In re Standard Jury Instructions in Criminal Cases—report Number

• Decision Date: 05 December 2013
• Docket Number: No. SC12–2031.,SC12–2031.
• Citation: In re Standard Jury Instructions in Criminal Cases—report No. 2012-05, 131 So.3d 755 (Fla. 2013)
• Parties: In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT NO. 2012–05.
• Court: Florida Supreme Court

131 So.3d 755

In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT NO. 2012–05.

No. SC12–2031.

Supreme Court of Florida.

Dec. 5, 2013.

OPINION TEXT STARTS HEREOriginal Proceeding—Supreme Court Committee on Standard Jury Instructions in Criminal Cases.

Honorable Joseph A. Bulone, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Clearwater, FL; Honorable Jacqueline Hogan Scola, Past Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases; and Bart Schneider, Senior Attorney, Office of State Courts Administrator, Tallahassee, FL.

PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases(Committee) proposes several new standard criminal jury instructions and amendments to several existing standard criminal jury instructions.We have jurisdiction.Seeart.V, § 2(a), Fla. Const.We authorize the new and amended instructions for publication and use, except as explained below.

The Committee asks the Court to authorize for publication and use new criminal jury instructions 8.7(d)(Aggravated Stalking (Defendant previously sentenced for sex offense and prohibited from contacting victim)); 8.24 (Violation of Stalking Injunction); 14.9 (Exploitation of an Elderly or Disabled Person); 21.14 (False Information to Law Enforcement Investigating a Missing Person 16 Years of Age or Younger); and 29.18 (Failure to Appear).The Committee also proposes amending existing criminal jury instructions 2.4 (Evidence of Other Crimes, Wrongs, or Acts (“ Williams Rule”));3.8(a)(Evidence of Other Crimes, Wrongs, or Acts (“ Williams Rule”)); 8.2 (Aggravated Assault); 8.6 (Stalking);8.7(a)(Aggravated Stalking);8.7(b)(Aggravated Stalking (Injunction Entered)); 8.12 (Aggravated Assault on Law Enforcement Officer or Firefighter); 8.15 (Aggravated Assault on an Elderly Person); 10.6 (Discharging a Firearm in Public); 11.1 (Sexual Battery—Victim Less Than 12 Years of Age); 16.12 (Leaving Child Unattended or Unsupervised in Motor Vehicle); 21.8 (Tampering With or Fabricating Physical Evidence);and 28.5(a)(Racing on a Highway).Finally, two of the proposed instructions are currently in existence, but the Committee is recommending renumbering them as follows: 8.7(c)(Aggravated Stalking (Victim Under 16))(renumbered from existing instruction 8.8); 21.15 (False Information to Law Enforcement)(renumbered from existing instruction 18.3).¹

Before filing its report with the Court, the Committee published these proposals for comment, except for instruction 21.8 (Tampering With or Fabricating Physical Evidence), because that proposal involved only minor changes.Two comments were received by the Committee, and the Committee made changes to the proposals in response to one of the comments.The Court did not publish the proposals after they were filed.

In the Committee's proposal for instruction 11.1 (Sexual Battery—Victim Less Than 12 Years of Age), the Committee proposes language stating that the victim's consent, the victim's lack of chastity, and mistakes about the victim's age are not defenses.However, no legal authority is cited to support those statements.Moreover, the Committee proposes adding the crime of “battery” to the list of category two lesser-included offenses, even though “battery” already appears in the list of category one lesser-included offenses.Thus, as proposed, “battery” would appear as both a category one and as a category two lesser-included offense.Given these two issues, we decline to authorize instruction 11.1 for publication and use and instead refer this instruction back to the Committee for further consideration.

Next, in the Committee's proposal for new instruction 8.7(d)(Aggravated Stalking), element one of the offense reads as follows:

(Defendant)was sentenced for [sexual battery] [lewd or lascivious [battery][molestation][conduct][exhibition][violating Fla. Stat. 847.0135(5) ].

The statute on which this part of the instruction is based does not explicitly refer to “lewd or lascivious” behavior.Instead, the statute simply refers to section 800.04, Florida Statutes, which covers crimes committed in the presence of a minor under the age of 16.See§ 784.048(7), Fla. Stat.(2012).The proposed jury instruction does not state that the crime must have been committed in the presence of a person under 16.Thus, we amend the proposed language in elementone of this instruction to read as follows:

(Defendant)was sentenced for [sexual battery][violating Fla. Stat. 800.04][violating Fla. Stat. 847.0135(5) ].

Accordingly, we hereby authorize for publication and use the instructions as they appear in the appendix to this opinion.²In 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 an additional or alternative instruction nor contesting the legal correctness of the instructions.We further caution all interested parties that any notes and 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.New language is indicated by underlining and deleted language is indicated by struck-through type.The instructions as set forth in the appendix shall be effective when this opinion becomes final.

It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur.

APPENDIX

2.4 EVIDENCE OF OTHER CRIMES, WRONGS, OR ACTS “ WILLIAMS RULE”

§ 90.404(2)(a), (2)(b), (2)(c), and (2)(d)2, Fla. Stat.

To be given at the time the evidence is admitted, if requested.

The evidence you are about to receive concerning evidence of other crimes, wrongs, or acts allegedly committed by the defendant will be considered by you for the limited purpose of [proving [motive][opportunity][intent][preparation][plan][knowledge][identity][the absence of mistake or accident]]on the part of the defendant[ (other relevant factor) ][corroborating the testimony of(victim) ]*and you shall consider it only as it relates to [that][those] issue[s].

However, the defendant is not on trial for a crime, wrong, or act that is not included in the [information][indictment].

Comments

* Evidence that is admitted to corroborate the testimony of a victim is allowed only in child molestation and sexual offense cases.Seesection 90.404(2)(b), Fla. Stat., effective July 1, 2001, in child molestation cases.See90.404(2)(c) Fla. Stat., effective July 1, 2011, for cases involving sexual offenses.

This instruction was adopted in 1981 and was amended in 2000[765 So.2d 692], and 2007,[SC07–325, Corrected Opinion, August 30, 2007]and 2013.

3.8(a) EVIDENCE OF OTHER CRIMES, WRONGS, OR ACTS“ WILLIAMS RULE”

§ 90.404(2)(a), (2)(b), (2)(c), and (2)(d)2, Fla. Stat.

To be given at the close of evidence, if applicable.

The evidence which has been admitted to show other crimes, wrongs, or acts allegedly committed by the defendant will be considered by you only as that evidence relates to [proof of [motive][opportunity][intent][preparation][plan][knowledge][identity][the absence of mistake or accident]]on the part of the defendant][ (other relevant fact) ][corroboration of the testimony of (victim) ]*.

However, the defendant cannot be convicted for a crime, wrong, or act that is not included in the [information][indictment].

Comments

* Evidence that is admitted to corroborate the testimony of a victim is allowed only in child molestation and sexual offense cases.Seesection 90.404(2)(b), Fla. Stat., effective July 1, 2001, in child molestation cases.See90.404(2)(c) Fla. Stat., effective July 1, 2011, for cases involving sexual offenses.

This instruction was adopted in 1981 and was amended in 2000[765 So.2d 692], and 2007,[SC07–325, Corrected Opinion, August 30, 2007] and 20112012 [87 So.3d 679], and 2013.

8.2 AGGRAVATED ASSAULT

§ 784.021, Fla. Stat.

To prove the crime of Aggravated Assault, the State must prove the following four elements beyond a reasonable doubt.The first three elements define assault.

1.(Defendant)intentionally and unlawfully threatened, either by word or act, to do violence to(victim).

2.At the time,(defendant)appeared to have the ability to carry out the threat.

3.The act of(defendant)created in the mind of(victim)a well-founded fear that the violence was about to take place.

Give 4a or 4b as applicable.If 4b is alleged, give the elements of the felony charged.

4. a.[The assault was made with a deadly weapon.]

b.[The assault was made with a fully-formed, conscious intent to commit(crimefelony charged)upon(victim).]

( If 4b is alleged, define the crime charged.

Give if applicable.McClain v. State, 383 So.2d 1146(Fla. 4th DCA1980);Smithson v. State, 689 So.2d 1226(Fla. 5th DCA1997);Gilbert v. State, 347 So.2d 1087(Fla. 3rd DCA1977).

If the circumstances were such as to ordinarily induce a well-founded fear in the mind of a reasonable person, then the victim may be found to have been in fear, and actual fear on the part of the actual victim need not be shown.

Definition.Give if 4a 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 4a alleged.

It is not necessary for the State to prove that the defendant had an intent to kill.

Lesser Included Offenses

IMAGE

Comment

This instruction was approved in 1981and amended in 2013.

8.6 STALKING

§ 784.048(2), Fla. Stat.

To prove the crime of Stalking, the State must prove the following element beyond a reasonable doubt:

(Defendant)willfully, maliciously, and repeatedly [followed][harassed][or][cyberstalked](victim).

Definitions.

§ 784.048(1)(a), Fla. Stat.

“Harass” means to engage in a course of conduct directed at a specific person whichthat causes substantial emotional distress to thatin such person and serves no...