Thе respondents below, E.A., C.G., W.A., J.F. and V.F., appeal from their adjudications of delinquency for aggravated battery. We affirm the adjudications as to E.A. and C.G., but reverse the adjudications as to W.A., V.F. and J.F. and rеmand with instructions to reduce their adjudications to attempted aggravated battery.
The chаrges against the respondents arose from an attack on Alvaro Pio Gomez [the victim]. E.A. and C.G. wеre charged with attempted robbery, aggravated battery, and the obstruction of law enforсement officers without the use of violence. W.A. and J.F. were charged with attempted aggravated battery. V.F. was charged with attempted aggravated battery and attempted robbery.
On April 5, 1991, Offiсer Durso and Officer Duke witnessed the respondents attacking the victim. Officer Durso testified that he sаw V.F. shove and then punch the victim in the face. The other respondents joined in and started to hit the victim ten to
Officer Duke testified that V.F. was the first one to strike the victim, and thereafter, the remaining respondents started to attack the victim. When the victim fell to the ground, the five respondents kicked the victim in the head, ribs and body. When Officer Duke approached the scene, the respondents fled. Thereafter, Officer Duke noticеd that the victim had a swollen eye, a swollen jaw, and abrasions.
The victim testified that he did not remember the attack. The victim was released from the hospital that same evening becausе “nothing was wrong.” The victim, however, did notice that he had a mark under his eye that was not there priоr to the attack.
During closing argument, the prosecutor referred to the mark under the victim’s eye as a “scar or bruise.” When the defense counsel objected to the prosecutor’s stаtement, the trial court responded, “I saw the victim’s face.”
The trial court found C.G. and E.A. guilty of aggravated battery and resisting arrest. The trial court found V.F. guilty of aggravated battery and attempted robbery. Finally, the trial court found W.A. and J.F. guilty of aggravated battery. The respondents appeal.
The rеspondents contend that the trial court erred in finding them guilty of aggravated battery where the State failed to prove that the battery resulted in great bodily harm, permanent disability or permanеnt disfigurement.
The issue of whether a victim incurred great bodily harm, permanent disability, or permanent disfigurement is a question of fact. Owens v. State,
In the instant case, the testimony revealеd that the victim was repeatedly hit and kicked by the respondents. As a result of the battery, the victim received a swollen eye, a swollen jaw, and a mark or scar under one of his eyes. In addition, the beating resulted in the victim losing consciousness. Under the facts of this case, there was sufficient competent evidence for the fact finder to find that the victim incurred great bodily harm. See Owens,
As the State properly concedes, the trial court erred in finding respondents W.A., V.F. and J.F. guilty of aggravated battery since they were charged with attempted aggravаted battery. See M.F. v. State,
Accordingly, we affirm the adjudications of E.A. and C.G. for aggravated battery; reverse the adjudications of W.A., V.F. and J.F. for aggravаted battery and remand with instructions to reduce the adjudications to attempted aggravatеd battery; and affirm the remaining adjudications which were not contested on appeal.
Notes
. Section 784.045(l)(a), Florida Statutes (1989), provides as follows:
A person commits aggravated battery who, in committing battery:
1. Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurеment; or
2. Uses a deadly weapon.
In the instant case the respondents were not charged with the use of a deadly weapon, nor was there any evidence which demonstrated that a deadly weapon was used. Accordingly, the State had to prove that the battery resulted in great bodily harm, permanent disability, or permanent disfigurement.