Evolution of ‘Well-Founded’ Fear in Aggravated Assault Cases: What Must the State Prove?

December 4, 2025 Don Pumphrey, Jr. Criminal Defense, Violent Crimes Social Share

Over the last few decades, the question of what prosecutors must prove to convict someone of aggravated assault has had a changing answer, according to Florida’s top courts.

In Florida, aggravated assault is a very serious offense (Fla. Stat. 784.021).

For someone to be guilty, the State must prove all of the following beyond a reasonable doubt:

• The defendant made a threat, by word or by act, of unlawful violence without legal justification
• The threat was of such a nature to place a reasonable victim in well-founded fear that violence was imminent
• The defendant had the apparent ability to carry out the threat
• The defendant used a firearm or other deadly weapon or committed the assault with the intent to commit a separate felony

Aggravated assault is a third-degree felony, typically punishable by up to 5 years in prison and a $5,000 fine. Under certain circumstances (e.g. if against an elderly victim/police officer/first responder), it is a second-degree felony, punishable by up to 15 years in prison and a $10,000 fine. 

One of the key elements of an aggravated assault is the “well-founded fear” requirement outlined above. But notice how this is currently worded – that the assault was of such a nature as to create a well-founded fear of imminent violence in a reasonable victim.

This may lead someone to ask – is this a subjective or objective standard? In other words, must the State prove that the victim was personally in fear of imminent and unlawful violence? Or must the State only establish that a reasonable person in the alleged victim’s position would have been fearful, even if the alleged victim himself was not?

The answer is… complicated. But currently, Florida’s courts generally hold that it is not required for prosecutors to establish that the alleged victim was personally in fear. It is sufficient to prove that a reasonable victim in their position would have been placed in fear (“objective standard”) for a defendant to be convicted.

However, this has evolved with time. In the late 20th century, Florida’s courts were consistent about the fact that aggravated assault was a subjective standard. Put simply, if the alleged victim could not be proven to actually have been placed in fear (e.g. through testimony/other evidence), a prosecution for assault or aggravated assault would fail.

A key case demonstrating this is Brewer v. State, 336 So.2d 695 (Fla. 4th DCA 1976). There, Brewer was accused of pointing a gun at the alleged victim. However, there was no evidence in the trial record that the alleged victim was personally afraid of imminent violence. Because of that, the 4th DCA reversed Brewer’s aggravated assault conviction:

“Upon review of the record on appeal and after consideration of the briefs and oral argument of counsel for the respective parties, we determine that the evidence adduced at trial was totally insufficient to support that part of the judgment adjudging defendant guilty of aggravated assault, i. e., there was no evidence demonstrating that the defendant’s act of pointing a gun at the victim created in the victim a well-founded fear of imminent bodily harm.”

The Brewer court cited the Florida Supreme Court’s State v. White, 324 So.2d 630 (Fla. 1975) ruling, which acknowledged that a victim must actually be in fear of imminent bodily harm to have been “assaulted.”

But over the years, this “rigid” rule has begun to evolve. One of the most clear examples of this fact is a relatively recent ruling by Tallahassee and North Florida’s highest court (Florida’s 1st DCA): Daniels v. State, 308 So. 3d 212 (Fla. 1st DCA 2020).

In Daniels, the defendant (Daniels) was accused of pointing a gun at his ex-girlfriend and firing it multiple times near her in a car. Ample evidence was offered at trial that this did indeed occur. But during her trial testimony, Daniels’s ex-girlfriend testified that she never had a gun pointed at her and was never put in fear by Daniels pointing a gun at her.

Despite the ex-girlfriend’s testimony, the jury nevertheless found Daniels guilty of aggravated assault with a firearm. On appeal, Daniels argued that because the alleged victim testified that she was never put in fear, the State could not establish his guilt of aggravated assault as a matter of law (what Brewer ruled).

However, the 1st DCA disagreed. It found that even though Daniels was technically correct on this point (the victim testified she was not in fear), the jury could still find Daniels committed aggravated assault based on the facts in the record – because “well-founded fear” is an objective rather than subjective standard:

“This issue mostly arises when a victim either does not testify or does not specifically testify as to whether he or she was put in fear by the defendant’s threat, but the fact finder can infer that the victim was fearful. In this situation, every district court has held that an objective standard applies, irrespective of the lack of the victim’s testimony.”

“This result logically follows from the use of an objective standard. A denial of fear is certainly a factor that may be weighed against other circumstances presented, but it is not conclusive. And in this case, there is evidence to support the conclusion that Daniels’ conduct was sufficient to create well-founded fear. As Daniels’ threats and actions could create a well-founded fear of imminent violence in a reasonable person, see Williams v. State, 238 So. 3d 915, 916-17 (Fla. 1st DCA 2018), we affirm his conviction for aggravated assault.”

In response to the majority’s affirmance of Daniels’s conviction, Judge Makar of the 1st DCA wrote a concurring opinion documenting the evolution of the “well-founded fear” element of assault and aggravated assault under Florida law. He began by noting:

“Defendant says a judgment of acquittal is required because the victim said she lacked fear; the State says it need only prove that the victim should have been in fear, as the jury was instructed. The language of the assault statute favors the defendant’s view, but the interpretive trend in Florida has been to uphold the use of a reasonable person standard by which fear may be inferred and, as here, the victim’s motive to deny fear can be explained.”

Essentially, Judge Makar noted that even though the “plain language” of the statute indicates that a conviction is barred unless a victim was proven to have personally been in fear (“subjective standard”) Florida’s courts have been trending towards a “reasonable person” interpretation (“objective standard”). 

Despite exhibiting some skepticism of the consequences of such a shift, Judge Makar ultimately agreed with the Daniels majority:

“Society has an interest in ensuring that criminal conduct is punished and deterred even where a victim may want to refrain from participating as a witness, perhaps due to the status of the defendant (family/friend/etc.), fear of the defendant, and the like. Where a victim has a motive to disclaim or diminish her fear, perhaps to protect a defendant, it becomes justifiable to allow a jury to determine the truth, which may be that a victim’s testimony is unreasonable or unbelievable under the circumstances. Just as [a] jury may reject a victim’s testimony that she was fearful, finding it not well-founded under the circumstances, a jury may also reject a victim’s testimony that she wasn’t fearful, finding that a reasonable person would have had a well-founded fear under the circumstances. Affirmance is thereby warranted.”

Put simply, Judge Makar believed that in the absence of evidence Daniels engaged in conduct that placed the alleged victim in “well-founded fear,” her testimony that she was not in fear would have defeated the State’s case. 

But since the evidence was overwhelming that she was actually in fear, Judge Makar concluded that the jury should have been permitted to find “well-founded fear” existed in spite of her trial testimony.

So, where does that leave Florida law on the issue of well-founded fear in aggravated assault cases? As Daniels v. State, 308 So. 3d 212 (Fla. 1st DCA 2020), every Florida District Court of Appeal has ruled in at least one case that an “objective standard” can be applied in aggravated assault cases on the issue of well-founded fear.

Thus, if the State proves the defendant engaged in a course of action that otherwise violates the statute, well-founded fear can be inferred by the jury if they believe (beyond a reasonable doubt) that a reasonable person would have experienced this due to the defendant’s actions. This is true even if an alleged victim testifies that they were not personally in fear.

Aggravated assault with a deadly weapon and aggravated battery are very serious charges in Florida that can carry lengthy prison sentences and heavy financial penalties. If someone is charged, it is vital to find experienced and aggressive legal representation as soon as possible. 

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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