DAVID P. DROTAR, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Drotar was charged with second-degree murder for kicking and beating a victim, but was convicted of aggravated battery instead. He appeals the jury instruction on aggravated battery, arguing it is not a lesser included offense of homicide.
The trial court did not err in giving the aggravated battery instruction. The instruction was proper because the facts presented a genuine issue for the jury as to whether the victim's death resulted from the defendant's assault or from the fall from the stretcher, and the defendant waived his objection by first requesting a simple battery instruction.
[1] A jury instruction on aggravated battery is permissible in a homicide case when the evidence presents an issue as to whether the victim's death was caused by the defendan…
[2] A defendant who requests a jury instruction on a lesser offense, such as simple battery, may not later complain that an instruction on a related offense, such as aggravat…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Martin holds that it is not error to refuse an instruction on aggravated assault as a lesser degree of second-degree murder where, based on the facts, the only issue is whether the homicide was lawful or unlawful.”
Distinguishes prior case law and explains why aggravated battery instruction was proper here due to factual questions about causation
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDrotar engaged in a violent fight with the victim, kicking him in the stomach and stomping on his chest while the victim was on the ground. After Drot…
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FERGUSON, Judge.
Appellant, charged with second-degree murder, was convicted of aggravated battery. He contends that the court erred in giving an instruction on aggravated battery.
The material facts show that appellant and the victim had engaged in a violent fight, during the course of which the victim, while lying on the ground, was kicked in the stomach and stomped in the chest. After appellant left the scene, bystanders, intending to transport the semiconscious victim to a hospital, placed him onto a makeshift stretcher. While being moved, the victim rolled off the wooden “stretcher” onto a parked car, striking the windshield. The cause of death was diagnosed as internal bleeding caused by blunt trauma.
By information, appellant was charged with second-degree murder, in that he “did ... unlawfully kill a human being ... by ... kicking and beating, ... an act imminently dangerous to another, and evincing a depraved mind regardless of human life, ... . ” At the charge conference, appellant requested a lesser included instruction on simple battery. The state then requested that the court give an instruction on aggravated battery.1 Appellant’s objection — that aggravated battery is not a lesser included offense of a homicide — was overruled.
Martin v. State, 342 So. 2d 501 (Fla.1977), relied upon by appellant, cannot be interpreted as holding that jury instructions are restricted to all degrees of homicide in any case where death ensues. Martin holds that it is not error to refuse an instruction on aggravated assault as a lesser degree of second-degree murder where, based on the facts, the only issue is whether the homicide was lawful or unlawful. There is a distinction between Martin v. State, supra; Brown v. State, 245 So. 2d 68 (Fla. 1971); Sadler v. State, 222 So. 2d 797 (Fla. 2d DCA 1969), all cases cited by appellant, and the instant case. In none of the cited cases was there an issue as to whether the victim’s death was at the hands (or feet) of the defendant. On the peculiar facts of this case there was an issue for the trier of fact as to whether the victim’s fall from a stretcher, after the altercation, was the cause of death. Cf. State v. Simone, 431 So. 2d 718 (Fla. 3d DCA 1983) (death of the victim by gunshot wound as charged, not being an issue, an instruction on manslaughter by culpable negligence was sufficient and there was no requirement for a separate instruction on culpable negligence not resulting in death).
Further, the appellant having first requested that the court give an instruction on battery, which is not a degree of homicide, will not be heard to complain that an instruction on aggravated battery was erroneous, where, as here, the instruction is consistent with the allegations and proof. Fla.R.Crim.P. 3.510.
Affirmed.
. The information fairly sets forth the elements of aggravated battery:
Sec. 784.045 Aggravated battery.—
(1) A person commits aggravated battery who, in committing battery:
(a) Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or (b) Uses a deadly weapon.
Although the state relies on Section 784.-045(1)(a) of the aggravated battery statute, (l)(b) may also be applicable. There is considerable authority that feet, when used to inflict serious harm, may be a deadly weapon. Kirby v. State, 145 Ga.App. 813, 245 S.E. 2d 43 (1978) (fist and feet generally are not deadly weapons under state’s aggravated assault statute; however, depending on the manner and means of use, they may be found to be a deadly weapon by the trier of fact); State v. Born, 280 Minn. 306, 159 N.W. 2d 283 (1968) (evidence that defendant knocked the victim to the floor with his fist and then proceeded to kick him was held sufficient to sustain a conviction for assault with a dangerous weapon); Pulliam v. State, 298 So. 2d 711 (Miss. 1974) (although use of feet and fist ordinarily does not constitute the use of “deadly weapons” they can constitute “deadly weapon” if used in a manner or with force likely to produce death). See also M.R.R. v. State, 411 So. 2d 983 (Fla. 3d DCA 1982) (whether an instrument used in a battery is a deadly weapon is ordinarily a question of fact).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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In re Standard Jury Instructions in Criminal Cases, 543 So. 2d 1205 (Fla. 1989)…herefore, for offenses occurring on or after October 1, 1987, the Court has accepted the statutory alternative which places the burden of proof of entrapment on the defendant. * But see0 Martin v. State, 342 So. 2d 501 (Fla.1977); Drotar v. State, 433 So. 2d 1005 (Fla. 3d DCA 1983), holding that nonhomicide lessers should not be given when the only issue is whether the death was a lawful or unlawful homicide, but should be given if there is an issue of causation, i.e., whether death was caused by defendant’s…
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Humphrey v. State, 690 So. 2d 1351 (Fla. 3d DCA 1997)…nvolved. 'Whether an aggravated assault occurred as part of a crime that culminated in the death of the victim is patently immaterial. Id. at 502-03. Defendant argues, however, that his case comes within an exception recognized in Drotar v. State, 433 So. 2d 1005 (Fla. 3d DCA 1983). Defendant reads that case to say that if there is a question about who brought about the victim’s death, then the defendant is entitled to a non-homicide lesser included offense. Defendant reads the case too broadly. In Drotar:…
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Rossi v. State, 602 So. 2d 614 (Fla. 4th DCA 1992)…homicide case are restricted to the degrees of murder, manslaughter, and justifiable and excusable homicide and held that the trial court did not err by refusing to instruct the jury on aggravated assault. However, we believe that Drotar v. State, 433 So. 2d 1005 (Fla. 3d DCA 1983), review denied, 443 So. 2d 979 (Fla.1984), more appropriately governs the present case. In Drotar, a defendant charged with second degree murder was convicted of aggravated battery. On appeal he contended that the trial court erre…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 245 So. 2d 68 (Fla. 1971)
- Martin v. State, 342 So. 2d 501 (Fla. 1977)
- Sadler v. State, 222 So. 2d 797 (Fla. 2d DCA 1969)
- Goodwill Indus. OF S. Fla., Inc. v. Ne. Fire Ins. Co. of Pa., 411 So. 2d 983 (Fla. 3d DCA 1982)
- M.R.R. v. State, 411 So. 2d 983 (Fla. 3d DCA 1982)
- State v. Jacques Simone, 431 So. 2d 718 (Fla. 3d DCA 1983)