                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

SAMUEL ALLEN JACKSON,                NOT FINAL UNTIL TIME EXPIRES TO
                                     FILE MOTION FOR REHEARING AND
      Appellant,                     DISPOSITION THEREOF IF FILED

v.                                   CASE NO. 1D16-144

STATE OF FLORIDA,

      Appellee.


_____________________________/

Opinion filed March 3, 2017.

An appeal from the Circuit Court for Duval County.
Angela Cox, Judge.

Andy Thomas, Public Defender, and William Pafford, Assistant Public Defender,
Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney
General, Tallahassee, for Appellee.


ROWE, J.

      Samuel Allen Jackson appeals his judgment and sentence for aggravated

battery with a deadly weapon. We affirm all issues raised in his appeal and write

only to address Jackson’s argument that the trial court erred in admitting a

photograph depicting the victim’s injuries. Jackson argues that the photograph was

not relevant, was inflammatory, and had a high probability of creating unfair
prejudice. We disagree. Because the photograph was relevant to prove that Jackson

used a deadly weapon in the course of the battery and the photograph was not

shocking in nature, the trial court did not err in admitting the photograph into

evidence.

       “[E]vidence of victim injury, even where not an element of the offense

charged, is admissible if otherwise relevant.” T.B. v. State, 669 So. 2d 1085, 1086

(Fla. 4th DCA 1996) (en banc). Photographic evidence of injuries in an aggravated

battery case may be relevant to determine whether a battery occurred in the first

place, and if the charge is aggravated battery with a deadly weapon, to demonstrate

that the weapon in question was used in a manner that would qualify it as a deadly

weapon. Id.; see also Brooks v. State, 726 So. 2d 341 (Fla. 5th DCA 1999) (holding

that evidence of the victim’s injuries was relevant to corroborate that a battery took

place and that the wooden-handled kitchen knife used in that battery qualified as a

deadly weapon).

      Here, the photograph at issue was offered by the State to prove that Jackson

used the knife in a manner that would allow the knife to qualify as a deadly weapon

when he stabbed the victim. § 784.045(1)(a)2., Fla. Stat. (2014). The victim

sustained two stab wounds on the side of his back and two in his chest. The

photograph depicted the victim lying on a hospital bed wearing a breathing mask

and with IV tubes running to his body. The photograph also showed gauze on the

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victim’s chest, where he was stabbed twice. Other photographs were admitted into

evidence without objection, but those showed close-up views of the stab wounds.

The photograph of the victim in the hospital bed indicated to the jury in a way that

other subsequent photographic exhibits submitted by the State could not, the location

of the stab wounds, specifically, the proximity of those wounds to the victim’s heart.

Thus, the photograph was relevant to whether Jackson used the knife in a deadly

manner.

      Further, the photograph’s relevance was not substantially outweighed by the

danger of undue prejudice. The Florida Supreme Court explained the standard for

admitting graphic photographs of a victim:

      This Court has long followed the rule that photographs are admissible
      if they are relevant and not so shocking in nature as to defeat the value
      of their relevance. Where photographs are relevant, “then the trial judge
      in the first [instance] and this Court on appeal must determine whether
      the gruesomeness of the portrayal is so inflammatory as to create an
      undue prejudice in the minds of the jury and [distract] them from a fair
      and unimpassioned consideration of the evidence.” We have
      consistently upheld the admission of allegedly gruesome photographs
      where they were independently relevant or corroborative of other
      evidence.

Hertz v. State, 803 So. 2d 629, 641 (Fla. 2001) (quoting Czubak v. State, 570 So. 2d

925, 928 (Fla. 1990)).

      The photograph of the victim in this case could not be described as gruesome

or graphic. It did not depict significant amounts of blood. In fact, the victim’s

wounds were covered by gauze. Further, the victim had recovered by the time of
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trial and the jury was instructed that its “verdict should not be influenced by feelings

of prejudice, bias or sympathy.”

      The photograph was not shocking in nature; other photographs depicting the

victim’s injuries were admitted into evidence; the victim had fully recovered by the

time of trial; and the jury was instructed appropriately to avoid acting out of

prejudice, bias, or sympathy. Therefore, the danger of unfair prejudice did not

outweigh the photograph’s relevance.

      For these reasons, Jackson’s judgment and sentence are AFFIRMED.

LEWIS and KELSEY, JJ., CONCUR.




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