Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT STEVEN M. JONES, ) ) Appellant, ) ) v. ) Case No. 2D18-2306 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed March 13, 2020. Appeal from the Circuit Court for Pinellas County; Chris Helinger, Judge. Howard L. Dimmig, II, Public Defender, and Jean-Jacques A. Darius, Special Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa, for Appellee. SMITH, Judge. Steven Jones appeals his judgment and sentence for aggravated child abuse and second-degree neglect of a child, both pursuant to section 827.03, Florida Statutes (2018), for which he is serving twenty years and fifteen years' imprisonment, respectively. Mr. Jones argues his motion for judgment of acquittal on the second- degree child neglect count should have been granted. We agree and direct the trial court to vacate the child neglect conviction and enter a judgment of acquittal on that charge. We affirm all other aspects without comment. I This case involves Mr. Jones's then six-week-old infant, T.J. On the date of the incident, Mr. Jones watched T.J. while the baby's mother, Meralis Garcia, cleaned the house and ran errands. Ms. Garcia testified that while she periodically checked on Mr. Jones and T.J., the child was in Mr. Jones's care virtually all day. She did not notice anything unusual about T.J. during the times she checked in on him and Mr. Jones. At approximately 8:30 p.m., Mr. Jones emerged from the bedroom in which he and T.J. were resting and advised Ms. Garcia that "something [was] wrong" with T.J. She asked Mr. Jones to bring her the baby and he demurred, claiming that Ms. Garcia would be upset. Ms. Garcia testified that when Mr. Jones finally brought her son to her, T.J. was limp and unresponsive. She claimed her first instinct was to call 911 but that Mr. Jones urged her to wait a few minutes to see if T.J.'s condition improved. Ms. Garcia complied, testifying that T.J. did appear to improve slightly. Ms. Garcia said that she splashed some water on T.J.'s face to revive him, at which point T.J. spit up bloody milk. Ms. Garcia then called 911 and T.J. was brought by ambulance to the hospital. At the hospital, Ms. Garcia learned that T.J.'s skull was fractured and hospital staff asked whether he had been in a car accident or suffered some other type of trauma. Ms. Garcia advised that the baby's father was burping T.J. when he began exhibiting his symptoms. Mr. Jones arrived at the hospital a few hours later, at which -2- point law enforcement and child protective investigators arrived. They spoke separately to Ms. Garcia and Mr. Jones. It was only then that Mr. Jones claimed that he had dropped T.J. against the bathtub while bathing the baby at approximately 9:00 a.m. that morning, some eleven hours before T.J. exhibited any symptoms. As a result of the alleged fall, T.J. sustained permanent injuries and brain damage. At Mr. Jones's trial, Dr. Sally Smith, a pediatrician who serves as the medical director for the Pinellas County child protective services team, testified for the State. She evaluated T.J. the day after he was admitted to the hospital, reviewed his medical records and test results, and concluded that T.J. sustained "abusive head trauma," most likely from some type of high-force, "acceleration-deceleration" event. The only medical professional presented by the defense, radiologist Dr. Mark Bittles, agreed that the location and type of brain bleeding T.J. sustained, along with the skull fracture, suggested a high-force event, such as a car accident. Mr. Jones was found guilty by a jury of one count of aggravated child abuse and one count of child neglect in the second-degree. II The only issue on appeal Mr. Jones raises with which we find merit is that the State's evidence was insufficient to prove the elements of count two, second-degree child neglect. The State's theory in advancing the second-degree child neglect count was based on Mr. Jones's instruction to Ms. Garcia not to call 911 after he advised her there was "something wrong" with T.J. (or, going along with the defense's timeline, Mr. Jones's failure to seek medical attention after T.J.'s "fall" at approximately 8:00 or 9:00 a.m.). -3- Second-degree child neglect occurs when a person willfully or by culpable negligence neglects a child and in doing so causes great bodily harm, permanent disability, or permanent disfigurement to the child. § 827.03(2)(b). " 'Willfully' is defined as acting 'voluntarily and consciously, not accidentally.' " Medina v. State, 226 So. 3d 1018, 1023 (Fla. 2d DCA 2017) (citing Arnold v. State, 755 So. 2d 796, 798 (Fla. 2d DCA 2000)). "Culpable negligence" is more than a failure to use ordinary care; "it must be gross and flagrant" and committed with lack of regard for others' safety. Id. (citing Poczatek v. State, 213 So. 3d 1065, 1072 (Fla. 2d DCA 2017)). Poczatek contains facts similar to this case, and we find it instructive here. In Poczatek, this court evaluated the issue of causation in a second-degree child neglect context. There, Poczatek's girlfriend, T.R., left her three-year-old son in Poczatek's care while she went to the gym with a friend. Poczatek, 213 So. 3d at 1066. Approximately forty minutes after leaving the child, T.R. received a phone call from Poczatek advising the child had "fallen"; T.R. then called 911. Id. When T.R. arrived at the house, she found her son "stiff, bleeding, [and] uncomfortable," and he appeared to be unconscious. Id. at 1066-67. Poczatek looked "panicked" and told T.R. that the child was jumping on the garage stairs, hit his head on Poczatek's car, and then had fallen backward on the stairs. Id. at 1066. Two weeks later, Poczatek told T.R. a different version of what had occurred and said he was swinging the child upside down in a playful manner and dropped him. Id. at 1066-67. At trial, the responding deputy testified Poczatek told him the child fell down the stairs and then wanted to watch television, so Poczatek placed him in the bedroom. Id. at 1067. When he first responded to the home, the deputy asked T.R. to get a pillow for underneath the child's -4- head, and she returned with a pillow that had blood on it. Id. Poczatek testified he was playing with the child and picked him up by the ankles and swung him around when the child slipped from his grip. Id. at 1069. He further testified the child began crying and was holding his head, so Poczatek took the child to his bed and placed his head on a pillow and went to get the child a glass of water. Id. When he returned, he noticed blood coming from the child's ear and "freaked out." Id. at 1069-70. He testified that he placed the child in his car and did not call 911 because he lived close to the hospital, and by that time, T.R. had arrived home. The child was shortly thereafter transported to the hospital by ambulance. Id. at 1070. Poczatek maintained that the event was an accident and that it was "stupid" to swing the child. Id. The jury found Poczatek guilty of one count of felony battery, a lesser included offense of aggravated child abuse, and of second-degree child neglect. Id. at 1070-71. He appealed the denial of his motion for a judgment of acquittal with regard to count two, second-degree child neglect, based upon the State's alleged failure to prove that he willfully or by culpable negligence failed to provide care to the child and that his failure to provide care caused the child great bodily harm, permanent disability, or disfigurement. Id. at 1071. The State's theory of second-degree child neglect in Poczatek was that Poczatek failed to obtain medical care for the child after the initial injury; however, we determined the State failed to present evidence showing the initial injury was exacerbated by Poczatek's failure to act. Id. "In other words, there was no evidence that Poczatek's conduct after the incident caused 'great bodily harm, permanent -5- disability, or permanent disfigurement' to [the child]." Id. Similarly, the record here lacks a causal link between Mr. Jones's delay (or failure) to seek medical treatment for T.J. and the injuries beyond those sustained from the "fall" itself. The State's expert witness, Dr. Sally Smith, testified about what "could" happen to a child who does not receive immediate medical care after a head injury and noted T.J. presented at the hospital with a reduced blood gas pH level and elevated carbon dioxide level, indicative of someone not taking in enough oxygen: Q: And if the parents delayed even fifteen minutes, when the child was unconscious and limp, would that exacerbate the injuries to the child? A: It certainly could. So, for example, we know from the blood gas that he wasn't really breathing all that well when he got to the hospital. So if he's not breathing very well, he's not necessarily getting adequate oxygen to his body, um, and including the brain. So that kind of thing certainly, um, often makes situations worse, where there's brain injuries like this. (Emphasis added.) The remainder of Dr. Smith's testimony is similarly postured: she discusses the possibility or likelihood of enhanced injury by a failure to act or seek medical treatment but does not testify about Mr. Jones's actions (or omissions) leading to specific exacerbation beyond T.J.'s original injuries. Using the same reasoning this court employed in Poczatek, the State failed to establish Mr. Jones "willfully or by culpable negligence" neglected T.J. by failing to seek medical attention which led to great bodily harm, i.e., exacerbation of his original injuries. See § 827.03(2)(b). Section 827.03(2)(d) allows for conviction for child neglect without great bodily harm, which is a third-degree felony (as opposed to a second-degree felony for child neglect under section 827.03(2)(b)). See Ristau v. State, 201 So. 3d 1254, 1256- -6- 57 (Fla. 2d DCA 2016). To meet the statutory elements, however, it is still necessary to show the defendant acted willfully or with culpable negligence. (2) Offenses.— (d) A person who willfully or by culpable negligence neglects a child without causing great bodily harm, permanent disability, or permanent disfigurement to the child commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Here, the evidence presented does not rise to the level of gross or flagrant disregard sufficient to prove that Mr. Jones acted "willfully or by culpable negligence." Ms. Garcia testified Mr. Jones told her to wait and "give [T.J.] a few minutes," apparently to allow time for the baby to revive on his own. She further testified T.J. began to respond a bit so she put him in his bathtub and splashed water on his face. This led to him spitting up bloody milk, whereupon she immediately called 911. Mr. Jones, on the other hand, testified he fed T.J. a bottle and approximately five minutes later, he noticed the baby "didn't look right." He brought T.J. to Ms. Garcia, who told Mr. Jones to "call the police," after which they went to the bathroom and splashed water on T.J.'s face. Mr. Jones claims T.J. opened his eyes, so they went back into the bedroom, where T.J. spit up bloody milk. The bloody spit up, Mr. Jones maintained, was what prompted him to ultimately call 911. The evidence presented at trial does not meet the standard for willful or culpable negligence as explained by this court in Poczatek and Medina, as there were intervening facts which showed Mr. Jones waited to see if the baby recovered on his own or was revived by the water. Therefore, we conclude the evidence does not support Mr. Jones's second- degree child neglect conviction. See Burns v. State, 132 So. 3d 1238, 1241-42 (Fla. 1st DCA 2014) ("While appellant's choice to seek assistance by calling the child's mother -7- rather than 911 may have been a failure to use ordinary care, it did not rise to the level of willful or culpable negligence under the facts as presented in this case."); cf. Moore v. State, 790 So. 2d 489, 490 (Fla. 5th DCA 2001) (affirming defendant's second-degree child neglect conviction and finding he was culpably negligent where the defendant claimed infant fell in the bathtub and was noticeably inactive, yet the defendant failed to seek medical care for the child for two days). III Accordingly, we reverse Mr. Jones's judgment and sentence for second- degree child neglect and remand for entry of a judgment of acquittal on that count. Mr. Jones's judgment and sentence for count I, aggravated child abuse, is affirmed. Affirmed in part, reversed in part, and remanded. CASANUEVA and ROTHSTEIN-YOUAKIM, JJ., Concur. -8-