          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                         No. 1D18-1446
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MICHAEL HALL,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Walton County.
Kelvin C. Wells, Judge.

                        December 18, 2018


WETHERELL, J.

     Appellant was convicted of felony child abuse for whipping his
11-year-old son with a belt. On appeal, he argues that (1) the trial
court erred in denying his motion for a judgment of acquittal, (2)
the trial court committed fundamental error by not instructing the
jury on the parental-discipline affirmative defense, and (3) defense
counsel’s failure to request this instruction was ineffective
assistance of counsel on the face of the record. We find no merit in
any of these arguments and write only to address the claim of
fundamental error in the jury instructions.

     The material facts were not in dispute. Appellant and the
child’s mother got into an argument while driving home from
Publix. Appellant’s son, who was also in the car, grabbed
Appellant’s balled-up fist and put his hand on Appellant’s shoulder
to prevent Appellant from hitting his mother. Upon arrival at the
house, Appellant snatched the child out of the car, took him into
the house, and gave him “a few licks” with his belt. The belt broke
the child’s skin causing him to bleed and left marks that were
visible several days later.

     The trial court gave the jury the standard instruction for child
abuse. See Std. Jury Instr. (Crim.) 16.3. However, defense counsel
did not request, and the court did not give, the instruction on the
parental-discipline affirmative defense, which states: “It is not a
crime for a parent of a child to impose reasonable physical
discipline on a child for misbehavior under the circumstances even
though physical injury resulted from the discipline.” Id.; see also
Raford v. State, 828 So. 2d 1012, 1020 (Fla. 2002) (rejecting
argument that child abuse by a parent is not a crime, but
explaining that “a parent may assert as an affirmative defense his
or her parental right to administer ‘reasonable’ or ‘nonexcessive’
corporal punishment”).

     The jury found Appellant guilty as charged. The trial court
adjudicated Appellant guilty and sentenced him as a habitual
felony offender to five years in prison followed by five years of
probation.

     On appeal, Appellant argues that the trial court committed
fundamental error by not instructing the jury on the parental-
discipline affirmative defense. We disagree.

      Where, as here, the trial court fails to instruct the jury on an
affirmative defense, fundamental error occurs only when the
defendant is deprived of a fair trial. See Martinez v. State, 981 So.
2d 449, 455 (Fla. 2008). A defendant is deprived of a fair trial if
the omitted instruction “[1] divests the defendant of his or her ‘sole,
or ... primary, defense strategy’ and [2] that defense is supported
by evidence adduced at trial that could not be characterized as
‘weak.’” McCoy v. State, 56 So. 3d 37, 40 (Fla. 1st DCA 2010)
(quoting Martinez, 981 So. 2d at 455-56) (emphasis added).

     Here, although Appellant’s sole defense was that the child’s
injuries occurred while Appellant was disciplining him, that

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defense was extremely weak because there was no evidence that
the child committed any misbehavior that would arguably justify
discipline. Rather, the undisputed evidence showed that the child
was given a whipping for trying to prevent Appellant from hitting
his mother in the car. The parental-discipline affirmative defense
affords no protection to Appellant under these circumstances. See
Julius v. State, 953 So. 2d 33, 35 (Fla. 2d DCA 2007) (affirming
mother’s child abuse conviction where evidence showed that she
beat her children as an outlet for her own frustration not as a
legitimate form of discipline to punish some specific misbehavior).

    For these reasons, we affirm Appellant’s conviction and
sentence.

    AFFIRMED.

WOLF and LEWIS, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Andy Thomas, Public Defender, and M. J. Lord, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez,
Assistant Attorney General, Tallahassee, for Appellee.




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