5D08-3553 Jeffrey King v. State

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D08-3553

Case Date: 07/06/2009

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2009

JEFFREY M. KING, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed July 10, 2009. Appeal from the Circuit Court for Seminole County Marlene M. Alva, Judge. James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee. Case No. 5D08-3553

COBB, W., Senior Judge. The appellant, Jeffrey Michael King, was convicted of aggravated assault on Jeffrey Lee King in violation of section 784.021(1), Florida Statutes (2007), and of animal cruelty in the death of a dog in violation of section 828.12(2), Florida Statutes

(2007).1 The charges arose as the result of an altercation between JMK and King at the latter's home. At trial there were few conflicts in the testimony as to the factual events. JMK did not testify. King's version was that he forcefully ejected JMK from his home after an argument. Apparently King's dog, an Akita and German Shepherd mix, went outside of the home at the same time. JMK's teenage son, Kyle, who was staying at King's home with his mother, was also present during the incident. Both King and Kyle testified that the dog had never bitten anyone and did not growl or bark at JMK inside the house. A man named Burke, who had driven JMK to the home, was parked outside in his SUV waiting for him. Some thirty seconds after King had closed the door behind JMK, he and Kyle heard the dog yelp outside. King opened the front door and the dog, whimpering and dripping blood from a chest wound, came limping back into the house and died within a matter of minutes. None of the witnesses -- King, Kyle, or Burke -- heard any

disturbance prior to the dog's yelp. After letting the dog back into the house, King went outside and approached Burke's vehicle. JMK was sitting in the passenger side of the SUV with the door closed and the window rolled up. King angrily struck the windshield with his fist and yelled at JMK to get out of the vehicle. The testimony of King and Burke was in conflict as to whether the SUV was stationary or backing up at this point in time. It is undisputed, however, that at that point JMK brandished an open pocket knife with a four or five inch

Given the similarity of the names of the defendant below (Jeffrey Michael King) and the putative victim of the aggravated assault (Jeffrey Lee King) we will refer to them respectively as JMK (or appellant) and King. 2

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blade and asked King, "[Y]ou want some too." King testified that he was in fear that JMK would exit the vehicle and use the knife on him. JMK then told Burke to leave, and they drove away. JMK raises three issues on appeal, challenging: (1) the trial court's rejection of his request for a jury instruction on misdemeanor animal cruelty as a necessary lesser included offense of felony animal cruelty; (2) the trial court's refusal to charge the jury on self-defense in respect to the animal cruelty count; and (3) the trial court's denial of his motion for judgment of acquittal as to aggravated assault perpetrated against King. The first issue involves construction of section 828.12, Florida Statutes, which provides in relevant part: (1) A person who unnecessarily overloads, overdrives, torments, deprives of necessary sustenance or shelter, or unnecessarily mutilates, or kills any animal, or causes the same to be done, or carries in or upon any vehicle, or otherwise, any animal in a cruel or inhumane manner, is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or by a fine of not more than $5,000, or both. (2) A person who intentionally commits an act to any animal which results in the cruel death, or excessive or repeated infliction of unnecessary pain or suffering, or causes the same to be done, is guilty of a felony of the third degree, punishable as provided in s. 775.082 or by a fine of not more than $10,000, or both.

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