Definition of Simple Battery / Misdemeanor Battery
The crime of Simple Battery or Misdemeanor Battery is defined under Section 784.03, Florida Statutes. In Florida, the term battery means:
- any actual and intentional touching or striking of another person against that person’s will (non-consensual), or
- the intentional causing of bodily harm to another person.
Where there are no aggravating factors or enhancements at play, such as use of a weapon, serious bodily injury, or domestic violence, the offense is known as “simple battery” or “misdemeanor battery.”
Penalties in Florida for Simple Battery / Misdemeanor Battery
Simple or misdemeanor battery is classified as a first degree misdemeanor in Florida. Thus, the penalties can include up to a year in jail, or a probationary sentence not to exceed one year. Unlike other misdemeanors, prosecutors in Florida do frequently seek jail sentences or probation sentences for even first time battery offenders. Whether jail is sought will depend on a number of factors, including the prior criminal record of the accused, the status and preferences of the alleged victim, the existence of injuries, the need to seek restitution, the strength of the prosecution’s case, and whether the accused is represented by an attorney.
Is Injury Required for Simple Battery?
No. To commit the crime of simple battery or misdemeanor battery, an accused does not have to injure the alleged victim. An intentional touching against another person’s will is sufficient. In fact, where the allegation is that the touching was against the alleged victim’s will, the existence or extent of injury becomes irrelevant. See D.C. v. State, 436 So. 2d 203 (Fla. 1st DCA 1983).
Does the Touching Have to be Intentional?
Yes. Intent is a required element of a simple battery charge. Thus, an accidental or inadvertent touching of another person is insufficient to establish the alleged criminal act. Whether the accused had the requisite intent is a question for the jury to resolve by examining the surrounding facts and circumstances of the alleged incident. The Florida standard jury instructions contain reference to the intent element, and thus a trial court is not required to specifically instruct a jury that accidental touching does not constitute a battery.
Touching Must be Against the Alleged Victim’s Will (Without Consent)
Yes. In all Florida prosecutions, it is a required element of simple battery or misdemeanor battery that the touching at issue occur without the consent of the alleged victim, or against the alleged victim’s will. This is frequently an issue in cases where the defendant and the alleged victim engage in a fight, or “mutual” combat. In that scenario, the alleged victim, by initiating the fight or assenting to participate in the fight, has arguably given consent to be touched.
The question of consent is a jury question, and is examined in light of the surrounding circumstances. Testimony from the alleged victim that he or she did not consent is not required, so long as the state’s evidence can support a jury inference that the touching at issue lacked the alleged victim’s consent or was against the alleged victim’s will. See State v. Clyatt, 976 So. 2d 1182 (Fla. 5th Dist. 2008) (holding that witness testimony that the defendant repeatedly struck the victim, causing her to retreat and cry, was sufficient to support a conviction for battery even where the alleged victim refused to testify at trial).
In some cases, where evidentiary procedures are followed, evidence of a defendant’s prior violent behaviors toward the victim is relevant to prove his or her intent to commit the crime of battery or the alleged victim’s lack of consent.
Is Touching of the Body Required for Simple / Misdemeanor Battery?
No. Although simple battery / misdemeanor battery is a crime against “the person” of an alleged victim, a battery conviction does not require that there be an actual touching of the physical body. The touching or harm may be to the person’s hair, clothing, any object intimately connected with their person, such as a purse, bag, or object being held. Thus, slapping an object out of someone’s hands is, in some cases, a battery.
Direct Contact is not Required
Indirect contact, such as by throwing an object (no matter how small), can constitute battery if the indirect contact was intentionally caused by the accused and was against the will of the alleged victim.
Can the Prosecutor Pursue Charges if the Victim Does not Cooperate, Wants the Charges Dropped, or Refuses to Testify?
One of the most pervasive myths in all of criminal law is that the prosecution cannot pursue a charge of battery or battery domestic violence without the cooperation of the alleged victim. The myth is typically expressed as follows:
“The alleged victim wants the charges dropped, so the State can’t proceed with the case.”
Wrong. The alleged victim does not make prosecutorial decisions. He or she can sometimes influence the decision by requesting that the charges be dropped or by refusing to testify, but this, in and of itself, does not ensure that the case will in fact be dropped. Where the evidence is sufficient, the prosecution often elects to proceed with cases against the alleged victim’s wishes.
“The alleged victim won’t testify or make a statement, so the State has to drop the charges.”
Wrong. Not all battery cases require the testimony of the alleged victim. If there are other witnesses (such as a police officer, bystander, friend, or family member) the state may proceed without the alleged victim’s testimony.
In some cases, it’s even possible to proceed without any eyewitness testimony as to what happened during the actual incident.
Example: Defendant and Alleged Victim are involved in a physical altercation. Defendant strikes Alleged Victim and leaves a red mark on her face. Alleged Victim calls 911 for help. Police arrive after Defendant and Alleged Victim have already separated. Police observe the red mark and take photographs.
Can the State proceed with the case and introduce at trial the 911 recording of Alleged Victim’s statement?
Arguably, yes. Although, as a general rule, a defendant has a Sixth Amendment constitutional right to cross examine adverse witnesses, this right only applies where the statements made against the Defendant are “testimonial” in nature. In Davis v. Washington, 547 U.S. 813 (2006), the Supreme Court ruled that a statement “[is] non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.”
Thus, a 911 call made for the purpose of requesting help or medical attention is non-testimonial and is not subject to the Sixth Amendment Confrontation Clause. London v. State, 75 So. 2d 357, 359 (Fla. 1st DCA 2011). If such statements are determined by the court to fall within a recognized exception to hearsay rules (i.e. present sense impression, excited utterance), then the statements would be admissible into evidence and heard by the jury, even without the Alleged Victim testifying. All that would be required is to authenticate the 911 tape through the testimony of the 911 operator.
Defenses to Misdemeanor Battery
Battery is one of the most defendable charges in all of criminal law. While no one defense or combination of defenses will apply in every case, an experienced criminal defense lawyer will ask the following questions:
- What is the history of the relationship between the accused and the alleged victim? How was the police investigation conducted?
- Was the police investigation fair and balanced, or did police jump to conclusions based on bare allegations?
- Are there injuries? If so, who suffered them?
- Is there contrary photographic or physical evidence?
- If there is a 911 tape, does it comport with the alleged victim’s allegations?
- Was there a delay in reporting the alleged attack? Are there other witnesses for or against the accused?
- Did the alleged victim possess a weapon?
- Is there a self-defense claim? Defense of property claim? Stand Your Ground claim?
- Did the incident occur in the accused’s dwelling?
- What are the relative physical abilities and sizes of the parties?
- Is there a history of violence or dishonesty by the alleged victim?
- Are there inconsistent statements made by witnesses or by the alleged victim?
- Is there an alibi available?
- Does the alleged victim’s version of events make sense?
- What are the motives of the alleged victim, and does the victim wish to pursue charges?
At Hussein & Webber, P.L., our Jacksonville criminal defense attorney is committed to the aggressive defense of our clients when they face charges of simple battery and domestic battery. When possible, we fight for a dismissal of the charges. When dismissal is not possible, we pursue every legal defense available to contest the charge or to minimize potential penalties. If you have been accused, contact Hussein & Webber, PL today for a free consultation.