DONALD L. GRAHAM, District Judge.
Title 18 U.S.C. § 3583(e)(3) "permits a district court to revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release upon a finding by a preponderance of the evidence that the defendant violated a condition of supervised release."
After moving for and receiving a time extension, Wiley timely filed his Objections. Therein, he argues that he did not commit Violations 4, 5, 6, 7, 10, 11, 12, 13, and 14. The Government then filed its Response. In its Response, the Government argues that this Court should adopt the Report and Recommendation's findings of fact and conclusions of law.
After carefully reviewing the record, this Court affirms the Report and Recommendation as to Violations 1 through 10, 13, 14, and 15 and does not as to Violations 11 and 12. This Court will not further discuss Violations 1, 2, 3, 8, 9, and 15 herein because Wiley does not object to the Report and Recommendation as to these violations.
Wiley argues that he did not intentionally commit Violations 4 and 6 and 5 and 7, which are technical violations of mandatory and standard conditions of his supervised release. In response, the Government asserts that there is enough evidence in the record to support the Report and Recommendation's findings and conclusions as to these violations. This Court concurs with the Government's position. As such, this Court concludes that, by a preponderance of the evidence, Wiley committed Violations 4 and 6 and 5 and 7. Thus, this Court affirms the Report and Recommendation as to Violations 4 and 6 and 5 and 7.
Wiley also claims that he did not commit Violation 10, which is a technical violation of a standard condition of his supervised release because it is duplicative of Violation 4. Specifically, he argues that he did not intentionally commit Violation 10. The Court is unpersuaded by this argument as well. As such, this Court concludes that, by a preponderance of the evidence, Wiley committed Violation 10. Thus, this Court affirms the Report and Recommendation as to Violation 10.
Wiley claims that he did not commit Domestic Battery by Strangulation as alleged in Violation 11 because Victim Ashley Tate was the aggressor, and his actions were in self-defense. The Government did not address Violation 11 in its Response. In short, this Court concurs with Wiley's position.
Pursuant to § 784.041(2)(a),
FLA. STAT. § 784.041(2)(a) (2007). Under § 776.012(1), "a person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other's imminent use of unlawful force." FLA. STAT. § 776.012(1) (2014). If there is any evidence of self-defense presented by a defendant, either upon cross-examination of State witnesses or upon direct examination of the defendant or his witnesses, the element of self-defense becomes an issue.
While a defendant may have the burden of going forward with evidence of self-defense, the burden of proof never shifts from the Government, and this standard broadly includes the requirement that the Government prove that a defendant did not act in self-defense.
Here, the Government has not overcome Wiley's claim of self-defense established during examination of the Victim. On direct examination, Deputy Ellington testified that he took pictures of the Victim's neck because she alleged that Wiley repeatedly choked her over a period of time. [D.E. 154 at 39]. Subsequently, the Victim testified on direct examination that Wiley "started choking [her] but [they] were fighting together."
The Victim's cross-examination testimony makes clear that she was the aggressor and unlawfully pushed Wiley first. Only then did he respond by fighting back and, at some point, choke her. This testimony establishes a prima facie case of self-defense for Wiley. Now, the Government must overcome Wiley's self-defense argument by rebuttal or inference by a preponderance of the evidence, which it fails to do. As such, this Court concludes that, by a preponderance of the evidence, Wiley acted in self-defense and did not commit Domestic Battery by Strangulation.
Wiley contends that he did not commit Aggravated Battery with a Deadly Weapon as alleged in Violation 12 because the Superseding Petition charged Culpable Negligence. In its Response, the Government argues that Violation 12 alleges that Wiley committed Aggravated Battery with a Deadly Weapon on August 3, 2016, even though there is a conflict between what is alleged, Aggravated Battery with a Deadly Weapon, and what is charged by way of statute, Culpable Negligence. Additionally, the Government states that Wiley was aware that there was probable cause that he committed Aggravated Battery with a Deadly Weapon regardless of its scrivener's error. The Court finds the Government's position persuasive as to this issue.
Unless the defendant was misled and thereby prejudiced, neither an error in a citation nor a citation's omission is a ground to dismiss the indictment or information or to reverse a conviction. Fed. R. Crim. P. 7(c)(2);
In its Superseding Petition, the Government alleged that Wiley committed Aggravated Battery with a Deadly Weapon, contrary to § 784.05(1). Section 784.05(1), however, is the statute for Culpable Negligence. Nonetheless, the Court does not dismiss indictments for an erroneous citation unless it prejudices a defendant. Indeed, Wiley does not argue that he was prejudiced by this error. Rather, he merely states that a review of § 784.05(1) reveals that it applies to Culpable Negligence, not Aggravated Battery with a Deadly Weapon. Although Rule 7(c)(2) and
Alternatively, Wiley contends that the knife in question was a common pocketknife and therefore not a dangerous weapon, and there is no evidence in the record that he had the necessary intent to cause great bodily harm, permanent disability, or permanent disfigurement to Victim. The Government argues that Wiley's common pocketknife is a deadly weapon based on the way he used it. As to Wiley's argument that he lacked the necessary intent, this Court concurs.
Pursuant to § 784.03, the offense of battery occurs when a person actually and intentionally touches or strikes another person against the will of the other or intentionally causes bodily harm to another person. FLA. STAT. § 784.03(1)(a) (2001). Under § 784.045, a person commits aggravated battery who, in committing battery, intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement, or uses a deadly weapon. FLA. STAT. § 784.045(1)(a). Aggravated battery is a specific intent crime.
In this case, the Government fails to prove that Wiley intentionally touched or struck the Victim against her will or intentionally caused her bodily harm. On direct examination, the Victim testified that she "tried to pulled [sic] a knife and I ended up cutting myself." [D.E. 154 at 71]. At first glance, it appears that the Victim testified that Wiley "began to use the knife in a jabbing and slicing motion landing several lacerations on [her] right arm and hand area."
Based on the Victim's testimony, Wiley did not actually and intentionally touch or strike her against her will or intentionally cause her bodily harm. Indeed, her testimony makes apparent that she received her knife injuries because she was trying to take the knife away from him. The Government did not prove that Wiley had the requisite intent to commit battery by a preponderance of the evidence, much less aggravated battery. As such, this Court concludes that, by a preponderance of the evidence, Wiley did not commit Aggravated Battery with a Deadly Weapon.
Wiley asserts that he did not commit False Imprisonment as alleged in Violation 13 because there is no evidence in the record that he confined or restrained the Victim against her will. He also argues that the Victim never testified that she attempted to leave his presence or that she felt unable to leave. The Government did not address this Violation in its Response. In brief, this Court is unpersuaded by Wiley's arguments.
Pursuant to § 787.02, "[t]he term `false imprisonment' means forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will." FLA. STAT. § 787.02(1)(a) (2015). "The essence of false imprisonment is the act of depriving the victim of personal liberty or freedom of movement for any length of time."
Moreover, false imprisonment need not include the use of force.
Here, the Government proved that Wiley used a pocketknife to confine the Victim to her living room. On direct examination, the Victim initially testified that Wiley was not using his knife "to keep me confining[sic]. [Wiley] was just trying to use it as a scare tactic." [D.E. 154 at 76]. A moment later, however, she testified that Wiley had the knife out and was trying to keep her from moving and leaving the living room.
The Victim's testimony clarifies that Wiley confined her to the living room. By pulling out his pocketknife and using it to scare her, Wiley deprived the Victim of her freedom of movement. The facts that Wiley used no actual force and whether the Victim could have left the home while he was sleeping are inconsequential. Because false imprisonment can occur for any length of time and without force, Wiley's threatening conduct of drawing his pocketknife was enough to illicitly restrain Victim to her living room and deprive her of her freedom of movement. As such, this Court concludes that, by a preponderance of the evidence, Wiley committed False Imprisonment. Thus, this Court affirms the Report and Recommendation as to Violation 13.
Lastly, Wiley argues that he did not commit Armed Trespass in a Structure or Conveyance as alleged in Violation 14 because he was welcome in the Victim's home. He also asserts that his pocketknife does not qualify as a weapon under Florida law. In its Response, the Government asserts that even if Wiley was welcome in the Victim's home, she subsequently asked him to leave. The Government also contends that Wiley's pocketknife qualifies as a dangerous weapon because of the way he used it. This Court concurs with the Government's position. Under § 810.08(1),
FLA. STAT. § 810.08(1) (2000). Pursuant to § 810.08(2)(c), "if the offender is armed with a firearm or other dangerous weapon, or arms himself or herself with such while in the structure or conveyance, the trespass in a structure or conveyance is a felony of the third degree FLA. STAT. § 810.08(2) (C) (2000). Consent to entry is an affirmative defense to trespass.
The Government proved that Wiley remained in the Victim's house while possessing a pocketknife after she asked him to leave. The Government also proved that he used the pocketknife in a way that made it a dangerous weapon. On cross-examination, the Victim testified that Wiley "was welcome at [my] house as a guest" on the night in question. [D.E. 154 at 92]. On directexamination, however, she told Wiley "[y]ou need to go home to be with your girlfriend. Just leave me alone. . And I told him to leave . .," once they began arguing.
The Victim's testimony puts the sequence of events in their appropriate context and order. Wiley was initially welcome at her house, but she asked him to leave once they began arguing. Wiley was no longer permitted in her home at this point, yet he remained. Said another way, Victim warned Wiley to depart her house but he refused. Wiley also entered her house with a pocketknife with a three-inch blade, which he pulled out, waived around at the Victim, and at a minimum used it as a scare tactic. This conduct transformed Wiley's pocketknife from merely a common pocketknife into a dangerous weapon. As such, this Court concludes that, by a preponderance of the evidence, Wiley committed Armed Trespassing in a Structure or Conveyance. Thus, this Court affirms the Report and Recommendation as to Violation 14. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Report and Recommendation [D.E. 150] is
