          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                         No. 1D16-1706
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KESHON BRAINARD WILLIAMS,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Duval County.
Mark Borello, Judge.

                        February 28, 2018


WINSOR, J.

     A jury convicted Keshon Williams of attempted second-degree
murder, possession of a firearm by a convicted felon, and two
counts of aggravated assault with a deadly weapon. Williams
received a thirty-year sentence for the attempted murder, another
thirty-year sentence for the firearm possession, and shorter
concurrent terms for the aggravated assaults. On appeal, Williams
challenges only the aggravated assault convictions.

     The events that led to Williams’s convictions all took place at
some sort of neighborhood bonfire. Williams was there, as was his
longtime friend Elroy Howard. In a tense and profane exchange,
Williams accused Howard of speaking ill of Williams’s
grandmother. For whatever reason, Williams then pulled out a
MAK-90 semiautomatic rifle, pointed it at Howard, and fired off
several shots in Howard’s general direction. 1 This was the basis for
the attempted murder and firearm-possession convictions, neither
of which Williams challenges.

     That leaves the two aggravated assault convictions, which
Williams argues are not supported by evidence. The victims of the
charged assaults were two of Williams’s other longtime friends,
Fredrika Dixon and Gary Byrd, who were standing nearby when
Williams shot at Howard. Williams argues that he never actually
threatened either of them, so the trial court should have granted
his acquittal motion as to the assault charges. We review this claim
de novo. Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002).

     It is true that there was no evidence that Williams pointed his
gun at Dixon or Byrd. And it is true that there was no evidence
that Williams explicitly threatened either of them. He never said,
for example, “I’m going to kill you.” Cf. Schepman v. State, 146 So.
3d 1278, 1285 (Fla. 5th DCA 2014). But an aggravated assault
conviction requires neither a pointed gun nor an explicit threat.
Instead, it requires an “assault,” see section 784.021(1)(a), Florida
Statutes (2014), which is “an intentional, unlawful threat by word
or act to do violence to the person of another, coupled with an
apparent ability to do so, and doing some act which creates a well-
founded fear in such other person that such violence is imminent.”
§ 784.011(1), Fla. Stat. (2014). 2 So the first question is whether a
reasonable jury could have concluded from the evidence that
Williams intentionally and unlawfully threatened Dixon and Byrd
“by word or act.” In addressing this question, we consider the
evidence in a light most favorable to the State. See Lukaszewski v.
State, 111 So. 3d 212, 213 (Fla. 1st DCA 2013).



    1One detective referred to the rifle as an AK-47, but a Florida
Department of Law Enforcement firearms analyst testified it was
a MAK-90.
    2 It also requires “a deadly weapon without intent to kill” or
“an intent to commit a felony.” § 784.021(1). There is no dispute
that Williams had a deadly weapon.

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     The jury heard evidence that Williams told Howard he wanted
to kill him “so bad” he could “taste it.” Around the same time,
Williams said of Dixon and Byrd: “If those two motherfuckers want
to stand right there I’ll kill your ass. I know them two bitches going
to put me in prison.” Williams then started shooting in several
directions—not just towards Howard—striking a fence, a gate, a
chair, and a house. At some point, Byrd confronted Williams,
trying to convince Williams to stop. Williams responded with a
racial slur and a demand that Byrd “shut the hell up.” Byrd and
Dixon both hid behind a vehicle until Williams rode away on his
bicycle.

     From these facts, we have little trouble concluding that a
reasonable jury could find Williams intentionally threatened Byrd.
When Williams demanded that Byrd shut up, Williams was armed
with a semiautomatic rifle, had just tried to kill someone, and had
just screamed a racial slur at Byrd. A jury could infer from this
that the demand to “shut the hell up” was more than an everyday
request—that it was an intentional threat to harm Byrd if he
continued talking. Cf. Manuel v. State, 16 So. 3d 833, 835 (Fla. 1st
DCA 2005) (“[T]aking the evidence in a light most favorable to the
State, intent can be inferred from the circumstances of the
incident.”).

     It is a closer call as to Dixon. Williams said if Dixon wanted to
stand where she stood, “I’ll kill your ass,” presumably referring to
Howard. He also said that she “might want to move out from
around here”—or something like that. And he said he knew she
would put him in prison. Although we cannot discern exactly what
Williams hoped to communicate, a reasonable jury could conclude
from these statements—and the surrounding circumstances—that
Williams intentionally threatened Dixon with harm.

     Last, as to both Byrd and Dixon, a reasonable jury could find
Williams had an apparent ability to do harm and that his firing
the rifle and trying to kill someone would create a well-founded
fear that violence was imminent. The trial court correctly denied
the motion for judgment of acquittal.

    AFFIRMED.

LEWIS and ROBERTS, JJ., concur.
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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Andy Thomas, Public Defender, and Barbara J. Busharis,
Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Kaitlin Weiss, Assistant
Attorney General, and Virginia Harris, Assistant Attorney
General, Tallahassee, for Appellee.




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