IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
KEVIN PATRICK KELLEY, JR.,
Appellant,
v. Case No. 5D21-1569
LT Case No. 2020-CF-000132-A
CORRECTED
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed June 20, 2022
Appeal from the Circuit Court
for Citrus County,
Richard A. Howard, Judge.
Matthew J. Metz, Public Defender, and
Steven N. Gosney, Assistant Public
Defender, Daytona Beach, for Appellant.
Ashley Moody, Attorney General, Tallahassee,
and Kristen L. Davenport, Assistant Attorney
General, Daytona Beach, for Appellee.
PER CURIAM.
Kevin Patrick Kelley, Jr. appeals his conviction for neglect of a child,
arising from an incident where he drunkenly walked a four-year-old child
under his supervision down the middle of Apopka Avenue in Inverness,
Florida. We conclude that although Kelley’s behavior was negligent and
irresponsible, it did not constitute “culpable negligence” based on the specific
circumstances of this case. Therefore, we reverse because the trial court
should have granted Kelley’s motion for judgment of acquittal.
Background
At 4:30 p.m. on Saturday, February 1, 2020, an off-duty police officer
turned onto Apopka Avenue in Inverness, which has a 25-mile-per-hour
speed limit. He immediately saw Kelley swaying back and forth as he walked
on the double yellow lines, in the middle of the road, next to a child seated
atop a toy scooter. Both were in the middle of an otherwise empty two-lane
road bordered by bicycle lanes and sidewalks which were available for their
use.
Because there was no one on the road, the off-duty officer initially did
not view the situation as “a big deal.” At first, a hundred yards separated the
officer’s truck from Kelley and the child. While they moved forward fifty
yards, the officer trailed them. In that time, three or four vehicles backed up
behind the officer’s truck. When the officer saw “some traffic” approaching
from the opposite lane, he honked his horn twice. On the second honk,
Kelley helped the child off the street and onto a sidewalk. In doing so, Kelley
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stumbled and moved slowly. Off the street and on the sidewalk, the pair
continued their walk to the park. The officer followed.
At trial, the officer testified that after spotting Kelley and the child he
called the non-emergency line to request police assistance. According to the
officer, “[i]t was cold, and that’s why I made the attempt to get a law
enforcement officer there . . . .”1 While he waited for law enforcement to
arrive, he observed Kelley fall to the ground at the park while the child played.
The off-duty police officer was not the only person to see Kelley fall
that Saturday afternoon while he walked the child to the park, nor was he the
only person to call for police assistance. In fact, his call was the second call
law enforcement received that day about the child. The first caller reported
that this was “not a real emergency,” but she was calling out of concern for
the “little kid.” The caller described the child’s state of dress and the effects
of Kelley’s intoxication, reporting to police that Kelley was staggering in the
road and, at one point, “fell in the middle of the road.”
When the on-duty police officer arrived at the park, he began
questioning Kelley while the child played. Several witnesses testified that
Kelley was incapable of speaking clearly and coherently and could not even
1
The State concedes that the child’s lack of appropriate clothing does
not provide a legal basis for the conviction. Rather, it emphasizes that the
child’s state of dress illustrates the extreme nature of Kelley’s intoxication.
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provide his name to the on-duty officer. At the end of the encounter, the
police arrested Kelley and called the child’s mother to pick up her son from
the park. When the child’s mother returned home with her son, she noticed
that the entire 24-pack of beer she purchased the night before was gone.
After his arrest, the State charged Kelley with neglect of a child. See
§ 827.03(2)(d), Fla. Stat. (2019). Following the State’s case-in-chief, Kelley
moved for a judgment of acquittal. He argued that his behavior was legally
insufficient to support a conviction. The trial judge disagreed, denying the
motion. Later, the jury returned a guilty verdict. Kelley argues the trial court
erred in denying his motion. Specifically, he contends that his behavior did
not constitute “culpable negligence,” a necessary element of the offense of
which he was convicted. We agree.
Standard of Review
Kelley’s motion for judgment of acquittal admits the facts in evidence
and every reasonable inference from the evidence favorable to the State.
See, e.g., Proko v. State, 566 So. 2d 918, 920 (Fla. 5th DCA 1990) (citing
Lynch v. State, 293 So. 2d 44, 45 (Fla. 1974)). Trial courts should not grant
motions for judgment of acquittal unless, when viewed in the light most
favorable to the state, the evidence does not establish a prima facie case of
guilt. See id. (citing Lynch, 293 So. 2d at 45). Accordingly, we review the
4
trial court’s denial of Kelley’s motion de novo, but only to determine whether
the State presented legally sufficient evidence to support the verdict. See
Durousseau v. State, 55 So. 3d 543, 556 (Fla. 2010).
In reviewing the evidence, we accept that “[s]ufficiency is a test of
adequacy. Sufficient evidence is ‘such evidence, in character, weight, or
amount, as will legally justify the [verdict].’” Tibbs v. State, 397 So. 2d 1120,
1123 (Fla. 1981) (citing Black’s Law Dictionary 1285 (5th ed. 1979)). Indeed,
“[l]egal sufficiency alone, as opposed to evidentiary weight, is the appropriate
concern of an appellate tribunal” in this context. Id.
Neglect of a Child
Kelley challenges the legal sufficiency of his conviction for the crime of
neglect of a child. See § 827.03(2)(d), Fla Stat. The Florida Legislature
defines this offense to include “[a] caregiver’s failure or omission to provide
a child with the care, supervision, and services necessary to maintain the
child’s physical and mental health, including, but not limited, to . . .
supervision . . . that a reasonably prudent person would consider essential
for the well-being of the child.” § 827.03(1)(e)1, Fla. Stat. The offense can
encompass repetitive conduct or, as alleged here, “on a single incident or
omission that . . . could reasonably be expected to result in, serious physical
. . . injury or a substantial risk of death, to a child.” § 827.03(1), Fla. Stat.
5
Kelley concedes that sufficient evidence supports his failure to supervise the
child and that he was the child’s caregiver during the incident. But he claims
the State did not establish culpable negligence.
The crime of neglect of a child occurs when a person neglects a child
“willfully or by culpable negligence,” even if no bodily harm results. §
827.03(2)(d), Fla. Stat. “Culpable negligence” is not defined in the Florida
Statutes, but it has been defined in Florida case law for more than eighty
years. In 1939, the Florida Supreme Court “committed [itself] to the rule that
the degree of negligence required to sustain imprisonment should be at least
as high as that required for the imposition of punitive damages in a civil
action.” Russ v. State, 191 So. 296, 298 (Fla. 1939). Therefore, to establish
culpable negligence, the State must adduce evidence showing a defendant
acted with “a gross and flagrant character, evincing reckless disregard for
human life” or an “entire want of care which would raise the presumption of
indifference to consequences; or such wantonness or recklessness or
grossly careless disregard of the safety and welfare of the public, or that
reckless indifference to the rights of others, which is equivalent to an
intentional violation of them.” Id.; see also Aledda v. State, 47 Fla. L. Weekly
D425, D426 (Fla. 3d DCA Feb. 16, 2022) (“[T]he degree of negligence
required to sustain a conviction for the crime of culpable negligence is
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significantly higher than that necessary to sustain a recovery of
compensatory damages in a tort case.”).
Since Russ, Florida courts have continued to hold that only the most
egregious conduct satisfies the culpable negligence standard. See, e.g.,
Ristau v. State, 201 So. 3d 1254, 1257 (Fla. 2d DCA 2016) (holding that
culpable negligence is reserved for “only the most egregious conduct, done
either willfully or with criminal culpability” (quoting Arnold v. State, 755 So.
2d 796, 798 (Fla. 2d DCA 2000))); Jones v. State, 912 So. 2d 686, 688 (Fla.
1st DCA 2005) (holding that culpable negligence is “that degree of
negligence that is so egregious, and flagrant, it would support a charge of
manslaughter in case of death”); Logan v. State, 592 So. 2d 295, 299 (Fla.
5th DCA 1991) (“Culpable negligence depends on the extreme character of
the conduct itself, not its mere illegality.”). Accordingly, as distinguished from
simple negligence, culpable negligence is gross and flagrant; it “must be
committed with an utter disregard for the safety of others.” Ristau, 201 So.
3d at 1257 (emphasis added) (citing Fla. Std. Jury Instr. (Crim.) 16.5); see
also Burns v. State, 132 So. 3d 1238, 1240 (Fla. 1st DCA 2014) (stating that
standard jury instruction for child neglect distinguishes culpable negligence
from mere failure to use ordinary care and further case law defines it as “so
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egregious, and flagrant, it would support a charge of manslaughter in case
of death”).
Analysis
We conclude the State did not present legally sufficient evidence to
sustain the charge in this case because it did not establish that Kelley acted
with culpable negligence. Rather, it submitted evidence illustrating simple
negligence or an incomplete regard for the child’s care. This does not satisfy
the State’s burden. See Kish v. State, 145 So. 3d 225, 228 (Fla. 1st DCA
2014) (reversing conviction for child neglect where appellant’s “incomplete
regard for her children’s care in this instance did not manifest an ‘utter
disregard’ for their safety”).
To put it mildly, Kelley’s actions as the child’s caregiver left much to be
desired. But he did not show an utter disregard for the child’s safety.
Although Kelley was severely intoxicated, he never left the child’s side. And
when the off-duty officer honked a second time, Kelley helped the child onto
the sidewalk. Thus, his actions did not indicate an entire lack of care. See
State v. Sammons, 889 So. 2d 857, 858–60 (Fla. 4th DCA 2004) (finding
evidence insufficient to support conviction for criminal child neglect when
mother was drinking at bar and left child in car with windows down because
she “[kept] an eye on her child rather than ignoring her”). Kelley’s mere
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physical presence guaranteed the child was not pushing his scooter down a
road unattended. His presence also increased the child’s visual profile and
acted as a possible barrier between the child and a vehicle.
We acknowledge that the off-duty officer described the road as a “main
thoroughfare.” The State contends that given this description, a jury should
have resolved whether Kelley’s actions rose to the level of culpable
negligence. But this contention elevates the off-duty officer’s description of
the road above the actual evidence presented about it on the day of the
incident. See Aledda, 47 Fla. L. Weekly at D426 (“[T]he defendant’s conduct
is not viewed in a vacuum, but rather, through the prism of ‘the circumstances
surrounding the particular case.’” (quoting Russ, 191 So. at 298)); Kish, 145
So. 3d at 228 (“[T]he facts are critical . . . .”).
The State’s witnesses testified that with the exception of weekday rush
hour, the road was lightly trafficked. On the Saturday afternoon in question,
the off-duty police officer was initially the only car on the road with Kelley and
the child. He had no trouble seeing either of them immediately and from over
one hundred yards away. Throughout the course of the entire incident, three
cars backed up behind the officer, and no car passed in the opposite lane.
The road’s speed limit was 25 miles per hour, but no evidence or inference
9
showed a car ever going that quickly. Kelley was able to exit the road directly
to a place of safety.
We do not foreclose the possibility that a caregiver could show “utter
disregard” for a child’s safety simply by accompanying them down the middle
of a dangerous road. Cf. State v. Wynne, 794 So. 2d 642 (Fla. 2d DCA 2001)
(finding utter disregard when a caregiver abandoned his six-year-old child on
the I-275 exit ramp on the drive home from school). This, however, is not
Kelley’s situation. And Kelley’s conduct, while negligent and deeply
irresponsible, did not rise to the egregious level of conduct necessary to
show culpable negligence. For this reason, we reverse and remand,
directing the trial court to vacate the conviction and dismiss the case.
REVERSED and REMANDED, with directions.
TRAVER and NARDELLA, JJ., concur.
WALLIS, J., dissents, with opinion.
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CASE NO. 21-1569
LT CASE NO. 2020-CF-000132-A
WALLIS, J., dissents, with opinion.
When determining whether the trial court erred in denying Kelley's
motion for judgment of acquittal, we "must consider the evidence and all
reasonable inferences from the evidence in a light most favorable to the
State." McDuffie v. State, 970 So. 2d 312, 332 (Fla. 2007). After reviewing
the record in this case and with this standard in mind, I believe that the State
presented sufficient evidence showing that Kelley acted with culpable
negligence and that the trial court properly denied the motion for judgment
of acquittal. Therefore, I dissent.
I believe it is clear that Kelley's level of intoxication, which included
falling in the paved roadway and being unable to speak clearly and
coherently while answering simple questions, had a profound effect on his
ability to supervise the child. 2 Although the majority concludes that Kelley
never left the child's side and ultimately succeeded in exiting the road directly
to a place of safety, it is reasonable to infer, as we must, that Kelley was
unable to protect the child from potential oncoming traffic. It is likewise
2
By Kelley's own admission to officers, he had "been drinking all day."
There was also evidence suggesting that Kelley may have consumed a
twenty-four pack of beer before leaving his house that day with the child.
11
reasonable to infer that Kelley's ability to supervise the child was significantly
undermined by his extreme level of intoxication.
Furthermore, I cannot ignore the obvious fact that Kelley chose to walk
with the child down the double yellow lines of North Apopka Avenue despite
the existence of sidewalks on both sides of the roadway and despite the
presence of multiple cars behind them and traffic approaching from the
opposite direction. Taking the testimony in the light most favorable to the
State, it is reasonable to infer that if not for the off-duty officer's actions a car
could have hit the child. And, regardless of the speed of an oncoming car, it
is reasonable to infer that this would result in significant harm or death to the
child.
Although the majority concludes that these facts show mere
negligence and deeply irresponsible behavior, I believe otherwise. The
physical behaviors that Kelley exhibited show that he intentionally
compromised his ability to function normally and exposed the child to the
possibility of great bodily harm. I also believe the evidence, when taken in
the light most favorable to the State, was sufficient to show that Kelley acted
with culpable negligence—a flagrant disregard for the child's safety—
because he allowed the child to ride down the middle of the road without
adequate adult supervision. Therefore, in my view, the trial court correctly
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concluded that the question of whether Kelley acted with culpable negligence
was one for the jury. See Davis v. State, 703 So. 2d 1055, 1059–60 (Fla.
1997) (explaining that once the State provides competent, substantial
evidence of each element of the crime, it is for the jury to consider the
evidence and the credibility of the witnesses); Lanier v. State, 264 So. 3d
402, 406 (Fla. 1st DCA 2019) ("Based on the facts and circumstances of this
case, there was sufficient evidence to establish a jury question regarding
whether Lanier was culpably negligent."). I would affirm Kelley's conviction.
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KEVIN PATRICK KELLEY, JR. vs STATE OF FLORIDA
Combined Opinion