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Lowery v. State

Florida Court of Appeals, First District

June 20, 2019

Thelma Denise Lowery, Appellant,
v.
State of Florida, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Santa Rosa County. Kelvin C. Wells, Judge.

          Andy Thomas, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.

          Ashley Moody, Attorney General, and Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.

          Wolf, J.

         Thelma Lowery challenges her conviction for first-degree felony murder while in the commission of aggravated child abuse. She raises 6 issues on appeal. We find that none of them have merit and affirm.

         Appellant was charged by grand jury indictment. The indictment expressly alleged that she committed aggravated child abuse "by committing aggravated battery . . . and/or knowingly or willfully abusing [the victim] and in doing so caused great bodily harm, permanent disability or permanent disfigurement . . . in violation of Sections 782.04 and 827.03, Florida Statutes."

         The State's theory of the case was that appellant ran a daycare facility in her home and that a perfectly healthy 15-month-old child died of a head injury caused by appellant while the baby was in her care.

         We will discuss the pertinent facts as they relate to each issue.

         Issue I: Whether the Trial Court Erred in Denying Appellant's Motion for Judgement of Acquittal

         Appellant argues the trial court erred in denying her motion to dismiss because the State's evidence was circumstantial and did not rebut her reasonable hypothesis of innocence that the child died of an underlying medical condition. See State v. Law, 559 So.2d 187 (Fla. 1989). Multiple medical experts, including the treating physicians and the medical examiners, testified the child died from a blunt force trauma to his brain, possibly in combination with a violent shaking. They testified his injuries were not consistent with an underlying medical condition or accidental fall. Both medical examiners testified the child would have suffered symptoms "immediately" following the head trauma.

         Appellant and the child's parents agreed that the child was not symptomatic when he was dropped off at appellant's house that morning at approximately 7:00 a.m. Appellant agreed the child was not symptomatic until he vomited and had a seizure approximately 3 hours later at 10:00 a.m., at which time she called 911. Appellant conceded she was the only adult with the child that morning.

         In a similar case, the Second District found testimony from medical experts that a young child died from a serious head injury, which could not have been caused by an accidental fall while in the sole care of the defendant, was sufficient circumstantial evidence to prove felony murder by aggravated child abuse and to rebut a hypothesis of innocence that the child accidentally rolled off the bed. Tate v. State, 136 So.3d 624, 629 (Fla. 2d DCA 2013). See also Caban v. State, 892 So.2d 1204 (Fla. 5th DCA 2005), cause dismissed, 909 So.2d 861 (Fla. 2005) (finding expert medical testimony that a child died of head trauma that was caused by shaken baby syndrome and could not have been caused by an accidental fall was sufficient circumstantial evidence to prove felony murder by aggravated child abuse and to rebut a hypothesis of innocence that the child fell off the bed or was injured at a prior time).

         In addition, here the State presented other evidence suggesting appellant's guilt. A Williams Rule witness testified that appellant frequently treated the child in a rough manner that the medical examiner testified could have led to the child's death. Appellant also made statements that were inconsistent and evidenced consciousness of guilt. Appellant told multiple individuals at the time of the incident, including first responders and a detective, that she feared she would be blamed for harming the child despite there being no evidence at that time that he had been injured. When asked what happened to the child, she suggested to the child's parents and a detective that the child's injuries were caused when his 3-year-old brother hit him in the head with a block, which all of the doctors testified could not have caused the victim's injuries. She also stated multiple times that she had just bathed the child and washed vomit out of his hair when he had his seizure, though first responders testified he was dry and did not smell as if he had been freshly bathed.

         Viewing this evidence in a light most favorable to the State, the State presented sufficient evidence that appellant caused the child's death by committing aggravated child abuse.

         The theory of defense, as presented by the defense expert Dr. Willey, was that the child suffered from pre-existing medical conditions that rendered the veins in his head highly susceptible to injury and subject to bleeding either spontaneously or from minor trauma.

         First, Dr. Willey believed the child had an excess accumulation of fluid on his brain since birth, which would have increased the pressure in his head and stretched the veins in his brain, making them more susceptible to injury. He testified this condition could have caused the child's veins to bleed and re-bleed on their own or due to minor trauma. Primarily he believed the child had an accumulation of fluid on his brain because his head grew at a disproportionately larger rate than the rest of his body since birth. He prepared two growth charts for the jury to demonstrate this disproportionate growth. He believed the possibility of excess fluid was also supported by the report from a CT scan that indicated there was "chronic" or older fluid on the child's brain prior to surgery, and the surgeon's report stating there was a chronic membrane in the child's brain. This led him to believe the child's weakened veins may have been bleeding and re-bleeding leading up to the incident.

         The State refuted all of his testimony. Both the medical examiner and the child's pediatrician testified the child's head did not grow at an abnormally large rate. It grew consistently with the rest of his body. The defense expert conceded he did not use a growth chart for premature babies. The victim in this case was born prematurely. The pediatrician testified a premature baby's growth would not plot accurately on a full-term baby's growth chart. The pediatrician plotted the child's growth on the appropriate chart and concluded the child's head grew consistently with the rest of his body. The medical examiner also charted the child's growth and concluded his head grew normally. She pointed out the defense expert made significant errors in plotting the child's growth, including putting the wrong measurement in one spot and putting the wrong month's measurements on the wrong line in another spot. She stated there was no sign the child had excess fluid on his brain.

         Although the report for the CT prepared by the radiologist Dr. Waggoner did conclude there was "chronic" or old blood present on the child's brain, the neurosurgeon testified he saw no old blood during surgery. He believed the radiologist made a mistake in reading the CT scan.

         One of the medical examiners, Dr. Nelson, testified that the child had a "chronic" membrane, indicating the child had bleeding on his brain one to two weeks prior to his death. Appellant argues that because of this testimony, the State was unable to rule out the possibility of an underlying medical condition causing the child's death. However, Dr. Nelson conclusively testified that the chronic membrane represented a separate bleed that would have been caused by a separate incident weeks earlier. He stated it was a "marker" to show "there's been trouble" there before. He stated this type of bleeding or "hematoma" in children does not tend to re-bleed. It was not possible that the child "magically" started experiencing symptoms from the old bleed weeks later. Dr. Minyard gave similar testimony.

         Thus, the State directly rebutted all three reasons why the defense expert believed the child had excess fluid on his brain.

         Second, the defense expert testified be believed the child had abnormal "bridging veins" in his brain, which would have been susceptible to rupturing from little to no force. He reached this conclusion that the child had a venous abnormality based on a note in the surgeon's records that veins where the bleeding occurred were "conglomerated." The defense expert stated "conglomerated" was not a description of a normal "venous architecture" in an infant's brain and instead indicated a malformation.

         However, Dr. Pearson, the neurosurgeon, testified the "conglomeration" of bridging veins was a "normal variant," and the child did not have any venous abnormality. Dr. Minyard, one of the medical examiners, also testified ...


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