IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT

IN AND FOR BROWARD COUNTY, FLORIDA

CASE NO: 19-010559CF10A

JUDGE: J. MURPHY III.
STATE OF FLORIDA, :

Plaintiff, :

vs. :

JORGE CARBALLO, :

Defendant. :
__________________________________

STATE’S MOTION FOR RECONSIDERATION OF DEFENDANT’S MOTION

FOR JUDGMENT OF ACQUITTAL

The State of Florida, by and through the undersigned Assistant State Attorneys, hereby

requests that this Honorable Court reconsider the Court’s Order dated 2/24/2023, and as

grounds asserts the following:

PROCEDURAL HISTORY

1. The defendant stands before this Court charged with nine (9) counts of Aggravated

Manslaughter Elderly/Disabled Victim.

2. The Information was filed on 9/16/2019. The defendant’s trial commenced on

Monday, 1/30/2023.

3. Prior to the defendant’s trial commencing, this Honorable Court presided over

pretrial hearings, three (3) hearings of which were Defendant’s Motions to Dismiss,

all of which were denied.

4. Most recently of the three, this Court issued an Order Denying Defendant’s Sworn

Rule 3.190(C)(4) Motion to Dismiss on 12/2/2022.

5. In the aforementioned order, this Court specifically found that “there are material

disputed facts that establish a prima facie case of guilt against the defendant,

precluding dismissal of the information.”

6. During the course of the trial, the defense timely moved for a Judgement of

Acquittal following the State of Florida resting its case on Monday, 2/20/2023.

7. On 2/22/2023 the Defendant’s Motion for Judgement of Acquittal was heard by this

Court.

8. The Order for which the State seeks reconsideration was entered on 2/24/2023.

LEGAL ARGUMENT

I. THIS COURT MUST CONSIDER THE EVIDENCE IN THE LIGHT MOST

FAVORABLE TO THE STATE, INCLUSIVE OF EVERY INFERENCE FROM
THE EVIDENCE FAVORABLE TO THE STATE.

A Motion for Judgement of Acquittal admits the facts in evidence and every

reasonable inference from the evidence favorable to the state. Lynch v. State, 293 So. 2d

45 (Fla. 1974). This includes not only the evidence presented, but also the circumstances

surrounding the case. The defendant’s conduct is not viewed in a vacuum, but rather, through

the prism of the circumstances surrounding the particular case. Fla. State. Ann. §784.05.

There is no uniform schedule of specific acts that constitute criminal culpable

negligence; rather, culpable negligence is the omission to do something which a reasonable,

prudent, and cautious man would do, or the doing of something which such a man would not

do under the circumstances surrounding a particular case. Fla. State. Ann. §784.05.
II. THE JURY IS ENTITLED TO CONCLUDE FROM THE EVIDENCE THAT THE
DEFENDANT’S CONDUCT CONSTITUTED CULPABLE NEGLIGENCE,
IRRESPECTIVE OF FORESEEABILITY.

In Heston v. State, 484 So. 2d 84, 86 (Fla. 2nd DCA 1986) the jury was entitled to

conclude from the evidence presented that the defendant’s conduct in pointing an

arrowless/unloaded crossbow at a Florida Power Company driver, which caused an accident,

constituted culpable negligence. Likewise, in Logan v. State, it was highlighted that “no

person shall drive a motor vehicle upon a highway at a speed greater than is reasonable and

prudent under the conditions and having regard to the actual and potential hazards then-

existing.” Logan v. State, 592 So. 2d 295 (5th DCA 1991).

The nature of an accused’s actions, viewed individually and in continuous sequence,

under a totality of the circumstances analysis, is what equates to culpable negligence. See id.

There is no requirement for the state to prove that the defendant knew or should have known

that his actions and omissions were reasonably likely to lead to the victims’ deaths or cause

great bodily injury. In fact, a potential hazard is sufficient.

This Court’s own finding in the Court’s Order that the defendant was involved in a

“compounding series of miscalculations and entirely avoidable failures which led to the tragic

deaths of RCHH residents” and the defendant’s “unwise and ultimately unsuccessful

decisions” is legally sufficient to overcome a Motion for Judgement of Acquittal, especially

at the procedural juncture wherein such findings are to be ruled in the light most favorable to

the state.

III. THE DECISION TO REMOVE THE DECEDENTS FROM HARM IS NOT A

MEDICAL DECISION
 The facts of each case are critical in determining whether the totality of the

circumstances supports a finding of culpable negligence, however, there is no requirement

that the state show proof that a defendant is aware of the specific nature of the medical

condition or injury. Lanier v. State, 264 So. 3d 402, 406 (Fla. 1st DCA 2019). In Lanier, the

worsening of a child’s condition over time did not require the expertise of a medical

professional. Rather, the need for medical attention would have been obvious to any

reasonable person. See also Moore v. State, 790 So. 2d 489 (Fla. 5th DCA 2001).

Similarly, medical knowledge or training by the sons of a decedent was not required

for brothers to be held liable. Peterson v. State, 765 So. 2d 861 (5th DCA 2000). In the

Peterson case, "the police officers and the paramedics who went to the Petersons' home

testified as to the horrendous condition of Mrs. Peterson's living circumstances. Id. at 864.

It was very hot in her room, there was no air conditioning, and no windows were open

(emphasis added). Id. The odor in the house and, in particular in her room from human

waste, made them ill. Id. The carpet was stained with human waste and feces. Id. At trial,

medical experts testified it would have taken several weeks for bed sores to have become

as extensive and severe as hers were, at the time of her death." Id.

The defendant in this case cannot simply turn a blind eye to the conditions endured by

the residents of the Rehabilitation Center of Hollywood Hills. Nor is the defendant absolved

of criminal liability based upon the sheer fact that he does not have a medical background.

The defendant’s ability to see and know about the conditions within the facility for which he

was in charge of running is legally sufficient. The evidence presented at trial has illustrated

that the defendant knew or should have known the extent of the deterioration of the residents.
Medical professionals as well as lay people have testified to their direct observations of

lethargic residents sweating, exhibiting changes in their behavior, and audibly crying out for

help (specifically, Betty Hibbard and John Ralph Segno, the brother of witness Louise Segno).

As in Peterson, conditions such as heat, the lack of air conditioning, residents seeking help,

windows being closed (thereby exasperating the heat) were all visible and/or audible to the

“non-medically trained” eye. This is in addition to the testimony that some residents were

found dead in their rooms, some of whom experienced rigor mortis and lividity, all of

which is consistent with the overall lack of care in the defendant’s facility that he was

solely in charge of.

IV. A JURY SHOULD CONSIDER THE EVIDENCE AND THE CREDIBLITY OF

ALL WITNESSES PRESENTED AND DECIDE WHICH TESTIMONY IS NOT
RELIABLE OR LESS RELIABLE THAN OTHER EVIDENCE

It is for the jury to consider the evidence and the credibility of the witnesses. Davis v.

State, 703 So. 2d 1055,1059-60 (Fla. 1997). Pursuant to the Florida’s Criminal Jury

Instructions, jurors are given guidelines as to how they should gauge a witness’ credibility.

Florida Criminal Jury Instructions, 3.9 Weighing the Evidence. This instruction applies to all

witnesses and involves the considerations of a witness’ memory, a witness’ interest in how

the case should be decided, and whether or not there has been any pressure, threats, or

preferred treatment that would affect the truth of a witnesses’ testimony, among other factors.

Id. It is then up to the jury to believe or disbelieve all or any part of the evidence or the

testimony of any witness. Id.

Reasonably so, the Court’s Order does not list all witnesses called by the State of

Florida during the course of the three weeks of testimony. However, the assertion that “none
of the medical professionals present had cause for concern” in reference to the resident’s

conditions seemingly only considers the medical testimony of Sergo Colin, as Physician’s

Assistant James cannot be considered at this juncture.

Sergo Colin’s testimony, when weighed against the delineated factors of 3.8 of the

Florida Criminal Jury Instructions would reflect that Colin did not have an accurate memory,

was not honest or straightforward with his answers, was impeached, and that his testimony

was not absent of any pressure or bias. Particularly, the evidence shows that Larkin, owner of

Rehabilitation Center at Hollywood Hills, paid for the attorney retained by Colin for

representation in this very matter.

Additionally, the implication of there being no concern exhibited by medical

professionals ignores the testimony of two of the nurses assigned to the second floor on

September 12, 2017, through he morning of September 13, 2017, Tamika Miller and Althia

Meggie, as well as CNAs Zonya Crawford, Tatiana Garcia, Maria Gonzalez Leal, and

Emmanuella Destin.

The Court’s Order also notes that “he [defendant ] left them [residents] in the care of

trained medical professionals who were equipped to call emergency services if required, such

as Sergo Colin, who was a licensed registered nurse with over twelve years of experience at

the time. While it appears the staff could have certainly benefited from better training, they

were nevertheless capable of rendering aid to the residents, and more importantly, calling

emergency services if they were no longer able to care for the residents on their own.” In the

very next sentence the Court’s Order goes on to say “Unfortunately, it appears that the medical

staff failed to timely realize that the residents were beginning to suffer from heat-related
illness and take appropriate action.” These findings by the Court illustrate just how untrained

and incapable the medical staff were. The medical staff whom the defendant, in his capacity

as the Administrator, chose to leave in charge of a facility housing the most fragile of residents

in a critical emergency. In the light most favorable to the state, and drawing every reasonable

inference from the evidence, the testimony of the other medical professionals (i.e. nurse and

CNA witnesses) should also be considered before absolving the jury of their task to decide

this case.

The Court’s Order further relies upon the testimony of witnesses such as experts Dr.

Nannette Hoffman and Terry Goodman, though the totality of the testimony is not included.

For instance, the Order notes that Expert Witness Goodman testified about “nothing but bad

choices” and a “damned-if-you-do and damned-if-you-don’t” situation. However, Goodman

also went on to testify that while a full evacuation is generally not common, the defendant

could, given the circumstances, order an evacuation of the facility on his own. Goodman

further testified that it is necessary to conduct an “overall evaluation of the situation” and

educated the jury on partial evacuation, where the at-risk residents could be removed, or

simply moved. During re-direct examination by the State of Florida, Goodman testified that

since things change and situations change, one must be flexible and fluid enough to handle

the situation, which would require a person to be there to see it. Goodman testified that

temperatures near three digits would cause for a critical situation and four days without air

conditioning would matter when evaluating the totality of the circumstances. Goodman’s

expert opinion as to actions to be taken were “dependent on the circumstances,” and Goodman

did not waiver when he stated that he would “absolutely” remove residents from the heat
source.

This statement is also consistent with the testimony that Expert Witness Hoffman

would have moved residents based upon even the heat alone in South Florida in September.

Hoffman concurred with Goodman during her testimony. Both expert witnesses also

confirmed the need for a plan, the proper execution of said plan which would entail training

and informing staff of the existence of said plan, as well as notifying family members of the

situation, and removing residents from the heat source if one does not have proper cooling.

Expert Witnesses Goodman and Hoffman also testified about the Comprehensive Emergency

Management Plan, and the purpose of its proper use and execution. Hoffman noted the

importance of the mutual aid agreements. There is no evidence that the defendant took any of

these actions. Nor is there any evidence that the defendant even made an effort to consult with

his Medical Director or Director of Nursing to discuss the situation. Which, notably, was

included in the testimony of Hoffman when she highlighted the fact that an “Administrator

does not operate in isolation.” Hoffman’s testimony went on to expand upon the importance

of the Administrator collaborating and receiving guidance from Director of Nursing and

Medical Director, initiating patient rounds, and determining what families to be called. The

Administrator collaborating is part of the emergency management plan.

A broad misapplied rule that it is dangerous to move people if they are older in age

or possess co-morbidities does not control the case at bar. As noted by Hoffman, “the risk

of morbidity and mortality from continued exposure to heat for the very elderly, frail

individuals” is what is to be analyzed and weighed when reviewing a decision. There is no

evidence that the defendant initiated a meeting to seek any advice before deciding the
resident’s fate, which according to the CEMP is his decision to make. While that alone

demonstrates a reckless regard for human life and the safety of those exposed to its

dangerous effects, the calling of an evacuation is not the crux of the evidence against the

defendant.

V. THE STATE OF FLORIDA IS NOT RELYING ON THE EVACUATION OF THE

FACILTIY TO PROVE CULPABLE NEGLIGENCE

The overall conditions of the facility run by the defendant is relevant to his culpable

negligence. See Mitchell v. State, 491 So. 2d 596 (1st DCA 2001). This is inclusive of the

condition of the facility, inadequacies in the facility, and lack of adequate staff or training.

Id. at 598. Financial benefits, such as RUGS, are also relevant and to be considered when

determining whether a defendant is culpably negligent. See id.

The evidence put forth during the course of the trial is that there was excessive heat

in the defendant’s facility, which housed frail and dependent residents. The evidence

further showed that there was no telling when, or if, the defendant’s facility was going to

get power back or restored. In response to this, the defendant acted in direct opposite of his

own Broward County-approved Comprehensive Emergency Management Plan. The

defendant did not open windows. The defendant did not direct the taking of temperatures

of residents every 4 hours. The defendant did not effectuate the taking of ambient

temperatures.

Aside from the blatant violation of his own emergency plan, the defendant decided

to primarily prepare for the air conditioning outage after the fact. The Court’s Order states

that the “defendant had undertaken preparations ahead of Hurricane Irma, including
stocking up on essentials,” but the defendant didn’t stock up on the necessary amount of

essential items such as portable AC units or even fans (utility or personal). Notably, the

evidence has shown that there weren’t enough fans for the resident’s rooms. Rather,

residents were left to scrounge and beg family members and loved ones to bring fans, or

even steal a fan from another resident, as per the testimony of Linda Harmon. Expert

Witness Hoffman also testified to the fact that the facility was not, in fact, prepared. The

Court record reflects that Hoffman’s testimony was that the facility should have secured

fans beforehand, rather than driving to Kendall after the storm to look for them. Hoffman

further testified that the facility should have had fans at a warehouse or storage room,

available and ready to go, because that would be part of the emergency plan.

The evidence has shown that the defendant did not possess enough spot coolers or

fans for his facility to make residents comfortable during a potentially hazardous condition.

Instead of following his emergency plan, the defendant ordered his directors to go shopping

for dire supplies in the aftermath of the hurricane. While the directors shopped for fans,

time passed, and every minute mattered in terms of the facility growing hotter and hotter.

As the Administrator of the facility, the defendant was aware of what was needed

to maintain the required temperature of 81 degrees Fahrenheit. He also knew that he was

not equipped to do that, as evidenced by the defendant’s own email authored by the

defendant while victims were dying at 2:22 AM on 9/13/2017. It was “not even close” to

the proper amount of coolant, according to testimony of HVAC (Heating, Ventilation, and

Air Conditioning) Expert Scott Crawford. Crawford additionally testified that the spot

coolers were not installed correctly, and while the defendant did not personally install the
spot coolers he delegated the task to his staff in his authority as Administrator. The porter,

Mark Miller, further testified that he left the facility at approximately 6:00AM on Monday,

9/11/2017 due to the facility’s unwillingness to pay him for his time to maintain the spot

coolers, yet another financial decision by the defendant in his role as Administrator.

The defendant is later seen on surveillance footage manipulating the portable AC

units, consistent with the fact that the portable AC units were not working. Nonetheless,

the defendant still chose to leave the facility without confirmation that the portable AC

units were working properly. Even the defendant being available by phone, as noted in the

Court’s Order, is simply not enough in an emergency of this nature, as illustrated by witness

Goodman’s testimony involving the need for face-to-face contact in an ever-changing

emergency environment.

The Court’s Order characterizes the aforementioned as “trying to do one’s best”

However, based on the defendant’s WhatsApp phone messages alone, it is clear that “one’s

best” was really one’s interest in financial gain, or RUGS (Resource Utilization Groups).

The Court’s finding that the WhatsApp messages show “RCHH employees’ concern for

the wellbeing of the residents” is vehemently disputed by the State of Florida. The

messages show not only complete lack of planning on the part of the defendant, but also

complete disregard for human life. When told that “those patient [sic] don’t look good”

and that the residents “had a difficult night,” the defendant’s continuous responses involves

RUGS money. The defendant even blatantly states “I do not want to lose RUGS” when

faced with opposition over the wellbeing of the residents. This evidence alone shows that

the focus of the defendant was not on the safety and wellbeing of the fragile geriatric
residents whom were under his care, custody, and control. Rather, the defendant’s focus

was on the bottom line, and his greed resulted in the residents’ lives being put at risk for

the sake of making extra money. The WhatsApp group text undeniably shows the

motivation behind the culpably negligent actions of the defendant., which was the purpose

of the presentation of testimony from Expert Witness Stephen Quindoza. Quindoza

explained RUGS and why RUGS would be a motive to keep humans ensnared within

excruciating conditions- money. Financial motive shows the defendant’s utter disregard

for the safety of others.

Finally, as in Mitchell, the evidence has shown that aside from the above, the

defendant also did not train, did not monitor, and did not brief any staff members on what

to do given the circumstances of the facility. Across the board, witnesses have testified that

it was necessary to have leadership present during such a critical time. Yet it is undisputed

that the defendant left his facility that he was in charge of, without leaving full

Comprehensive Emergency Management Plans for the staff to refer to in an emergency

situation, without notifying staff of the regulations required of them, and leaving a man

who was on his first shift as a supervisor to be the most senior staff member in charge

during what witnesses have described as a “critical situation.” Even with 12 years of

experience, the idea of selecting someone unfamiliar with the residents and untrained on

the facility’s basic operations is yet another factor involved with the defendant’s overall

culpable negligence. Based on these choices by the defendant, staff members were left

without any guidance on how to handle the emergency, which would reasonably lead to a

potentially hazardous and even deadly outcome.

VI. IT IS FOR A JURY TO DECIDE WHETHER THE COURSE OF CONDUCT
OF THE DEFENDANT LEADING TO THE DEATHS OF NINE (9) PEOPLE WAS
ACCIDENTAL OR THE RESULT OF CULPABLE NEGLIGENCE

The defense has argued that foreseeability is the lynchpin of the criminal culpability

of the defendant; however, the criminal conduct of the defendant is not one of intent. Mutch

v. State, 308 So. 3d 700 (1st DCA 2020). On the contrary, a jury is to look at not only the

defendant’s course of conduct, based upon the totality of the circumstances, in addition to

testimony such of that of a medical examiner. Id. In the trial at bar, the State presented

expert witness testimony by Dr. Sneed and Dr. Osbourne, the medical examiners tasked

with conducting the autopsies of the victims involved in this criminal proceeding. Both

doctors have opined that the injuries sustained leading to the homicides were not accidents.

As in Mutch, the jury should be able to properly weigh and consider the testimony

of the forensic pathologists. While the Court’s Order is silent on the testimony of Dr. Sneed

and Dr. Osbourne, their testimony is wholly relevant to the jurors having the opportunity

to deliberate the issues presented in this case.

CONCLUSION

The State of Florida acknowledges the uniqueness of the case before this Honorable

Court. It is this distinctiveness which impelled the request for reconsideration. While

respectful of the Court’s ruling, the State of Florida simultaneously has faith that this Court

will reconsider the prior argument in conjunction with the aforementioned clarifying

argument and case law. In applying what is legally required, it is the request of the State of

Florida that this Court allow for a jury to decide the case on its merits, as a prima facie case

has been presented for the jury’s consideration. The State of Florida resolutely asserts that
the case presented satisfies the criminal law requirement at this juncture of the proceedings,

given the standard in the light most favorable to the state.

WHEREFORE, the undersigned respectfully request that this Honorable Court

reconsider the arguments presented and DENY the Defendant’s Motion for Judgement of

Acquittal, based upon the reasons aforementioned and the authorities cited therein.

I HEREBY CERTIFY that a copy of this Motion has been served electronically

on this the 26th day of February, 2023 to:

David Frankel, Esquire 4601 Sheridan Street #213, Hollywood, FL 33021 (email:
[email protected]) and James Cobb, Esquire, 1100 Poydras Street, Suite
1500, New Orleans, LA 70163 (email: [email protected]), counsel for the
defendant

Respectfully submitted,
HAROLD F. PRYOR
State Attorney

BY: _______________________
Elizabeth Lipella, Esq.
Assistant State Attorney
Homicide Trial Unit
Fla. Bar: 112035
Broward County Courthouse
Telephone (954) 831-6988

BY: _____________________
Charles B. Morton, Jr. Esq.
Assistant State Attorney
Homicide Trial Unit
Fla. Bar: 201391
Broward County Courthouse
Telephone (954) 831-6988
BY: _______________________
Christopher Killoran, Esq.
Assistant State Attorney
Public Corruption Unit
Fla. Bar: 27999
Broward County Courthouse
Telephone (954) 831-6988