E.A. v. State, 91-1368
| Decision Date | 26 May 1992 |
| Docket Number | No. 91-1368,91-1368 |
| Citation | 599 So.2d 251 |
| Parties | 17 Fla. L. Weekly D1332 E.A., a juvenile, et al., Appellants, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender and Louis Campbell, Asst. Public Defender, for appellants.
Robert A. Butterworth, Atty. Gen., Richard L. Polin, Asst. Atty. Gen. and Jonathan Gelman, Certified Legal Intern, for appellee.
Before SCHWARTZ, C.J., and GERSTEN and GODERICH, JJ.
The respondents below, E.A., C.G., W.A., J.F. and V.F., appeal from their adjudications of delinquency for aggravated battery. We affirm the adjudications as to E.A. and C.G., but reverse the adjudications as to W.A., V.F. and J.F. and remand with instructions to reduce their adjudications to attempted aggravated battery.
The charges against the respondents arose from an attack on Alvaro Pio Gomez [the victim]. E.A. and C.G. were charged with attempted robbery, aggravated battery, and the obstruction of law enforcement officers without the use of violence. W.A. and J.F. were charged with attempted aggravated battery. V.F. was charged with attempted aggravated battery and attempted robbery.
On April 5, 1991, Officer Durso and Officer Duke witnessed the respondents attacking the victim. Officer Durso testified that he saw V.F. shove and then punch the victim in the face. The other respondents joined in and started to hit the victim ten to twelve times. Thereafter, V.F. punched the victim knocking him to the ground. The other respondents continued to kick the victim. When Officer Durso arrived at the scene, he saw V.F. searching the victim's pockets. At that point, the respondents fled. After apprehending several of the respondents, Officer Durso returned to the scene. Officer Durso noticed that the victim had a large bruise on his cheek, a swollen jaw, and that the victim was unconscious.
Officer Duke testified that V.F. was the first one to strike the victim, and thereafter, the remaining respondents started to attack the victim. When the victim fell to the ground, the five respondents kicked the victim in the head, ribs and body. When Officer Duke approached the scene, the respondents fled. Thereafter, Officer Duke noticed that the victim had a swollen eye, a swollen jaw, and abrasions.
The victim testified that he did not remember the attack. The victim was released from the hospital that same evening because "nothing was wrong." The victim, however, did notice that he had a mark under his eye that was not there prior to the attack.
During closing argument, the prosecutor referred to the mark under the victim's eye as a "scar or bruise." When the defense counsel objected to the prosecutor's statement, the trial court responded, "I saw the victim's face."
The trial court found C.G. and E.A. guilty of aggravated battery and resisting arrest. The trial court found V.F. guilty of aggravated battery and attempted robbery. Finally, the trial court found W.A. and J.F. guilty of aggravated battery. The respondents appeal.
The respondents contend that the trial court erred in finding them guilty of aggravated battery where the State failed to prove that the battery resulted in great bodily harm, permanent disability or permanent disfigurement. 1 We disagree.
The issue of whether a victim incurred great bodily harm, permanent disability, or permanent disfigurement is a question of fact. Owens v. State, 289 So.2d 472, 474 (Fla. 2d DCA 1974). The fact finder's findings should not be disturbed on appeal where the findings are supported by sufficient competent evidence. Owens, 289 So.2d at 474. "Great bodily harm defines itself and means great as distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises as are likely to be inflicted in a simple assault and battery...." Owens v. State, 289 So.2d 472, 474...
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