        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                         ROGER E. CARUTHERS,
                              Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                              No. 4D16-1567

                            [November 1, 2017]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Mindy F. Solomon, Judge; L.T. Case No. 13-6550 CF10A.

   Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public
Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Richard
Valuntas, Assistant Attorney General, West Palm Beach, for appellee.

LEVINE, J.

   Appellant appeals his convictions for two counts of aggravated assault
with a firearm, challenging the admission of a video recording and the trial
court’s refusal to instruct the jury on a lesser included offense. We find
no error in admitting the video recording into evidence. However, we find
that, based on the charging document and evidence adduced at trial,
improper exhibition of a firearm was a permissive lesser included offense
of attempted first-degree murder. We further find that the trial court
committed per se reversible error in refusing to give the instruction, as it
was one step removed from the convicted offense.

    A woman had a verbal altercation with appellant at a convenience store.
During the altercation, appellant pulled out a gun, hit the gun on the
counter, and said he had a bullet for the woman and her fiancé. The
woman left the store and went across the street to the park. Appellant
followed her, repeatedly yelling that he was going to kill her and her family,
some of whom were also at the park. He later fired shots at the woman
and her aunt as they tried to drive away. Appellant was charged with two
counts of attempted first-degree murder.
    During trial, the court refused defense counsel’s request for an
instruction on improper exhibition of a firearm as a lesser included
offense. Instead, the trial court instructed the jury on the lesser included
offenses of attempted second-degree murder, aggravated assault with a
firearm, and simple assault. The jury convicted appellant of two counts of
aggravated assault with a firearm.

   We review the trial court’s decision not to give the requested jury
instruction de novo because the “facts are undisputed and the legal
determination to be made on appeal is whether an offense is a permissive
lesser included offense to the crime charged.” Piggott v. State, 140 So. 3d
666, 668 (Fla. 4th DCA 2014).

   The Florida Standard Jury Instructions identify necessarily lesser-
included offenses (category one) and permissive lesser-included offenses
(category two). See Moore v. State, 932 So. 2d 524, 527 (Fla. 4th DCA
2006). “Although the schedule is presumptively correct and complete, trial
courts are charged with the responsibility to determine and properly
instruct the jury on the prevailing law.” Williams v. State, 957 So. 2d 595,
599-600 (Fla. 2007) (citations, alteration, and quotation marks omitted).

   “A permissive lesser included offense exists when ‘the two offenses
appear to be separate [on the face of the statutes], but the facts alleged in
the accusatory pleadings are such that the lesser [included] offense cannot
help but be perpetrated once the greater offense has been.’” Sanders v.
State, 944 So. 2d 203, 206 (Fla. 2006) (alterations in original) (citation
omitted).   See also Amado v. State, 585 So. 2d 282, 282 (Fla. 1991)
(“Permissive lesser included offenses are those offenses that may or may
not be lesser included offenses depending on the pleadings and the
evidence presented.”). Upon request, the judge must instruct the jury on
permissive lesser included offenses of the crime charged which are
supported by the information and evidence. Wimberly v. State, 697 So. 2d
1272, 1273 (Fla. 4th DCA 1997).

    The schedule of lesser included offenses for first-degree murder lists
aggravated assault and simple assault as permissive lesser included
offenses. See Fla. Std. Jury Instr. (Crim.) 6.2. Additionally, the schedule
of lesser included offenses for aggravated assault lists both improper
exhibition of a firearm and assault as necessarily included offenses. See
Fla. Std. Jury Instr. (Crim.) 8.2.

   As the state correctly concedes, improper exhibition of a firearm is a
lesser included offense in this case. The elements of improper exhibition

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of a firearm are: (1) having or carrying a firearm; (2) exhibiting the firearm
in a rude, careless, angry, or threatening manner, and (3) doing so in the
presence of one or more persons. See Fla. Std. Jury Instr. (Crim.) 10.5;
see also § 790.10, Fla. Stat. (2013). As to one victim, the information
alleged that appellant “did brandish and discharge a firearm in the
direction of [the victim] while verbally threatening [the victim] and others.”
As to the other victim, the information alleged that appellant “did run
toward [the victim] and others while discharging a firearm and verbally
threatening to kill them.” Additionally, the evidence at trial supported
each of the elements of improper exhibition of a firearm.

    The failure to instruct on the next immediate lesser-included offense,
one step removed from the offense of conviction, constitutes per se
reversible error. Daugherty v. State, 211 So. 3d 29 (Fla. 2017); McCloud v.
State, 209 So. 3d 534 (Fla. 2017). This is because the jury must be given
“a fair opportunity to exercise its inherent ‘pardon’ power by returning a
verdict of guilty as to the next lower crime.” State v. Abreau, 363 So. 2d
1063, 1064 (Fla. 1978). Where, however, “the trial court fails to properly
instruct on a crime two or more degrees removed from the crime for which
the defendant is convicted, the error is not per se reversible, but instead
is subject to a harmless error analysis.” Pena v. State, 901 So. 2d 781,
787 (Fla. 2005).

    The state argues that the error was harmless because the jury was
instructed on the lesser included offense of assault. Although both assault
and improper exhibition of a firearm are listed as necessarily included
lesser offenses of aggravated assault, they are not comparable lesser
offenses because they are different degrees. Assault is a second-degree
misdemeanor whereas improper exhibition of a firearm is a first-degree
misdemeanor. See §§ 784.011, 790.10, Fla. Stat. Thus, only improper
exhibition of a firearm was one step removed from the convicted offense of
aggravated assault with a firearm, a third-degree felony. See § 784.021,
Fla. Stat. Assault was two steps removed.

   Because assault and improper exhibition of a firearm are not
comparable lesser included offenses, the state’s reliance on McCloud v.
State, 209 So. 3d 534 (Fla. 2017), is misplaced. In that case, error in
instructing on a lesser included offense one step removed from conviction
was harmless where the jury was properly instructed on other lesser
included offenses also one step removed from conviction.

   Appellant also challenges the admission of the video depicting the
altercation in the convenience store. Because the state may seek to
introduce the video during trial, we consider this issue and find that the

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trial court did not abuse its discretion in admitting the video. The video
was “inextricably intertwined” with the incident at the park and relevant
to show appellant’s state of mind.

    In sum, because the trial court failed to instruct on an offense one step
removed, the error is per se reversible. See Ammons v. State, 623 So. 2d
807, 809 (Fla. 1st DCA 1993). As such, we reverse and remand for a new
trial.

   Reversed and remanded.

GERBER, C.J., and MAY, J., concur.

                            *         *        *

   Not final until disposition of timely filed motion for rehearing.




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