        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                     KAREEM ANDRE WILLIAMS,
                            Appellant,

                                   v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D16-570

                           [August 22, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Glenn Kelley, Judge; L.T. Case No. 50-2013-CF-001250-
AXXX-MB.

  Carey Haughwout, Public Defender, and Narine N. Austin, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J.
Concepcion, Assistant Attorney General, West Palm Beach, for appellee.

CIKLIN, J.

   Upon his return home from an outing, an elderly man was struck in
the head and severely beaten by a burglar. The man was released from
the hospital after staff determined his brain hemorrhage had resolved. In
fact, it had not, and the man collapsed in his home and died. The
appellant, Kareem Andre Williams (“the defendant”), argues, among other
things, that his first-degree murder conviction should be reversed
because the state did not prove that his actions caused the victim’s
death. We affirm on all issues raised, but we write to address the
defendant’s causation argument and a related argument regarding a
requested special jury instruction.

   We begin with a factual overview. The victim in this case was an
eighty-year-old man who had spent the day shopping at the mall with his
adult daughter. Upon arriving home, the victim pulled his car into the
garage, and he and his daughter exited the car. The defendant appeared
out of nowhere and attacked the victim, striking him on the head and
causing him to collapse to the concrete garage floor. The defendant then
sat on top of the victim and continued beating him before fleeing the
scene.

   The victim was transported to the hospital, where he was given a CT
scan. Medical staff noted that there was no bleeding on the brain, and
the victim was discharged. Following the victim’s release from the
hospital, his CT scan was once again reviewed and this time a doctor
noted there was a “tiny” amount of bleeding. The victim was readmitted
into the hospital the next day. More CT scans were performed, and they
were compared to the first scan. A doctor’s notes reflected that the
bleeding in the brain had completely resolved, meaning it was “no longer
there.” The victim was discharged the following day. That evening, the
victim died in his home after collapsing onto his bed.

   At trial, the state offered the testimony of two medical examiners: Dr.
Reinhard Motte, a medical examiner for Palm Beach County, and Dr.
Mark Shuman, a medical examiner for Miami-Dade County. A former
colleague of Dr. Motte’s had conducted the autopsy of the victim, but he
was no longer employed with the office. Dr. Motte had reviewed his
former colleague’s autopsy findings, and he summarized them: There
was “a large amount of bleeding on the surface of the brain.” The area of
the blood clot, or subdural hematoma, measured about three by two
inches. Subdural hematomas are caused by “many things,” but most of
the time, they are caused by trauma. The subdural hematoma occurred
on the front right side of the victim’s head.

   Dr. Motte opined that “[b]lunt force head trauma” and “bleeding in the
brain” were the cause of death, and the manner of death was homicide.
He had considered the treatment notes relating to the victim’s admission
and release from the hospital, and his opinion of the cause of death
remained the same. Dr. Motte acknowledged that after the victim was
released the second time from the hospital, “something” could have
happened to him, but he also could have suffered from a “rebleed.” He
explained that a “rebleed” could have resulted from the initial injury to
the victim’s head, and that it can occur even where the bleeding was
completely resolved. He concluded that the “last bleed, that very big
bleed” was what “killed him at the end.” Dr. Motte testified that for
purposes of the autopsy finding, the medical examiner needs only a
preponderance of the evidence to come to a conclusion as to the cause
and manner of death, and that standard had been met.

   Dr. Shuman also reviewed the victim’s treatment and autopsy
records. He opined that the hospital’s reading of the first CT scan was
“wrong.” Based on his review of the CT scan, it was clear to Dr. Shuman

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that the victim had suffered a subdural hematoma. Upon comparing the
three scans that were done, he observed that “the blood was still there
and was getting worse over the course of the three CT scans.” Further,
“on the third CT scan, there was some blood in an area that had not seen
blood before.” The three scans showed the “evolution” of the bleeding,
“that it’s actually continuing to bleed.” He opined that the presence of
new blood was consistent with the bleeding “continuing . . . and . . .
accumulating.” Dr. Shuman explained that “if you rupture some very
large [blood] vessels . . . that go between the brain and the dura matter,”
the bleeding is probably “a lot faster,” “[b]ut if you rupture some of the
smaller ones, it’s probably going to bleed slower.” Further, a rupture
could clot and unclot. Although a neurologist at the hospital believed the
subdural hematoma “was gone,” based on the second CT scan, Dr.
Shuman disagreed. From his reading, “the bleeding was continuing.”
Additionally, the volume of blood he saw in the autopsy photographs was
consistent with “the slow gradual bleed” he had observed in the three CT
scans.

    Dr. Shuman concluded that the cause of death was blunt head injury
“from the assault” by the defendant and that the manner of death was
homicide. He opined that “it would be hard to say that the assault had
nothing to do with his death,” even if the victim subsequently fell, as the
continuing bleeding could have caused the victim to have “neurological
issues,” which could have led him to fall. But he acknowledged that if
the hospital had not discharged the victim and continued in-hospital
monitoring and treatment, “[t]here’s a good chance” he would not have
died.

   Neither Dr. Motte nor Dr. Shuman could testify that there was any
indication of a cause of death unrelated to the battery perpetrated by the
defendant.

   At the close of the state’s case, the defendant moved for a judgment of
acquittal on the murder count, arguing that the hospital’s gross
negligence was a “superseding and intervening” cause and thus the
actual cause of the victim’s death. The trial court denied the motion, and
also denied the defendant’s renewed motion at the close of all evidence.

                             Cause of Death

   On appeal, the defendant argues that the state did not prove that his
actions, as opposed to some other occurrence, caused the victim’s death.
He also argues that the hospital’s gross negligence relieves him of
criminal liability for the victim’s death.     We disagree with both

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assertions.

   Our standard of review is de novo. See Pagan v. State, 830 So. 2d
792, 803 (Fla. 2002). “A defendant, in moving for a judgment of
acquittal, admits not only the facts stated in the evidence adduced, but
also admits every conclusion favorable to the adverse party that a jury
might fairly and reasonably infer from the evidence.” Lynch v. State, 293
So. 2d 44, 45 (Fla. 1974). The element at issue here is causation.

      In a criminal case expert medical opinion as to cause of
      death does not need to be stated with reasonable medical
      certainty. Such testimony is competent if the expert can
      show that, in his opinion, the occurrence could cause death
      or that the occurrence might have or probably did cause
      death.

Delap v. State, 440 So. 2d 1242, 1253 (Fla. 1983). “Even though the
state may be required to prove the cause of death beyond a reasonable
doubt, this does not mean that every link in the chain of evidence must
be so proved.” Id.

   The Florida Supreme Court has elaborated on the effect of medical
treatment on causation in a criminal case:

      A defendant cannot escape the penalties for an act which in
      point of fact produces death, which death might possibly
      have been averted by some possible mode of treatment. The
      true doctrine is that, where the wou[n]d is in itself dangerous
      to life, mere erroneous treatment of it or of the wounded man
      suffering from it will afford the defendant no protection
      against the charge of unlawful homicide. See, also, Wharton
      on Homicide (3d Ed.) § 35, wherein it is said that the
      subsequent neglect or mismanagement must have been the
      sole cause of death.

Johnson v. State, 59 So. 894, 895 (Fla. 1912) (citation omitted). Our
courts have followed the Johnson rule. See Fecske v. State, 757 So. 2d
548, 549 (Fla. 4th DCA 2000) (“As a general rule, lack of affirmative
medical treatment of the victim, whose initial injury was proximately
caused by the defendant’s actions, does not constitute an intervening
cause relieving the defendant of criminal responsibility for the victim’s
death.”); Rose v. State, 591 So. 2d 195, 199 (Fla. 4th DCA 1991)
(recognizing that the Johnson rule “has been followed consistently”);
Barnes v. State, 528 So. 2d 69, 70 (Fla. 4th DCA 1988) (“The rule in

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Florida has long been that where an assailant inflicts a wound which is
in itself dangerous to life, the supervening lack of optimal medical
attention or affirmative medical malpractice is not an intervening cause
of the victim’s death.” (quoting State v. Smith, 496 So. 2d 195, 196 (Fla.
3d DCA 1986))); Tunsil v. State, 338 So. 2d 874, 875 (Fla. 3d DCA 1976)
(applying Johnson to find that appellant’s actions were the proximate
cause of the victim’s injury, brain damage, and any lack of treatment by
hospital was not an intervening cause relieving appellant of criminal
responsibility for victim’s death).

   Johnson provides that an intervening occurrence does not cut off
causation unless it is the “sole” cause of death. 59 So. at 895. “Sole”
cause has been equated to a superseding or independent intervening act.
For instance, in J.A.C. v. State, 374 So. 2d 606, 607 (Fla. 3d DCA 1979),
a juvenile participating in a drag race was found guilty of vehicular
homicide after his passenger died. The evidence at trial showed that
while attempting to operate the gear shift, the passenger accidentally
grabbed the steering wheel and caused the car to veer out of control,
resulting in the passenger’s death. Id. The appellate court found that
the accident occurred “only because” of the victim’s action, and thus the
wrongful conduct of the juvenile was “superseded by the decedent’s own
independent intervening act.” Id.

    On the other hand, contributing, rather than sole, causes of death do
not extinguish a defendant’s criminal liability for a death. See Weir v.
State, 777 So. 2d 1073, 1076 (Fla. 4th DCA 2001) (affirming denial of
motion for judgment of acquittal where “[v]iewed in the light most
favorable to the state . . . causation was established in this case by the
testimony of Dr. Price, which showed that the single punch to the
victim’s head was the blunt trauma which caused the subarachnoid and
subdural hemorrhage which, in turn, caused the victim’s death,” even if
it could be said that the evidence established that the victim had a prior
head injury making him more susceptible to death from the punch);
Hallman v. State, 371 So. 2d 482, 486 (Fla. 1979) (“[E]ven if the
hospital’s negligence had contributed to the victim’s death, this fact
would not entitle Hallman to a new trial on his conviction.”); Tunsil, 338
So. 2d at 875 (where victim of car crash was taken to the hospital in a
coma and died after a physician failed to give him medication for a
pulmonary infection, court found that “appellant’s actions were the
proximate cause of the victim’s initial injury, i.e., brain damage, and we
find no intervening cause relieving appellant of the criminal
responsibility for the victim’s death”).



                                    5
   Here, there was evidence that the beating the victim suffered at the
hands of the defendant resulted in a subdural hematoma and, based on
Dr. Shuman’s testimony, the bleeding continued and ultimately resulted
in the victim’s death. The record reveals no evidence that the initial
injury was not life threatening and that the hospital’s negligence was the
sole cause of death.

                      Special Jury Instruction

    In a related argument, the defendant challenges the trial court’s
failure to give a special jury instruction on causation. After the parties
and the trial court discussed the issue of an appropriate jury instruction
on causation, the trial court fashioned the following instruction:

      An issue in this case is whether the defendant caused the
      death of [the victim].    The state must prove beyond a
      reasonable doubt that but for the defendant’s conduct the
      death would not have occurred. Lack of affirmative medical
      treatment is not an intervening cause which would relieve a
      defendant from criminal responsibility for a victim’s death
      unless the lack of affirmative medical treatment is the sole
      cause of death.

    Defense counsel objected to the instruction, arguing that it “tells the
jury to ignore the medical malpractice,” which would “undo the entire
trial.” Defense counsel requested the trial court add the following
language to its proposed instruction: “However, notwithstanding the
above, if you find that the medical treatment of [the victim] was grossly
negligen[t], you must find the Defendant not guilty.” The trial court
found that the requested language was inconsistent with Florida law,
and it gave the instruction it had fashioned.

   On appeal, the defendant argues that his requested instruction
should have been given. We disagree. We review this issue for an abuse
of discretion. See Garrido v. State, 97 So. 3d 291, 294 (Fla. 4th DCA
2012). The requested instruction contained a misstatement of Florida
law, which requires the intervening force to be the sole cause of death. If
the jury had been given the requested instruction, it could have found
that the hospital’s treatment or lack thereof was not the sole cause of
death, yet still found the defendant not guilty based on the hospital’s
negligence. The instruction read to the jury was based on the Johnson
rule and fully represented an accurate statement of the law.

   Affirmed.

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GERBER, C.J., and GROSS, J., concur.

                          *        *       *

   Not final until disposition of timely filed motion for rehearing.




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