In Re: Standard Jury Instructions in Criminal Cases-Report 2018-14.

Supreme Court of Florida
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No. SC18-2030
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IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—
REPORT 2018-14.
April 11, 2019
PER CURIAM.
The Supreme Court Committee on Standard Jury Instructions in Criminal
Cases (Committee) has submitted proposed changes to standard jury instructions
3.3(d) (Possession of a [Firearm] [Destructive Device] [and Discharge] [Causing
[Great Bodily Harm] [Death]]), 8.5(a) (Domestic Battery by Strangulation), 16.5
(Neglect of a Child), 21.14 (False Information to Law Enforcement Investigating a
Missing Person 16 Years of Age or Younger Who Suffers [Great Bodily Harm]
[Permanent Disability] [Permanent Disfigurement] [Death]), and 29.24 (Human
Trafficking), 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 filed its report on December 7, 2018, having published its
proposals in the October 15, 2018, edition of The Florida Bar News. No
comments were received by the Committee. We authorize the proposed
amendments to the instructions for publication and use as proposed. The
significant changes to the instructions are as follows.
First, instructions 3.3(d), 8.5(a), 16.5, 21.14, and 29.24 each include the
definition for “great bodily harm” as provided in Wheeler v. State, 203 So. 3d
1007, 1009 (Fla. 4th DCA 2016), to be given if applicable.
Next, instruction 3.3(d) is updated to cite to section 790.001(6), Florida
Statutes (2018), and to include the definition of “firearm.”
Lastly, the definition of “bona fide” as “genuine” is added to instruction
29.24, consistent with the sex-offense-related instructions. See In re Stnd. Jury
Instrs. in Criminal Cases—Report 2018-04, 257 So. 3d 370, 374 (Fla. 2018).
Having considered 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. We caution all interested parties that any comments
associated with the instructions reflect only the opinion of the Committee and are
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 necessarily indicative of the views of this Court as to their correctness or
applicability. 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. The instructions as set forth in
the appendix shall become effective when this opinion becomes final.
It is so ordered.
CANADY, C.J., and POLSTON, LABARGA, LAWSON, LAGOA, LUCK, and
MUÑIZ, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
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
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APPENDIX
3.3(d) POSSESSION OF A [FIREARM] [DESTRUCTIVE
DEVICE] [AND DISCHARGE] [CAUSING [GREAT
BODILY HARM] [DEATH]]
§ 775.087(2), Fla. Stat.
Give if applicable.
If you find that (defendant) committed (felony identified in
§775.087(2)(a)3, Fla. Stat.) and you also find beyond a reasonable doubt that
during the commission of the crime, [he] [she] discharged a [firearm]
[destructive device], and in doing so, caused [great bodily harm to] [the death
of] (victim), you should find the defendant guilty of (felony) with discharge of
a [firearm] [destructive device] causing [great bodily harm] [death].
Wheeler v. State, 203 So. 3d 1007 (Fla. 4th DCA 2016).
“Great bodily harm” means great as distinguished from slight, trivial,
minor, or moderate harm, and as such does not include mere bruises.
Give if applicable.
If you find that (defendant) committed (felony identified in
§ 775.087(2)(a)2, Fla. Stat.) and you also find beyond a reasonable doubt that
during the commission of the crime, [he] [she] discharged a [firearm]
[destructive device], you should find the defendant guilty of (felony) with
discharge of a [firearm] [destructive device].
If you find that (defendant) committed (felony listed in § 775.087(2)(a)1,
Fla. Stat.) and you also find beyond a reasonable doubt that during the
commission of the crime, [he] [she] actually possessed [a firearm] [a
destructive device], you should find the defendant guilty of (felony) with
actual possession of a [firearm] [destructive device].
A [“firearm”] [“destructive device”] is legally defined as (adapt from
§ 790.001(4) or § 790.001(6) Fla. Stat.).
§ 790.001(6), Fla. Stat.
A “firearm” is legally defined as any weapon, including a starter gun,
which will, is designed to, or may readily be converted to expel a projectile by
the action of an explosive; the frame or receiver of any such weapon; any
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firearm muffler or firearm silencer; any destructive device; or any machine
gun. [The term “firearm” does not include an antique firearm unless the
antique firearm is used in the commission of a crime.]
§ 790.001(1), Fla. Stat., contains the definition of “antique firearm.”
§ 790.001(4), Fla. Stat., contains the definition of “destructive device.”
Give a and/or b or both as applicable. See § 775.087(4), Fla. Stat.
To “actually possess” a firearm means that the defendant
a. carried a firearm on [his]_[her] person.
or
b. had a firearm within immediate physical reach with ready access
with the intent to use the firearm during the commission of the
crime.
Comment
This instruction was adopted in July 1992 [603 So. 2d 1175] and amended in
2008 [995 So. 2d 489], and 2019.
8.5(a) DOMESTIC BATTERY BY STRANGULATION
§ 784.041(2)(a), Fla. Stat.
To prove the crime of Domestic Battery by Strangulation, the State
must prove the following three elements beyond a reasonable doubt:
1. (Defendant) knowingly and intentionally impeded the normal
[breathing] [circulation of the blood] of (victim) against [his] [her]
will [by applying pressure on the throat or neck of (victim)] [by
blocking the nose or mouth of (victim)].
2. In so doing, (Defendant) [created a risk of great bodily harm to
(victim).] [caused great bodily harm to (victim).]
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3. (Defendant) was [a family or household member of (victim).] [in a
dating relationship with (victim).]
Give as applicable.
“Family or household member” means spouses, former spouses,
persons related by blood or marriage, persons who are presently residing
together as if a family or who have resided together in the past as if a family,
and persons who are parents of a child in common regardless of whether they
have been married. With the exception of persons who have a child in
common, the family or household members must be currently residing or
have in the past resided together in the same single dwelling unit.
“Dating relationship” means a continuing and significant relationship of
a romantic or intimate nature.
Wheeler v. State, 203 So. 3d 1007 (Fla. 4th DCA 2016).
“Great bodily harm” means great as distinguished from slight, trivial,
minor, or moderate harm, and as such does not include mere bruises.
Lesser Included Offenses
FELONY DOMESTIC BATTERY BY STRANGULATION – 784.041(2)(a)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Battery 784.03 8.3
None
Comment
This instruction was adopted in 2008 [994 So. 2d 1038], and amended in
2019.
16.5 NEGLECT OF A CHILD
§ 827.03(2)(b), Fla. Stat.
(Great Bodily Harm, Permanent Disability,
or Permanent Disfigurement)
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To prove the crime of Neglect of a Child Causing [Great Bodily Harm]
[Permanent Disability] [Permanent Disfigurement], the State must prove the
following four elements beyond a reasonable doubt:
1. (Defendant)
Give as applicable.
a. [willfully] [by culpable negligence] failed or omitted to provide
(victim) with the care, supervision, and services necessary to
maintain (victim’s) physical or mental health.
b. failed to make a reasonable effort to protect (victim) from abuse,
neglect, or exploitation by another person.
2. In so doing, (defendant) caused [great bodily harm] [permanent
disability] [permanent disfigurement] to (victim).
3. (Defendant) was a caregiver for (victim).
4. (Victim) was under the age of 18 years.
Neglect of a child may be based on repeated conduct or on a single
incident or omission that resulted in, or reasonably could have been expected
to result in, serious physical or mental injury, or a substantial risk of death, to
a child.
Definition. Give in all cases.
“Caregiver” means a parent, adult household member, or other person
responsible for a child’s welfare.
Definition. Give if applicable.
I will now define what is meant by the term “culpable negligence”: Each
of us has a duty to act reasonably toward others. If there is a violation of that
duty, without any conscious intention to harm, that violation is negligence.
But culpable negligence is more than a failure to use ordinary care for others.
For negligence to be called culpable negligence, it must be gross and flagrant.
The negligence must be committed with an utter disregard for the safety of
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others. Culpable negligence is consciously doing an act or following a course
of conduct that the defendant must have known, or reasonably should have
known, was likely to cause death or great bodily harm.
Great bodily harm. Wheeler v. State, 203 So. 3d 1007 (Fla. 4th DCA 2016).
“Great bodily harm” means great as distinguished from slight, trivial,
minor, or moderate harm, and as such does not include mere bruises.
Lesser Included Offenses
NEGLECT OF A CHILD CAUSING GREAT BODILY HARM,
PERMANENT DISABILITY OR PERMANENT
DISFIGUREMENT— 827.03(2)(b)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Child neglect 827.03(3)(d) 16.6
Culpable Negligence 784.05 8.9
Inflicting Injury, if
culpable negligence is
charged
Culpable Negligence 784.05 8.9
Exposing Another to
Injury, if culpable
negligence is charged
Comment
This instruction was adopted in 2002 [824 So. 2d 881] and amended in 2013
[122 So. 3d 263], and 2019.
21.14 FALSE INFORMATION TO LAW ENFORCEMENT
INVESTIGATING A MISSING PERSON 16 YEARS OF AGE OR
YOUNGER WHO SUFFERS [GREAT BODILY HARM] [PERMANENT
DISABILITY] [PERMANENT DISFIGUREMENT] [DEATH]
§ 837.055(2), Fla. Stat.
To prove the crime of False Information to Law Enforcement
Investigating a Missing Person 16 Years of Age or Younger Who Suffers
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[Great Bodily Harm] [Permanent Disability] [Permanent Disfigurement]
[Death], the State must prove the following six elements beyond a reasonable
doubt:
1. (Name of law enforcement officer) was conducting a missing person
investigation involving a child 16 years of age or younger.
2. (Name of law enforcement officer) was a law enforcement officer.
3. (Defendant) knew (name of law enforcement officer) was a law
enforcement officer.
4. (Defendant) knowingly and willfully gave false information to (name
of law enforcement officer).
5. (Defendant) intended to mislead (name of law enforcement officer) or
impede the investigation.
6. The child who was the subject of the investigation suffered [great
bodily harm] [death] [permanent [disability] [disfigurement]].
Definitions.
Patterson v. State, 512 So. 2d 1109 (Fla. 1st DCA 1987).
“Willfully” means knowingly, intentionally, and purposely.
Wheeler v. State, 203 So. 3d 1007 (Fla. 4th DCA 2016).
“Great bodily harm” means great as distinguished from slight, trivial,
minor, or moderate harm, and as such does not include mere bruises.
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Lesser Included Offenses
FALSE INFORMATION TO LAW ENFORCEMENT INVESTIGATING A
MISSING PERSON 16 YEARS OF AGE OR YOUNGER WHO SUFFERS
[GREAT BODILY HARM] [DEATH] [PERMANENT [DISABILITY]
[DISFIGUREMENT] - § 837.055(2)
CATEGORY CATEGORY FLA. STAT. INS. NO.
ONE TWO
Knowingly Giving 837.055(1) 21.15
False Information
Concerning a
Missing Person
Investigation
Knowingly Giving 837.055(1) 21.15
False Information
Concerning a
Felony Criminal
Investigation
Attempt 777.04(1) 5.1
Comments
As of November 2018, Iit is undetermined whether an element of this crime
is that the defendant knew that the missing person investigation involved a child 16
years of age or younger.
As of November 2018, Tthere is no case law regarding the definition of “law
enforcement officer.”
This instruction was adopted in 2013 [131 So. 3d 755], and amended in
2019.
29.24 HUMAN TRAFFICKING
§ 787.06(3), Fla. Stat.
To prove the crime of Human Trafficking, the State must prove the
following two elements beyond a reasonable doubt:
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1. (Defendant) knowingly, or in reckless disregard of the facts,
[engaged in] [attempted to engage in] [benefited financially by
receiving something of value from participation in a venture that
subjected a person to] human trafficking.
Give as applicable.
2. § 787.06(3)(a)1, Fla. Stat.
The human trafficking was for the labor or services of a child.
§ 787.06(3)(a)2, Fla. Stat.
The human trafficking involved (defendant’s) use of coercion for
the labor or services of an adult.
§ 787.06(3)(b), Fla. Stat.
The human trafficking involved (defendant’s) use of coercion for
commercial sexual activity of an adult.
§ 787.06(3)(c)1, Fla. Stat.
The human trafficking was for the labor or services of a child who
was an unauthorized alien.
§ 787.06(3)(c)2, Fla. Stat.
The human trafficking involved (defendant’s) use of coercion for
the labor or services of an adult who was an unauthorized alien.
§ 787.06(3)(d), Fla. Stat.
The human trafficking involved (defendant’s) use of coercion for
commercial sexual activity of an adult who was an unauthorized
alien.
§ 787.06(3)(e)1, Fla. Stat.
The human trafficking was for the labor or services of a child by
the transfer or transport of the child from outside Florida to
within this state.
§ 787.06(3)(e)2, Fla. Stat.
The human trafficking involved (defendant’s) use of coercion for
the labor or services of an adult by the transfer or transport of the
adult from outside Florida to within this state.
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§ 787.06(3)(f)1, Fla. Stat.
The human trafficking was for commercial sexual activity of a
child by the transfer or transport of the child from outside
Florida to within this state.
§ 787.06(3)(f)2, Fla. Stat.
The human trafficking involved (defendant’s) use of coercion for
commercial sexual activity of an adult by the transfer or transport
of the adult from outside Florida to within this state.
§ 787.06(3)(g), Fla. Stat.
The human trafficking was for commercial sexual activity in
which a [child] [person who is mentally defective or mentally
incapacitated] was involved.
Reclassification. § 787.06(8), Fla. Stat. Give if applicable.
If you found (defendant) guilty of Human Trafficking, you must further
determine whether the State proved beyond a reasonable doubt that during
the commission of the Human Trafficking, [he] [she] caused [great bodily
harm] [or] [permanent disability] [or] [permanent disfigurement to [another
person] [(victim)].
Definitions.
Give in all cases.
§ 787.06(2)(d), Fla. Stat.
“Human trafficking” means [transporting] [soliciting] [recruiting]
[harboring] [providing] [enticing] [maintaining] [or] [obtaining] another
person for the purpose of exploitation of that person.
“Child” means a person under the age of 18.
“Adult” means a person 18 years of age or older.
Give if applicable.
Wheeler v. State, 203 So. 3d 1007 (Fla. 4th DCA 2016).
“Great bodily harm” means great as distinguished from slight, trivial,
minor, or moderate harm, and as such does not include mere bruises.
§ 787.06(2)(a), Fla. Stat.
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“Coercion” means:
1. Using or threatening to use physical force against any person;
2. Restraining, isolating, or confining or threatening to restrain,
isolate, or confine any person without lawful authority and
against her or his will;
3. Using lending or other credit methods to establish a debt by any
person when labor or services are pledged as a security for the
debt, if the value of the labor or services as reasonably assessed is
not applied toward the liquidation of the debt, the length and
nature of the labor or services are not respectively limited and
defined;
4. Destroying, concealing, removing, confiscating, withholding, or
possessing any actual or purported passport, visa, or other
immigration document, or any other actual or purported
government identification document, of any person;
5. Causing or threatening to cause financial harm to any person;
6. Enticing or luring any person by fraud or deceit; or
7. Providing a controlled substance as outlined in Schedule [I] [II] of
Florida Statute 893.03 to any person for the purpose of
exploitation of that person.
(Name of controlled substance) is a Schedule [I] [II] drug within
Florida Statute 893.03.
Give as applicable.
§ 787.06(2)(b), Fla. Stat.
“Commercial sexual activity” means:
a. (name of chapter 796 crime). (Name of chapter 796 crime) is
defined as (insert definition of Chapter 796 crime).
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b. an attempt to commit (name of chapter 796 crime). An
attempt to commit (name of chapter 796 crime) is defined as
(insert definition of attempt in Instruction 5.1 and then define
the Chapter 796 crime).
c. sexually explicit performances. “Sexually explicit
performance” means an act or show, whether public or
private, that is live, photographed, recorded, or videotaped
and intended to arouse or satisfy the sexual desires or
appeal to the prurient interest.
d. the production of pornography.
§ 787.06(2)(c), Fla. Stat. Insert definition of loan sharking from §687.071
Fla. Stat. Insert explanation of the statute of frauds from §725.01 Fla. Stat.
“Financial harm” includes [extortionate extension of credit] [loan
sharking] [employment contracts that violate the statute of frauds].
§ 787.06(2)(e), Fla. Stat.
“Labor” means work of economic or financial value.
§ 787.06(2)(f), Fla. Stat.
“Maintain” means in relation to labor or services, to secure or make
possible continued performance thereof, regardless of any initial agreement
on the part of a victim to perform such type service.
§ 787.06(2)(g), Fla. Stat.
“Obtain” means, in relation to labor or services, to secure performance
thereof.
§ 787.06(2)(h), Fla. Stat.
“Services” means any act committed at the behest of, under the
supervision of, or for the benefit of another. [The term includes, but is not
limited to [forced marriage] [servitude] [the removal of organs].]
§ 787.06(2)(j), Fla. Stat. See 8 U.S.C. s. 1324a(h)(3).
“Unauthorized alien” means an alien who is not authorized under
federal law to be employed in the United States.
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§ 787.06(2)(k), Fla. Stat.
“Venture” means any group of two or more individuals associated in
fact, whether or not a legal entity.
§ 787.06(3)(g), 794.011(1), Fla. Stat.
“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.
Give if requested. § 787.06(9), Fla. Stat.
The defendant’s ignorance of (victim’s) age, (victim’s) misrepresentation
of [his] [her] age, or the defendant’s bona fide belief of (victim’s) age is not a
defense to the crime charged. “Bona fide” means genuine.
Give if requested. § 787.06(101), Fla. Stat.
(Victim’s) lack of chastity or the willingness or consent of (victim) is not
a defense if [he] [she] was under 18 years of age at the time of the offense.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comments
A conviction under § 787.06(3)(f)1, Florida Statutes, (human trafficking via
commercial sexual activity of a child by transport or transfer into Florida) is a
felony of the first degree, punishable by imprisonment for a term of years not
exceeding life. However, a conviction under § 787.06(3)(g), Florida Statutes,
(human trafficking via commercial sexual activity where a child was involved but
without a finding that the child was transported from outside the state) is a life
felony.
This instruction was adopted in 2013 [131 So. 3d 692] and amended in 2015
[176 So. 3d 938], and 2016 [200 So. 3d 754], and 2019.
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