Watson v. State

133 So. 3d 1120, 2014 WL 493996, 2014 Fla. App. LEXIS 1621

Opinion

THOMAS, J.

Appellant appeals his conviction of two counts of aggravated assault involving victims Ibri Bryant and Jerome Lee Jones, respectively. Appellant contends that because the evidence was legally insufficient to support a conviction on those charges, the trial court erred in denying his motion for judgment of acquittal. Appellant also contends the trial court erred by giving the State’s requested jury instruction on aggravated assault. We affirm without further comment the conviction of aggravated assault as to victim Bryant, and the trial court’s ruling on the State’s requested jury instruction. We conclude, however, that the evidence was legally insufficient to establish an aggravated assault conviction as to victim Jones and, therefore, reverse on that count. See Wesson v. State, 899 So.2d 382, 383 (Fla. 1st DCA 2005) (holding State has burden of proving each element of an offense “and that it must, in order to avoid the entry of a judgment of acquittal, produce legally sufficient evidence of each element.”). Pursuant to section 924.34, Florida Statutes, we remand with instructions to the trial court to enter a judgment against Appellant for the lesser-included offense of improper exhibition of a firearm on that count, in violation of section 790.10, Florida Statutes, and resen-tence Appellant accordingly.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

MARSTILLER and MAKAR, JJ., concur.