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J.C. v. State

Florida Court of Appeals, Second District

January 5, 2018

J.C., Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Appeal from the Circuit Court for Polk County; Mark J. Hofstad, Judge.

          Howard L. Dimmig, II, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.

          PER CURIAM.

         In this delinquency proceeding, the trial court found that J.C. committed the delinquent act of culpable negligence exposing another to personal injury under section 784.05(1), Florida Statutes (2016), withheld adjudication, and placed J.C. on six months of juvenile probation. J.C. appeals, arguing that the evidence was not sufficient to prove the alleged offense. Our precedent holds that the term "culpable negligence" as used in section 784.05(1) requires a conscious act a reasonable person would know is likely to result in death or great bodily harm. Because the State's evidence was legally insufficient to prove that, we reverse.

         On a summer evening not long after Independence Day in 2016, D.M., a young man of around fourteen, was at his home with his twin brother and grandfather. He heard a knock at the door. He answered it to find J.C.-a friend of his who was then twelve-and another boy. J.C. was holding a small round object in one hand that D.M. recognized as a smoke bomb. J.C. lit the smoke bomb, left the front door area, and went to the road that faced the house. He then threw the smoke bomb toward the open front door. It hit the door and landed on a carpeted floor just inside the house. It was not sparking or flaming, but it was making a lot of smoke. D.M. threw the smoke bomb back out of the house.

         Soon thereafter, D.M.'s great uncle, who lived with the twins and their grandfather, returned to a smoky house. The police were called. When they arrived, there was still a lot of smoke and a strong smell of sulfur. No one got hurt, however. Nor was anyone's property damaged. The smoke bomb was not recovered. At trial, D.M. testified that he and J.C. have remained friends notwithstanding the incident.

         The State filed a petition for an adjudication of delinquency which alleged that J.C. violated section 784.05(1) when he threw the smoke bomb at the home. The statute provides that "[w]hoever, through culpable negligence, exposes another person to personal injury commits a misdemeanor of the second degree." Id. At the close of the evidence, the defense argued that the evidence was insufficient to show that J.C.'s throwing a smoke bomb at the house constituted culpable negligence within the meaning of the statute. The trial court disagreed, and this appeal followed.

         Our court addressed the evidence required to prove culpable negligence under section 784.05(1) in Azima v. State, 480 So.2d 184 (Fla. 2d DCA 1985). There, a doctor was charged with violating the statute after placing an intrauterine device in a pregnant patient. Although the evidence showed that placing an IUD in a pregnant woman is very risky, the patient fortunately was not injured. Id. at 185-86. After a county court found the doctor guilty and a circuit court affirmed the resulting judgment, the doctor petitioned this court for a writ of certiorari, arguing that his conviction was unsupported by the evidence. Id. at 186.

         We held that the evidence was insufficient to establish that the doctor was culpably negligent and granted the writ. Id. at 187. We referred to the supreme court's decision in State v. Greene, 348 So.2d 3, 4 (Fla. 1977), to explain that culpable negligence requires conduct akin to the conduct required to impose punitive damages in a civil case, and we described the civil punitive damages standard. Azima, 480 So.2d at 186. Then, quoting our decision in Tsavaris v. State, 414 So.2d 1087, 1088 (Fla. 2d DCA 1982), we held that the element of culpable negligence under section 784.05(1) requires the State to prove that the defendant consciously undertook "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, 480 So.2d at 186. The requirement that the act include a likelihood of death or great bodily harm was dispositive in Azima because although the State presented evidence that the insertion of an IUD in a pregnant woman could cause death or great bodily harm, there was no evidence that it was likely to do so. Id. at 186-87. We held that "[i]t is the likelihood of death or great bodily harm . . . which justifies the imposition of criminal sanctions for culpable negligence." Id. at 187; see also Kish v. State, 145 So.3d 225, 227-28 (Fla. 1st DCA 2014) (requiring that the State prove a likelihood of death or great bodily harm under section 784.05(1)).

         Here, the State failed to present any evidence from which a factfinder could have inferred that a reasonable person would have known that J.C.'s throwing a smoke bomb at D.M.'s home was likely to cause death or great bodily harm. It did not put on any evidence that a smoke bomb is inherently likely to cause death or great bodily harm. Nor did it put on any evidence about the particular smoke bomb J.C. threw, the condition of the smoke bomb when it was thrown, or the likely effect of the smoke on the home or its occupants that would have suggested that death or serious bodily harm was the likely result. In the final analysis, the State's evidence showed only that J.C. threw a smoke bomb that was smoking, but not on fire, at the door of the house. Without more, that simply does not permit a finding of an intentional act a reasonable person would regard as likely to cause death or great bodily harm.

         For that reason, the evidence was insufficient to support the finding that J.C.'s action of throwing the smoke bomb constituted culpable negligence. We therefore reverse the order of delinquency and its ...


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