County Criminal Court: CRIMINAL LAW – Jury Trial/Evidence- sufficiency of evidence- prosecution for battery-testimony of two police officers that they observed the defendant push the victim in the chest was sufficient to prove prima facie case for battery-conviction affirmed.  Hall v. State, No.: 03-18 (Fla. Cir. App. Ct. April 3, 2003).

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

APPELLATE DIVISION

 

 

JASON HALL,

            Appellant,

 

vs.                                                       APPEAL NO.: 02-05480CFANO

 

STATE OF FLORIDA,

            Appellee.

__________________________/

 

 

Opinion filed: _______________

 

Appeal from verdict, judgment and sentence Pinellas County Court

County Judge Thomas B. Freeman

 

Robert Hambrick

Attorney for Appellant

 

Nita Panchal

Assistant State Attorney

Attorney for Appellee

 

ORDER AND OPINION

 

            THIS MATTER is before the Court on the defendant’s appeal of a post jury-trial verdict, judgment and sentence that the defendant argues was the result of the trial court’s erroneous denial of the defendant’s Motion for Judgment of Acquittal.  After reviewing the briefs and record, this Court affirms the verdict, judgment and sentence.

 

FACTS

 

            On December 30, 2001, the defendant was arrested for the offense of Battery.  The case proceeded to jury trial on March 13, 2002.  The State presented the testimony of three witness.  Officer Linda Stevrak with the Clearwater Police Department testified that while waiting for a taxi with the defendant and his family, the defendant became very vocal.  The defendant was yelling and screaming at the officer.  The defendant’s wife attempted to calm the defendant, stepping in front of him.  Officer Stevrak testified that the defendant then shoved his wife with both of his hands.  Officer Albert Grandville of the Clearwater Police Department testified that he also observed the defendant push his wife in the chest while telling her: “Get away from me.”  The State’s final witness was the victim, the defendant’s wife.  She denied trying to calm the defendant.  She stated that she was standing behind the defendant and that she did not recall the defendant touching her.  After the close of the State’s case, the defendant moved for a judgment of acquittal arguing that the State had failed to show that the touching was without the consent of the victim.  The jury returned a verdict of guilty and the trial court imposed judgment and sentence.  On March 21, 2002, the defendant filed a Motion for Judgment of Acquittal or Motion for New Trial, which was denied.  This appeal followed.

 

CONCLUSIONS OF LAW

 

“Weight and credibility are solely within the province of the fact finder; the appellate court’s only function is to determine sufficiency as a matter of law.”  State v. Santomas, 764 So.2d 735 (Fla. 2d DCA 2000).  Conflicts in the evidence and questions about witness’ credibility will not justify reversal when evidence is legally sufficient to support the conviction.  Wetherington v. State, 263 So. 294 (Fla. 3d DCA 1972).  In this case, the evidence before the jury was the testimony of the two police officers that they observed the defendant push the victim in the chest while stating: “Get away from me.”  The defendant’s theory is that without evidence that the touching was against the victim’s will, there was no crime.  “A view of the law that a victim of domestic violence can consent to the batteries and injuries perpetrated on him or her is incompatible with both the general law of battery and the specific legislative intent expressed in §741.2901 (2) Florida Statutes (1999) which states: ‘It is the intent of the Legislature that domestic violence be treated as a criminal act rather than a private matter.’”  State v. Conely, 799 So.2d 400 (Fla. 4th DCA 2001) (concurring opinion by Judge Warner).

To convict the defendant of the charge accused, the jury had to find, among other things, that the defendant intentionally touched the victim against her will.  This Court finds that there is competent evidence to support the verdict and judgment and the trial court did not err in refusing to remove the case from the jury.  It is therefore,

ORDERED AND ADJUDGED that the verdict, judgment and sentence is affirmed.

DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida on this __________ day of ____________, 2003.

 

 

 

__________________________________

JOHN A. SCHAEFER

Primary Appellate

Circuit Judge

 

 

 

 

_________________________________

W. DOUGLAS BAIRD

Circuit Judge

 

 

 

 

__________________________________

NANCY MOATE LEY

Circuit Judge

Copies furnished to:

 

Judge Thomas B. Freeman

 

Robert Hambrick

Attorney for Appellant

 

Nita Panchal

Assistant State Attorney

Attorney for Appellee