County Criminal Court: CRIMINAL LAW – Evidence – There is sufficient evidence in the record to support the jury’s rejection of Appellant’s claims of self-defense.  Judgment and sentence affirmed.  Brandon R. Toepfer v. State of Florida, No. 13-CF-001733-ES (Fla. 6th Cir. App. Ct. December 23, 2013).

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY APPELLATE DIVISION

 

 

BRANDON R. TOEPFER,

 

                        Appellant,                             UCN:              512013CF001733A000ES

Appeal No:   CRC1301733CFAES

v.                                                                     L.T. No:         CTC1204587MMAES

                                                                                   

 

STATE OF FLORIDA,     

                                               

                        Appellee.                                                      

_____________________________/

On appeal from County Court

Honorable William G. Sestak

 

Thomas Matthew McLaughlin, Esquire,

for Appellant

 

Office of the State Attorney, 

for Appellee

 

 

ORDER AND OPINION

 

Appellant challenges the trial court’s denial of his Motion for Judgment of Acquittal, and challenges the sufficiency of the evidence to support the judgment in this case, based on the claim that the victim was the initial aggressor in this case, or consented to the battery by inviting Appellant to engage in a fight.  When viewing the evidence in the light most favorable to the State, we find no error in the trial court’s denial of the Motion for Judgment of Acquittal.  Further, we find sufficient evidence to support the judgment in this case.  We therefore affirm the trial court in all respects. 

 

STATEMENT OF THE FACTS

Appellant was involved in an altercation after he and his girlfriend had been drinking alcohol during a gathering at the home of Cheryl and Robert Thebo, the parents of Appellant’s girlfriend, and the victims in this case.  Cheryl Tebo attempted to stop her daughter from leaving the home with Appellant and there was conflicting testimony as to whether their argument became a physical altercation.  The daughter testified that Cheryl Tebo was on top of her trying to prevent her from leaving and that she was hitting and scratching her mother.  Cheryl Tebo testified that during the altercation Appellant approached from behind and struck her, after which her husband, Robert Tebo, became involved.  Robert Tebo testified that he heard his wife exclaim that Appellant had hit her, and that he then became angry and remarked to the Appellant:  “You’re going to hit a woman, you know, you come over here and see if you can hit a man.”  (Trial Tr. vol. 2, 124-25)  Robert Tebo testified that at that point Appellant charged at him and hit him several times, knocking him to the ground at least once.  Robert Tebo testified that he must have hit Appellant at some point during the altercation because afterward he had a broken finger.  Robert Tebo is around 61 years of age, and Appellant is around 30 years of age.

Appellant was charged with two counts of misdemeanor battery in violation of                 § 784.03(1), Fla. Stat. (2012).[1]  A trial was had before Judge William Sestak on March 4, 2013.  At the close of State’s evidence Appellant moved for Judgment of Acquittal, which the court denied.  Appellant was found guilty of the second count of battery against Robert Tebo and sentenced to 240 days and one year of probation.  Appellant now appeals the denial of his Motion for Judgment of Acquittal as well as the Judgment and Sentence rendered after the verdict as to the second count of battery.

 

 

STANDARD OF REVIEW

            This Court reviews a motion for judgment of acquittal pursuant to a de novo standard of review.  State v. Fagan, 857 So. 2d 320, 321 (Fla. 2nd DCA 2003).  The evidence must be viewed “in the light most favorable to the State,” and the question is whether “a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt.”  Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002).  This Court “will not reverse a conviction which is supported by competent, substantial evidence.”  See id.

ANALYSIS

Appellant’s contentions of error are based on the characterization of Robert Tebo as the initial aggressor in this case, and the claim that Tebo’s statements made to Appellant constituted an invitation to fight, and he therefore consented to any physical altercation.  Appellant relies on Sykes v. State, 351 So. 2d 87 (Fla. 2d DCA 1977) (per curiam), in which the Court reversed a conviction for battery based on a finding that the evidence in that case “unequivocally establishes that the victim was the physical aggressor,” and that no reasonable jury could “find that appellant touched or struck the victim against the victim's will or that appellant intentionally caused bodily harm to the victim.”  Appellant contends that this case stands for the proposition that consent is available as a defense in a criminal battery case. We find this contention unsupported by a plain reading of Sykes.  See id.   

Appellant concedes that other divisions of the District Courts of Appeal have held that consent is not generally available as a defense to criminal battery.  See State v. Conley, 799 So. 2d 400, 402 (Fla. 4th DCA 2001) (“The general view is that ‘consent’ is not a defense to battery, except in cases of sexual battery”); Lyons v. State, 437 So. 2d 711, 712 (Fla. 1st DCA 1983) (“The general view is that consent is not a defense to a criminal prosecution for assault and battery, except in cases of rape,” based on the interest of the public in prohibiting criminal acts irrespective of the state of mind of victims of crime).   

In this case, the Defendant requested a jury instruction on the defense of justifiable use of non-deadly force, and the jury was instructed as requested. The Defendant made no objections in the trial court to the jury instructions given.  The witness testimony in the record supports the finding that the victim did not consent to any battery by the Appellant, and the finding that the victim was not the initial aggressor in this case.  It was at least a question on which the jury could permissibly have found that the victim did not consent or agree to a fight with Appellant, and that Appellant was the initial aggressor in this case and was not entitled to use reasonable force against the victim.  

Viewing the evidence in the light most favorable to the State, we find no error with the denial of Appellant’s motion for judgment of acquittal.  Appellant further contends that the judgment and sentence in this case was entered in error, based on the same argument stated above.  This Court will not reverse the judgment of the trial court if there is competent substantial evidence supporting it.  See Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002).  “If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Id.

We do not find that the Sykes case stands for the proposition that consent is available as a defense to criminal battery.  Appellant’s main contention of error is that the victim was the initial aggressor in this case, and that Appellant’s actions were a justified use of force against the victim.  Appellant requested and the jury was given an instruction on self-defense as a defense available to the Appellant.  We find sufficient evidence in the record to support the jury’s rejection of Appellant’s claims of self-defense.  See State v. Hull, 933 So. 2d 1279 (Fla. 2nd DCA 2006); Hernandez v. State, 842 So. 2d 1049, 1051 (Fla. 4th DCA 2003).  

 

CONCLUSION

Viewing the evidence in the light most favorable to the State, we find no error with the trial court’s denial of Appellant’s motion for judgment of acquittal.  We further find no error with the judgment in this case, which is supported by competent, substantial evidence in the record.  Appellant’s contentions of error are denied.

 

It is therefore ORDERED AND ADJUDGED that the trial court’s judgment is hereby AFFIRMED.

DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this 23rd day of December 2013.

Original order entered on December 23, 2013, by Circuit Judges W. Lowell Bray, Jr., Linda Babb, and Daniel D. Diskey.

 

 

 

 

 

 

Copies to:

Thomas M. McLaughlin, Esq.

Office of the State Attorney (DC)



[1]  The Statute provides:

(1)(a) The offense of battery occurs when a person:

1.  Actually and intentionally touches or strikes another person against the will of the other; or

2.  Intentionally causes bodily harm to another person.

     (b) Except as provided in subsection (2), a person who commits battery commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.