           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
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                         No. 1D17-4357
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JUSTIN LEE LANIER,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Bay County.
Michael C. Overstreet, Judge.

                       February 28, 2019

ROWE, J.

    Justin Lanier appeals his judgment and sentence for child
neglect of his infant daughter. We affirm all issues raised on
appeal and write only to address Lanier’s argument that the trial
court erred by denying his motion for judgment of acquittal.

                             Facts

    For three weeks before she was finally taken to the emergency
room on November 16, 2016, five-month-old L.L. had been
screaming what her own mother described as “bloody murder.” At
the hospital, L.L. was inconsolable and in severe pain. She had
bruises all over her body: on her head, behind her ear, down her
back, and on her buttocks. She was unable to hold her head up on
her own. The only position in which the infant could find any
comfort was lying on her stomach with her head turned to the side.

     After a physical examination, doctors discovered L.L.’s skull
was fractured in at least six places. On one side of the infant’s
head, a small piece of bone had broken off from the larger part of
her skull. A nurse compared the x-ray of L.L.’s skull to a “broken
egg.” Blood and fluid filled the cavity between L.L.’s brain and her
skull, causing her head to swell and appear visibly larger than
normal. L.L. also had intraretinal hemorrhaging in her right eye.

     Due to the severity of the infant’s injuries, a Child Protective
Investigator was called to the hospital. Upon entering the hospital
room where L.L. was being treated, the investigator heard her
making what he described as “the worst noise” he had ever heard.
He testified that the sound was so distressing that he had to leave
the room.

     L.L.’s pediatrician suspected the infant had been physically
abused. He reported that he had seen L.L. on October 24, twenty-
three days before her admission to the emergency room. L.L.’s
mother, April Zimmerman, had brought the infant into his office
exhibiting symptoms of dehydration.        The pediatrician and
attending nurse attested that during that office visit, L.L. had no
visible signs of injury, and no abnormal behavior was reported or
observed.

    When interviewed by the police, neither Lanier nor
Zimmerman could explain L.L.’s injuries. Both parents reported
that L.L. had fallen off their bed between two and half and three
weeks before they brought her to the emergency room. Their
estimated timeframe would have put L.L.’s alleged fall on or after
October 26, two days after L.L.’s October 24 doctor’s visit, and
twenty-one days before she was admitted to the hospital on
November 16.

     Lanier was unemployed during the relevant time period and
testified that he was responsible for taking care of L.L. while
Zimmerman worked up to four overnight shifts per week. As the
parent primarily responsible for L.L.’s care, Lanier bathed, fed,
and changed L.L. But he testified that he never saw bruising on

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the infant’s head, above her ear, down her back, or on her buttocks.
At the same time, Lanier admitted that he noticed L.L. could not
support her head and keep it upright, and he described his infant
daughter’s neck as feeling “loose.”

     Lanier also admitted that he never sought medical attention
for L.L.’s injuries. He claimed that he was under the impression
that Zimmerman had taken L.L. to the doctor to be evaluated on
November 7. He asserted Zimmerman returned home and
reported back that L.L. was fine. Zimmerman admitted that she
had lied to Lanier about taking L.L. to a follow up visit to the
doctor on November 7. But between November 7 and November
16, Lanier knew that L.L. received no medical care. During those
nine days, on November 11, L.L.’s grandmother observed that the
infant’s condition was not improving and urged Lanier and
Zimmerman to take their daughter to the doctor. But both parents
ignored the grandmother’s pleas, and L.L. received no medical
attention.

     The next time a doctor saw L.L. on November 16, she had six
skull fractures, a swollen head, a limp neck, and a bleeding brain.
Three surgeries were required to drain the fluid and relieve the
pressure from L.L.’s brain. A ventricular peritoneal shunt was
placed inside the infant’s head to help her reabsorb her spinal
fluid. The neurosurgeon who performed the surgeries testified
that there was a mixture of old and new blood in L.L.’s brain, which
indicated the infant had suffered at least two independent injuries
separated in time. This testimony was consistent with other
testimony that L.L.’s injuries could not have been inflicted from a
single fall or a single blow to the head. The neurosurgeon opined
that the presence of new blood indicated L.L. was injured as
recently as “a few days” before her hospital admittance. The
presence of old blood was consistent with a separate injury
inflicted up to “a few weeks” before. The radiologist confirmed that
based on the density of the blood reflected on the infant’s CT scan,
some of the blood in L.L.’s brain was more than seven days old.
The fluid and swelling caused L.L.’s head to grow to a size well
above the ninety-ninth percentile for her weight and age. The
neurosurgeon testified that it would have taken at least a few
weeks for the swelling to have reached the point that it did. The


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neurosurgeon opined that L.L. would have died without medical
intervention.

     Lanier and Zimmerman were charged with child neglect. ∗ At
Lanier’s trial, Lanier and Zimmerman maintained that L.L. fell off
the bed. Zimmerman’s testimony revealed that from the time the
infant allegedly fell from the bed until approximately three weeks
later, L.L. laid in bed “getting worse and worse.” Zimmerman
admitted that the infant would scream “bloody murder” whenever
either parent tried to move her.

    At the close of the State’s evidence, Lanier moved for a
judgment of acquittal. He argued there was insufficient evidence
to prove that his failure to seek medical attention for L.L.
amounted to culpable negligence. The court denied the motion.
Lanier was found guilty of child neglect and sentenced to fifteen
years’ imprisonment.

                              Analysis

     We review a trial court’s ruling on a motion for judgment of
acquittal de novo. Jones v. State, 790 So. 2d 1194, 1197 (Fla. 1st
DCA 2001). Viewing the evidence and all reasonable inferences in
the light most favorable to the State, we must determine whether
competent, substantial evidence supports the verdict. Id.

    Lanier was charged with child neglect in violation of section
827.03(2)(b), Florida Statutes (2016). “Neglect of a child” is defined
as:

        A caregiver’s failure or omission to provide a child
        with the care, supervision, and services necessary
        to maintain the child’s physical and mental health,
        including . . . medical services that a prudent
        person would consider essential for the well-being
        of the child; . . .

    ∗
     Lanier was originally charged with aggravated child abuse
and child neglect, but the State dropped the aggravated child
abuse charge before trial.

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       ....

       Except as otherwise provided in this section,
       neglect of a child may be based on repeated conduct
       or on a single incident or omission that results in,
       or could reasonably be expected to result in, serious
       physical or mental injury, or a substantial risk of
       death, to a child.

§ 827.03(1)(e), Fla. Stat. (2016). Subsection (2)(b) provides that
“[a] person who willfully or by culpable negligence neglects a child
and in so doing causes great bodily harm, permanent disability, or
permanent disfigurement to the child commits a felony of the
second degree.”

     “[C]ulpable negligence [means] more than a failure to use
ordinary care. . . . [I]t must be gross and flagrant [and] committed
with an utter disregard for the safety of others.” Burns v. State,
132 So. 3d 1238, 1240 (Fla. 1st DCA 2014). It is “consciously doing
an act or following a course of conduct that the defendant must
have known, or reasonably should have known, was likely to cause
death or great bodily harm.” Kish v. State, 145 So. 3d 225, 228
(Fla. 1st DCA 2014) (quoting Fla. Std. Jury Instr. (Crim.) 16.6).
We have explained that in child neglect cases, a caregiver’s “degree
of care, neglect, indifference, or callous disregard is measured
against societal norms and expectations under the circumstances.”
Ramos v. State, 89 So. 3d 1119, 1120 (Fla. 1st DCA 2012).
Therefore, the facts of each case are “critical” in determining
whether the totality of circumstances supports a finding of
culpable negligence. Kish, 145 So. 3d at 228 (citing Ibeagwa v.
State, 141 So. 3d 246 (Fla. 1st DCA 2014)).

     Lanier argues that while he may have been negligent in
failing to seek medical attention for L.L. sooner, the State failed to
demonstrate that his inaction amounted to culpable negligence.
He contends there was no evidence he knew or should have known
that L.L.’s skull was fractured, and that it was reasonable for him
to rely on Zimmerman’s assertions that she had taken L.L. to the
doctor’s office on November 7 and that the doctor found that L.L.
was fine. We disagree. Based on the facts and circumstances of
this case, there was sufficient evidence to establish a jury question

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regarding whether Lanier was culpably negligent. See Ramos, 89
So. 3d at 1121.

      The length of time between L.L. sustaining multiple injuries
and her receiving medical attention was anywhere between seven
days and three weeks. L.L.’s symptoms of trauma, her persistent
and worsening condition, and need for immediate medical
attention would have been obvious to any reasonable person. See,
e.g., Moore v. State, 790 So. 2d 489, 492 (Fla. 5th DCA 2001)
(affirming conviction for child neglect where father allowed infant
to fall and then failed for two days to seek medical advice despite
infant’s noticeable symptoms and abnormal behavior). Several
witnesses, including Lanier, testified that for at least three weeks
before the infant was admitted to the emergency room, L.L. cried
inconsolably when picked up and could not hold her head up on her
own. Lanier stated that L.L.’s neck felt “loose.” The evidence
showed that L.L.’s head was visibly swollen and that her body was
covered in bruises. L.L. was a five-month-old infant—she was not
walking or even crawling. The medical testimony established that
a five-month-old could not injure herself to such an extent.

     Lanier counters that there was no evidence that he knew or
should have known that L.L. had skull fractures. But a finding of
culpable negligence in a child neglect case does not require proof
that the defendant knew the specific nature of the child’s injuries.
Rather, it requires a showing that the defendant either knew or
should have known that the extent of the child’s injuries was such
that the failure to seek medical attention amounted to a willful
failure to provide for the child’s well-being. Compare Moore, 790
So. 2d at 492 (finding sufficient evidence of culpable negligence
where child suffered head injury in father’s care and child’s
symptoms over the next few days were such that father should
have known the injury required medical attention) with Poczatek
v. State, 213 So. 3d 1065 (Fla. 2d DCA 2017) (finding insufficient
evidence of culpable negligence despite caretaker’s forty-five
minute delay in seeking medical attention for child where child’s
injuries were not immediately symptomatic).

    Here, there was direct and circumstantial evidence that
Lanier knew or should have known the extent of L.L.’s injuries.
Both Lanier and Zimmerman testified that Lanier voiced concern

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about their infant daughter’s condition and repeatedly asked
Zimmerman if she had taken L.L. to the doctor. Even though
Lanier was the parent primarily responsible for changing, feeding,
and bathing the infant, he claimed he did not see any bruising on
L.L.’s body. But the bruising covering infant’s head, back, and
buttocks was easily visible to the physicians in the emergency
room and in the photographs from that day that were admitted
into evidence and shown to the jury. Assuming Lanier did not
notice the bruising, he admitted L.L.’s neck felt “loose” as far back
as three weeks before she was finally taken to the emergency room.
He knew for three weeks that L.L. could not hold her head up on
her own, that she cried out in pain when she was picked up, and
that the infant’s condition was not improving. Still, he did nothing.
Lanier’s knowledge of the severity of L.L.’s injuries coupled with
his failure to seek medical attention for the infant constituted
sufficient evidence from which the jury could properly infer that
his inaction was “knowing and intentional, or done with such
wanton or careless indifference to [L.L.]’s well-being as to be
practically intentional.” Arnold v. State, 755 So. 2d 796, 799 (Fla.
2d DCA 2000).

     Finally, despite the direct and circumstantial evidence that
Lanier knew L.L. was severely injured and required medical
attention, he argues it was reasonable for him to rely on
Zimmerman’s assertions that she took L.L. to the doctor’s office on
November 7 and reported back that L.L. was fine. But even if
Lanier had relied on Zimmerman’s false report that she had taken
L.L. to the doctor’s office, he took no action during the next nine
days to alleviate his daughter’s suffering despite urging from L.L.’s
grandmother to take the infant to the hospital. The medical
testimony established that the mixture of blood in L.L.’s brain
indicated that she had been injured within “a few days” of her
hospital admittance. When asked specifically about the infant’s
condition between November 7 and November 16, Lanier testified
that L.L. was still crying more than usual and still unable to
support her own head. He admitted that L.L. appeared to be in
pain. He admitted that he noticed something was wrong with her.
And he admitted that he could have found a way to take the infant
to the hospital if he so desired. But he made no such effort. This
inaction in the face of L.L.’s obvious pain and suffering clearly
demonstrated “an entire want of care raising the presumption of

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indifference to consequences” and was sufficient to support a
finding that Lanier’s failure to seek medical attention for his five-
month-old daughter constituted culpable negligence. Ramos, 89
So. 3d at 1121. The trial court’s denial of the motion for judgment
of acquittal is AFFIRMED.

OSTERHAUS and KELSEY, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Andy Thomas, Public Defender, and Kevin Steiger, Assistant
Public Defender, Tallahassee, for Appellant.

Ashley B. Moody, Attorney General, and Amanda D. Stokes,
Assistant Attorney General, Tallahassee, for Appellee.




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