In re Standard Jury Instructions in Criminal Cases—report 2018-04

• Decision Date: 15 November 2018
• Docket Number: No. SC18-1113,SC18-1113
• Parties: IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2018-04.
• Court: Florida Supreme Court

257 So.3d 370 (Mem)

IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2018-04.

No. SC18-1113

Supreme Court of Florida.

November 15, 2018

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

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. See art. V, § 2(a), Fla. Const.

The Committee proposes amending standard criminal jury instructions 11.7 (Unlawful Sexual Activity with Certain Minors), 11.10 (Lewd, Lascivious, Indecent Assault or Act Upon or in the Presence of Child; Sexual Battery), 11.10(a) (Lewd or Lascivious Battery (Engaging in Sexual Activity) ), 11.10(b) (Lewd or Lascivious Battery (Encouraging, Forcing or Enticing) ), 11.10(c) (Lewd or Lascivious Molestation), 11.10(d) (Lewd or Lascivious Conduct), 11.10(e) (Lewd or Lascivious Exhibition Presence of Child), 11.10(f) (Lewd or Lascivious Exhibition Over Computer Service), 11.10(g) (Lewd or Lascivious Exhibition by a Detainee in the Presence of an Employee of a Facility), 11.11 (Lewd or Lascivious Offenses Committed Upon or in the Presence of an Elderly Person or Disabled Person), 11.12 (Incest), 11.18 (Sexual Misconduct by a Psychotherapist), 11.21 (Transmission of Material Harmful to Minors by Electronic Device or Equipment), and 29.13(c) (Sexual Activity with an Animal). All of the proposals were published in The Florida Bar News. No comments were received by the Committee.

We authorize for publication and use instructions 11.7, 11.10(b), 11.10(c), 11.10(d), 11.10(e), 11.10(f), 11.10(g), 11.18, and 11.21 as proposed. Instruction 11.10(a) is authorized for publication and use as set forth in Appendix A to the Committee's report, rather than as described in the report. Instructions 11.10, 11.11, 11.12, and 29.13(c) are authorized for publication and use as modified. The more significant amendments to the instructions are discussed below.

First, the following changes are common with regard to many of the instructions.

Instructions 11.10, 11.10(a), 11.10(b), 11.10(c), and 11.10(d) as authorized reverse the order of the elements pertaining to the victim's and/or the defendant's ages and the defendant's conduct, so that the defendant's conduct is listed first in order.

The offense of Unnatural and Lascivious Act is added to the table of lesser-included offenses as a Category Two lesser offense to instructions 11.7, 11.10(f), 11.18, and 29.13, and a new comment based in part upon State v. Knighton , 235 So.3d 312 (Fla. 2018), modifies that lesser-included offense, as follows:

The courts do not require the State to allege the defendant's act was "unnatural" or "against the laws of nature" in order for § 800.02, Fla. Stat., to be given as a lesser-included offense. If the sexual activity involved penile-vaginal sexual intercourse (or contact), § 800.02, Fla. Stat. should not be given as a lesser-included offense. However, if the sexual activity involved something other than penile-vaginal sexual intercourse (or contact), § 800.02, Fla. Stat. should be given as a lesser-included offense. See State v. Knighton , 235 So.3d 312 (Fla. 2018).^{[1 ]}

Definitions for "bona fide" and "union" are added to the instructions as applicable, and the term "enhancement" is replaced by "reclassification" in instructions 11.7, 11.10(a), 11.10(b), 11.10(c), 11.10(d), 11.10(e), 11.11, and 11.21, because section 775.0862, Florida Statutes (2018), is a reclassification statute.

Lastly, in instructions 11.10(e), 11.10(g), and 11.11, the statutory definitions for "sadomasochistic abuse" and "sexual bestiality" are changed from those in sections 847.001(13) and 847.001(15), Florida Statutes (2018), respectively, to those in sections 827.071(e) and 827.071(g), Florida Statutes (2018), respectively, and the following new comment is added: "There are statutory definitions of ‘sadomasochistic abuse’ and ‘sexual bestiality’ in § 847.001, Fla. Stat., that differ from the statutory definitions in § 827.071, Fla. Stat. As of June 2018, there is no case law that decides which definition applies for a violation of [§ 800.04(7)(a), § 800.09, or § 825.1025, as applicable], Fla. Stat."

Turning to the individual instructions, the following additional changes are made.

We clarify that instruction 11.10 applies only to offenses committed prior to October 1, 1999.

In addition, we authorize instruction 11.10(a) as set out in the Committee's Appendix A to its report, leaving the offense of Unnatural and Lascivious Act as a Category Two lesser-included offense rather than moving it to the Category One box as discussed in the report.

In instruction 11.10(b), the statutory citations for "sadomasochistic abuse" and "sexual bestiality," sections 847.001(13) and 847.001(15), respectively, are removed, leaving the citations to sections 827.071(e) and 827.071(g), respectively. In addition, the comment added to instructions 11.10(e), 11.10(g), and 11.11 as set forth above, addressing section 847.001 statutory definitions, is also included in instruction 11.10(b).

The table of lesser-included offenses is updated in instruction 11.10(c) to reflect in the heading the primary offense of Lewd or Lascivious Molestation—Defendant 18 or Over; Victim Less Than 12, and that Lewd or Lascivious Molestation based upon the ages of the victim and/or the defendant are Category One lesser-included offenses, similar to the table of lesser-included offenses in instruction 11.1 (Sexual Battery—Victim Less Than 12 Years of Age).

Instruction 11.11, element three, pertaining to the defendant's knowledge, is modified to provide "at the time of the offense," which is consistent with instructions 11.10(a), 11.10(b), 11.10(c), 11.10(d), 11.10(e), and 11.10(f).

With regard to instruction 11.12, the table of lesser-included offenses is modified from the Committee's proposal to reflect that Unnatural and Lascivious Act is a Category Two lesser offense and includes the corresponding comment described above.

Definitions for "prurient interest" and "morbid interest" have been added to instruction 11.21, and are the same definitions for those terms already provided in instructions 24.1-24.6, the obscenity-related instructions.

Last, we decline the Committee's request that instruction 29.13(c) be authorized to include Unnatural and Lascivious Act as a Category One lesser-included offense, as that presents a matter of substantive law to be decided in a case or controversy, and to date it does not appear that that issue has expressly been addressed. See art. V, § 3(b), Fla. Const.; cf. In re Std. Jury Instr. in Crim. Cases—Report No. 2015-05 , 195 So. 3d 1088, 1089 (Fla. 2016) (stating that the issue of the constitutionality of a statutory provision that an instruction is based upon is beyond the scope of a jury instruction case).

Having considered the Committee's report, we authorize the amended instructions, as set forth in the appendix to this opinion, for publication and use.² 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 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 PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.

APPENDIX

11.7 UNLAWFUL SEXUAL ACTIVITY WITH CERTAIN MINORS

§ 794.05, Fla. Stat.

To prove the crime of Sexual Activity with a Minor, the State must prove the following three elements beyond a reasonable doubt:

Give 1a and/or 1b depending on the allegations and the evidence.

1. a. (Defendant) committed an act 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 with (victim) in which the [anus] [vagina] of [(victim)] [(defendant)] was penetrated by an object. The definition of an object includes a finger.

2. At the time, (defendant) was 24 years of age or older.

3. At the time, (victim) was 16 or 17 years of age.

Give if applicable.

Union means contact.

Give if applicable.

Lakey v. State, 113 So.3d 90 (Fla. 5th DCA 2013).

The definition of "an object" includes a finger.

Give if applicable.

§ 794.05(1), Fla. Stat.

Sexual activity does not include an act done for a bona fide medical purpose.

Give if requested. § 794.05(3), Fla. Stat.

(Victim's)lack of chastity is not a defense to the crime charged.

Give if requested. Feliciano v. State, 937 So.2d 818 (Fla. 1st DCA 2006); § 794.021, Fla. Stat.

The defendant's ignorance of (victim's)age, (victim's)misrepresentation of his or her age, or the defendant's bona fide belief of (victim's)age is not a defense to the crime charged.

Give if applicable.

"Bona fide" means genuine.

§ 775.0862, Fla. Stat.

EnhancementReclassificationfor sexual offense against student by school authority figure.

If you find that (defendant)committed the crime of Sexual Activity With a Minor, you must also determine whether the State has proved beyond a reasonable doubt that (defendant)was an authority figure at a school and (victim)was a student at the same school.

"Authority figure" means a person 18 years of age or older who is...