KEVIN PATRICK KELLEY, JR. vs STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: June 20, 2022
• Docket: 21-1569
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

KEVIN PATRICK KELLEY, JR.,

Appellant,

v. Case No. 5D21-1569 LT Case No. 2020-CF-000132-A CORRECTED STATE OF FLORIDA,

Appellee. ________________________________/

Opinion filed June 20, 2022

Appeal from the Circuit Court for Citrus County, Richard A. Howard, Judge.

Matthew J. Metz, Public Defender, and Steven N. Gosney, Assistant Public Defender, Daytona Beach, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Kevin Patrick Kelley, Jr. appeals his conviction for neglect of a child,

arising from an incident where he drunkenly walked a four-year-old child under his supervision down the middle of Apopka Avenue in Inverness,

Florida. We conclude that although Kelley’s behavior was negligent and

irresponsible, it did not constitute “culpable negligence” based on the specific

circumstances of this case. Therefore, we reverse because the trial court

should have granted Kelley’s motion for judgment of acquittal.

Background

At 4:30 p.m. on Saturday, February 1, 2020, an off-duty police officer

turned onto Apopka Avenue in Inverness, which has a 25-mile-per-hour

speed limit. He immediately saw Kelley swaying back and forth as he walked

on the double yellow lines, in the middle of the road, next to a child seated

atop a toy scooter. Both were in the middle of an otherwise empty two-lane

road bordered by bicycle lanes and sidewalks which were available for their

use.

Because there was no one on the road, the off-duty officer initially did

not view the situation as “a big deal.” At first, a hundred yards separated the

officer’s truck from Kelley and the child. While they moved forward fifty

yards, the officer trailed them. In that time, three or four vehicles backed up

behind the officer’s truck. When the officer saw “some traffic” approaching

from the opposite lane, he honked his horn twice. On the second honk,

Kelley helped the child off the street and onto a sidewalk. In doing so, Kelley

2 stumbled and moved slowly. Off the street and on the sidewalk, the pair

continued their walk to the park. The officer followed.

At trial, the officer testified that after spotting Kelley and the child he

called the non-emergency line to request police assistance. According to the

officer, “[i]t was cold, and that’s why I made the attempt to get a law

enforcement officer there . . . .”1 While he waited for law enforcement to

arrive, he observed Kelley fall to the ground at the park while the child played.

The off-duty police officer was not the only person to see Kelley fall

that Saturday afternoon while he walked the child to the park, nor was he the

only person to call for police assistance. In fact, his call was the second call

law enforcement received that day about the child. The first caller reported

that this was “not a real emergency,” but she was calling out of concern for

the “little kid.” The caller described the child’s state of dress and the effects

of Kelley’s intoxication, reporting to police that Kelley was staggering in the

road and, at one point, “fell in the middle of the road.”

When the on-duty police officer arrived at the park, he began

questioning Kelley while the child played. Several witnesses testified that

Kelley was incapable of speaking clearly and coherently and could not even

1 The State concedes that the child’s lack of appropriate clothing does not provide a legal basis for the conviction. Rather, it emphasizes that the child’s state of dress illustrates the extreme nature of Kelley’s intoxication. 3 provide his name to the on-duty officer. At the end of the encounter, the

police arrested Kelley and called the child’s mother to pick up her son from

the park. When the child’s mother returned home with her son, she noticed

that the entire 24-pack of beer she purchased the night before was gone.

After his arrest, the State charged Kelley with neglect of a child. See

§ 827.03(2)(d), Fla. Stat. (2019). Following the State’s case-in-chief, Kelley

moved for a judgment of acquittal. He argued that his behavior was legally

insufficient to support a conviction. The trial judge disagreed, denying the

motion. Later, the jury returned a guilty verdict. Kelley argues the trial court

erred in denying his motion. Specifically, he contends that his behavior did

not constitute “culpable negligence,” a necessary element of the offense of

which he was convicted. We agree.

Standard of Review

Kelley’s motion for judgment of acquittal admits the facts in evidence

and every reasonable inference from the evidence favorable to the State.

See, e.g., Proko v. State, 566 So. 2d 918, 920 (Fla. 5th DCA 1990) (citing

Lynch v. State, 293 So. 2d 44, 45 (Fla. 1974)). Trial courts should not grant

motions for judgment of acquittal unless, when viewed in the light most

favorable to the state, the evidence does not establish a prima facie case of

guilt. See id. (citing Lynch, 293 So. 2d at 45). Accordingly, we review the

4 trial court’s denial of Kelley’s motion de novo, but only to determine whether

the State presented legally sufficient evidence to support the verdict. See

Durousseau v. State, 55 So. 3d 543, 556 (Fla. 2010).

In reviewing the evidence, we accept that “[s]ufficiency is a test of

adequacy. Sufficient evidence is ‘such evidence, in character, weight, or

amount, as will legally justify the [verdict].’” Tibbs v. State, 397 So. 2d 1120,

1123 (Fla. 1981) (citing Black’s Law Dictionary 1285 (5th ed. 1979)). Indeed,

“[l]egal sufficiency alone, as opposed to evidentiary weight, is the appropriate

concern of an appellate tribunal” in this context. Id.

Neglect of a Child

Kelley challenges the legal sufficiency of his conviction for the crime of

neglect of a child. See § 827.03(2)(d), Fla Stat. The Florida Legislature

defines this offense to include “[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, but not limited, to . . .

supervision . . . that a reasonably prudent person would consider essential

for the well-being of the child.” § 827.03(1)(e)1, Fla. Stat. The offense can

encompass repetitive conduct or, as alleged here, “on a single incident or

omission that . . . could reasonably be expected to result in, serious physical

. . . injury or a substantial risk of death, to a child.” § 827.03(1), Fla. Stat.

5 Kelley concedes that sufficient evidence supports his failure to supervise the

child and that he was the child’s caregiver during the incident. But he claims

the State did not establish culpable negligence.

The crime of neglect of a child occurs when a person neglects a child

“willfully or by culpable negligence,” even if no bodily harm results. §

827.03(2)(d), Fla. Stat. “Culpable negligence” is not defined in the Florida

Statutes, but it has been defined in Florida case law for more than eighty

years. In 1939, the Florida Supreme Court “committed [itself] to the rule that

the degree of negligence required to sustain imprisonment should be at least

as high as that required for the imposition of punitive damages in a civil

action.” Russ v. State, 191 So. 296, 298 (Fla. 1939). Therefore, to establish

culpable negligence, the State must adduce evidence showing a defendant

acted with “a gross and flagrant character, evincing reckless disregard for

human life” or an “entire want of care which would raise the presumption of

indifference to consequences; or such wantonness or recklessness or

grossly careless disregard of the safety and welfare of the public, or that

reckless indifference to the rights of others, which is equivalent to an

intentional violation of them.” Id.; see also Aledda v. State, 47 Fla. L. Weekly

D425, D426 (Fla. 3d DCA Feb. 16, 2022) (“[T]he degree of negligence

required to sustain a conviction for the crime of culpable negligence is

6 significantly higher than that necessary to sustain a recovery of

compensatory damages in a tort case.”).

Since Russ, Florida courts have continued to hold that only the most

egregious conduct satisfies the culpable negligence standard. See, e.g.,

Ristau v. State, 201 So. 3d 1254, 1257 (Fla. 2d DCA 2016) (holding that

culpable negligence is reserved for “only the most egregious conduct, done

either willfully or with criminal culpability” (quoting Arnold v. State, 755 So.

2d 796, 798 (Fla. 2d DCA 2000))); Jones v. State, 912 So. 2d 686, 688 (Fla.

1st DCA 2005) (holding that culpable negligence is “that degree of

negligence that is so egregious, and flagrant, it would support a charge of

manslaughter in case of death”); Logan v. State, 592 So. 2d 295, 299 (Fla.

5th DCA 1991) (“Culpable negligence depends on the extreme character of

the conduct itself, not its mere illegality.”). Accordingly, as distinguished from

simple negligence, culpable negligence is gross and flagrant; it “must be

committed with an utter disregard for the safety of others.” Ristau, 201 So.

3d at 1257 (emphasis added) (citing Fla. Std. Jury Instr. (Crim.) 16.5); see

also Burns v. State, 132 So. 3d 1238, 1240 (Fla. 1st DCA 2014) (stating that

standard jury instruction for child neglect distinguishes culpable negligence

from mere failure to use ordinary care and further case law defines it as “so

7 egregious, and flagrant, it would support a charge of manslaughter in case

of death”).

Analysis

We conclude the State did not present legally sufficient evidence to

sustain the charge in this case because it did not establish that Kelley acted

with culpable negligence. Rather, it submitted evidence illustrating simple

negligence or an incomplete regard for the child’s care. This does not satisfy

the State’s burden. See Kish v. State, 145 So. 3d 225, 228 (Fla. 1st DCA

2014) (reversing conviction for child neglect where appellant’s “incomplete

regard for her children’s care in this instance did not manifest an ‘utter

disregard’ for their safety”).

To put it mildly, Kelley’s actions as the child’s caregiver left much to be

desired. But he did not show an utter disregard for the child’s safety.

Although Kelley was severely intoxicated, he never left the child’s side. And

when the off-duty officer honked a second time, Kelley helped the child onto

the sidewalk. Thus, his actions did not indicate an entire lack of care. See

State v. Sammons, 889 So. 2d 857, 858–60 (Fla. 4th DCA 2004) (finding

evidence insufficient to support conviction for criminal child neglect when

mother was drinking at bar and left child in car with windows down because

she “[kept] an eye on her child rather than ignoring her”). Kelley’s mere

8 physical presence guaranteed the child was not pushing his scooter down a

road unattended. His presence also increased the child’s visual profile and

acted as a possible barrier between the child and a vehicle.

We acknowledge that the off-duty officer described the road as a “main

thoroughfare.” The State contends that given this description, a jury should

have resolved whether Kelley’s actions rose to the level of culpable

negligence. But this contention elevates the off-duty officer’s description of

the road above the actual evidence presented about it on the day of the

incident. See Aledda, 47 Fla. L. Weekly at D426 (“[T]he defendant’s conduct

is not viewed in a vacuum, but rather, through the prism of ‘the circumstances

surrounding the particular case.’” (quoting Russ, 191 So. at 298)); Kish, 145

So. 3d at 228 (“[T]he facts are critical . . . .”).

The State’s witnesses testified that with the exception of weekday rush

hour, the road was lightly trafficked. On the Saturday afternoon in question,

the off-duty police officer was initially the only car on the road with Kelley and

the child. He had no trouble seeing either of them immediately and from over

one hundred yards away. Throughout the course of the entire incident, three

cars backed up behind the officer, and no car passed in the opposite lane.

The road’s speed limit was 25 miles per hour, but no evidence or inference

9 showed a car ever going that quickly. Kelley was able to exit the road directly

to a place of safety.

We do not foreclose the possibility that a caregiver could show “utter

disregard” for a child’s safety simply by accompanying them down the middle

of a dangerous road. Cf. State v. Wynne, 794 So. 2d 642 (Fla. 2d DCA 2001)

(finding utter disregard when a caregiver abandoned his six-year-old child on

the I-275 exit ramp on the drive home from school). This, however, is not

Kelley’s situation. And Kelley’s conduct, while negligent and deeply

irresponsible, did not rise to the egregious level of conduct necessary to

show culpable negligence. For this reason, we reverse and remand,

directing the trial court to vacate the conviction and dismiss the case.

REVERSED and REMANDED, with directions.

TRAVER and NARDELLA, JJ., concur. WALLIS, J., dissents, with opinion.

10 CASE NO. 21-1569 LT CASE NO. 2020-CF-000132-A

WALLIS, J., dissents, with opinion.

When determining whether the trial court erred in denying Kelley's

motion for judgment of acquittal, we "must consider the evidence and all

reasonable inferences from the evidence in a light most favorable to the

State." McDuffie v. State, 970 So. 2d 312, 332 (Fla. 2007). After reviewing

the record in this case and with this standard in mind, I believe that the State

presented sufficient evidence showing that Kelley acted with culpable

negligence and that the trial court properly denied the motion for judgment

of acquittal. Therefore, I dissent.

I believe it is clear that Kelley's level of intoxication, which included

falling in the paved roadway and being unable to speak clearly and

coherently while answering simple questions, had a profound effect on his

ability to supervise the child. 2 Although the majority concludes that Kelley

never left the child's side and ultimately succeeded in exiting the road directly

to a place of safety, it is reasonable to infer, as we must, that Kelley was

unable to protect the child from potential oncoming traffic. It is likewise

2 By Kelley's own admission to officers, he had "been drinking all day." There was also evidence suggesting that Kelley may have consumed a twenty-four pack of beer before leaving his house that day with the child. 11 reasonable to infer that Kelley's ability to supervise the child was significantly

undermined by his extreme level of intoxication.

Furthermore, I cannot ignore the obvious fact that Kelley chose to walk

with the child down the double yellow lines of North Apopka Avenue despite

the existence of sidewalks on both sides of the roadway and despite the

presence of multiple cars behind them and traffic approaching from the

opposite direction. Taking the testimony in the light most favorable to the

State, it is reasonable to infer that if not for the off-duty officer's actions a car

could have hit the child. And, regardless of the speed of an oncoming car, it

is reasonable to infer that this would result in significant harm or death to the

child.

Although the majority concludes that these facts show mere

negligence and deeply irresponsible behavior, I believe otherwise. The

physical behaviors that Kelley exhibited show that he intentionally

compromised his ability to function normally and exposed the child to the

possibility of great bodily harm. I also believe the evidence, when taken in

the light most favorable to the State, was sufficient to show that Kelley acted

with culpable negligence—a flagrant disregard for the child's safety—

because he allowed the child to ride down the middle of the road without

adequate adult supervision. Therefore, in my view, the trial court correctly

12 concluded that the question of whether Kelley acted with culpable negligence

was one for the jury. See Davis v. State, 703 So. 2d 1055, 1059–60 (Fla.

1997) (explaining that once the State provides competent, substantial

evidence of each element of the crime, it is for the jury to consider the

evidence and the credibility of the witnesses); Lanier v. State, 264 So. 3d

402, 406 (Fla. 1st DCA 2019) ("Based on the facts and circumstances of this

case, there was sufficient evidence to establish a jury question regarding

whether Lanier was culpably negligent."). I would affirm Kelley's conviction.