FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-3716
_____________________________
THELMA DENISE LOWERY,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Santa Rosa County.
Kelvin C. Wells, Judge.
June 20, 2019
WOLF, J.
Thelma Lowery challenges her conviction for first-degree
felony murder while in the commission of aggravated child abuse.
She raises 6 issues on appeal. We find that none of them have
merit and affirm.
Appellant was charged by grand jury indictment. The
indictment expressly alleged that she committed aggravated
child abuse “by committing aggravated battery . . . and/or
knowingly or willfully abusing [the victim] and in doing so caused
great bodily harm, permanent disability or permanent
disfigurement . . . in violation of Sections 782.04 and 827.03,
Florida Statutes.”
The State’s theory of the case was that appellant ran a
daycare facility in her home and that a perfectly healthy 15-
month-old child died of a head injury caused by appellant while
the baby was in her care.
We will discuss the pertinent facts as they relate to each
issue.
ISSUE I: WHETHER THE TRIAL COURT ERRED IN DENYING
APPELLANT’S MOTION FOR JUDGEMENT OF ACQUITTAL
Appellant argues the trial court erred in denying her motion
to dismiss because the State’s evidence was circumstantial and
did not rebut her reasonable hypothesis of innocence that the
child died of an underlying medical condition. See State v. Law,
559 So. 2d 187 (Fla. 1989). Multiple medical experts, including
the treating physicians and the medical examiners, testified the
child died from a blunt force trauma to his brain, possibly in
combination with a violent shaking. They testified his injuries
were not consistent with an underlying medical condition or
accidental fall. Both medical examiners testified the child would
have suffered symptoms “immediately” following the head
trauma.
Appellant and the child’s parents agreed that the child was
not symptomatic when he was dropped off at appellant’s house
that morning at approximately 7:00 a.m. Appellant agreed the
child was not symptomatic until he vomited and had a seizure
approximately 3 hours later at 10:00 a.m., at which time she
called 911. Appellant conceded she was the only adult with the
child that morning.
In a similar case, the Second District found testimony from
medical experts that a young child died from a serious head
injury, which could not have been caused by an accidental fall
while in the sole care of the defendant, was sufficient
circumstantial evidence to prove felony murder by aggravated
child abuse and to rebut a hypothesis of innocence that the child
accidentally rolled off the bed. Tate v. State, 136 So. 3d 624, 629
(Fla. 2d DCA 2013). See also Caban v. State, 892 So. 2d 1204 (Fla.
5th DCA 2005), cause dismissed, 909 So. 2d 861 (Fla. 2005)
(finding expert medical testimony that a child died of head
2
trauma that was caused by shaken baby syndrome and could not
have been caused by an accidental fall was sufficient
circumstantial evidence to prove felony murder by aggravated
child abuse and to rebut a hypothesis of innocence that the child
fell off the bed or was injured at a prior time).
In addition, here the State presented other evidence
suggesting appellant’s guilt. A Williams Rule witness testified
that appellant frequently treated the child in a rough manner
that the medical examiner testified could have led to the child’s
death. Appellant also made statements that were inconsistent
and evidenced consciousness of guilt. Appellant told multiple
individuals at the time of the incident, including first responders
and a detective, that she feared she would be blamed for harming
the child despite there being no evidence at that time that he had
been injured. When asked what happened to the child, she
suggested to the child’s parents and a detective that the child’s
injuries were caused when his 3-year-old brother hit him in the
head with a block, which all of the doctors testified could not have
caused the victim’s injuries. She also stated multiple times that
she had just bathed the child and washed vomit out of his hair
when he had his seizure, though first responders testified he was
dry and did not smell as if he had been freshly bathed.
Viewing this evidence in a light most favorable to the State,
the State presented sufficient evidence that appellant caused the
child’s death by committing aggravated child abuse.
The theory of defense, as presented by the defense expert Dr.
Willey, was that the child suffered from pre-existing medical
conditions that rendered the veins in his head highly susceptible
to injury and subject to bleeding either spontaneously or from
minor trauma.
First, Dr. Willey believed the child had an excess
accumulation of fluid on his brain since birth, which would have
increased the pressure in his head and stretched the veins in his
brain, making them more susceptible to injury. He testified this
condition could have caused the child’s veins to bleed and re-
bleed on their own or due to minor trauma. Primarily he believed
the child had an accumulation of fluid on his brain because his
head grew at a disproportionately larger rate than the rest of his
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body since birth. He prepared two growth charts for the jury to
demonstrate this disproportionate growth. He believed the
possibility of excess fluid was also supported by the report from a
CT scan that indicated there was “chronic” or older fluid on the
child’s brain prior to surgery, and the surgeon’s report stating
there was a chronic membrane in the child’s brain. This led him
to believe the child’s weakened veins may have been bleeding and
re-bleeding leading up to the incident.
The State refuted all of his testimony. Both the medical
examiner and the child’s pediatrician testified the child’s head
did not grow at an abnormally large rate. It grew consistently
with the rest of his body. The defense expert conceded he did not
use a growth chart for premature babies. The victim in this case
was born prematurely. The pediatrician testified a premature
baby’s growth would not plot accurately on a full-term baby’s
growth chart. The pediatrician plotted the child’s growth on the
appropriate chart and concluded the child’s head grew
consistently with the rest of his body. The medical examiner also
charted the child’s growth and concluded his head grew normally.
She pointed out the defense expert made significant errors in
plotting the child’s growth, including putting the wrong
measurement in one spot and putting the wrong month’s
measurements on the wrong line in another spot. She stated
there was no sign the child had excess fluid on his brain.
Although the report for the CT prepared by the radiologist
Dr. Waggoner did conclude there was “chronic” or old blood
present on the child’s brain, the neurosurgeon testified he saw no
old blood during surgery. He believed the radiologist made a
mistake in reading the CT scan.
One of the medical examiners, Dr. Nelson, testified that the
child had a “chronic” membrane, indicating the child had
bleeding on his brain one to two weeks prior to his death.
Appellant argues that because of this testimony, the State was
unable to rule out the possibility of an underlying medical
condition causing the child’s death. However, Dr. Nelson
conclusively testified that the chronic membrane represented a
separate bleed that would have been caused by a separate
incident weeks earlier. He stated it was a “marker” to show
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“there’s been trouble” there before. He stated this type of bleeding
or “hematoma” in children does not tend to re-bleed. It was not
possible that the child “magically” started experiencing
symptoms from the old bleed weeks later. Dr. Minyard gave
similar testimony.
Thus, the State directly rebutted all three reasons why the
defense expert believed the child had excess fluid on his brain.
Second, the defense expert testified be believed the child had
abnormal “bridging veins” in his brain, which would have been
susceptible to rupturing from little to no force. He reached this
conclusion that the child had a venous abnormality based on a
note in the surgeon’s records that veins where the bleeding
occurred were “conglomerated.” The defense expert stated
“conglomerated” was not a description of a normal “venous
architecture” in an infant’s brain and instead indicated a
malformation.
However, Dr. Pearson, the neurosurgeon, testified the
“conglomeration” of bridging veins was a “normal variant,” and
the child did not have any venous abnormality. Dr. Minyard, one
of the medical examiners, also testified the child did not have any
venous abnormalities.
Thus, the State directly refuted both reasons underlying the
defense expert’s theory that the hemorrhaging on the child’s
brain was caused by an underlying medical condition that made
his veins more prone to bleeding, rather than a serious head
trauma. As such, the State met its burden to refute the
hypothesis of innocence.
ISSUE II: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN
ADMITTING WILLIAMS RULE EVIDENCE BECAUSE ITS PROBATIVE
VALUE WAS OUTWEIGHED BY ITS PREJUDICIAL EFFECT
Appellant argues the trial court abused its discretion in
admitting as Williams Rule evidence the testimony of J.B., who
stated appellant would punish the child by picking him up by his
feet and plopping him onto the couch.
5
The Williams Rule, which was first set forth in Williams v.
State, 110 So. 2d 654, 656 (Fla. 1959), and was later codified by
section 90.404, Florida Statutes, states:
Similar fact evidence of other crimes, wrongs, or acts is
admissible when relevant to prove a material fact in
issue, including, but not limited to, proof of motive,
opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident, but it is
inadmissible when the evidence is relevant solely to
prove bad character or propensity.
§ 90.404(2)(a), Fla. Stat.
Here, appellant argues the State sought to admit J.B.’s
testimony to prove appellant’s intent to maliciously punish the
child. However, appellant argues this testimony was inadmissible
for several reasons. First, she argues intent was not a material
fact in this case because she claimed she did not cause the child’s
injuries at all. She did not claim she caused them accidentally or
by mistake. Second, she argues the prior incidents were not
sufficiently similar to the charged offense. Third, she argues any
probative value was significantly outweighed by prejudicial effect
because the State sought to admit this testimony to prove she
maliciously punished the child, though she was not charged with
malicious punishment.
The State correctly notes that appellant did not preserve
most of these arguments. The only argument appellant raised
below was that the incidents were not sufficiently similar to the
charged offense. She did not allege that evidence of punishment
was inadmissible or that her intent was not at issue. In her reply
brief, appellant concedes she did not expressly preserve these
issues but asserts that her objection to the admissibility of this
testimony was sufficient to put the trial court on notice that an
error may have been committed. However, “[f]or an issue to be
preserved for appeal, . . . it ‘must be presented to the lower court
and the specific legal argument or ground to be argued on appeal
must be part of that presentation if it is to be considered
preserved.’” Archer v. State, 613 So. 2d 446, 448 (Fla. 1993)
(quoting Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985) (emphasis
added)). Because the only specific argument appellant raised
6
below was that the incidents were not sufficiently similar, that is
the only argument she preserved for appeal. The other
arguments were waived. Regardless, they are also without merit.
Appellant’s intent was a material fact in issue because she
was the only adult with the child when he fell ill, and she
suggested his injuries were caused either accidentally when his
brother hit him in the head with a block, or by an underlying
medical condition, or both.
In arguing her intent was not at issue, appellant relies on
Jackson v. State, 140 So. 3d 1067, 1070–71 (Fla. 1st DCA 2014),
in which this court held the mere fact that a defendant pled not
guilty did not make his intent a material fact at issue,
particularly where he denied all involvement in the incident.
In Jackson, the defendant was charged with burglary,
battery, and stalking after he allegedly broke into his ex-
girlfriend’s house and attacked her with a knife. Id. at 1070. Over
objection, the State presented Williams Rule evidence about two
prior instances in which he attacked the victim. Id. The State
claimed this evidence was relevant to show intent. However, the
theory of defense was that the defendant was not involved in the
incident at all. Id. at 1071. The defendant did not claim self-
defense, accident, or mistake. He did not claim he had permission
to be in his ex-girlfriend’s home. He denied being there at all. Id.
Further, at trial the prosecutor did not argue that the prior
incidents showed the defendant’s intent. Instead, the prosecutor
argued the intent was shown by the time and manner in which
he entered the house. The sole probative value of the prior
incident seemed to be to show propensity. However, that was
“precisely the type of reasoning against which the Williams rule
is intended to protect.” Id. at 1072. This court concluded that
intent was not a material issue simply by virtue of the fact the
defendant pled not guilty, and as such the Williams Rule
evidence was not admissible. Id.
Appellant argues the case at hand is similar because here, as
in Jackson, she did not put the element of intent at issue. She
reasons that because she claimed she did nothing to hurt the
child at all, and she did not raise a defense of accident or
mistake, there was no material dispute as to intent. However,
7
unlike in Jackson, appellant did not claim to have been totally
absent from the scene of the crime. She conceded she was the
only adult present when the child suffered the effects of his
injuries, which the experts testified would have manifested
immediately upon infliction of the injury. Also, she suggested to
many individuals that the injuries were caused accidentally when
the child’s brother hit him with a block. Thus, this case is
materially different than Jackson.
Prior instances of abuse are admissible as Williams Rule
evidence in prosecutions for aggravated child abuse or murder to
prove identity, intent, or absence of accident or mistake,
particularly where the defendant claimed the injuries were
caused by accident. These prior instances of abuse do not have to
be identical to the incident for which the defendant was charged.
“Even without the requisite higher degree of similarity to
prove identity, evidence of other crimes, wrongs, or acts may
properly be used to prove, e.g., motive, intent, plan, or absence of
mistake.” Washington v. State, 737 So. 2d 1208, 1224 (Fla. 1st
DCA 1999). This court emphasized that the term “similar fact
evidence” is “misleading” because evidence is admissible under
the Williams Rule “not because it is similar to the crime or act in
issue, but because it is relevant to prove a material fact or issue.”
Id. at 1223 (quoting C. Ehrhardt, Florida Evidence, § 404.9 at
174 (1999 ed.)).
In Washington, medical experts testified that a baby died
because someone “repeatedly grabbed” and “violently shook or
twisted him” and may have “punched him with the knuckles.”
737 So. 2d at 1224-25. This court found evidence that the child’s
mother had repeatedly and recently punched the child with her
knuckles, knocked him into the ground, snatched him by the arm,
and shook him was “relevant to show her intent, plan, or state of
mind toward [the child.]” Id. at 1225. Even though these prior
acts may not have risen to the level of aggravated child abuse,
this court was “unable to conclude that the evidence of [the
mother’s] very recent, ongoing acts of violence on the same 11-
month-old child would have to rise to the level of aggravated
child abuse . . . before they became relevant to suggest who
fatally injured the child shortly thereafter.” Id. The court
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emphasized these prior acts were “clearly distinguishable from
socially more acceptable behavior such as reasonable spanking.”
Id. at n.8. The court also emphasized that since Williams, the
supreme court has “adhered to a broad rule of admissibility based
on the relevancy of the evidence to a fact to be proved.” Id. at
1225 (quoting Snowden v. State, 537 So. 2d 1383, 1384 (Fla. 3d
DCA 1989)).
Other courts have similarly concluded that prior instances of
abuse committed by the defendant against a particular child were
admissible where the defendant was charged with abusing that
child, especially where the defendant suggested either to police or
during trial that the child’s injuries may have been the result of
an accident. In Kirkland-Williams v. State, 230 So. 3d 580, 583
(Fla. 2d DCA 2017), a defendant charged with first-degree felony
murder while engaged in aggravated child abuse argued
Williams Rule evidence of prior instances of child abuse were “not
relevant when his defense was not that [the victim’s] death was a
mistake or accident, but instead that [he] did not cause the
injuries that ultimately killed [the victim].” The Second District
rejected this argument, finding even though the defendant did
not raise the defense of accident at trial, he made claims to
detectives prior to trial “suggesting [the victim’s] injuries were
accidentally sustained” when the child bumped his stomach on a
dresser and fell off the bed and hit his head. Id. at 583-84. The
court also found the Williams Rule incidents were “strikingly
similar” and close in time to the offense. Id. at 583. Thus, the
incidents were admissible to prove absence of accident, intent,
identity, and opportunity. Id. at 583-84.
In Evans v. State, 693 So. 2d 1096, 1102 (Fla. 3d DCA 1997),
the Third District broadly concluded that “where the state seeks
to present evidence of prior physical abuse committed by the
defendant upon the same child for the purpose of proving intent
and/or absence of mistake or accident [rather than identity or
modus operandi], there is no need for factual similarity between
the charged offense and the prior abusive conduct beyond the
existence of physical abuse in all instances.” In Evans, a young
child died from a ruptured liver consistent with a blow to the
child’s back. He also had multiple broken ribs and bruises of
various ages covering his entire body. Id. at 1097-98. The
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defendant admitted to physically disciplining the child but
presented evidence suggesting the fatal injury could have been
caused by the child playing football with older boys or falling out
of a bunk bed. Id. at 1099. The State presented Williams Rule
evidence that the defendant had consistently beaten the child
over the course of the year leading up to the child’s death and had
nearly drowned the child intentionally on one occasion. Id. at
1098-99.
The Evans court rejected the defendant’s argument that the
incidents were not sufficiently similar to be admissible as
Williams Rule evidence. Id. at 1102. The court found the “prior
instances of physical abuse were significant, relevant and
properly admitted to prove intent and the absence of mistake or
accident,” particularly in light of the theory of defense that the
injuries were caused accidentally by a fall and a football game.
Id. Alternatively, even if the defendant had not raised these
theories of defense, the court found the evidence would have been
admissible for the same reasons. Id. (citing Estelle v. McGuire,
502 U.S. 62 (1991) (finding under California law evidence of prior
instances of child abuse were admissible to prove intent
regardless of the fact the defendant did not make a claim of
accidental death because “the prosecution’s burden to prove every
element of the crime is not relieved by a defendant’s tactical
decision not to contest an essential element of the offense”)).
In this case, though the prior instances of plopping the child
down onto the couch by his feet may not have risen to the level of
aggravated child abuse, they are strikingly similar to if not the
very cause of death here. The medical examiner testified that the
same actions described by the Williams Rule witness - picking
the child up by his feet, swinging him out, and plopping him
down, hitting his head - would have caused a “blunt impact” to
his head, which was the cause of death. There was a bruise on
the child’s scalp consistent with the location of the ruptured veins
in his head, suggesting his head was hit against something.
There were also bruises on the child’s legs. These injuries are
consistent with the child being picked up by his legs and plopped
down.
10
The Williams Rule evidence was admissible to prove intent
and lack of an accident.
ISSUE III: WHETHER THE TRIAL COURT ERRED IN GIVING A JURY
INSTRUCTION ON AGGRAVATED CHILD ABUSE BY MALICIOUS
PUNISHMENT WHEN IT WAS NOT ALLEGED IN THE INDICTMENT
Appellant argues the trial court abused its discretion in
instructing the jury on aggravated child abuse by malicious
punishment because that means of committing aggravated child
abuse was not alleged in the indictment.
Section 827.03(1)(a)1.-3., Florida Statutes, states aggravated
child abuse can be committed in 3 different ways:
(a) “Aggravated child abuse” occurs when a person:
1. Commits aggravated battery on a child;
2. Willfully tortures, maliciously punishes, or willfully
and unlawfully cages a child; or
3. Knowingly or willfully abuses a child and in so doing
causes great bodily harm, permanent disability, or
permanent disfigurement to the child.
The indictment alleged that appellant committed felony
murder causing the death of the child while engaged in the first
and third ways this offense can be committed: “aggravated child
abuse . . . by committing aggravated battery on [the victim]
and/or knowingly or willfully abusing [the victim] and in doing so
caused great bodily harm, permanent disability or permanent
disfigurement.” It did not allege malicious punishment.
During the charge conference, appellant objected to an
instruction on malicious punishment because it was not alleged
in the indictment. While appellant is correct that the instruction
should not have been given, based on the evidence presented and
the jury’s finding that the actions of appellant caused the death
of the victim, there is no reasonable possibility that any malicious
punishment in this case did not also constitute the charged crime
of aggravated battery.
11
The general rule is “where an offense may be committed in
various ways, the evidence must establish it to have been
committed in the manner charged in the indictment. . . . If one of
the state of facts is alleged, it cannot be established by proof of
another.” Brown v. State, 41 So. 3d 259, 262 (Fla. 4th DCA 2010)
(quoting Zwick v. State, 730 So. 2d 759, 760 (Fla. 5th DCA 1999)).
See also Long v. State, 92 So. 2d 259, 260 (Fla. 1957). *
In Brown, the information charged the defendant with
aggravated child abuse by two of the statutory means - willful
torture, malicious punishment, or unlawful caging; and
knowingly or willfully abusing the child causing great bodily
harm, permanent disability or permanent disfigurement. 41 So.
3d at 260-61. It did not allege the third statutory means –
aggravated battery, nor did it allege use of a deadly weapon. Id.
The State presented evidence that the defendant grabbed a
teenager’s hair and banged her head onto the floor. When she left
the house, she slipped and fell, and the defendant hit her in the
head with a bat. Id. The defendant admitted to the altercation
and to grabbing the bat, though he claimed he did so because he
feared he might need it to protect his son. He denied hitting the
girl with the bat, stating she injured her head when she fell. Id.
The prosecutor invited the jury to convict based on aggravated
battery with a deadly weapon – the bat. Id. Similarly, the court
instructed the jury it could convict if it found the defendant
touched or struck the child against her will and in doing so either
“intentionally or knowingly caused great bodily harm, permanent
disability, permanent disfigurement, or used a deadly weapon.”
Id. at 261.
* “[I]t is fundamental error to instruct the jury on a theory of
the crime not charged in the information where evidence and
argument are presented on the uncharged theory,” because
“under such circumstances it will ordinarily be ‘impossible to
determine whether the defendant was convicted of a charged or
uncharged offense,’” and “it is a due process violation to convict a
defendant of a crime with which he was not charged.” Brown v.
State, 41 So. 3d 259, 262 (Fla. 4th DCA 2010) (quoting Cogbill v.
State, 940 So. 2d 537, 539 (Fla. 1st DCA 2006)).
12
The Fourth District found it was possible that the jury found
the defendant guilty based on a theory that he caused great
bodily harm, which was charged. Id. at 262. However, it was also
possible the jury convicted based upon the defendant’s use of a
deadly weapon, particularly because the State invited the jury to
convict based on the deadly weapon, and the evidence of great
bodily harm was “debatable.” Id. Thus, the court found the
conviction was fundamental error. Id. It reversed and remanded
for a new trial. Id. at 263.
However, instructing a jury on an uncharged theory of an
offense does not always result in reversible error. In Cogbill v.
State, 940 So. 2d 537, 538 (Fla. 1st DCA 2006), the defendant was
charged with trafficking in methamphetamine by actual or
constructive possession. However, the jury was instructed it could
convict if it found the defendant “manufactured or possessed”
methamphetamine. Id. This court reasoned it was “entirely
possible to conclude [the defendant] was not convicted of an
uncharged crime” because the court could “conceive of no
circumstance, particularly under the facts of this case, whereby
one could engage in the act of manufacture, as that term was
defined, without also being in actual or constructive possession of
the prohibited substance.” Id. at 540. Because “the acts
constituting manufacture are wholly subsumed within the more
broadly defined circumstances constituting actual or constructive
possession, it can be determined with certainty that instructing
the jury on the uncharged alternative of manufacture did not
result in a circumstance in which [the defendant] was at risk of
being convicted of an uncharged crime.” Id. (emphasis added).
A person can commit malicious punishment without
committing an aggravated battery. However, there was no
evidence here of a punishment that was not also a battery.
“[A]ggravated battery” occurs when a person commits a battery
and in doing so “[i]ntentionally or knowingly causes great bodily
harm, permanent disability, or permanent disfigurement,” or
uses a deadly weapon. § 784.045(1), Fla. Stat. There was no
evidence or instruction pertaining to a deadly weapon here. Thus,
to find aggravated battery, the jury would have needed to find
that a battery was committed that caused great bodily harm.
Similarly, the other charged theory of the offense expressly
13
requires that the defendant “[k]nowingly or willfully abus[ed] a
child and in doing so cause[d] great bodily harm, permanent
disability, or permanent disfigurement.” § 827.03(1)(a)3., Fla.
Stat. Based on the jury’s finding that the actions of appellant
caused the death of the child, coupled with the only facts that
were proven and argued to the jury that any punishment
involved an illegal touching resulting in great bodily harm, it can
be determined with certainty that appellant was not at risk for
being found guilty of an uncharged crime.
Similarly to Cogbill, it can be conclusively determined based
on the facts of this case and the jury’s determination that
appellant caused the death of the child that the jury did not find
appellant guilty of an uncharged offense. The jury must have
found appellant caused great bodily harm to the child as a result
of a battery, which was properly charged in the indictment.
ISSUE IV: WHETHER THE TRIAL COURT ERRED IN INSTRUCTING
THE JURY ON MANSLAUGHTER BY CULPABLE NEGLIGENCE IN THE
ABSENCE OF EVIDENCE OF NEGLIGENCE
Appellant argues the trial court abused its discretion in
instructing the jury on manslaughter by culpable negligence. At
trial, defense counsel objected that there was no evidence of
negligence. Instead, the State’s witnesses testified that the cause
of death was non-accidental trauma, and negligence was not
alleged in the indictment. Appellant cites Griffin v. State, 160 So.
3d 63, 68 (Fla. 2015), for the general proposition that “[a]
homicide found to be unlawful is not automatically just one
offense, but will be one of several possible homicide offenses
depending upon the nature of the intent or the lack of any intent
at the time of the homicide.” She argues it was reversible error to
instruct the jury on an offense for which no evidence was
presented.
The trial court correctly noted that manslaughter is a
category 1, necessarily lesser included offense to first-degree
felony murder. See FL ST CR JURY INST 7.3; see also Clark v.
State, 43 So. 3d 814, 816 (Fla. 1st DCA 2010) (quoting Moore v.
State, 932 So. 2d 524 (Fla. 4th DCA 2006) (“The schedule of lesser
included offenses [found in the standard jury instructions] is
designed to be a complete, authoritative compilation that is
14
presumed to be correct and upon which a trial court can
confidently rely.”)).
“Necessarily lesser included offenses are those offenses in
which the statutory elements of the lesser included offense are
always subsumed within those of the charged offense.” Sanders v.
State, 944 So. 2d 203, 206 (Fla. 2006). “A ‘necessarily lesser
included offense’ is, as the name implies, a lesser offense that is
always included in the major offense. The trial judge has no
discretion in whether to instruct the jury on a necessarily lesser
included offense. Once the judge determines that the offense is a
necessarily lesser included offense, an instruction must be given.”
State v. Wimberly, 498 So. 2d 929, 932 (Fla. 1986) (emphasis
added). Such an instruction must be given even if the “judge
determines there is no supporting evidence.” Id. at 930.
Here, because manslaughter was a category 1 necessarily
lesser included offense to first-degree felony murder, the trial
court had “no discretion” in whether to give the instruction, even
if the evidence did not support it. See FL ST CR JURY INST 7.3;
Wimberly, 498 So. 2d at 932. Appellant has presented no
authority that would have permitted the trial court to exclude a
portion of the instruction on manslaughter.
Regardless, the evidence would have supported a finding of
manslaughter by culpable negligence. “[C]ulpable negligence”
was defined for the jury in part as “a course of conduct showing
reckless disregard of human life or of the safety of persons
exposed to its dangerous effects, or such an entire want of care,
as to raise a presumption of a conscious indifference or
consequence, or which shows wantonness or recklessness, or a
grossly careless disregard for the safety and welfare of the public
or such an indifference to the rights of others as is equivalent to
an intentional violation of such rights.”
The State argues the jury could have found that appellant’s
habit of picking the child up by his feet and plopping him on the
couch showed reckless indifference for the child’s safety. The
State is correct.
15
ISSUE V: WHETHER THE TRIAL COURT ERRED IN DENYING
APPELLANT’S MOTION FOR A MISTRIAL
The comment complained of by appellant was brief and
isolated. It did not become a feature of the trial. The court gave a
clear curative instruction. There is no reasonable possibility that
it contributed to the verdict.
ISSUE VI: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN
LIMITING THE DURATION OF CLOSING ARGUMENTS RIGHT BEFORE
CLOSING ARGUMENTS
Appellant argues the trial court abused its discretion in
limiting counsel to an hour for closing arguments given the
length of the trial, the number of witnesses, the complexity of the
medical testimony, and the fact that counsel had prepared based
on the court’s initial grant of 1.5 hours for closing arguments.
“[T]he time limit to be placed on closing arguments of
counsel is left to the sound discretion of the trial court.” Simmons
v. State, 753 So. 2d 700, 702 (Fla. 5th DCA 2000). However, “the
time limit set must be reasonable. What constitutes a reasonable
time depends upon the facts and circumstances of each particular
case.” Stockton v. State, 544 So. 2d 1006, 1009 (Fla. 1989).
In Stockton, the supreme court found a 30-minute limitation
on closing arguments was unreasonable. The defendant in that
case was charged with a serious offense, second-degree murder.
Id. The trial lasted 2 days with 15 witnesses testifying, and all of
the State’s witnesses were impeached with inconsistent prior
statements. The defense had two viable theories of defense,
including two witnesses who testified someone else confessed. Id.
However, defense counsel forgot to mention the confession during
closing arguments because he felt so rushed. Id. at n.2. The trial
court interrupted counsel when his 30 minutes were up and gave
him only 3 additional minutes to compensate for time taken up
by the prosecution’s objections. Id. at n.2. The trial court set the
30-minute time limit primarily for the convenience of the jury, so
they could finish before the weekend. Id. at 1009. Taking all of
these factors into consideration, the supreme court found the trial
court abused its discretion in limiting the time for closing
arguments, depriving the defendant of a fair trial. Id.
16
In this case, when counsel objected that she needed the full
1.5 hours for which she prepared, the trial court explained the
reason for the time limit was that it did not want counsel “talking
about the same thing over, and over, and over again.” However,
the court stated that “if it’s something that’s new, then I’m going
to let you talk about it . . . . [I]f you get to the end of your hour
and you hadn’t discussed everything, I’m going to give you leave
to talk about things you didn’t talk about.” Counsel took the court
up on this offer. Towards the end of the 1-hour time period,
counsel asked the court for 10 more minutes, and the court
granted it.
Unlike Stockton, the court’s rationale for limiting closing
arguments was not mere convenience. The court wanted to limit
needless repetition. It gave appellant’s counsel the extra time she
requested. Unlike Stockton, appellant failed to identify anything
that counsel was unable to cover within that timeframe. Thus,
the court did not abuse its discretion in limiting the time for
closing arguments. Thus, appellant’s judgment and sentence are
AFFIRMED.
MAKAR and M.K. THOMAS, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Andy Thomas, Public Defender, and A. Victoria Wiggins,
Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Quentin Humphrey,
Assistant Attorney General, Tallahassee, for Appellee.
17