author: BASCHAB, Judge.

text:
    Robert HUMPHREY v. STATE of Alabama.
    CR-01-0145.
    Court of Criminal Appeals of Alabama.
    March 1, 2002.
    Rehearing Denied April 19, 2002.

      Mark Smith Nelson, Talladega, for appellant.
    Bill Pryor, atty. gen., and E. Vincent Carroll, asst. atty. gen., for appellee.
   BASCHAB, Judge.

The appellant, Robert Humphrey, was convicted of second-degree domestic violence, a violation of § 13A-6-131, Ala.Code 1975. The trial court sentenced him, as a habitual offender, to serve a term of twenty-five years in prison. See § 13A-5-9(e)(2), Ala.Code 1975. This appeal followed.

The evidence showed that, on December 12, 2000, the victim and the appellant were married and resided together in a mobile home in Talladega. Sometime during that day, they got into an argument, but the argument did not become physical. The victim went to sleep between 8:30 p.m. and 9:00 p.m., but was later awakened by “a hard hit” and noticed that the appellant had a baseball bat in one hand. (R. 82.) The appellant then “snatched” her out of the bed and, while he held the baseball bat in one hand, hit her with his other fist and choked her. (R. 83.) The victim stated that, at some point, they “got in the floor, [the appellant] got on top of me and started choking me and had something in his hand and was hitting me.” (R. 84.) Although she did not see what he used to hit her, she stated that the object felt “hard,” that it was not his fist, and that it “hurt more than his fist.” (R. 85, 86.) As ■ a result of the incident, the victim’s nose and lip bled, her nose was broken, and one of her eyes was swollen shut.

Shortly after the incident, law enforcement officers entered the mobile home and found the appellant in bed asleep. They also found a baseball bat on the floor near the bed, and they testified that it had blood on it.

Dr. William Lawrence examined and treated the victim a few hours after the incident occurred. He testified that her face was swollen and bruised and had marks on it “which would be the kind of pattern [one] would see if she had been struck across the face with a blunt instrument.” (R. 158.) Lawrence also stated that the victim “took a very hard lick and again it would be the kind of injury one would have if struck by a bat or stick or other object with full force across the side of the face.” (R. 170.) Finally, he indicated that the victim’s injuries were not inconsistent with having been hit with a baseball bat.

The appellant argues that the trial court improperly denied his motions for a judgment of acquittal at the close of the State’s case and at the close of his case. Specifically, he contends that the State did not establish that he struck the victim with a deadly weapon or a dangerous instrument.

“A person commits the crime of domestic violence in the second degree if the person commits the crime of assault in the second degree pursuant to Section 13A-6-21, and the victim is a current or former spouse, parent, child, any person with whom the defendant has a child in common, a present or former household member, or a person who has or had a dating or engagement relationship with the defendant.”

§ 13A-6-131(a), Ala.Code 1975.

“A person commits the crime of assault in the second degree if the person does any of the following:
“(2) With intent to cause physical injury to another person, he or she causes physical injury to any person by means of a deadly weapon or a dangerous instrument.”

§ 13A-6-21(a), Ala.Code 1975. In addition, a baseball bat is a deadly weapon. See Hill v. State, 516 So.2d 876 (Ala.Crim.App.1987).

“In deciding whether there is sufficient evidence to support the verdict of the jury and the judgment of the trial court, the evidence must be reviewed in the light most favorable to the prosecution. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). Conflicting evidence presents a jury question not subject to review on appeal, provided the state’s evidence establishes a prima facie case. Gunn v. State, 387 So.2d 280 (Ala.Cr.App.), cert. denied, 387 So.2d 283 (Ala.1980). The trial court’s denial of a motion for a judgment of acquittal must be reviewed by determining whether there existed legal evidence before the jury, at the time the motion was made, from which the jury by fair inference could have found the appellant guilty. Thomas v. State, 363 So.2d 1020 (Ala.Cr.App.1978). In applying this standard, the appellate court will determine only if legal evidence was presented from which the jury could have found the defendant guilty beyond a reasonable doubt. Willis v. State, 447 So.2d 199 (Ala.Cr.App.1983); Thomas v. State. When the evidence raises questions of fact for the jury and such evidence, if believed, is sufficient to sustain a conviction, the denial of a motion for a judgment of acquittal by the trial court does not constitute error. Young v. State, 283 Ala. 676, 220 So.2d 843 (1969); Willis v. State."

Breckenridge v. State, 628 So.2d 1012, 1018 (Ala.Crim.App.1993). Finally,

“ ‘[cjircumstantial evidence is not inferior evidence, and it will be given the same weight as direct evidence, if it, along with the other evidence, is susceptible of a reasonable inference pointing unequivocally to the defendant’s guilt. Ward v. State, 557 So.2d 848 (Ala.Cr.App.1990). In reviewing a conviction based in whole or in part on circumstantial evidence, the test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979).’
“Ward, 610 So.2d at 1191-92.”

Lockhart v. State, 715 So.2d 895, 899 (Ala.Crim.App.1997).

Although the victim did not specifically testify that the appellant hit her with a baseball bat, the State presented sufficient circumstantial evidence from which the jury could have reasonably concluded that he did. Therefore, the trial court properly denied the appellant’s motions for a judgment of acquittal, and we affirm that court’s judgment.

AFFIRMED.

McMILLAN, P.J., and COBB, SHAW, and WISE, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    AMENDMENTS TO THE FLORIDA FAMILY LAW RULES OF PROCEDURE.
    No. SC02-377.
    Supreme Court of Florida.
    Oct. 3, 2002.
    Michael Walsh, Current Chair, West Palm Beach, Florida; Honorable John C. Lenderman, Former Chair, Family Law Rules Committee, St. Petersburg, Florida; and John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, Florida, for Petitioner.
    Norman D. Levin, Longwood, Florida; and Patricia L. Strowbridge, Orlando, Florida, on behalf of the Florida Adoption Council, Responding.
   PER CURIAM.

In Amendments to the Florida Family Law Rules of Procedure, 824 So.2d 95 (Fla.2002), we adopted amendments to Florida Family Law Rule of Procedure 12.200, Case Management and Pretrial Conferences, and Florida Family Law Rules of Procedure Form 12.902(e), Child Support Guidelines Worksheet. Rule 12.200 was amended to reflect statutory changes to the Florida Adoption Act. See ch.2001-3, §§ 13, 16-17, 20, 31, Laws of Fla. (amending §§ 63.062, 63.087, 63.088, 63.097, and 63.212, Fla. Stat. (2000)). The amendments to Florida Family Law Rules of Procedure Form 12.902(e) were made to reflect statutory changes to section 61.30(11), Florida Statutes (2000). See ch.2001-158, § 16, Laws of Fla. In our previous opinion we afforded interested parties an opportunity to comment on the amendments. Amendments to the Florida Family Law Rules of Procedure, 824 So.2d 95 (Fla.2002). Further, the amendments were published for comments in The Florida Bar News on June 15, 2002. We received two comments regarding the amendments.

After considering the comments, we have adopted the following suggestions. Rule 12.200, Case Management and Pretrial Conferences, is hereby amended to clarify that there should be a case management conference when there is a request for a waiver of consent to a termination of parental rights of any person required to consent by section 63.062, Florida Statutes. The amendment to rule 12.200, which is effective immediately, is set forth in Appendix A of this opinion with new language indicated by underscoring and deletions indicated by struck-through type. Further, we amend form 12.902(e), Child Support Guidelines Worksheet, to address additional expenses as well as requests for child support amounts that deviate from the child support guidelines. Form 12.902(e) is amended as set forth in Appendix B of this opinion, effective for immediate use.

We express no opinion as to the correctness or applicability of form 12.902(e), or on the substance of the legislation. This opinion and the form discussed herein may be accessed and downloaded from this Court’s website at www.flcourts.org.

It is so ordered.

ANSTEAD, C.J., SHAW, WELLS, PARIENTE, LEWIS, and QUINCE, JJ„ and HARDING, Senior Justice, concur.

APPENDIX A

RULE 12.200. CASE MANAGEMENT AND PRETRIAL CONFERENCES

(a) Case Management Conference.

(1) Family Law Proceedings, Generally. A case management conference may be ordered by the court at any time on the court’s initiative. A party may request a case management conference 30 days after service of a petition or complaint. At such a conference the court may:

(A) schedule or reschedule the service of motions, pleadings, and other papers;

(B) set or reset the time of trials, subject to rule 12.440;

(C) coordinate the progress of the action if complex litigation factors are present;

(D) limit, schedule, order, or expedite discovery;

(E) schedule disclosure of expert witnesses and the discovery of facts known and opinions held by such experts;

(F) schedule or hear motions related to admission or exclusion of evidence;

(G) pursue the possibilities of settlement;

(H) require filing of preliminary stipulations if issues can be narrowed;

(I) refer issues to a master for findings of fact, if consent is obtained as provided in rules 12.490 and 12.492 and if no significant history of domestic or repeat violence that would compromise the process is involved in the case;

(J) refer the parties to mediation if no significant history of domestic or repeat violence that would compromise the mediation process is involved in the case and consider allocation of expenses related to the referral; or refer the parties to counseling if no significant history of domestic or repeat violence that would compromise the process is involved in the case and consider allocation of expenses related to the referral;

(K) coordinate voluntary binding arbitration consistent with Florida law if no significant history of domestic or repeat violence that would compromise the process is involved in the case;

(L) appoint court experts and allocate the expenses for the appointments;

(M) refer the cause for a home study or psychological evaluation and allocate the initial expense for that study;

(N) appoint an attorney or guardian ad litem for a minor child or children if required and allocate the expense of the appointment; and

(O) schedule other conferences or determine other matters that may aid in the disposition of the action.

(2) Adoption Proceedings. A case management conference shall be ordered by the court within 60 days of the filing of a petition when

(A) there is a request for a waiver of consent to a termination of parental rights by those persons of any person required to consent by section 63.062, Florida Statutes;

(B) notice of the hearing on the petition to terminate parental rights pending adoption is not being afforded. a person whose consent is required but who has not consented;

(C) there is an objection to venue, which was made after the waiver of venue was signed;

(D) an intermediary, attorney, or agency is seeking fees, costs, or other expenses in excess of those provided under sections 63.097 or 63.212(5), Florida Statutes;

(E) an affidavit of diligent search and inquiry is filed in lieu of personal service under section 63.088(4), Florida Statutes; or

(F) the court is otherwise aware that any person having standing objects to the termination of parental rights pending adoption.

(b) Pretrial Conference. After the action is at issue the court itself may or shall on the timely motion of any party require the parties to appear for a conference to consider and determine:

(1) proposed stipulations and the simplification of the issues;

(2) the necessity or desirability of amendments to the pleadings;

(3) the possibility of obtaining admissions of fact and of documents that will avoid unnecessary proof;

(4) the limitation of the number of expert witnesses; and

(5) any matters permitted under subdivision (a) of this rule.

(c) Notice. Reasonable notice shall be given for a case management conference, and 20 days’ notice shall be given for a pretrial conference. On failure of a party to attend a conference, the court may dismiss the action, strike the pleadings, limit proof or witnesses, or take any other appropriate action. Any documents that the court requires for any conference shall be specified in the order. Orders setting pretrial conferences shall be uniform throughout the territorial jurisdiction of the court.

(d) Case Management and Pretrial Order. The court shall make an order reciting the action taken at a conference and any stipulations made. The order shall control the subsequent course of the action unless modified to prevent injustice.

Commentary

1995 Adoption. This rule addresses issues raised by decisions such as Dralus v. Dralus, 627 So.2d 505 (Fla. 2d DCA 1993); Wrona v. Wrona, 592 So.2d 694 (Fla. 2d DCA 1991); and Katz v. Katz, 505 So.2d 25 (Fla. 4th DCA 1987), regarding the cost of marital litigation. This rule provides an orderly method for the just, speedy, and inexpensive determination of issues and promotes amicable resolution of disputes.

This rule replaces and substantially expands Florida Rule of Civil Procedure 1.200 as it pertained to family law matters. Under this rule, a court may convene a case management conference at any time and a party may request a case management conference 30 days after service of a petition or complaint. The court may consider the following additional items at the conference: motions related to admission or exclusion of evidence, referral of issues to a master if consent is obtained pursuant to the rules, referral of the parties to mediation, referral of the parties to counseling, coordination of voluntary binding arbitration, appointment of court experts, referral of the cause for a home study psychological evaluation, and appointment of an attorney or guardian ad litem for a minor child.

Committee Note

1997 Amendment. In In re Adoption of Baby E.A.W., 658 So.2d 961 (Fla.1995), and other cases involving protracted adoption litigation, it becomes clear that the earlier the issue of notice is decided by the court, the earlier the balance of the issues can be litigated. Because both parents’ constitutional standing and guarantees of due process require notice and an opportunity to be heard, this rule amendment will help solve the problems of adoption litigation lasting until a child’s third, fourth, or even fifth birthday. Furthermore, this rule will encourage both parents to be more candid with intermediaries and attorneys involved in the adoption process.

In E.A.W., 658 So.2d at 979, Justice Kogan, concurring in part and dissenting in part, stated: “I personally urge the Family Law Rules Committee ... to study possible methods of expediting review of disputes between biological and adoptive parents.” This rule expedites resolution of preliminary matters concerning due process in difficult adoption disputes. This rule also mandates early consideration of the child’s rights to due process at early stages of adoption litigation.

Noncompliance with subdivision (a)(2) of this rule shall not invalidate an otherwise valid adoption.

APPENDIX B

INSTRUCTIONS FOR FLORIDA FAMILY LAW RULES OF PROCEDURE FORM 12.902(e), CHILD SUPPORT GUIDELINES WORKSHEET

When should this form be used?

You should complete this worksheet if child support is being requested in your case. If you know the income of the other party, this worksheet should accompany your financial affidavit. If you do not know the other party’s income, this form must be completed after the other party files his or her financial affidavit, and serves a copy on you.

This form should be typed or printed in black ink. You should file the original with the clerk of the circuit court in the county where your case is filed and keep a copy for your records.

What should I do next?

A copy of this form must be mailed or hand delivered to the other party in your case, if it is not served on him or her with your initial papers.

Where can I look for more information?

Before proceeding, you should read “General Information for Self Represented Litigants” found at the beginning of these forms. The words that are in “bold underline ” in these instructions are defined there. For further information, see section 61.30, Florida Statutes.

Special notes ...

If this is a domestic violence case and you want to keep your address confidential for safety reasons, do not enter the address, telephone, and fax information at the bottom of this form. Instead, file Petitioner’s Request for Confidential Filing of Address, Florida Supreme Court Approved Family Law Form 12.980(1).

The chart below contains the guideline amounts that you should use when calculating child support. This amount is based on the number of children and the combined income of the parents, and it is divided between the parents in direct proportion to their income or earning capacity. From time to time, some of the amounts in the child support guidelines chart will change. Be sure you have the most recent version of the chart before using it.

Because the guidelines are based on monthly amounts, it may be necessary to convert some income and expense figures from other frequencies to monthly. You should do this as follows:

If payment is twice per month Payment amount x 2 = Monthly amount

If payment is every two weeks Payment amount x 26 = Yearly amount due

Yearly amount -5- 12 = Monthly amount

If payment is weekly Weekly amount x 62 = Yearly amount due

Yearly amount + 12 = Monthly amount

If you or the other parent request that the court award an amount that is different than the guideline amount, you must also complete and attach a Motion to Deviate from Child Support Guidelines,□ Florida Supreme Court Approved Family Law Form 12.943.

Remember, a person who is NOT an attorney is called a nonlawyer. If a nonlawyer helps you fill out these forms, that person must give you a copy of a Disclosure from Nonlawyer, □ Florida Family Law Rules of Procedure Form 12.900(a), before he or she helps you. A nonlawyer helping you fill out these forms also must put his or her name, address, and telephone number on the bottom of the last page of every form he or she helps you complete.

CHILD SUPPORT GUIDELINES CHART