FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Polk County; Mark J. Hofstad,
L. Dimmig, II, Public Defender, and Tosha Cohen, Assistant
Public Defender, Bartow, for Appellant.
Jo Bondi, Attorney General, Tallahassee, and Elba Caridad
Martin, Assistant Attorney General, Tampa, for Appellee.
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.
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.
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.
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.
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.
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)).
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.
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 ...