Schepman v. State

146 So. 3d 1278, 2014 WL 4648308
CourtDistrict Court of Appeal of Florida
DecidedSeptember 19, 2014
DocketNos. 5D13-2290, 5B13-2813
StatusPublished
Cited by2 cases

This text of 146 So. 3d 1278 (Schepman v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schepman v. State, 146 So. 3d 1278, 2014 WL 4648308 (Fla. Ct. App. 2014).

Opinion

PER CURIAM.

Co-defendants Kent Schepman and James Asbury (collectively, “Defendants”) appeal their convictions and sentences for principal to aggravated assault with a firearm, raising the same issue on appeal. They argue that the trial court committed fundamental error by giving a jury instruction that allowed the jury to find them guilty if they threatened one victim and caused fear in another. While the instruction was erroneous, the error was not fundamental because the threats and resulting fear related to both victims. Accordingly, we affirm because the error did not reach down into the validity of the trial to the extent that a guilty verdict could not have been obtained without the assistance of the alleged error.

Charging Document

Defendants were charged together by information as principals to aggravated assault with a firearm, as follows:

JAMES VICTOR ASBURY ... and KENT MICHAEL SCHEPMAN ... did unlawfully and intentionally threaten by word or act to do violence to the person of DANIEL ALDERSON or JEANEAN BIGOGNO or both, coupled with an apparent ability to carry out said threat, and utilized a deadly weapon, to wit: a firearm, without the intent to kill, and did an act or acts which created a well-founded fear in DANIEL ALDERSON or JEANEAN BIGOGNO or both that such violence was imminent and during the course of the commission of the offense KENT MICHAEL SCHEPMAN ... actually possessed and discharged a “firearm” ....

Relevant Trial Testimony

Defendants were tried together. Daniel Alderson testified that in 2012, he, his ex-wife, Jeanean Bigogno, their teenage daughter, and their three dogs moved into a home in Umatilla, Florida, located next door to Asbury. After they cleaned up the yard, they had a problem with feral cats coming into the yard and attacking their small dogs (two dachshunds and a pug). The cats also caused their yard and home to become infested with fleas. The cats seemed to be coming from Asbury’s yard. Alderson obtained a trap from Marion [1280]*1280County Animal Services and began trapping the cats. After they trapped the first cat, Asbury looked at it and said that it was not his cat. He told Alderson to let him know if they continued to have problems. Alderson trapped about ten more cats over the next few weeks.

On October 16, 2012, Alderson called Animal Services and asked them to pick up another cat in the trap. He was painting his back porch when he heard voices and banging noises outside. He peeked out the window and saw Asbury hollering and banging on metal. Alderson could not make out all of the words, but he could discern that Asbury wanted his cat and was trying to get it. After Bigogno told Alderson what she had heard, Alderson called the sheriffs non-emergency phone number to alert the sheriffs department of the situation. He did not want anything to happen to the Animal Services employee when she came to pick up the trapped cat.

After Alderson hung up, he and Bigogno continued listening to Asbury, who became increasingly agitated, saying he wanted his cat. Then Asbury said he was going to get his gun and left on his scooter. A few minutes later, Alderson heard more voices coming from Asbury’s property. He heard someone say, “I’m going to get your dogs. I’m gonna get you. I’m gonna kill you. I’m gonna kill you all.” Asbury was screaming loudly. Then Alderson heard a single gunshot and called 911.

The State published the 911 call. Aider-son told the operator, “There’s a whole bunch of shots going off right now outside of our house.” Alderson and Bigogno could not see where the shots were going because they were inside their home listening.

OPERATOR: You heard approximately six shots from the neighbor’s house?
MR. ALDERSON: Yes, absolutely, and they were hooting and hollering about how they were going to get everybody and they’re going to go get a gun and they’re going to shoot everybody and they’re going to kill everybody and if they can’t get their cat, they’re going to kill everybody and hollering and stuff like that, so — and then the shots are already coming out, so I think we’re about to be dead so I think that someone should come here.
[[Image here]]
OPERATOR: Okay. Can you see where they’re at now?
MR. ALDERSON: I’m afraid to. I mean, we’re sitting in the living room and that’s about 30 feet away from the back door. We don’t go any closer.
[[Image here]]
OPERATOR: And you cannot see what they are doing?
MR. ALDERSON: Not at this point, no. And I’m not going to go and look either. But with the threats that they yelled, the kind of threat that they yelled and this has been going on, now, for about a good 20 minutes or so and then with the gunshots going off, I think that’s—
[[Image here]]
MR. ALDERSON: ... You have to excuse me. I’m a little bit rattled. I’ve never had this happen.
[[Image here]]
OPERATOR: And they were shooting as I was talking to you, correct?
MR. ALDERSON: Did you hear them, because yes—
OPERATOR: I heard something that went pow, pow, pow, like that.
MR. ALDERSON: That was it.
[[Image here]]
MR. ALDERSON: I hate to ask this question because I know you probably don’t know, but how long?
[1281]*1281OPERATOR: Okay. They’re coming to you as fast as they can. I really don’t— can’t advise.
[[Image here]]
OPERATOR: Okay. Can you lock your doors?
MR. ALDERSON: I’m kind of afraid to go back there because it’s just — I know, so I don’t — I know the front door’s locked but the back door’s not.
[[Image here]]
MR. ALDERSON: He says he needs more gunpowder?
MS. BIGOGNO: Yes.
MR. ALDERSON: Well, my ex-wife just told me that she was listening by the kitchen and she heard him say he needs more gunpowder.

Police arrived and the call ended.

When he heard the first gunshot, Aider-son was scared for his life and his ex-wife’s life. When he heard the second gunshot, he jumped. “It was loud. And I was pretty sure at that point that something was going to happen to me or the house or to both.”

On cross-examination, Alderson stated that Asbury’s voice was the prevalent voice, the one he recognized making verbal threats. Neither defendant came into his home. Alderson never found any bullet holes or other indication that the gunshot hit his house, and he had no idea then or at trial where the shots were aimed.

The 911 dispatcher testified that she heard what sounded like gunshots while she was on the 911 call with Alderson.

Jeanean Bigogno testified that on that day of the incident, she was watching TV when she heard howling and yelling and banging outside through the open windows.

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Related

Keshon Brainard Williams v. State of Florida
238 So. 3d 915 (District Court of Appeal of Florida, 2018)
Zairon Jarquis Fussell v. State of Florida
154 So. 3d 1233 (District Court of Appeal of Florida, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
146 So. 3d 1278, 2014 WL 4648308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schepman-v-state-fladistctapp-2014.