In re Standard Jury Instructions in Criminal Cases—Report No. 2012–09

Decision Date04 September 2013
Docket NumberNo. SC12–2595.,SC12–2595.
Citation122 So.3d 263
PartiesIn re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT NO. 2012–09.
CourtFlorida Supreme Court

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

Joseph A. Bulone, Chair, Clearwater, FL, and Jacqueline Hogan Scola, Past Chair, Standard Jury Instruction in Criminal Cases Committee, Miami, FL, and Bart Schneider, Senior Attorney, Office of State Court Administrator, Tallahassee, FL, for Petitioner.

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. Seeart. V, § 2(a), Fla. Const.

Following publication of its proposals in The Florida Bar News, on December 27, 2012, the Committee filed its report in this case, proposing amendments to the standard criminal jury instructions. The Committee received comments from two assistant public defenders and the Florida Public Defender Association. The Committee declined to change its proposals upon review of the comments. Having considered the Committee's report and the comments received by the Committee, we authorize for publication and use the following amended and new instructions as proposed by the Committee: 11.13 (Voyeurism); 11.13(a)-(b) (Video Voyeurism); 11.13(c)-(d) (Video Voyeurism Dissemination); 11.13(e)-(g) (Commercial Video Voyeurism); 11.13(h) (Voyeurism Involving Certain Aged Minors or Defendants); 11.17(a) (Soliciting for Unlawful Sexual Conduct Using Computer Services or Devices); 11.17(b) (Soliciting 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); 11.17(d) (Traveling to Meet a Minor Facilitated by a Parent, Legal Guardian, or Custodian); 13.5 (Trespass on School Property with a Firearm/Weapon); 15.1 (Robbery); 15.3 (Home–Invasion Robbery); 16.1 (Aggravated Child Abuse); 16.2 [Reserved]; 16.3 (Child Abuse); and 16.5–16.6 (Neglect of a Child). 1

We authorize for publication and use amended instructions 15.2 (Carjacking) and 15.4 (Robbery by Sudden Snatching) as proposed by the Committee, but with one minor modification: we include the definition of “weapon” that is included in instructions 15.1 (Robbery) and 15.3 (Home–Invasion Robbery).

The new and amended instructions, as set forth in the appendix to this opinion, are authorized for publication and use.2New 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.

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

APPENDIX

11.13 VOYEURISM

§ 810.14, Fla. Stat.

To prove the crime of Voyeurism, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) secretly [observed] (victim).

2. The (act alleged) was done with a [lewd] [lascivious] [indecent] intent.

3. When (victim) was observed [he][she] was in a [dwelling] [structure] [conveyance] in which [he][she] had a reasonable expectation of privacy.

The words lewd, lascivious, and indecent mean the same thing :, a wicked, lustful, unchaste, licentious, or sensual intent on the part of the person doing the act.

Definitions. Give as applicable. Jacobs v. State, 41 So.3d 1004 (Fla. 1st DCA 2010).

“Dwelling” means a building [or conveyance] of any kind, including any attached porch [or attached garage], whether such building [or conveyance] is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the enclosed space of ground and outbuildings immediately surrounding it. The enclosure need not be continuous and may have an opening for entering and exiting.

Jacobs v. State, 41 So.3d 1004 (Fla. 1st DCA 2010).

“Structure” means any kind of building, either temporary or permanent, that has a roof over it, together with the enclosed space of ground and outbuildings immediately surrounding it. The enclosure need not be continuous and may have an opening for entering and exiting.

“Conveyance” means any motor vehicle, ship, vessel, railroad car, trailer, aircraft or sleeping car.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

+----------------------------+
                ¦VOYEURISM—810.14  ¦       ¦
                +----------------------------+
                
+----------------------------------------------------------------------------+
                ¦CATEGORY ONE    ¦CATEGORY TWO    ¦FLA. STAT.  ¦INS. NO.  ¦                  ¦
                +----------------+----------------+------------+----------+------------------¦
                ¦None            ¦                ¦            ¦          ¦                  ¦
                +----------------+----------------+------------+----------+------------------¦
                ¦                ¦Attempt         ¦777.04(1)   ¦5.1       ¦                  ¦
                +----------------------------------------------------------------------------+
                

Comments

It is error to inform the jury of a prior conviction before a determination of guilt of the charged offense. Therefore, do not read the allegation of prior conviction or send the information or indictment into the jury room. If the defendant is convicted of the current charge, the historical fact of a previous conviction shall be determined beyond a reasonable doubt by the jury in a bifurcated proceeding. State v. Harbaugh, 754 So.2d 691 (Fla.2000).

This instruction was adopted in 2000 , and amended in 2008 [982 So.2d 1160] and 2013.

11.13(a) VIDEO VOYEURISM

§ 810.145(2)(a) or (b), Fla. Stat.

To prove the crime of Video Voyeurism, the State must prove the following fourfive elements beyond a reasonable doubt:

Give 1a or 1b as applicable.

1. (Defendant)

a. intentionally [used] [or] [installed] an imaging device to secretly [view] [broadcast] [or] [record] (victim) for [his][her] own [amusement] [entertainment] [sexual arousal] [gratification] [or] [profit] [or] [for the purpose of degrading or abusing (victim) ].

b. intentionally permitted [the use] [or] [installation] of an imaging device to secretly [view] [broadcast] [or] [record] (victim) for the [amusement] [entertainment] [sexual arousal] [gratification] [or] [profit] [of another or on behalf of another].

2. (Victim) was thereby [viewed] [broadcast] [or] [recorded] at a time when the (victim) was [dressing] [undressing] [or] [privately exposing [his][her] body].

3. At the place and time when (victim) was [viewed] [broadcast] [or] [recorded], [he][she] had a reasonable expectation of privacy.

4. The [viewing] [broadcast] [or] [recording] of (victim) was without the knowledge and consent of (victim).

5. At the time (defendant) [viewed] [broadcast] [or] [recorded] (victim), (defendant) was [19 years of age or older] [under 19 years of age].

Definitions.

“Broadcast” means electronically transmitting a visual image with the intent that it be viewed by another person.

“Imaging device” means any mechanical, digital, or electronic viewing device; still camera; camcorder; motion picture camera; or any other instrument, equipment, or format capable of recording, storing, or transmitting visual images of another person.

“Place and time when a person has a reasonable expectation of privacy” means a place and time when a reasonable person would believe that he or she could fully disrobe in privacy, without being concerned that his or her undressing was being viewed, recorded, or broadcasted by another, including, but not limited to, the interior of a residential dwelling, bathroom, changing room, fitting room, dressing room, or tanning booth.

“Privately exposing the body” means exposing a sexual organ.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

+------------------------------------------------------+
                ¦VIDEO VOYEURISM—810.145(2)(a) or (b)  ¦             ¦
                +------------------------------------------------------+
                
+----------------------------------------------------------------------------+
                ¦CATEGORY ONE    ¦CATEGORY TWO    ¦FLA. STAT.  ¦INS. NO.  ¦                  ¦
                +----------------+----------------+------------+----------+------------------¦
                ¦None            ¦                ¦            ¦          ¦                  ¦
                +----------------+----------------+------------+----------+------------------¦
                ¦                ¦Attempt         ¦777.04(1)   ¦5.1       ¦                  ¦
                +----------------------------------------------------------------------------+
                

Comments

It is error to inform the jury of a prior conviction before a determination of guilt of the charged offense. Therefore, do not read the allegation of prior conviction or send the information or indictment into the jury room. If the defendant is convicted of the current charge, the historical fact of a previous conviction shall be determined beyond a reasonable doubt by the jury in a bifurcated proceeding. State v. Harbaugh, 754 So.2d 691 (Fla.2000).

This instruction was adopted in 2008 [982 So.2d 1160] and 2013.

11.13(b) VIDEO VOYEURISM

§ 810.145(2)(c), Fla. Stat.

To prove the crime of Video Voyeurism, the State must prove the following threefour elements beyond a reasonable doubt:

1. (Defendant) intentionally used an imaging device to secretly [view] [broadcast] [or] ...

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