ROGER E. CARUTHERS v. STATE OF FLORIDA, 235 So. 3d 931

Appellant Roger E. Caruthers got into a verbal dispute with a woman at a convenience store, brandished a gun, hit it on the counter, and threatened the woman and her fiancé.
The woman left for a nearby park; appellant followed, again threatening to kill her and family members present, and later fired shots that struck the woman’s aunt and missed the woman.
Appellant was charged with two counts of attempted first-degree murder; at trial the court declined defense requests to instruct on improper exhibition of a firearm as a lesser included offense.
The court instead instructed on attempted second-degree murder, aggravated assault with a firearm, and simple assault; the jury convicted on two counts of aggravated assault with a firearm.
Appellant also challenged the admission of the store surveillance video; the Fourth District found the video admissible as inextricably intertwined and relevant to state of mind.
The Fourth District reversed and remanded for a new trial because the trial court erred per se by refusing to instruct on improper exhibition of a firearm, which was the next immediate lesser-included offense.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether improper exhibition of a firearm was a permissive lesser-included offense of attempted first-degree murder	State conceded improper exhibition was a lesser-included offense given the information and evidence	Defense argued the information and evidence supported the instruction	Court held improper exhibition was a permissive lesser-included offense and instruction should have been given
Whether refusal to instruct on that offense was reversible error	State argued error was harmless because jury was instructed on assault	Defense argued failure to instruct on the next lower offense is per se reversible error	Court held refusal was per se reversible error because the omitted offense was one step removed from the convicted offense
Whether assault instruction cured the omission	State argued assault instruction made error harmless	Defense argued assault is two steps removed and not equivalent to improper exhibition	Court held assault was two steps removed (a misdemeanor) and did not cure the error
Admissibility of convenience-store video	State argued video was inextricably intertwined and relevant to intent	Defense likely challenged relevance/prejudice	Court held no abuse of discretion in admitting the video as relevant to state of mind

Piggott v. State, 140 So. 3d 666 (Fla. 4th DCA 2014) (standard for de novo review of lesser-included instruction determination)
Moore v. State, 932 So. 2d 524 (Fla. 4th DCA 2006) (discussion of Standard Jury Instructions categories)
Williams v. State, 957 So. 2d 595 (Fla. 2007) (trial courts’ duty to determine and instruct correctly on prevailing law)
Sanders v. State, 944 So. 2d 203 (Fla. 2006) (definition of permissive lesser-included offense)
Amado v. State, 585 So. 2d 282 (Fla. 1991) (permissive lesser-included offenses depend on pleadings and evidence)
Wimberly v. State, 697 So. 2d 1272 (Fla. 4th DCA 1997) (judge must instruct on permissive lesser offenses supported by information and evidence)
Daugherty v. State, 211 So. 3d 29 (Fla. 2017) (failure to instruct on next immediate lesser-included offense is per se reversible)
McCloud v. State, 209 So. 3d 534 (Fla. 2017) (harmless-error discussion where other proper one-step-removed instructions were given)
State v. Abreau, 363 So. 2d 1063 (Fla. 1978) (jury’s pardon function in lesser-included instructions)
Pena v. State, 901 So. 2d 781 (Fla. 2005) (error in omitting offenses two or more degrees removed is subject to harmless error analysis)
Ammons v. State, 623 So. 2d 807 (Fla. 1st DCA 1993) (reversal required where next lower offense instruction omitted)