Third District Court of Appeal
                               State of Florida

                        Opinion filed December 27, 2017.
         Not final until disposition of timely filed motion for rehearing.
                               ________________

                               No. 3D16-2838
                          Lower Tribunal No. 15-2756
                             ________________

                               D.M., a juvenile,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.


      An appeal from the Circuit Court for Miami-Dade County, Angelica D.
Zayas, Judge.

     Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public
Defender, for appellant.

      Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant
Attorney General, for appellee.


Before SUAREZ, LAGOA, and SCALES, JJ.

      SUAREZ, J.

      D.M., a 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 self-

defense.

       The 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.

       L.M. 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.

       The 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


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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.1 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.

      Florida 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, 

, 474 (Fla. 2d DCA 1974); E.A. v.

State, 

, 252 (Fla. 3d DCA 1992) (same); see also, Nguyen v. State,

, 1260 (Fla. 1st DCA 2003) (holding “great bodily harm” not

1 The trial court concluded, “With regard to the issue at hand I have considered the
arguments that the loss of a tooth, because it’s a baby tooth, does not amount to
great bodily harm, the statute reads great bodily harm or great bodily harm,
permanent injury or permanent disfigurement. Does it not? And therefore I do
find that loss of the baby tooth is, a loss of a tooth is a loss of a tooth, and under the
facts presented I do find great bodily harm.”

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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, 

, 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

treatment).

      Under 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, 

, 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, 

, 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


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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 disfigurement.2

      We are 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, 

, 657

(Fla. 2000) (citing Lynch v. State, 

, 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, 

, 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

remand for discharge of the felony battery conviction, and for entry of simple

2This a case of simple battery at best. It really should not have gotten to the trial
court at all, but should have been resolved by the school authorities and the parties.

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misdemeanor battery, and for appropriate resentencing commensurate with this

opinion. We affirm the trial court’s denial of the defendant’s theory of self-

defense.

      Reversed and remanded.




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