Nozza v. StateNozza v. State
This is an appeal from a judgment and sentence of 16 years for manslaughter and contributing to the delinquency of a child.
Perhaps appellant‘s main contention in this аppeal is that the cause of death, malnutrition of the child, was never proximately linked with the defendant. Appellant maintains that the child‘s mother may not be charged with culpable negligence because the evidence did not establish that the malnutrition resulted from the child being starved to death.
It is true that testimony by Dr. Joseph Davis, Dade County Medical Examiner, revealed that he could nоt determine the exact cause of the malnutrition. However, the doctor also stated that the child‘s malnutrition “in this particular instance ... would mean that the child was not gaining enough calories аnd enough balanced diet in order to live.” Further testimony revealed the following facts: Dean Nozza, at death weighed only 19 pounds; the child since approximately Christmas of 1971 was observed to bеcome thinner and thinner; the child was fed, but not persistently by his mother; the child‘s diet consisted of chocolate milk with a mixture of eggs and crushed vitamins in the milk; while the mother told her sister-in-law that she was upset because the child was not eating well, she did not seek medical attention, stating that her husband would not permit her to take the child to the doctor. From the evidence, the jury undoubtedly reached a conclusion that appellant‘s neglect of her parental duties had resulted in the malnutrition causing Dean Nozza‘s death. We believe that the facts presented at trial created a jury issuе as to whether or not appellant was guilty beyond a reasonable doubt of culpable negligence. See Gian-Cursio v. State, Fla.App. 1965, 180 So.2d 396.
Appellant has also challenged the trial court‘s failure to grant a mistrial because evidence was admitted regarding hospitalization of another child of appellant three days after Dean Nozza‘s funeral. In our view, this evidence was relevant to the quеstion of appellant‘s negligence in failing to properly care for Dean Nozza. Moreover, appellant did not move for a mistrial during the time this testimony was offered, and we do not think this evidence was sufficiently prejudicial to warrant a mistrial. See Ricks v. State, Fla.App. 1971, 242 So.2d 763.
We also find little merit in appellant‘s contention that photographs depicting the “filthy condition” of appellant‘s home should have been suppressed by the trial court. The police officers testified that they went to appellant‘s home to learn whether Mrs. Nozza‘s five other children needed medical attеntion.1 When he approached the house, an officer testified that he smelled a foul odor emanating from the house. We do not think the officer‘s observations and subsequent entry into apрellant‘s home was unreasonable. See State v. Parnell, Fla. 1969, 221 So.2d 129; State v. Miller, Fla.App. 1972, 267 So.2d 352.
Appellant next argues that the trial court should have granted her jury instructions respecting the lack of a legal duty of a parent to take a child to a doctor, and as support for this proposition cites Bradley v. State, Fla. 1920, 79 Fla. 651, 84 So. 677; Neveils v. State, Fla.App. 1962, 145 So.2d 883; and Theus v. State, Fla.App. 1972, 265 So.2d 407.
Appellant‘s next point is that she was denied equal protection of the law and discriminated against as the mother of the child. Appellant points out that following her trial, a directed verdict of acquittal was entered by the trial court for her husband, and a jury acquitted him of count two. Therefore, she concludes a differеnt standard was applied to her, based on her stereotyped role as mother of the child. This is without substantial merit. Both husband and wife were tried separately in jury trials. The fact that one jury convicted and another acquitted does not result in a conclusion that appellant has been denied equal protection of law.
There is also no substantial merit to appellant‘s argument thаt she was denied a fair trial because count one and two of the information were tried together. Joinder of separate offenses is permitted by
Finally, appellant argues the sentence imposed, being the maximum possible sentence, was excessive. We think the sentence being within the limits prescribed by statute was within the province of the trial court, and may not be challenged herein as excessive. See Cole v. State, Fla.App. 1972, 262 So.2d 902.
Therefore, for the reasons stated and upon the authorities cited, the judgment and sentence appealed is affirmed.
Affirmed.
HENDRY, Judge (dissenting in part; concurring in part).
I dissent in part because I do not think the state has sufficiently proven that appellant was guilty of manslaughter beyond and to the exclusion of every reasonable doubt.
It is axiomatic that in a criminal case when the state relies upon circumstantial evidence, the proof must be more than consistent with the defendant‘s guilt; it must also be inconsistent with any reasonable hypothesis of innocence. Lyons v. State, Fla. 1950, 47 So.2d 541; Davis v. State, Fla. 1956, 90 So.2d 629; Driggers v. State, Fla. 1964, 164 So.2d 200; Gilbert v. State, Fla.App. 1972, 270 So.2d 750.
Measured by this standard, I do not believe that the state has established a prima facie case of manslaughter against the appellant beсause a causal connection between appellant‘s alleged criminal conduct and the death of her child, Dean Nozza, has not been satisfactorily demonstrated. Therefоre, I think our holding conflicts with Theus v. State, Fla.App. 1972, 265 So.2d 407.
As the majority points out, the defendant in the Theus case did take her child to see two doctors, however, she ceased doing so approximately a month prior to the child‘s death because she felt they were doing nothing for it. In the cause sub judice, appellant allegedly did not take her child to a doctor. However, I cannot see that this factor аlone distinguishes this case from Theus.
A nurse‘s aide at Variety Children‘s Hospital then testified that on the night appellant‘s husband brought his son to the hospital, Mr. Nozza stated that he was ashamed and embarrassed about the condition of his son and that his wife had “begged” him to let her take the child to a doctor. Asked if she were positive Mr. Nozza used the word “begged“, the witness replied that she was positive.
Admittedly, Deаn Nozza was seen to become thinner after Christmas of 1971 until he died on November 13, 1972. However, based particularly on Dr. Davis’ testimony, I fail to see that the state proved that the culpable negligеnce of appellant caused Dean Nozza‘s death instead of an alternative hypothesis that the child‘s death due to malnutrition may have resulted from loss of appetite becаuse of an organic heart disease or possibly mental retardation. As the First District Court of Appeal found in Theus, the evidence in this case does not point “directly and unerringly to the appellant‘s guilt beyond a reasonable doubt.”
Therefore, I would reverse the judgment and sentence of fifteen years imprisonment for manslaughter. I would affirm the conviction against the appellant and the sentence of one year in jail for contributing to the delinquency of her minor children.