Child Abuse, Neglect or Intent?: Burns v. State

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Too many individuals intentionally abuse and hurt children today, and naturally, they richly deserve serious penalties for these unspeakable and inexcusable crimes; but just as often, innocent parents are swept up in this national fervor to punish the guilty, when many of these parents are simply “neglectful,” and NOT intentionally committing crimes against children. For these less sinister, but simply irresponsible or neglectful parents, we fight to keep them from being criminally-indicted and sent to prison. Here is some law that will help you or your loved ones, in the unfortunate event of a wrongful criminal prosecution:

 We would like to call your attention to the recent (2/28/14) First District case of Burns v. State, _So.3d _; 39 Fla. L. Weekly D469 (Fla. 1st DCA 2014) in which a conviction for child neglect without causing great bodily harm was reversed for lack of even a prima facie case presented by the State.  Many of the concepts we cited and quoted in —– are reiterated by the Court in Burns, making the non-criminal nature of (YOUR!) actions even clearer.


Burns was originally charged with one count of aggravated child abuse and one count of child neglect causing great bodily harm, section 827.03(2), (3)(b), regarding a fifteen month old baby, one of five children the mother left with Burns to babysit. While she was out, the mother received a phone call from her 10 year old saying the baby/victim fell out of her crib.  NOTE:  The mother was out trying to re-connect the home phone, and the 10 yr. old had to call from a neighbor’s home, at Burns’ request:

“The mother returned home and found the child “unresponsive,” with her head slumped down, and her breathing was “off.” The mother called 911, and the child was taken to the hospital. A police officer responded to the hospital as a matter of procedure, and the first responders indicated that it looked as if it had been an accident. A.B.’s doctor then came and told the officer, “we’re good, you can leave.” However, doctors later performed more tests and discovered that A.B. had extensive internal injuries, including bleeding on the brain and behind the eyes and liver damage.

A nurse practitioner testified these internal injuries were caused by abuse in the form of violent shaking and blunt force trauma, and could not have been   caused by A.B. falling from her crib. She also testified these injuries would not have been apparent to the first responders based only on a visual inspection of A.B. However, she stated these internal injuries could cause symptoms including irritability, changes in  behavior, loss of consciousness, or need for lifesaving measures such as CPR. She stated the abuse that caused A.B.’s injuries occurred sometime during the twenty-four hours prior to A.B.’s admittance to the hospital.”

Burns testified that he asked the ten-year-old boy to call both 911 and the mother. He testified the mother arrived within 10 minutes of the call, and because the paramedics had not yet arrived, she also called 911. He denied abusing the child, and he also presented evidence that implicated the mother in the abuse.

The State’s theory of the case was that Burns committed aggravated child abuse by causing A.B.’s internal injuries, and he committed child neglect by instructing the 10-year-old boy to call the mother rather than 911. The trial court denied the motions for judgment of acquittal, and the jury acquitted appellant of the count involving aggravated child abuse and, as to the other count, convicted him of the lesser-included offense of child neglect not causing great bodily harm.

As we did in our earlier letter, the Court in Burns set forthSection 827.03 defining “[n]eglect of a child” as well as the “culpable negligence” section of the Child neglect statute, section 827.03(3)(c), and, to help define terms the Court quotes the pertinent jury instruction — as we did.

The Court went on to echo our position regarding (put your own name in here) and (YOUR!) lack of criminal activity:

By its language, the legislature has demanded that the State prove more than mere negligence to criminalize child neglect. And the legislature has required that the defendant’s acts or omissions create a “reasonably expected” potential for the child to suffer, at a minimum, serious injury. In establishing these elements for the crime of third degree felony child neglect, the legislature has responded to a series of decisions from the Florida Supreme Court declaring unconstitutional prior versions of this statute. The primary infirmity of the 1975 version of the statute was that it criminalized simple negligence and punished those with no intent to do wrong. See § 827.05, Fla. Stat. (1975); State v. Winters,   346 So. 2d 991          (Fla. 1977). The 1991 version of section 827.05 had added language addressing the financial ability of the caregiver and the degree of impairment or risk to the child, but those elements did not overcome the lack of scienter.  See State v. Mincey, 672 So. 2d 524 (Fla. 1996)State v. Ayers, 665    So. 2d          296 (Fla. 2d DCA 1995).   The latest version of the statute, under which Mr. Arnold was convicted, has attempted to remedy that shortcoming by adding    the “willfully or by culpable negligence” language and has further attempted to define what actions or omissions constitute “neglect.”  Id. at 797-98.         Arnold explained this legislative history “emphasize[s] how difficult it has been for the legislature to define this crime.” Id. at 798. The resulting precedent has established that “only the most egregious conduct, done either willfully or with criminal culpability, should be criminalized.” Id. (emphasis added).


The State’s theory of prosecution was Burns committed child neglect by asking the ten-year-old boy to call the mother rather than 911 when he realized the child was in respiratory distress:


” Further, the State failed to provide evidence that Burns’ choice to call the     mother rather than 911 was “gross and flagrant” negligence that was “committed with an utter disregard for the safety of others” such that he  “must have known, or reasonably should have known, was likely to cause death or great bodily harm,” as required to prove culpable negligence. Fla.    Std. Jury Instr. (Crim.) 16.5. … While appellant’s choice to seek assistance    by calling the child’s mother rather than 911 may have been a failure to use ordinary care, it did not rise to the level of willful or culpable negligence under the facts as presented in this case. Therefore, we reverse.”


About the Author:

John M. Castellano is a Fort Lauderdale criminal defense attorney who has helped thousands of clients throughout Florida. While building a reputation as a premiere Fort Lauderdale DUI attorney, Mr. Castellano has worked tirelessly to develop strategies to best protect the rights of those arrested for DUI in Broward, Dade and West Palm. However, Mr. Castellano is not just a drunk driving lawyer. He has been a successful domestic violence attorney, drug trafficking attorney, as well as all other Felony and Misdemeanor cases.

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