Opinion filed March 17, 2000.
Appeal from the Circuit Court for Orange County, Margaret T. Waller, Judge.
James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Alfred Washington, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
Vince Peoples appeals his judgments and sentences which were imposed by the trial court after a jury found him guilty of committing the crimes of battery on a law enforcement officer, grand theft of a fire extinguisher, and interfering with a fire-fighting instrument. We affirm.
§§ 784.07(2)(b); 812.014(2)(c); 806.10(1), Fla. Stat. (1997).
Mr. Peoples first argues that the trial court erred in denying his motion for judgment of acquittal on two grounds: 1) the State failed to prove he had specific intent to commit the theft, and 2) the State failed to prove the value of the fire extinguisher was greater than $300. However, the record reveals that the court properly denied the motion since the evidence submitted by the State established all of the elements of the crime, including Mr. Peoples' intent to commit theft.
To that end, the State submitted evidence which demonstrated that Mr. Peoples, while an inmate in an Orange County correctional institution, took a fire extinguisher from its storage area and sprayed it in the face of a correctional officer. The testimony also established that Mr. Peoples did not have authority to remove the fire extinguisher. Accordingly, the trial court properly allowed the question of Mr. Peoples' intent to commit the theft to be determined by the jury based on the surrounding circumstances.See Hardwick v. State, 630 So.2d 1212 (Fla. 5th DCA 1994).
With regard to Mr. Peoples' argument that the State failed to prove the value of the fire extinguisher, we note that section 812.014(2)(c) of the Florida Statutes (1997) provides a list of items the theft of which constitutes grand theft regardless of the value of the items. Section 812.014(2)(c)8. specifically lists the theft of "[a]ny fire extinguisher" as a third degree grand theft. In such a case, the value of the fire extinguisher is not an element of the offense requiring proof by the State. See Davis v. State, 445 So.2d 627 (Fla. 1st DCA 1984).
In raising a challenge to his sentence, Mr. Peoples argues that the trial court erred in assessing 18 points for moderate victim injury, claiming that the evidence of record only demonstrated slight injury. A trial court's scoring of victim injury is within the sound discretion of the trial court. See Brown v. State, 635 So.2d 488 (Fla. 5th DCA 1995). Here, the victim testified that as a result of Mr. Peoples' attack upon him he blacked out from the caustic fumes. He experienced severe chest pressure and could not breath, his eyes and skin were burning, and he is still experiencing coughs which he related to the caustic fumes. Also, the prison nurse testified that the chemicals released from the fire extinguisher were caustic and may be carcinogenic, and that the chemicals crystalize in the lungs making it difficult to breath. This evidence supports the finding of moderate victim injury.
Having found no merit in either of the claims of error raised on appeal, we affirm Mr. Peoples' judgments and sentences.
SHARP, W. and GRIFFIN, JJ., concur.