In Re: Standard Jury Instructions in Criminal Cases-Report 2017-01

Supreme Court of Florida
____________
No. SC17-1438
____________
IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—
REPORT 2017-01
[October 12, 2017]
PER CURIAM.
The Supreme Court Committee on Standard Jury Instructions in Criminal
Cases (Committee) has submitted proposed changes to the standard jury
instructions, and asks that the Court authorize the amended standard instructions
for publication and use. We have jurisdiction. See art. V, § 2(a), Fla. Const.
The Committee proposes amending the following standard criminal jury
instructions: 3.6(o) (Transferred Intent); 11.17(a) (Soliciting a [Child] [Person
Believed by the Defendant to be a Child] for Unlawful Sexual Conduct Using
Computer Services or Devices); 11.17(b) (Soliciting a Parent, Legal Guardian, or
Custodian of a Child for Unlawful Sexual Conduct Using Computer Services or
Devices); 11.17(c) (Traveling to Meet a Minor); and 11.17(d) (Traveling to Meet a
Minor Facilitated by Parent, Legal Guardian, or Custodian). The Committee
published its proposals for comment. No comments were received by the
Committee. The Court did not publish the proposals after they were filed.
Having considered the Committee’s report, we amend the standard jury
instructions as proposed by the Committee, with a purely technical correction to
instruction 3.6(o), and authorize them for publication and use.1
We note the following significant changes to the jury instructions as
amended. First, with regard to Instruction 3.6(o), the phrase “but instead” is
replaced with “and in the process,” the word “the” is replaced with “any,” and the
word “actually” is removed from the instruction. The Committee explains that
these changes are made so that the instruction will be suitable for use in all cases in
which it applies. The Committee has also updated the Comment section of the
instruction with relevant case law pertaining to the doctrine of transferred intent.
Next, with regard to Instructions 11.17(a), (b), (c), and (d), the crime of
Unlawful Use of a Two-Way Communications Device is added as a category two
lesser included offense. With regard to Instruction 11.17(b), the phrase “Legal
Guardian, or Custodian” is added to the first sentence of the instruction to mirror
its title and the language of section 847.0135(3)(b), Florida Statutes (2017).
1. Technical changes to the amended jury instructions are not discussed.
2
The amended criminal jury instructions, as set forth in the appendix to this
opinion, are hereby authorized for publication and use.2 New language is indicated
by underlining, and deleted language is indicated by struck-through type. In
authorizing the publication and use of these instructions, we express no opinion on
their correctness and remind all interested parties that this authorization forecloses
neither requesting additional or alternative instructions nor contesting the legal
correctness of the instructions. We further caution all interested parties that any
comments associated with the instructions reflect only the opinion of the
Committee and are not necessarily indicative of the views of this Court as to their
correctness or applicability. The instructions as set forth in the appendix shall be
effective when this opinion becomes final.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and
LAWSON, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
2. The amendments as reflected in the appendix are to the Criminal Jury
Instructions as they appear on the Court’s website at
www.floridasupremecourt.org/jury_instructions/instructions.shtml. We recognize
that there may be minor discrepancies between the instructions as they appear on
the website and the published versions of the instructions. Any discrepancies as to
instructions authorized for publication and use after October 25, 2007, should be
resolved by reference to the published opinion of this Court authorizing the
instruction.
3
Original Proceeding – Supreme Court Committee on Standard Jury Instructions in
Criminal Cases
Judge F. Rand Wallis, Chair, Supreme Court Committee on Standard Jury
Instructions in Criminal Cases, Daytona Beach, Florida; and Bart Schneider, Staff
Liaison, Office of the State Courts Administrator, Tallahassee, Florida,
for Petitioner
4
APPENDIX
3.6(o) TRANSFERRED INTENT
If a person intends to [hit] [strike] [shoot] a person, but insteadand in
the process [hits] [strikes] [shoots] a different person, the law transfers the
intent to [hit] [strike] [shoot] from the person who was aimed at to theany
person who was actually [hit] [struck] [shot].
Comments
See State v. Brady, 745 So. 2d 954 (Fla. 1999) and Nelson v. State, 853 So.
2d 563 (Fla. 4th DCA 2003). Also, in Mordica v. State, 618 So. 2d 301, 303 (Fla.
1st DCA 1993), the First District rejected the contention that the doctrine of
transferred intent is applicable only where the defendant entirely misses the
intended victim and hits the unintended victim.
The doctrine of transferred intent may not apply to the crime of Attempted
First Degree Murder. See Bell v. State, 768 So. 2d 22 (Fla. 1st DCA 2000)(stating
that if the issue is whether the defendant attempted to murder multiple victims,
then such specific intent is not subject to transfer but rather such intent should be
independently evaluated as to each victim); but see Frederick v. State, 93 So. 3d
445 (Fla. 4th DCA 2012)(holding that the giving of a transferred intent instruction
was not fundamental error because defendant was not charged with attempting to
murder multiple victims).
This instruction was adopted in 2013 [131 So. 3d 720] and amended in 2017.
11.17(a) SOLICITING A [CHILD] [PERSON BELIEVED BY THE
DEFENDANT TO BE A CHILD] FOR UNLAWFUL SEXUAL CONDUCT
USING COMPUTER SERVICES OR DEVICES
§ 847.0135(3)(a), Fla. Stat.
To prove the crime of Soliciting a [Child] [Person Believed by the
Defendant to be a Child] for Unlawful Sexual Conduct Using Computer
Services or Devices, the State must prove the following three elements beyond
a reasonable doubt:
5
1. (Defendant) knowingly used a[n] [computer on-line service]
[Internet service] [local bulletin board service] [device
capable of electronic data storage or transmission] to
contact (victim).
2. (Victim) was a child or a person believed by the defendant
to be a child.
3. During that contact, (defendant) [seduced] [solicited] [lured]
[enticed] [attempted to [seduce] [solicit] [lure] [entice]]
(victim) to [commit (any illegal act as charged in the
indictment or information under chapter 794, 800, or 827)] [or]
[engage in (other unlawful sexual conduct with a child or with
a person believed by the defendant to be a child)].
The mere fact that an undercover operative or law enforcement officer
was involved in the detection and investigation of this offense shall not
constitute a defense from prosecution.
Enhanced penalty. Give if applicable.
If you find (defendant) guilty of Soliciting a Child for Unlawful Sexual
Conduct Using Computer Services or Devices, you must also determine
whether the State proved beyond a reasonable doubt that during the contact,
(defendant) misrepresented [his] [her] age to [(victim)] [the person believed by
the defendant to be a child].
Definitions.
A “child” means any person, whose identity is known or unknown, less
than 18 years of age.
Give the following definitions if applicable. Additional definitions can be
added as applicable depending on the nature of the alleged illegal conduct. See
§ 847.001, Fla. Stat.
“Sexual conduct” means actual or simulated sexual intercourse, deviate
sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse;
actual lewd exhibition of the genitals; actual physical contact with a person’s
clothed or unclothed genitals, pubic area, buttocks, or, if such person is a
female, breast with the intent to arouse or gratify the sexual desire of either
party; or any act or conduct which constitutes sexual battery or simulates that
6
sexual battery is being or will be committed. A mother’s breastfeeding of her
baby does not under any circumstance constitute “sexual conduct.”
“Sadomasochistic abuse” means flagellation or torture by or upon a
person or animal, or the condition of being fettered, bound, or otherwise
physically restrained, for the purpose of deriving sexual satisfaction, or
satisfaction brought about as a result of sadistic violence, from inflicting harm
upon another or receiving such harm oneself.
“Sexual battery” means oral, anal, or vaginal penetration by, or union
with, the sexual organ of another or the anal or vaginal penetration of another
by any other object; however, sexual battery does not include an act done for
a bona fide medical purpose.
Lakey v. State, 113 So. 3d 90 (Fla. 5th DCA 2013).
“An object” includes a finger.
“Deviate sexual intercourse” means sexual conduct between persons not
married to each other consisting of contact between the penis and the anus,
the mouth and the penis, or the mouth and the vulva.
“Sexual bestiality” means any sexual act, actual or simulated, between a
person and an animal involving the sex organ of the one and the mouth, anus,
or vagina of the other.
Give if applicable. § 775.0862, Fla. Stat.
Enhancement for sexual offense against student by school authority figure.
If you find that (defendant) committed the crime of Soliciting a [Child]
[Person Believed by the Defendant to be a Child] for Unlawful Sexual
Conduct Using Computer Services or Devices, you must also determine
whether the State has proved beyond a reasonable doubt that (defendant) was
an authority figure at a school and (victim) was a student at the same school.
“Authority figure” means a person 18 years of age or older who is
employed by, volunteering at, or under contract with a school.
“School” means an organization of students for instructional purposes
on an elementary, middle or junior high school, secondary or high school, [or
7
other public school level authorized under the rules of the State Board of
Education]. The term “school” does not include facilities dedicated exclusively
to the education of adults. If needed, insert appropriate definitions from
§ 775.0862(1)(b), Fla. Stat. for “private school” or “voluntary prekindergarten
education program” or “early learning program” or “public school as described
in s. 402.3025(1)” or “the Florida School for the Deaf and the Blind” or the
“Florida Virtual School” or the “K-8 Virtual School.”
“Student” means a person younger than 18 years of age who is enrolled
at a school.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
SOLICITING A [CHILD] [PERSON BELIEVED BY THE
DEFENDANT TO BE A CHILD] FOR UNLAWFUL SEXUAL
CONDUCT USING COMPUTER SERVICES OR DEVICES —
847.0135(3)(a)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
None
Unlawful use of two- 934.215 29.26
way communications
device
Comment
This instruction was adopted in 2009 [6 So. 3d 574] and amended in 2013
[122 So. 3d 263], and 2015 [163 So. 3d 478], and 2017.
11.17(b) SOLICITING A PARENT, LEGAL GUARDIAN, OR CUSTODIAN
OF A CHILD FOR UNLAWFUL SEXUAL CONDUCT USING
COMPUTER SERVICES OR DEVICES
§ 847.0135(3)(b), Fla. Stat.
To prove the crime of Soliciting a Parent, Legal Guardian, or Custodian
of a Child for Unlawful Sexual Conduct Using Computer Services or Devices,
the State must prove the following two elements beyond a reasonable doubt:
8
1. (Defendant) knowingly used a[n] [computer on-line service]
[Internet service] [local bulletin board service] [device
capable of electronic data storage or transmission] to
contact a [parent of a child] [legal guardian of a child]
[custodian of a child] [person the defendant believed to be a
[parent] [legal guardian] [custodian of] a child].
2. During that contact, (defendant) [solicited] [lured] [enticed]
[attempted to [solicit] [lure] [entice]] a [parent of a child]
[legal guardian of a child] [custodian of a child] [person
believed by the defendant to be a [parent] [legal guardian]
[custodian of] a child] to consent to the participation of the
child in (any illegal act as charged in the indictment or
information under chapter 794, 800, 827, or other unlawful
sexual conduct).
The mere fact that an undercover operative or law enforcement officer
was involved in the detection and investigation of this offense shall not
constitute a defense from prosecution.
Enhanced penalty. Give if applicable.
If you find (defendant) guilty of Soliciting a Parent of a Child for
Unlawful Sexual Conduct Using Computer Services or Devices, you must also
determine whether the State proved beyond a reasonable doubt that during
the contact, (defendant) misrepresented [his] [her] age to the [parent] [legal
guardian] [custodian] [person believed by the defendant to be a [parent] [legal
guardian] [custodian]].
Definitions.
A “child” means any person, whose identity is known or unknown, less
than 18 years of age.
Give the following definitions if applicable. Additional definitions can be
added as applicable depending on the nature of the alleged illegal conduct. See
§ 847.001, Fla. Stat.
“Sexual conduct” means actual or simulated sexual intercourse, deviate
sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse;
actual lewd exhibition of the genitals; actual physical contact with a person’s
9
clothed or unclothed genitals, pubic area, buttocks, or, if such person is a
female, breast with the intent to arouse or gratify the sexual desire of either
party; or any act or conduct which constitutes sexual battery or simulates that
sexual battery is being or will be committed. A mother’s breastfeeding of her
baby does not under any circumstance constitute “sexual conduct.”
“Sadomasochistic abuse” means flagellation or torture by or upon a
person or animal, or the condition of being fettered, bound, or otherwise
physically restrained, for the purpose of deriving sexual satisfaction, or
satisfaction brought about as a result of sadistic violence, from inflicting harm
upon another or receiving such harm oneself.
“Sexual battery” means oral, anal, or vaginal penetration by, or union
with, the sexual organ of another or the anal or vaginal penetration of another
by any other object; however, sexual battery does not include an act done for
a bona fide medical purpose.
Lakey v. State, 113 So. 3d 90 (Fla. 5th DCA 2013).
“An object” includes a finger.
“Deviate sexual intercourse” means sexual conduct between persons not
married to each other consisting of contact between the penis and the anus,
the mouth and the penis, or the mouth and the vulva.
“Sexual bestiality” means any sexual act, actual or simulated, between a
person and an animal involving the sex organ of the one and the mouth, anus,
or vagina of the other.
Give if applicable. § 775.0862, Fla. Stat.
Enhancement for sexual offense against student by school authority figure.
If you find that (defendant) committed the crime of Soliciting a Parent of
a Child for Unlawful Sexual Conduct Using Computer Services or Devices,
you must also determine whether the State has proved beyond a reasonable
doubt that (defendant) was an authority figure at a school and (victim) was a
student at the same school.
“Authority figure” means a person 18 years of age or older who is
employed by, volunteering at, or under contract with a school.
10
“School” means an organization of students for instructional purposes
on an elementary, middle or junior high school, secondary or high school, [or
other public school level authorized under the rules of the State Board of
Education]. The term “school” does not include facilities dedicated exclusively
to the education of adults. If needed, insert appropriate definitions from
§ 775.0862(1)(b), Fla. Stat. for “private school” or “voluntary prekindergarten
education program” or “early learning program” or “public school as described
in s. 402.3025(1)” or “the Florida School for the Deaf and the Blind” or the
“Florida Virtual School” or the “K-8 Virtual School.”
“Student” means a person younger than 18 years of age who is enrolled
at a school.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
SOLICITING A PARENT, LEGAL GUARDIAN, OR CUSTODIAN
OF A CHILD FOR UNLAWFUL SEXUAL CONDUCT USING
COMPUTER SERVICES OR DEVICES — 847.0135(3)(b)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
None
Unlawful use of two- 934.215 29.26
way communications
device
Comment
This instruction was adopted in 2009 [6 So. 3d 574] and amended in 2013
[122 So. 3d 263], and 2015 [163 So. 3d 478], and 2017.
11.17(c) TRAVELING TO MEET A MINOR
§ 847.0135(4)(a), Fla. Stat.
To prove the crime of Traveling to Meet a Minor, the State must prove
the following two elements beyond a reasonable doubt:
11
1. (Defendant) used a[n] [computer on-line service] [Internet service]
[local bulletin board service] [device capable of electronic data
storage or transmission] to [seduce] [solicit] [lure] [entice]
[attempt to [seduce] [solicit] [lure] [entice]] a [child] [person
believed by the defendant to be a child] to engage in [(insert illegal
act in chapter 794, 800, or 827 as alleged in the charging instrument)]
[unlawful sexual conduct].
2. (Defendant) then [traveled] [attempted to travel] [caused another
to travel] [attempted to cause another to travel] [within this state]
[to this state] [from this state] for the purpose of [(insert violation
of chapter 794, 800, or 827 as alleged in the charging instrument)]
[unlawful sexual conduct] with a [child] [person believed by the
defendant to be a child].
The mere fact that an undercover operative or law enforcement officer
was involved in the detection and investigation of this offense shall not
constitute a defense from prosecution.
Definitions.
A “child” means any person, whose identity is known or unknown, less
than 18 years of age.
Give the following definitions if applicable. Additional definitions can be
added as applicable depending on the nature of the alleged illegal conduct. See §
847.001, Fla. Stat.
“Sexual conduct” means actual or simulated sexual intercourse, deviate
sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse;
actual lewd exhibition of the genitals; actual physical contact with a person’s
clothed or unclothed genitals, pubic area, buttocks, or, if such person is a
female, breast with the intent to arouse or gratify the sexual desire of either
party; or any act or conduct which constitutes sexual battery or simulates that
sexual battery is being or will be committed. A mother’s breastfeeding of her
baby does not under any circumstance constitute “sexual conduct.”
“Sadomasochistic abuse” means flagellation or torture by or upon a
person or animal, or the condition of being fettered, bound, or otherwise
physically restrained, for the purpose of deriving sexual satisfaction, or
satisfaction brought about as a result of sadistic violence, from inflicting harm
upon another or receiving such harm oneself.
12
“Sexual battery” means oral, anal, or vaginal penetration by, or union
with, the sexual organ of another or the anal or vaginal penetration of another
by any other object; however, sexual battery does not include an act done for
a bona fide medical purpose.
Lakey v. State, 113 So. 3d 90 (Fla. 5th DCA 2013).
“An object” includes a finger.
“Deviate sexual intercourse” means sexual conduct between persons not
married to each other consisting of contact between the penis and the anus,
the mouth and the penis, or the mouth and the vulva.
“Sexual bestiality” means any sexual act, actual or simulated, between a
person and an animal involving the sex organ of the one and the mouth, anus,
or vagina of the other.
Give if applicable. § 775.0862, Fla. Stat.
Enhancement for sexual offense against student by school authority figure.
If you find that (defendant) committed the crime of Traveling to Meet a
Minor, you must also determine whether the State has proved beyond a
reasonable doubt that (defendant) was an authority figure at a school and
(victim) was a student at the same school.
“Authority figure” means a person 18 years of age or older who is
employed by, volunteering at, or under contract with a school.
“School” means an organization of students for instructional purposes
on an elementary, middle or junior high school, secondary or high school, [or
other public school level authorized under the rules of the State Board of
Education]. The term “school” does not include facilities dedicated exclusively
to the education of adults. If needed, insert appropriate definitions from
§ 775.0862(1)(b), Fla. Stat. for “private school” or “voluntary prekindergarten
education program” or “early learning program” or “public school as described
in s. 402.3025(1)” or “the Florida School for the Deaf and the Blind” or the
“Florida Virtual School” or the “K-8 Virtual School.”
“Student” means a person younger than 18 years of age who is enrolled
at a school.
13
Lesser Included Offenses
TRAVELING TO MEET A MINOR — 847.0135(4)(a)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Soliciting a [Child] 847.0135(3) 11.17(a)
[Person Believed by (a)
the Defendant to be a
Child] for Unlawful
Sexual Conduct Using
Computer Services or
Devices
Unlawful use of two- 934.215 29.26
way communications
device
Comment
This instruction was adopted in 2009 [6 So. 3d 574] and amended in 2013
[122 So. 3d 263], and 2016 [195 So. 3d 356], and 2017.
11.17(d) TRAVELING TO MEET A MINOR FACILITATED BY
PARENT, LEGAL GUARDIAN, OR CUSTODIAN
§ 847.0135(4)(b), Fla. Stat.
To prove the crime of Traveling to Meet a Minor Facilitated by Parent,
Legal Guardian, or Custodian, the State must prove the following two
elements beyond a reasonable doubt:
1. (Defendant) used a[n] [computer on-line service] [Internet
service] [local bulletin board service] [device capable of
electronic data storage or transmission] to [solicit] [lure]
[entice] [attempt to [solicit] [lure] [entice]] a [parent] [legal
guardian] [custodian] [person believed by the defendant to
be a [parent] [legal guardian] [custodian]] of a child to
consent for the [child] [person believed by the defendant to
be a child] to participate in [(insert violation of chapter 794,
800, or 827 as alleged in the charging instrument)] [sexual
conduct].
14
2. (Defendant) then [traveled] [attempted to travel] [caused
another to travel] [attempted to cause another to travel]
[within this state] [to this state] [from this state] for the
purpose of engaging in any illegal act described in [(insert
violation of chapter 794, 800, or 827 as alleged in the charging
instrument)] [other unlawful sexual conduct] with a child or
a person believed by the defendant to be a child.
The mere fact that an undercover operative or law enforcement officer
was involved in the detection and investigation of this offense shall not
constitute a defense from prosecution.
Definitions.
A “child” means any person, whose identity is known or unknown, less
than 18 years of age.
Give the following definitions if applicable. Additional definitions can be
added as applicable depending on the nature of the alleged illegal conduct. See §
847.001, Fla. Stat.
“Sexual conduct” means actual or simulated sexual intercourse, deviate
sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse;
actual lewd exhibition of the genitals; actual physical contact with a person’s
clothed or unclothed genitals, pubic area, buttocks, or, if such person is a
female, breast with the intent to arouse or gratify the sexual desire of either
party; or any act or conduct which constitutes sexual battery or simulates that
sexual battery is being or will be committed. A mother’s breastfeeding of her
baby does not under any circumstance constitute “sexual conduct.”
“Sadomasochistic abuse” means flagellation or torture by or upon a
person or animal, or the condition of being fettered, bound, or otherwise
physically restrained, for the purpose of deriving sexual satisfaction, or
satisfaction brought about as a result of sadistic violence, from inflicting harm
upon another or receiving such harm oneself.
“Sexual battery” means oral, anal, or vaginal penetration by, or union
with, the sexual organ of another or the anal or vaginal penetration of another
by any other object; however, sexual battery does not include an act done for
a bona fide medical purpose.
15
Lakey v. State, 113 So. 3d 90 (Fla. 5th DCA 2013).
“An object” includes a finger.
“Deviate sexual intercourse” means sexual conduct between persons not
married to each other consisting of contact between the penis and the anus,
the mouth and the penis, or the mouth and the vulva.
“Sexual bestiality” means any sexual act, actual or simulated, between a
person and an animal involving the sex organ of the one and the mouth, anus,
or vagina of the other.
Give if applicable. § 775.0862, Fla. Stat.
Enhancement for sexual offense against student by school authority figure.
If you find that (defendant) committed the crime of Traveling to Meet a
Minor Facilitated by Parent, Legal Guardian, or Custodian, you must also
determine whether the State has proved beyond a reasonable doubt that
(defendant) was an authority figure at a school and (victim) was a student at
the same school.
“Authority figure” means a person 18 years of age or older who is
employed by, volunteering at, or under contract with a school.
“School” means an organization of students for instructional purposes
on an elementary, middle or junior high school, secondary or high school, [or
other public school level authorized under the rules of the State Board of
Education]. The term “school” does not include facilities dedicated exclusively
to the education of adults. If needed, insert appropriate definitions from
§ 775.0862(1)(b), Fla. Stat., for “private school” or “voluntary prekindergarten
education program” or “early learning program” or “public school as described
in s. 402.3025(1)” or “the Florida School for the Deaf and the Blind” or the
“Florida Virtual School” or the “K-8 Virtual School.”
“Student” means a person younger than 18 years of age who is enrolled
at a school.
16
Lesser Included Offense
TRAVELING TO MEET A MINOR FACILITATED BY
PARENT, LEGAL GUARDIAN, OR CUSTODIAN — 847.0135(4)(b)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Soliciting a Parent of a 847.0135(3) 11.17(b)
Child for Unlawful (b)
Sexual Conduct Using
Computer Services or
Devices
Unlawful use of two- 934.215 29.26
way communications
device
Comment
This instruction was adopted in 2009 [6 So. 3d 574] and amended in 2013
[122 So. 3d 263], and 2016 [195 So. 3d 356], and 2017.
17