Carlos J. Martinez, Public Defender and Marti Rothenberg, Assistant Public Defender, for appellant.
Pamela Jo Bondi, Attorney General and Forrest L. Andrews, Jr., Assistant Attorney General, and Natalia Costea, for appellee.
Before RAMIREZ, LAGOA, and EMAS, JJ.
Alonzo Gordon appeals his convictions for attempted second-degree murder and aggravated battery. For the reasons which follow, we reverse the conviction of attempted second-degree murder and remand for a new trial. We also reverse the conviction and sentence for aggravated battery and remand for entry of judgment and resentencing on the reduced offense of simple battery.
During an argument in March of 2008, Gordon hit his girlfriend, Amanda Pfeifer, with his hand and once with a belt, causing bruises to Pfeifer's body. Pfeifer did not seek medical treatment and sustained no lasting injury. Thereafter, Pfeifer asked Gordon to move out of her apartment, but Gordon refused. On March 10, 2008, Pfeifer piled Gordon's clothes in a box and put them outside the door. Gordon appeared at that time, pointed a rifle at her, and shot her once in the groin and then again in her hip, breaking her leg. Gordon was charged by information with attempted first-degree murder for the shooting of Pfeifer (Count One) and aggravated battery causing great bodily harm or permanent disfigurement for the earlier striking of Pfeifer with a belt (Count Two).
At the close of Gordon's trial, the court instructed the jury on attempted first-degree murder and the lesser included offenses of attempted second-degree murder and attempted voluntary manslaughter.
On the lesser included offense of attempted voluntary manslaughter, the trial court instructed the jury as follows:
To prove the crime of Attempted Voluntary Manslaughter, as a lesser included offense, the State must prove the following two elements beyond a reasonable doubt:
Alonzo J. Gordon committed an act which was intended to cause the death of Amanda Pfeifer and would have resulted in the death of Amanda Pfeifer except he failed to do so.
However, the defendant cannot be guilty of attempted voluntary manslaughter if the attempt [sic] killing was either excusable or justifiable as I have previously explained the term.
It is not an attempt if the defendant abandoned the attempt to commit the offense or otherwise prevented its commission under circumstances indicating a complete and voluntary renunciation of criminal purpose.
In order to convict of attempted voluntary manslaughter, it is not necessary for the State to prove that the defendant had ...