       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                           RODNEY THOMAS,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D19-935

                              [May 20, 2020]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Jeffrey J. Colbath, Judge; L.T. Case No.
502017CF002986AXXXMB.

   Carey Haughwout, Public Defender, and Siobhan Helene Shea, Special
Assistant Public Defender, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Richard Valuntas,
Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

    Rodney Thomas appeals his conviction for burglary with an assault or
battery, possession of burglary tools, and grand theft from a dwelling, for
which he received a life sentence as a prison releasee reoffender. He raises
eight issues on appeal, none of which require reversal of his convictions.
We write on the first issue to align ourselves with Pinkney v. State, 74 So.
3d 572 (Fla. 2d DCA 2011), holding that intent to do violence to the victim
is not an element of assault. Instead, the State must prove that the
defendant committed an intentional act which would put the victim in fear
of imminent violence.

   An eighty-year-old woman returned home one evening to find her
bedroom in disarray and a man crouching near a bureau. She yelled at
him, and he threw a very large glass bottle at her. She dodged the bottle
and it hit the wall and shattered. The man escaped. Appellant was
apprehended near the scene with a bag of jewelry which the victim
identified as belonging to her.
    After the presentation of evidence at trial, appellant moved for a
judgment of acquittal arguing, among other matters, that the State had
failed to prove that the glass bottle was thrown with the intent to threaten
violence to the victim. The court denied the motion, and appellant was
convicted on all charges. He appeals.

   Appellant was charged with burglary with an assault or battery under
section 810.02(1) and (2)(a), Florida Statutes (2017), which provides:

      810.02 Burglary.-

      ....

      (2) Burglary is a felony of the first degree, punishable by
      imprisonment for a term of years not exceeding life
      imprisonment . . . if, in the course of committing the offense,
      the offender:

      (a) Makes an assault or battery upon any person . . . .

Section 784.011(1), Florida Statutes (2017) defines “assault” as:

      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.

Thus, to enhance the burglary charge, the State had to prove that
appellant committed an assault during the course of the burglary.

    On appeal, appellant argues the State failed to prove an assault,
because there was no evidence of his intent, contending that an intentional
threat to do violence to the victim is an essential element of assault. His
act of throwing the glass could have been simply a diversion to allow his
escape and not an intent to harm the victim. He cites to State v. Shorette,
404 So. 2d 816 (Fla. 2d DCA 1981). However, the Second District receded
from Shorette, in Pinkney v. State, 74 So. 3d 572, 576 (Fla. 2d DCA 2011).
It held:

      Section 784.011(1) requires proof of an intentional threat that
      creates a fear of imminent violence. Thus, to satisfy the intent
      element the State must prove that the defendant did an act
      that was substantially certain to put the victim in fear of

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      imminent violence, not that the defendant had the intent to
      do violence to the victim.

Similarly, in Campbell v. State, 37 So. 3d 948, 950 (Fla. 5th DCA 2010),
the court construed the statute and said:

      [n]owhere does either statute [section 784.011 and 784.021]
      require as an element of the crime that the accused had to
      intend to do physical harm to the victim. The only intent
      inherent in the statutes is the intention to make a threat to do
      violence.

Applying these holdings to this case, the State did not have to prove that
appellant had the specific intent to do violence to the victim when he threw
the bottle at her. All the State had to show was that Thomas did an act
that was substantially certain to put the victim in fear of imminent
violence. The trial court did not err in denying the judgment of acquittal.

    Appellant cites to Lavin v. State, 754 So. 2d 784, 787 (Fla. 3d DCA
2000), which cites to Shorette for the proposition that “[a]ggravated assault
requires proof of a specific intent to do violence to the person of another.”
Lavin was decided prior to Pinkney or Campbell. Further, the statement
was not a holding of the case, which involved the admissibility of evidence
of post-arrest threats to the victim and police officers. Therefore, we deem
it inapplicable.

   As the remaining issues raised are either not error or are harmless
beyond a reasonable doubt, we affirm without further comment, see State
v. DiGuilio, 491 So. 2d 1129 (Fla. 1986), with the exception of Appellant’s
claim of fundamental error. He argues that the trial court discussed and
answered jury questions in his absence, violating his right to be present
at all crucial stages of the proceedings. However, appellant opted to be
away from court for some medical treatment. Before he left he discussed
his right to be present with his attorney. After that discussion, his
attorney waived his presence during jury deliberations. Further, appellant
does not argue that the court’s answers to the jury’s purely legal questions,
were erroneous, and in any case his counsel was present and did not
object. Thus, no error, fundamental or otherwise, occurred. See Meek v.
State, 487 So. 2d 1058 (Fla. 1986).

   For the foregoing reasons we affirm appellant’s conviction and
sentences.

DAMOORGIAN and KUNTZ, JJ., concur.

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                      *        *        *

Not final until disposition of timely filed motion for rehearing.




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