Snyder v. State, 89-1633

• Citation: 564 So.2d 193
• Decision Date: 28 June 1990
• Docket Number: No. 89-1633,89-1633
• Court: Florida District Court of Appeals
• Parties: 15 Fla. L. Weekly D1716 Brenda SNYDER, et al., Appellants, v. STATE of Florida, Appellee.

Page 193

564 So.2d 193

15 Fla. L. Weekly D1716

Brenda SNYDER, et al., Appellants, v. STATE of Florida, Appellee.

No. 89-1633.

District Court of Appeal of Florida,

Fifth District.

June 28, 1990.

Edward L. Scott, P.A., Ocala, for appellants.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for appellee.

W. SHARP, Judge.

Brenda Snyder and her husband, Gerald Snyder, appeal from convictions and sentences imposed for aggravated child abuse. ¹ The trial court departed above the sentencing guidelines, giving written reasons, sentencing each of the appellants to 15 years in prison on one count followed by 10 years of probation on each of two additional counts, the terms of probation to run concurrently. The permitted guidelines range was 2 1/2 to 5 1/2 years of incarceration.

The appellants raise four issues on appeal: (1) that section 827.03, Florida Statutes (1987) is unconstitutional; (2) that the trial court erred in consolidating for trial offenses which occurred on two different dates; (3) that it erred by not granting the appellants' motion for judgments of acquittal; and (4) that the court departed beyond the guidelines for impermissible reasons. We find no merit in the first three points, but we agree the trial court departed for legally insufficient reasons. Accordingly, we affirm the convictions but vacate the sentences and remand for resentencing.

Evidence at trial established the appellants were given custody of Robbie Wilkerson, a fourteen year old boy, by Robbie's aunt. After living with the Snyders for at least several months, Robbie ran away and returned to his aunt's house, saying that he had been abused. A deputy sheriff observed bruises on Robbie's body. Photographs of the boy's severely bruised buttocks, upper legs, and arm were placed in evidence.

While living with the appellants, Robbie was housed at various times in a one-room cottage behind the appellants' mobile home, in a van which did not run, and, for about two months, in a shed made from a horse stall. The latter had no electricity and, apparently, no plumbing. Robbie testified he was handcuffed to the window of the horse stall during the three nights before he escaped, and that when handcuffed he was unable to roll over or go to the bathroom or get a drink of water. Brenda Snyder said the boy was handcuffed because he had threatened to harm the appellants, to burn the house down, and to commit suicide.

Robbie also complained of being spanked, and although the appellants denied knowing anything about the bruises, they told the investigating deputy that they had disciplined Robbie with a wooden paddle, a small dowel used for a balloon, and a plastic baseball bat. The appellants gave the deputy a videotape made in March, 1989, which shows their niece, a young adult woman, hitting Robbie repeatedly with a plastic baseball bat of regulation size while she interrogates him about some missing candy and about letters he wrote to a girl at his school. On the tape, the appellants laugh appreciatively, urge the niece on, advise her how to make the blows more effective by hitting the boy's toes, and tell her to twist Robbie's ear to stop him from holding on to the bat. Although Robbie laughs from time to time during the episode, it is obvious that a number of the blows were painful.

A second videotape, obtained by search warrant, had been made by Brenda Snyder in December 1988. According to Gerald Snyder, the videotape was made in order to protect the appellants against any claim of child abuse. The tape shows Gerald Snyder punishing Robbie for writing obscene letters to a girl at school by paddling him forcefully on his bare buttocks with a wooden paddle which apparently broke in the process. While videotaping the episode, Brenda Snyder made sure that the boy's buttocks were toward the camera, and she taunted her husband for not hurting Robbie enough, as if trying to provoke him into administering more blows.

Robbie testified that he was paddled frequently for the least little thing, that Brenda Snyder hit him with the bat between March 27th and 30th, 1989, and that the bruises shown in the still photographs came from Brenda hitting him with the bat. It could reasonably be inferred from the evidence that the most severe beatings were not videotaped. In general, the appellants did not so much contradict the evidence presented by the prosecution at trial as play down the severity of their treatment of Robbie, claim that it had been justified by Robbie's behavior, and assert that their intentions had been good.

We now turn to the issues raised by the appellants. The Florida Supreme Court has held that the pre-1984 Florida aggravated child abuse statute, section 827.03, is constitutional. Mahaun v. State, 377 So.2d 1158 (Fla.1979); State v. Gaylord, 356 So.2d 313 (Fla.1978); Faust v. State, 354 So.2d 866 (Fla.1978). The amendment to section 827.03 in 1984 merely clarified that one or more of the listed acts constitutes "aggravated child abuse" and did nothing to undermine the supreme court opinions which had held the law to be constitutional.

The trial court did not abuse its discretion by consolidating for trial the offenses of December 1988 with those of March 1989. ² See, e.g., Ashley v. State, 265 So.2d 685 (Fla.1972). The appellants have shown no prejudice as a result of the consolidation, which complied with Florida Rule of Criminal Procedure 3.151 because the offenses, although separated by about three months, were similar and based on connected acts. The same victim and both appellants were involved in both episodes, all purported to be punishments of a child, and all occurred while the victim was living with the appellants. In determining whether two or more acts or transactions are connected, the reviewing court must consider not only the temporal association of the offenses, but also their geographic association, their nature, and the manner in which they were committed. Bundy v. State, 455 So.2d 330, 345 (Fla.1984). See also Warren v. State, 475 So.2d 1027 (Fla. 1st DCA 1985) and Meadows v. State, 534 So.2d 1233 (Fla. 4th DCA 1988).

We hold the trial court did not err by denying the appellants' motion for judgments of acquittal. The evidence was sufficient to send the case to the jury. By moving for judgments of acquittal, the defendants admit not only the facts and evidence adduced, but also every conclusion favorable to the State that a jury might reasonably infer from the evidence. The trial court should not grant the motion unless the evidence is such that no view which the jury may lawfully take of it favorable to the State can be sustained under the law. Herman v. State, 472 So.2d 770 (Fla. 5th DCA 1985), rev. denied, 482 So.2d 348 (Fla.1986). In upholding the trial court on this point we have taken into account section 777.011, Florida Statutes (1987), which provides:

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