You Cannot Be Guilty of Aggravated Assault Unless You Are Also Guilty of Assault

          If you have been charged with assault or aggravated assault in West Palm Beach, Palm Beach, Belle Glade, Boynton Beach, Delray Beach, Jupiter, Lake Park, Lake Worth, Lantana, North Palm Beach, Palm Beach Gardens, Palm Springs, Riviera Beach, Royal Palm Beach, or Wellington, call me, attorney Ron Chapman, at 561-832-4348 to discuss your case and see how I might be able to help you.

          The crime of aggravated assault is defined as an assault:

          1.  With a deadly weapon without intent to kill; or 

          2.  With an intent to commit a felony.

          The crime of assault requires proof that there was:

          1.  An intentional, unlawful threat by word or act to do violence to the person of another;

          2.  Coupled with an apparent ability to do so; and

          3.  Doing some act which creates a well-founded fear in that other person that such violence is about to occur.

          In the case of Carlos Benitez versus the State of Florida, Mr. Benitez was convicted of aggravated assault on a law enforcement officer with a firearm.  The relevant facts of that case are as follows:

          "Using the public address system, the deputy directed [Benitez] to stop his vehicle and turn off the ignition.   [Benitez] stopped and kept his foot on the brake.   He did not turn off the ignition.

          The deputy exited his patrol car and approached [Benitez].   He detected a strong odor of alcohol, noticed [Benitez'] eyes were glassy and bloodshot, and saw several beer cans in the vehicle.   Because [Benitez] did not turn off the ignition, the deputy reached in the truck, turned off the ignition, and removed the keys.

          The deputy asked [Benitez] for his license and registration.   [He] had neither.   [Benitez] told the deputy that a friend owned the truck, but did not know he had taken it.   The deputy asked [him] to open the glove compartment to see if he could locate the registration.   At that point, [Benitez'] demeanor changed.   He ignored the instruction and looked straight ahead.   [He] then leaned slightly forward, moved his hand off the gear shift and placed it behind the small of his back.

          The deputy testified that such gestures are considered 'a danger cue' that police officers are trained to watch for.   He ordered [Benitez] to keep his hands where he could see them, and asked him what he was trying to retrieve.   [Benitez] did not answer and did not remove his hands from the small of his back.

          The deputy's concern heightened when [Benitez] continued to ignore him.   He stepped back and started looking in the area where [Benitez] was keeping his hands.   The deputy saw [he] had something behind his back and became 'seriously concerned' that [Benitez] was arming himself with a weapon.   The deputy ordered [him] to drop what was in his hand.  [He] looked at the deputy with a 'blank stare,' and then looked behind his back.   The deputy testified he was in 'absolute fear at that point that something [bad was] about to happen.'

          At this point, the deputy opened [Benitez'] door, took control of his left arm, and pushed him into the steering wheel.   He looked behind [Benitez] and saw that his hand was holding a dark-colored pistol.   The gun was 'almost upside down pointing down at an angle in the open space, it would almost-pointed almost directly like my knees pointed in that area behind his back.'   [Benitez] was holding the gun 'in what would be considered a firing or shooting grip and his hand was rotating down behind his back to where the-his hand and the grip and the handgun itself were all inverted, they were all upside down.'   It was subsequently learned the gun was unloaded;  no bullets were found in the vehicle."

          On appeal, Benitez argued that the evidence presented at his trial did not show that he had threatened the deputy either by word or action.  If that was true, then he was not guilty of assault.  And if he was not guilty of assault,  then he was also not guilty of aggravated assault.

          Florida's Fourth District Court of Appeal agreed with Benitez.  The appellate court noted that although there was certainly enough evidence to support a well-founded fear on the part of the deputy due to Benitez' actions, the real issue was whether Benitez had intentionally and unlawfully threatened the deputy.

          The court ruled that Benitez had not done so for the following reasons:

           1.  Assault is a crime requiring intent.  The "threat" element of assault addresses a defendant's intent, not the reaction of the person perceiving the word or act.  In other words, it is the word or act of the defendant that must be examined in order to determine whether it constitutes a threat, not the reaction of the person perceiving that word or action.

          2.  In this case, Benitez' act of placing his hand behind his back, while certainly alarming to the deputy, was not substantial evidence that Benitez had intentionally and unlawfully threatened him.  Therefore, he was not guilty of assault and thus also not guilty of aggravated assault.