IN THE CIRCUIT COURT OF
THE TENTH JUDICIAL CIRCUIT
FOR HARDEE, HIGHLANDS, AND

POLK COUNTY, FLORIDA

APPEAL NO.: DD-9

COUNTY CASE NO.: MM00-07554A-XX

MARGARET OYSTER,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

_______________

ORDER OF THE COURT

This is an appeal of an order convicting appellant, Margaret Oyster, of battery, in the county court of Polk County, Judge Mary Catherine Green presiding. The trial court denied defense counsel=s motion for a judgment of acquittal. Appellant raises one issue on appeal; whether the trial court erred in denying her motion for judgment of acquittal. This court has jurisdiction. Fla. R. App. P. 9.030(c)(1)(A). The verdict and sentence of the county court is affirmed.

I.

At trial, the state=s only witness was the victim, Julia Rozell, who testified that she and the appellant, who were friends, were at Rozell=s house. The two had been drinking the night before. There were two men present in the house with them. Sometime in the early morning the appellant said she could not breathe. Rozell opened the doors and windows but the appellant still was having breathing problems. Rozell called 911 and paramedics came to examine the appellant but found nothing wrong with her. The appellant refused to go to the hospital with the paramedics and they left. Shortly thereafter, the appellant had a conversation with her friend Rick on the phone. The appellant was laying on the floor in front of a sliding glass door at the time. Rozell overheard the phone conversation. According to Rozell, the appellant told her friend how Rozell did not care that the appellant could not breathe, that all she cared about was Agetting laid.@ At that point, Rozell told the appellant to get out of her house. The appellant refused. Rozell told appellant that if she refused to leave, she would call the police . The appellant then told Rozell to call the police. Rozell walked over to the appellant to get the phone. The appellant threw the phone and then kicked Rozell in the knee, knocking Rozell to the floor. Rozell called the police. The appellant was charged with battery. A bench trial was held on January 8, 2001 and the trial court found the appellant guilty.

The appellant argues that the trial court erred in denying her motion for judgment of acquittal because the evidence did not show that she intended to strike the victim.

II.

In moving for a judgment of acquittal, the movant admits facts in evidence and every conclusion favorable to the state=s case that the jury might reasonably infer. State v. Blanco, 702 So.2d 597 (Fla. 2d DCA 1997). Lynch v. State, 293 So.2d 44, (Fla. 1974). A motion for a directed verdict of acquittal should not be granted unless it is apparent that no legally sufficient evidence has been submitted upon which a jury could convict. Brown v. State, 294 So.2d 128 (Fla. 3d DCA 1974); Spera v. State, 656 So.2d 550 (Fla. 2d DCA 1995). On appeal, the appellate court must view the conflicting evidence in a light most favorable to the State. Peterka v/ State, 640 So.2d 59 (Fla. 1994); Cochran v. State, 547 So.2d 928 (Fla. 1989). So long as competent, substantial evidence supports the jury=s verdict, it will not be overturned on appeal. Woods v. State, 733 So.2d 980 (Fla. 1999); Peterka v. State, 640 So.2d 59, 68 (Fla. 1994). Substantial evidence is evidence which a reasonable mind might accept as an adequate support for the conclusion reached. Cohen v. State, 99 So.2d 563 (Fla. 1957); De Groot v. Sheffield, 95 So.2d 912 (Fla. 1957).

In the instant case, the evidence showed that the appellant and the victim were involved in a verbal argument about the telephone and comments the appellant made while speaking on the phone with her friend Rick. During the argument, the victim had leaned over the appellant to retrieve her telephone. The victim did not in any way make contact with the appellant at that time. The victim testified that after demanding the appellant give her the telephone, the appellant threw the phone at her and then immediately reared her leg back and straightened it in a striking motion, kicking the victim in the knees. The victim also testified that after the appellant kicked her, the appellant stopped moving completely.

The appellant testified that she had been drinking, that she had become sick, and that she had argued with the victim during the incident, but claimed to not know who she was kicking. The appellant testified that Asomeone@ bent over her to get the phone, so she Athrew the phone and kicked out@. (T34-35). The appellant further testified that during this time, the victim was yelling at her. In further support of her argument that the state failed to prove intent, the appellant relies on testimony during the victim=s cross examination. Specifically, during her testimony and cross examination the victim adamantly maintained that she believed the appellant=s kick was intentional. On cross examination, the following transpired:

Q: Okay. So isn=t it more correct to say that because of the proximity of you to her, that the kick was not intentional, it was accidental?

A: No

Q: And you know that for a fact?

A: Not for a total fact.

(T: 15).

Weight and credibility are solely within the province of the fact finder; the appellate court=s only function is to determine sufficiency as a matter of law. State v. Santomaso, 764 So.2d 735 (Fla. 2d DCA 2000); Stewart v. State, 672 So.2d 865 (Fla. 2d DCA 1996); Chaudoin v State, 362 So.2d 398 (Fla. 2d DCA 1978). Conflicts in evidence and questions about witness= credibility will not justify reversal when evidence is legally sufficient to support conviction. Wetherington v. State, 263 So.2d 294 (Fla. 3d DCA 1972). The reviewing court should not substitute its opinion of the facts for that of the trier of fact. Tibbs v. State, 397 So.2d 1170 (Fla. 1981); State v. McIntyre, 393 So.2d 16 (Fla. 2d DCA 1980).

Having reviewed the record in this case, the court finds that there was legally sufficient evidence to support a finding of guilt. Thus, it can not be said that the denial of the motion for judgment of acquittal was an abuse of discretion.

Accordingly, the order of the county court is AFFIRMED.

ORDERED this day of August 2001.

Charles B. Curry, Chief Judge