FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D16-5876
_____________________________
SCOTT THOMAS HICKS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Bay County.
James B. Fensom, Judge.
December 27, 2018
PER CURIAM.
Scott Thomas Hicks appeals his convictions and sentences for
aggravated child abuse, neglect of a child causing great bodily
harm, leaving a child unattended in a motor vehicle causing great
bodily harm, and endangering a child. We affirm three of Hicks’s
convictions but reverse his child-endangerment conviction.
Hicks was arrested after he left a child in his truck for an hour
and a half with the windows up. It was the middle of September in
the Florida Panhandle. By the time police discovered the child, he
was already dehydrated, with an elevated heart rate and cracked,
bloody lips. The child also had other serious injuries: he had an
inch-long laceration on his forehead, bruising all over his body, and
a severely swollen scrotum. There was no food or water in the
truck, but there was a bag of loaded firearms.
At trial, Hicks admitted to leaving the child in the truck but
insisted that the child’s mother—Hicks’s girlfriend at the time—
was responsible for the child’s unrelated injuries. Hicks also
claimed he did not know the extent of the child’s injuries when he
left him in the truck.
The jury rejected Hicks’s defense and convicted him of
aggravated child abuse, neglect of a child causing great bodily
harm, leaving a child unattended causing great bodily harm, and
child endangerment. The court sentenced Hicks to a total of
twenty-five years.
Hicks’s main argument on appeal relates to the sufficiency of
the evidence. The State can prove aggravated child abuse by
showing a defendant committed an aggravated battery on the
child, “willfully tortur[ed]” the child, or abused the child causing
great bodily harm. § 827.03(1)(a), Fla. Stat. (2015). Hicks insists
that the State failed to prove any of this. Our review is de novo.
Pagan v. State,
830 So. 2d 792, 803 (Fla. 2002).
Viewing all of the evidence in a light most favorable to the
State, we conclude that a rational jury could have found all
elements proven beyond a reasonable doubt. See Veney v. State,
217 So. 3d 1189, 1190 (Fla. 1st DCA 2017). Among other things,
the jury heard testimony that the child “appeared to be dead” and
was “pale” and “lethargic” upon discovery. There was evidence
from which the jury could conclude that Hicks “[k]nowingly or
willfully abuse[d the] child and in so doing cause[d] great bodily
harm.” § 827.03(1)(a)3. We therefore reject Hicks’s argument that
the trial court should have granted an acquittal as to the
aggravated child abuse. And for the same reason, we reject Hicks’s
argument that there was no showing of “great bodily harm” to
support his convictions for neglect of a child causing great bodily
harm and leaving a child unattended causing great bodily harm.
Hicks’s fourth conviction, however, is another matter. This
count arose from events on a separate day when Hicks was with
the child. The State thought it was possible that Hicks abused the
child during this time because the child’s mother testified that the
2
child was not injured when he left with Hicks, but the jury did not
receive any evidence related to what actually happened, other than
Hicks’s testimony that he took the child to the beach and to
McDonald’s. Therefore, we hold that the court erred by not
granting Hicks’s motion for judgment of acquittal on his fourth
count, and we reverse Hicks’s conviction for endangering a child.
We reject Hicks’s remaining arguments. First, Hicks argues
that he is entitled to a new trial because the court erroneously
admitted photos showing guns in the truck, photos Hicks argues
were irrelevant and prejudicial. We hold that even if the photos
should have been excluded, any error was harmless. See State v.
DiGuilio,
491 So. 2d 1129, 1139 (Fla. 1986). By the time the photos
were introduced, the jury had already heard Hicks’s recorded
statement, in which he brought up the issue of guns in his truck.
Through this evidence—to which Hicks did not object—the jury
knew of the guns regardless of the photos.
Second, Hicks contends that the court should have issued a
curative instruction after the State improperly defined “torture”
during closing argument. But this issue was not preserved. “[T]o
preserve a claim based on improper comment, counsel has the
obligation to object and request a mistrial.” See Bright v. State,
90
So. 3d 249, 259 (Fla. 2012), as revised on reh’g (May 31, 2012).
Here, Hicks’s counsel did neither, waiting until after the
completion of closing arguments and a fifteen-minute recess to
first raise the issue. The error (if any) was not preserved, and there
was no fundamental error.
Last, Hicks argues that under double-jeopardy principles, he
could not be convicted of both child neglect causing great bodily
harm (in violation of § 827.03(2)(b)) and leaving a child unattended
in a motor vehicle (in violation of § 316.6135(1)). But there is no
double-jeopardy violation. Each crime included an element that
the other did not, and neither was subsumed into the other. See
McKinney v. State,
66 So. 3d 852, 854 (Fla. 2011).
AFFIRMED in part and REVERSED in part.
B.L. THOMAS, C.J., and MAKAR and WINSOR, JJ., concur.
3
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Michael Ufferman of the Michael Ufferman Law Firm,
Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant
Attorney General, Tallahassee, for Appellee.
4
