         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D17-1595
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JAMES NEIL WALLACE,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Escambia County.
Gary L. Bergosh, Judge.

                         March 22, 2018


PER CURIAM.

     Appellant, James Neil Wallace, challenges his conviction for
aggravated assault and raises two issues on appeal, only one of
which merits discussion. Appellant argues, and we agree, that the
trial court erred in denying his motion for judgment of acquittal.
We, therefore, reverse the conviction and remand.

     The State charged Appellant with two counts of aggravated
assault by threat with a deadly weapon, one of which involved a
motor vehicle and one of which involved a cane. During the State’s
case, the victim testified that Appellant, his “biological father”
whom he had not seen in twenty years, came to his residence
notwithstanding an injunction prohibiting such.        On direct
examination, the victim testified, “I open the door, tell him to
leave, start cussing each other, and then he gets mad and lunges
at me with his cane. I step back to nail him, and he stepped back
himself, and then we cussed each other some more.” The victim
acknowledged on cross-examination that Appellant did not swing
the cane at him like someone would swing a baseball bat or a golf
club. He testified, “Like, one side, one hand holding it [the cane]
braced, and the other side forcing it in.” He affirmatively
responded when asked if Appellant pushed the cane toward him.
After the State rested its case, defense counsel moved for a
judgment of acquittal, arguing that the cane was not a deadly
weapon and that it was not reasonable to conclude that the victim
had a well-founded fear of Appellant. The prosecutor asserted in
part that “being struck with a cane can certainly break someone’s
bones, or cause any other form of great bodily harm.” The trial
court denied Appellant’s motion, along with his renewed motion
made after the defense rested its case. The jury found Appellant
not guilty of aggravated assault involving a motor vehicle, but
guilty of the offense involving the cane. This appeal followed.

     The question presented by a motion for judgment of acquittal
is whether, in the light most favorable to the State, the evidence is
legally adequate to support the charge. Perez v. State, 138 So. 3d
1098, 1100 (Fla. 1st DCA 2014). If competent, substantial evidence
is presented to support a conviction, an appellate court generally
will not reverse the denial of a motion for judgment of acquittal.
Id. A trial court’s ruling on such a motion is reviewed on appeal
de novo. Id. In reviewing a trial court’s ruling, an appellate court
must consider the evidence and all reasonable inferences from the
evidence in a light most favorable to the State. Id.

      An assault 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). Aggravated assault is “an assault
[w]ith a deadly weapon without intent to kill.” § 784.021(1)(a), Fla.
Stat. (2014). Whether an object is a deadly weapon is not to be
determined upon its capability of producing death, but rather on
its likelihood to produce death or great bodily injury. Rudin v.
State, 182 So. 3d 724, 726 (Fla. 1st DCA 2015); see also D.B.B. v.
State, 997 So. 2d 484, 485 (Fla. 2d DCA 2008) (noting that a deadly

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weapon is an item which, when used in the ordinary manner
contemplated by its design, will or is likely to cause death or great
bodily harm or any instrument likely to cause great bodily harm
because of the way it is used during a crime and “[w]hether an item
is a deadly weapon is a factual question to be determined under
the circumstances, taking into consideration its size, shape,
material, and the manner in which it was used or was capable of
being used”).

     We agree with Appellant that the State’s evidence regarding
the cane was insufficient to support the charge of aggravated
assault. Although a cane could certainly constitute a deadly
weapon in certain circumstances, the victim’s testimony that
Appellant lunged at him with the cane or pushed or forced his cane
toward him during a verbal altercation and that both men then
stepped backward did not establish that Appellant used the cane
in a manner likely to produce death or great bodily harm. While
the prosecutor correctly argued below that being struck with a
cane could cause great bodily harm, there was no testimony
presented in this case that Appellant struck the victim, and,
according to the victim, Appellant did not swing the cane at him
like one would swing a baseball bat or golf club. Instead, the cane
was pushed or forced toward Appellant. Based upon the evidence,
we hold that the trial court erred in denying Appellant’s motion for
judgment of acquittal. See J.L. v. State, 60 So. 3d 462, 463 (Fla.
1st DCA 2011) (holding that a plastic fork that was used to stab
the victim in the neck did not constitute a deadly weapon under
the circumstances present in the case); D.B.B., 997 So. 2d at 485
(reversing the adjudication for aggravated assault where the
appellant cursed at his mother and threw his bicycle at her, forcing
her to step back to prevent the bicycle from hitting her, and
reasoning that the manner in which the bicycle was used did not
make it likely to cause death or great bodily harm); D.C. v. State,
567 So. 2d 998, 1000 (Fla. 1st DCA 1990) (holding that there was
insufficient evidence to support the trial court’s conclusion that the
deodorant spray used at close range constituted a deadly weapon);
E.J. v. State, 554 So. 2d 578, 579 (Fla. 3d DCA 1989) (holding that
the evidence did not establish aggravated assault where the
appellant threw a skateboard at a vehicle); Rogan v. State, 203 So.
2d 24, 25 (Fla. 3d DCA 1967) (holding that there was not sufficient
evidence upon which the trier of fact could properly determine that

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the flower pot was of such character to be classified as a deadly
weapon where the pot was thrown from outside into a window of a
residence, the “complaining witness” was inside seated in a chair
five feet from the window, and the flower pot broke the glass but
did not penetrate the screen).

    Accordingly, we REVERSE the aggravated assault conviction
and REMAND with instructions that the trial court enter an
amended judgment for the offense of simple assault and sentence
Appellant for that offense.

B.L. THOMAS, C.J., and LEWIS and MAKAR, 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, David A. Henson, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Amanda D. Stokes, Assistant
Attorney General, Tallahassee, for Appellee.




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