Child Neglect Conviction Reversed Where Jury Instructions Included Uncharged Theory

A Florida Court of Appeals has reversed a child neglect conviction after the trial court instructed the jury that it could convict on an uncharged theory of guilt.

In Wunsch v. State, the defendant was prosecuted for child neglect with great bodily harm after she failed to take a child in her care to the hospital after a fall. Florida statutory law includes two theories for child neglect:

  1. A caregiver’s failure or omission to provide the child with care, supervision, and services necessary to the child’s health
  2. A caregiver’s failure to make a reasonable effort to protect the child from abuse or neglect by another person

The State charged the defendant on the second theory: it prosecuted her for failing to protect the child from the abuse of another person. The court, though, instructed the jury that it could find the defendant guilty if it found that she had failed to care for the child’s needs—the first theory of child neglect.

An error regarding jury instructions may only be raised on appeal if there was a timely objection or if the error is fundamental. The error is fundamental when the jury instructions include an alternative theory that the defendant was not charged with and the jury does not specify the basis for the conviction in its guilty verdict. This is fundamental error because “it is a due process violation to convict a defendant of a crime with which he was not charged.”

The verdict here did not include the basis for the jury’s decision.

The Florida appellate court found that the jury instructions were erroneous because they failed to include the charged theory of child neglect. The court also faulted the prosecutor for asking the jury to convict the defendant under the first theory (failure to provide for needs)—the one under which she had not been charged.