Can You Prove Battery Without a Victim?
Every criminal defense attorney runs into this issue at one time or another–an alleged victim to a domestic violence battery that decides to “not” press charges. Now, we all know that it’s not really the alleged victim’s decision to press charges–the State of Florida that decides whether or not to file a criminal law suit against a defendant. However, some prosecutors, in their zeal to bolster conviction stats, may attempt to prosecute a battery case without a victim. What, you say? Am I speaking of prosecutors in China, or the good old U.S. of A? Sorry to say, I’m talking about Orlando, Sanford, Kissimmee, all over the State of Florida prosecutors are attempting to convict citizens without a victim in the courtroom. Can it be done? Let’s see.
The case is Holborough v. State of Florida, 103 So.3d 221 (Fla. 4th DCA 2012). Holborough was convicted at trial of felony battery. Felony battery in this case was simply a misdemeanor battery with one prior conviction for misdemeanor battery. In Orlando, we call this “Battery – Prior Conviction”, but it’s the same idea statewide. Anyway, Holborough was seen by a police officer “straddling a woman who was face down and covering her face…repeatedly hitting the woman.” Id. at 222. Holborough was initially arrested for domestic violence battery, but it was later upgraded to a felony charge once the prosecutors found a prior misdemeanor battery conviction.
News flash: some prosecutors just love when they have an “independent witness” to a battery charge. Why? Because typically, their alleged victims fail to appear for trial on domestic violence cases, so having an independent witness gives the prosecution a false sense of security that, maybe, they’ll be able to prove the case without a victim. Not so fast. Watch how this plays out.
The cop saw Holborough repeatedly hit a woman. True enough. But, how does the cop know “who” this woman is? How does this officer know the woman’s identity? Basically, the officer simply asked the woman her name, and requested to see her photo ID. The victim showed the officer her “Florida ID”, and the officer testified at trial as to the name he was told and the name he saw on the Florida ID. The defense attorney objected to this identification testimony as hearsay. Technically, hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Id. at 223. In plain English, you cannot testify in court as to what somebody “told” you. There are exceptions to this rule, but when this officer testified at Holborough’s trial that the battered woman told him her name–that’s hearsay. He doesn’t really “know” her name personally, he was merely told such. Can’t do that. That’s hearsay.
Well, you say, what about the “Florida ID”, isn’t that a public record that is typically admissible? No can do. The Florida ID would still be coming in by the officer’s testimony, and as such, its hearsay. It is a longstanding rule of law in Florida that the “statement of one person to another as to his identity is hearsay that does not fall under the section 90.801(2)(c) exclusion from hearsay for statements of ‘identification of a person made after perceiving the person’.” Id.
The appeals court ruled that the state improperly proved identity via the hearsay statement of the police officer that witnessed the battery. That being said, can this battery conviction still stand on the basis that the officer witnessed a crime committed by Holborough–even if the identity of a “specific” human being was not proven? No. The state MUST prove the identity and name of the person battered. “It is well established in Florida law that for crimes against persons, the name of the person victimized is an essential element of the crime that the State must prove beyond a reasonable doubt”. Id. [emphasis added]
So, the appeals court reversed Holborough’s felony battery conviction, but, that’s not the end of the story. Whenever a conviction is overturned on identity issues, the law requires a new trial, thus giving the state a second opportunity to prove identity via other means. For example, if there was a witness that personally knew the victim but was not called as a witness because the prosecution figured the officer’s testimony would suffice–the state now has a second trial (and they have been warned that their officer’s hearsay identification will not be admissible). Based upon what little we know here, it is likely that Holborough’s case will simply be dismissed, as there is little chance the prosecution can fix this identity issue. I’m just saying.