DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
SIRARTHUR STEFON DANIELS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 2D22-3296
December 29, 2023
Appeal from the Circuit Court for Pinellas County; Philippe Matthey,
Judge.
Howard L. Dimmig, II, Public Defender, and Dane K. Chase, Special
Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Cerese Crawford
Taylor, Assistant Attorney General, Tampa, for Appellee.
CASANUEVA, Judge.
Sirarthur Stefon Daniels challenges his conviction for aggravated
battery and his resulting ten-year prison sentence. He argues that
providing the jury with the forcible-felony exception to the justifiable use
of nondeadly force instruction was improper and resulted in fundamental
error. We agree. Therefore, we reverse Daniels' conviction and sentence
and remand for a new trial.
I. Factual Background
Daniels was charged with aggravated battery after a physical
altercation occurred between him and Ms. Mitchell—the two were in a
relationship and had been living together. The incident was witnessed by
Bridget Riesenbeck. Unsurprisingly, the testimony from Mitchell and
Daniels differed on critical details concerning the order of events.
Riesenbeck's testimony, if believed, seemed to support Daniels' story.
Mitchell testified that on the night of the incident, Daniels arrived
home early in the morning with another woman, Riesenbeck. Mitchell
refused to allow Riesenbeck to enter, so Daniels pushed her out of the
way with his body and she pushed him back. The two were arguing
when Daniels "socked" her. The two exchanged hits until Daniels
knocked her to the ground. She got up, told them both to leave, and
went into another room to call her children. Daniels—believing Mitchell
had called the police—began hitting her again. He punched her in the
eye, grabbed her by her hair, and dragged her into the living room where
he continued to kick, punch, and bite her to the point of tearing skin.
Daniels then strangled her until she was unconscious.
Sometime after she regained consciousness, Riesenbeck
approached her with a bowl of ice-water. Daniels then attempted to
drown Mitchell by holding her face in the bowl but was ultimately
stopped by Riesenbeck. She also claimed that Riesenbeck put items in
front of the door to create a barricade and that Daniels threatened her
with a firearm before hitting her in the head with it, causing her to lose
consciousness again. When she awoke for the second time, she was able
to squeeze past the items blocking the door and escape to find help. She
2
testified that after roughly two hours of abuse, she sustained several
injuries including an orbital fracture, a torn away portion of her upper
lip, and an injury to her cervical spine.
Daniels testified that when he arrived at the apartment, Mitchell
was angry at him for coming home late with Riesenbeck. The three of
them were still outside the apartment when Mitchell began yelling and
hitting Daniels. Daniels pushed her into the apartment where Mitchell
continued to slap him. He admitted that he slapped her back but
claimed that they had stopped fighting for a period of time until Mitchell
attacked Riesenbeck. At that point, Daniels and Mitchell began
"tussling" again. Mitchell was on top of him punching his chest, face,
and head. He could not get out from under her, so he began biting her.
She eventually got off and ran to the bathroom. After coming out of the
bathroom, Mitchell began throwing punches again and Daniels returned
the punches. During this fight, Mitchell slipped and hit her face on the
tile floor and started to bleed. He sat down, and Riesenbeck grabbed a
bowl of ice-water for Mitchell's mouth. Mitchell eventually left. Daniels
denied ever holding her face in the water, striking her with a firearm, or
preventing her from leaving.
Riesenbeck testified that when she and Daniels arrived at the
apartment, Mitchell began yelling at him for coming home late, pulled on
him, and smacked him. Riesenbeck suggested they "just give her the
money" and go.1 Riesenbeck entered the apartment first with Daniels
and Mitchell following behind, still arguing. Daniels stopped by the
1 Riesenbeck claimed that she and Daniels were at Mitchell's
apartment to drop off money.
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bathroom first and then took off his backpack to get the money.2 She
testified that it was Mitchell who began barricading the door while
Daniels was in the bathroom. And upon exiting the bathroom, Mitchell
and Daniels continued to bicker, and Mitchell continued to slap Daniels.
According to Riesenbeck, Daniels did not hit Mitchell first, but Mitchell
started to choke, bite, and hit Daniels. At one point Mitchell tried to
attack her, but Daniels grabbed Mitchell and the two ended up on a
mattress on the floor of the living room. Mitchell was on top of Daniels,
and they were both "striking each other, pulling hair, [and] choking each
other." When the fighting stopped, Riesenbeck noticed the blood on
Mitchell and offered a bowl of ice-water for her to soak her face in.
Mitchell eventually went to the bedroom and later came out with a
backpack, calmly moved the pieces blocking the door, and "walked right
out." Riesenbeck testified that nobody held Mitchell's head in the water
and that there was never a firearm.
Mr. Daniels' primary defense was that he was acting in self-
defense. The trial judge read the jury instructions for the justifiable use
of nondeadly force, but also included the following instruction: "[T]he use
of non-deadly force is not justified if you find that [Mr. Daniels] was
attempting to commit, committing, or escaping after the commission of
an Aggravated Battery."
II. Discussion
The Florida Supreme Court explained that the forcible-felony
exception to a claim of self-defense applies only when there is a forcible
2 Riesenbeck's testimony is confusing at this point because she also
claims that Daniels and Mitchell were fighting as they entered the
doorway, but Mitchell tripped over Daniels as he was trying to get into
the backpack and Mitchell "slid down the wall."
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felony independent of the one which the defendant claims he or she
committed in self-defense. Martinez v. State,
981 So. 2d 449, 454 (Fla.
2008); see also Santiago v. State,
88 So. 3d 1020, 1022 (Fla. 2d DCA
2012) ("[T]he [forcible-felony] exception applies only when 'the accused is
charged with at least two criminal acts, the act for which the accused is
claiming self-defense and a separate forcible felony.' " (quoting Giles v.
State, 831 So. 2d 1263, 1265 (Fla. 4th DCA 2002))). Here, Daniels was
charged only with aggravated battery—the act he claims he committed in
self-defense. Therefore, the court erred when it read the forcible-felony
exception instruction to the jury. Because the error was not raised
before the trial court, however, the error must be fundamental to warrant
reversal.
The State argues that we cannot consider Daniels' fundamental
error argument because the issue was waived when counsel affirmatively
agreed to the instruction, thus inviting the error. The State correctly
asserts that a fundamental error argument is waived where counsel
affirmatively agrees to an improper instruction. See York v. State,
932
So. 2d 413, 416 n.2 (Fla. 2d DCA 2006) ("An exception from the doctrine
of fundamental error applies in circumstances 'where defense counsel
affirmatively agreed to or requested' an erroneous instruction." (quoting
State v. Lucas, 645 So. 2d 425, 427 (Fla. 1994))). However, the Florida
Supreme Court has opined that the exception from the doctrine of
fundamental error does not apply where counsel has merely acquiesced
to the instructions. See Lowe v. State,
259 So. 3d 23, 50 (Fla. 2018).
We first note that in this context, what constitutes mere
acquiescence versus an affirmative agreement has not been fully defined
5
by case law.3 Instead, the determination is akin to the approach taken
by Justice Potter Stewart.4 We begin our review by looking to the charge
conference, where the following conversation occurred:
THE COURT: Now, the next one is however the use of
nondeadly force would not be justified if you find that the
defendant was attempting to commit, committing, or escaping
after the commission of -- and I think here we would have to
put aggravated battery. If the jury finds that he was
committing aggravated battery, it negates self-defense.
DEFENSE: Yeah. Yes, Your Honor.
THE COURT: I mean, that's the allegation.
THE STATE: Yes.
3 The Florida Supreme Court provided that an affirmative
agreement
requires more than "mere acquiescence" to an incorrect jury
instruction to support the conclusion that the defendant
invited the error and thereby is precluded from challenging
the error on appeal, even under a fundamental-error
standard. More specifically, to support a finding of invited
error, defense counsel must either request the incorrect
instruction or be aware an instruction is incorrect but agree
to it anyway . . . .
Allen v. State,
322 So. 3d 589, 598 (Fla. 2021) (citing Lowe, 259 So. 3d at
50); see also Baptiste v. State,
324 So. 3d 453, 455 (Fla. 2021). Clearly,
requesting an erroneous instruction or knowing the instruction is
erroneous but failing to object constitutes an affirmative agreement. See
Phillips v. State,
268 So. 3d 830, 831 (Fla. 2d DCA 2019) ("[F]undamental
error is waived where defense counsel requests an erroneous
instruction." (quoting Universal Ins. Co. of N. Am. v. Warfel, 82 So. 3d 47,
65 (Fla. 2012))). But here, there is no suggestion that counsel requested
the instruction or was aware the instruction was incorrect but agreed
anyway. Thus, we cannot conclude that counsel affirmatively agreed
based on this language.
4 In Jacobellis v. Ohio,
378 U.S. 184, 197 (1964) (Stewart, J.,
concurring), Justice Stewart famously wrote in a concurring opinion
discussing pornography that, "I know it when I see it."
6
THE COURT: Is that this occurred as he committed an
aggravated battery. And of course, the jury could believe
otherwise. But defense, any argument against that?
DEFENSE: No, Your Honor.
The court inquired again before the instructions were read to the
jury:
THE COURT: Everyone look through the jury instructions?
DEFENSE: Yes, Your Honor.
THE COURT: They look good for the State?
THE STATE: Yes.
THE COURT: Okay. From the defense?
DEFENSE: Yes, sir.
DEFENSE: Yes, Your Honor.
The court asked a third time after the instructions were read and after
the jury had been dismissed if there were any objections to the
instructions as they were read. Counsel responded, "No." Although the
court asked counsel several times about the jury instructions, in our
view, the responses "Yes, your honor," and "No, Your Honor," without
much more, fall into the category of mere acquiescence. Therefore, we
may review for fundamental error.
On the merits, the reading of an erroneous instruction on an
affirmative defense does not always constitute fundamental error.
Routenberg v. State,
301 So. 3d 325, 328-29 (Fla. 2d DCA 2020) (quoting
Martinez,
981 So. 2d at 455). When determining whether a mistaken
instruction constitutes fundamental error, "we 'must consider "the effect
of the erroneous instruction in the context of the other instructions
given, the evidence adduced in the case, and the arguments and trial
strategies of counsel." ' "
Id. (quoting Dooley v. State,
206 So. 3d 87, 89
(Fla. 2d DCA 2016)). Further, "[w]here self-defense is 'the defendant's
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primary defense . . . the evidence [cannot] be viewed as "extremely
weak." ' " Peruchi v. State,
317 So. 3d 1262, 1266 (Fla. 2d DCA 2021)
(second alternation in original) (quoting Crimins v. State,
113 So. 3d 945,
948 (Fla. 5th DCA 2013)).
III. Conclusion
After a comprehensive review of the record, it is clear that self-
defense was Daniels' primary defense. And even if the defense is not
particularly strong, it is not "extremely weak" such that it "strain[s] even
the most remote bounds of credulity." Martinez,
981 So. 2d at 456. The
instruction on the forcible-felony exception removed Daniels' main
defense from the consideration of the jury, without which a jury could
have determined that the State failed to meet its burden that his use of
nondeadly force was not justified. We reverse and remand for a new
trial.
Reversed and remanded.
VILLANTI and LUCAS, JJ., Concur.
Opinion subject to revision prior to official publication.
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