WAGERS v. STATE

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Jesse David WAGERS, Appellant, v. STATE of Florida, Appellee.

No. 5D15–2876.

Decided: September 09, 2016

James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellee.

Jesse Wagers (“Appellant”) appeals from his conviction for felony battery. His only contention on appeal is that the trial court erred in refusing to give a requested jury instruction on the justifiable use of non-deadly force. We agree and therefore reverse and remand for a new trial.

Appellant was charged with the aggravated battery of his brother1 who lived with Appellant and Appellant's girlfriend prior to this incident. The injuries the brother sustained were so severe that he was hospitalized for five days, he required multiple plates to hold his bones in place, and all of his teeth had to be removed.

Appellant claims that his girlfriend's testimony raised an issue of self-defense. On direct examination by the State, she testified that she saw the brother approaching Appellant in “an aggressive way.” Because there was no follow up or clarification about what she witnessed, the trial judge understandably struggled with the vagueness of that testimony, and refused to give a requested jury instruction on the justifiable use of non-deadly force.2

This Court generally reviews the giving or withholding of a jury instruction for abuse of discretion. Cruz v. State, 971 So.2d 178, 181 (Fla. 5th DCA 2007) (citing Worley v. State, 848 So.2d 491 (Fla. 5th DCA 2003)).3 However, in criminal cases, the trial court's discretion is more restricted “because a criminal defendant is entitled to have the jury instructed on his or her theory of defense if there is any evidence to support the theory and the theory is recognized as valid under the law of the state.” Id. If there is any evidence to support a theory of self-defense, the trial court should give the requested instruction “however flimsy the evidence is which supports that theory ․ or however weak or improbable [the] testimony may have been.” Arthur v. State, 717 So.2d 193, 194 (Fla. 5th DCA 1998) (quotation marks and citations omitted); see, e.g., Montijo v. State, 61 So.3d 424, 425, 427 (Fla. 5th DCA 2011) (indicating that when victim was “aggressive during confrontation” and was “highly agitated, cursed, and screamed at appellant,” instruction on use of deadly force was warranted); Stewart v. State, 672 So.2d 865, 867 (Fla. 2d DCA 1996) (concluding that when conflicting testimony was presented, including defendant's testimony that victim “proceeded toward him while yelling and swearing” in “a threatening manner,” evidence was sufficient to warrant self-defense instruction). Accordingly, while the evidence supporting a self-defense instruction was indeed sparse in this case, Appellant's girlfriend's testimony was sufficient to warrant the instruction on the justifiable use of non-deadly force.

REVERSED AND REMANDED FOR A NEW TRIAL.

COHEN, J.

TORPY and WALLIS, JJ., concur.