The “Three Stooges” Rule: Why 7% of Prosecutors Try to Prove Battery Without a Victim

By: John Guidry

TV shows are everywhere now. How do you know what to watch? Years ago, things were easier. You had three networks: NBC, ABC, and CBS.

• Fun Fact: The most-watched show in human history wasn’t Seinfeld or MASH. It was the Moon Landing in 1969.
• The Stat: It had a 93% Share, meaning 93% of Americans watching TV that night were watching mankind’s giant leap.

The Twist (The 7% Rule): Author A.J. Jacobs points out an interesting twist: If 93% were watching the moon, what were the other 7% watching? Back then, there were only two other channels. The other 7% were watching The Three Stooges. True story. While humanity touched the stars, 7% of the population decided to watch Larry, Moe, and Curly poke each other in the eye.

The Legal Connection: It should come as no surprise that the legal profession contains quite a few “Seven Percenters.” Unfortunately, some of these folks are prosecutors wasting your tax dollars on cases with no evidence. Let’s look at a questionable trial practice found in the case of Baker v. State, 959 So. 2d 1250 (Fla. 2d DCA 2007).

Is the State prosecuting you for domestic violence even though the “victim” says it was an accident or consensual?

Intent matters. Call John today at (407) 423-1117.

The Case: Baker v. State (The Bite Mark Mystery)

First, a cliché: You never know what goes on behind closed doors. Some people like pain—biting, scratching, whipping. It’s not my business, until 911 gets called.

The Facts:

• The Call: Baker’s girlfriend called 911 and said, “My boyfriend just, um, bit me and took my phone and stuff.”
• The Scene: Police arrived. She was crying. She had a bite mark on her forearm. Photos were taken.
• The Charge: Felony Battery (Domestic Violence).

The Sherlock Holmes Moment: Sometimes, what didn’t happen is more important than what did. (Like the dog that didn’t bark). In Baker’s trial, the girlfriend did not testify.

The Trial: Can You Prove Battery Without the Girl?

The prosecutor, a true “Seven Percenter,” decided to try the case without the victim. He presented three pieces of evidence:

1. The 911 Call.
2. The Officer’s testimony (she was crying).
3. The Photos of the bite mark.

The Problem: Florida Statute 784.03 defines battery as intentionally touching or striking another person against their will.

• The Question: Without the victim on the stand, how do you prove it was “against her will”? How do you prove it wasn’t consensual roughhousing or a “love bite” gone wrong?

The Ruling: No Victim = No Proof of “Against the Will”

Baker was convicted at trial, but the Appeals Court threw out the conviction.

• The Logic: The photos proved he bit her. But they didn’t prove why.“The State failed to present any evidence that the alleged touching—the bite—was intentional and against the victim’s will… Her remarks to the 911 operator fall short of providing the necessary proof.”

Because the victim never looked the jury in the eye and said, “I didn’t want him to do that,” the State couldn’t prove it wasn’t consensual.

John’s 2026 Update: The “Context” Prosecution

Note: In 2007, the State lost because they couldn’t prove the bite was unwanted. In 2026, they use your history to prove it.

1. The “Williams Rule” (Prior Bad Acts) In Baker, the bite was an isolated incident.

• The 2026 Strategy: If you claim the injury was “consensual rough play,” the State will introduce your Prior 911 Calls or past arguments.
• The Argument: “Ladies and gentlemen of the jury, he claims this bite was consensual fun. But three months ago, neighbors heard them screaming. Does that sound like fun?” They use context to disprove consent.

2. Body Cam “Excited Utterances” In Baker, the 911 call was vague (“he bit me”).

• The 2026 Reality: Officers now wear 4K Body Cams. If they arrive and the victim screams, “Get him away from me, he attacked me!”—that statement is admissible as an Excited Utterance. Even if she refuses to testify later, the video plays for the jury, and that scream proves it was “against her will.”

3. “Stand Your Ground” Immunity If the “victim” won’t testify, we don’t just wait for trial. We file a Stand Your Ground Motion to Dismiss.

• The Benefit: This forces the State to put on their case before a jury is even picked. If the victim doesn’t show up for this hearing, the Judge often dismisses the case right there, saving you the risk of trial.

Don’t Let Them Guess the Intent

The State shouldn’t be allowed to guess what happened in private. If the “victim” isn’t there to say it was a crime, the State shouldn’t be allowed to assume it was.

Call me at (407) 423-1117. Let’s challenge the intent.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.