Roy Allen Stephens v. State of Florida

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-3427 _____________________________ ROY ALLEN STEPHENS, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Polk County. Andrew J. Decker, Judge. January 12, 2022 NORDBY, J. This case involves the starvation death of a three-week-old infant. The jury, after a week-long trial, convicted Roy Allen Stephens of first-degree murder, aggravated child abuse, and aggravated manslaughter of a child. Stephens challenges those convictions, arguing the trial court erred by (1) denying his motion for judgment of acquittal; (2) permitting dual convictions for both first-degree murder and aggravated manslaughter of a child; (3) failing to properly instruct the jury on the first-degree murder and aggravated manslaughter counts; (4) precluding from trial statements made by Stephens’s co-defendant; and (5) denying Stephens’s motion for a new trial based on newly discovered evidence. We affirm.  I. On December 22, 2014, Stephens and his wife (the co-defendant), left their home in Indiana to visit family in Lakeland, Florida. They brought their three children with them on the road trip, including the three-week-old victim. The family arrived in Lakeland the next evening and stopped at a restaurant to meet Stephens’s sister. It was then that Stephens and the co-defendant noticed the infant was unresponsive. Stephens called 911 and first responders quickly arrived at the scene. They transported the victim to the hospital where she was pronounced dead. An autopsy revealed the victim had starved to death. In time, Stephens was indicted for (1) first-degree murder, (2) aggravated child abuse, and (3) aggravated manslaughter of a child. Stephens ultimately elected to have the trial in Hamilton County. At trial, the State presented testimony from various witnesses, including several first responders, health care officials, and a medical examiner. The State also introduced into evidence text and Facebook messages involving Stephens, as well as a recorded interview between law enforcement and Stephens. In the early evening of December 23, 2014, the Lakeland Fire Department and other first responders responded to a call about an unresponsive infant. They arrived at the restaurant parking lot around 6:15PM and discovered the victim, who appeared to be lifeless. They performed CPR and transported the victim to Lakeland Regional Medical Center, where the victim was pronounced dead at 6:45PM. Multiple nurses and paramedics testified that they had never seen an infant as malnourished and emaciated as the victim. This contrasted with the “very healthy” appearance of the two other young children. First responders described the victim as skeletal; her eyes were sunken; and she appeared to have been dead for some time before they arrived. One paramedic said the victim was small and rubberlike and noted “her arms were the size of my one finger.” Another stated that the victim looked like “a skeleton with skin draped over it.” 2  An ER physician recalled informing Stephens and the co-defendant at the hospital of the victim’s death. The co-defendant stated she breastfed the victim, the victim had no health issues, and shortly before arriving at the restaurant, the co-defendant had touched the victim’s foot and elicited a response. The physician testified, contrary to the co-defendant’s assertions, it was impossible for the victim to react that way or respond in any significant manner. To the physician (as well as the first responders), the victim appeared to have been dead “for some period of time.” The paramedic who transported the victim to the hospital explained that, by the time he arrived at the restaurant parking lot, rigor mortis had begun to set in. Multiple witnesses commented at trial on Stephens’s unusually calm demeanor that day. Lakeland Police Officer Dagon Leach testified that, while the co-defendant was somewhat upset, Stephens did not “appear to be distraught or upset at all, and throughout the time on scene, was able to carry on, you know, small talk in a normal conversation.” One firefighter paramedic even noticed Stephens laughing with others at the restaurant. A chaplain who encountered Stephens and the co-defendant at the hospital shortly after the victim was pronounced dead referenced Stephens’s lack of emotion. According to the chaplain, Stephens was emphatic that he did not want to visit the victim. At one point, the co-defendant expressed concern to Stephens about finances, to which he responded, “Don’t worry, we have life insurance.” Later that night, law enforcement interviewed Stephens and the co-defendant. Detectives described Stephens as calm and lacking emotion, but he became agitated when the questions focused on the victim’s feeding. During the interview, Stephens explained he is always home because of his disability and unemployment status. Stephens maintained the co-defendant’s pregnancy went smoothly, and the victim had no health issues after birth. Stephens described the victim as “healthy as can be” because she felt healthy when he held her and she smiled at him when he spoke to her. Stephens thought the victim weighed the same on the day she died as she did shortly after her birth. 3  According to Stephens, he and his family left their home in Indiana on December 22 to visit his sister in Lakeland. That first evening, they stopped at a hotel in Macon, Georgia. The next morning, the family traveled to Lakeland, where they planned to meet Stephens’s sister that evening at the restaurant. From there, the plan was to spend Christmas with the co-defendant’s parents, who reside in Oklahoma. Stephens said the family stopped often because of the children. Particularly, they stopped when the victim cried so the co-defendant could breastfeed the victim. The co-defendant fed the victim every half hour to two hours during the trip. When the co-defendant fed the victim, Stephens did other things, like clean the car, feed the other children, and change diapers. When pressed about the possibility that the victim was dead for a long time, Stephens replied that was not possible. After vacillating about when he observed the co-defendant feed the victim, he said he witnessed the co-defendant breastfeed the victim once in Macon and at some time during the day of December 23. When the family arrived at the restaurant in Lakeland, Stephens removed a cover from the victim and realized she was dead, at which point he called 911. At the end of the interview, in response to a question about the circumstances surrounding the victim’s death, Stephens declared that there was “no neglect.” Based on the autopsy examination, the medical examiner testified that no parent could look at the victim and determine that she was fine. The victim appeared “extremely malnourished” and “extremely dehydrated.” The victim’s bones were visible in many areas, and her skin was hanging and wrinkled because of a lack of fat. The medical examiner opined the victim did not develop this physical condition over the course of a day, but over time. And during this time, the victim suffered pain from the effects of starvation. At the time of examination, the victim weighed around four pounds, which is around two pounds less than what she weighed at birth and more than two pounds less than the normal weight of an infant that age. According to the medical examiner, it would take around twelve days without adequate sustenance for an 4 infant to lose two pounds. Based on the victim’s gastrointestinal tract, the medical examiner concluded the victim had not been fully fed for at least thirty hours. The medical examiner explicitly rebutted some contentions made by Stephens during his interview with law enforcement. The medical examiner asserted the victim could not have been smiling at Stephens the night before she was pronounced dead as the victim was largely lethargic and comatose at that time. Nor could Stephens have witnessed the co-defendant breastfeed the victim shortly before Stephens called 911 because the victim was dead at that point. The victim’s body temperature revealed that the victim died “three to six hours, or a little bit longer” before her temperature was taken at the hospital. The medical examiner noted, however, that the victim was likely in full rigor mortis when she was taken to the hospital. Thus, she could have died anywhere from eight to twelve hours before her temperature was taken. Based on the examination, the medical examiner determined the victim starved to death and suffered from no conditions that would prohibit her from maintaining an appropriate weight if properly fed. The autopsy prompted a criminal investigation, superintended by Lakeland Police Detective Brian Wallace. After the autopsy, Detective Wallace conducted a second interview with the co-defendant. According to the co-defendant, she experienced no complications with the victim after birth, and she fed the victim exclusively by breastfeeding. The co-defendant explained that insurance issues precluded her from taking the victim to a follow-up medical appointment on December 18. The co-defendant also explained Stephens was not happy about the victim living in their home because the infant resulted from the co-defendant’s extramarital affair. Stephens’s interaction with the victim was “very minimal,” and he only held the victim a few times during her lifetime. Stephens devoted most of his attention to his other two children. During their travel from Indiana to Florida, Stephens provided no attention to the victim. The co-defendant maintained that, at the time of the victim’s death, she thought the victim looked healthy. 5  The State introduced multiple text messages and Facebook messages between Stephens and the co-defendant. In these, Stephens complained that another individual was the father of the victim. In one message between Stephens and his aunt, Stephens jokingly conveyed that he did not want the victim. But in another message between Stephens and the co-defendant, Stephens told the co-defendant she could not put the victim up for adoption. Multiple health care officials from Indiana testified at trial. The testimony established that the victim was born healthy on December 1, 2014. The co-defendant’s lactation consultant testified that the co-defendant was strictly breastfeeding the victim, and mothers were discouraged from providing formula to infants when they are breastfeeding unless it is medically necessary to do so. Dr. Thomas Stratton, family physician at the Echo Clinic Community Health Center, located in Indiana, testified that he met with the co-defendant on December 5, 2014, and the victim appeared healthy. The victim, for unknown reasons, failed to attend her scheduled appointment on December 18. Dr. Stratton stated that the clinic’s mission is to serve indigent and uninsured patients, and the clinic would not have turned away the victim over insurance issues. The State also presented many photographs and recorded phone calls. In one December 12, 2014 call, the co-defendant and Stephens purchase Gerber life-insurance policies in the amount of $10,000 for all three children. Twelve days later, on Christmas Eve, Stephens informed a Gerber life-insurance representative of the victim’s death. At the close of the State’s case, Stephens moved for a judgment of acquittal. He argued the State failed to establish a prima facie case of premeditated murder. But Stephens conceded the State presented sufficient evidence to support felony murder, aggravated child abuse, and aggravated manslaughter of a child. Stephens also argued the venue was improper, and the trial court lacked jurisdiction because the State did not prove that the crimes were committed in Florida. The trial court denied the motion. 6  During the trial, Stephens sought to call the co-defendant and Alicia Jones, the co-defendant’s jail cellmate. The co-defendant invoked her Fifth Amendment right to remain silent and did not testify. Stephens had deposed Ms. Jones to perpetuate her testimony. Ms. Jones testified at deposition that, while in segregation, the co-defendant spoke with her about the case. Ms. Jones maintained the co-defendant was highly sedated and unremorseful of the victim’s death. In fact, the co-defendant would openly talk with people in the jail about the facts of the case and laugh about it. According to Ms. Jones, the co-defendant said she did not want the baby, but Stephens told her to keep the baby. The co-defendant stated, “she was supposed to be breastfeeding the baby, [but] she really wasn’t breastfeeding the baby, like five minutes here, a few minutes here, a few minutes there.” “[Stephens] was telling her to feed the baby, but she was just giving it just a suck here and a suck there.” When asked if the co-defendant suggested it was obvious that Stephens knew she was not feeding the victim, Ms. Jones said, “yeah, because she said the baby kept crying and he’s like, ‘well, feed the baby,’ and then that’s when she would get the baby and . . . feed it for a couple of minutes and then move on.” The co-defendant declared to Ms. Jones that Stephens had nothing to do with the victim’s lack of food, but the co-defendant also suggested that she did not want to testify because “her kids were with [Stephens’s] sister and . . . she was scared that she would never be able to speak to her kids again.” The trial court denied Stephens’s request to question Ms. Jones about her conversation with the co-defendant. The jury found Stephens guilty of all three counts: first-degree murder, aggravated child abuse, and aggravated manslaughter of a child. For the first-degree murder count, the jury specifically found Stephens guilty under both the premeditated murder and felony murder theories. The trial court sentenced Stephens to life in prison without the possibility of parole on Count I. For Counts II and III, the trial court sentenced Stephens to thirty years in prison, concurrent to each other but consecutive to Count I. 7  Following trial, Stephens filed a motion for a new trial based on newly discovered evidence: a letter found in the co-defendant’s jail cell, titled “My Confession of what Happened to my Daughter.” The letter was dated several years after the death of the victim. In it, the co-defendant states she accidentally starved the victim to death; she expresses regret in not listening to Stephens when he told her to feed the victim; and she asserts Stephens played no role in her negligent actions. The trial court entered a detailed order summarily denying the motion for new trial. II. Judgment of Acquittal A. First-Degree Murder Stephens first argues he was entitled to a judgment of acquittal because the State’s evidence was insufficient to sustain his three convictions. He also asserts the evidence failed to establish either that the crimes or the death of the victim occurred within the territorial jurisdiction of Florida. We disagree and affirm. We review de novo the trial court’s denial of a motion for judgment of acquittal. Bradwell v. State, 300 So. 3d 325, 327 (Fla. 1st DCA 2020). “The standard of review to be applied in all criminal cases where the sufficiency of the evidence is analyzed is whether the State presented competent, substantial evidence to support the verdict.” Carter v. State, 303 So. 3d 1271, 1273 (Fla. 1st DCA 2020). In applying this standard, we must view the evidence in the light most favorable to the State. Taylor v. State, 316 So. 3d 420, 426 (Fla. 1st DCA 2021). We begin by noting that our review of this issue is limited by what was argued and preserved below. See Sanders v. State, 318 So. 3d 605, 611 (Fla. 1st DCA 2021) (citing Newsome v. State, 199 So. 3d 510, 513 (Fla. 1st DCA 2016)). In moving for a judgment of acquittal, defense counsel conceded the State had presented sufficient evidence to convict Stephens of first-degree felony murder, aggravated child abuse, and aggravated manslaughter of a child. Thus, the only arguments raised below (and thus preserved for our review) were whether the State presented sufficient evidence of first-degree premeditated murder and whether the 8 State presented sufficient evidence to establish territorial jurisdiction. Given counsel’s concession that the evidence was enough to support the first-degree felony murder conviction, we decline to address Stephens’s sufficiency argument about premeditated murder. See Crain v. State, 894 So. 2d 59, 75 n.16 (Fla. 2004) (“Because we determine that the evidence is sufficient to support a first-degree felony murder conviction, we decline to directly address Crain’s argument that the evidence is insufficient to establish first-degree premeditated murder.”). 1 1 Had there been no concession on these points, however, a judgment of acquittal would not have been proper. The evidence (viewed in a light most favorable to the State) was enough to sustain the convictions. First, the evidence established that the victim starved to death, and the State presented evidence suggesting that the victim suffered from a lack of adequate sustenance for weeks. Second, the State presented evidence suggesting that Stephens knew the victim was starving in the days and weeks before the victim’s death. The evidence reflects that the emaciated condition of the victim, before and at the time of death, was readily apparent. In fact, a chorus of witnesses testified that the victim’s case was one of the worst cases they had ever seen. Third, the evidence incontrovertibly establishes that nothing was done about the victim’s condition until several hours after she died when Stephens called 911. The evidence also suggests that Stephens and the co-defendant actively prevented the victim from receiving medical attention in the weeks just before her death. Finally, the State presented evidence showing Stephens harbored bad feelings toward the victim and, because of these feelings, refused to provide adequate attention and care to the victim. In sum, the State provided sufficient evidence that Stephens committed first-degree felony murder predicated on aggravated child abuse, aggravated child abuse, and aggravated manslaughter of a child. The evidence, in a light most favorable to the State, suggests, at minimum, that Stephens willfully and consciously failed to ensure that the victim received proper medical care and adequate sustenance as the victim was starved to death over several weeks. Florida case law has long held that 9 B. Territorial Jurisdiction The remaining judgment of acquittal issue concerns territorial jurisdiction. In the criminal context, this refers to the sovereign authority of the State to subject a criminal defendant to prosecution in its courts for crimes committed in Florida. Lane v. State, 388 So. 2d 1022, 1026 (Fla. 1980). Particularly, Florida’s criminal jurisdiction statute subjects a person to prosecution in Florida for an offense he or she commits if, among other things, “[t]he offense is committed wholly or partly within the state.” § 910.005(1)(a), Fla. Stat. The statute further provides: An offense is committed partly within this state if either the conduct that is an element of the offense or the result that is an element, occurs within the state. In homicide, the “result” is either the physical contact that causes death, or the death itself; and if the body of a homicide victim is found within the state, the death is presumed to have occurred within the state. § 910.005(2), Fla. Stat. (emphasis added). Territorial jurisdiction is a factual determination, which is within the province of the jury, and the issue must be proved beyond a reasonable doubt. Lane, 388 So. 2d at 1028–29. In cases aggravated child abuse encompasses not only willful acts of commission, but also willful acts of omission and neglect that cause unnecessary or unjustifiable pain or suffering to a child. See Nicholson v. State, 600 So. 2d 1101 (Fla. 1992) (upholding convictions for felony murder and aggravated child abuse when the defendant systematically, over a four-month period, deprived a child of food); Zile v. State, 710 So. 2d 729 (Fla. 4th DCA 1998) (upholding convictions for felony murder and aggravated child abuse when the defendant was present and made no effort to interfere while husband severely punished the victim); State v. Carwile, 615 So. 2d 748 (Fla. 2d DCA 1993) (reversing dismissal of a felony murder by aggravated child abuse charge because intent to commit aggravated child abuse through omissions was an issue of fact). 10 implicating homicide, the question of whether the crime occurred in Florida, for purposes of territorial jurisdiction, is a jury question once the State proves that the victim died in Florida. See id.; § 910.005(2), Fla. Stat. The law provides a presumption in fact: “if the body of a homicide victim is found within the state, the death is presumed to have occurred within the state.” § 910.005(2), Fla. Stat. There is very little guidance on the application of this presumption. Yet we find informative the application of similar presumptions from other parts of Florida’s Penal Code. See State v. Grimmage, 522 So. 2d 523, 524 (Fla. 2d DCA 1988) (explaining the application of presumption enumerated in section 812.022(2), relating to evidence of theft or dealing in stolen property); see also J.M. v. State, 884 So. 2d 481 (Fla. 4th DCA 2004) (applying burglary presumption based on a defendant’s stealthy entry under section 810.07); Johnson v. State, 444 So. 2d 563, 564–65 (Fla. 1st DCA 1984) (applying fraud presumption enumerated in section 832.07). In line with these cases, we conclude the appropriate inquiry here is whether Stephens provided an unrefuted explanation as to where the offense was committed. If so, the trial court erred in failing to direct a judgment of acquittal. If, on the other hand, the explanation is not conclusive, or if there is any evidence to suggest that the crime took place in Florida, the trial court did not err, and the case properly went to the jury. Here, the discovery of the victim in Lakeland, Florida generates a presumption that she died in Florida. Through this presumption, the State provided sufficient evidence that all three offenses occurred in Florida. See §§ 827.03, 782.04, 782.07, Fla. Stat. Stephens presented no evidence and offered no explanation through the State’s evidence that conclusively rebutted the presumption. Thus, the statutory presumption was enough to create a prima facie case and avoid a judgment of acquittal. See J.M., 884 So. 2d at 481; Johnson, 444 So. 2d at 564–65. III. Jury Instructions Stephens argues the trial court fundamentally erred in instructing the jury. He alleges (1) the trial court erroneously instructed the jury as to manslaughter as a lesser-included offense 11 of first-degree murder, and (2) the trial court failed to properly instruct the jury as to aggravated manslaughter. We find no fundamental error in the jury instructions. As for Stephens’s first contention, the trial court properly instructed the jury as to first-degree felony murder, the offense of conviction, and the evidence presented at trial was enough to support the conviction for first-degree felony murder. See Weaver v. State, 288 So. 3d 784 (Fla. 1st DCA 2020) (“[W]here there is no error in the jury instruction on the offense of conviction, and the evidence supports that conviction, the defendant’s judgment must be affirmed.”). As to Stephens’s second contention, while the trial court’s instructions as to aggravated manslaughter did not perfectly conform to the recently adopted standard jury instructions, see In re Standard Jury Instructions in Criminal Cases-Report 2016-01, 213 So. 3d 680, 698–700 (Fla. 2017), the trial court properly instructed the jury on manslaughter (culpable negligence) and the jury explicitly found Stephens guilty of aggravated manslaughter of a child and made explicit findings that Stephens, through neglect, caused the death of a child. IV. Out-of-Court Statements We reject Stephens’s argument that the co-defendant’s hearsay statements to Alicia Jones were admissible as statements against the co-defendant’s penal interest. Statements against penal interest are governed by section 90.804(2)(c), Florida Statutes, and the tests enunciated in Dort v. State, 175 So. 3d 836, 840 (Fla. 4th DCA 2015) and Chambers v. Mississippi, 410 U.S. 284 (1973). Among other things, each analysis requires an evaluation about the truthfulness of the confession or statement. Payton v. State, 239 So. 3d 129, 131–33 (Fla. 1st DCA 2018). Here, the trial court found that the co-defendant’s statements were not trustworthy enough to warrant admission. In reaching its conclusion, the trial court mainly relied on the context, setting, and language of the co-defendant, which aligns with a trial court’s analysis of the trustworthiness of a third-party confession. See Payton, 239 So. 3d at 133. The trial court referenced the fact that the co-defendant was “very highly sedated” when she spoke with Ms. Jones; the trial court referenced the co-defendant’s openness 12 in speaking with other inmates at the jail about the murder; and the trial court referenced the co-defendant’s desire to curry favor with Stephens. The trial court also referred to inconsistencies between the co-defendant’s statements and the evidence presented at trial. The record supports the trial court’s findings that the co-defendant’s statements to Ms. Jones were not sufficiently trustworthy. For these reasons, the trial court did not abuse its discretion in ruling that the co-defendant’s statements to Ms. Jones were not trustworthy enough to warrant admission. V. Newly Discovered Evidence Stephens also contends the trial court erred in summarily denying his motion for a new trial based on newly discovered evidence in the form of a “Confession” letter drafted by the co-defendant. This argument also fails. We review de novo the summary denial of a newly discovered evidence claim. Johnson v. State, 313 So. 3d 894, 896 (Fla. 2d DCA 2021); see also Mitchell v. State, 260 So. 3d 456, 457 (Fla. 5th DCA 2018) (citing Nordelo v. State, 93 So. 3d 178, 184 (Fla. 2012)). Summary denial of a newly discovered evidence claim is permitted only if the “motion, files and records in the case conclusively show that the movant is entitled to no relief.” McLin v. State, 827 So. 2d 948, 954 (Fla. 2002) (quoting Fla. R. Crim. P. 3.850(d)). This Court has articulated a two-step inquiry for determining when a defendant is entitled to relief: First, “the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence,” and secondly, “the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial.” Stills v. State, 154 So. 3d 524, 526 (Fla. 1st DCA 2015) (quoting Johnston v. State, 27 So. 3d 11, 18 (Fla. 2010)). As to the first prong, this court has held that “evidence can be treated as newly discovered where it is based on newly available testimony of defendants who were previously unwilling to testify.” Stills, 154 So. 3d at 526–27 (quoting Brantley v. State, 912 So. 2d 342, 342–43 (Fla. 3d DCA 2005)). Newly discovered evidence satisfies the second prong if it “weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability.” Jones v. State, 709 So. 2d 512, 526 (Fla. 1998) (quoting 13 Jones v. State, 678 So. 2d 309, 315 (Fla. 1996)). In reaching this conclusion, the trial court will have to evaluate the weight of both the newly discovered evidence and the evidence that was introduced at trial. Nordelo v. State, 93 So. 3d 178, 186 (Fla. 2012); see also Jones, 709 So. 2d at 521–22 (describing evaluation under the second prong). The trial court did not err by denying Stephens’s motion for a new trial based on the “Confessions” letter. The trial court correctly ruled that the letter was inadmissible hearsay not subject to the “statement against interest” hearsay exception under section 90.804(2)(c). See Sims v. State, 754 So. 2d 657, 660 (Fla. 2000) (“Assuming the defendant’s evidence meets the threshold requirement by qualifying as newly discovered, no relief is warranted if the evidence would not be admissible at trial.”). The content of the letter was not self-inculpatory, but overwhelmingly self-exculpatory. In the letter, the co-defendant never admits to committing a crime. Instead, she tries to minimize her criminal liability by continually claiming she accidently starved the victim. “If a part of what the declarant has said is exculpatory, the statement is not entirely self-inculpatory, and it is not therefore admissible under the statement against penal interest exception.” Smith v. State, 746 So. 2d 1162, 1168 (Fla. 1st DCA 1999). “An attempt to minimize criminal liability removes the sole justification for allowing the declarant’s statement in evidence.” Id. Additionally, the trial court correctly ruled that the letter is not of a nature that would likely produce an acquittal at trial. Much like the out-of-court statements mentioned above, given the evidence introduced at trial, the letter fails to cast doubt upon the theory that Stephens knew of the victim’s condition and failed to intervene before her death. VI. Double Jeopardy Finally, Stephens argues that his convictions for both first-degree murder and aggravated manslaughter of a child violate the state and federal constitutional proscription against double jeopardy. As explained below, we disagree and affirm. 14  Both the United States and Florida constitutions contain double jeopardy clauses designed to prevent a person from receiving multiple prosecutions, convictions, and punishments for the same criminal offense. See Valdes v. State, 3 So. 3d 1067, 1069–70 (Fla. 2009); see also Art. I, § 9, Fla. Const.; Amend. V, U.S. Const. Because a double jeopardy violation constitutes fundamental error, such a claim may be raised for the first time on appeal. Johnson v. State, 150 So. 3d 214, 214 (Fla. 1st DCA 2014). We review these claims de novo. Graham v. State, 170 So. 3d 141, 142 (Fla. 1st DCA 2015). We begin by noting that Stephens’s convictions for first-degree murder and aggravated manslaughter of a child are for the same victim. Until recently, his double jeopardy claim would have fallen under the principle of merger (i.e., the “single homicide” rule), which prohibits multiple punishments for a single killing. See generally Williams v. State, 90 So. 3d 931, 934 (Fla. 1st DCA 2012) (discussing merger principle and citing Goodwin v. State, 634 So. 2d 157 (Fla. 1994) and Houser v. State, 474 So. 2d 1193 (Fla. 1985)). But the Florida Supreme Court has abrogated this exception: “[T]he single homicide rule is no longer applicable under Florida law.” State v. Maisonet-Maldonado, 308 So. 3d 63, 70 (Fla. 2020). Thus, we review Stephens’s dual convictions arising from the death of a single victim as we would any other double jeopardy claim. In the context of multiple punishments arising from a single criminal transaction, “the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366 (1983). Thus, the prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether the Legislature “intended to authorize separate punishments for the two crimes.” M.P. v. State, 682 So. 2d 79, 81 (Fla. 1996) (quoting Albernaz v. United States, 450 U.S. 333, 344 (1981)). Without an explicit statement of legislative intent authorizing separate punishments for two crimes, courts determine whether separate punishable offenses exist through application of the 15 Blockburger 2 “same-elements test,” as codified in section 775.021(4), Florida Statutes. See Valdes, 3 So. 3d at 1069–71. Under this test, courts look to whether “each offense requires proof of an element that the other does not.” § 775.021(4)(a), Fla. Stat. Criminal offenses are separate (and satisfy Blockburger) if they contain at least one element distinct from the other. See id. But the Blockburger test does not end the inquiry. The Legislature has enumerated three other situations in which dual convictions are barred. So even if offenses are separate under the “same-elements test,” courts next look to the three exceptions set out in section 775.021(4)(b). Houk v. State, 316 So. 3d 788, 791 (Fla. 1st DCA 2021). These include offenses which: (1) “require identical elements of proof”; (2) “are degrees of the same offense as provided by statute”; and (3) “are lesser offenses the statutory elements of which are subsumed by the greater offense.” § 775.021(4)(b), Fla. Stat. If any one of these exceptions applies, then double jeopardy bars the dual convictions. Houk, 316 So. 3d at 791. A. Blockburger “In applying the provisions of section 775.021, a double jeopardy analysis must be conducted without regard to the charging document or the proof adduced at trial and must, instead, involve a strict examination of ‘the statutory elements and the entire range of conduct proscribed’ by the statutes.” Id. (quoting Tambriz-Ramirez v. State, 248 So. 3d 1087, 1094 (Fla. 2018)); see also Maisonet-Maldonado, 308 So. 3d at 68 (“[The] statutory language is the only factor for determining whether the Legislature intended to punish separate offenses.”). Here, for aggravated manslaughter of a child, section 782.07, Florida Statutes, provides that “[a] person who causes the death of any person under the age of 18 by culpable negligence under s[ection] 827.03(b)(2) commits aggravated manslaughter of a child, a felony of the first degree” § 782.07(3), Fla. Stat. To prove the crime of aggravated manslaughter of a child, the State must prove (1) the victim is dead; (2) the death of the victim was caused by the 2 Blockburger v. United States, 284 U.S. 299, 304 (1932) 16 defendant’s culpable negligence; and (3) the victim was at the time a child. Fla. Std. Jury Instr. (Crim.) 7.7(a). As for first-degree murder, section 782.04, Florida Statutes, provides: (1)(a) The unlawful killing of a human being: 1. When perpetrated from a premeditated design to effect the death of the person killed or any human being; [or] 2. When committed by a person engaged in the perpetration of, or in the attempt to perpetrate . . . [a]ggravated child abuse is murder in the first degree and constitutes a capital felony. § 782.04(1)(a), Fla. Stat. To prove the crime of first-degree premeditated murder, the State must prove (1) the victim is dead; (2) the death was caused by the defendant’s criminal act; and (3) the killing of the victim was premeditated. Fla. Std. Jury Instr. (Crim.) 7.2. To prove the crime of felony murder, the State must prove (1) the victim is dead; (2) the defendant caused the death of the victim while engaged in the commission of a felony (in this case aggravated child abuse); and (3) the victim was killed, in the commission of the felony, by the defendant or another principal. Fla. Stat. Jury Instr. (Crim.) 7.3. 3 3 Manslaughter is a necessary lesser-included offense of both first-degree premeditated murder and first-degree felony murder. Fla. Std. Jury Instr. (Crim.) 7.2, 7.3. Aggravated Manslaughter is a permissive lesser-included offense of both first-degree premeditated murder and first-degree felony murder. Fla. Std. Jury Instr. (Crim.) 7.2, 7.3. 17  Under Blockburger, first-degree murder and aggravated manslaughter of a child are separate offenses. Each crime contains an element the other does not. Aggravated manslaughter of a child requires the victim to be a child, an element absent in first-degree murder (under both felony murder and premeditated murder). Premeditated first-degree murder requires that the killing be premeditated, which element is absent in aggravated manslaughter of a child. And first-degree felony murder requires that the killing be done in the commission of certain enumerated felonies, which element is absent in aggravated manslaughter of a child. B. §§ 775.021(4)(b)(1) & (3) – The “Identical Elements of Proof” and “Subsumed by the Greater Offense” Exceptions Neither the first nor third exception applies. Under the former, first-degree murder and aggravated manslaughter of a child do not require identical elements of proof. For the latter, contrary to Stephens’s argument, “the lesser offense is not subsumed by the greater offense” because first-degree murder and aggravated manslaughter of a child are separate under the Blockburger test. See Maisonet-Maldonado, 308 So. 3d at 71 (“[B]ecause these two offenses satisfy the Blockburger same-elements test, the third exception does not apply . . . .”); Rodriguez v. State, 46 Fla. L. Weekly D1645, D1646 (Fla. 2d DCA July 16, 2021) (“‘[T]he lesser offense is not subsumed by the greater offense’ because second-degree murder and third-degree murder are separate under the Blockburger test.” (quoting Maisonet-Maldonado, 308 So. 3d at 71)). Thus, Stephens has no right to relief on his double jeopardy claim under these provisions. C. § 775.021(4)(b)(2) – The “Degree-Variant” Exception We turn to the remaining exception, which turns on whether the offenses “are degrees of the same offense as provided by statute.” § 775.021(4)(b)(2), Fla. Stat. 18  This exception has some history. A little over a decade ago, the Florida Supreme Court abandoned the “primary evil” and “core offense” tests previously used to determine whether two offenses were degree variants under section 775.021(4)(b)(2). See Valdes v. State, 3 So. 3d 1067, 1068–75 (Fla. 2009). The Supreme Court shifted to the textualist approach enunciated by Justice Cantero in his special concurrence in State v. Paul, 934 So. 2d 1167 (Fla. 2006). See id.; see also Velazco v. State, 305 So. 3d 72, 79–81 (Fla. 3d DCA 2020) (explaining the degree-variant exception). Under this approach, the Court held that section 775.021(4)(b)(2), when construed according to its plain meaning, prohibits against multiple punishments for offenses which are “degrees of the same offense.” See Valdes, 3 So. 3d at 1075. This legislative prohibition bars “separate punishments for crimes arising from the same criminal transaction only when the statute itself provides for an offense with multiple