Arnold v. State, 2D98-4857.

• Decision Date: 14 April 2000
• Docket Number: No. 2D98-4857.,2D98-4857.
• Citation: 755 So.2d 796
• Parties: David ARNOLD, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

755 So.2d 796

David ARNOLD, Appellant, v. STATE of Florida, Appellee.

No. 2D98-4857.

District Court of Appeal of Florida, Second District.

April 14, 2000.

James Marion Moorman, Public Defender, and Douglas S. Connor, Assistant Public Defender, Bartow, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Jenny S. Sieg, Assistant Attorney General, Tampa, for Appellee.

CASANUEVA, Judge.

David Arnold appeals his conviction for child neglect, a third degree felony in violation of section 827.03(3)(c), Florida Statutes (1997). Because the State did not prove a prima facie violation of the statute, the trial court erred in failing to grant Mr. Arnold's motion for judgment of acquittal at the conclusion of the State's case-in-chief. Accordingly, the conviction must be vacated.

Section 827.03(3)(a)1 defines "neglect of a child," as applied to this case, as "a caregiver's failure or omission to provide a child with the care, supervision, and services necessary to maintain a child's physical and mental health, including, but not limited to food, nutrition, clothing, shelter, supervision, medicine, and medical services that a prudent person would consider essential for the well-being of the child." As stated in subsection (3)(a)2, that failure or omission can be based on repeated conduct or, as in this case, "on a single incident or omission that ... could reasonably be expected to result in, serious physical or mental injury, or a substantial risk of death to a child." Subsection (3)(c) of the statute, with which Mr. Arnold was charged, does not require that the State prove that the child has actually suffered any "great bodily harm, permanent disability, or permanent disfigurement," only that the caregiver has placed her at risk. However, even if the defendant's conduct or omission has the potential to cause serious physical or mental injury or risk of death to the child, that "neglect" becomes criminal only when the State proves that the caregiver has acted "willfully or by culpable negligence."

By its language, the legislature has demanded that the State prove more than mere negligence to criminalize child neglect. And the legislature has required that the defendant's acts or omissions create a "reasonably expected" potential for the child to suffer, at a minimum, serious injury. In establishing these elements for the crime of third degree felony child neglect, the legislature has responded to a series of decisions from the Florida Supreme Court declaring unconstitutional prior versions of this statute. The primary infirmity of the 1975 version of the statute was that it criminalized simple negligence and punished those with no intent to do wrong. See § 827.05, Fla. Stat. (1975); State v. Winters, 346 So.2d 991 (Fla.1977). The 1991 version of section 827.05 had added language addressing the financial ability of the caregiver and the degree of impairment or risk to the child, but those elements did not overcome the lack of scienter. See State v. Mincey, 672 So.2d 524 (Fla.1996); State v. Ayers, 665 So.2d 296 (Fla. 2d DCA 1995). The latest version of the statute, under which Mr. Arnold was convicted, has attempted to remedy that shortcoming by adding the "willfully or by culpable negligence" language and has further attempted to define what actions or omissions constitute "neglect."

We have made this short digression into the background of this statute not because any party has challenged its constitutionality but to emphasize how difficult it has been for the legislature to define this crime. The fact that the legislature has been struggling to do so for the past several decades manifests a strong public policy in favor of providing criminal sanctions for those caregivers who neglect children, a policy we have not ignored in deciding this appeal. At the same time, however, the legal precedents have acknowledged that only the most egregious conduct, done either willfully or with criminal culpability, should be criminalized.

This court has defined culpable negligence as "consciously doing an act which a reasonable person would know is likely to result in death or great bodily harm to another person, even though done without any intent to injure anyone but with utter disregard for the safety of another." Azima v. State, 480 So.2d 184, 186 (Fla. 2d DCA 1985) (citing Tsavaris v. State, 414 So.2d 1087, 1088 (Fla. 2d DCA 1982)). The degree of culpable negligence necessary to sustain a conviction was set forth in State v. Greene, 348 So.2d 3 (Fla. 1977):

This Court is committed 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. The burden of proof authorizing a recovery of exemplary or punitive damages by a plaintiff for negligence must show a gross and flagrant character, evincing reckless disregard of human life or of the safety of persons exposed to its dangerous effects; or that 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.

348 So.2d at 4 (quoting Russ v. State, 140 Fla. 217, 191 So. 296, 298 (1939)). Such acts are known by the public to be criminally outlawed. Id. "Willfully," by contrast, is a term more susceptible of comprehension by the ordinary reasonable person. In the context of criminal violations, "willfully" implies that a defendant has acted voluntarily and consciously, not accidentally. See Black's Law Dictionary 1773 (4th ed. 1968). With these elements and definitions in mind, we have determined as a matter of law that the trial court should have granted the defense motion for judgment of acquittal.

The State's case consisted of only two witnesses: the defendant's child, Tiffany Arnold, and the investigating...