Category Archives: Crimes

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.

Possession of Recently Stolen Property

By: Adam L. Bantner, II

The Bantner Firm

Board Certified Criminal Trial Law Attorney

Candidate for Hillsborough County Court Judge, Group 2

 Typically, the decision to put your client on the stand at trial involves numerous considerations such as how he/she will present to a jury, his or her criminal history, the skill of the prosecutor, the need to rebut State evidence, the need to present an affirmative defense. There is one occasion when it is almost always a good idea: to rebut the inference arising from possession of recently stolen property.

To prove theft, the State must prove beyond a reasonable doubt that:

  1. Defendant knowingly and unlawfully obtained or used or endeavored to obtain or to use the property of the victim, and
  2. He or she did so with intent to, either temporarily or permanently deprive the victim of his or her right to the property or any benefit from it.[1]

Fla. Stat. ⸹ 812.022(2) provides, in material part, that “…proof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.” The inference provided by section 812.022(2) is sufficient to support a theft conviction without any other evidence. See Smith v. State, 742 So. 2d 352, 354-55 (Fla. 5th DCA 1999).

The key phrase of the presumption, for this article, is unless satisfactorily explained. In theory, the defense could provide an explanation from a person not the defendant. For example, let’s suppose the defense is that the defendant bought the property from a third party and lacked knowledge of the property being stolen. The third party could testify that he witnessed the transaction. Any statements made during the transaction should be admissible as they are not offered for the truth of the matter asserted but to explain possession and defendant’s state of mind.

However, based on caselaw, if the State lacks any other evidence of guilt, the most surefire method to obtain a judgment of acquittal would be to put the defendant on the stand. In C.T. v. State, 42 Fla. L. Weekly D2510a, (Fla.3d DCA 2017), the Court quoted Smith v. State, 742 So. 2d 352, 355 (Fla. 5th DCA 1999) and stated that “where a reasonable explanation for possession of recently stolen property is totally unrefuted, and there is no other evidence of guilt, the court must grant a directed verdict for the defendant.” The Second DCA takes the same position in Coleman v. State, 466 So. 2d 395, 397 (Fla. 2d DCA 1985) (“[T]he rule is that where a defendant gives a patently reasonable explanation for his possession of recently stolen goods which is totally unrefuted, and there is no other evidence of guilt, the court must direct a judgment of acquittal.”

Before rushing to put your client on the stand armed with these cases, be certain that the State doesn’t possess other evidence of guilt that would allow the court to deny your motion for judgment of acquittal. Some evidence for which to be on the lookout includes evidence of damage to the vehicle indicating a break-in, flight from law enforcement, conflicting explanations by defendant to law enforcement, or that it was purchased at a price substantially below market price.

Assuming evidence such as that mentioned does not exist, go ahead, put your client on the stand and get that JOA!

[1] Fla. Standard Jury Instructions in Criminal Cases, 14.2