Dixon v. State
| Decision Date | 17 July 1992 |
| Docket Number | No. 91-790,91-790 |
| Citation | 603 So.2d 570 |
| Parties | Jeffrey H. DIXON, Appellant, v. STATE of Florida, Appellee. 603 So.2d 570, 17 Fla. L. Week. D1718 |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and James R. Wulchak, Chief, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Bonnie Jean Parrish, Asst. Atty. Gen., Daytona Beach, for appellee.
ON MOTION FOR REHEARING EN BANC
We grant Dixon's motion for rehearing en banc. We withdraw the opinion issued by the three judge panel in this case and replace it with the following.
Dixon was charged by information with the attempted first degree murder of his wife. At Dixon's trial, defense counsel objected to a jury instruction on aggravated battery as a lesser included offense of attempted murder, because there was no evidence presented at trial that any weapon other than Dixon's bare hands and fists were used to accomplish the offense. Overruling this objection, the trial judge gave the instruction on aggravated battery and the jury returned a verdict on the lesser charge. He was found not guilty of attempted murder. We reverse.
The crime of aggravated battery as defined in Florida can be established by proving one of two possible scenarios:
(1)(a) A person commits aggravated battery who, in committing battery:
1. Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or
2. Uses a deadly weapon.
Sec. 784.045, Fla.Stat. (1989). The state conceded at trial and on appeal that the first scenario set out in (1)(a)1. does not apply to this case. Thus, the issue here is whether bare hands and fists can be found by a jury to be "deadly weapons" pursuant to section 784.045(1)(a)2. If not, Dixon's conviction cannot be sustained and the lesser included offense instruction was reversible error. 1
At trial, the state proved Dixon went to his estranged wife's house. He waited until they were alone, and then he told her he was going to kill her. She thought he was joking.
He went into the kitchen. When he returned he grabbed her and began choking her with his hands. He also struck her jaw and ribs several times with his fists.
As a result of being strangled, the victim passed out for about ten minutes. When she regained consciousness, Dixon was rummaging through her purse. She managed to escape to a neighbor's house after convincing Dixon to go to the kitchen to get her a glass of water.
We are reluctant to overturn Dixon's conviction for aggravated battery, since proof that he brutally attacked his wife was clear. However, it is axiomatic in our legal system that a defendant cannot be convicted of a crime unless the state proves all the necessary elements of the crime, and that crime must be properly charged. 2
The trial court reasoned that depending on how they are used, fists and hands can be considered to be deadly weapons. If the circumstances are such that bare hands inflict deadly force, this issue is one which should be resolved by the jury. Although there is some out-of-state authority for this view, 3 we have found no Florida appellate case that so holds.
We think that view is contrary to good public policy, the law in this district, and the law in most other jurisdictions. 4 The Model Penal Code, section 210.0(4), defines "deadly weapon" as:
[a]ny firearm, or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used is known to be capable of producing death or serious bodily injury.
Clearly something more than the use of bare hands is intended by this definition. Otherwise, the concept of what constitutes a deadly weapon could become so broad as to be meaningless and unconstitutionally vague. Almost every battery would potentially be an "aggravated battery." That would do violence to our long accepted mandate to construe criminal statutes strictly. See Duba v. State, 446 So.2d 1167, 1169 (Fla. 5th DCA 1984).
In Davis v. State, 565 So.2d 826 (Fla. 5th DCA 1990), we held that an indictment, which alleged the defendant kicked the victim with his foot, failed to charge him with aggravated battery because no "deadly weapon" was alleged to have been used. The court acknowledged in Davis that had the information alleged the defendant wore a heavy shoe or boot which could have inflicted deadly force, the aggravated battery charge would have passed legal muster. See Johnson v. State, 249 So.2d 452 (Fla. 4th DCA 1971); Bass v. State, 172 So.2d 614 (Fla. 2d DCA 1965).
We conclude that, in general, bare hands (like bare feet) are not deadly weapons for purposes of alleging or proving the crime of aggravated battery. The issue of whether the bare hands or feet of a person specially skilled or trained in martial arts to kill or inflict deadly force with them can be deemed "deadly weapons" is reserved for future consideration. 5 But, in this case, there was no allegation or proof Dixon had any such skills or training.
Accordingly, we reverse Dixon's conviction for aggravated battery and we direct that it be reduced to simple battery. 6 We remand to the lower court for resentencing on simple battery.
REVERSED and REMANDED.
I respectfully dissent for the reasons set out in the original majority opinion which was as follows: 1
This is an appeal from a judgment and sentence, appellant having been charged with attempted murder, but found guilty by a jury of the lesser included offense of aggravated battery. Appellant argues that the trial court erred in instructing the jury on aggravated battery where there was no evidence of the use of a deadly weapon. We disagree and affirm. The question is whether an assailant's bare hands can be deadly weapons.
On September 4, 1990 appellant was charged with one count of attempted first degree murder. The information alleges that on August 18, 1990 appellant:
did unlawfully and intentionally, from a premeditated design to effect the death of JUANITA DIXON, a human being, attempt to kill the said JUANITA DIXON by hitting her or choking her, in violation of Florida Statutes 782.04(1)(a)1 and 777.04(1);
Juanita Dixon testified at trial that she had separated from appellant, her husband of twenty-two years, for a few years before May 1990, when she lived with him for a few days. Mrs. Dixon testified that something unusual happened on the afternoon of August 18, 1990:
It was about 4:30 in the afternoon. [Appellant] came up in my daughter's car and came in the house and, you know, we sat down and started talking.
Shortly after we--Well, we just talked a little while. Then I said, "Are you going to stay now or are you going to leave with my daughter?" He said, "I'll stay." I said, "No don't you stay, just leave with her."
So, we, you know, argued back and forth whether he was going to stay or whether he was going to leave. So I said, "Well, the heck with it," you know. "Just stay because I don't feel like arguing." So my daughter just, you know, she waited to see whether he was going to stay or leave ...
So she got in her car and she left, and by the time she left, he said, "I was just waiting until she leave, I'm going to kill you,"
Mrs. Dixon indicated that this had not been a violent argument and she thought appellant, when he said this, "was jiving" because, at the point when appellant said this, they were sitting in the living room looking at television. Mrs. Dixon testified that appellant walked in the kitchen while she was still in the living room watching television, She indicated appellant "had his hands and things around my neck choking me." She testified appellant hit her several times in her jaw and that she "had some bruises and things around my neck and my ribs." She testified appellant hit her with a closed hand and did not really say anything while he was hitting her. She testified appellant "grabbed me around my neck, and he was ... choking me." Mrs. Dixon indicated that as a result of appellant's choking her she passed out "for about ten minutes." She indicated that when she came to appellant "was in my purse." When she regained consciousness, Mrs. Dixon ran over to the neighbor's home, the Kruegers, to seek help. She testified Mr. Krueger called 911 and she spoke to the woman at 911.
Mrs. Dixon testified that after this an ambulance came and picked her up taking her to Leesburg Regional Medical Center. After her trip to the hospital that night she had to make three further trips to the hospital for x-rays the following Monday, Wednesday and Friday. She testified she "had bruises all around my neck and my jaw." Mrs. Dixon testified that appellant stated he was going to kill her "maybe no more than two" times.
Discussing jury instructions, the prosecutor later stated:
My understanding of the definition of the case law is that there has to be something like a broken bone, something that's life threatening to meet that definition and in this case I don't think that we have that. What I think we may have is use of a deadly weapon so I've included that.
Defense counsel objected that there had been no evidence of a weapon. The trial court later noted that the instructions state that a weapon is a deadly weapon if it is used or threatened to be used in a way likely to produce death or great bodily harm. Defense counsel objected to any mention of deadly weapons, but the trial court stated he was going to leave in the instruction.
In his summation, defense counsel argued:
We don't have a deadly weapon anywhere in this courtroom, except I think the state might say...
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