         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D17-2861
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ARON C. TASH,

    Appellant,

    v.

AARON J. ROGERS o/b/o Minor
Child E.R.,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Columbia County.
Paul S. Bryan, Judge.

                          July 9, 2018

B.L. THOMAS, C.J.

    Aron Tash appeals a final judgment granting a permanent
injunction for protection against repeat violence in favor of
Appellee, Aaron Rogers, and his daughter, E.R. We reverse.

     Rogers is married to Appellant’s ex-wife, and the record
demonstrates the discordant relationship between the two men
and their families; however, the record does not support a finding
that Appellant committed two incidents of violence against
Rogers, E.R., or another member of their immediate family
within the meaning of section 784.046(1)(b), Florida Statutes
(2017). “Violence” is defined as “any assault, aggravated assault,
battery, aggravated battery, sexual assault, sexual battery,
stalking, aggravated stalking, kidnapping, or false imprisonment,
or any criminal offense resulting in physical injury or death . . . .”
§ 784.046(1)(a), Fla. Stat. (2017). “Repeat violence” is defined as
“two incidents of violence or stalking committed by the
respondent, one of which must have been within 6 months of the
filing of the petition, which are directed against the petitioner or
the petitioner’s immediate family member.” § 784.046(1)(b), Fla.
Stat. (2017).

     As we have previously held, “[c]ompetent, substantial
evidence must support the trial court’s finding that two incidents
of repeat violence occurred.” Russell v. Doughty, 28 So. 3d 169,
170 (Fla. 1st DCA 2010) (citing Shocki v. Aresty, 994 So. 2d 1131,
1132 (Fla. 3d DCA 2008); Clement v. Ziemer, 953 So. 2d 700, 702
(Fla. 5th DCA 2007); Santiago v. Towle, 917 So. 2d 909, 910 (Fla.
5th DCA 2005)).

     The record here contains allegations of three incidents
involving Appellant and Rogers or E.R. In the first incident, the
evidence established that Appellant spit in Rogers’ face and
threatened to kill him. Because intentionally spitting in a
person’s face constitutes battery, see, e.g., Mohansingh v. State,
824 So. 2d 1053 (Fla. 5th DCA 2002), this incident qualified as
one of the requisite acts of violence, although it occurred more
than six months before the petition was filed. See § 784.046(1)(a),
Fla. Stat. (listing battery as an act of violence); § 784.046(1)(b),
Fla. Stat. (providing that only one of the acts of violence on which
an injunction is predicated must have occurred within six months
of the petition).

     As to the other two acts, which both occurred within six
months of the date Rogers filed the petition, Appellant argues
that neither incident constituted an act of violence. During one
incident, Appellant allegedly approached Rogers’ ten-year-old
daughter, E.R., at her elementary school and made inappropriate
remarks about her being “messed up” because of her parents.
Because there was no allegation that Appellant made physical
contact with or threatened any harm to E.R., this incident was
not a violent act under section 784.046(1)(a), Florida Statutes.

   With regard to the other incident, Rogers alleged that
Appellant approached him, looked at him, and said under his

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breath that he would kill Rogers and his family. Rogers alleged
that he knew Appellant carried a pocketknife and knew
Appellant had been previously convicted of attempted aggravated
assault, but did not allege that Appellant displayed the knife or
committed any other overt act beyond the threatening statement.

      Appellant’s threat did not constitute an assault or any other
enumerated act of violence under section 784.046(1)(a). “An
‘assault’ is defined as ‘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.’” Gagnard v. Sticht, 886 So. 2d 321, 322 (Fla. 4th DCA
2004) (quoting § 784.011(1), Fla. Stat. (2003)). Threatening to
kill someone is insufficient to constitute an assault if there is no
evidence of an “overt act[] indicating an ability to carry out the
threat[] or justifying a belief . . . that violence was imminent.” Id.
(citing Johnson v. Brooks, 567 So. 2d 34, 35 (Fla. 1st DCA 1990));
see also Perez v. Siegel, 857 So. 2d 353, 355 (Fla. 3d DCA 2003)
(explaining that verbal threats, without an act creating a well-
founded fear of imminent violence, were insufficient to qualify as
assault).

     Appellate courts apply an objective standard in determining
whether a reasonable person would experience a well-founded
fear of imminent harm. “We have rejected the view that the state
must meet both an objective and subjective standard.” Fussell v.
State, 154 So. 3d 1233, 1236 n.5 (Fla. 1st DCA 2015) (citing
Thomas v. State, 989 So. 2d 735, 736 (Fla. 1st DCA 2008) (“In
determining whether a victim was put in fear . . . the question is
whether the circumstances surrounding the incident would cause
a reasonable person to be afraid, not whether the victim was
actually afraid.”)); L.R.W. v. State, 848 So. 2d 1263, 1266 (Fla. 5th
DCA 2003) (“There is moreover, no requirement that the victim of
an assault actually testify to his or her state of mind. If the
circumstances are such as would ordinarily induce fear in the
mind of a reasonable person, then the victim may properly be
found to have been in fear.” (citation omitted)).

   Here, the record lacks any evidence that Appellant
committed any act evidencing his ability to carry out the threat,

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thus, there was no evidence that would support a finding that a
reasonable person would experience a well-founded fear that
violence was imminent. Accordingly, the record does not contain
competent, substantial evidence of two incidents of violence
committed by Appellant against Rogers, E.R., or another member
of their immediate family. Russell, 28 So. 3d at 170.

    REVERSED.

BILBREY and JAY, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Chris M. Pratt, Palmetto, for Appellant.

No appearance for Appellee.




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