Weaver v. State

Third District Court of Appeal
State of Florida
Opinion filed May 17, 2017.
Not final until disposition of timely filed motion for rehearing.
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Nos. 3D16-537 & 3D15-2389
Lower Tribunal No. 14-11607
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Jerry Weaver,
Appellant/Cross-Appellee,
vs.
The State of Florida,
Appellee/Cross-Appellant.
Appeals from the Circuit Court for Miami-Dade County, Yvonne Colodny,
Judge.
Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant
Public Defender, for appellant/cross-appellee.
Pamela Jo Bondi, Attorney General, and Jay E. Silver and Joanne Diez,
Assistant Attorneys General, for appellee/cross-appellant.
Before EMAS, FERNANDEZ and LUCK, JJ.
EMAS, J.
The defendant, Jerry Weaver, was charged with three first-degree felonies of
aggravated child abuse by malicious punishment (in violation of section
827.03(1)(a)2., Florida Statutes (2014)), committed upon his daughter, Y.M., all
acts allegedly occurring on May 18, 2014.1
Following a jury trial, Weaver was found guilty as charged in Counts One
and Three. As to Count Two, Weaver was found guilty of the lesser-included
offense of child abuse, a third-degree felony (section 827.03(2)(c), Florida Statutes
(2014)). The trial court entered judgments of conviction for each of these offenses.
Thereafter, the trial court granted Weaver’s motion to vacate the judgments on
Counts Two and Three, and dismissed those counts on double jeopardy grounds,
concluding that the actions by Weaver upon Y.M. (as set forth in the three counts
of the Information) constituted a single criminal episode, occurring in a
continuous, uninterrupted sequence, without any significant temporal or spatial
break.
Weaver appeals from his judgment and sentence on Count One for the crime
of aggravated child abuse, contending that the State’s improper closing arguments
and the trial court’s erroneous evidentiary rulings require a new trial. The State
1 Count One alleged Weaver maliciously punished Y.M. by whipping Y.M.
repeatedly with a cable cord; Count Two alleged Weaver maliciously punished
Y.M. by punching Y.M. in the stomach; Count Three alleged Weaver maliciously
punished Y.M. by stepping on Y.M.’s neck.
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cross-appeals the trial court’s vacatur of the judgments and dismissal of Counts
Two and Three of the Information.
We affirm the judgment and sentence on Count One. Upon our review of
the record, we hold that the trial court did not error in denying the defense motion
in limine seeking to restrict the testimony of the State’s expert, Dr. Lambert. See
Gutierrez v. State, 739 So. 2d 1175 (Fla. 3d DCA 1999). We also hold that the
State’s closing arguments, read in context, were not improper, and even if they
could be construed as improper, were harmless beyond a reasonable doubt.2 See
State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986).
We also affirm the State’s cross-appeal. We find no error in the trial court’s
determination that the acts alleged in Counts Two and Three arose out of the same,
single criminal episode as Count One, involving a continuous series of events
occurring over a matter of a few minutes with no temporal or spatial break. The
trial court therefore properly dismissed Counts Two and Three on double jeopardy
grounds. See Zapata v. State, 905 So. 2d 944 (Fla. 3d DCA 2005) (holding double
jeopardy barred convictions for two counts of battery, where defendant’s acts
constituted a single criminal episode upon a single victim, in a continuous series of
events: defendant grabbed the victim by her legs and neck, dragged her to the
sidewalk, proceeded to beat the victim’s head against a wall, and then beat her
2 We find the other claims raised by Weaver are without merit and warrant no
further discussion.
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head against a car); Harris v. State, 111 So. 3d 922 (Fla. 1st DCA 2013) (holding
double jeopardy barred convictions for both felony battery and domestic violence
by strangulation, where defendant’s acts constituted a single criminal episode upon
a single victim, in a continuous series of events: the altercation between the
defendant and his girlfriend began on the patio of their home, at which time
defendant grabbed her, pushed her, and put his fingers in her nose and mouth, and
the altercation continued until the pair landed in the yard on the ground, with
defendant sitting on his girlfriend and choking her); Olivard v. State, 831 So. 2d
823 (Fla. 4th DCA 2002) (holding double jeopardy barred convictions for both
battery and aggravated battery, where defendant's acts constituted a single criminal
episode upon a single victim, in a continuous series of events: defendant struck
victim with a bicycle pump, wrestled him to the ground, and then bit his ear off).
Affirmed.
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