Bryant v. State

302 So.3d 995

Willie Clyde BRYANT Jr., Appellant,

v.STATE of Florida, Appellee.

No. 1D19-915

District Court of Appeal of Florida, First District.

August 17, 2020

Rehearing Denied September 21, 2020

Andy Thomas, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and David Welch, Assistant Attorney General, Tallahassee, for Appellee.

Rowe, J.

Willie Clyde Bryant Jr. appeals his judgment and sentence for two counts of aggravated assault with a deadly weapon, two counts of possession of a controlled substance, and one count of resisting an officer without violence.^* He asserts that he is entitled to reversal based on: 1) the trial court's denial of his motion for judgment of acquittal on the aggravated assault counts; 2) improper comments made by the prosecutor during closing arguments; and 3) the trial court's order denying his motion to correct sentencing errors. We affirm as to the first two issues, but we reverse as to the third.

Background

The charges against Bryant stemmed from a confrontation at Bryant's home among Bryant, Thomas Glass, and Jerry Tuggle. During his trial, Bryant, Glass, Tuggle, and the officers who responded to the incident testified.

Glass and Tuggle testified that they went to Bryant's house to collect money for a dog that Bryant bought from Tuggle. According to Tuggle, Bryant became irate and started arguing with them, eventually kicking the dog and telling Tuggle to take the dog back. So Tuggle took the dog and joined Glass at the home of their friends, who lived next door to Bryant. While they were outside talking, Glass saw Bryant walking around the side of his home and sticking a pistol in the front of his shorts. Tuggle stated that Bryant began waving the gun at them. Tuggle and Glass got into their truck to leave. As they were leaving, it looked to them like Bryant tried to pull the trigger of the gun, but it did not discharge. Concerned that their lives were being threatened, Tuggle and Glass drove off, and Glass called the police.

Sergeant Wayne Grandstaff and Deputy Damon Byrd testified that they responded to a call about a disturbance at Bryant's home. The caller reported that Bryant pointed a firearm at several people. When the officers arrived at Bryant's home, Bryant confronted and yelled at them, and he stepped in front of them. The officers eventually detained Bryant in the back of a patrol car because Bryant kept trying to reenter his home in defiance of the officers' orders to remain outside.

While Bryant was detained, Deputy Byrd obtained consent from Bryant's live-in girlfriend to search the home. Byrd searched the home and found a "chrome-plated pistol" matching the description of the gun reported by the caller. At first glance, the gun appeared to Deputy Byrd to be a Colt Python, .357 revolver. Sergeant Grandstaff also thought that the gun looked like a pistol. But the officers later learned it was a BB gun. Even so, Grandstaff testified that BB guns could still cause injuries. He had been shot with a BB gun before and suffered an injury. He also used BB guns for hunting, killing animals, and target practice.

Bryant took the stand and denied pointing the BB gun at anyone. He claimed that Glass and Tuggle were lying. He admitted that he owned two BB guns and that he shot squirrels and rabbits with the guns. The defense rested and closing arguments began.

During closing arguments, the prosecutor stated that Bryant's BB gun could be used as a deadly weapon and was capable of causing great bodily harm. The prosecutor argued that a BB gun could injure a person's eye, referring to the admonition repeated to the protagonist in the classic film, A Christmas Story , namely that with a BB gun, "you'll shoot your eye out." The prosecutor argued:

I expect you will be instructed that a weapon is a deadly weapon if it is used or threatened to be used in a way likely to produce death or great bodily harm. I know we just left the Christmas season. There's a very popular movie that's called The Christmas Story. Ladies and gentlemen, the one big take away from the entire movie, everybody keeps telling the kid, you're going to shoot your eye out with it. Ladies and gentlemen, you see the weapon here. You actually heard from Mr. Bryant himself that he had used these BB guns to hunt and kill animals. You also heard from Deputy Grandstaff that it could be used to hunt animals and cause wounds there.

Ladies and gentlemen, it is very clear that the way he threatened and was pointing the gun at them, if that weapon were to have been discharged, that person would have been afraid of being struck in the eye and potentially being blinded by a BB gun. So you cannot say that a BB gun cannot produce great bodily harm. It can easily produce blindness or other injuries to a person if they are struck in the right area. Soft areas like eyes or other parts of the body could be severely injured by a BB gun. You can't say just because it's a BB gun, it can't cause anybody any serious bodily harm. From the testimony provided by Deputy Grandstaff and even the defendant himself these weapons are capable of producing great harm. There was testimony about BB guns have been used to hunt animals and to kill the animals there.

The prosecutor repeated during rebuttal that a BB gun could injure a person's eye:

Speaking about whether a BB gun is a deadly weapon or not. Ladies and gentlemen, I believe it's clear. The testimony was that a BB gun is strong enough to kill a small animal. If it's strong enough to kill a small animal, it would be easy enough to put an eye out with.

....

What is the testimony again? The weapon was pointed at them. They could actually see the gun, see what it looked like; it was pointed in a direction that they were actually looking down the barrel of that BB gun. It was threatened at them. If it would have been discharged, it could have caused serious bodily injury.

The jury returned a verdict finding Bryant guilty. He was sentenced to five years on each count. This appeal follows.

Judgment of Acquittal

Bryant argues that the trial court reversibly erred when it denied his motion for judgment of acquittal. We review de novo the court's ruling on a motion for judgment of acquittal. See Moran v. State , 278 So. 3d 905, 908 (Fla. 1st DCA 2019). Judgment of acquittal is improper if the State presents competent, substantial evidence to establish every element of the crime. Id.

To prove that the BB gun was a deadly weapon, the State had to prove that the gun could be used "in a way likely to produce death or great bodily harm." Winbush v. State , 174 So. 3d 1088, 1089 (Fla. 1st DCA 2015). Whether a BB gun is likely to produce death or injury is a factual question for the jury to resolve. See Bass v. State , 232 So. 2d 25, 27 (Fla. 1st DCA 1970).

Bryant asserts that the State failed to prove by competent, substantial evidence that the BB gun was operational, that it was loaded, or that Bryant threatened to use the gun in a way likely to produce death or great bodily harm. We disagree. Whether a BB gun is loaded or operational is not dispositive of whether it can be classified as a deadly weapon. See id. ; see also Santiago v. State , 900 So. 2d 710, 712 (Fla. 3d DCA 2005) ("While there was no testimony that the BB gun used by the defendant to commit the burglary, herein, was loaded, the weapon itself was introduced and the jury had an opportunity to examine it to determine if it was capable of causing great bodily harm or serious injury. Moreover, there was no evidence introduced which established or even suggested that it was inoperable ...."). Here, the State presented competent, substantial evidence from which the jury could find that the BB gun could cause great bodily harm. Glass, Tuggle, and two police officers testified that Bryant had what looked like a pistol in his pocket, waved it around in front of several people, pointed it at Glass and Tuggle, and may have tried to fire the gun. Sergeant Grandstaff testified that he had been shot by a BB gun and that he used a BB gun to hunt and kill animals. Bryant testified that he killed squirrels and rabbits with a BB gun. Because there was competent, substantial evidence that the BB gun could be used in a manner that could cause death or great bodily harm, the trial court did not err in denying the motion for judgment of acquittal and submitting the issue to the jury.

Closing Arguments

Next, Bryant contends that the prosecutor made improper remarks during closing arguments, misstated the law and the facts, and commented on facts outside evidence. In particular, Bryant asserts that the prosecutor's references to the film, A Christmas Story , to argue that a BB gun could "shoot your eye out" inserted facts not offered into...