TENTH JUDICIAL CIRCUIT COURT
FOR HARDEE, HIGHLANDS AND
POLK COUNTY, FLORIDA

Appeal No:BB-29

Case No: MM98-06463A-XX

JAMES H. MILLS,

Appellants,

vs.

STATE OF FLORIDA,

Appellee.

__________________________________

This is an appeal from the county court of Polk County, Judge Mary C. Green presiding. Appellant, James Mills, was convicted of simple battery following a bench trial. He argues on appeal that the trial judge erred by adjudicating him guilty. This court has jurisdiction. Fla. R. App. P. 9.030(c). The ruling of the county court is affirmed.

A. Did the trial court err in denying the defense motion for judgment of acquittal?

Testimony at trial established that on March 31, 1998, Appellant was terminated from his position as a truck driver. As he left his place of employment, he drove his pick up truck in such a manner as to spray gravel from the driveway onto bystanders. Carl Gadd, his employer followed Appellant. Gadd caught up with Appellant at a nearby convenience store and tried to talk to him. Appellant was still seated in his truck as Gadd approached. Following a verbal exchange, Appellant struck Gadd with the door of the truck as he exited. Appellant then struck Gadd with a flashlight on his upper body.

The trial judge denied a defense motion for judgment of acquittal. Appellant, appearing pro se on appeal, questions the credibility of state’s witness, Carl Gadd, and the sufficiency of evidence supporting the adjudication.

The judgment and sentence of the trial court are presumptively correct and will not be overturned without a showing of clear error. Chiles v. State Employees Attorney’s Guild, 734 So. 2d 1030, 1034 (Fla. 1999). The credibility of witnesses and the weight of evidence is within the exclusive province of the trier of fact. Woods v. State, 733 So. 2d 980, 986 (Fla. 1999). To overturn a ruling of the trial court which denies a judgment of acquittal, the evidence must show that the state failed to make a prima facie showing of each element of the offense charged. In the Interest of T. M. M., 560 So. 2d 805 (Fla. 4^th DCA 1990). The sufficiency of evidence is a question of law subject to plenary review. Almeida v. State, WL 506965 (Fla. 1999).

At the close of testimony, the trial judge concluded that Appellant had become the aggressor during the second altercation and self-defense was unfounded. The trial judge offered defense counsel the opportunity to present case law supporting defense’s position that by following Appellant, Gadd consented to the events which followed. Defense counsel failed to produce any such support. A review of the proceedings below reveal no reversible error.

Accordingly, it is ORDERED that the judgment and sentence of the county court are AFFIRMED.

ORDERED February 2000.

Charles B. Curry

Chief Judge