DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

T.E.B.,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D20-2699

[March 30, 2022]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, 

Martin County; Darren Steele, Judge; L.T. Case No. 432020CJ000154A.

Carey Haughwout, Public Defender, and Erika Follmer, Assistant 

Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Sorraya M. SolagesJones, Assistant Attorney General, West Palm Beach, for appellee.

LEVINE, J.

T.E.B. (“appellant”) appeals the order adjudicating him delinquent and 

sentencing him to a maximum-risk residential program for committing the 

offenses of attempted first-degree murder, two counts of felony battery, 

and robbery. Appellant raises four issues: (1) the trial court erred in 

excluding expert testimony relating to appellant’s sickle cell disease and 

neurological functioning, which was relevant to the issue of premeditation; 

(2) the trial court erred in allowing expert testimony about how 

asphyxiation causes death; (3) there was insufficient evidence to establish 

felony battery; and (4) the trial court erred in departing from the 

Department of Juvenile Justice’s recommendation. We find the second 

and fourth issues without merit and affirm without further comment. We 

also affirm the first issue because the trial court did not err in excluding 

the proffered testimony inasmuch as it related to diminished capacity. To 

the extent the expert’s proffer included testimony about sickle cell disease, 

it was not adequately preserved. Finally, we reverse the third issue and 

remand for the trial court to adjudicate appellant guilty of two counts of 

simple battery. 
2

Appellant, age twelve, was a patient at a behavioral health hospital. On 

the day in question, appellant was agitated, pacing, and going into other 

patient’s rooms. Two staff members attempted to block appellant. A 

struggled ensued, and appellant grabbed one of the staff member’s 

security badges. Appellant punched the same staff member in the head 

multiple times while saying, “If you press charges bitch.” Appellant put 

his hands around the staff member’s neck and put her in a headlock. The 

staff member was unable to scream because she was being choked and 

could not breathe. Appellant told her, “I’m going to kill you, bitch.” 

The second staff member “called code” and unsuccessfully tried to 

intervene. Appellant wrapped his legs around the second staff member 

while maintaining his chokehold on the first staff member. He then 

grabbed the second staff member around the neck. At that point, a third 

staff member came and removed appellant. 

After the incident, appellant said that he felt the first staff member 

shaking underneath him and it would have taken seconds for her to die if 

the second staff member had not interfered. Appellant asked where the 

first staff member went because he wanted her to come back so he could 

“finish.” Photographs of the first staff member’s injuries were introduced 

into evidence as well as surveillance videos of the incident. 

Before trial, appellant sought to call a neuropsychologist, Dr. Joseph 

Sesta, to testify that appellant lacked the capacity to form specific intent 

due to sickle cell disease and mental illness. Appellant submitted an 

unsworn affidavit by Dr. Sesta stating that appellant’s intelligence and 

overall neurocognitive ability fell below 2% compared to other juveniles his 

age. Dr. Sesta opined that appellant lacked the capacity to premeditate

attempted first-degree murder due to his major neurocognitive disorder 

and associated neurological defects. Alternatively, appellant’s actions 

resulted from an inability to regulate and control his behavior due to brain 

impairment, likely owing to his sickle cell disease.

Appellant also submitted a report completed by Dr. Sesta, which noted 

that children with sickle cell disease have a decrease in generalized brain 

functioning. Additionally, sickle cell disease can cause decreased oxygen 

to the brain resulting in neurobehavioral disfunction, although the report 

noted that testing would need to be done to determine whether this was 

occurring in appellant. The report concluded that appellant’s “capacity to 

conform his behavior to the standards of the law has been seriously 

impaired by his neurocognitive and neurobehavioral dysfunction, likely 

associated with Sickle Cell Disease, with possible contribution from 

comorbid psychiatric disorders.”
3

The state moved in limine to prohibit appellant from introducing 

evidence of his mental state or diminished capacity to show lack of the 

intent to commit attempted murder, arguing that cognitive disorders and 

diminished capacity are not a legal defense. In support, the state relied 

on Chestnut v. State, 538 So. 2d 820 (Fla. 1989). 

At the outset of the bench trial, the trial court granted the motion in 

limine, ruling: 

Florida is a binary state that does not provide for a defense 

of diminished capacity in any permutation other than a 

specifically pled defense of insanity. 

In the juvenile system the whole basis for a separate

system rests in large part on the idea that juveniles inherently 

deal with diminished capacity and impulse issues and that 

those are to be addressed on an individual basis. This Court 

finds Chestnut to be controlling, cites to Chestnut and 

Beckman, therefore the State’s Motion In Limine is granted.

The trial court prohibited the defense from introducing mental health 

evidence in its case-in-chief, but ruled such evidence would be admissible 

at disposition should appellant be found guilty. 

In opening statements, the defense conceded the two counts of battery, 

as they were apparent on the surveillance video. Defense counsel further 

conceded that the two battery counts would constitute felony battery 

based on appellant’s prior record. The state then introduced into evidence 

a prior withhold of adjudication for battery. 

After trial, the trial court found appellant guilty of all counts. After a 

disposition hearing, wherein the trial court heard testimony from Dr. Sesta 

and the attempted murder victim, the trial court committed appellant to a 

maximum-risk residential program. 

On appeal, appellant argues that the trial court erred in excluding 

evidence of his sickle cell disease and neurological functioning, which was 

relevant to the issue of premeditation. 

“A trial court’s ruling regarding the admissibility of expert testimony is 

reviewed on appeal for abuse of discretion.” Daniels v. State, 312 So. 3d 

926, 932 (Fla. 4th DCA 2021). 
4

“Our precedent has firmly established the inadmissibility of evidence 

relating to mental capacity absent an insanity plea.” Nelson v. State, 43 

So. 3d 20, 30 (Fla. 2010) (finding evidence of schizoaffective disorder 

inadmissible); see also State v. Bias, 653 So. 2d 380, 382 (Fla. 1995) 

(“[E]xpert evidence of diminished capacity is inadmissible on the issue of 

mens rea.”). As the supreme court has explained: 

It could be said that many, if not most, crimes are committed 

by persons with mental aberrations. If such mental 

deficiencies are sufficient to meet the definition of insanity, 

these persons should be acquitted on that ground and treated 

for their disease. Persons with less serious mental 

deficiencies should be held accountable for their crimes just 

as everyone else. If mitigation is appropriate, it may be 

accomplished through sentencing, but to adopt a rule which 

creates an opportunity for such persons to obtain immediate 

freedom to prey on the public once again is unwise.

Chestnut, 538 So. 2d at 825. 

The rationale for the exclusion of evidence of diminished capacity is 

that it “is too potentially misleading to be permitted routinely in the guilt 

phase of criminal trials.” Bunney v. State, 603 So. 2d 1270, 1273 (Fla. 

1992); see also Dillbeck v. State, 643 So. 2d 1027, 1029 (Fla. 1994) 

(“[E]vidence of most mental conditions is simply too misleading to be 

allowed in the guilt phase.”). The supreme court has carved a narrow 

exception to this rule and stated that “evidence of certain commonly 

understood conditions that are beyond one’s control,” such as 

“medication, epilepsy, infancy, or senility” is not too potentially misleading 

and “should also be admissible.” Bunney, 603 So. 2d at 1273. In Bunney, 

the supreme court found that evidence the defendant committed the crime 

during the course of a minor epileptic seizure was admissible. Id. 

However, the supreme court found that the trial court properly excluded 

other evidence “relating to a general mental impairment or other esoteric 

condition.” Id. at 1273 n.1. 

We find the trial court did not err in granting the motion in limine 

because evidence of diminished capacity is inadmissible. We further find 

that appellant failed to preserve a claim regarding the admissibility of his 

sickle cell disease. Appellant proffered the testimony he sought to admit 

by submitting a filing to the court and attaching an unsworn affidavit and 

a report from Dr. Sesta. However, the substance of these documents 

showed that appellant sought to admit evidence of both his sickle cell 

disease and mental illness. It is clear that evidence of mental illness 
5

constitutes diminished mental capacity and thus is inadmissible. 

Chestnut, 538 So. 2d at 824. At no point did appellant seek to introduce 

evidence of sickle cell disease alone. See Tillman v. State, 471 So. 2d 32, 

35 (Fla. 1985) (“In order to be preserved for further review by a higher court 

. . . the specific legal argument . . . to be argued on appeal or review must 

be part of that presentation if it is to be considered preserved.”). 

Nor did appellant secure a ruling on the admissibility of evidence of 

sickle cell disease in and of itself. Rather, the trial court limited the scope 

of its ruling scope to diminished capacity, specifically stating that 

diminished capacity is not admissible under Chestnut. The trial court did 

not make a specific reference to sickle cell disease, nor did appellant 

request a separate ruling on the admissibility of sickle cell disease. See

Carratelli v. State, 832 So. 2d 850, 856 (Fla. 4th DCA 2002) (“[A] party 

must obtain a ruling from the trial court in order to preserve an issue for 

appellate review.”). Therefore, by failing to argue and obtain a ruling based 

solely on sickle cell disease, appellant failed to preserve this issue for 

appeal. 

Appellant also argues there was insufficient evidence to establish felony 

battery and that defense counsel was ineffective on the face of the record 

for conceding that the battery counts could be enhanced to felony battery. 

The state agrees that if this court finds ineffective assistance on the face 

of the record, it should reverse and remand for entry of simple battery. 

“[I]neffective assistance of counsel claims are generally not cognizable 

on direct appeal.” Aversano v. State, 966 So. 2d 493, 495 (Fla. 4th DCA 

2007). There is exception to this rule, however, for those rare instances 

where ineffectiveness is obvious on the face of the record and causes clear 

prejudice. Id.; see also Sims v. State, 998 So. 2d 494, 502 (Fla. 2008) (“A 

claim of ineffective assistance may be considered during the direct 

appellate proceedings if the ‘ineffectiveness is apparent on the face of the 

record and it would be a waste of judicial resources to require the trial 

court to address the issue.’”) (citation omitted). 

Battery is a first-degree misdemeanor. § 784.03(1)(b), Fla. Stat. (2020). 

However, a prior battery conviction causes a subsequent battery 

conviction to be reclassified as a third-degree felony. § 784.03(2), Fla. Stat.

(2020). “For purposes of this subsection, ‘conviction’ means a 

determination of guilt that is the result of a plea or a trial, regardless of 

whether adjudication is withheld or a plea of nolo contendere is entered.” 

Id. However, and significant to this issue, for purposes of juvenile 

delinquency proceedings, an adjudication of delinquency is not deemed a 

conviction: 
6

Except as the term “conviction” is used in chapter 322 

[driver’s licenses], and except for use in a subsequent 

proceeding under this chapter [juvenile delinquency 

proceedings], an adjudication of delinquency by a court with 

respect to any child who has committed a delinquent act or 

violation of law shall not be deemed a conviction.

§ 985.35(6), Fla. Stat. (2020). 

In W.J.H. v. State, 922 So. 2d 458, 459 (Fla. 4th DCA 2006), this court 

considered “whether a withhold of adjudication entered in juvenile 

delinquency proceedings initiated under chapter 985, Florida Statutes, 

may provide the predicate prior battery ‘conviction’ necessary to sustain a 

conviction for felony battery, pursuant to section 784.03(2), Florida 

Statutes, in subsequent delinquency proceedings.” We held that “a 

withheld adjudication for simple battery in juvenile court may not be used 

as a predicate offense to elevate misdemeanor battery to felony battery.” 

Id. (citing J.E.A. v. State, 842 So. 2d 851 (Fla. 2d DCA 2002)). Accordingly, 

this court reversed the felony battery disposition and remanded with 

instructions that the trial court enter a new disposition order for simple 

battery. Id. at 459-60. 

The court in Anderson v. State, 323 So. 3d 833, 838 (Fla. 2d DCA 2021), 

found that trial counsel was ineffective on the face of the record for failing 

to object to the sufficiency of the state’s evidence of prior convictions for 

driving while license suspended or revoked, which served as a predicate 

for convicting the defendant of a felony. There was no plausible 

justification or strategic reason for trial counsel’s decision not to challenge 

the sufficiency of the state’s evidence of the defendant’s prior convictions, 

and it was clear the defendant suffered prejudice as he was exposed to a 

conviction of a third-degree felony rather than a second-degree 

misdemeanor. Id.

Like in W.J.H., appellant’s prior withhold of adjudication for battery 

could not serve as a predicate prior conviction for felony battery. Like in 

Anderson, the error is apparent on the face of the record. There was no 

plausible justification or strategic reason for trial counsel to agree that the 

withhold of adjudication for battery served as a predicate for felony battery, 

and appellant clearly suffered prejudice as he was adjudicated guilty of 

two counts of felony battery rather than two counts of simple battery. 

In summary, we reverse and remand the two felony battery 

adjudications with instructions for the trial court to adjudicate appellant 
7

guilty of two counts of simple battery. We also affirm the convictions for 

attempted murder and robbery.

Affirmed in part, reversed in part, and remanded with instructions.

WARNER and KLINGENSMITH, JJ., concur. 

* * *

Not final until disposition of timely filed motion for rehearing.