Croft v. State, Case No. 5D19-2266

• Decision Date: 27 March 2020
• Docket Number: Case No. 5D19-2266
• Parties: Kenya CROFT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

291 So.3d 1285

Kenya CROFT, Appellant,

v.STATE of Florida, Appellee.

Case No. 5D19-2266

District Court of Appeal of Florida, Fifth District.

Opinion filed March 27, 2020

James S. Purdy, Public Defender, and Joseph Chloupek, Assistant Public Defender, Daytona Beach, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Appellee.

LAMBERT, J.

Kenya Croft was convicted after trial of two counts of aggravated battery with a deadly weapon or causing great bodily harm. Croft raises two issues for reversal in this direct appeal, one of which we find to be dispositive. Concluding that the trial court erred in denying Croft’s request that the jury be instructed on the justifiable use of non-deadly force, we reverse the judgment and sentences and remand for a new trial.¹

The altercation that ultimately led to Croft’s convictions occurred at the apartment where his sister, Zhane McCarthy, lived. Croft was helping her move furniture and some of her personal belongings from the apartment. McCarthy’s boyfriend, Ramon Burgos, was also present to assist with the move.

Croft and Burgos got into a disagreement as to how to disassemble a bedframe. While their testimony at trial differed as to the origin and chronology of their dispute, both Croft and Burgos acknowledged that it became physical. Croft testified that Burgos attacked him first by striking him in the head, resulting in a cut to his forehead

. Croft further testified that he defended himself from Burgos by using a screwdriver he had in his possession at the time. Burgos testified that Croft was the aggressor and that he sustained wounds to his finger and to his side or abdomen when Croft cut or stabbed him with a knife. Burgos received a stitch on his finger, but did not require stitches for his other injury. As to McCarthy, she was injured when she got between the two men in an effort to break up the confrontation. McCarthy testified that she did not see Croft with a knife, but, nevertheless, was cut on her hand or arm requiring three stitches.

Croft’s position at trial was that he had acted in self-defense. During the charge conference, the trial court indicated that it intended to instruct the jury with Florida Standard Jury Instruction in Criminal Cases 3.6(f) regarding the justifiable use of deadly force. Croft’s trial counsel requested that the court instruct the jury with Florida Standard Jury Instruction 3.6(g) pertaining to the justifiable use of non-deadly force. Counsel argued that while the State had presented evidence of a stabbing, there was no evidence that either Burgos or McCarthy had suffered extensive or internal injuries or had been at risk of death or great bodily harm from the altercation.² The court denied Croft’s request for the non-deadly force instruction, but observed that counsel could "certainly argue nondeadly force [to the jury]."

A trial court’s decision to give or withhold a proposed jury instruction is reviewed for an abuse of discretion. Davis v. State , 922 So. 2d 438, 444 (Fla. 5th DCA 2006) (citing Worley v. State , 848 So. 2d 491, 492 (Fla. 5th DCA 2003) ). This discretion, however, is narrower in a criminal proceeding "because a criminal defendant is entitled to have the jury instructed on his or her theory of defense if there is any evidence to support the theory and the theory is recognized as valid under Florida law." Vila v. State , 74 So. 3d 1110, 1112 (Fla. 5th DCA 2011) (citing Cruz v. State , 971 So. 2d 178, 181–82 (Fla. 5th DCA 2007) ). For the following reasons, the trial court abused its discretion in not giving the requested non-deadly force jury instruction on Croft’s claim of self-defense.

When the type of force used by a defendant is clearly deadly or non-deadly as a matter of law, only the applicable instruction should be given. Brown v. State , 113 So. 3d 103, 104 (Fla. 5th DCA 2013) (quoting DeLuge v. State , 710 So. 2d 83, 84 (Fla. 5th DCA 1998) ). However, where there is any evidence presented at trial that supports an instruction on either deadly or non-deadly force, it is error not to give it. Id. (citing Curington v. State , 704 So. 2d 1137, 1140 (Fla. 5th DCA 1998) ). In deciding the instruction to be given, the trial court’s focus is on the nature of the force used by the defendant. DeLuge , 710 So. 2d at 84 (citing Garramone v. State , 636 So. 2d 869, 871 (Fla. 4th DCA 1994) ).

Deadly force used in self-defense occurs "where the natural, probable, and foreseeable consequences of the defendant’s acts are death." Copeland v. State , 277 So. 3d 1137, 1140 (Fla. 5th DCA 2019) (quoting Cruz , 971 So. 2d at 182 ). Deadly force may be used in self-defense if, under the circumstances, it appears to be reasonably necessary to prevent imminent death or great bodily harm or the commission of a forcible felony. DeLuge , 710 So. 2d at 84 (citing § 776.012, Fla. Stat. (1995) ). In contrast, a defendant is justified in using non-deadly force, which is force not likely to cause death or great bodily harm,³ to the extent reasonably necessary to defend oneself against the imminent use of unlawful force. Id. (citing § 776.012, Fla. Stat. (1995) ). Thus, a defendant’s use of deadly force is justifiable in much narrower circumstances than the use of non-deadly force. Copeland , 277 So. 3d at 1141.

By rejecting Croft’s request for the non-deadly force jury instruction and concluding that only the deadly force instruction would be given, the trial court necessarily determined that, as a matter of law, the force used by Croft that resulted in McCarthy receiving three stitches to her hand or arm and Burgos having one stitch to his finger, was deadly. See Brown , 113 So. 3d at 104. Even assuming that Croft used a knife when he stabbed or cut Burgos and McCarthy, this would not summarily equate to the use of deadly force as a matter of law. See Copeland , 277 So. 3d at 1140 (citing DeLuge , 710 So. 2d at 84 (recognizing that even a deadly weapon, such as a knife, can be used without deadly force)). Under the evidence presented at trial, including the nature and location of the victims’ injuries, whether the extent of the force used by Croft was deadly or non-deadly was a question of fact for the jury to decide. Accordingly, it was reversible error for the trial court not to have given the standard jury instruction on non-deadly force. See Brown , 113 So. 3d at 104 (holding that a trial court errs in failing to give the non-deadly force instruction where any evidence presented at trial...