OD v. State

614 So. 2d 23, 1993 WL 40387

• Court: District Court of Appeal of Florida
• Decided: February 17, 1993
• Docket: 91-03347
• Status: Published

Opinion

614 So.2d 23 (1993)

O.D., a child, Appellant,
v.
STATE of Florida, Appellee.

No. 91-03347.

District Court of Appeal of Florida, Second District.

February 17, 1993.

James Marion Moorman, Public Defender, and Julius Aulisio, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Dale E. Tarpley, Asst. Atty. Gen., Tampa, for appellee.

PATTERSON, Judge.

This appeal arises from the state charging the appellant by juvenile petition with the assault of Patrick Dawson. Mr. Dawson and his wife testified that the appellant stated to Mr. Dawson: "Before I'm twenty-one, you will be dead." At the time the appellant made the statement, he did not have a weapon; Mr. Dawson was in his own yard behind a fence and the appellant was across the road. At the close of the state's case, the appellant made a motion for judgment of acquittal, which the trial court denied.

The state failed to prove the essential elements of assault. See § 784.011, Fla. Stat. (1991). The state's evidence failed to show that the appellant directed an overt act at Mr. Dawson to place him in fear. See Lifka v. State, 530 So.2d 371, 375 (Fla. 1st DCA 1988); Battles v. State, 288 So.2d 573 (Fla. 2d DCA), cert. denied, 295 So.2d 302 (Fla. 1974). The state's evidence also failed to show a well-founded fear that violence was imminent. See Johnson v. Brooks, 567 So.2d 34 (Fla. 1st DCA 1990). Thus, the trial court should have granted the appellant's motion for judgment of acquittal at the conclusion of the state's case.

Reversed.

FRANK, A.C.J., and BLUE, J., concur.