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Evans v. State

Florida Court of Appeals, Fourth District

June 7, 2017

CHARMARKCO S. EVANS, Appellant,
v.
STATE OF FLORIDA, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Robert E. Belanger, Judge; L.T. Case No. 562014CF001226A.

          Carey Haughwout, Public Defender, and Stacey Kime, Assistant Public Defender, West Palm Beach, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.

          Conner, J.

         The appellant, Charmarkco S. Evans, appeals his judgments and sentences for two counts of felony battery. On appeal, the appellant asserts that the trial court erred by admitting inadmissible hearsay evidence and by adjudicating and sentencing him on both counts of felony battery in violation of Double Jeopardy. We affirm without discussion the trial court's rulings on the hearsay claims. We also affirm the judgments and sentences on both counts of felony battery, having determined there was no Double Jeopardy violation.

         Factual Background and Trial Court Proceedings

         The appellant was tried on four criminal charges: (1) felony battery-serious bodily injury with prior conviction, (2) false imprisonment, (3) sexual battery, and (4) stalking. The jury acquitted him of false imprisonment and stalking; hence, we focus our discussion of the factual background regarding the evidence and proceedings pertaining to count 1 (felony battery-serious bodily injury with prior conviction) and count 3 (sexual battery).

         The State presented evidence that the appellant and the victim were in a relationship for a period of time before the alleged crimes were committed. As sometimes happens in domestic violence cases, the victim was a relatively reluctant witness at trial. Nonetheless, she testified that on a Sunday, she had been drinking heavily and went to the appellant's apartment. Although the victim was unable to remember all of the circumstances, she testified she "very much remember[ed] him striking me in my face" on Sunday. Lay and medical testimonial evidence, as well as physical evidence, showed that the victim suffered a nasal fracture, severe swelling around both eyes, a perforated left eardrum, and significant facial bruising.

         The victim further testified that, out of fear that it would be discovered he had beaten her, the appellant would not let her leave his apartment for several days. She eventually was able to trick the appellant into leaving the apartment on the following Thursday to get some food, at which time she ran to a neighbor's house. The neighbor called 911, leading to the appellant's arrest.

         The victim gave equivocal testimony about being sexually battered by the appellant on multiple occasions between Monday and Thursday. There was no testimony of any sexual battery occurring on Sunday, the day she was severely beaten in the face by appellant. The victim's testimony was equivocal in the sense that she testified that she consented to and even initiated some of the sexual activity between Monday and Thursday. However, she also testified that there were times she participated in sex with the appellant out of fear that he would resume beating her if she did not.

         As to both counts 1 and 3, the jury was instructed on a lesser included offense of battery. During deliberations, the jury sent the following question to the trial court:

Your Honor, does Count III, Battery, Lesser Included Offense, differ from Count I, Battery, Lesser Included Offense? In other words, does Count III Battery have more of a sexual connotation?

         The trial court responded that "in both of those cases, the meaning of battery doesn't change, " and again gave the definition of a simple battery. Both the ...


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