Aggravated assault is an assault with a deadly weapon without intent to kill. § 784.021(1)(a), Fla. Stat. (2014). To prove the crime of aggravated assault, the State must prove the following four elements beyond a reasonable doubt: 1) the defendant intentionally and unlawfully threatened, either by word or act, to do violence to the victim; 2) at the time, the defendant appeared to have the ability to carry out the threat; 3) the act of the defendant created in the mind of the victim a well-founded fear that the violence was about to take place; 4) the assault was made with a deadly weapon or the assault was made with a fully-formed conscious intent to commit a felony upon the victim. If the circumstances were such as to ordinarily induce a well-founded fear in the mind of a reasonable person, then the victim may be found to have been in fear, and actual fear on the part of the actual victim need not be shown. FL ST CR JURY INST 8.2.
An essential element of aggravated assault is a well-founded fear in the mind of the victim that violence is imminent. See Johnson v. Brooks, 567 So. 2d 34 (Fla. 1st DCA 1990). However, under the current state of the law, there is no requirement that the victim of an alleged assault actually testify to his or her own state of mind. L.R.W. v. State, 848 So. 2d 1263, 1266 (Fla. 5th DCA 2003). In L.R.W., even though the victim was laughing, the district court relied on the trial court’s finding that the victim may have been laughing out of fear or a desire to frustrate L.R.W.’s intent to injure her when L.R.W. held a chair up in a menacing manner while the victim was approximately six feet away and other witnesses in the room retreated. Id. Where “the circumstances were such as to ordinarily induce fear in the mind of a reasonable man, then the victim may be found to be in fear, and actual fear need not be strictly and precisely shown.” Gilbert v. State, 347 So. 2d 1087, 1088 (Fla. 3d DCA 1977). Thus, a victim’s subjective view of his lack of fear is not dispositive. Sullivan v. State, 898 So. 2d 105, 108 (Fla. 2d DCA 2005).
A case may turn on whether there was legally sufficient evidence that a violent act was imminent so as to create in the victim the requisite well-founded fear. Id. In Sullivan the court reversed the defendant’s conviction because evidence was insufficient as to a law enforcement officer who testified that he did not believe violence was imminent to him when he was positioned behind a police cruiser thirty feet away from the knife-brandishing defendant and there was another officer between the police cruiser and the defendant. Id.
Judge Casanueva of the Second District Court of Appeal (then Chief Judge) in S.P.M. v. State of Florida, concurred in the result only in affirming the defendant’s conviction for aggravated assault, while writing in disagreement to express concern that case law deviates from the plain meaning of the legislature’s words in sections 784.011(1) and 784.021(1) Florida Statutes (2009). 66 So. 3d 317 (Fla. 2nd DCA 2011) (Casanueva, C.J., concurring) (concurring in result only with opinion).
In S.P.M. the defendant, who was convicted of aggravated assault, wielded a tire iron in response to an episode of road rage when several men exited their vehicles and confronted each other at an intersection. S.P.M., 66 So. 3d at 318. The “victim” testified that he did not feel at all threatened by the tire iron and he did not think the defendant was going to swing it at anyone. Id. Judge Casanueva concurred in the affirmance of the conviction only because binding case law mandated the result, but argued that prior to the court’s decisions in Sullivan and Gilbert the reasonable person standard was only used when there was no direct evidence of the victim’s fear or lack of fear. Id. at 321. “By utilizing a reasonable person standard in a case where the victim has testified that he was not afraid and there was no evidence to the contrary, the Sullivan court essentially eliminated the subjective standard that the statute requires.” Id.
If you or someone you know have been arrested or charged with aggravated assault in Florida, or other violation of law, we suggest that you immediately consult with an experienced attorney in order to preserve your rights and give the defense attorney as much time as possible to investigate the charges against you.