FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Polk County; Catherine L. Combee,
Maldonado of The Maldonado Law Firm, P.A., Lakeland, for
Jo Bondi, Attorney General, Tallahassee, and Wendy
Buffington, Assistant Attorney General, Tampa, for Appellee.
Medina challenges his judgment and sentence for neglect of a
child causing great bodily harm in violation of section
827.03, Florida Statutes (2012), following a jury trial.
Because Mr. Medina's conduct in allowing a four-year-old
child to descend a flight of stairs unassisted-stairs that
the child had regularly traversed previously without
significant incident-did not rise to the level of culpable
negligence or a willful failure to care for the child's
well-being, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND A. The Incident
January 10, 2013, Mr. Medina was babysitting his
girlfriend's four-year-old son, J.A., when J.A. fell down
a set of unfinished wooden stairs inside of Mr. Medina's
residence. The fall caused traumatic brain injuries and
required a piece of J.A.'s skull to be removed in order
to relieve pressure on the brain. J.A. was in a medically
induced coma in the pediatric intensive care unit for several
days and had to stay at the hospital for over two months.
incident in question began around 4:40 p.m. when J.A.'s
mother left to go to work. Later that evening, J.A. was
upstairs when he called down to Mr. Medina, who was on the
first floor playing video games, and asked him if he could
play video games with him. Upon Mr. Medina giving J.A.
permission to come down and to bring his controller, J.A.
began running down the stairs, where he subsequently fell,
cracked his head open, was knocked unconscious, and stopped
breathing. Mr. Medina then picked up J.A., ran upstairs,
called 911, and tried performing CPR on J.A. until
sheriff's deputies and paramedics arrived. The State
later charged Mr. Medina with neglect of a child causing
great bodily harm.
trial, the State introduced Mr. Medina's personal
statements made in a recorded interview with a detective. In
the interview, the detective asked Mr. Medina if the child
ever had any trouble with the stairs, and Mr. Medina stated
that "[o]ne time there was [an] incident." When the
detective later inquired about that prior incident, Mr.
Medina stated, "It was-it was on the last step though.
It was on the last stair. [J.A.] just-I don't know. I
guess he tripped. He came-come down fast again. He just boom,
boom, boom." It is not clear from this statement whether
the references to "com[ing] down fast again" and
"boom, boom, boom" referred to the January 10
incident for which Mr. Medina was on trial or to an earlier
incident. The detective did not ask Mr. Medina any follow-up
questions to clarify this ambiguity.
State then introduced a reenactment video in which Mr. Medina
had participated. In the video, Mr. Medina stated that J.A.
was about halfway down the stairs when he fell. Mr. Medina
further stated in the interview that he did not see J.A. fall
but heard it. He asserted that he did not watch J.A. descend
the stairs because he was sitting on the couch focusing on
his video games. Also, Mr. Medina stated that J.A. frequently
traversed the stairs and that he only knew of one other time
when J.A. had trouble walking up and down the stairs by
himself. Specifically, Mr. Medina stated that J.A. fell
"going up" the stairs but that it was "nothing
serious." Mr. Medina's report of J.A.'s fall
"going up" the stairs seems to be the earlier
incident that he referenced in the recorded interview.
detective who was involved in the reenactment video then
testified that the stairs were narrow, "very steep,
" and "progress[ed] upward pretty quickly."
The steep stairs connected the first and second floors of the
home, and J.A.'s bedroom was located on the second floor.
There were about twelve steps in total and all of them were
wooden with rough edges. The detective stated that the stairs
were "still in the process of being refur[b]ished."
There were two handrails to the right and to the left of the
staircase, including balusters attached to the handrail on
one side of the staircase. However, the handrail with
balusters was not properly secured. Further, both handrails
did not go all the way to the top of the staircase.
Accordingly, there were no handrails for a person to hold at
the very top of the stairs to prevent someone from falling
off the step. The State introduced photographs of the stairs
Department of Children and Families investigator also
interviewed Mr. Medina regarding J.A.'s incident. The DCF
investigator testified that Mr. Medina told him that at the
time of the incident, he had been playing video games and
smoking marijuana. On cross-examination, the DCF investigator
again stated that Mr. Medina had admitted to smoking
marijuana on the day of the incident. However, the DCF
investigator testified that it was "possible" that
Mr. Medina had stated that he was smoking marijuana before
the child was in the residence. The DCF investigator further
clarified that it was not "one hundred percent
true" to say that Mr. Medina had actually said, "I
was smoking at the time of the incident."
addition to the DCF investigator's testimony, the State
and Mr. Medina introduced testimony from several law
enforcement officers. Two of the responding officers
testified that they did not remember smelling marijuana in
the home when they arrived. However, a third officer
testified that he smelled a "faint odor" of
marijuana when he entered the residence, as if Mr. Medina had
smoked marijuana a couple hours earlier. Additionally,
through one of the responding officer's testimony, the
State was able to introduce and identify various objects
evidencing drug use found in Mr. Medina's home, including
baggies containing marijuana, marijuana shavings, a marijuana
butt in an ashtray, a bong in the bedroom, a hookah, and
three to four rolled up cigarillos on a child's table. No
one tested Mr. Medina to determine whether or not he had
recently used any drugs or alcohol.
time of the trial, J.A. was six years old and in the first
grade at school. The State called J.A. as a witness at trial
but did not first proffer his testimony outside the presence
of the jury. Thus, J.A. gave extensive testimony before the
jury. There were multiple problems with J.A.'s testimony
and demeanor as a witness that we need not detail here.
Ultimately, the trial court called a halt to the testimony,
and J.A. was excused. After hearing the parties'
arguments, the trial court ruled that J.A. was incompetent to
testify. Defense counsel moved for a mistrial. The trial
court never actually ruled on the mistrial motion but
declared that it would give a curative instruction to the
jury. The prosecutor and defense counsel agreed on the text
of a curative instruction that the trial court ...