Articles Posted in Battery

Here are some facts, straight from CNN:theft-300x225

“At the World Trade Center (WTC) site in Lower Manhattan, 2,753 people were killed when hijacked American Airlines Flight 11 and United Airlines Flight 175 were intentionally crashed into the north and south towers or as a result of the crashed.  Of those who perished during the initial attacks and the subsequent collapses of the towers, 343 were New York City firefighters, 23 were New York City police officers and 37 were officers at the Port Authority.  The victims ranged in age from two to 85 years.  Approximately 75-80% of the victims were men.”  (http://www.cnn.com/2013/07/27/us/september-11-anniversary-fast-facts/index.html, accessed August 13, 2017).

So, now you know some facts.   Do the words above give you any sense of the meaning of 9/11?   You can memorize the “facts” about 9/11, but completely miss the meaning of 9/11.

Having accurate facts won’t guarantee any sort of understanding.  Often, words have more power as they move away from factual descriptions.  For example, the words found in your favorite song may remind you more of an event than any factual description.  I can’t tell you how many times I’ve heard a song from the 80’s, and the song instantly transports me back, in a way that words on a page just can’t. Often, words in a song can convey more meaning than the words alone.

Songs work, in part, because we believe a phrase more if it rhymes. Kind of silly, right?  It is said that “a man armed with a rhyming dictionary is a dangerous man.” (Bruce Springsteen).  Rhyme works in criminal defense trials as well.  Who can forget this classic: “If it doesn’t fit, you must acquit.”  Or, how about this one: “Sticks & stones may break my bones, but words will never hurt me.”

Words may not hurt you–but words can get you arrested, among other things.   (I’m going somewhere with this, so please tolerate the cliches for a another three sentences)  Here are some dangerous words: telling a TSA agent that you’ve got a bomb, or asking a 16 year old girl to have sex (unless, of course, you’re 16 years old, but even then, its a tad young, don’t ya think?).  Our focus today will be the all too common threat to kill.

Now, if you do threaten to kill someone (hire me…), any threat to do harm is called an assault (a battery charge is physical, assaults are just words or actions).  A basic threat gets upgraded to “aggravated” when the person is using a gun or weapon to make the threat more believable.

The question is, can you be convicted of assaulting someone who doesn’t understand what a gun is, or even understand the English language?   To see how an assault plays out with a victim who does not understand what the heck is going on, we’re going to examine the real life case of Davis v. State, 2017 Fla. App. LEXIS 9415 (Fla. 4th DCA 2017). Continue Reading

“The smallest deed is better than the greatest intention.”  — John Burroughspunch3

“All that counts in life is intention.” — Andrea Bucelli

There’s plenty of opinions out there on what, exactly, we mean by the word “intention”.  A new age guru may give you one answer, and folks who deny humans have any sort of free will may tell you the word is meaningless.  Scientists are late comers to the “intention” game.   Experiments conducted at Princeton, Cambridge, and the University of Arizona all point to the fact that our intentions can physically affect the outside world (See Lynne McTaggart’s book “The Intention Experiment”).  How can our intentions affect physical things?  No one really knows the mechanism, but the effects can be measured,  much in the way Newton had no idea how gravity pulls an apple from a tree, yet he could still observe and measure the effect. Intention has even crept into physics.  Quantum physicists have analyzed the role our conscious intentions play in the behavior of entangled particles, and how our intentions effect the double-slit experiment (Richard Feynman calls this experiment the greatest physics experiment ever).  Still, no one is really sure why things work this way–but quantum mechanics does work, with amazing accuracy.  That being said, I cringe whenever QM (sounds like I know more when I abbreviate, right?) is brought up because it’s become such a cliche.

It is odd to see human “intention” influence the outcome of a scientific experiment.  Such intervention defies common sense.  Common sense dictates that people will not be sent to prison for bad acts they did not intend to commit.  Makes sense, right?  Well, common sense also tells us that the earth isn’t moving through space (the ground doesn’t feel like it’s moving, does it?).  Common sense can betray you, and that’s particularly true of the law.  Don’t apply common sense to a collection of laws written by people that, on average, have little common sense.  I have numerous examples of how your tax payer dollars have been wasted on crimes never intended to be committed.  For example, years ago I had a client that was waiting tables at a local restaurant.  He went to his co-worker’s 19th birthday party.  Cute girl.  Single guy.  Co-workers.  Yes, after the birthday party, they had sex.  Some time later, he was arrested for lewd act on a minor.  Yes, the girl just turned 16.  We call this statutory rape.  Turns out, she was lying about her age so she could serve alcohol as part of her waitress duties.  The big candles on her cake announcing a “HAPPY NINETEENTH!” were no defense to the charge.  Same goes for child porn.  Should you be unlucky enough to click on “Grannies Gone Wild” yet somehow find yourself diverted to much younger folks–you may go to prison for something you never intended to view.  Technically, you don’t even have to view it, if the 0’s & 1’s show up somewhere on your hard drive, you can land in prison.   Now, should we punish acts void of criminal intent?  Are there some criminal accusations for which our good intentions can provide a defense? Continue Reading

At times, criminal defense work requires we attorneys to keep our mouths shut.  This is against our nature–we like to talk.  But sometimes, saying too much may get your client in trouble.  As a practical matter, should a defense attorney tell the prosecutor “Hey, you can’t prove that”  when such a statement will permit the prosecutor to cure the defect rather quickly?     In the case below, the defense attorney decided to keep quiet about a defect in the prosecutor’s case, and eventually, that silence paid off.

Every so often, I’m retained to defend a misdemeanor battery case, only to discover later that the IMG_1061charge has been upgraded to a felony.  This doesn’t happen that often, because law enforcement typically has quite a bit of enthusiasm up front in their attempts to charge citizens with the highest offense humanly possible.  Should a felony slip thru the cracks, prosecutors also have the ability to upgrade a misdemeanor into a felony, and there are plenty of reasons to do this.  I’m here to tell you that upgraded cases are difficult to prove.  To explore a real life upgrade scenario, we’re going to delve into the case of Dolan v. State, 2016 Fla. App. LEXIS 2183 (Fla. 2d DCA 2016).

First, let’s discuss what a felony battery is, versus a misdemeanor battery.  In this case, there is no difference, but for the fact that the state accused Dolan of having a prior battery conviction.  One prior battery conviction, regardless of whether or not the person was adjudicated guilty or received a withhold of adjudication, and the second battery accusation will be upgraded to a felony (under Section 784.03(2) of the Florida Statutes, there are other ways to get a felony battery, fyi).  Ok, so how hard can it be for a prosecutor to prove up a prior conviction?

Dolan’s jury trial was broken into two separate trials, all without the jury’s knowledge.  The first part of the trial was dedicated to the prosecutor’s proof of the battery itself.  Should the jury return a guilty verdict for battery, the judge would then conduct a second mini-trial for the jury to determine whether or not Dolan had a prior battery conviction.  Obviously, this is done so as to not taint the jury’s decision on the facts of the battery case itself.  But, when it came time for the state to prove the prior case, a few weird (but common) things happened. Continue Reading

rocks.jpgLawyers play games with words, it’s in the job description. Don’t hate the player, hate the game. Sure, we lawyers are easy targets for any number of legitimate complaints, but it becomes about as tiresome as hearing new comedians telling dick jokes for 30 minutes. Yes, I’ve seen plenty of stand-up comics grab their crotch, and I’m even tired of women comics doing it (I admit, it was funny for a little while to see the ladies join in the fun, but they all owe Joan Rivers a royalty for paving the way for crude lady humor).

So, getting back to my first sentence, “games with words”. The reason we lawyers play word games is because the legislature writes crappy vague laws. Now, without vague laws, attorneys would have less to argue about–and hence, make less money. So, the ambiguity found in our laws is just fine with me. But, it’s annoying when prosecutors use this vagueness to enhance criminal charges. So, let’s talk about the term “deadly weapon”. The term is used to transform a variety of misdemeanors into felonies. To an intellectually lazy prosecutor, this term could mean just about anything. Today we’re going to examine a misdemeanor assault case which was upgraded to a felony aggravated assault with a deadly weapon.

In J.P. v. State, 2013 Fla. App. LEXIS 10095 (Fla. 3rd DCA 2013), J.P. appealed his conviction for aggravated assault with a deadly weapon. At trial, testimony revealed that J.P. was throwing rocks at the alleged victim. Now, you may be asking yourself, not all rocks are created equal, right? I mean, if J.P. was throwing rocks off a bridge on the turnpike into oncoming traffic that could get him a felony, right? Well, probably. But, J.P. was simply “tossing [rocks] softly with one hand”, and the rocks were “quarter-sized”. Id. Accordingly, issue on appeal revolved around whether or not quarter sized rocks softly thrown constitute deadly weapons. Yes, leave it to the mind of a prosecutor to think that such small rocks constitute a “deadly weapon”.
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hospital.jpgRude behavior is everywhere these days. I wish things were different, and such changes start with me, but I’ll save you my broadway renditions of ‘the man in the mirror’ and ‘I’d like to teach the world to sing’.

Before we delve into the legal analysis of the day, let me mention one of my many brushes with rudeness. Years ago, I had a police officer yelling at me while his face was only three inches from mine. Kind of a Full Metal Jacket marine drill instructor moment. Yes, he was invading my personal space. But the worst part about it is the fact that–basically–he was spitting in my face. I scrubbed my face for hours (it seemed) then found a black light to make sure there was no DNA in hard to reach places. Anyway, I know you could care less about my problems, so let’s move on to the case of the day, involving the same type of battery for which I was not permitted to file charges.

In Spurgeon v. State, 114 So. 3d 1042 (5th DCA 2013), Spurgeon was convicted of battery on an emergency medical care provider for spitting in the face of a hospital security officer (essentially, an aggravated battery of sorts). Spurgeon had to be restrained by South Seminole Hospital’s security several times due to his aggressive behavior (may have been intoxicated). In some odd way, he agreed to be restrained the first couple of times, and then calmed down. But after calming down, he decided to leave the hospital (who wants to pay those high ER bills, anyway?). This time, the hospital threw four security guards in his way, and Spurgeon spat in one of their faces.
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fight kick.jpgEvery criminal defense attorney runs into this issue at one time or another–an alleged victim to a domestic violence battery that decides to “not” press charges. Now, we all know that it’s not really the alleged victim’s decision to press charges–the State of Florida that decides whether or not to file a criminal law suit against a defendant. However, some prosecutors, in their zeal to bolster conviction stats, may attempt to prosecute a battery case without a victim. What, you say? Am I speaking of prosecutors in China, or the good old U.S. of A? Sorry to say, I’m talking about Orlando, Sanford, Kissimmee, all over the State of Florida prosecutors are attempting to convict citizens without a victim in the courtroom. Can it be done? Let’s see.

The case is Holborough v. State of Florida, 103 So.3d 221 (Fla. 4th DCA 2012). Holborough was convicted at trial of felony battery. Felony battery in this case was simply a misdemeanor battery with one prior conviction for misdemeanor battery. In Orlando, we call this “Battery – Prior Conviction”, but it’s the same idea statewide. Anyway, Holborough was seen by a police officer “straddling a woman who was face down and covering her face…repeatedly hitting the woman.” Id. at 222. Holborough was initially arrested for domestic violence battery, but it was later upgraded to a felony charge once the prosecutors found a prior misdemeanor battery conviction.

News flash: some prosecutors just love when they have an “independent witness” to a battery charge. Why? Because typically, their alleged victims fail to appear for trial on domestic violence cases, so having an independent witness gives the prosecution a false sense of security that, maybe, they’ll be able to prove the case without a victim. Not so fast. Watch how this plays out.
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mathematics.jpgEver been under a lot of pressure and emotion, so much so that you said something you shouldn’t have said? It happens.

What happens when a couple’s night of drinking turns ugly? Ever known an ugly, mean drunk? They exist, believe me. To see what happens when we bring two such people together, take a look at the equations below:

[alcohol] + [arguing] + [anger] = [arrest]

Or, how about this equally valid equation:

[early morning hours] + [yelling and screaming] = [neighbors calling police] = [arrest]

As our community caretakers, the police are in an awful position, as they can’t leave the drunk couple together, for fear of escalating troubles. Most police departments have a policy of taking someone–anyone–to jail just to separate and cool off the situation. Thus, the police find a reason to arrest either the man, or the woman, and make a domestic violence battery case out of the situation.

However, once the tempers calm down, and the alcohol metabolizes, some folks regret their drunken sworn statements to police.

In the midst of an often emotional, alcohol soaked domestic dispute, cops fight hard to get a “sworn” statement from an alleged victim of domestic violence battery. Once clearheaded, can the sober witness now tell the truth of the evening’s events without fear of perjury or an arrest for filing a false police report? If they do, this is what we call “recantation”.

When an alleged victim of domestic violence decides to “recant”, this can spell trouble for the prosecution. Why? Because the prosecution may be barred from calling the alleged victim as a witness. A recantation may limit the alleged victim to testifying only about the “new story”. Prosecutors are not permitted to call the alleged victim merely to impeach her about what she initially told the police when they know the story has changed. But, the prosecution will attempt to admit the prior statement as a “past recollection recorded”. Such a move is often considered abusive where the state has been put on notice that their victim has recanted (and, that’s why it’s so important for you criminal defense attorneys out there to file a Motion in Limine & Motion to Exclude the victim as a witness, etc. etc.).
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broom.jpgSo, the question for the day is a simple one: can a broomstick be a deadly weapon? Well, of course it can, in the hands of a kung fu master like Bruce Lee. Apparently, Bruce Lee can kill with a feather. But, if Bruce Lee is the standard–everything on earth is a deadly weapon. But in real life, the courts have applied a different standard. Let’s take a look.

In Brevard County, Brandon Brown was convicted of aggravated battery with a deadly weapon. You lawyers out there know that the bad thing about aggravated battery is that it is a level seven (7) offense, scoring 56 points on a score sheet (any score above 44 points translates into a mandatory prison sentence, ouch). Brown appealed his conviction for aggravated battery, in Brown v. State, 86 So.3d 569 (Fla. 5th DCA 2012). Here’s what happened.

Brown is alleged to have used to “hollow, flimsy, plastic broomstick” to batter his former girlfriend. She sustained no injuries, though did testify that the hits were very painful. In the middle of the jury trial, Brown’s defense attorney asked the judge to dismiss the aggravated battery charge because the prosecutor never introduced into evidence the broomsticks–not even photographs, and further argued that the broomsticks did not meet the definition of “deadly weapon”. For some unknown reason, the judge denied the defense lawyer’s motion to dismiss. After the judge denied Brown a dismissal, Brown took the stand and testified to battering the victim with the plastic broomsticks. Brown’s defense attorney again moved for dismissal. Again, denied.
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hand_on_a_bible.jpgWe’re continuing our series on Violations of Probation (VOP). It’s in the air here in Orlando, so why fight it? The focus today is on the money making mandatory counseling sessions that come along with some probation sentences.

“Any recommended treatment or counseling” is a common phrase used by judges, and it translates: “you’re about to pay a boat load of money, and time, to some counseling program that has no real incentive to release you”. Imagine being in a business where you can dictate how long a citizen must continue to make monthly payments to your company–or they go to jail! Sounds like the business model of Big Pharmaceutical companies that would rather have patients on a monthly pill popping program than find a cure.

Don’t get me wrong. Many defendants need counseling. Many human beings need counseling. But, every single DUI conviction comes with alcohol treatment and counseling–even if no alcohol was found in the person’s system! Does that even make sense? No, but it makes money. Yes, we need to help the defendants that truly have an addiction, and find a way to weed out those who don’t.

For example, every person convicted of domestic violence battery must attend and complete a batterers intervention program. No problems there, right? Wrong. This program requires the ‘participant’ to admit to having battered another human being. Participation requires an admission of guilt. That’s when a probationer is faced with the decision to simply lie and complete the treatment–or tell the truth and be terminated from the treatment. Of course, termination from treatment will then violate probation, and a probation violation carries an arrest plus jail or prison time. So, what do you do?

Let’s rewind to see what gets a person into a treatment program in the first place. For many, a crime was committed and they’re paying the price. However, not everyone who enters a plea is guilty. Many folks chose to enter a no contest plea rather than risk losing everything after a trial. For those of you who don’t know, the increase in mandatory minimum sentences (especially for trafficking in oxycodone cases) has made it more common for innocent defendants to enter a plea rather than risk mandatory prison time over $50 worth of pills.

The problem is, that the “treatment” program that comes along with a guilty plea also requires an admission of guilt. So, if a defendant doesn’t want to risk mandatory jail on a domestic battery charge, a guilty plea will require counseling. But, the batterers intervention counseling program requires an admission that, yes, you have beaten your wife/girlfriend/etc. if you tell the truth–that you are innocent and simply entered a plea so as to not lose your job/home/sanity–they’ll terminate the treatment and that termination will send you to jail on a violation of probation!? A classic Catch 22. It happens more often than you think. Let’s take a look at a few cases in which the defendant’s stood up to the treatment programs, told the truth, and were sent to jail.
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punch3.jpgOrlando sees it’s fair share of battery arrests. It’s sad, really (especially those teenagers videotaping gang beatings–what is this world coming to?). But to make matters worse, prosecutors tend to overcharge fights, erring on the side of charging Aggravated Battery Causing Great Bodily Harm, rather than charging the lower offense of misdemeanor battery. So, where do we draw the line in determining what type of injury constitutes a misdemeanor battery, and what type of injury is “great bodily harm?” Let’s dig right in….

Our focus today is the recent case of Gordon v. State, 2011 WL 6016913 (Fla. 3rd DCA 2011). Gordon was convicted after trial of attempted second-degree murder and aggravated battery, he was accused of hitting his girlfriend with his hand and with a belt, causing bruises on her body. His girlfriend did not seek medical treatment, and the bruises eventually healed. Is this “great bodily harm?”
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