Nicholson v. State, 90-01195
| Decision Date | 09 May 1991 |
| Docket Number | No. 90-01195,90-01195 |
| Citation | 579 So.2d 816 |
| Court | Florida District Court of Appeals |
| Parties | Mary NICHOLSON, Appellant, v. STATE of Florida, Appellee. |
Barbara M. Linthicum, Public Defender, and Glen P. Gifford, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and Bradley R. Bischoff, Asst. Atty. Gen., Tallahassee, for appellee.
This cause is before us on appeal from appellant's conviction of first-degree felony murder and aggravated child abuse. Appellant argues that: (1) the trial court erred in denying her motion for judgment of acquittal because the evidence failed to establish that the victim died from either malicious torture or willful punishment; and (2) the trial court committed fundamental error in instructing the jury that aggravated child abuse by willful torture under Section 827.03(1)(b), Florida Statutes, includes acts of negligence or omission. After careful consideration, we affirm as to each issue.
On February 8, 1988, four-year-old Kimberly McZinc died of starvation. Kimberly's mother, Darlene Jackson, was indicted for first-degree murder and aggravated child abuse. She subsequently pled nolo contendere to third-degree murder and simple child abuse.
Ms. Jackson, a native of Charleston, South Carolina, moved to New York City in 1979, where she met Kenneth McZinc, who fathered her child, Kimberly, born March 17, 1983. After Kimberly's birth, Ms. Jackson experienced a renewed interest in religion and became "born again."
In April 1986, Ms. Jackson met Hope Renwick. Ms. Renwick shared with Ms. Jackson her view that life on earth was a continuous struggle between the forces of God and Satan. In the summer of 1986, Ms. Jackson and Kimberly paid their first visit to Ms. Renwick's church. Ms. Jackson had been told that occasionally people became sick during the service and that such sickness was a sign of the cleansing of demons. Kimberly spit up in church, drawing the attention of other worshipers, who chanted "hallelujah." Afterwards, Ms. Jackson placed more credence in Ms. Renwick's accounts of spiritual warfare. Ms. Jackson began to dwell on concepts such as Satan and oppression by demons.
Ms. Renwick introduced Ms. Jackson to appellant. Appellant and Ms. Renwick began to interpret dreams which Ms. Jackson had been having. Appellant suggested that Ms. Jackson's dreams signified that Kimberly was being pulled toward evil. Ms. Jackson began to speak with appellant more frequently.
In July of 1987, Ms. Jackson took Kimberly to appellant's home in Pace, Florida. Ms. Jackson kept a diary that chronicled her participation in religious activities with appellant. The diary reflected that appellant provided specific directions to Ms. Jackson for Kimberly's discipline, which were based upon appellant's "prophecies from God."
Appellant persuaded Ms. Jackson that the evil spirit of gluttony oppressed Kimberly. Appellant instructed Ms. Jackson to make Kimberly run and to strike her with a switch if she resisted, as a means of breaking the demonic hold over Kimberly. In September 1989, appellant instructed Ms. Jackson to separate herself from Kimberly and allow appellant to care for Kimberly on a daily basis. A September diary entry records that Kimberly was denied food for several days and suggests that Kimberly may have been forced to drink urine and bath water. Appellant assumed full control of Kimberly's diet, and Kimberly's weight began to drop.
In early October 1987, appellant's daughter, Tina Brown, noticed that Kimberly was losing weight and notified the Department of Health and Rehabilitative Services (HRS). After visiting appellant, HRS took no further action. Kimberly continued to lose weight. In December 1987, Ms. Brown again notified HRS. HRS again visited appellant's home but did not take further action.
A laundromat worker testified that she had observed Kimberly during the summer and fall of 1987. During appellant's visits to the laundromat, Kimberly sat quietly and never ate snacks. She became thinner and weaker during this period, but when the worker told appellant that something was wrong with Kimberly, appellant replied that there was always something wrong with Kimberly. On one occasion, the laundromat worker offered Kimberly food; however, appellant would not allow her to eat and stated that the child had a stomach virus.
In January of 1988, Ms. Jackson questioned appellant about Kimberly's weight loss. Appellant told Ms. Jackson that her questions angered God and strengthened the evil spirits. On the Friday before Kimberly's death, appellant whipped Kimberly for being disobedient. Ms. Jackson protested the severity of the beating. Afterwards, appellant told Ms. Jackson to pray in appellant's bedroom. During this prayer session, Ms. Jackson heard a voice that sounded like appellant's tell her to chastise Kimberly. Ms. Jackson reported the voice to appellant. Appellant told Ms. Jackson that the Lord's word comes in familiar voices and that she should follow His word and chastise Kimberly. Ms. Jackson whipped Kimberly.
On the day before Kimberly's death, Ms. Jackson noticed that Kimberly was sluggish; however, appellant persuaded Ms. Jackson that Kimberly was only faking. Appellant and Ms. Jackson stayed with Kimberly throughout the evening. They prayed and anointed Kimberly. At approximately 7:30 a.m., Ms. Jackson determined that something was wrong with Kimberly and called an ambulance. Kimberly, however, had been dead for several hours.
At the time of death, four-year-old Kimberly McZinc had virtually no body fat, had wasted muscles, and a small liver. An autopsy revealed that the child had severe bruises on her back, legs, abdomen, and arms, and that her liver had been partially consumed by her body. The medical examiner testified that Kimberly had died in extreme pain.
Appellant was convicted of first-degree felony murder with the underlying felony being aggravated child abuse pursuant to Sections 827.03(1)(b) and (c), Florida Statutes. 1 Appellant argues that the terms "malicious punishment" and "willful torture" have been held to connote acts of commission, not omission, and therefore the failure to...
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