
    Jose Ricardo RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 88-1789.
    District Court of Appeal of Florida, Third District.
    Feb. 11, 1992.
    Rehearing Denied March 17, 1992.
    
      George T. Yoss and Arthur Joel Berger, Miami, for appellant.
    Robert A. Butterworth, Atty. Gen. and Michael Neimand, Asst. Atty. Gen. and Lauri Waldman Ross, Sp. Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARKDULL and GERSTEN, JJ.
   SCHWARTZ, Chief Judge.

Treating the only substantive point which merits discussion, we hold that the defendant’s act of pointing a pistol at the victim to secure acquiescence to his acts of simple battery by non-consensually touching her intimate areas, involved the “use” of a deadly weapon in the commission of the battery within the meaning of sub-subsection (l)(a)2 of the aggravated battery statute, § 784.045, Fla.Stat. (1989). Gaston v. State, 672 S.W.2d 819, 821 (Tex. App.1983) (“Appellant here argues that since he did not physically move the gun, point it or threaten to shoot defendant, he did not ‘use’ the gun as the statute requires. We do not believe the word ‘use’ can be so narrowly construed. It was the presence of the gun in appellant’s hand that instilled fear in complainant and made her feel threatened with bodily injury. When appellant had one hand over complainant’s mouth, the other was holding the shotgun in very close proximity to complainant’s body. To say appellant did not ‘use’ the gun would be to totally negate it as a factor in the incident. That simply is not the case.”). Accord State v. Pruitt, 94 N.C.App. 261, 380 S.E.2d 383 (1989), review denied, 325 N.C. 435, 384 S.E.2d 545 (1989); May v. State, 660 S.W.2d 888 (Tex.App. 1983), aff’d, 722 S.W.2d 699 (Tex.Crim.App. 1984). See generally Lareau v. State, 573 So.2d 813 (Fla.1991). Hence, the aggravated battery conviction is affirmed.

As the parties agree, the guidelines score sheet should be amended to eliminate the twenty-four points which were erroneously assessed for victim injury. See Northcut v. State, 493 So.2d 85 (Fla. 4th DCA 1986). No remand for resentencing is required, however, because the recalculation does not affect the applicable cell. See Hayward v. State, 590 So.2d 976, 976 n. 3 (Fla. 5th DCA 1991); Sellers v. State, 578 So.2d 339 (Fla. 1st DCA 1991), approved, 586 So.2d 340 (Fla.1991).

There is no merit in the appellant’s remaining point.

Affirmed as modified.

BARKDULL, J., concurs.

GERSTEN, Judge,

concurring in part and dissenting in part.

I concur in part, and dissent in part.

I concur in the majority’s opinion, except for that portion which affirms the conviction for aggravated battery. Because I believe that appellant did not “use a deadly weapon” within the meaning of section 784.045, Florida Statutes (1989), I would reverse the conviction for aggravated battery.

Appellant entered a clothing store which was occupied by two employees, and one female customer with her two small children. Appellant pulled out a gun and took jewelry and money from the three adults and the cash register. Appellant then ordered the two employees into the bathroom, and the customer into an office. Appellant entered the office and fondled the customer while pointing the gun at her.

At trial, appellant was convicted of three counts of robbery with a firearm, three counts of false imprisonment, one count of aggravated battery, and one count of display of a firearm during the commission of a felony.

On appeal, appellant asserts that the evidence was legally insufficient to convict on aggravated battery. I agree.

Section 784.045, Florida Statutes (1989), states:

(l)(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.

The testimony at trial clearly demonstrated that appellant did not, “intentionally or knowingly cause great bodily harm, permanent disability, or permanent disfigurement”. Thus, appellant’s conviction for aggravated battery necessarily rested on the second prong of Florida Statutes 784.-045(l)(a), to wit: using a deadly weapon.

The majority’s position that appellant’s act of pointing the gun at the victim, while he fondled her, constitutes “use of a deadly weapon” (in the context of the aggravated battery statute), is unsupported by law or logic.

First, the majority’s cases are inapposite. For example, the majority quotes the following language from Gaston v. State, 672 S.W.2d 819 (Tex.App.1983):

Appellant here argues that since he did not physically move the gun, point it or threaten to shoot the victim, he did not “use” the gun as the statute requires. We do not believe that the word “use” can be so narrowly construed. It was the presence of the gun in appellant’s hand that instilled fear in complainant and made her feel threatened with bodily injury. When appellant had one hand over complainant’s mouth, the other was holding the shotgun in very close proximity to complainant’s body. To say that appellant did not “use” the gun would be to totally negate it as a factor in the incident. That simply is not the case.

Gaston v. State, 672 S.W.2d at 821. In Gaston, the appellant was appealing a conviction for aggravated assault. Here, appellant appeals his conviction for aggravated battery.

Assault, by definition, involves instilling fear. Aggravated assault, therefore, involves the use of a deadly weapon to instill fear. Battery, by definition, involves an unlawful touching. The use of a weapon in an aggravated battery, therefore, logically involves that weapon’s contact with the body. We should not apply the Gaston court’s construction of the term “use of a deadly weapon” an aggravated assault case, to a completely different offense— aggravated battery.

Second, logic and legislative language show that “using” a deadly weapon is not the same thing as “displaying” or even “threatening to use” a deadly weapon. Thus, if appellant would have discharged the gun, or used it to strike someone, then he could have committed an aggravated battery.

I do believe that these facts support conviction for aggravated assault. Sections 784.011 and 784.021, Florida Statutes (1989) state:

784.011 Assault.—
(1) An “assault” is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.
******
784.021 Aggravated Assault (1) An “aggravated assault” is an assault:
(a) With a deadly weapon without intent to kill; or
(b) With an intent to commit a felony.

Furthermore, the legislature did not intend the term “uses a deadly weapon” to encompass “displays” or “threatens to use” a deadly weapon. In other instances where the legislature has intended to include the concepts of “displaying” or “threatening to use” a weapon, it has inserted those exact phrases. See § 775.-087(l)(a), Fla.Stat. (1989). It follows, that if the legislature would have intended the aggravated battery statute to include “displays” or “threatens to use” a deadly weapon, they would have inserted these terms.

Appellant posed a graphic and cogent hypothetical: Suppose that a parent, irate over a disputed call at a little league baseball game, grabbed a deadly weapon, a bat, in his right hand and ran up to the umpire. And, suppose that the disgruntled parent threatened to bash the umpire’s head with the bat he held in his right hand. Suppose further that the parent touched the umpire with his left hand, and then walked away.

Under these facts, the parent committed two crimes: 1) an aggravated assault with the bat he held in his right hand; and 2) a simple battery for the unlawful touching with the left hand. The parent, however, did not commit an aggravated battery. Yet under the majority holding — the parent necessarily committed an aggravated battery.

I cannot succumb to the majority’s logic and escalate an aggravated assault to the level of an aggravated battery. Accordingly, I would reverse the conviction for aggravated battery. 
      
      . 784.03 Battery.—
      (1) A person commits battery if he:
      (a) Actually and intentionally touches or strikes another person against the will of the other; or
      (b) Intentionally causes bodily harm to an individual.
      (2) Whoever commits battery shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
      784.045 Aggravated battery.—
      (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, [e.s.]
      
        ******
      
      (2) Whoever commits aggravated battery shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
     
      
      . See §§ 784.011, 787.021, Fla.Stat. (1989).
     
      
      . See § 784.03, Fla.Stat. (1989).
     