07-003654PL Department Of Law Enforcement, Criminal Justice Standards And Training Commission vs. Christopher B. Gunn Status: Closed Recommended Order on Tuesday, November 6, 2007.

Summary: Recommend a two-year suspension for domestic violence in the form of battery upon the certificate holder`s wife.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, )

CRIMINAL JUSTICE STANDARDS AND )

TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 07 - 3654PL

)

CHRISTOPHER B. GUNN, )

)

Respondent. )

_ _______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in Fort

Pierce, Florida, on October 2, 2007.

APPEARANCES

For Petitioner: Joseph S. Whi te

Assistant General Counsel

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Christopher B. Gunn, pro se

2398 Southeast Patio Circle

Port St. Lucie, Florida 34952

STATEMENT OF THE ISSUES

The issues are whether Respondent is guilty of failing to

maintain good moral character and, if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated January 31, 2007,

Petitioner alleged that Respondent "did unlawfully commit a

battery upon Jamilyn Gunn, by actually and intentionally

touching or striking said person against said person's will, or

by intentionally causing bodily harm to said person, when at the

time of the battery such person was pregnant, and the

[R]espondent knew or should have known that said person was

pregnant." The Administrative Complaint alleges that Respondent

thus violat ed Section 784.045, or any lesser included offenses,

and Section 943.1395(6) and (7), Florida Statutes, and Florida

Administrative Code Rule 11B - 27.0011(4)(a) by failing to

maintain good moral character. In its proposed recommended

order, Petitioner withd rew its allegation of a violation of

Section 943.1395(6), Florida Statutes.

Respondent timely requested a formal hearing.

At the hearing, Petitioner called three witnesses and

offered into evidence two exhibits, which were admitted into

evidence. Respon dent called no witnesses and offered into

evidence no exhibits.

The court reporter filed the transcript on October 26,

2007. Petitioner filed a Proposed Recommended Order on

November 2, 2007.

FINDINGS OF FACT

1. Respondent is a certified correctional officer, holding

correctional certificate number 247100. He has been a

correctional officer since March 9, 2005. Respondent has not

previously been disciplined.

2. Since 2002, Respondent has been married to Jamilyn

Gunn, who is 25 years old. They have four children born of this

marriage. The youngest was born on July 29, 2006.

3. On January 4, 2006, Respondent's mother came by their

apartment to pick up one of the children. Ms. Gunn, who works

nights at a Hess convenience store, had laid out the clo thes of

the child that the grandmother was to take. However, the

grandmother decided to take out one of the other children as

well, and Ms. Gunn had not laid out the clothes for this child.

4. Respondent tried to find socks for the child, but was

unable to do so. He asked Ms. Gunn to assist him, but she was

tired from working and declined. Respondent and Ms. Gunn began

to argue, quietly, so as not to disturb the children or

Respondent's mother, who were going in and out of the apartment.

Finally, Respo ndent pulled Ms. Gunn out of the bed and demanded

that she help him find the socks. Ms. Gunn pushed him away and

fell back into the bed. Respondent grabbed her arm to remove

her from the bed, and Ms. Gunn began kicking at him. Finally,

Respondent angril y struck her in her left jaw with his hand.

5. Ms. Gunn, who testified frankly about the incident,

stated that she was shocked by the blow, as Respondent has never

struck her other than on this day. The force of the impact left

Ms. Gunn unable to close h er jaw and in considerable pain.

6. Not wishing to be in the company of her husband,

Ms. Gunn drove herself to the hospital emergency room. X - rays

revealed a fractured left jaw. Ms. Gunn disclosed what had

happened to a nurse in the emergency room and t o a law

enforcement officer, who had been summoned by the nurse.

Ms. Gunn was treated and released without admission. However,

her jaw had to be wired closed for 7 - 8 weeks, during which time

Ms. Gunn was limited to a liquid diet.

7. Later on the day o f the incident, the law enforcement

officer arrested Respondent for aggravated domestic battery.

The record does not disclose the outcome of the criminal case.

8. Ms. Gunn was pregnant with the couple's fourth child at

the time of the battery, but neithe r she nor Respondent was

aware of this fact. Ms. Gunn testified that she had missed her

menstrual period and had told Respondent that she had missed her

period, but that she was often late with her periods and did not

realize that she was pregnant until s he received the results of

a urine test prior to the administration at the hospital of

x - rays (with appropriate shields). The evidence thus fails to

establish that Respondent should have known that his wife was

pregnant at the time of the battery.

9. Re spondent never testified and asked fewer than a half

dozen questions during the entire hearing. In particular,

Respondent did not ask his wife, who cried briefly at one point

while describing the incident on direct examination, anything

about subsequent e vents, evidently trying to spare her the pain

of extending her time on the stand.

10. These failures by Respondent leave the record devoid

of useful information, not for liability, but for penalty. In

nearly all cases of domestic violence, similar omis sions from

the record would not invite inferences favorable to Respondent

in setting the penalty. However, such a result in this case

would punish Respondent for his strategic misjudgments at

hearing when the focus must be on finding the right punishment

for the battery that he inflicted on his wife nearly two years

ago.

11. At all times during the hearing, Respondent appeared

painfully aware of the injuries -- physical and emotional -- that he

caused his wife in an unprecedented moment of violent rage. At

all times during the hearing, Respondent and his wife were

relaxed with each other, even though Ms. Gunn, in no way,

appears to have tried to simply ignore the incident. While

candidly describing the battery, Ms. Gunn spoke calmly, but did

not look to her husband for approval. For his part, Respondent

displayed no sign of argumentativeness or resistance to anything

that any of the witnesses said, except for the suggestion that

he had known that his wife was pregnant when he hit her.

CONCLUSIONS OF LAW

1 3. The Division of Administrative Hearings has

jurisdiction over the subject matter. §§ 120.569 and 120.57(1),

Fla. Stat. (2007).

14. Petitioner must prove the material allegations by

clear and convincing evidence. Department of Banking and

Finance v. Osborne Stern and Company, Inc. , 670 So. 2d 932 (Fla.

1996) and Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

15. The Administrative Complaint charges Respondent with a

violation of Section 784.045, Florida Statutes, which provides:

(1)(a) A person commits aggravated battery

who, in committing battery:

1. Intentionally or knowingly causes

great bodily harm, permanent disability, or

permanent disfigurement; or

2. Uses a deadly weapon.

(b) A person commits aggravated battery

if the person who was the victim of the

battery was pregnant at the time of the

offense and the offender knew or should have

known that the victim was pregnant.

16. Citing the statute that defines aggravated battery,

which is a felony of the second degree, pu rsuant to Section

784.045(2), Florida Statutes, the Administrative Complaint

relies exclusively on the pregnant - victim provision. Alleging

the extent of bodily harm, the Administrative Complaint replaces

the statutory language describing aggravated batter y ("great

bodily harm") with the statutory language describing simple

battery ("bodily harm"). Section 784.03(1)(a), Florida

Statutes, defines simple battery, which is a misdemeanor of the

first degree, as: "Actually and intentionally touch[ing] or

strik [ing] another person against the will of the other; or

[i]ntentionally caus[ing] bodily harm to another person."

17. The Administrative Complaint therefore alleges that

Respondent committed: 1) aggravated battery, but only on the

basis of the pregnancy of the victim, not on the basis of "great

bodily harm"; or 2) simple battery, as a lesser included offense

of aggravated battery.

18. Section 943.1395(7), Florida Statutes, authorizes

Petitioner to impose discipline for the failure to maintain good

moral character, as defined by rule. Discipline authorized by

statute comprises revocation, suspension for up to two years,

probation for up to two years, and the issuance of a reprimand.

19. Florida Administrative Code Rule 11B - 27.0011(4)(a) and

(b) provides that a certificate holder fails to maintain good

moral character if he is guilty of an act that would constitute

any felony or the misdemeanor of simple battery, among other

misdemeanors.

20. The distinction between felony and misdemeanor battery

emerges in the penalty guidelines. Florida Administrative Code

Rule 27.005(5)(a)2. provides that the penalty range for

aggravated battery is prospective suspension (meaning no credit

for the time suspended from correctional employment for the

offense) to revocat ion. Florida Administrative Code Rule

27.005(5)(b)2. provides that the penalty for simple battery is

suspension.

21. Florida Administrative Code Rule 27.005(6) lists the

aggravating and mitigating factors. The two aggravating factors

are the actual dama ge caused by Respondent (Rule 27.005(6)(a)7);

and the fact that the incident consists of domestic violence, as

defined in Section 741.28(2), Florida Statutes (Rule

27.005(6)(a)(11). The listed mitigating factors fail to address

Respondent's situation, but mitigating factors include

Respondent's refusal to try to avoid responsibility for the

incident and his apparent refusal to try to enlist his wife in

such an effort. It is important that Respondent's wife has not

tried to minimize the incident, but seems to have accepted

Respondent's evident contrition.

22. But for the pleadings, Respondent would be facing

revocation for the great bodily damage that he inflicted upon

his wife. 1 The penalty for simple battery is suspension.

Although aggravating and mi tigating factors exist, suspension is

a fitting penalty under the circumstances described above and

would be, even if Petitioner had properly pleaded aggravated

battery for "great bodily harm."

RECOMMENDATION

It is

RECOMMENDED that the Criminal Justice Standards and

Training Commission enter a final order finding Respondent

guilty of failing to maintain good moral character, by violating

Section 784.03, Florida Statutes, and imposing a two - year

suspension, with credit for any suspension imposed upon him by

any correctional employer for the same incident.

DONE AND ENTERED this 6th day of November, 2007, in

Tallahassee, Leon County, Florida.

S

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of November, 2007.

ENDNOTE

1 / Even when permitted by its pleadings to seek revocation,

Petitioner does not invariably impose revocation for aggravated

battery in the form of domestic violence. See Criminal Justice

Standards and Training Commission v. Jacqueline L. Scriven , DOAH

Case No. 03 - 3240PL (February 16, 2004) (two - year suspension for

aggravated battery by certificate holder who admitted that she

had struck her 21 - year - old daughter on her back and shoulders

repeatedly with a claw hammer).

A common element in the Scriven case and the present case is

the absence of any attempt by the certificate holder to deny

responsibility for his or her wrong ful act. Disciplinary

statutes and rules exist to protect the public. In cases of

domestic violence, in which the perpetrator lies to

investigators or this forum or causes or permits the victim to

lie, the prospect of additional offenses looms unacceptab ly

large, so protection of the public demands revocation. This

heightened risk is absent from the present case.

COPIES FURNISHED:

Michael Crews, Program Director

Division of Criminal Justice

Professionalism Services

Florida Department of Law Enforcem ent

Post Office Box 1489

Tallahassee, Florida 32302

Michael Ramage, General Counsel

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Joseph S. White, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallah assee, Florida 32302

Christopher B. Gunn

2398 Southeast Patio Circle

Port St. Lucie, Florida 34952

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order must be filed with the agency that

will issue the final order in this case.