BROWN v. State of Fla.
| Decision Date | 01 September 2010 |
| Docket Number | No. 4D08-2795.,4D08-2795. |
| Citation | 41 So.3d 259 |
| Parties | Isaiah BROWN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
COPYRIGHT MATERIAL OMITTED.
Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Katherine Y. McIntire, Assistant Attorney General, West Palm Beach, for appellee.
Isaiah Brown challenges his conviction for aggravated child abuse, asserting, among other things, that the trial court fundamentally erred in instructing the jury on a theory of the crime not charged in the information. We find merit in this argument and reverse Brown's conviction.
The charges against the defendant followed a family argument. The defendant and his son resided with his long-time girlfriend, Carla B., and her two daughters, K.O., age 15, and Ke.O., age 19. The defendant and his girlfriend were arguing, the argument escalated, and the defendant called K.O. "stupid" and "a whore." K.O. heard the defendant, approached him, and a physical altercation between the defendant and K.O. ensued. The State presented evidence that the defendant grabbed K.O.'s hair and banged her head on the floor and that, in turn, K.O. struck the defendant with a barstool. K.O.'s mother pulled her out of the house. K.O. testified that the defendant then came at her with a bat. K.O. slipped and fell near the driveway and testified that the defendant twice struck her in the head with the bat. K.O. was taken to the hospital, receiving four stitches and twelve staples to close the head wound. There was testimony that K.O. continued to suffer from bad headaches, nightmares and memory loss and that she has a "brain injury." The State also presented testimony that defendant struck Carla B. and Ke.O., but the facts related to those incidents are not germane to this appeal.
For his part, the defendant admitted the physical altercation with K.O. and admitted grabbing the bat. He insisted that he grabbed the bat because he feared he might need it to protect his son. He denied striking K.O. with the bat, suggesting that the injury to her head was the result of her striking her head on the drainage pipe near the driveway.
Defendant was charged with aggravated child abuse (count I—victim K.O.), aggravated battery with a deadly weapon, i.e., a bat (count II—victim K.O.), and two counts of aggravated assault with a deadly weapon, i.e., a bat (counts III & IV—victims Carla B. and Ke.O., respectively). The jury found defendant guilty of counts I and II, and not guilty of count IV. Count III was nolle prossed. Since the victim of both counts I and II was K.O., following the jury verdict, the parties agreed that a conviction for both counts I and II would violate double jeopardy. Consequently, the trial court entered a judgment of conviction solely on the aggravated child abuse conviction of count I. Of note, aggravated child abuse is a first degree felony and aggravated battery is a second degree felony. See §§ 827.03(3)(b), 784.045(2), Fla. Stat. (2007).
The crime of aggravated child abuse may be committed in three ways: (a) "when a person . . . [c]ommits aggravated battery on a child"; (b) "when a person. . . [w]illfully tortures, maliciously punishes, or willfully and unlawfully cages a child"; or (c) "when a person . . . [k]nowingly or willfully abuses a child and in so doing causes great bodily harm, permanent disability, or permanent disfigurement to the child." § 827.03(2). A person may commit an aggravated battery in two ways: by "[i]ntentionally or knowingly caus[ing] great bodily harm, permanent disability, or permanent disfigurement" or by "us[ing] a deadly weapon." § 784.045(1)(a). The first manner of committing aggravated battery (i.e., causing great bodily harm) is specifically referenced in section 827.03(2)(c) of the aggravated child abuse statute.
In the instant case, count I of the information read as follows:
[On] July 31, 2007 Gardner Lee Browne1 did willfully torture, maliciously punish or willfully and unlawfully cage [K.O.] [tracking section 827.03(2)(b)], a child under the age of 18 years, or did knowingly or willfully abuse said child and in so doing caused great bodily harm, permanent disability or permanent disfigurement to said child [tracking section 827.03(2)(c)], in violation of Florida Statute 827.03(2).
Count I did not track the language of, or otherwise reference, section 827.03(2)(a), which provides that the crime of aggravated child abuse is committed when a person commits an aggravated battery on a child....
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