King v. State

• Decision Date: 10 July 2009
• Docket Number: No. 5D08-3553.,5D08-3553.
• Citation: 12 So.3d 1271
• Parties: Jeffrey M. KING, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

12 So.3d 1271

Jeffrey M. KING, Appellant, v. STATE of Florida, Appellee.

No. 5D08-3553.

District Court of Appeal of Florida, Fifth District.

July 10, 2009.

James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.

COBB, W., Senior Judge.

The appellant, Jeffrey Michael King, was convicted of aggravated assault on Jeffrey Lee King in violation of section 784.021(1), Florida Statutes (2007), and of animal cruelty in the death of a dog in violation of section 828.12(2), Florida Statutes (2007).¹ The charges arose as the result of an altercation between JMK and King at the latter's home.

At trial there were few conflicts in the testimony as to the factual events. JMK did not testify. King's version was that he forcefully ejected JMK from his home after an argument. Apparently King's dog, an Akita and German Shepherd mix, went outside of the home at the same time. JMK's teenage son, Kyle, who was staying at King's home with his mother, was also present during the incident. Both King and Kyle testified that the dog had never bitten anyone and did not growl or bark at JMK inside the house. A man named Burke, who had driven JMK to the home, was parked outside in his SUV waiting for him.

Some thirty seconds after King had closed the door behind JMK, he and Kyle heard the dog yelp outside. King opened the front door and the dog, whimpering and dripping blood from a chest wound, came limping back into the house and died within a matter of minutes. None of the witnesses—King, Kyle, or Burke—heard any disturbance prior to the dog's yelp.

After letting the dog back into the house, King went outside and approached Burke's vehicle. JMK was sitting in the passenger side of the SUV with the door closed and the window rolled up. King angrily struck the windshield with his fist and yelled at JMK to get out of the vehicle. The testimony of King and Burke was in conflict as to whether the SUV was stationary or backing up at this point in time. It is undisputed, however, that at that point JMK brandished an open pocket knife with a four or five inch blade and asked King, "[Y]ou want some too." King testified that he was in fear that JMK would exit the vehicle and use the knife on him. JMK then told Burke to leave, and they drove away.

JMK raises three issues on appeal, challenging: (1) the trial court's rejection of his request for a jury instruction on misdemeanor animal cruelty as a necessary lesser included offense of felony animal cruelty; (2) the trial court's refusal to charge the jury on self-defense in respect to the animal cruelty count; and (3) the trial court's denial of his motion for judgment of acquittal as to aggravated assault perpetrated against King.

The first issue involves construction of section 828.12, Florida Statutes, which provides in relevant part:

(1) A person who unnecessarily overloads, overdrives, torments, deprives of necessary sustenance or shelter, or unnecessarily mutilates, or kills any animal, or causes the same to be done, or carries in or upon any vehicle, or otherwise, any animal in a cruel or inhumane manner, is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or by a fine of not more than $5,000, or both.

(2) A person who intentionally commits an act to any animal which results in the cruel death, or excessive or repeated infliction of unnecessary pain or suffering, or causes the same to be done, is guilty of a felony of the third degree, punishable as provided in s. 775.082 or by a fine of not more than $10,000, or both.

§ 828.12(1)-(2), Fla. Stat. (2007). Subsection (1), the misdemeanor provision, criminalizes the unnecessary killing of an animal. Subsection (2), the felony provision, proscribes an intentional act resulting in an animal's cruel death. The Florida Standard Jury Instructions lend no support to appellant's argument. See In re Standard Jury Instructions in Criminal Cases-Report No. 2007-03, 976 So.2d 1081, 1096 (Fla.2008) (listing no lesser included offenses for felony animal cruelty); Welsh v. State, 850 So.2d 467, 469 (Fla.2003) (quoting Welsh v. State, 816 So.2d 175, 176-77 (Fla. 1st DCA 2002)). As pointed out by the State, it is conceivable that an animal could be necessarily killed in a cruel manner; this would violate subsection (2) of the statute (felony) but not subsection (1) of the statute (misdemeanor). See State v. Wimberly, 498 So.2d 929, 932 (Fla.1986) ("A `necessarily lesser included offense' is, as the name implies, a lesser offense that is always included in the major offense.") Accordingly, we find no merit in the appellant's argument in regard to a lesser included offense.

The second issue raised by the appellant presents more difficulty. We believe the case law supports his argument that he was entitled to a jury instruction on the issue of...