In re Standard Jury Instructions in Criminal Cases—Report 2017-03
| Decision Date | 08 March 2018 |
| Docket Number | No. SC17–1652,SC17–1652 |
| Citation | 238 So.3d 182 (Mem) |
| Parties | IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2017–03. |
| Court | Florida Supreme Court |
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
The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted proposed changes to standard jury instructions 16.10 (Possession of Material Including Sexual Conduct by a Child with Intent to Promote) and 25.7 (Possession of a Controlled Substance). The Committee requests that the Court authorize for publication and use the amended standard instructions. We have jurisdiction. See art. V, § 2(a), Fla. Const.
The Committee's proposals derive from a referral made by the Court, requesting that the Committee "consider appointing a subcommittee of prosecutors, defense lawyers, and judges to more thoroughly consider [the issue of simplifying the possession instructions] and determine whether the criminal jury instructions should be simplified." Accordingly, the Committee created a subcommittee of eleven persons, including district court of appeal judges, circuit court judges, prosecutors, and defense attorneys, with the Committee's Chair acting as chair of the subcommittee. The subcommittee unanimously agreed, and the Committee also agreed, that the existing explanation of "possession" in the standard criminal jury instructions should be simplified. Following receipt of the subcommittee's recommendations on amending the possession-related instructions, the Committee ultimately submitted to the Court its proposals to amend instructions 16.10 and 25.7.1 We amend the instructions as proposed by the Committee, and significant amendments are discussed below.2
Instruction 16.10 is amended to include an explanation of "possession," which was not previously defined in the instruction, as follows:
With regard to instruction 25.7, the explanation for "possession" used in instruction 16.10 as amended is also added to instruction 25.7, with modifications applicable to an offense pertaining to a controlled substance. In addition, the definitions for "mixture," "possession," "actual possession," and "constructive possession" are removed, as is the inference for "exclusive control."
Having considered the Committee's report, the comment from attorney Richard Sanders, and the Committee's response, we authorize for publication and use amended instructions 16.10 and 25.7, as proposed, and as set forth in the appendix to this opinion.3 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.
APPENDIX
16.10 POSSESSION OF MATERIAL INCLUDING SEXUAL CONDUCT BY A CHILD WITH INTENT TO PROMOTE § 827.071(4), Fla. Stat.
To prove the crime of Possession of Material including Sexual Conduct by a Child with Intent to Promote, the State must prove the following two elements beyond a reasonable doubt:
The possession of three or more copies of such [photograph] [motion picture] [exhibition] [show] [representation] [presentation] may justify a finding of an intent to promote if, from all the surrounding facts and circumstances, you are convinced beyond a reasonable doubt that the intent existed.
To prove (defendant) possessed a[n] [photograph] [motion picture] [exhibition] [show] [representation] [presentation] that included sexual conduct by a child, the State must prove beyond a reasonable doubt that [he] [she] a) knew of the nature of the material in the [photograph] [motion picture] [exhibition] [show] [representation] [presentation] and b) intentionally exercised control over that [photograph] [motion picture] [exhibition] [show] [representation] [presentation].
Give if applicable.
Control can be exercised over an item whether the item is carried on a person, near a person, or in a completely separate location. Mere proximity to an item does not establish that the person intentionally exercised control over the item in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the item or the present ability to direct its control by another.
Joint possession. Give if applicable.
Possession may be sole or joint, that is, two or more persons may possess a[n] [photograph] [motion picture] [exhibition] [show] [representation] [presentation].
"Promote" means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit, or advertise or to offer or agree to do the same.
"Sexual conduct" means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast, with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed.
Give if applicable.
A mother's breastfeeding of her baby does not under any circumstance constitute "sexual conduct."
Give as applicable.
"Deviate sexual intercourse" means sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva.
"Sadomasochistic abuse" means flagellation or torture by or upon a person, or the condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction from inflicting harm on another or receiving such harm oneself.
"Sexual battery" means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of anotherby any other object; however, "sexual battery" does not include an act done for a bona fide medical purpose.
"Sexual bestiality" means any sexual act between a person and an animal involving the sex organ of the one and the mouth, anus, or vagina of the other.
"Simulated" means the explicit depiction of "sexual conduct," as defined above, which creates the appearance of such conduct and which exhibits any uncovered portion of the breasts, genitals, or buttocks.
Lesser Included Offenses
POSSESSION OF MATERIAL INCLUDING SEXUAL
CONDUCT BY A CHILD WITH INTENT TO PROMOTE —
827.071(4)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO
Knowing possession of 827.071(5)(a) 16.11
a photograph, motion
picture, exhibition
show, representation
or other presentation
which, in whole or in
part, was known by
defendant to include
any sexual conduct by
a child
Attempt 777.04(1) 5.1
Comment
This instruction was adopted in 2008 and amended in 2018.
25.7 POSSESSION OF A CONTROLLED SUBSTANCE
Certain drugs and chemical substances are by law known as "controlled substances." (Specific substance alleged)is a controlled substance.
To prove the crime of Possession of a Controlled Substance, the State must prove the following [two] [three] [four] elements beyond a reasonable doubt:
1. (Defendant)knew of the presence of possessed a substance.
2. (Defendant)exercised centered or ownership over that substance.
3 2. The substance was (specific substancealleged).
§ 893.13(6)(b). Fla. Stat. Give if applicable.
The jury must make a finding as to weight if the defendant is charged with possessing more...
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