DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
RODNEY DONNELL HUNTER,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D19-2436
[January 6, 2021]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Mariya Weekes, Judge; L.T. Case No. 18007494CF10A.
Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Lindsay A. Warner,
Assistant Attorney General, West Palm Beach, for appellee.
MAY, J.
The defendant appeals his conviction and sentence on one count of
assault with a deadly weapon, two counts of battery on a law enforcement
officer, one count of resisting arrest with violence, and one count of first-
degree misdemeanor criminal mischief. He argues the court erred in
denying his motion for judgment of acquittal on the assault with a deadly
weapon charge because the State failed to prove intent, and on the first-
degree misdemeanor criminal mischief charge because there was no proof
of the cost of damage to the postal truck. We accept the State’s concession
of error on the second point, and we reverse in part.
The charges arose when the defendant struck a United States Postal
Service truck with a wooden plank measuring two by four inches. The
information alleged the postal employee was sitting in the driver’s seat
when the attack on the postal truck occurred.
The postal employee testified he drove to his first delivery point and
parked on the side of the road. While he was sorting the mail, he heard a
“loud crashing sound on the vehicle,” which startled him. When he
glanced at the side rear-view mirror, he saw the defendant strike the truck
a second time with the two-by-four. The postal employee put the truck in
gear and began to drive away. As he did so, the defendant struck the
vehicle a third time closer to the front of the vehicle where the postal
employee was located. The postal employee drove a safe distance away
and called 911.
Law enforcement responded and detained the defendant a couple of
blocks away. Moments later, the postal employee identified the defendant.
At trial, the State introduced pictures showing the areas where the
defendant struck the postal truck.
Exhibit 5 showed damage to the driver’s door by the third strike.
After the State rested, the defendant moved for a judgment of acquittal
on the aggravated assault charge. He argued the State failed to prove the
defendant committed an act that was substantially certain to put the
postal employee in fear of imminent violence. Thomas v. State,
299 So. 3d
23, 25 (Fla. 4th DCA 2020), review denied, SC20-1170,
2020 WL 6279055
(Fla. Oct. 26, 2020). The court denied the motion. After the defense
presented its case, the defendant again moved for a judgment of acquittal
on the assault charge. The court denied the motion.
At closing, the State told the jury it could determine the monetary
amount of damage to the truck based on the pictures introduced into
2
evidence. The defendant responded the State failed to prove the amount
of damages beyond a reasonable doubt.
The jury found the defendant guilty. The trial court sentenced him to
concurrent terms of five years and one day as a habitual felony offender
on the aggravated assault, resisting arrest, and battery charges. He was
sentenced to time served on the criminal mischief charge.
We affirm the trial court’s denial of the motion for judgment of acquittal
on the aggravated assault charge. When viewed in the light most favorable
to the State, there was sufficient evidence for the jury to infer the
defendant knew the victim was inside the truck. He struck the vehicle
three times, each strike closer to the driver’s door, and the third strike
occurred after the truck had moved forward. See King v. State,
545 So. 2d
375, 378 (Fla. 4th DCA 1989).
In his second issue, the defendant argues the trial court erred in
adjudicating him guilty of first-degree misdemeanor criminal mischief
because the State produced no evidence of the cost of damage to the postal
truck. He requests us to reduce his conviction from first-degree to second-
degree misdemeanor criminal mischief.
The State agrees the conviction should be reduced to second-degree
misdemeanor criminal mischief. While the State proved criminal mischief,
it did not introduce evidence of the cost of damage to the truck. We
therefore reverse the first-degree misdemeanor conviction and remand the
case to the trial court to reduce the conviction to a second-degree
misdemeanor. Marrero v. State,
71 So. 3d 881, 887 (Fla. 2011) (“Absent
proof of the amount of damage, an act of criminal mischief, as defined by
the criminal mischief statute, is a misdemeanor of the second degree.”
(emphasis omitted)).
Affirmed in part; reversed in part and remanded.
LEVINE, C.J., and ARTAU, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
3
