         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                          No. 1D18-6
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DON W. REINARD,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Leon County.
James C. Hankinson, Judge.

                         April 16, 2019


PER CURIAM.

     Months before Don Reinard’s probation was set to expire, the
state alleged that he violated it by committing a new law offense
of aggravated child abuse. The trial court found that the state
proved the offense, revoked Reinard’s probation, and sentenced
him to prison on the original conviction. Reinard argues on
appeal that a finding of aggravated child abuse is unsupported
where there is no evidence that the child suffered any physical
injury. We disagree and affirm.*


    * We affirm as to Reinard’s other two arguments without
further comment.
     Reinard was in a romantic relationship with the mother of a
three-year old boy (the victim) who was being toilet-trained.
Reinard, as punishment for the victim defecating in his pants,
made him eat his own feces. The older children reported this
incident to the mother, who confirmed it with the victim (who
stated, “he made me eat poop, Mommy”) and confronted Reinard,
who admitted doing so. The mother failed to intervene and, later
that day, allowed Reinard to change the victim after he again
soiled his pants. The mother walked into the bathroom after
hearing her son crying and saw him covered with feces on his
face, arms, and chest; she then witnessed Reinard pick up feces,
move it to the victim’s face, and tell him to take a bite. After the
victim was removed from the care of Reinard and the mother
(who failed to report his actions), he was placed with his
grandfather, who testified that the victim was withdrawn, afraid
of men, and scared to go to the bathroom. The child also once
asked his grandfather, who was about to change his diaper, not to
hurt him and stated that he did not like eating feces.

     Reinard argues that this evidence does not support a finding
of aggravated child abuse because there was no evidence of “great
bodily harm, permanent disability, or permanent disfigurement.”
While this finding is necessary under section 827.03(1)(a)3.,
Florida Statutes, aggravated child abuse may also be committed
by one who “[w]illfully tortures, maliciously punishes, or willfully
and unlawfully cages a child” under section 827.03(1)(a)2. The
statute provides the following definition:

    “Maliciously” means wrongfully, intentionally, and
    without legal justification or excuse. Maliciousness may
    be established by circumstances from which one could
    conclude that a reasonable parent would not have
    engaged in the damaging acts toward the child for any
    valid reason and that the primary purpose of the acts
    was to cause the victim unjustifiable pain or injury.

§ 827.03(1)(c), Fla. Stat. Like the trial court, we have no difficulty
finding that Reinard’s punishment—repeatedly making a three-
year-old child eat his own feces—was malicious.

    Reinard asserts that Wheeler v. State, 203 So. 3d 1007 (Fla.
4th DCA 2016), requires great bodily harm, permanent,
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disabilities, or permanent disfigurements to support a finding of
malicious punishment. In Wheeler, where an eighteen-year-old
was charged with aggravated child abuse after engaging in a
fistfight with a sixteen-year-old victim, the Fourth District noted
that some form of “relationship where the actor stands in loco
parentis to a child” is required. Id. at 1008-09. The court further
found that aggravated child abuse “committed through malicious
punishment ‘is reserved for cases involving parental discipline
that results in great bodily harm or permanent disabilities and
disfigurements or that demonstrates actual malice on the part of
the parent and not merely a momentary anger or frustration.’”
Id. at 1009 (quoting Cox v. State, 1 So. 3d 1220, 1223 (Fla. 2d
DCA 2009)). Contrary to Reinard’s argument, “parental discipline
that . . . demonstrates actual malice” is sufficient to support
aggravated child abuse. Id.

     We reject Reinard’s argument that aggravated child abuse
by malicious punishment necessitates a finding of physical
injury. Therefore, we AFFIRM the trial court’s order revoking
probation and imposing a sentence on Reinard’s original
conviction.

WOLF, WINOKUR, and JAY, 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, Steven L. Seliger, Assistant
Public Defender, and Joel Arnold, Assistant Public Defender,
Tallahassee, for Appellant, and Don W. Reinard, pro se,
Appellant.

Ashley Moody, Attorney General, Tallahassee, for Appellee.




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