146 So. 3d 1278
Fla. Dist. Ct. App.2014Background
- Defendants Schepman and Asbury were convicted as principals to aggravated assault with a firearm and appeal the jury instruction they contend allowed convicting based on threatening one victim and causing fear in another.
- Information charged them together as principals to aggravated assault with a firearm, alleging threats to Alderson or Bigogno with a firearm and resulting well-founded fear.
- Trial evidence showed Asbury verbally threatening to kill, and both victims Alderson and Bigogno testified they feared imminent harm when gunshots occurred; Schepman held an assault rifle and helped in the incident.
- Asbury claimed no threats and possibly mischaracterized what police recorded; Schepman claimed to be there to scare rats and supported by police statements; a 911 call and multiple witnesses corroborated threats and fear.
- Judge instructed the jury using a joint count with “or/and/or” constructs related to multiple victims, following Garzón guidance; the court acknowledged improper conjunctive labeling but found evidence overwhelming for both victims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the jury instruction was fundamental error. | State argues error but not fundamental given threats and fear to both victims. | Asbury/Schepman contend the instruction improperly allowed conviction from threatening one victim and frightening another. | Not fundamental; overwhelming evidence showed threats and fear for both victims; verdicts valid. |
Key Cases Cited
- James v. State, 706 So.2d 64 (Fla.5th DCA 1998) (reversal for improper single-count framing where victims were treated unevenly; danger of convicting one victim while another was merely frightened)
- Tindle v. State, 832 So.2d 966 (Fla.5th DCA 2002) (similar concern with lumping multiple victims under one count; requires careful instruction)
- Fuller v. State, 942 So.2d 1039 (Fla.2d DCA 2006) (same concern with and/or/or in multi-victim aggravated assault cases)
- Miller v. State, 918 So.2d 415 (Fla.2d DCA 2006) (holding that or in first and third elements can be fundamentally erroneous when multiple victims involved)
- Comer v. State, 997 So.2d 440 (Fla.1st DCA 2008) (reversal for ineffective assistance related to counting multiple victims in aggravated assault)