PETER LEE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Peter Lee appeals his conviction for battery, challenging the trial court's denial of a directed verdict on the aggravated battery charge and the admission of evidence regarding the victim's injuries. The appellate court affirms, finding the deadly weapon aggravated battery charge became moot when the jury convicted only of battery, and any error in admitting injury evidence was harmless.
The directed verdict issue is moot because Lee was convicted of battery, not aggravated battery. The admission of injury evidence, while potentially erroneous because it was not material to the deadly weapon charge, was harmless error because the evidence clearly established that battery was committed and there is no indication the jury was inflamed or that Lee was unduly prejudiced.
[1] A question regarding the sufficiency of evidence for a charge is rendered moot when the defendant is convicted of a lesser included offense for which the sufficiency of e…
[2] Evidence of bodily harm is immaterial to a charge of aggravated battery based solely on the use of a deadly weapon.
Previewing 2 of 3 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“Appellant was convicted not of aggravated battery, but of battery. The question is moot.”
Establishes that the directed verdict issue on the deadly weapon charge became moot because conviction was only for battery, the lesser included offense.
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Join FLexlaw to unlock all legal intelligenceLee was charged with aggravated battery by use of a deadly weapon (Tae-Kwon-Do, a martial arts combat method). The charging document originally includ…
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DAUKSCH, Judge.
This is an appeal from a conviction of battery. Appellant was charged with aggravated battery by use of a “deadly weapon, to wit: Tae-Kwon-Do.” Tae-Kwon-Do is a method of combat. Appellant urges the trial court erred in refusing to direct a verdict as to the aggravated battery charge because there was no proof regarding the use of a deadly weapon to commit the battery. It is an interesting question but we cannot answer it because appellant was convicted not of aggravated battery, but of battery. The question is moot. Appellant requests a new trial on battery but he has been fairly tried and convicted of that offense. The evidence is sufficient and he does not challenge the sufficiency of the evidence as to the battery conviction.
As a second point on appeal appellant argues the court erred in allowing evidence regarding the injuries suffered at the hands of appellant. The aggravated battery statute provides for alternative methods of violating it.1 The state chose to charge this appellant with violating it by use of a deadly weapon and not by causing bodily harm. In fact, a reading of the charging document reveals the appellant had been charged in both ways — bodily harm and deadly weapon — but the bodily harm part was crossed out. The case went to the jury as a deadly weapon case, so it is immaterial to the charge that the victim was injured. L.D. v. State, 355 So. 2d 816 (Fla. 3d DCA 1978). It may very well be error to admit evidence which is not material to a charge, especially if the evidence is emotional, inflammatory or meant to mislead. However, because the evidence is quite clear that the battery was committed and we cannot determine that the jury was, or could have been, inflamed enough to reach an unjust or incorrect verdict or that the accused was unduly prejudiced, any error was harmless. Compare McGriff v. State, 417 So. 2d 300 (Fla. 3d DCA 1982); See Eaton v. State, 307 So. 2d 915 (Fla. 3d DCA 1975).
AFFIRMED.
FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur. . Section 784.045, Florida Statutes (1981) provides:
(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.
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Citator
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D.C. v. State, 567 So. 2d 998 (Fla. 1st DCA 1990)…his issue, but showed only that this particular victim suffered some harm. Other courts have found such proof irrelevant when the state charges aggravated battery, not based on great bodily harm, but on the use of a deadly weapon. See, Lee v. State, 444 So. 2d 580, 581 (Fla. 5th DCA 1984); accord Edwards v. State, 530 So. 2d 936, 938 (Fla. 4th DCA 1988), affirmed 548 So. 2d 656 (Fla.1989). We therefore find that, based on the foregoing authorities, there was insufficient evidence to support the trial court’s…
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Jones v. State, 453 So. 2d 1192 (Fla. 3d DCA 1984)…ury could find this appellant guilty and we cannot say that the jury was inflamed enough by the evidence of the other sexual assault to reach an unjust or incorrect verdict, or that appellant was unduly prejudiced by its admission. See Lee v. State, 444 So. 2d 580 (Fla. 5th DCA 1984). We add, however, the cautionary note expressed by this court in Molina v. State, 447 So. 2d 253 (Fla. 3d DCA 1983): Merely because error can be rendered harmless because of other evidence, it is error nonetheless. Although a co…
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Derinda Edwards v. State, 530 So. 2d 936 (Fla. 4th DCA 1988)…atter requires evidence of the injuries inflicted. While admitting testimony regarding the nature and extent of the victim’s injuries may have been error, it was nonetheless harmless and cannot be said to have affected the verdict. See Lee v. State, 444 So. 2d 580 (Fla. 5th DCA 1984). AFFIRMED. LETTS and GLICKSTEIN, JJ., concur.…
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
- McGRIFF v. State, 417 So. 2d 300 (Fla. 3d DCA 1982)
- Eaton v. State, 307 So. 2d 915 (Fla. 3d DCA 1975)
- L. B. v. State, 355 So. 2d 816 (Fla. 3d DCA 1978)