Jones v. State

478 So. 2d 493, 10 Fla. L. Weekly 2549, 1985 Fla. App. LEXIS 16691

Opinion

COBB, Chief Judge.

Jones appeals the denial of his motion for judgment of acquittal and subsequent conviction of sexual battery with physical force likely to cause serious personal injury under section 794.011, Florida Statutes (1983). Jones contends that the motion should have been granted, as there was no evidence showing that the force appellant used during the commission of the sexual battery was such as was likely to cause the degree of personal injury required by the statute.

Serious personal injury is defined by section 794.011(l)(e), Florida statutes (1983), as “great bodily harm or pain, permanent disability, or permanent disfigurement.” During the trial there was testimony that the victim was choked during the sexual battery, resulting in bruising about the neck, and additional testimony from the responding police officer that she had experienced “quite a bit of trauma.” The evaluation of the degree of force is generally a jury question. See Hufham v. State, 400 So.2d 133 (Fla. 5th DCA 1981). We find that it was in this case because of the choking testimony. The decision of the trial court judge is therefore

AFFIRMED.

ORFINGER and SHARP, JJ., concur.