any such fear, does not bar a conviction”); L.R.W. v. State, 848 So. 2d…
Authorities Cited (12 total)
- State v. DYE, 346 So. 2d 538 (Fla. 1977)
- State v. von Deck, 607 So. 2d 1388 (Fla. 1992)
- Viveros v. State, 699 So. 2d 822 (Fla. 4th DCA 1997)
- Ulysses Ulice Gilbert v. State, 347 So. 2d 1087 (Fla. 3d DCA 1977)
- L.R.W. A Child v. State, 848 So. 2d 1263 (Fla. 5th DCA 2003)
- Parker v. State, 389 So. 2d 336 (Fla. 4th DCA 1980)
- Johnson v. State, 888 So. 2d 691 (Fla. 4th DCA 2004)
- Sullivan v. State, 898 So. 2d 105 (Fla. 2d DCA 2005)
- Willingham v. State, 48 So. 3d 173 (Fla. 2d DCA 2010)
- Aurelius v. State, 48 So. 3d 173 (Fla. 2d DCA 2010)