In Re: Standard Jury Instructions in Criminal Cases – Report No. 2014-03

Supreme Court of Florida
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No. SC14-465
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IN RE: STANDARD JURY INSTRUCTIONS
IN CRIMINAL CASES—REPORT NO. 2014-03.
[January 29, 2015]
PER CURIAM.
The Supreme Court Committee on Standard Jury Instructions in Criminal
Cases (Committee) has submitted a report proposing changes to the standard
criminal jury instructions and asks the Court to authorize the amended standard
instructions for publication and use. We have jurisdiction. See art. V, § 2(a), Fla.
Const.
The Committee proposes changes to the following six standard criminal jury
instructions: (1) 11.1, Sexual Battery–Victim Less Than 12 Years of Age; (2) 11.2,
Sexual Battery–Victim 12 Years of Age or Older–Great Force; (3) 11.3, Sexual
Battery–Victim 12 Years of Age or Older–Specified Circumstances; (4) 11.4,
Sexual Battery–Person 12 Years of Age or Older; (5) 11.5, Solicitation of Child
Under 18 Years of Age to Engage in an Act that Constitutes Sexual Battery by
Person in Familial or Custodial Authority; and (6) 11.6, Sexual Battery Upon Child
12 Years of Age or Older but Under 18 Years of Age by Person in Familial or
Custodial Authority.
The Committee previously proposed amendments to Criminal Jury
Instruction 11.1. The Court declined to authorize the proposed changes due to a
lack of supporting legal authority for certain proposed changes and a perceived
logical inconsistency in the table of lesser-included offenses. See In re Std. Jury
Instrs. in Crim. Cases—Report No. 2012-05, 131 So. 3d 755, 756 (Fla. 2013). We
asked the Committee to reconsider its proposal. The current report provides the
legal support previously found lacking and clarifies the Committee’s reasoning
with respect to the table of lesser-included offenses. After the Committee’s report
was filed with the Court, the proposed changes were published in The Florida Bar
News and comments were solicited. No comments were filed.
In reconsidering its proposed changes to instruction 11.1, the Committee
discovered additional issues affecting not only instruction 11.1 but also instructions
11.2–11.6. All six instructions are amended in order to include all the possible
ways the various offenses can be committed based on the statutory language
defining the offenses. Other changes are made to conform the instructions and
notes to the statutory language and caselaw. Obsolete notes and comments are
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deleted from the instructions. The tables of lesser-included offenses are revised for
technical correctness and consistency.
Upon consideration of the Committee’s report, we authorize the amended
instructions, as set forth in the appendix to this opinion, for publication and use.1
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 PERRY, JJ., concur.
1. 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.
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Original Proceedings – Supreme Court Committee on Standard Jury Instructions in
Criminal Cases
Judge Jerri Lynn Collins, Chair, Supreme Court Committee on Standard Jury
Instructions in Criminal Cases, Sanford, Florida; Judge Joseph Anthony Bulone,
Past Chair, Supreme Court Committee on Standard Jury Instructions in Criminal
Cases, Clearwater, Florida; and Bart Neil Schneider, Staff Liaison, Office of the
State Courts Administrator, Tallahassee, Florida,
for Petitioner
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APPENDIX
11.1 SEXUAL BATTERY —
VICTIM LESS THAN 12 YEARS OF AGE
§ 794.011(2), Fla. Stat.
To prove the crime of Sexual Battery upon a Person Less Than 12 Years
of Age, the State must prove the following three elements beyond a reasonable
doubt:
1. (Victim) was less than 12 years of age.
Give 2a, 2b, 2c, or 2d as applicable.
2. a. (Defendant) committed an act [upon] [with] (victim) in
which the sexual organ of the [(defendant)] [(victim)]
penetrated or had union with the [anus] [vagina] [mouth] of
the [(victim)] [(defendant)].
b. (Defendant) committed an act [upon] [with] (victim) in
which the [anus] [vagina] of [(victim)] [(defendant)] was
penetrated by an object.
c. (Defendant) injured the sexual organ of (victim) in an
attempt to commit an act [upon] [with] (victim) in which the
sexual organ of the [(defendant)] [(victim)] would have
penetrated or would have had union with the [anus]
[vagina] [mouth] of the [(victim)] [(defendant)].
d. (Defendant) injured the sexual organ of (victim) in an
attempt to commit an act upon (victim) in which the [anus]
[vagina] of (victim) would be penetrated by an object.
Give 3a or 3b as applicable.
3. a. (Defendant) was 18 years of age or older at the time of the
sexual battery.
b. (Defendant) was less than 18 years of age at the time of the
sexual battery.
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Give if applicable.
However, any act done for bona fide medical purposes is not a sexual
battery.
Definition. Give if applicable.
“Union” means contact.
Give if requested. Khianthalat v. State, 974 So. 2d 359 (Fla. 2008).
Consent of (victim) is not a defense to the crime charged.
Give if requested. § 794.022, Fla. Stat.
(Victim’s) lack of chastity is not a defense to the crime charged.
§ 794.021, Fla. Stat.
Ignorance of (victim’s) age, (victim’s) misrepresentation of his or her
age, or a defendant’s bona fide belief of (victim’s) age is not a defense to the
crime charged.
In the event that multiple perpetrators is charged and proven, give
instruction on enhancement.
§ 794.023, Fla. Stat.
The option of the word “[with] (victim)” in 2a and 2c is provided to reflect
the manner in which the crime was committed. See Coleman v. State, 484 So.2d
624 (Fla. 1st DCA 1986), at pages 627, 628.
Lesser-Included Offenses
SEXUAL BATTERY — VICTIM UNDER 12 — 794.011(2)(a)–(b)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Battery 784.03(1)(a)1 8.3
Solicitation by person in 794.011(8)(c) 11.5
familial authority
Attempt 777.04(1) 5.1
Assault Aggravated battery 784.011 8.18.4
784.045(1)(a)
Felony Battery 784.041(1) 8.5
Aggravated assault 784.021(1)(a) 8.2
Aggravated battery Assault 784.045(1)(a) 8.4 8.1
784.011
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Comment
This instruction was adopted in 1981 and was amended in 1987 [508 So. 2d
1221], 1995 [657 So. 2d 1152], and 2007, by adding 3(a) and 3(b) pursuant to
Glover v. State, [863 So. 2d 236], (Fla. 2003) and 2015.
11.2 SEXUAL BATTERY — VICTIM 12 YEARS OF
AGE OR OLDER — GREAT FORCE OR DEADLY WEAPON
§ 794.011(3), Fla. Stat.
To prove the crime of Sexual Battery upon a Person 12 Years of Age or
Older with the Use of [a Deadly Weapon] [or] [Physical Force Likely to Cause
Serious Personal Injury], the State must prove the following four elements
beyond a reasonable doubt:
1. (Victim) was 12 years of age or older.
2. a. [(Defendant) committed an act [upon] [with] (victim) in
which the sexual organ of the [(defendant)] [(victim)]
penetrated or had union with the [anus] [vagina] [mouth] of
the [(victim)] [(defendant)].]
b. (Defendant) committed an act [upon] [with] (victim) in
which the [anus] [vagina] of [(victim)] [(defendant)] was
penetrated by an object.
3. (Defendant) in the process
a. [used or threatened to use a deadly weapon].
b. [used actual physical force likely to cause serious personal
injury].
4. The act was done without the consent of (victim).
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Definitions.
Give in all cases.
“Consent” means intelligent, knowing, and voluntary consent and does
not include coerced submission. Consent does not mean the failure by the
alleged victim to offer physical resistance to the offender.
Give if applicable.
Evidence of the victim’s mental incapacity or defect, if any, may be
considered in determining whether there was an intelligent, knowing, and
voluntary consent.
“Mentally incapacitated” means that a person is rendered temporarily
incapable of appraising or controlling his or her conduct due to the influence
of a narcotic, anesthetic, or intoxicating substance administered to that person
without his or her consent, or due to any other act committed upon that
person without his or her consent.
“Mentally defective” means that a person suffers from a mental disease
or defect that renders that person temporarily or permanently incapable of
appraising the nature of his or her conduct.
“Union” means contact.
Give if 3a alleged.
A weapon is a “deadly weapon” if it is used or threatened to be used in a
way likely to produce death or great bodily harm.
Give if 3b alleged.
“Serious personal injury” means great bodily harm or pain, permanent
disability, or permanent disfigurement.
Give if applicable.
However, any act done for bona fide medical purposes is not a sexual
battery.
Give if requested. § 794.022, Fla. Stat.
(Victim’s) lack of chastity is not a defense to the crime charged.
In the event that multiple perpetrators is charged and proven, give
instruction on enhancement. § 794.023, Fla. Stat.
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The option of the word “[with] (victim)” in 2a is provided to reflect the
manner in which the crime was committed. See Coleman v. State, 484 So. 2d 624(Fla. 1st DCA 1986), at pages 627, 628.
Lesser-Included Offenses
SEXUAL BATTERY — VICTIM OVER 12 — WEAPON OR
FORCE — 794.011(3)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Sexual battery 794.011(5) 11.4
Battery 784.03(1)(a)1 8.3
Sexual battery 794.011(4) 11.3
Attempt 777.04(1) 5.1
Lewd or lascivious 800.04(4) 11.10 or
battery 11.10(a)
Aggravated battery 784.045(1)(a) 8.4
Felony battery 784.041(1) 8.5
Aggravated assault 784.021(1)(a) 8.2
Assault 784.011 8.1
Comment
This instruction was adopted in 1981 and was amended in 1987 [508 So. 2d
1221], 1995 [657 So. 2d 1152], 2003 [850 So. 2d 1272], and 2008 [995 So. 2d
476], and 2015.
11.3 SEXUAL BATTERY — VICTIM 12 YEARS OF AGE OR OLDER —
SPECIFIED CIRCUMSTANCES
§ 794.011(4), Fla. Stat.
To prove the crime of Sexual Battery upon a Person 12 Years of Age or
Older under Specified Circumstances, the State must prove the following four
elements beyond a reasonable doubt:
1. (Victim) was 12 years of age or older.
2. a. [(Defendant) committed an act [upon] [with] (victim) in
which the sexual organ of the [(defendant)] [(victim)]
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penetrated or had union with the [anus] [vagina] [mouth] of
the [(victim)] [(defendant)].]
b. (Defendant) committed an act [upon] [with] (victim) in
which the [anus] [vagina] of [(victim)] [(defendant)] was
penetrated by an object.
3. a. [(Victim) was physically helpless to resist.]
b. [(Defendant) coerced (victim) to submit by threatening to use
force or violence likely to cause serious personal injury and
(victim) reasonably believed the (defendant) had the present
ability to execute the threat.]
c. [(Defendant) coerced (victim) to submit by threat of
retaliation against (victim) or any other person and (victim)
reasonably believed that (defendant) had the ability to
execute the threat in the future.]
d. [(Defendant), without prior knowledge or consent of (victim),
administered or had knowledge of someone else
administering to (victim) a narcotic, anesthetic, or other
intoxicating substance that mentally or physically
incapacitated (victim).]
e. [(Victim) was mentally defective and (defendant) had reason
to believe this or had actual knowledge of that fact.]
f. [(Victim) was physically incapacitated.]
g. [(Defendant) was at the time a[n] (insert official title or
position) and was a[n] [certified [law enforcement officer]
[correctional officer] [correctional probation officer]]
[elected official exempt from certification] [person in a
position of control or authority in a probation, community
control, controlled release, detention, custodial, or similar
setting] and the [officer] [official] [person] was acting in
such a manner as to lead (victim) to reasonably believe that
(defendant) was in a position of control or authority as an
agent or employee of government.]
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4. The act was committed without the consent of (victim).
Definitions.
Give in all cases.
“Consent” means intelligent, knowing, and voluntary consent and does
not include coerced submission. Consent does not mean the failure by the
alleged victim to offer physical resistance to the offender.
Give if applicable.
Evidence of the victim's mental incapacity or defect, if any, may be
considered in determining whether there was an intelligent, knowing, and
voluntary consent.
“Mentally incapacitated” means that a person is rendered temporarily
incapable of appraising or controlling his or her conduct due to the influence
of a narcotic, anesthetic, or intoxicating substance administered to that person
without his or her consent, or due to any other act committed upon that
person without his or her consent.
“Mentally defective” means that a person suffers from a mental disease
or defect that renders that person temporarily or permanently incapable of
appraising the nature of his or her conduct.
“Union” means contact.
Give if 3a alleged.
“Physically helpless” means that a person is unconscious, asleep, or for
any other reason physically unable to communicate unwillingness to act.
Give if 3b alleged.
“Serious personal injury” means great bodily harm or pain, permanent
disability, or permanent disfigurement.
Give if 3f alleged.
“Physically incapacitated” means that a person is bodily impaired or
handicapped and substantially limited in his or her ability to resist or flee an
act.
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Give if applicable.
However, any act done for bona fide medical purposes is not a sexual
battery.
Give if requested. § 794.022, Fla. Stat.
(Victim’s) lack of chastity is not a defense to the crime charged.
In the event that multiple perpetrators is charged and proven, give
instruction on enhancement. § 794.023, Fla. Stat.
The option of the word “[with] (victim)” in 2a is provided to reflect the
manner in which the crime was committed. See Coleman v. State, 484 So.2d 624(Fla. 1st DCA 1986), at pages 627, 628.
Lesser-Included Offenses
SEXUAL BATTERY — VICTIM OVER 12 — SPECIAL SPECIFIED
CIRCUMSTANCES — 794.011(4)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Sexual battery 794.011(5) 11.4
Battery 784.03(1)(a)1 8.3
Lewd or lascivious 800.04(4) 11.10 or
battery 11.10(a)
Attempt 777.04(1) 5.1
Aggravated battery 784.045(1) 8.4
Felony battery 784.041(1) 8.5
Aggravated assault 784.021(1)(a) 8.2
Assault 784.011 8.1
Comments
Element 3g: See s. 943.10(1), (2), (3), (6), (7), (8), (9) for the definition of a
law enforcement officer, correctional officer, or correctional probation officer who
must be either certified pursuant to s. 943.1395 or an elected officer exempt from
certification pursuant to s. 943.253.
This instruction was adopted in 1981 and was amended in 1987 [508 So. 2d
1221], 1992 [603 So. 2d 1175], 1995 [657 So. 2d 1152], 2003 [850 So. 2d 1272],
and 2008 [995 So. 2d 476], and 2015.
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11.4 SEXUAL BATTERY — PERSON 12 YEARS OF AGE OR OLDER
§ 794.011(5), Fla._Stat.
To prove the crime of Sexual Battery upon a Person 12 Years of Age or
Older, the State must prove the following three elements beyond a reasonable
doubt:
1. (Victim) was 12 years of age or older.
Give 2a or 2b as applicable.
2. a. [(Defendant) committed an act [upon] [with] (victim) in
which the sexual organ of the [(defendant)] [(victim)]
penetrated or had union with the [anus] [vagina] [mouth] of
the [(victim)] [(defendant)].]
b. (Defendant) committed an act [upon] [with] (victim) in
which the [anus] [vagina] of [(victim)] [(defendant)] was
penetrated by an object.
3. The act was committed without the consent of (victim).
Definitions
Give in all cases.
“Consent” means intelligent, knowing, and voluntary consent and does
not include coerced submission. Consent does not mean the failure by the
alleged victim to offer physical resistance to the offender.
Give if applicable.
Evidence of the victim’s mental incapacity or defect, if any, may be
considered in determining whether there was an intelligent, knowing, and
voluntary consent.
“Mentally incapacitated” means that a person is rendered temporarily
incapable of appraising or controlling his or her conduct due to the influence
of a narcotic, anesthetic, or intoxicating substance administered to that person
without his or her consent, or due to any other act committed upon that
person without his or her consent.
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“Mentally defective” means that a person suffers from a mental disease
or defect that renders that person temporarily or permanently incapable of
appraising the nature of his or her conduct.
Give if applicable.
“Union” means contact.
Give if applicable.
However, any act done for bona fide medical purposes is not a sexual
battery.
Give if requested. § 794.022, Fla. Stat.
(Victim’s) lack of chastity is not a defense to the crime charged.
In the event that multiple perpetrators is charged and proven, give instruction
on enhancement. § 794.023, Fla._Stat.
The option of the word "[with] (victim)" in 2a is provided to reflect the manner
in which the crime was committed. See Coleman v. State, 484 So.2d 624 (Fla. 1st
DCA 1986), at pages 627, 628.
Lesser-Included Offenses
SEXUAL BATTERY — VICTIM OVER 12 — WITHOUT FORCE —
794.011(5)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Battery 784.03(1)(a)1 8.3
Attempt 777.04(1) 5.1
Assault 784.011 8.1
Comment
This instruction was adopted in 1981 and was amended in 1987 [508 So. 2d
1221], 1995 [657 So. 2d 1152], and 2003 [850 So. 2d 1272], and 2015.
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11.5 SOLICITATION OF CHILD UNDER 18 YEARS OF AGE TO
ENGAGE IN AN ACT THAT CONSTITUTES SEXUAL BATTERY BY
PERSON IN FAMILIAL OR CUSTODIAL AUTHORITY
§ 794.011(8)(a), Fla._Stat.
To prove the crime of Solicitation of a Child to Engage in an Act that
Constitutes Sexual Battery by a Person in Familial or Custodial Authority, the
State must prove the following three elements beyond a reasonable doubt:
1. (Victim) was less than 18 years of age.
2. (Defendant) stood in the position of familial or custodial authority
with regard to (victim).
3. (Defendant) [commanded] [encouraged] [hired] [requested] [tried
to induce] (victim) to engage in an act which constitutes sexual
battery in which:
a. [the sexual organ of the [(defendant)] [(victim)] would penetrate or
have union with the [anus] [vagina] [mouth] of the [(victim)]
[(defendant)]].
b. [the [anus] [vagina] of [(victim)] [(defendant)] would be penetrated
by an object].
It is not necessary that a sexual battery actually take place for the crime
to be completed.
§ 794.011(8), Fla. Stat.
It is not a defense that (victim) was willing to engage in an act which
constitutes sexual battery or consented to engage in such acts.
Give if applicable.
However, any act done for bona fide medical purposes is not a sexual
battery.
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Definition. Give if applicable.
“Union” means contact.
Give if requested. § 794.022, Fla. Stat.
(Victim’s) lack of chastity is not a defense to the crime charged.
§ 794.021, Fla. Stat.
Ignorance of (victim’s) age, (victim’s) misrepresentation of his or her
age, or a defendant’s bona fide belief of (victim’s) age is not a defense to the
crime charged.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 1987 [508 So. 2d 1221] and was amended in
1995 [657 So. 2d 1152], and 1997 [697 So. 2d 84], and 2015.
11.6 SEXUAL BATTERY UPON CHILD 12 YEARS OF AGE OR OLDER
BUT UNDER 18 YEARS OF AGE BY PERSON IN FAMILIAL OR
CUSTODIAL AUTHORITY
§ 794.011(8)(b), Fla. Stat.
To prove the crime of Sexual Battery Upon a Child by a Person in a
Familial or Custodial Authority, the State must prove the following three
elements beyond a reasonable doubt:
1. (Victim) was 12 years of age or older but less than 18 years of age.
2. (Defendant) stood in the position of familial or custodial authority
with regard to (victim).
3. (Defendant) committed an act [upon] [with] (victim) in which:
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a. [the sexual organ of the [(defendant)] [(victim)] penetrated
or had union with the [anus] [vagina] [mouth] of the
[(victim)] [(defendant)]].
b. [the [anus] [vagina] of [(victim)] [(defendant)] was
penetrated by an object].
§ 794.011(8), Fla. Stat.
It is not a defense that (victim) was willing to engage in acts which would
constitute a sexual battery or consented to engage in such acts.
Give if applicable.
However, any act done for bona fide medical purposes is not a sexual
battery.
Definition. Give if applicable.
“Union” means contact.
Give if requested. § 794.022, Fla. Stat.
(Victim’s) lack of chastity is not a defense to the crime charged.
§ 794.021, Fla. Stat.
Ignorance of (victim’s) age, (victim’s) misrepresentation of his or her
age, or a defendant’s bona fide belief of (victim’s) age is not a defense to the
crime charged.
Lesser-Included Offenses
SEXUAL BATTERY UPON CHILD 12 YEARS OF AGE OR OLDER
BUT UNDER 18 YEARS OF AGE BY PERSON IN FAMILIAL OR
CUSTODIAL AUTHORITY — 794.011(8)(b)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
None
Attempt 777.04(1) 5.1
Lewd or lascivious 800.04(4) 11.10 or
battery 11.10(a)
Battery 784.03 8.3
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Comment
This instruction was adopted 1987 [508 So. 2d 1221] and was amended in
1995 [657 So. 2d 1152], 1997 [697 So.2d 84], and 2008 [995 So. 2d 476], and
2015.
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