Zellars v. State, 97-364

• Decision Date: 09 January 1998
• Docket Number: No. 97-364,97-364
• Citation: 707 So.2d 345
• Parties: 23 Fla. L. Weekly D169 Carlos ZELLARS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 345

707 So.2d 345

23 Fla. L. Weekly D169

Carlos ZELLARS, Appellant, v. STATE of Florida, Appellee.

No. 97-364.

District Court of Appeal of Florida,

Fifth District.

Jan. 9, 1998.

Order Granting Rehearing

March 20, 1998.

James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.

W. SHARP, Judge.

Zellars appeals from his conviction for attempted aggravated battery, ¹ after a jury trial, and his departure sentence upward from the guidelines of 45 months in prison. We affirm the conviction but remand for resentencing.

Zellars claims that the trial judge erred by not granting his motion for judgment of acquittal at the close of the state's case and at the conclusion of the defense case. He argues that there was no evidence or insufficient evidence to prove that he intended to cause the victim, Tamika Roland, great bodily harm, permanent disability or permanent disfigurement as required by section 784.045(1)(a)1., Florida Statutes. Although this is a close case, we think the evidence was sufficient to allow the trial judge to submit it to the jury. ²

The evidence presented during the state's case viewed in a manner to uphold the trial judge's decision, ³ was that Zellars commenced the altercation with Tamika Roland by grabbing her bottom three times, despite her protests and threat to throw her soda on him if he did not stop. They were at an intersection where a number of other teenagers were hanging out. When he did not stop, Tomika threw the soda and jumped into a friend's car.

Zellars jumped into the car after her and started choking her with his hands. He was 23-years-old at the time, and she was 15. She testified he had his hands on her neck from two to three minutes. She was unable to push him off and could not yell out and scream because she could not breathe. When the other teenagers noticed what was happening, one ran over to another male, and urged him to intervene. He did so, and pushed Zellars away from Tamika.

Then the two men got into a fight in the car and outside, resulting in the rear window being kicked out. As soon as possible, the driver sped off with Tamika in the front passenger seat. She drove to Tamika's aunt's house. At that point, Tamika testified she was unable to move. Fearful that her neck might have been damaged, they put her on top of the car and called for emergency help. The ambulance driver and paramedics strapped her to a board and took her to an emergency room for x-rays and further treatment.

The emergency room doctor who treated Tamika testified her neck had not been broken, but she had suffered a bruised neck. He also testified that it is possible for a strong person to break a victim's neck by choking, or to crush the victim's trachea or larynx. These injuries could be serious and life-threatening.

Tamika's mother also testified. She said the defendant had spoken to her on the telephone and asked her to drop the charges. She said he admitted choking Tamika. He also apologized.

Zellars testified for the defense. He denied grabbing Tamika's bottom. He said he merely tapped her on her leg in a playful manner. He claimed she threw the soda at him and he grabbed the soda and threw it back on her. Then he was grabbed from behind by someone and beaten up. He denied he had ever put his hands around her neck, and that he hurt Tamika in any way. He stated he had no intent to cause Tamika great bodily harm. He also denied he made any telephone call to Tamika's mother in which he admitted any wrong-doing.

At the conclusion of the trial, the jury could have (and did) choose to disbelieve Zellars' protestations of innocence, thereby establishing grounds for the jury's finding on intent to cause the victim great bodily harm, permanent disability or permanent disfigurement. At the conclusion of the state's case, proof of Zellars' intent was circumstantial, and stemmed from the other witnesses' testimony about his actions. He was much larger and older than the victim; the victim was strangled for three minutes and could not cry out or breathe; and he was only stopped from continuing to strangle her by the intervention of another man. We think the question of his intent in this case was properly resolvable by the jury. See State v. Gee, 624 So.2d 284 (Fla. 2d DCA 1993); State v. Stenza 453 So.2d 169 (Fla. 2d DCA 1984); Fletcher v. State, 472 So.2d 537 (Fla. 5 th DCA 1985).

However, we reverse the sentence imposed in this case and remand for resentencing under the guidelines. We do not think that the record supports the reasons given by the trial judge for an upward departure sentence. Zellars' prior conviction for aggravated battery, coupled with this offense, does not create an escalating pattern of criminal conduct. Glenn v. State, 623 So.2d 596 (Fla. 5th DCA 1993); Browning v. State, 625 So.2d 960 (Fla. 5th DCA 1993). Further, the record fails to establish the times Zellars committed other prior offenses (grand theft auto and unlawful possession of a controlled substance--both non-violent offenses) in relation to the battery offenses.

AFFIRMED in part; REVERSED in part; REMANDED for resentencing.

COBB, J., concurs specially with opinion.

HARRIS, J., dissents with opinion.

COBB, Judge, concurring specially.

I concur with the majority opinion that the conviction in this case should be affirmed. I do so, however, with some misgivings because it seems to me that we may be opening a prosecutorial Pandora's box that can plague us in the future with the concept of criminal attempt.

In this case, there was available to the state from the outset a simple prosecution for battery against Zellars. Based upon the statutory criteria of section 784.045, Florida Statutes (1995), the charge of aggravated battery was not available--there was no great bodily harm, permanent disability or permanent disfigurement inflicted, no deadly weapon was utilized, and the victim was not pregnant. But by ignoring these objective facts relating to the battery, which are contemplated by the statutory law, and, instead, concentrating on the subjective intent of the offender, the state has succeeded in elevating this apparent misdemeanor into the third degree felony of attempted aggravated battery ¹ and obtaining a conviction therefor. By charging an attempted aggravated battery, the state has shifted the focus of the inquiry away from the statutory factors and directed it to Zellars' intent, which can only be induced from circumstantial evidence. This gives rise to much more complex and enigmatic considerations. See, e.g., State v. Law, 559 So.2d 187 (Fla.1989).

In this case there was a reasonable hypothesis of the innocence of Zellars in respect to the felony offense of attempted aggravated battery: i.e., in a moment of anger in response to an offensive action by the victim he choked her without intending to inflict great bodily harm, permanent disability or permanent disfigurement--and, indeed, none of those consequences ensued. ² Given the reasonableness of that hypothesis, it became the burden of the state at trial to produce competent, substantial evidence to contradict it, or suffer a judgment of acquittal. Law at 189. The state struggled with that burden in this case. It introduced no evidence of any threats at any time by Zellars to kill or seriously injure the victim, nor any admissions by him that such was ever his intent. The mere fact of the choking itself is no more proof of intent to inflict great bodily harm than it is proof of intent to commit some bodily harm. Indeed, the words from the offender during the incident, which were introduced into evidence by the state, seem more indicative of the latter intent than of the former.

The argument of the state is summarized by two sentences in its appellate brief:

When someone gets choked around the neck area, if the perpetrator is strong enough, it is possible to break the neck, crush the larynx, or crush the trachea. Any of these injuries are serious and can lead to death.

In other words, anything is possible. It is an obvious fact that death can result from choking that could be judicially noted without any medical testimony at all. But the state's argument that that possibility alone establishes a prima facie case of attempted aggravated battery leads down a slippery slope. It would logically follow that a thief who steals less than $300 (ostensibly petit theft) may be prosecuted for attempted grand theft in the first degree (a second degree felony) on the theory that had more than $10,000 been available for the taking he obviously would have taken it. A late punch to the head by a boxer after the bell can become the basis for a charge of attempted homicide since medical testimony is readily available that death can result from a blow to the head. Once upon that slide, there is very little to restrain an imaginative prosecutor in the filing of charges based upon the concept of attempt. It is interesting to note the case of Velasquez v. State, 654 So.2d 1227 (Fla. 2d DCA 1995), wherein the state elevated counts of aggravated assault into counts of attempted first degree murder, ultimately resulting in the defendant's acquittal.

Nevertheless, I have concurred with upholding the conviction in this case because of one factor, and that is the state's evidence that Zellars did not voluntarily release the victim but retained his grip for some two to three minutes until physically forced away by an intervening third party, with whom he then engaged in a fight. That factor sufficiently contradicts Zellars' hypothesis to create a jury issue pursuant to Law.

I also concur with Judge Sharp that the upward departure sentence must be reversed.

HARRIS, Judge, dissenting.

I agree entirely with Judge Cobb's...