4D07-338-Severance v. State*

SUPREME COURT CASES

Laws-info.com » Cases » Florida » Fourth District Court of Appeal » 2007 » 4D07-338-Severance v. State*

State: Florida

Court: Florida Southern District Court

Docket No: 4D07-338.op

Case Date: 03/01/2007

Plaintiff: 4D07-338-Severance

Defendant: State*

Preview:DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2007

PAUL PHILLIP SEVERANCE, Appellant, v. STATE OF FLORIDA, Appellee. No. 4D07-338 [December 13, 2007] EN BANC GUNTHER, J. Appellant, Paul Phillip Severance, seeks review of his judgment and sentence for aggravated battery with a deadly weapon. He argues that the trial court fundamentally erred in instructing the jury on the aggravated battery charge because the instructions did not provide that the State was required to prove that Severance touched the victim with the deadly weapon in committing the battery. We find no merit in Severance's argument and affirm his conviction and sentence. We also recede from our decision in Munoz-Perez v. State, 942 So. 2d 1025 (Fla. 4th DCA 2006). The facts established at trial were that the victim was at her apartment one night watching television with her nine-year-old son when Severance, her boyfriend at the time, knocked on her door. The victim gave Severance permission to enter her apartment. When the victim asked Severance where he had been all day, Severance became very angry and hit the victim on the face with a closed fist. The victim told her son to go into the other room, and Severance continued to hit the victim. Severance then went into the kitchen to get a knife, and when he returned from the kitchen, he pushed the victim onto the couch and threatened to kill her. The victim testified that Severance put the knife to the victim's throat, and the victim tried to grab the knife to prevent Severance from cutting her with it. The victim further testified that throughout the whole time, Severance was choking her with one hand and hitting her with the other hand. The victim's son testified that he
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observed the entire incident and that Severance was "fixing to slit my mom's throat." The son also testified that when he tried to get Severance off of his mother, Severance pulled him back by his hair. During the charge conference, the trial court granted the defense's request to include a special jury instruction on aggravated battery that "bare hands are not a deadly weapon." Once that request was granted, defense counsel raised no further objections to the instruction on aggravated battery, and the trial court gave the following instruction: To prove the crime of aggravated battery, the State must prove the following two elements beyond a reasonable doubt: The first is the definition of battery, and that is that, one, that Phillip [sic] Severance intentionally touched or struck [the victim] against her will. And, two, that Paul Severance in committing the battery used a deadly weapon. A weapon is a deadly weapon if it is used or threatened to be used in a way likely to cause--likely to produce death or great bodily harm. Bare hands are not a deadly weapon. The jury returned a verdict finding Severance guilty of aggravated battery with a deadly weapon on the victim as well as simple battery on the victim's son. On appeal, Severance challenges only his conviction for aggravated battery with a deadly weapon arguing that the jury instructions given do not make it clear that to "use a deadly weapon" under the aggravated battery statute, the State must prove beyond a reasonable doubt that the defendant actually touched the victim with the deadly weapon to commit the battery. Relying on Munoz-Perez, Severance contends that the instruction is misleading and constitutes fundamental, reversible error because the instruction improperly allowed the jury to convict him of aggravated battery if it found that he, while committing the battery, used a knife without touching the victim. In Munoz-Perez, this Court concluded that the appellant's possession of the knife was insufficient to satisfy the requirement that he was using a deadly weapon while committing a battery. 942 So. 2d at 1026. The testimony at trial was that the appellant grabbed the victim and held a sharp knife "near her throat" and also swung the knife in a threatening manner. Id. The appellant argued on appeal that because he never touched the victim with the knife, there was insufficient evidence to prove aggravated battery. Id. at 1027. This Court agreed, and reversed appellant's conviction for aggravated battery concluding that the trial court should have granted appellant's motion for judgment of acquittal
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on the aggravated battery charge. Id. at 1028. This Court stated: The issue of whether there must be a touching with the deadly weapon in order to prove aggravated battery by using a deadly weapon has not been decided by any of the cases cited by the appellant or the state. .... Our supreme court has noted that the legislature has made a distinction between carrying a deadly weapon and using a weapon in our statutes, in State v. Baker, 452 So. 2d 927 (Fla. 1984) and Owens v. State, 475 So. 2d 1238 (Fla. 1985). We conclude, based on these cases, that the element "uses a deadly weapon" in the aggravated battery statute means using the weapon to commit the touching that constitutes the battery. Id. at 1027-28. However, we conclude that our interpretation in Munoz-Perez of the element "use a deadly weapon" under section 784.045(1)(a)(2), Florida Statutes (2005) is incorrect. Section 784.045(1)(a)(2) defines "aggravated battery" as follows: (1)(a) A person commits aggravated battery who, in committing battery: *** 2. Uses a deadly weapon.

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