Opinion
No. 2D01-3008.
March 8, 2002.
Appeal from the Circuit Court for Sarasota County, Lee E. Haworth, J.
James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Ha T. Dao, Assistant Attorney General, Tampa, for Appellee.
The trial court adjudicated C.C, delinquent for three counts of aggravated assault with a firearm. C.C. argues that the evidence was insufficient to sustain the charges as to counts two and three. We agree with this argument and reverse as to counts two and three only. We affirm as to count one.
The charges arose from the allegation that C.C. had pointed a gun at three children. At the adjudicatory hearing, the State's case rested upon the testimony of the seven-year-old victim involved in count one. The seven-year-old child's testimony was insufficient to show that the three-year-old victims involved in counts two and three were cognizant of the gun and were placed in fear by C.C.'s actions. Therefore, as to counts two and three, the State failed to prove the assault element that the victims were placed in fear of imminent violence. See § 784.011(1), Fla. Stat. (2001); State v. Von Deck, 607 So.2d 1388, 1389 (Fla. 1992) (stating that an essential element of any assault is "an act creating a well founded fear in the victim that violence is imminent"). Accordingly, we reverse and remand for the trial court to discharge the adjudications in counts two and three.
Affirmed in part; reversed in part and remanded.
COVINGTON, J. and THREADGILL, EDWARD F., Senior Judge, Concur.