final until disposition of timely filed motion for rehearing.
appeal from the Circuit Court for Miami-Dade County No.
15-2756, Angelica D. Zayas, Judge.
J. Martinez, Public Defender, and Susan S. Lerner, Assistant
Public Defender, for appellant.
Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant
Attorney General, for appellee.
SUAREZ, LAGOA, and SCALES, JJ.
juvenile, appeals from a withheld adjudication of delinquency
on the charge of felony battery, and probation. We reverse
the trial court's finding of great bodily harm, and
affirm the trial court's denial of D.M.'s theory of
then-thirteen-year-old defendant D.M. was on the school bus
sitting in front of the twelve-year-old victim L.M. and
another middle school student. D.M. testified that someone
behind him was tapping or hitting him on the back of his head
repeatedly, tapping him repeatedly harder. D.M. turned around
and the actual aggressor, who was sitting next to L.M.,
pointed to L.M. D.M. then hit L.M. in the jaw with his fist,
got up and moved to another seat on the school bus. L.M.
testified that he started to cry, and when he got home, one
of his lower teeth fell out, and another was allegedly
loosened. The State charged D.M. with felony battery.
and D.M. both testified at the trial. L.M. testified that the
aggressor "tapped" D.M., and D.M. testified that
the aggressor "hit" D.M. in the back of the head.
The tooth that D.M. knocked loose from L.M.'s mouth
turned out to be a baby tooth. The adult tooth grew in and
filled the spot. L.M. did not seek medical care at the time
of the incident, and he testified that his jaw was not
swollen or sore, but just red.
defense twice moved for judgment of dismissal, arguing that
the evidence of the loss of a baby tooth did not support the
element of felony battery requiring proof of "great
bodily harm, " but at best supported a charge of simple
battery, a misdemeanor. The defense agreed that whether the
defendant caused great bodily harm is typically a question of
fact for the jury, but also argued that a jury's [or
trial court's] finding of great bodily harm must be
supported by competent, substantial evidence. The trial court
denied the defense motions for judgment of dismissal, and at
the end of argument, held the loss of the baby tooth to be
great bodily harm, and found D.M. guilty of felony
battery. The court withheld adjudication of
delinquency and placed D.M. on probation "for the
statutory maximum term with possibility of early
termination." D.M. appeals.
Statutes section 784.041 (2017) provides that a person
commits felony battery if he or she: a) actually or
intentionally touches or strikes another person against the
will of the other; and b) causes great bodily harm, permanent
disability, or permanent disfigurement. "Great bodily
harm defines itself and means great as distinguished from
slight, trivial, minor, or moderate harm, and as such does
not include mere bruises as are likely to be inflicted in a
simple assault and battery. . . ." Owens v.
State, 289 So.2d 472, 474 (Fla. 2d DCA 1974); E.A.
v. State, 599 So.2d 251, 252 (Fla. 3d DCA 1992) (same);
see also, Nguyen v. State, 858 So.2d 1259,
1260 (Fla. 1st DCA 2003) (holding "great bodily
harm" not established for aggravated battery charge
where victim testified she was in pain and had burn marks
when defendant shot her with a stun gun; the State presented
no evidence that victim required medical treatment for her
burns or suffered any lasting ill effects); C.A.C. v.
State, 771 So.2d 1261, 1262 (Fla. 2d DCA 2000) (holding
"great bodily harm" not established for aggravated
battery where defendant stabbed victim two or three times
with a fork, leaving victim with scratches, swelling and
puncture marks for which victim did not receive medical
the facts presented in this appeal, the State failed to prove
beyond a reasonable doubt that D.M. caused great bodily harm,
permanent disability or permanent disfigurement, elements of
the charge of felony battery. Although whether a defendant
caused great bodily harm is a question of fact, that finding
must be supported by competent substantial evidence, and here
it is not. See, e.g., Melendez v. State,
718 So.2d 746, 747-48 (Fla. 1998) ("As long as the trial
court's finding are supported by competent substantial
evidence, 'this Court will not substitute its judgment
for that of the trial court on questions of fact, . . .
.'" (quoting Blanco v. State, 702 So.2d
1250, 1252 (Fla. 1997))). The State emphasizes that the
victim lost a tooth but diminishes the clear evidence that
this was not a permanent, disfiguring injury. The trial
transcript indicates that L.M.'s adult tooth had grown in
without incident. L.M. did not see a doctor or a dentist in
response to the incident, there was no evidence of lasting
harm or permanent disfigurement - the record on appeal
indicates that L.M.'s jaw was not swollen, and indeed,
L.M. testified he could not even remember which baby tooth
had been knocked out. Here, the loss of a baby tooth that has
been replaced by the adult tooth, without more, demonstrates
no great bodily injury, no permanent disability or
mindful that in moving for a judgment of dismissal, the
movant (here, the defense) "admits not only the facts
stated in the evidence adduced, but also admits every
conclusion favorable to the adverse party that a jury might
fairly and reasonably infer from the evidence"
Beasley v. State, 774 So.2d 649, 657 (Fla. 2000)
(citing Lynch v. State, 293 So.2d 44, 45 (Fla.
1974)). When viewed in that light, if a rational trier of
fact could find that the elements of the offense have been
proven beyond a reasonable doubt, the evidence is sufficient
to sustain the conviction and the motion should be denied.
See A.P.R. v. State, 894 So.2d 282, 285 (Fla. 5th
DCA 2005). Our standard of review on denial of a motion for
judgment of dismissal is de novo. Applying that standard to
these facts, we conclude that the evidence was insufficient
as a matter of law to establish great bodily harm and sustain
a conviction for felony battery. We therefore reverse and