Tate v. State

• Decision Date: 08 November 2013
• Docket Number: No. 2D11–3089.,2D11–3089.
• Citation: 136 So.3d 624
• Parties: Eric TATE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

136 So.3d 624

Eric TATE, Appellant,

v.STATE of Florida, Appellee.

No. 2D11–3089.

District Court of Appeal of Florida, Second District.

Nov. 8, 2013.

Howard L. Dimmig, II, Public Defender, and Terri L. Backhus, Special Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Appellee.

MORRIS, Judge.

Appellant's motion for written opinion is granted. We withdraw this court's per curiam affirmance issued on May 29, 2013, and substitute it with the following opinion.

Eric Tate appeals his convictions for felony murder and aggravated child abuse. On appeal, Tate argues that the trial court erred in denying his motion for judgment of acquittal and that the trial court erred in answering the jury's question regarding access to transcripts of witness testimony. We conclude that neither error was preserved and that neither error amounts to fundamental error.

I. Motion for judgment of acquittal

Tate first claims that the trial court erred in denying his motion for judgment of acquittal because the State failed to present evidence that he knowingly, intentionally, and purposefully intended to harm the victim, H.R. Tate argues that the State failed to present evidence that was inconsistent with his reasonable hypothesis of innocence that H.R. accidentally fell off the couch.

At the conclusion of the State's case, defense counsel made a boilerplate motion for judgment of acquittal by arguing that “the State has failed to make a prima facie case as it relates to either Count One or Count Two.” This was insufficientto preserve the alleged error for appellate review.¹Miller v. State, 712 So.2d 451, 452 (Fla. 2d DCA 1998). However, this court may consider the issue, under the fundamental error doctrine, if “the evidence [was] insufficient to show that a crime was committed at all.” F.B. v. State, 852 So.2d 226, 230 (Fla.2003). The only issue is whether H.R.'s injuries were accidental or inflicted by Tate; therefore, the analysis is the same regardless of whether the issue was preserved.

“ ‘Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.’ ” Darling v. State, 808 So.2d 145, 155 (Fla.2002) (quoting State v. Law, 559 So.2d 187, 188 (Fla.1989)).² “ ‘A motion for judgment of acquittal should be granted in a [wholly] circumstantial evidence case if the state fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt.” Id. at 155–56 (quoting Law, 559 So.2d at 188). The “[c]ircumstantial evidence must lead ‘to a reasonable and moral certainty that the accused and no one else committed the offense charged.’ ” Cox v. State, 555 So.2d 352, 353 (Fla.1989) (citing Hall v. State, 90 Fla. 719, 107 So. 246, 247 (1925)).

In order to prove the offense of aggravated child abuse and the offense of felony murder resulting from the aggravated child abuse, the State proceeded under the theory that Tate knowingly or willfully abused H.R., causing her great bodily harm, permanent disability, or permanent disfigurement. See§ 827.03(1)(a)(3), Fla. Stat. (2006). The defense presented the theory that H.R., who was then two and one-half years old, died from brain injuries she sustained from an accidental fall from the couch while in the sole care of Tate. In support of that defense, the defense presented the detailed testimony of Dr. Edward Willey, a physician and pathologist who had performed approximately 900 autopsies between 1963 and 1967 and who was board certified in anatomical pathology. For the past twenty-six years, he has served as a professional consultant, sometimes performing private autopsies. Dr. Willey testified that H.R.'s bruises did not suggest abuse and could have been caused by a clotting issue brought on by the brain injuries she suffered and that H.R.'s optic and retinal hemorrhages were not obvious indicators of abuse. Dr. Willey testified that H.R.'s injuries could have been caused by a fall from a couch as reported by Tate and that he [Dr. Willey] could not say that H.R. “could have only” died from inflicted trauma. He admitted that H.R.'s injuries could have been inflicted.

The defense also presented the detailed testimony of Chris Van Ee, a biomedical engineer who conducts research in impact and orthopedic biomechanics. He studies how injuries are caused and how they can be prevented. He conducted a reconstructionof the fall as reported by Tate and testified that the fall could have caused serious and even fatal head injury. He testified that a study showed that children can suffer subdural hematomas and retinal hemorrhages and die from short falls, citing specific instances of falls resulting in such injury and death. However, he said that it is not a common occurrence and that it is rare. He also did not take into account the bruising on H.R.'s body.

The State presented evidence that H.R.'s injuries were inflicted and not the result of a fall. The State presented detailed medical testimony that is summarized as follows: Dr. Maximo Luque specializes in pediatric emergency medicine at St. Joseph's Hospital. He is board certified in adult emergency and pediatric medicine and in the subspeciality area of pediatric emergency medicine. He has been working exclusively in pediatric emergency medicine since 1984. He has treated approximately 200,000 children in twenty-eight years.

Dr. Luque treated H.R. when she was brought into St. Joseph's emergency room. He testified that the victim had “some bruising on both earlobes and also bruising in the lower back,” which was not caused by the lifesaving measures. H.R. had significant brain injuries (a subdural hematoma and herniation) and retinal hemorrhages that were likely caused by significant deceleration force. A short fall from a couch was “absolutely not” consistent with H.R.'s injuries, based on Dr. Luque's years of experience in the pediatric emergency room setting. He opined that “this was a non-accidental injury, it was an inflicted injury to the child.” Dr. Luque testified that he remains current and reads literature in the field of short and longer fall injuries, and he was currently the codirector of the Child Abuse Initiative at St. Joseph's. The bruises on H.R.'s earlobes also contributed to his opinion that her injuries were inflicted.

Dr. Luque testified in detail that brain injuries do not “produce abnormalities” in blood clotting and that H.R.'s blood work was slightly above normal, which was of no consequence. H.R.'s bruising was not caused by a clotting problem, and Dr. Luque did not believe that H.R. developed a clotting condition due to the injury. Dr. Luque testified that intracranial pressure can cause retinal hemorrhaging and that it was significant that H.R. had the retinal hemorrhages. He opined that there are many ways to get them but “[f]rom trauma specifically you require a significant injury, much more ... than falling off a sofa.” A person can also get them by being shaken.

Dr. Luque considered all of the injuries together to conclude that H.R.'s injuries were inflicted. They “require[d] a significant force, much more than just falling off the couch.” He had “never seen one with these type of injuries that result[ed] from a minor fall.” They could happen from a number of things, such as shaking, blunt force to the head, or the child's being thrown. When asked if his opinion would change if he tried to figure out how the injury happened “from a physics principle,” Dr. Luque answered, “No, ma'am. I don't need to do that. I know it.” The State asked, “[T]o a reasonable degree of scientific certainty what is your opinion as to what caused the injuries on H.R,” and Dr. Luque answered, “To me[,] the injuries of this patient were non-accidental.... My opinion is that this patient's injuries were consistent with inflicted injury and not accidental.”

The State also presented the testimony of Dr. Carl Riggs, who had been practicing medicine for thirty years. He was currently a critical care specialist, primarily treating children. He had been board certified in pediatric critical care medicine for twenty-three years. He had seen approximately 2100 children a year for thirty years. He had been qualified as an expert in critical care pediatrics probably “a couple dozen” times. Dr. Riggs treated H.R. in the intensive care unit (ICU) at St. Joseph's. When he examined her, she had early bruises, probably within 48 hours, which he did not believe were caused by medical intervention. Even though he did not measure the couch H.R. had reportedly been jumping on, he had enough medical information to form an opinion as to the cause of H.R.'s injuries. His opinion was that a fall off the couch “wasn't consistent with this degree of injury.” “To come to the emergency room dead requires a significant amount of injury to that brain.” Even if the child had jumped intentionally off the couch and hit her head on the floor, his opinion as to the cause of the injuries would not change. Retinal hemorrhages are associated with certain types of inflicted injuries. Dr. Riggs testified that the retinal hemorrhages could have possibly occurred from a fall from a couch, but the most likely cause of H.R.'s injuries was a “non-accidental trauma.” There was no sign of any acute or chronic illness or clotting disorder.

Dr. Riggs explained that the “constellation [of injuries] is really significant for being a non-accidental injury.” The bruising on the ears indicates a type of blow or pinch. He testified that studies about G forces and the like obviously cannot use real people and are conducted with dummies in efforts to try to simulate things as best they can. In his thirty years of working with children, he had never seen such injuries from a child falling off...