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April 15, 2014
Amendments to jury instructions in criminal cases

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases submits the following amended and new instructions to the Florida Standard Jury Instructions in Criminal Cases for comment. The committee proposes the following instructions:

8.10 ASSAULT ON LAW ENFORCEMENT OFFICER, FIREFIGHTER, ETC.

8.11 BATTERY ON LAW ENFORCEMENT OFFICER, FIREFIGHTER, ETC.

8.12 AGGRAVATED ASSAULT ON LAW ENFORCEMENT OFFICER, FIREFIGHTER, ETC.

8.13 AGGRAVATED BATTERY ON LAW ENFORCEMENT OFFICER, FIREFIGHTER, ETC.

11.20 TRANSMISSION OF CHILD PORNOGRAPHY BY ELECTRONIC DEVICE OR EQUIPMENT

11.21 TRANSMISSION OF MATERIAL HARMFUL TO MINORS BY ELECTRONIC DEVICE OR EQUIPMENT

29.16(a) UNLAWFUL PROTESTS

The committee invites all interested persons to comment on the proposals, reproduced in full below. Comments must be received by the committee in either hard copy or electronic format on or before May 15. The committee will review all comments received in response to the above proposal at its next meeting and will consider amendments based upon the comments received. Upon final approval of the instruction, the committee will make a recommendation to the Florida Supreme Court. File your comments electronically to CrimJuryInst@flcourts.org, in the format of a Word document or, mail a hard copy of your comments to Standard Jury Instructions Committee in Criminal Cases, c/o Bart Schneider, General Counsel’s Office, Office of the State Courts Administrator, 500 S. Duval Street, Tallahassee 32399-1900.

8.10 ASSAULT ON LAW ENFORCEMENT
OFFICER, FIREFIGHTER, ETC.
§ 784.07(2)(a), Fla. Stat.

To prove the crime of Assault on a [Law Enforcement Officer] [Firefighter] [Emergency Medical Care Provider] [Traffic Accident Investigation Officer] [Traffic Infraction Enforcement Officer] [Parking Enforcement Specialist] [Law Enforcement Explorer] [a Non-sworn Law Enforcement Agency Employee Certified as an Agency Inspector] [Blood Alcohol Analyst] [Breath Test Operator] [Railroad Special Officer] [Licensed Security Officer] [Federal Law Enforcement Officer], the State must prove the following six elements beyond a reasonable doubt:
      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.

      4. (Victim) was at the time a [law enforcement officer] [firefighter] [emergency medical care provider] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [federal law enforcement officer][law enforcement explorer] [nonsworn law enforcement agency employee who was certified as an agency inspector] [blood alcohol analyst] [breath test operator while such employee was in uniform and engaged in processing, testing, evaluating, analyzing, or transporting a person who was detained or under arrest for DUI]

          [railroad special officer] [licensed security officer who wore a uniform that bore at least one patch or emblem that was visible at all times that clearly identified the employing agency and that clearly identified the person as a licensed security officer] [security officer employed by the board of trustees of a community college].
      5. (Defendant) knew (victim) was a [law enforcement officer] [firefighter][emergency medical care provider] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [federal law enforcement officer] [law enforcement explorer][nonsworn law enforcement agency employee who was certified as an agency inspector] [blood alcohol analyst] [a breath test operator] [railroad special officer] [licensed security officer] [security officer employed by the board of trustees of a community college].

      6. At the time of the assault, (victim) was engaged in the lawful performance of [his] [her] duties.

For cases where the alleged victim is a law enforcement officer, do not refer to the victim by name when instructing on the sentence below. Instead, the instruction must state the class of officers to which the victim belongs, e.g., deputy sheriff, probation officer, correctional officer. See Wright v. State, 586 So.2d 1024 (Fla. 1991).
The court now instructs you that a (name of official position of victim designated in charge) is a [law enforcement officer] [firefighter] [emergency medical care provider] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [security officer employed by the board of trustees of a community college] [federal law enforcement officer].
In giving this sentence, do not refer to the victim by name. The instruction must state the class of officers to which the victim belongs, e.g., probation officer, correctional officer. See Wright v. State, 586 So.2d 1024 (Fla. 1991).

For cases involving other types of victims, insert definitions from § 784.07(1)(a), Fla. Stat. as appropriate.

Give if applicable. McClain v. State, 383 So. 2d 1146 (Fla. 4th DCA 1980); Smithson v. State, 689 So. 2d 1226 (Fla. 5th DCA 1997); Gilbert v. State, 347 So. 2d 1087 (Fla. 3d DCA 1977).
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.


Lesser Included Offenses
ASSAULT ON LAW ENFORCEMENT OFFICER FIREFIGHTER, ETC. -
784.07(2)(a)
CATEGORY ONECATEGORY TWOFLA. STAT.INS. NO.
Assault784.0118.1
Attempt777.04(1)5.1

Comment


Several statutes have been added in recent years providing for reclassification of assaults and batteries on designated classes: ‘‘ 784.074, 784.075, 784.076, 784.078, 784.081, 784.082, 784.083, and 784.085.

See Spurgeon v. State, 114 So. 3d 1042 (Fla. 5th DCA 2013)(holding that a conviction for a violation of § 784.07(2), Florida Statute had to be vacated because the statute does not include physicians, employees, agents, or volunteers of facilities that do not satisfy the definition of a hospital under chapter 395).

This instruction was adopted in 1981 [431 So. 2d 594] and amended in 1992 [603 So.2d 1175], 1995 [657 So.2d 1152], and 2007 [962 So. 2d 310], and 2008 [994 So. 2d 1038], and 2014.


8.11 BATTERY ON LAW ENFORCEMENT OFFICER,
FIREFIGHTER, ETC.
§ 784.07(2)(b), Fla. Stat.

To prove the crime of Battery on a [Law Enforcement Officer] [Firefighter] [Emergency Medical Care Provider] [Traffic Accident Investigation Officer] [Traffic Infraction Enforcement Officer] [Parking Enforcement Specialist] [Law Enforcement Explorer][a Non-sworn Law Enforcement Agency Employee Certified as an Agency Inspector] [Blood Alcohol Analyst] [Breath Test Operator] [Railroad Special Officer] [Licensed Security Officer] [Federal Law Enforcement Officer], the State must prove the following four elements beyond a reasonable doubt:
      1. (Defendant) intentionally
          [touched or struck (victim) against [his] [her] will].
          [caused bodily harm to (victim)].
      2. (Victim) was a [law enforcement officer] [firefighter] [emergency medical care provider] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [federal law enforcement officer][law enforcement explorer][nonsworn law enforcement agency employee who was certified as an agency inspector] [blood alcohol analyst] [breath test operator while such employee was in uniform and engaged in processing, testing, evaluating, analyzing, or transporting a person who was detained or under arrest for DUI] [railroad special officer] [licensed security officer who wore a uniform that bore at least one patch or emblem that was visible at all times that clearly identified the employing agency and that clearly identified the person as a licensed security officer] [security officer employed by the board of trustees of a community college].

      3. (Defendant) knew (victim) was a [law enforcement officer] [firefighter] [emergency medical care provider] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [federal law enforcement officer][law enforcement explorer][nonsworn law enforcement agency employee who was certified as an agency inspector] [blood alcohol analyst] [breath test operator] [railroad special officer] [licensed security officer] [security officer employed by the board of trustees of a community college].

      4. (Victim) was engaged in the lawful performance of [his] [her] duties when the battery was committed.

For cases where the alleged victim is a law enforcement officer, do not refer to the victim by name when instructing on the sentence below. Instead, the instruction must state the class of officers to which the victim belongs, e.g., deputy sheriff, probation officer, correctional officer. See Wright v. State, 586 So.2d 1024 (Fla. 1991).
The court now instructs you that a (name of official position of victim designated in charge) is a [law enforcement officer] [firefighter] [emergency medical care provider] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [security officer employed by the board of trustees of a community college] [federal law enforcement officer].
In giving this sentence, do not refer to the victim by name. The instruction must state the class of officers to which the victim belongs, e.g., probation officer, correctional officer. See Wright v. State, 586 So.2d 1024 (Fla. 1991).

For cases involving other types of victims, insert definitions from § 784.07(1)(a), Fla. Stat. as appropriate.

Lesser Included Offenses
BATTERY ON LAW ENFORCEMENT OFFICER, FIREFIGHTER, ETC.
784.07(2)(b)
CATEGORY ONECATEGORY TWOFLA. STAT.INS. NO.
Battery 784.038.3
Attempt777.04(1)5.1
Comment

See Spurgeon v. State, 114 So. 3d 1042 (Fla. 5th DCA 2013)(holding that a conviction for a violation of § 784.07(2), Florida Statute had to be vacated because the statute does not include physicians, employees, agents, or volunteers of facilities that do not satisfy the definition of a hospital under chapter 395).
This instruction was adopted in 1981 [431 So. 2d 594] and amended in 1992 [603 So.2d 1175], 1995 [657 So.2d 1152], and 2007 [962 So. 2d 310], and 2008 994 So. 2d 1038], and 2014.

8.12 AGGRAVATED ASSAULT ON LAW ENFORCEMENT
OFFICER, FIREFIGHTER, ETC.
§ 784.07(2)(c), Fla. Stat.

To prove the crime of Aggravated Assault on a [Law Enforcement Officer] [Firefighter] [Emergency Medical Care Provider] [Traffic Accident Investigation Officer] [Traffic Infraction Enforcement Officer] [Parking Enforcement Specialist] [Law Enforcement Explorer][a Non-sworn Law Enforcement Agency Employee Certified as an Agency Inspector] [Blood Alcohol Analyst] [Breath Test Operator] [Railroad Special Officer] [Licensed Security Officer] [Security Officer Employed by the Board of Trustees of a Community College] [Federal Law Enforcement Officer], the State must prove the following seven 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 (felony charged) upon (victim).

        5. (Victim) was at the time a [law enforcement officer] [firefighter] [emergency medical care provider] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [security officer employed by the board of trustees of a community college] [federal law enforcement officer] [law enforcement explorer] [nonsworn law enforcement agency employee who was certified as an agency inspector] [blood alcohol analyst] [breath test operator while such employee was in uniform and engaged in processing, testing, evaluating, analyzing, or transporting a person who was detained or under arrest for DUI] [railroad special officer]
          [licensed security officer who wore a uniform that bore at least one patch or emblem that was visible at all times that clearly identified the employing agency and that clearly identified the person as a licensed security officer].
          6. (Defendant) knew (victim) was a [law enforcement officer] [firefighter] [emergency medical care provider] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [security officer employed by the board of trustees of a community college] [federal law enforcement officer] [law enforcement explorer][nonsworn law enforcement agency employee who was certified as an agency inspector] [blood alcohol analyst] [a breath test operator] [railroad special officer] [licensed security officer].

          7. At the time of the assault, (victim) was engaged in the lawful performance of [his] [her] duties.


        For cases where the alleged victim is a law enforcement officer, do not refer to the victim by name when instructing on the sentence below. Instead, the instruction must state the class of officers to which the victim belongs, e.g., deputy sheriff, probation officer, correctional officer. See Wright v. State, 586 So.2d 1024 (Fla. 1991).
        The court now instructs you that a (name of official position of victim designated in charge) is a [law enforcement officer] [firefighter] [emergency medical care provider] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [security officer employed by the board of trustees of a community college] [federal law enforcement officer].
        In giving this sentence, do not refer to the victim by name. The instruction must state the class of officers to which the victim belongs, e.g., probation officer, correctional officer. See Wright v. State, 586 So.2d 1024 (Fla. 1991).

        For cases involving other types of victims, insert definitions from § 784.07(1)(a), Fla. Stat. as appropriate.

        Give if applicable. McClain v. State, 383 So. 2d 1146 (Fla. 4th DCA 1980); Smithson v. State, 689 So. 2d 1226 (Fla. 5th DCA 1997); Gilbert v. State, 347 So. 2d 1087 (Fla. 3d DCA 1977).
        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 element 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 element 4a alleged.
        It is not necessary for the State to prove that the defendant had an intent to kill.


        Lesser Included Offenses
        AGGRAVATED ASSAULT ON LAW ENFORCEMENT OFFICER, ETC. - 784.07(2)(c)
        CATEGORY ONECATEGORY TWO FLA. STATINS. NO.
        Aggravated assault 784.0218.2
        Assault on law enforcement officer 784.07(2)(a) 8.10
        Improper exhibition of a dangerous weapon or firearm, if Fla. Stat. 784.021(1)(a) is charged790.1010.5
        Assault784.0118.1
        Attempt777.04(1)5.1
        Discharging firearms in public790.1510.6
        Comment

        See Spurgeon v. State, 114 So. 3d 1042 (Fla. 5th DCA 2013)(holding that a conviction for a violation of § 784.07(2), Florida Statute had to be vacated because the statute does not include physicians, employees, agents, or volunteers of facilities that do not satisfy the definition of a hospital under chapter 395).
        This instruction was approved in 1992 [603 So. 2d 1175], and amended in 1995 [657 So. 2d 1152], 2007 [962 So. 2d 310], 2008 [994 So. 2d 1038], and 2013 [38 Fla. L. Weekly S877 December 5, 2013], and 2014.
        8.13 AGGRAVATED BATTERY ON LAW ENFORCEMENT
        OFFICER, FIREFIGHTER, ETC.
        § 784.07(2)(d), Fla. Stat.

        To prove the crime of Aggravated Battery on a [Law Enforcement Officer] [Firefighter] [Emergency Medical Care Provider] [Traffic Accident Investigation Officer] [Traffic Infraction Enforcement Officer] [Parking Enforcement Specialist] [Law Enforcement Explorer][a Non-sworn Law Enforcement Agency Employee Certified as an Agency Inspector] [Blood Alcohol Analyst] [Breath Test Operator] [Railroad Special Officer] [Licensed Security Officer] [Federal Law Enforcement Officer], the State must prove the following five elements beyond a reasonable doubt. The first element is a definition of battery.
            1. (Defendant)
                [intentionally touched or struck (victim) against [his] [her] will].
                [intentionally caused bodily harm to (victim)].

        Give 2a and/or 2b as applicable.
        2. (Defendant) in committing the battery
                a. intentionally or knowingly caused

                [great bodily harm to (victim]
                [permanent disability to (victim)]
                [permanent disfigurement to (victim)]

                b. used a deadly weapon.
            3. (Victim) was a [law enforcement officer] [firefighter] [emergency medical care provider] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [federal law enforcement officer][law enforcement explorer] [nonsworn law enforcement agency employee who was certified as an agency inspector] [blood alcohol analyst] [breath test operator while such employee was in uniform and engaged in processing, testing, evaluating, analyzing, or transporting a person who was detained or under arrest for DUI]
                [licensed security officer who wore a uniform that bore at least one patch or emblem that was visible at all times that clearly identified the employing agency and that clearly identified the person as a licensed security officer] [railroad special officer] [security officer employed by the board of trustees of a community college].

            4. (Defendant) knew (victim) was a [law enforcement officer] [firefighter] [emergency medical care provider] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [federal law enforcement officer][law enforcement explorer][nonsworn law enforcement agency employee who was certified as an agency inspector] [blood alcohol analyst] [breath test operator] [railroad special officer] [licensed security officer] [security officer employed by the board of trustees of a community college].

            5. (Victim) was engaged in the lawful performance of [his][her] duties when the battery was committed against [him][her].

        For cases where the alleged victim is a law enforcement officer, do not refer to the victim by name when instructing on the sentence below. Instead, the instruction must state the class of officers to which the victim belongs, e.g., deputy sheriff, probation officer, correctional officer. See Wright v. State, 586 So.2d 1024 (Fla. 1991).
        The court now instructs you that a (name of official position of victim designated in charge) is a [law enforcement officer] [firefighter] [emergency medical care provider] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [security officer employed by the board of trustees of a community college] [federal law enforcement officer].
        In giving this sentence, do not refer to the victim by name. The instruction must state the class of officers to which the victim belongs, e.g., probation officer, correctional officer. See Wright v. State, 586 So.2d 1024 (Fla. 1991).

        For cases involving other types of victims, insert definitions from § 784.07(1)(a), Fla. Stat. as appropriate.

        Definition. Give if element 2b 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.

        Lesser Included Offenses
        AGGRAVATED BATTERY ON LAW ENFORCEMENT OFFICER FIREFIGHTER, ETC. - 784.07(2)(d)
        CATEGORY ONECATEGORY TWO FLA. STATINS. NO.
        Aggravated battery 784.0458.4
        Felony battery*784.0418.5
        Battery on a law enforcement officer 784.07(2)(b) 8.11
        Battery784.038.3
        Attempt777.04(1) 5.1
        Improper exhibition of dangerous weapons or firearms790.1010.5
        Discharging firearms in public790.1510.6

        Comment

        *The lesser included offense of Felony Battery is only applicable if element 2a is charged and proved.

        See Spurgeon v. State, 114 So. 3d 1042 (Fla. 5th DCA 2013)(holding that a conviction for a violation of § 784.07(2), Florida Statute had to be vacated because the statute does not include physicians, employees, agents, or volunteers of facilities that do not satisfy the definition of a hospital under chapter 395).

        This instruction was adopted in 1992 [603 So.2d 1175] and was amended in 1995 [657 So.2d 1152], and 2007 [962 So. 2d 310], and 2008 [994 So. 2d 1038], and 2014.
        11.20 TRANSMISSION OF CHILD PORNOGRAPHY BY
        ELECTRONIC DEVICE OR EQUIPMENT
        § 847.0137(2) and (3), Fla. Stat.

            To prove the crime of Transmission of Child Pornography by Electronic Device or Equipment, the State must prove the following two elements beyond a reasonable doubt:
        Give 1a or 1b as applicable.
        § 847.0137(2) Fla. Stat.
            1. a. (Defendant), when in the State of Florida, transmitted child
            pornography.
              § 847. 0137(3) Fla. Stat.
                b. (Defendant), when not in the State of Florida, transmitted child
                pornography to any person who was in the State of
                Florida.
              2. (Defendant) knew or reasonably should have known that [he] [she] transmitted child pornography.

              Definitions. Give as applicable.
          § 847.0137(1) (b)
          “Transmit” means the act of sending and causing to be delivered any image, information, or data from one or more persons or places to one or more other persons or places over or through any medium, including the internet, by use of any electronic equipment or device.

          § 847.001(3) Fla. Stat.
          “Child pornography” means any image depicting a minor engaged in sexual conduct.

          § 847.0137(1)(a) Fla. Stat.
          “Minor” means any person less than 18 years of age.

          § 847.001(16) Fla. Stat.
          “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 unclosed genitals, public 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. A mother’s breastfeeding of her baby does not under any circumstance constitute “sexual conduct.”

          § 847.001(19) Fla. Stat.
          “Simulated” means the explicit depiction of conduct described in the definition of “sexual conduct” which creates the appearance of such conduct and which exhibits any uncovered portion of the breasts, genitals, or buttocks.

          § 847.001(5) Fla. Stat.
          “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.

          § 847.001(15) Fla. Stat.
          “Sexual bestiality” means any sexual act, actual or simulated, between a person and an animal involving the sex organ of the one and the mouth, anus, or vagina of the other.

          § 847.001(13) Fla. Stat.
          “Sadomasochistic abuse” means flagellation or torture by or upon a person or animal, or the condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction, or satisfaction brought about as a result of sadistic violence, from inflicting harm on another or receiving such harm oneself.

          § 847.001(14) Fla. Stat.
          “Sexual Battery” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, “sexual battery” does not include an act done for a bona fide medical purpose.
          Lesser Included Offenses
          TRANSMISSION OF CHILD PORNOGRAPHY BY ELECTRONIC DEVICE OR EQUIPMENT - 847.0137(2) and (3)
          CATEGORY ONECATEGORY TWOFLA. STAT.INS. NO.
          None
          Attempt777.04(1)5.1
          Comment

          This instruction was adopted in 2014.
            11.21 TRANSMISSION OF MATERIAL HARMFUL TO
            MINORS BY ELECTRONIC DEVICE OR EQUIPMENT
            § 847.0138(2), Fla. Stat.

            To prove the crime of Transmission of Material Harmful to Minors by Electronic Device or Equipment, the State must prove the following three elements beyond a reasonable doubt:
                1. (Defendant) knowingly sent an image, information or data that [he] [she] knew or believed to be “harmful to minors.”
                2. (Defendant) sent the image, information or data to a specific individual who was either actually known by [him] [her] to be a minor or believed by [him] [her] to be a minor.

                3. (Defendant) sent the image, information or data via electronic mail.

                Definitions. Give as applicable.
            § 847.001(6) Fla. Stat.
            An image, information, or data that is “harmful to minors” means any reproduction, imitation, characterization, description, exhibition, presentation, or representation, of whatever kind or form, depicting nudity, sexual conduct, or sexual excitement when it:
                    (a) Predominately appeals to a prurient, shameful, or morbid interest;
                    (b) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material or conduct for minors; and
                    (c) Taken as a whole, is without serious literary, artistic, political, or scientific value for minors.
            A mother’s breastfeeding of her baby is not under any circumstance “harmful to minors.”
              § 847.0137(1)(a) Fla. Stat.
                  “Minor” means any person less than 18 years of age.

                  § 847. 001(9) Fla. Stat.
              “Nudity” means the showing of the human male or female genitals, public area, or buttocks with less than a fully opaque covering; or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple; or the depiction of covered male genitals in a discernibly turgid state. A mother’s breastfeeding of her baby does not under any circumstance constitute “nudity,” irrespective of whether or not the nipple is covered during or incidental to feeding.

                  § 847.001(16) Fla. Stat.
              “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 unclosed genitals, public 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. A mother’s breastfeeding of her baby does not under any circumstance constitute “sexual conduct.”

              § 847.001(19) Fla. Stat.
              “Simulated” means the explicit depiction of conduct described in the definition of “sexual conduct” which creates the appearance of such conduct and which exhibits any uncovered portion of the breasts, genitals, or buttocks.

              § 847.001(5) Fla. Stat.
              “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.

              § 847.001(15) Fla. Stat.
              “Sexual bestiality” means any sexual act, actual or simulated, between a person and an animal involving the sex organ of the one and the mouth, anus, or vagina of the other.

              § 847.001(13) Fla. Stat.
              “Sadomasochistic abuse” means flagellation or torture by or upon a person or animal, or the condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction, or satisfaction brought about as a result of sadistic violence, from inflicting harm on another or receiving such harm oneself.

              § 847.001(14) Fla. Stat.
              “Sexual Battery” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, “sexual battery” does not include an act done for a bona fide medical purpose.
                  § 847.001(17) Fla. Stat.
              “Sexual excitement” means the condition of the human male or female genitals when in a state of sexual stimulation or arousal.
              Lesser Included Offenses

              No lesser included offenses have been identified for this offense.
              Comment

              This instruction was adopted in 2014.
              29.16(a) UNLAWFUL PROTESTS
              § 871.015 Fla. Stat.

              To prove the crime of Unlawful Protests, the State must prove the following two elements beyond a reasonable doubt:
                1. (Defendant) [knowingly engaged in protest activities] [or] [knowingly caused protest activities to occur] within 500 feet of the property line of a [residence] [cemetery] [funeral home] [house of worship] [or] [other location].

                Give 2a if the defendant personally did the protest activities.
                2. a. (Defendant) knew that [his] [her] protest activities occurred [during] [or] [within one hour before or one hour after] the conducting of a funeral or burial at that location.

                Give 2b if the defendant caused the protest activities to occur.
                b. Defendant) knew that the protest activities would occur [during] [or] [within one hour before or one hour after] the conducting of a funeral or burial at that location and the protest activities did take place [during] [or] [within one hour before or one hour after] the conducting of a funeral or burial at that location.

              Give if applicable. § 871.015 Fla. Stat is unclear whether the provision below is an element of the crime or an affirmative defense. In the absence of case law, judges must determine this issue. If an affirmative defense, judges must also determine who has the burden of persuasion and the standard of proof for that burden of persuasion. See the opinion in Dixon v. United States, 548 U.S. 1 (2006) for further guidance.
              It is not a crime for a person to [knowingly engage in] [or] [knowingly cause] protest activities that occur adjacent to that portion of a funeral procession which extends beyond 500 feet of the property line of the location of a funeral or burial.

              Definitions. §§ 871.015 (1), 316.1974 (1) Fla. Stat.
              “Funeral or burial” means a service or ceremony offered or provided in connection with the final disposition, memorialization, interment, entombment, or inurnment of human remains or cremated human remains.

              “Protest activities” means any actions, including picketing, which are undertaken with the intent to interrupt or disturb a funeral or burial.

              Give if applicable.
              “Funeral procession” means two or more vehicles accompanying the body of a deceased person, or traveling to the church, chapel, or other location at which the funeral service is to be held, in the daylight hours, including a funeral lead vehicle or a funeral escort vehicle.

              Lesser Included Offenses
              UNLAWFUL PROTESTS — 871.015
              CATEGORY ONECATEGORY TWOFLA. STAT.INS. NO.
              None
              Attempt777.04(1)5.1
              Comment

              This instruction was adopted in 2014.

              [Revised: 11-20-2014]