Definition of 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.”
Intent is a required element of a simple battery charge. To constitute a crime, there must be “either a specific voluntary act or something that is substantially certain to result from the act.” C.B. v. State, 810 So. 2d 1072 (Fla. 4th DCA 2002). A defendant must intend to strike the person, or engage in conduct where he or she knows that a touch or strike “is substantially certain to result from his acts.” Id.
Thus, an accidental touching or a touching that is incidental to other conduct not aimed at making contact with another person, is insufficient to establish a battery. Beard v. State, 842 So. 2d 174, 176-77 (Fla. 2d DCA 2003).
Whether the accused had the requisite intent is a question for the jury to resolve by examining the surrounding facts and circumstances of the touching or striking of the victim. Fey v. State, 125 So. 3d 828, 831 (Fla. 4th DCA 2013) (citing S.D. v. State, 882 So. 2d 447, 448 (Fla. 4th DCA 2004)).
Consent and Mutual Combat
In all Florida prosecutions, it is a required element of battery that the touching at issue occur without the consent of the alleged victim, or “against the person’s will.”
This issue frequently arises in cases where two people engage in a fight, or “mutual combat.” In Florida, ‘mutual combat’ is a recognized battery defense predicated upon both parties assenting to a physical altercation and therefore consenting to be touched as an understood consequence of that altercation. Both parties must be at fault, and the defendant must not be the primary aggressor or initiate the fight. Eiland v. State, 112 So. 2d 415 (Fla. 2d DCA 1959); A.L. v. State, 790 So.2d 1149 (Fla. 2d DCA 2001).
The issue 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 of a non-consensual touching. State v. Clyatt, 976 So. 2d 1182 (Fla. 5th Dist. 2008).
In some cases, where proper 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. This is known as “Williams Rule” evidence.
No Requirement of Injury
To commit the crime of misdemeanor battery, an accused does not have to injure the alleged victim. The 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. D.C. v. State, 436 So. 2d 203, 206 (Fla. 1st DCA 1983).
Objects Connected with a Person
Under Section 784.03, Florida Statutes, “there need not be an actual touching of the victim’s person in order for a battery to occur, but only a touching of something intimately connected with the victim’s body.” Clark v. State, 746 So. 2d 1237, 1240 (Fla. 1st DCA 1999).
Thus, under Florida law, a battery can occur not only when there is an unconsented touching of the body, but also where the touching concerns an object “intimately connected” with the body. Id.
Common examples include purses, handbags, wallets, cell phones, other electronic devices, keys, clothing, and other objects being held by or attached to another person. Nash v. State, 766 So. 2d 310 (Fla. 4th DCA 2000) (grabbing a purse being held by the victim sufficient to constitute battery); Malczewski v. State, 444 So.2d 1096, 1099 (Fla. 2d DCA 1984) (stabbing money bag held by victim sufficient to constitute battery).
Direct Contact is not Required
Indirect contact, such as by throwing or projecting 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. Mohansingh v. State, 824 So. 2d 1053, 1054-55 (Fla. 5th DCA 2002) (spitting found to constitute battery).
Penalties for Battery (Misdemeanor)
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.
Defenses to Misdemeanor Battery
Battery is one of the most defendable charges in all of criminal law. Some of the most common defenses include the following:
- Defense of Others;
- Defense of Property;
- Consent (touching not against alleged victim’s will);
- Mutual Combat;
- Use of Force under Florida’s Stand Your Ground Law;
- Accidental Touching;
- Touching Incidental to Other Conduct not Aimed at Making Contact;
- Other Factors or Motivations Showing Lack of Intent;
- Lack of Evidence or Conflicts in the Evidence.
Victim Cooperation / Consent
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 consent or 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. 3d 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.
Contact an Attorney
If you are facing a charge of Battery and are considering hiring an attorney, contact Hussein & Webber, P.L. for a free consultation. Our attorneys have extensive experience defending misdemeanor and felony battery prosecutions throughout the State of Florida.