         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D18-2039
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TONISHA LACHE CROWELL,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Okaloosa County.
John T. Brown, Judge.

                       September 18, 2019


OSTERHAUS, J.

     Tonisha Lache Crowell appeals a conviction and life sentence
for murdering her baby. She seeks a new trial arguing that the
trial court abused its discretion by giving deficient jury
instructions that weren’t supported by the evidence. We affirm.

                                I.

     In October 2013, Ms. Crowell received treatment from a doctor
for nausea and vomiting and learned that she was pregnant. Three
months later, Ms. Crowell went to the hospital complaining again
of stomach pain. She was told again that she was pregnant, and an
ultrasound revealed that the baby was at thirty-nine weeks
gestation. Ms. Crowell left the hospital, and two days later, she
gave birth to a baby in the privacy of her bathroom at home. After
the birth, Ms. Crowell cut the umbilical cord and placed the baby
in a trash bag with garbage in it. She cleaned up the blood in the
bathroom and then discarded the trash bag with the baby outside.
The baby remained in the trash bag for hours in forty-something-
degree weather. Ms. Crowell then got help for herself from a
roommate who didn’t know she was pregnant. The roommate
thought Ms. Crowell was bleeding from a bowel issue and took her
to the hospital.

     Upon arrival at the hospital, medical personnel discovered
that Ms. Crowell had been there just two days before, while thirty-
nine weeks pregnant, and that she was not pregnant anymore. Ms.
Crowell denied at first that she was the same person. But after a
couple of hours, she admitted to delivering a baby and leaving the
newborn in a trash bag beside her home. The hospital alerted law
enforcement and they found the baby still in the bag with her feet
sticking out. Law enforcement officers and a paramedic testified to
seeing the baby’s chest rise and fall. But upon arrival at the
hospital, the baby was pronounced dead. According to the death
report, the cause of the baby’s death was a combination of
hypothermia and asphyxia. The baby had been stashed outside in
the bag for about four hours.

     The State charged and tried Ms. Crowell for first-degree
murder. A jury heard the case and returned a general verdict of
guilty. The trial court sentenced Ms. Crowell to life in prison
without parole. This timely appeal followed.

                                 II.

      This case involves the jury instructions given in Ms. Crowell’s
first-degree murder trial. We review the trial court’s decision to
give or withhold a proposed jury instruction for an abuse of
discretion. Kervin v. State, 195 So. 3d 1181, 1182 (Fla. 1st DCA
2016). Whether an abuse of discretion occurred depends upon: “(1)
whether the instruction given accurately states the applicable law;
(2) whether the facts in the case support the instruction; and (3)
whether the instruction given was necessary to allow the jury to
properly resolve all issues in the case.” Id. at 1182-83. We presume


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that the trial court’s ruling on a jury instruction is correct.
Langston v. State, 789 So. 2d 1024, 1026 (Fla. 1st DCA 2001).

      Under Florida law, the State can make out a first-degree
murder case either by proving premeditated murder or felony
murder. See Dessaure v. State, 891 So. 2d 455, 472 (Fla. 2004). The
State’s case here included evidence supporting both theories of
first-degree murder and the court instructed the jury on both
theories. Ms. Crowell asserts that her conviction and sentence
should be reversed because the felony murder instructions referred
to “caging” and “torture” of the victim, which she argues to be
unsupported by the facts.

     A felony murder occurs when an offender kills someone while
committing one of the crimes listed in § 782.04(1)(a)2., Florida
Statutes (2013). Among these crimes is “aggravated child abuse.”
Id. Aggravated child abuse occurs when a person: (1) commits
aggravated battery on a child; (2) willfully tortures, maliciously
punishes, or willfully and unlawfully cages a child; or (3)
knowingly or willfully abuses a child causing great bodily harm,
permanent disability, or permanent disfigurement to the child.
§ 827.03, Fla. Stat. (emphasis added). At the charge conference,
defense counsel objected to the jury being instructed on these
theories, except for child abuse causing great bodily harm or
permanent disability. The trial court agreed to remove the
“maliciously punishes” and “permanent disfigurement” language
from the instructions but it left the rest. Ms. Crowell’s argument
is that the court committed reversible error by instructing the jury
on the torture and caging theories.

    Regarding caging, Ms. Crowell argues that this provision
could only apply if there was evidence of “confining a child in some
type of wire or bar boxlike structure or a small restrictive
enclosure.” See Blow v. State, 993 So. 2d 540, 541 (Fla. 2d DCA
2007), receded from on other grounds by M.N. v. State, 16 So. 3d
280 (Fla. 2d DCA 2009). Here, there was no such hardened-
material, box-like, physical barrier, only a plastic bag. And
according to Ms. Crowell, it is axiomatic that the bag, which was
unsecured and failed to totally enclose her baby (officers saw feet
protruding from the bag), wasn’t a cage under the statute. Ms.
Crowell argues also that there was no supporting evidence of

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torture. She believes this provision only applies when there is
evidence of a “level of brutality or extreme pain and suffering” or
“extreme and sadistic conduct,” which wasn’t present here. See
Wheeler v. State, 203 So. 3d 1007, 1009 (Fla. 4th DCA 2016); Cox
v. State, 1 So. 3d 1220, 1224 (Fla. 2d DCA 2009).

     We find neither argument sufficient to reverse Ms. Crowell’s
conviction and sentence. In the first place, a general guilty verdict
will not be set aside “when there was an alternative theory of guilt
for which the evidence was sufficient.” Mungin v. State, 689 So. 2d
1026, 1030 (Fla. 1995) (citing Griffin v. United States, 502 U.S. 46
(1991)). Here, the jury’s general guilty verdict did not specify what
theory or theories it accepted. But the evidence supports
alternative theories to those challenged by Ms. Crowell. As to the
State’s premeditated murder theory, for instance, a doctor told Ms.
Crowell that she was pregnant four months before she gave birth.
Ms. Crowell also visited the hospital and had an ultrasound two
days prior to the baby’s birth, which confirmed her late-stage
pregnancy. Upon giving birth to the baby at home, Ms. Crowell
admitted that she never checked to see if the baby was breathing
or crying before depositing the baby headfirst in a trash bag and
then abandoning the bag outside her home. She then lied about
having a baby to both hospital personnel and law enforcement.
This evidence supports the State’s premeditation case and the
jury’s general guilty verdict.

     Other evidence supports the State’s felony murder theory that
Ms. Crowell unlawfully killed her baby while committing
aggravated child abuse. The instructions provided the jury with
four avenues for finding aggravated child abuse, including
aggravated battery and the knowing and willful commission of
child abuse causing great bodily harm or permanent disability on
the baby. There isn’t a reasonable possibility that the jury relied
on either the torture or caging theories of aggravated child abuse,
which are the theories challenged in this appeal, without also
finding that Ms. Crowell committed either aggravated battery, or
child abuse causing great bodily harm. Again, the evidence showed
that Ms. Crowell discarded her newborn outside in a trash bag, in
forty-something-degree weather, where the baby remained for
hours before dying of hypothermia and asphyxia. There was
adequate evidentiary support for the aggravated battery and

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knowing and willful child abuse theories of aggravated battery
irrespective of whether the facts also supported the instructions
regarding caging and torture. Thus, we find no reasonable
possibility that the challenged instruction contributed to Ms.
Crowell’s conviction; any error was harmless.

     That said, we find no error in the trial court’s decision to give
the caging and torture instructions because of the evidence
supporting those instructions. A normal reading of the verb
“cages,” as used in the statute, means “to confine or keep in or as
if in a cage.” Cage, Merriam-Webster Online Dictionary,
www.merriam-webster.com/dictionary/cage (last visited Aug. 28,
2019) (emphasis added). This definition easily fits the
circumstances here where the infant was confined for hours
headfirst in a trash bag. We understand that a plastic bag might
not plausibly confine a healthy, older person as if in a cage, but an
infant is different. “Aggravated child abuse is largely determined
on a case-by-case basis rather than with bright-line rules as to
what conduct does and does not constitute aggravated child
abuse.” Cox, 1 So. 3d at 1222 (citing Herbert v. State, 526 So. 2d
709, 712 (Fla. 4th DCA 1988)). “This flexibility is critical to allow
for consideration of such factors as the age of the victim, the
frequency of prohibited conduct, and other circumstances relevant
to a particular case.” Id. at 1222-23 (emphasis added). The infant
could not be expected to free herself from life-threatening
confinement in the trash bag, even if the enclosure wasn’t made of
the sturdy materials cited by Ms. Crowell. In fact, the baby was
freed only when law enforcement officers arrived many hours
later. Under these facts, we see no problem with the caging
instruction.

     We also don’t think the felony murder instruction’s use of
“torture” was error requiring reversal of Ms. Crowell’s judgment
and sentence. This verb refers to conduct that “cause[s] intense
suffering to” another person. Torture, Merriam-Webster Online
Dictionary, www.merriam-webster.com/dictionary/torture (last
visited Aug. 28, 2019); see also Nicholson v. State, 600 So. 2d 1101,
1103 (Fla. 1992). The evidence here indicated that the baby bled
out, while being left for hours outside in the cold, after Ms. Crowell
severed but didn’t clamp the umbilical cord. The baby fought for
her life for four hours, as first responders witnessed her struggle

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to breathe before they could get to the hospital. The evidence
showed that the baby was significantly hypothermic after all of
those hours outside in the cold. In the meantime, Ms. Crowell
played a cat-and-mouse game with hospital officials denying her
pregnancy and the baby’s existence. With this evidence of extended
suffering by the baby before death due to Ms. Crowell’s various
actions and failures to act, the trial court did not abuse its
discretion by including the torture theory in its felony murder
instruction. See Nicholson, 600 So. 2d at 1103 (recognizing that
willful torture may consist of acts of commission or omission that
cause unnecessary suffering).

                               III.

    The judgment and sentence are AFFIRMED.


B.L. THOMAS and ROWE, JJ., concur.

                 _____________________________

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


Andy Thomas, Public Defender, and Kathryn Lane, Assistant
Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Virginia Chester Harris,
Assistant Attorney General, Tallahassee, for Appellee.




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