Criminal jury instruction amendments

November 15, 2012 Regular News

Criminal jury instruction amendments

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:

2.2 INSTRUCTION ON EDITED RECORDING

2.3 STIPULATIONS

3.3(h) WILLFUL BLINDNESS

3.6(d) VOLUNTARY INTOXICATION

3.6(e)(1) INVOLUNTARY INTOXICATION NEGATING SPECIFIC INTENT

3.6(e)(2) INVOLUNTARY INTOXICATION RESULTING IN INSANITY

3.9 WEIGHING THE EVIDENCE

3.9(a) EXPERT WITNESSES

3.9(b) ACCOMPLICE

3.9(c) DEFENDANT TESTIFYING

3.9(da) DEFENDANT NOT TESTIFYING

3.9(eb) DEFENDANT’S STATEMENTS

7.3 FELONY MURDER — FIRST DEGREE

7.13 HEAT OF PASSION

11.13 VOYEURISM

11.13(a) VIDEO VOYEURISM

11.13(b) VIDEO VOYEURISM

11.13(c) VIDEO VOYEURISM DISSEMINATION
(Image created in violation of section 810.145(2)(a) and (b))

11.13(d) VIDEO VOYEURISM DISSEMINATION
(Image created in violation of section 810.145(2)(c))

11.13(e) COMMERCIAL VIDEO VOYEURISM
(Image created in violation of section 810.145(2)(a) or (b))

11.13(f) COMMERCIAL VIDEO VOYEURISM
(Image created in violation of section 810.145(2)(c))

11.13(g) COMMERCIAL VIDEO VOYEURISM
(Image created in violation of section 810.145(2)(a) or (b))

11.13(h) [VIDEO VOYEURISM] [VIDEO VOYEURISM DISSEMINATION] [COMMERCIAL VIDEO VOYEURISM] INVOLVING CERTAIN AGED MINORS OR DEFENDANTS

11.17(a) SOLICITING A [CHILD] [PERSON BELIEVED TO BE A CHILD] FOR UNLAWFUL SEXUAL CONDUCT USING COMPUTER SERVICES OR DEVICES

11.17(b) SOLICITING A 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 PARENT, LEGAL GUARDIAN, OR CUSTODIAN

16.1 AGGRAVATED CHILD ABUSE

16.2 AGGRAVATED CHILD ABUSE (AGGRAVATED BATTERY)

16.3 CHILD ABUSE

16.5 NEGLECT OF A CHILD

16.6 NEGLECT OF A CHILD

21.16 FALSELY PERSONATING AN OFFICER

22.15 [POSSESSION] [PERMITTING THE OPERATION] OF A SLOT MACHINE

23.1 MAINTAINING A PLACE OF PROSTITUTION, LEWDNESS, OR ASSIGNATION

23.2 SOLICITING FOR THE PURPOSE OF PROSTITUTION OR A LEWD OR INDECENT ACT

23.3 RECEIVING FOR THE PURPOSE OF PROSTITUTION, LEWDNESS OR ASSIGNATION

23.4 TRANSPORTING FOR THE PURPOSE OF PROSTITUTION, LEWDNESS OR ASSIGNATION

23.5 OFFERING TO COMMIT, COMMITTING, OR ENGAGING IN PROSTITUTION, LEWDNESS, OR ASSIGNATION

23.6 SOLICITING FOR PROSTITUTION, LEWDNESS, OR ASSIGNATION

23.7 ENTERING FOR THE PURPOSE OF PROSTITUTION, LEWDNESS, OR ASSIGNATION

23.8 SELLING A MINOR INTO PROSTITUTION BY A [PARENT] [LEGAL GUARDIAN] [PERSON WITH CONTROL OF THE MINOR]

28.5 RECKLESS DRIVING

29.20 ABUSE OF [AN ELDERLY PERSON] [A DISABLED ADULT]

29.21 AGGRAVATED ABUSE OF [AN ELDERLY PERSON] [DISABLED ADULT]

29.22 NEGLECT OF [AN ELDERLY PERSON] [A DISABLED ADULT]

29.23 FAILURE TO PROVIDE REQUIRED DOCUMENTS WHILE [WORKING IN] [OPERATING] A MASSAGE ESTABLISHMENT

29.24 HUMAN TRAFFICKING

29.25 HUMAN TRAFFICKING BY A [PARENT] [LEGAL GUARDIAN] [PERSON WITH CONTROL] OF A MINOR

4.4 REQUEST FOR READ-BACK OR TRANSCRIPT OF TESTIMONY

The committee invites all interested persons to comment on the proposals, reproduced in full below. Comments must be received by the committee in both hard copy and electronic format on or before December 12, 2012.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. Please file your comments electronically to [email protected], in the format of a Word document. In addition, mail a hard copy of your comments to: Standard Jury Instructions Committee in Criminal Cases, c/o Mr. Bart Schneider, General Counsel’s Office, Office of the State Courts Administrator, 500 S. Duval Street, Tallahassee 32399-1900.

2.2 ~~BENCH CONFERENCES~~ INSTRUCTION ON EDITED RECORDING

Members of the jury, you are about to [view] [listen to] a[n] recording. The Court instructs you that the recording has been edited to eliminate irrelevant portions that would not add to your understanding of the case. The fact that the recording has been edited should not concern you in any way and must not impact the way you [view] [listen to] and consider this evidence.

Comment

This instruction was adopted in 2013.

2.3 STIPULATIONS

When [lawyers] [parties] agree that certain facts are true, that is called a stipulation of fact. You must accept stipulated facts as having been proven. However, the significance of these facts, as with all facts, is for you to decide. In this case, the stipulated fact[s] that you must accept as true [is] [are] [insert stipulation[s]] .

Comment

This instruction was adopted in 2013.

3.3(h) WILLFUL BLINDNESS

Do not give if there is no evidence supporting an inference of deliberate ignorance or if the evidence is consistent only with a theory of actual knowledge.
In some cases, the issue to be determined is whether the defendant had knowledge of a certain fact. Florida law recognizes a concept known as willful blindness, which is sometimes referred to as “deliberate avoidance of positive knowledge.” Willful blindness occurs when a person has his or her suspicion aroused about a particular fact, realized its probability, but deliberately refrained from obtaining confirmation because he or she wanted to remain in ignorance. A person who engages in willful blindness is deemed to have knowledge of that fact.

Comment

See Desilien v. State , 595 So. 2d 1046 (Fla. 4 ^th DCA 1992); Hallman v. State, 633 So. 2d 1116 (Fla. 3d DCA 1994); Hale v. State, 838 So. 2d 1185 (Fla. 5 ^th DCA 2003).

This instruction was adopted in 2013.

3.6(d) VOLUNTARY INTOXICATION
§ 775.051, Fla. Stat.

Give if applicable and if requested and only for offenses occurring on or after October 1, 1999. If there was evidence of involuntary intoxication, give instruction 3.6(e)(1) or (2), if requested and applicable.

Voluntary intoxication resulting from the use of [alcohol] [or] [a controlled substance] is not a defense to a crime. Evidence of a defendant’s voluntary intoxication may not be taken into consideration to show that [he] [she] lacked the specific intent to commit any crime. A person is voluntarily intoxicated if he or she knowingly consumed a substance that he or she knew or should have known could cause intoxication.

Give only for offenses occurring before October 1, 1999. ~~See section 775.051, Florida Statutes.~~

A defense asserted in this case is voluntary intoxication by use of [alcohol] [drugs].

The use of [alcohol] [drugs] to the extent that it merely arouses passions, diminishes perceptions, releases inhibitions, or clouds reason and judgment does not excuse the commission of a criminal act.

However, where a certain mental state is an essential element of a crime, and a person was so intoxicated that [he] [she] was incapable of forming that mental state, the mental state would not exist and therefore the crime could not be committed.

As I have told you, [the intent to (specific intent charged)] [premeditated design to kill] [(other mental state)] is an essential element of the crime of (crime charged).

Therefore, if you find from the evidence that the defendant was so intoxicated from the voluntary use of [alcohol] [drugs] as to be incapable of forming [the intent to (specific intent charged)] [premeditated design to kill] [(other mental state)], or you have a reasonable doubt about it, you should find the defendant not guilty of (crime charged).

Give when other applicable crimes are general intent crimes.
Voluntary intoxication is not a defense to (lesser included crimes) (crimes charged in additional counts).

Comment

This instruction was adopted in ~~May~~ 1987 [508 So.2d 1221], and amended in 2006 [939 So. 2d 1052] and 2013.

3.6(e)(1) INVOLUNTARY INTOXICATION NEGATING
SPECIFIC INTENT
§ 775.051 Fla. Stat.

Voluntary intoxication is not a defense. A person is voluntarily intoxicated if he or she knowingly consumed a substance that he or she knew or should have known could cause intoxication.

However, a defense asserted in this case is that the defendant was involuntarily intoxicated to the point that [he] [she] could not form [a premeditated design to kill] [the intent to (specific intent charged)]. This defense applies when:

Give a or b as applicable.

775.051 Fla. Stat.; Lucherini v. State, 932 So. 2d 521 (Fla. 4

^th

DCA 2006); Cobb v. State, 884 So. 2d 437 (Fla. 1

^st

DCA 2004).

1. ( Defendant ) was lawfully prescribed [ (name of Chapter 893
substance) ] by a practitioner.

2. (Defendant) [used] [consumed] [injected] [(name of Chapter 893 substance)] as it was prescribed and directed by the practitioner.

As a result of taking [

(name of Chapter 893 substance)

] as prescribed, (

defendant

) was so intoxicated that [he] [she] could not form [a premeditated design to kill] [the intent to

(specific intent charged)

] at the time of the offense.

Carter v. State, 710 So. 2d 110 (Fla. 4

^th

DCA 1998).

1. ( Defendant ), without any fault on [his] [her] part, [unknowingly ingested an intoxicating liquor, drug, or other substance] [knowingly ingested an intoxicating liquor, drug, or other substance because of force, fraud, duress, or trickery].

As a result,

(defendant)

was so intoxicated that [he] [she] could not form [a premeditated design to kill] [the intent to

(specific intent charged)

] at the time of the offense.

Give if applicable.

In determining the issue of involuntary intoxication, you may consider the testimony of expert and non-expert witnesses.

See Fla. Stats. 775.051, 893.02(21).
“Practitioner” means a [physician] [dentist] [veterinarian] [osteopathic physician] [naturopath] [podiatric physician] licensed by the State of Florida, provided he or she holds a valid federal controlled substance registry number.

Give in all cases.

The [use of medication] [consumption of an intoxicating liquor, drug, or other substance] that merely arouses passions, diminishes perceptions, releases inhibitions, or clouds reason and judgment does not excuse the commission of a crime.

However, where a certain mental state is an essential element of a crime and a person was involuntarily intoxicated to the extent [he] [she] was incapable of forming that mental state, the mental state would not exist and therefore the crime could not be committed.

As I have told you, [a premeditated design to kill] [the intent to (specific intent charged)] is an essential element of (crime charged).

Therefore, if you find that the defendant was involuntarily intoxicated to the extent of being incapable of forming [a premeditated design to kill] [the intent to (specific intent charged) ], or if you have a reasonable doubt about it, you should find the defendant not guilty of (crime charged) .

Give when defendant claims involuntary intoxication but lesser-included offenses or other crimes charged are general intent crimes.
A claim of involuntary intoxication to the point where the defendant was incapable of forming [a premeditated design to kill] [the intent to (specific intent charged)] is not a defense to [(lesser included crimes)] [(crimes charged in additional counts)].

Comment

The legislature eliminated voluntary intoxication as a defense effective October 1, 1999.

This instruction was adopted in 2013.

3.6(e)(2) INVOLUNTARY INTOXICATION RESULTING IN INSANITY
§ 775.051 Fla. Stat.

Voluntary intoxication is not a defense. A person is voluntarily intoxicated if he or she knowingly consumed a substance that he or she knew or should have known could cause intoxication.

However, a defense asserted in this case is that the defendant was involuntarily intoxicated to the point of insanity at the time the crime was allegedly committed. A person is considered involuntarily intoxicated to the point of insanity when:

Give a or b as applicable.

775.051 Fla. Stat.; Lucherini v. State, 698 So. 2d 597 (Fla. 4

^th

DCA 1997); Cobb v. State, 884 So. 2d 437 (Fla. 5

^th

DCA 2004).

1. ( Defendant ) was lawfully prescribed [ (name of Chapter 893
substance) ] by a practitioner.

2. (Defendant) [used] [consumed] [injected] [(name of Chapter 893 substance)] as it was prescribed and directed by the practitioner.

As a result of taking [

(name of Chapter 893 substance)

] as prescribed:

(defendant)

did not know what [he] [she] was doing or

its consequences or

(defendant)

knew what [he] [she] was doing and its

consequences, but did not know it was wrong.

Carter v. State, 710 So. 2d 110 (Fla. 4

^th

DCA 1998).

2. As a result of consuming an intoxicating liquor, drug, or other substance:

(defendant)

did not know what [he] [she] was doing or

its consequences or

(defendant)

knew what [he] [she] was doing and its consequences, but did not know it was wrong.

Give if applicable.
A defendant who believed that what [he] [she] was doing was morally right was not insane if [he] [she] knew that what [he] [she] was doing violated societal standards or was against the law.

Give if applicable.
See Fla. Stats. 775.051, 893.02(21).
“Practitioner” means a [physician] [dentist] [veterinarian] [osteopathic physician] [naturopath] [podiatric physician] licensed by the State of Florida, provided he or she holds a valid federal controlled substance registry number.

In determining the issue of involuntary intoxication to the point of insanity, you may consider the testimony of expert and non-expert witnesses.

Give in all cases.

All persons are presumed to be sane. The defendant has the burden of proving the defense of involuntary intoxication to the point of insanity by clear and convincing evidence. Clear and convincing evidence is evidence that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief, without hesitation, about the matter in issue.

If you find that (defendant) committed the crime but you find that [he] [she] proved by clear and convincing evidence that [he] [she] was involuntarily intoxicated to the point of insanity, you should find [him] [her] not guilty.

Comment

The legislature eliminated voluntary intoxication as a defense effective October 1, 1999.

This instruction was adopted in 2013.

3.9 WEIGHING THE EVIDENCE

It is up to you to decide what evidence is reliable. You should use your common sense in deciding which is the best evidence , and which evidence should not be relied upon in considering your verdict. You may find some of the evidence not reliable, or less reliable than other evidence.

You should consider how the witnesses acted, as well as what they said. Some things you should consider are:

Did the witness seem to have an opportunity to see and know the things about which the witness testified?

Did the witness seem to have an accurate memory?

Was the witness honest and straightforward in answering the attorneys’ questions?

Did the witness have some interest in how the case should be decided?

Does the witness’s testimony agree with the other testimony and other evidence in the case?

Give as applicable.

Has the witness been offered or received any money, preferred treatment, or other benefit in order to get the witness to testify?

Had any pressure or threat been used against the witness that affected the truth of the witness’s testimony?

Did the witness at some other time make a statement that is inconsistent with the testimony [he] [she] gave in court?

9. Has the witness been convicted of a [felony] [misdemeanor involving [dishonesty] [false statement]]?

Does the witness have a general reputation for [dishonesty] [truthfulness]?

Whether the State has sustained its burden of proof does not depend upon the number of witnesses it has called or upon the number of exhibits it has offered, but instead upon the nature and quality of the evidence presented.

Give as applicable and if requested.
Law enforcement witness.
The fact that a witness is employed in law enforcement does not mean that [his] [her] testimony deserves more or less consideration than that of any other witness.

Expert witness.
Expert witnesses are like other witnesses, with one exception — the law permits an expert witness to give [his] [her] opinion. However, an expert’s opinion is reliable only when given on a subject about which you believe [him] [her] to be an expert. Like other witnesses, you may believe or disbelieve all or any part of an expert’s testimony.

Accomplices and Informants.
You must consider the testimony of some witnesses with more caution than others. For example, a witness who [claims to have helped the defendant commit a crime] [has been promised immunity from prosecution] [hopes to gain more favorable treatment in his or her own case] may have a reason to make a false statement in order to strike a good bargain with the State. This is particularly true when there is no other evidence tending to agree with what the witness says about the defendant. So, while a witness of that kind may be entirely truthful when testifying, you should consider [his] [or] [her] testimony with more caution than the testimony of other witnesses. However, if the testimony of such a witness convinces you beyond a reasonable doubt of the defendant’s guilt, or the other evidence in the case does so, then you should find the defendant guilty.

Child witness.
You have heard the testimony of a child. No witness is disqualified just because of age. There is no precise age that determines whether a witness may testify. The critical consideration is not the witness’s age, but whether the witness understands the difference between what is true and what is not true, and understands the duty to tell the truth.

Give only if defendant testified.
The defendant in this case has become a witness. You should apply the same rules to consideration of [his] [her] testimony that you apply to the testimony of the other witnesses.

Witness talked to lawyer.
It is entirely proper for a lawyer to talk to a witness about what testimony the witness would give if called to the courtroom. The witness should not be discredited by talking to a lawyer about [his] [her] testimony.

Give in all cases.
You may rely upon your own conclusion about the credibility of any witness. A juror may believe or disbelieve all or any part of the evidence or the testimony of any witness.

Comment

The court also may wish to give as part of this instruction the instructions covered under 3.9(a) and (b), concerning expert witnesses and accomplices. If so, the Committee recommends that they be given as additional numbered paragraphs, which would precede the last two unnumbered paragraphs of this instruction.

This instruction was adopted in 1981 , and amended in 2012 [95 So. 3d 868] and 2013.

~~3.9(a) EXPERT WITNESSES~~

~~Expert witnesses are like other witnesses, with one exception — the law permits an expert witness to give [his] [her] opinion.~~

~~However, an expert’s opinion is reliable only when given on a subject about which you believe [him] [her] to be an expert.~~

~~Like other witnesses, you may believe or disbelieve all or any part of an expert’s testimony.~~

~~Comment~~

~~This instruction was adopted in 1981.~~

~~3.9(b) ACCOMPLICE~~

You should use great caution in relying on the testimony of a witness who claims to have helped the defendant commit a crime. This is particularly true when there is no other evidence tending to agree with what the witness says about the defendant.

~~However, if the testimony of such a witness convinces you beyond a reasonable doubt of the defendant’s guilt, or the other evidence in the case does so, then you should find the defendant guilty.~~

~~Comment~~

~~This instruction was adopted in 1981.~~

~~3.9(c) DEFENDANT TESTIFYING~~

~~The defendant in this case has become a witness. You should apply the same rules to consideration of [his] [her] testimony that you apply to the testimony of the other witnesses.~~

~~Comment~~

~~This instruction was adopted in 1981 and was amended in July 1992.~~

3.9( d a ) DEFENDANT NOT TESTIFYING

Give either paragraph, or both, if defendant requests.
The constitution requires the State to prove its accusations against the defendant. It is not necessary for the defendant to disprove anything. Nor is the defendant required to prove [his] [her] innocence. It is up to the State to prove the defendant’s guilt by evidence.

The defendant exercised a fundamental right by choosing not to be a witness in this case. You must not view this as an admission of guilt or be influenced in any way by [his] [her] decision. No juror should ever be concerned that the defendant did or did not take the witness stand to give testimony in the case.

Comment

This instruction was adopted in 1981 and amended in 2013.

3.9( e b ) DEFENDANT’S STATEMENTS

A statement claimed to have been made by the defendant outside of court has been placed before you. Such a statement should always be considered with caution and be weighed with great care to make certain it was freely and voluntarily made.

Therefore, you must determine from the evidence that the defendant’s alleged statement was knowingly, voluntarily, and freely made.

In making this determination, you should consider the total circumstances, including but not limited to

whether, when the defendant made the statement, [he] [she] had been threatened in order to get [him] [her] to make it, and

whether anyone had promised [him] [her] anything in order to get [him] [her] to make it.

If you conclude the defendant’s out of court statement was not freely and voluntarily made, you should disregard it.

Comment

This instruction was adopted in 1981 and amended in 2013.

7.3 FELONY MURDER — FIRST DEGREE
§ 782.04(1)(a), Fla. Stat.

To prove the crime of First Degree Felony Murder, the State must prove the following three elements beyond a reasonable doubt:

is dead.

Give 2a, 2b, or 2c as applicable.

2. a. [The death occurred as a consequence of and while (defendant) was engaged in the commission of (crime alleged) .]

b. [The death occurred as a consequence of and while

was attempting to commit

c. [The death occurred as a consequence of and while (defendant) , or an accomplice, was escaping from the immediate scene of (crime alleged) .]

Give 3a if defendant actual perpetrator.
3. a. [ (Defendant) was the person who actually killed (victim) .]

Give 3b if defendant not actual perpetrator.

b. [

was killed by a person other than

;

but

both

and the person who killed

were principals in the commission of

In order to convict of First Degree Felony Murder, it is not necessary for the State to prove that the defendant had a premeditated design or intent to kill.

Define the crime alleged. If Burglary, also define crime that was the object of burglary.

If 2b above is given, also define “attempt” (see 5.1).

3. If 3b is given, immediately give principal instruction (3.5(a)).

4. Since the statute does not require its proof, it is not necessary to define “premeditation.”
5. If the underlying felony is charged as a separate count, read instruction 3.12(d)(Legally Interlocking Counts). Failure to do so may result in an impermissible inconsistent verdict. See, e.g., Brown v. State, 959 So.2d 218 (Fla. 2007).

§ 782.065, Fla. Stat. Enhanced penalty. Give if applicable..
If you find the defendant guilty of first degree felony murder, you must then determine whether the State has further proven beyond a reasonable doubt that (victim) was a [law enforcement officer] [part-time law enforcement officer] [auxiliary law enforcement officer] [correctional officer] [part-time correctional officer] [auxiliary correctional officer] [correctional probation officer] [part-time correctional probation officer] [auxiliary correctional probation officer] engaged in the lawful performance of a legal duty.

Definitions for enhanced penalty. § 943.10, Fla. Stat.

“Law enforcement officer” means any person who is elected, appointed, or employed full time by any municipality or the state or any political subdivision thereof; who is vested with authority to bear arms and make arrests; and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state. This definition includes all certified supervisory and command personnel whose duties include, in whole or in part, the supervision, training, guidance, and management responsibilities of full-time law enforcement officers, part-time law enforcement officers, or auxiliary law enforcement officers but does not include support personnel employed by the employing agency.

“Employing agency” means any agency or unit of government or any municipality or the state or any political subdivision thereof, or any agent thereof, which has constitutional or statutory authority to employ or appoint persons as officers. The term also includes any private entity which has contracted with the state or county for the operation and maintenance of a nonjuvenile detention facility.

“Correctional officer” means any person who is appointed or employed full time by the state or any political subdivision thereof, or by any private entity which has contracted with the state or county, and whose primary responsibility is the supervision, protection, care, custody, and control, or investigation, of inmates within a correctional institution; however, the term “correctional officer” does not include any secretarial, clerical, or professionally trained personnel.

“Correctional probation officer” means a person who is employed full time by the state whose primary responsibility is the supervised custody, surveillance, and control of assigned inmates, probationers, parolees, or community controllees within institutions of the Department of Corrections or within the community. The term includes supervisory personnel whose duties include, in whole or in part, the supervision, training, and guidance of correctional probation officers, but excludes management and administrative personnel above, but not including, the probation and parole regional administrator level.

“Part-time law enforcement officer” means any person employed or appointed less than full time, as defined by an employing agency, with or without compensation, who is vested with authority to bear arms and make arrests and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state.

“Part-time correctional officer” means any person who is employed or appointed less than full time, as defined by the employing or appointing agency, with or without compensation, whose responsibilities include the supervision, protection, care, custody, and control of inmates within a correctional institution.

“Auxiliary law enforcement officer” means any person employed or appointed, with or without compensation, who aids or assists a full-time or part-time law enforcement officer and who, while under the direct supervision of a full-time or part-time law enforcement officer, has the authority to arrest and perform law enforcement functions.

“Auxiliary correctional officer” means any person employed or appointed, with or without compensation, who aids or assists a full-time or part-time correctional officer and who, while under the supervision of a full-time or part-time correctional officer, has the same authority as a full-time or part-time correctional officer for the purpose of providing supervision, protection, care, custody, and control of inmates within a correctional institution or a county or municipal detention facility.

Lesser Included Offenses

FIRST DEGREE (FELONY) MURDER — 782.04(1)(a)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
	Second degree (depraved mind) murder	782.04(2)	7.4
Manslaughter		782.07	7.7
	Second degree (felony) murder	782.04(3)	7.5
	Third degree (felony) murder	782.04(4)	7.6
	Aggravated ~~assault~~battery	~~784.021~~ 784.045	~~8.2~~8.4
	Felony battery	784.041	8.5
	Aggravated ~~battery~~assault	~~784.045~~ 784.021	~~8.4~~8.2
	~~Assaul~~tBattery	~~784.011~~ 784.03	~~8.1~~8.3
	~~Battery~~Assault	~~784.03~~ 784.011	~~8.3~~8.1

Comment

Regarding the enhanced penalty under Fla. Stat. § 782.065, the statute does not specify that it is an element of the offense that the defendant knew or had reason to know that the victim was a law enforcement officer, etc. In Thompson v. State , 695 So. 2d 691 (Fla. 1997), the Supreme Court held that knowledge of the victim’s status is a necessary element of attempted murder of a law enforcement officer, but that was prior to the enactment of Fla. Stat. § 782.065 and was based on a construction of Fla. Stat. § 784.07, which explicitly contains a knowledge requirement. No case has decided whether knowledge of the victim’s status is an element under Fla. Stat. § 782.065.

This instruction was adopted in 1981 and was amended in 1985, 1992 [603 So. 2d 1175], ~~and~~ 2011 [ 53 So. 3d 1017], and 2013.

7.13 HEAT OF PASSION

Give in first degree premeditated murder cases and/or second degree murder cases after instructing on the elements of first degree premeditated murder and/or the elements of second degree murder, if there is evidence that the defendant acted in the heat of passion based on legally adequate provocation.
An issue in this case is whether (defendant) [did not premeditate] [or] [did not have a depraved mind without regard for human life] because [he] [she] was in the heat of passion. In order to find that the defendant [did not premeditate] [or] [did not have a depraved mind without regard for human life] because [he] [she] was in the heat of passion, there must have been:

a sudden event that would have suspended the exercise of judgment in an ordinary reasonable person; and

b. a reasonable person would have lost normal self-control and would have been impelled by a blind and unreasoning fury; and

c. there was not a reasonable amount of time for a reasonable person to cool off; and

d. a reasonable person would not have cooled off before committing the act that caused death; and

e. the (defendant) was, in fact, so provoked and did not cool off before [he] [she] committed the act that caused the death of (victim).

Comment

This instruction was adopted in 2013.

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:

secretly [observed]

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. 1 ^st 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. 1 ^st 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

Comment

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 [765 So. 2d 692], 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 ~~four~~ five 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]

for [his] [her] own [amusement] [entertainment] [sexual arousal] [gratification] [or] [profit] [or] [for the purpose of degrading or abusing

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].

was thereby [viewed] [broadcast] [or] [recorded]

at a time when

~~the~~

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

Comment

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 ~~three~~ four elements beyond a reasonable doubt:

intentionally

used an imaging device to secretly [view] [broadcast] [or] [record] [under] [or] [through] the clothing worn by

for the [amusement] [entertainment] [sexual arousal] [gratification] [or] [profit] of [himself] [herself] [or] [another].

2. (Defendant’s) use of the imaging device was for the purpose of viewing [the body of] [or] [the undergarments worn by] (victim) .

3. (Defendant’s) use of the imaging device was without the knowledge and consent of (victim) .

4. At the time (defendant) used an imaging device to secretly [view] [broadcast] [or] [record] (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.

Lesser Included Offenses

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

VIDEO VOYEURISM – 810.145(2)(c)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
None
	Attempt	777.04(1)	5.1

Comment

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

11.13(c) VIDEO VOYEURISM DISSEMINATION
(Image created in violation of section 810.145(2)(a) and (b))
§ 810.145(3), Fla. Stat.

To prove the crime of Video Voyeurism Dissemination, the State must prove the following ~~six~~ seven elements beyond a reasonable doubt:

Give 1a or 1b as applicable.

[

or some other person]

(a) intentionally [used] [or] [installed] an imaging device to secretly [view] [broadcast] [or] [record]

for [his] [her] own [amusement] [entertainment] [sexual arousal] [gratification] [or] [profit] [or] [for the purpose of degrading or abusing

(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 [he] [she]~~ (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. (Defendant) intentionally [disseminated] [distributed] [or] [transferred] an image of (victim) created in this manner to another person for the purpose of [amusement] [entertainment] [sexual arousal] [gratification] [or] [profit] [or for the purpose of degrading or abusing (victim) ].

6. At the time

[disseminated] [distributed] [or] [transferred] the image of

knew or had reason to believe that the image of

had been created in this manner.

7. At the time (defendant) [disseminated] [distributed] [or] [transferred] the image of (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.

“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 their 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 DISSEMINATION – 810.145(3)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
None
	Attempt	777.04(1)	5.1

Comment

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

11.13(d) VIDEO VOYEURISM DISSEMINATION
(Image created in violation of section 810.145(2)(c))
§ 810.145(3), Fla. Stat.

To prove the crime of Video Voyeurism Dissemination, the State must prove the following ~~five~~ six elements beyond a reasonable doubt:

[

or some other person]

intentionally used an imaging device to secretly [view] [broadcast] [or] [record] [under] [or] [through] the clothing worn by

for the [amusement] [entertainment] [sexual arousal] [gratification] [or] [profit] of [himself] [herself] [or] [another].

2. (Defendant’s) [ or some other person’s] use of the imaging device was for the purpose of viewing [the body of] [or] [the undergarments worn by] (victim) .

3. (Defendant’s) [ or some other person’s] use of the imaging device was without the knowledge and consent of (victim) .

4. (Defendant) intentionally [disseminated] [distributed] [or] [transferred] an image of (victim) created in this manner to another person for the purpose of [amusement] [entertainment] [sexual arousal] [gratification] [or] [profit] [or for the purpose of degrading or abusing (victim) ].

5. At the time (defendant) [disseminated] [distributed] [or] [transferred] the image of (victim) , (defendant) knew or had reason to believe that the image of (victim) had been created in this manner.

6. At the time (defendant) [disseminated] [distributed] [or] [transferred] the image of (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.

Lesser Included Offenses

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

VIDEO VOYEURISM DISSEMINATION – 810.145(3)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
None
	Attempt	777.04(1)	5.1

Comment

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

11.13(e) COMMERCIAL VIDEO VOYEURISM
(Image created in violation of section 810.145(2)(a) or (b))
§ 810.145(4)(a), Fla. Stat.

To prove the crime of Commercial Video Voyeurism, the State must prove the following ~~six~~ seven elements beyond a reasonable doubt:

Give 1a or1b as applicable.

[

or some other person]

a. intentionally [used] [or] [installed] an imaging device to secretly [view] [broadcast] [or] [record]

for [his] [her] own [amusement] [entertainment] [sexual arousal] [gratification] [or] [profit] [or] [for the purpose of degrading or abusing

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

3. A t 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. (Defendant) sold an image of (victim) created in this manner to another person for consideration.

6. (Defendant) knew or had reason to believe that the image of (victim) sold had been created in this manner.

7. At the time (defendant) sold the image of (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.

“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 their 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.~~

COMMERCIAL VIDEO VOYEURISM – 810.145(4)(a)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
None
	Attempt	777.04(1)	5.1

Comment

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

11.13(f) COMMERCIAL VIDEO VOYEURISM
(Image created in violation of section 810.145(2)(c))
§ 810.145(4)(a), Fla. Stat.

To prove the crime of Commercial Video Voyeurism, the State must prove the following ~~five~~ six elements beyond a reasonable doubt:

[

or some other person]

intentionally

used an imaging device to secretly [view] [broadcast] [or] [record] [under] [or] [through] the clothing worn by

for the [amusement] [entertainment] [sexual arousal] [gratification] [or] [profit] of [himself] [herself] [or] [another].

2. (Defendant’s) [ or some other person’s] use of the imaging device was for the purpose of viewing [the body of] [or] [the undergarments worn by] (victim) .

3. (Defendant’s) [ or some other person’s] use of the imaging device was without the knowledge and consent of (victim) .

4. (Defendant) sold an image of (victim) created in this manner to another person for consideration.

5. (Defendant) knew or had reason to believe that the image of (victim) sold had been created in this manner.

6. At the time (defendant) sold the image of (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.

Lesser Included Offenses

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

COMMERCIAL VIDEO VOYEURISM – 810.145(4)(a)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
None
	Attempt	777.04(1)	5.1

Comment

~~This instruction is based on section 810.145(2)(c), Florida Statutes (2004).~~

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

11.13(g) COMMERCIAL VIDEO VOYEURISM
(Image created in violation of section 810.145(2)(a) or (b))
§ 810.145(4)(b), Fla. Stat.

To prove the crime of Commercial Video Voyeurism, the State must prove the following ~~five~~ six elements beyond a reasonable doubt:

Give 1a or 1b as applicable.

a. intentionally [used] [or] [installed] an imaging device to secretly [view] [broadcast] [or] [record]

for [his] [her] own [amusement] [entertainment] [sexual arousal] [gratification] [or] [profit] [or] [for the purpose of degrading or abusing

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. (Defendant) [disseminated] [distributed] [or] [transferred] an image of (victim) created in this manner to another person for that person to sell to others.

6. At the time (defendant) [disseminated] [distributed] [or] [transferred] an image of (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.

“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 their 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.~~

COMMERCIAL VIDEO VOYEURISM – 810.145(4)(b)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
None
	Attempt	777.04(1)	5.1

Comment

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

11.13(h) [VIDEO VOYEURISM] [VIDEO VOYEURISM DISSEMINATION] [COMMERCIAL VIDEO VOYEURISM] INVOLVING CERTAIN AGED MINORS OR DEFENDANTS
§ 810.145(8)(a), Fla. Stat.

To prove the crime of [Video Voyeurism] [Video Voyeurism Dissemination] [Commercial Video Voyeurism] Involving Certain Aged Minors or Defendants, the State must prove the following [six] [seven] [eight] [nine] [ten] elements beyond a reasonable doubt:

First, instruct on the elements for the underlying type of video voyeurism charged.

For Video Voyeurism under Fla. Stat. 810.145(2)(a) or (b), there are five elements. See Instruction 11.13(a).

For Video Voyeurism under Fla. Stat. 810.145(2)(c), there are four elements. See Instruction 11.13(b).

For Video Voyeurism Dissemination under Fla. Stat. 810.145(3) for an image created in violation of Fla. Stat. 810.145(2)(a) and (b), there are seven elements. See Instruction 11.13(c).

For Video Voyeurism Dissemination under Fla. Stat. 810.145(3) for an image created in violation of Fla. Stat. 810.145(2)(c), there are six elements. See Instruction 11.13(d).

For Commercial Video Voyeurism under Fla. Stat. 810.145(4)(a) for an image created in violation of Fla. Stat. 810.145(2)(a) or (b), there are seven elements. See Instruction 11.13(e).

For Commercial Video Voyeurism under Fla. Stat. 810.145(4)(a) for an image created in violation of Fla. Stat. 810.145(2)(c), there are six elements. See Instruction 11.13(f).

For Commercial Video Voyeurism under Fla. Stat. 810.145(4)(b) for an image created in violation of Fla. Stat. 810.145(2)(a) or (b), there are six elements. See Instruction 11.13(g) .

Then, give (a) and/or (b) and/or (c) and/or (d) combined with #1 or #2 or #3 depending on what is charged.
At the time (defendant)

[viewed] [broadcast] [or] [recorded]

(victim)

, [or]

used an imaging device to secretly [view][broadcast] [or] [record]

(victim)

, [or]

[disseminated] [distributed] [or] [transferred] the image of

(victim)

, [or]

sold the image of

(victim)

If Fla. Stat. 810.145(8)(a)1 is charged:

(defendant)

was 18 years of age or older,

(defendant)

was responsible for the welfare of

(victim),

and

(victim)

was younger than 16 years of age.

If Fla. Stat. 810.145(8)(a)2 is charged:

(defendant)

was 18 years of age or older,

(defendant)

was employed at a [private school] [school][voluntary prekindergarten education program, and

(victim)

was a student of the [private school] [school][voluntary prekindergarten education program].

If Fla. Stat. 810.145(8)(a)3 is charged:

(defendant)

was 24 years of age or older and

(victim)

was younger than 16 years of age.

Give if appropriate.

It is not a defense that (defendant) did not know or did not have reason to know (victim’s) age.

Definitions. Give as applicable.
Fla. Stat. 1002.01.
“Private School” means a nonpublic school defined as an individual, association, copartnership, or corporation, or department, division, or section of such organizations, that designates itself as an educational center that includes kindergarten or a higher grade or as an elementary, secondary, business, technical, or trade school below college level or any organization that provides instructional services that meet the intent of Fla. Stat. 1003.01(13) or that gives preemployment or supplementary training in technology or in fields of trade or industry or that offers academic, literary, or career training below college level, or any combination of the above, including an institution that performs the functions of the above schools through correspondence or extension, except those licensed under the provisions of Florida Statutes, Chapter 1005. A private school may be a parochial, religious, denominational, for-profit, or nonprofit school. This definition does not include home education programs conducted in accordance with Fla. Stat. 1002.41.

Fla. Stat. 1003.01.
“School” means an organization of students for instructional purposes on an elementary, middle or junior high school, secondary or high school, or other public school level authorized under rules of the State Board of Education.

Fla. Stat. 1002.53(3)(a), (b), or (c).
“Voluntary Prekindergarten Education Program” means a school-year prekindergarten program delivered by a private prekindergarten provider under Fla. Stat. 1002.55; a summer prekindergarten program delivered by a public school or private prekindergarten provider under Fla. Stat. 1002.61; or a school-year prekindergarten program delivered by a public school.

Lesser Included Offenses

The lesser-included offense depends on what type of underlying voyeurism is charged.

Comment

This instruction was adopted in 2013.

11.17(a) SOLICITING A [ CHILD ] [PERSON BELIEVED TO BE A CHILD] FOR UNLAWFUL SEXUAL CONDUCT
USING COMPUTER SERVICES OR DEVICES
§ 847.0135(3)(a), Fla. Stat.

To prove the crime of Soliciting a [ Child ] [ Person Believed to be a Child] for Unlawful Sexual Conduct Using Computer Services or Devices, the State must prove the following [three] [four] elements beyond a reasonable doubt:

knowingly used a

[n]

[computer on-line service]

[Internet service] [local bulletin board service] [~~any other~~ device

capable of electronic data storage

or transmission

] to contact

was a child or a person believed by the defendant to be a child.

3. During that contact, (Ddefendant) [seduced] [solicited] [lured] [enticed] [attempted to] [seduce] [solicit] [lure] [entice]](victim) to engage in (any illegal act as charged in the indictment or information under chapter 794, 800, 827, or other unlawful sexual conduct with a child or with a person believed to be a child).

Enhanced penalty. Give if applicable.

If you find (defendant) guilty of Soliciting a Child for Unlawful Sexual Conduct Using Computer Services or Devices, you must also determine if whether the State has proved beyond a reasonable doubt ~~whether~~ that:

during the contact,

misrepresented [his] [her] age to

~~the [~~

~~(victim)~~

~~] [law enforcement officer representing [himself] [herself] to be a person under 18 years of age].~~

[

(victim)

] [the person believed by the defendant to be a child].

The mere fact that an undercover operative or law enforcement officer was involved in the detection and investigation of this offense shall not constitute a defense from prosecution.

Definitions.
A “child” means any person, whose identity is known or unknown, less than 18 years of age.

Give the following definitions if applicable. Additional definitions can be added as applicable depending on the nature of the alleged illegal conduct.
“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. A mother’s breastfeeding of her baby does not under any circumstance constitute “sexual conduct.”

“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 upon 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 another by any other object; however, sexual battery does not include an act done for a bona fide medical purpose.

“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.

“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.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2009 [6 So. 3d 574] and amended in 2013.

Glen

11.17(b) SOLICITING A PARENT, LEGAL GUARDIAN, OR CUSTODIAN OF A CHILD FOR UNLAWFUL SEXUAL CONDUCT USING COMPUTER SERVICES OR DEVICES
§ 847.0135(3)(b), Fla. Stat.

To prove the crime of Soliciting a Parent of a Child for Unlawful Sexual Conduct Using Computer Services or Devices, the State must prove the following [two] ~~[four]~~ elements beyond a reasonable doubt:

knowingly used a

[n]

[computer on-line service]

[Internet service] [local bulletin board service] [

~~any other~~

device

capable of electronic data storage

or transmission

] to contact

[

~~(victim)~~

]

a [parent of a child] [legal guardian of a child] [custodian of a child] [person the defendant

believed to be a [parent] [legal guardian] [custodian of] a child]

2. ~~(Victim)~~ ~~was a child or a person believed by the defendant to be a~~ ~~child~~ .

3. 2. During that contact, ( D d efendant) ~~[seduced]~~ [solicited] [lured] [enticed] [attempted to ~~] [seduce]~~ [solicit] [lure] [entice] ] a [parent of a child ] [legal guardian of a child ] [custodian of a child] [person believed to be a [legal guardian] [custodian of ] a child] ~~(victim)~~ ] to consent to the participation of ~~(victim)~~ the child in ~~any act described in~~ (any illegal act as charged in the indictment or information under chapter 794, 800, 827, or other unlawful sexual conduct) .

Enhanced penalty. Give if applicable.

If you find (defendant) guilty of Soliciting a Parent of a Child for Unlawful Sexual Conduct Using Computer Services or Devices, you must also determine if whether the State has proved beyond a reasonable doubt ~~whether~~ that :

during the contact,

misrepresented [his] [her] age to the

[

~~(victim)~~

~~] [law enforcement officer representing [himself] [herself] to be a person under 18 years of age].~~

[parent] [legal guardian] [custodian] [person believed to be a [parent] [legal guardian] [custodian].

The mere fact that an undercover operative or law enforcement officer was involved in the detection and investigation of this offense shall not constitute a defense from prosecution.

Definitions.
A “child” means any person, whose identity is known or unknown, less than 18 years of age.

“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.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2009 [6 So. 3d 574] and amended in 2013.

11.17(c) TRAVELING TO MEET A MINOR
§ 847.0135(4)(a), Fla. Stat.

To prove the crime of Traveling to Meet a Minor, the State must prove the following ~~four~~ two elements beyond a reasonable doubt:

)

~~knowingly [traveled] [attempted to travel] [within this state] [to this state] [from this state]~~

used a[n] [computer on-line service] [Internet service] [local bulletin board service] [device capable of electronic data storage or transmission] to [seduce] [solicit] [lure] [entice] [attempt to [seduce] [solicit] [lure] [entice]] a [child] [person believed to be a child] to engage in [

(insert illegal act in chapter 794, 800, or 827 as alleged in the charging instrument)

] [unlawful sexual conduct]

2. (Defendant) ~~did so for the purpose of engaging in any illegal act~~ ~~described in~~ [ ~~(insert violation of chapter 794, 800, or 827 as alleged in the charging instrument)~~ ] ~~[other unlawful sexual conduct] with~~ ~~(victim)~~ ~~after using [a computer on-line service] [Internet service] [local bulletin board service] [any other device capable of electronic data storage or transmission] to contact a child~~ then [traveled] [attempted to travel] [caused another to travel] [attempted to cause another to travel] [within this state] [to this state] [from this state] for the purpose of [ (insert violation of chapter 794, 800, or 827 as alleged in the charging instrument) ]

[unlawful sexual conduct] with a [child] [person believed by the defendant to be a child]

3. ~~(Victim)~~ ~~was a child or a person believed by the defendant to be a child.~~

4. ~~(Defendant)~~ ~~[seduced] [solicited] [lured] [enticed] [attempted to] [seduce] [solicit] [lure] [entice]~~ ~~(victim)~~ ~~to engage in~~ ~~(any illegal act as charged in the indictment or information under chapter 794, 800, 827, or other unlawful sexual conduct)~~.

The mere fact that an undercover operative or law enforcement officer was involved in the detection and investigation of this offense shall not constitute a defense from prosecution.

Definitions.
A “child” means any person, whose identity is known or unknown, less than 18 years of age.

“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.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2009 [6 So. 3d 574] and amended in 2013.

Jim

11.17(d) TRAVELING TO MEET A MINOR
FACILITATED BY PARENT, LEGAL GUARDIAN, OR CUSTODIAN
§ 847.0135(4)(b), Fla. Stat.

To prove the crime of Traveling to Meet a Minor Facilitated by Parent, Legal Guardian, or Custodian, the State must prove the following ~~four~~ two elements beyond a reasonable doubt:

~~traveled [attempted to travel] [within this state] [to this state] [from this state]~~

used a[n] [computer on-line service] [Internet service] [local bulletin board service] [device capable of electronic data storage or transmission] to [solicit] [lure] [entice] [attempt to [solicit] [lure] [entice]] a [parent] [legal guardian] [custodian] [person believed to be a [parent] [legal guardian] [custodian]] of a child to consent for the [child] [person believed to be a child] to participate in [

(insert violation of chapter 794, 800, or 827 as alleged in the charging instrument)

] [sexual conduct]

2. (Defendant) ~~did so for the purpose of engaging in any illegal act described in [~~ ~~(insert violation of chapter 794, 800, or 827 as alleged in the charging instrument)~~ ] ~~[other unlawful sexual conduct] with~~ ~~(victim)~~ ~~after using [a computer on-line service] [Internet service] [local bulletin board service] [any other device capable of electronic data storage or transmission] to contact a child~~ then [traveled][attempted to travel] [caused another to travel] [attempted to cause another to travel][within this state] [to this state] [from this state] for the purpose of engaging in any illegal act described in [ (insert violation of chapter 794, 800, or 827 as alleged in the charging instrument) ] [other unlawful sexual conduct] with a child or a person believed by the defendant to be a child .

3. ~~(Victim)~~ ~~was a child or a person believed by the defendant to be a child.~~

4. ~~(Defendant)~~ ~~[seduced] [solicited] [lured] [enticed] [attempted to] [seduce] [solicit] [lure] [entice] a [parent] [legal guardian] [custodian of [~~~~(victim)~~~~] [person believed to be [a parent] [legal guardian] [custodian of~~ ~~(victim)~~~~] to consent to the participation of~~ ~~(victim)~~ ~~in any act described in~~ ~~(any illegal act as charged in the indictment or information under chapter 794, 800, 827, or other unlawful sexual conduct)~~.

The mere fact that an undercover operative or law enforcement officer was involved in the detection and investigation of this offense shall not constitute a defense from prosecution.

Definitions.
A “child” means any person, whose identity is known or unknown, less than 18 years of age.

“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.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2009 [6 So. 3d 574] and amended in 2013.

16.1 AGGRAVATED CHILD ABUSE
§ 827.03(2)( a), Fla._Stat.

To prove the crime of Aggravated Child Abuse, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant)

Give as applicable.

committed aggravated battery upon

b. willfully tortured (victim) .

c. maliciously punished (victim) .

d. willfully and unlawfully caged (victim) .

e. knowingly or willfully committed child abuse upon (victim) and in so doing caused great bodily harm, permanent disability, or permanent disfigurement to (victim) .

was under the age of 18 years.

~~Definitions. Give as applicable~~ . Give if element 1a is alleged.
In order to prove that an aggravated battery was committed, the State must prove the following:

intentionally

Give as applicable.

touched or struck

against the will of

b. caused bodily harm to (victim) .

Give as applicable.

In so doing,

intentionally or knowingly caused [great bodily harm] [permanent disability] [permanent disfigurement]

[

]

[used a deadly weapon].

b. At the time, (victim) was pregnant and (defendant) knew or should
have known (victim) was pregnant.

Give if applicable.
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 1b, 1d, or 1e is alleged.
“Willfully” means knowingly, intentionally, and purposely.

Give if element 1c is alleged. Fla. Stat. § 827.03(c).
“Maliciously” means wrongfully, intentionally, and without legal justification or excuse. Maliciousness may be established by circumstances from which one could conclude that a reasonable parent would not have engaged in the damaging acts toward the child for any valid reason and that the primary purpose of the acts was to cause the victim unjustifiable pain or injury.

Give ~~in all cases~~ if element 1(e) is alleged. Fla. Stat. § 827.03(1)(b).
“Child Abuse” means [the intentional infliction of physical or mental injury upon a child] [an intentional act that could reasonably be expected to result in physical or mental injury to a child] [active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or mental injury to a child].

Give if applicable. Fla. Stat. § 827.03(1)(d)
“Mental injury” means injury to the intellectual or psychological capacity of a child as evidenced by a discernible and substantial impairment in the ability of the child to function within the normal range of performance and behavior as supported by expert testimony.

Parental affirmative defense. Give if applicable. See Raford v. State, 828 So. 2d 1012 (Fla. 2002).
§ 827.03 Fla. Stat. and case law are silent as to (1) which party bears the burden of persuasion of the affirmative defense and (2) the standard for the burden of persuasion. Under the common law, defendants had both the burden of production and the burden of persuasion on affirmative defenses by a preponderance of the evidence. The Florida Supreme Court has often decided, however, that once a defendant meets the burden of production on an affirmative defense, the burden of persuasion is on the State to disprove the affirmative defense beyond a reasonable doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the absence of case law, trial judges must resolve the issue via a special instruction. See the opinions in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.

It is not a crime for [a parent] [a person who is acting as the lawful guardian] of a child to impose reasonable physical discipline on a child for misbehavior under the circumstances even though physical injury resulted from the discipline.

If burden of persuasion is on the defendant:
If you find that defendant proved (insert appropriate burden of persuasion) that [he] [she] imposed reasonable physical discipline on (victim) for misbehavior under the circumstances, you should find [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion) that [he] [she] imposed reasonable physical discipline on (victim) for misbehavior under the circumstances , you should find [him] [her] guilty, if all the elements of the charge have been proven beyond a reasonable doubt.

If burden of persuasion is on the State:
If you find that the State proved (insert appropriate burden of persuasion) that the defendant’s physical discipline on (victim) was not reasonable for misbehavior under the circumstances, you should find [him] [her] guilty, if all of the elements of the charge have been proven beyond a reasonable doubt.

Lesser Included Offenses

AGGRAVATED CHILD ABUSE — 827.03(2) (a)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
~~None~~ Aggravated Battery; if element 1a is charged		784.045	8.4, 8.4(a)
Felony Battery; if element 1a is charged		784.041	8.5
Battery; if element 1a is charged and only under certain circumstances. See Kama v. State, 507 So.2d 154 (Fla. 2d DCA 1987)		784.03	8.3
Child Abuse; if element 1e is charged	~~Child abuse~~	827.03(12)(c)	16.3
	~~Battery; only under certain circumstances. See~~ ~~Kama v. State~~~~, 507 So.2d 154 (Fla. 2d DCA 1987)~~	~~784.03~~	~~8.3~~
	Attempt	777.04(1)	5.1

Comment

~~This instruction is based on § 827.03(2), Fla. Stat. (1999). The definition of malice as used in this statute is from~~ ~~State v. Gaylord~~ ~~, 356 So. 2d 313 (Fla. 1978);~~ ~~see also Young v. State,~~ ~~753 So. 2d 725 (Fla. 1st DCA 2000).~~

This instruction was adopted in 1981 and amended in ~~June~~ 2002 [824 So. 2d 881], ~~and September~~ 2005 [911 So. 2d 766], and 2013.

~~16.2 AGGRAVATED CHILD ABUSE (AGGRAVATED BATTERY)~~
~~§ 827.03, Fla.Stat.~~

To prove the crime of Aggravated Child Abuse by committing Aggravated Battery upon a child, the State must prove the following three elements beyond a reasonable doubt. The first element is a definition of battery.

~~(Defendant)~~

~~committed a battery against~~

~~(victim)~~

~~by intentionally [touching or striking~~

~~(victim)~~

~~against [his] [her] will] [causing bodily harm to~~

~~(victim)~~

~~(Defendant)~~

~~in committing the battery~~

~~Give 2a or 2b as applicable.~~

~~[intentionally or knowingly caused victim~~

~~[great bodily harm]~~

~~[permanent disability]~~

~~[permanent disfigurement]].~~

~~[used a deadly weapon].~~

~~(Victim)~~

~~was under the age of 18 years.~~

~~Definition. Give if 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 CHILD ABUSE — 827.03(1)(a)–(d)~~
~~CATEGORY ONE~~	~~CATEGORY TWO~~	~~FLA. STAT.~~	~~INS. NO.~~
~~None~~
	~~Attempt~~	~~777.04(1)~~	~~5.1~~
	~~Child abuse~~	~~827.03(1)~~	~~16.3~~
	~~Battery; only under certain circumstances. See~~ ~~Kama v. State~~~~, 507 So.2d 154 (Fla. 2d DCA 1987)~~	~~784.03~~	~~8.3~~

~~Comment~~

~~This instruction was adopted in 1981.~~

16.3 CHILD ABUSE
§ 827.03( 1 2 ) (c), Fla. Stat.

To prove the crime of Child Abuse, the State must prove the following two elements beyond a reasonable doubt:

knowingly or willfully:

Give as applicable.

intentionally inflicted [physical][or] [mental] injury upon

committed an intentional act that could reasonably be expected to result in [physical] [or] [mental] injury to

actively encouraged another person to commit an act that resulted in or could reasonably have been expected to result in [physical] [or] [mental] injury to

was under the age of 18 years.

Parental affirmative defense. Give if applicable. See Raford v. State, 828 So. 2d 1012 (Fla. 2002).
§ 827.03 Fla. Stat. and case law are silent as to (1) which party bears the burden of persuasion of the affirmative defense and (2) the standard for the burden of persuasion. Under the common law, defendants had both the burden of production and the burden of persuasion on affirmative defenses by a preponderance of the evidence.
The Florida Supreme Court has often decided, however, that once a defendant meets the burden of production on an affirmative defense, the burden of persuasion is on the State to disprove the affirmative defense beyond a reasonable doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the absence of case law, trial judges must resolve the issue via a special instruction. See the opinions in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.

It is not a crime for [a parent] [a person who has legal custody ~~is acting as the lawful guardian~~ ] of a child to impose reasonable physical discipline on a child for misbehavior under the circumstances even though physical injury resulted from the discipline. ( ~~Insert appropriate burden of persuasion to appropriate party.)~~

Definitions, give as applicable.
~~§ 39.01(2), Florida Statutes.~~
~~“Abuse” means any willful act or threatened act that results in any physical, mental, or sexual injury abuse, injury,~~ or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired. Abuse of a child includes acts or omissions. [Corporal discipline of a child by a parent or legal custodian for disciplinary purposes does not in itself constitute abuse when it does not result in harm to the child.]

~~§ 39.01(32), Florida Statutes.~~
~~“Harm” means~~ ~~(insert specific allegation included from this subsection of the statute charged in the indictment or information).~~ ~~§ 39.01(56), Florida Statutes.~~
~~“Physical injury” means death, permanent or temporary disfigurement, or impairment of any bodily part.~~

§ ~~39.01(42)~~ 827.03(1)(d) , Florida Statutes.
“Mental injury” means an injury to the intellectual or psychological capacity of a child as evidenced by a discernible and substantial impairment in the ability to function within the normal range of performance and behavior as supported by expert testimony .

Note to Judge. See § 39.01(49), Florida Statutes, if the defendant’s
status as a parent is at issue.

§ 39.01(35), Florida Statutes. (Give only when the guardian is not a parent).
“Legal custody” means a legal status created by a court which vests in a custodian of the person or guardian, whether an agency or an individual, the right to have physical custody of the child and the right and duty to protect, nurture, guide, and discipline the child and to provide [him] [her] with food, shelter, education and ordinary medical, dental, psychiatric, and psychological care.

Lesser Included Offenses

CHILD ABUSE — 827.03( 1 2 ) (c)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
None
	Contributing to the dependency of a minor	827.04(1)	16.4
	Battery; only under certain circumstances. See Kama v. State, 507 So. 2d 154 (Fla. 1^st DCA 1987)	784.03	8.3
	Attempt	777.04(1)	5.1

Comment

See Raford v. State, 828 So. 2d 1012 (Fla. 2002), and Dufresne v. State,
826 So. 2d 272 (Fla. 2002), for authority to incorporate definitions from Chapter 39, Florida Statutes.

This instruction was adopted in 1981 and amended in 1985, 1989, 2002 [824 So. 2d 881], ~~and~~ 2011 [ 75 So. 3d 207], and 2013.

16.5 NEGLECT OF A CHILD
§ 827.03( 3 2 ) (b), Fla._Stat.

(Great Bodily Harm, Permanent Disability,

or Permanent Disfigurement)

To prove the crime of Neglect of a Child ~~with~~ Causing [ g G reat b B odily h H arm] [ p P ermanent d D isability] [ p P ermanent d D isfigurement], the State must prove the following four elements beyond a reasonable doubt:

1. (Defendant)

Give as applicable.

[willfully] [by culpable negligence] failed or omitted to provide

with the care, supervision, and services necessary to maintain

physical or mental health.

failed to make a reasonable effort to protect

from abuse, neglect, or exploitation by another person.

In so doing,

caused [great bodily harm] [permanent disability] [permanent disfigurement] to

was a caregiver for

was under the age of 18 years.

Neglect of a child may be based on repeated conduct or on a single incident or omission that resulted in, or reasonably could have been expected to result in, serious physical or mental injury, or a substantial risk of death, to a child.

Definition. Give in all cases.
“Caregiver” means a parent, adult household member, or other person responsible for a child’s welfare.

for others. For negligence to be called culpable negligence, it must be gross and flagrant. The negligence must be committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily harm.

Lesser Included Offenses

NEGLECT OF A CHILD CAUSING GREAT BODILY HARM, PERMANENT DISABILITY OR PERMANENT DISFIGUREMENT — 827.03( 3 2 )(b)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
Child neglect		827.03(3)(cd)	16.6
Culpable Negligence Inflicting Injury, if culpable negligence is charged	~~None~~	784.05	8.9
Culpable Negligence Exposing Another to Injury, if culpable negligence is charged		784.05	8.9

Comment

This instruction was adopted in ~~June~~ 2002 [ 824 So. 2d 881] and 2013.

16.6 NEGLECT OF A CHILD
§ 827.03 ~~(3)(c)~~ (2)(d), Fla._Stat.

(Without Great Bodily Harm, Permanent Disability,

or Permanent Disfigurement)

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

1. (Defendant)

Give as applicable.

[willfully] [by culpable negligence] failed or omitted to provide

with the care, supervision, and services necessary to maintain

physical or mental health.

failed to make a reasonable effort to protect

from abuse, neglect, or exploitation by another person.

was a caregiver for

was under the age of 18 years.

Definition. Give in all cases.
“Caregiver” means a parent, adult household member, or other person responsible for a child’s welfare.

Definition. Give if applicable.
I will now define what is meant by the term “culpable negligence”: Each of us has a duty to act reasonably toward others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence. But culpable negligence is more than a failure to use ordinary care for others. For negligence to be called culpable negligence, it must be gross and flagrant. The negligence must be committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily harm.

Lesser Included Offenses

NEGLECT OF A CHILD — 827.03 ~~(3)(c)~~ (2)(d)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
~~None~~
Culpable Negligence Exposing Another to Injury, if culpable negligence is charged	~~Culpable negligence~~	784.05	8.9
	Culpable Negligence Inflicting Injury on Another, if charged	784.05	8.9

Comment

This instruction was adopted in ~~June~~ 2002 [824 So. 2d 881] and 2013.

21.16 FALSELY PERSONATING AN OFFICER
§ 843.08, Fla. Stat.

To prove the crime of Falsely Personating An Officer, the State must prove the following [two] [three] elements beyond a reasonable doubt:

(

Defendant)

falsely assumed or pretended to be a[n] [police officer] [deputy sheriff] [sheriff] [officer of the Florida Highway Patrol] [officer of the Fish and Wildlife Conservation Commission] [officer of the Department of Transportation] [officer of the Department of Financial Services] [officer of the Department of Corrections] [correctional probation officer] [state attorney] [assistant state attorney] [statewide prosecutor] [assistant statewide prosecutor] [state attorney investigator] [coroner] [lottery special agent] [lottery investigator] [beverage enforcement agent] [ watchman] [member of the Parole Commission][administrative aide to the Parole Commission] [supervisor employed by the Parole Commission] [representative or personnel of the Department of Law Enforcement] [federal law enforcement officer].

While doing so,

(defendant

) [took it upon [himself] [herself] to act as such an officer] [required [someone] [

(name of person)

] to aid or assist [him] [her] in a matter pertaining to the duty of such an officer].

Give if applicable.

The impersonation occurred during the commission of

a felony. Definition. Give if applicable.
A federal law enforcement officer is a person who is employed by the Federal Government as a full-time law enforcement officer, who is empowered to effect an arrest for violations of the United States Code, who is authorized to carry firearms in the performance of her or his duties, and who has received law enforcement training equivalent to training for Florida law enforcement officers.

Give if applicable.
If you find the defendant guilty of Falsely Personating an Officer and that the impersonation occurred during the commission of a felony, you must then determine whether the State has proven beyond a reasonable doubt that the commission of the felony resulted in [death] [or] [personal injury] to another human being.

Lesser Included Offenses

FALSELY PERSONATING AN OFFICER — 843.08
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
None
	Attempt	777.04(1)	5.1

Comment

This instruction was adopted in 2013.

22.15 [POSSESSION] [PERMITTING THE OPERATION]
OF A SLOT MACHINE
§ 849.15(1)(a) and (b), Fla. Stat.

To prove the crime of (crime charged) , the State must prove the following element beyond a reasonable doubt:

Give as applicable.

(Defendant)

[manufactured] [owned] [stored] [kept] [possessed]

[

sold] [leased] [let on shares] [lent] [gave away] [transported] [exposed for sale or lease] any slot machine or device [or any part of a slot machine or device].

offered to [sell] [rent] [lease] [let on shares] [lend] [give away] any slot machine or device [or any part of a slot machine or device].

permitted the operation of any slot machine or device [or any part of a slot machine or device].

permitted any slot machine or device [or any part of

a slot machine or device] to be [placed] [maintained] [used] [kept]
in a [room] [space] [building] owned, leased, or occupied by [him]
[her] or under [his] [her] management or control.

made [or permitted to be made] an agreement with another, pursuant to which the user of any slot machine or device, as a result of any element of chance [or other outcome unpredictable to him or her] may become entitled to receive [money] [credit] [allowance] [a thing of value] [an additional chance or right to use the slot machine or device] [any [check] [slug] [token] [memorandum] entitling the holder to receive [money] [credit] [allowance] [or] [thing of value]].

§ 849.16, Fla. Stat.
A “slot machine or device” is a machine or device that is adapted for use in such a way that, as a result of the insertion of any piece of money, coin, or other object, such machine or device is caused to operate or may be operated and if the user, by reason of any element of chance or of any other outcome of such operation unpredictable by him or her, may:

(a) receive or become entitled to receive any piece of money, credit,
allowance, or thing of value; or

(b)

receive any check, slug, token, or memorandum, whether of value or otherwise, which may be exchanged for any money, credit, allowance, or thing of value or which may be given in trade; or

(c) secure additional chances or rights to use such machine, apparatus, or device, even though it may, in addition to any element of chance or unpredictable outcome of such operation, also sell, deliver, or present some merchandise, indication of weight, entertainment, or other thing of value.

Give if applicable. Eccles v. Stone, 183 So. 628 (Fla. 1938); Dept. of Business Regulation v. Rains, 477 So. 2d 1029 (Fla. 2d DCA 1985).
It is not necessary for the State to prove that the slot machine or device was used for gambling.

Lesser Included Offenses

[POSSESSION] [PERMITTING THE OPERATION] OF A SLOT MACHINE — 849.15(1)(a) and (b)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
None
	Attempt	777.04(1)	5.1

Comment

For exceptions under certain circumstances, see Fla. Stat. § 849.161 regarding coin-operated games or machines which may determine a winner based on the application of skill.

This instruction was adopted in 2013.

23.1 MAINTAINING A PLACE OF PROSTITUTION, LEWDNESS, OR ASSIGNATION
§ 796.07(2)(a), Fla. Stat.

To prove the crime of Maintaining a Place of [Prostitution] [Lewdness] [Assignation], the State must prove the following element beyond a reasonable doubt:

(Defendant) [established] [owned] [maintained] [operated] any [place] [structure] [building] [conveyance] for the purpose of [lewdness] [assignation] [prostitution].

Give if applicable. Fla. Stat. § 796.036.
If you find the defendant guilty of Maintaining a Place of [Prostitution] [Lewdness] [Assignation], you must then determine whether the State has proven beyond a reasonable doubt that:

A minor was engaged in the [prostitution] [lewdness] [assignation] [sexual conduct] [

(other conduct prohibited in Chapter 796)

The minor was not the person charged in this case.

Definitions.
“Prostitution” is the giving or receiving of the body for sexual activity for hire but excludes sexual activity between spouses.

“Lewdness” is any indecent or obscene act. “Indecent” means wicked, lustful, unchaste, licentious, or sensual intention on the part of the person doing the act.

“Assignation” means the making of any appointment or engagement for prostitution or lewdness, or any act in furtherance of such appointment or engagement.

A “structure” is any building of any kind, either temporary or permanent, which has a roof over it and includes any closely adjoining land enclosed by a fence or wall.

A “conveyance” means any motor vehicle, ship, vessel, railroad car, trailer, aircraft, or sleeping car.
“Sexual activity” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another; anal or vaginal penetration of another by any other object; or the handling or fondling of the sexual organ of another for the purpose of masturbation; however, the term does not include acts done for bona fide medical purposes.

Lesser Included Offenses

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

MAINTAINING A PLACE OF PROSTITUTION, LEWDNESS, OR ASSIGNATION – 796.07(2)(a), Fla. Stat.
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
None
	Attempt	777.04(1)	5.1

Comment

This instruction was adopted in 1981 and amended in 2008 [995 So. 2d 476], ~~and~~ 2010 [48 So. 3d 41], and 2013.

23.2 SOLICITING FOR THE PURPOSE OF PROSTITUTION
OR A LEWD OR INDECENT ACT
§ 796.07(2)(b), Fla. Stat.

To prove the crime of Soliciting for the Purpose of [Prostitution] [Any Lewd or Indecent Act], the State must prove the following element beyond a reasonable doubt:

(Defendant) [offered] [offered to secure] [agreed to secure] another person for the purpose of [prostitution] [any lewd or indecent act].

Give if applicable. Fla. Stat. § 796.036.
If you find the defendant guilty of Soliciting for the Purpose of [Prostitution] [Any Lewd or Indecent Act], you must then determine whether the State has proven beyond a reasonable doubt that:

A minor was engaged in the [prostitution] [lewdness] [assignation] [sexual conduct] [

(other conduct prohibited in Chapter 796)

The minor was not the person charged in this case.

Definitions.
“Prostitution” is the giving or receiving of the body for sexual activity for hire but excludes sexual activity between spouses.

A “lewd act” is any indecent or obscene act. “Indecent” means wicked, lustful, unchaste, licentious, or sensual intention on the part of the person doing the act.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 1981 and amended in 2008 [995 So. 2d 476], ~~and~~ 2010 [48 So. 3d 41], and 2013.

23.3 RECEIVING FOR THE PURPOSE OF PROSTITUTION,
LEWDNESS OR ASSIGNATION
§ 796.07(2)(c), Fla. Stat.

To prove the crime of Receiving for the Purpose of [Prostitution] [Lewdness] [Assignation], the State must prove the following element beyond a reasonable doubt:

Give element 1 or element 2 as applicable.

[received] [offered to receive] [agreed to receive] a person into a [place] [structure] [building] [conveyance] for the purpose of [prostitution] [lewdness] [assignation].

2. (Defendant) permitted a person to remain in a [place] [structure] [building] [conveyance] for the purpose of [prostitution] [lewdness] [assignation].

Give if applicable. Fla. Stat. § 796.036.
If you find the defendant guilty of Receiving for the Purpose of [Prostitution] [Lewdness] [Assignation], you must then determine whether the State has proven beyond a reasonable doubt that:

A minor was engaged in the [prostitution] [lewdness] [assignation] [sexual conduct] [

(other conduct prohibited in Chapter 796)

The minor was not the person charged in this case.

Definitions.

“Prostitution” is the giving or receiving of the body for sexual activity for hire but excludes sexual activity between spouses.

“Lewdness” is any indecent or obscene act. “Indecent” means wicked, lustful, unchaste, licentious, or sensual intention on the part of the person doing the act.

“Sexual activity” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another; anal or vaginal penetration of another by any other object; or the handling or fondling of the sexual organ of another for the purpose of masturbation; however, the term does not include acts done for bona fide medical purposes.
“Assignation” includes the making of any appointment or engagement for prostitution or lewdness or any act in furtherance of such appointment or engagement.

A “structure” is any building of any kind, either temporary or permanent, which has a roof over it and includes any closely adjoining land enclosed by a fence or wall.

A “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.

Comment

This instruction was adopted in 1981 and amended in 2008 [995 So. 2d 476], ~~and~~ 2010 [48 So. 3d 41], and 2013.

23.4 TRANSPORTING FOR THE PURPOSE OF PROSTITUTION,
LEWDNESS OR ASSIGNATION
§ 796.07(2)(d), Fla. Stat.

To prove the crime of Transporting for the Purpose of [Prostitution] [Lewdness] [Assignation], the State must prove the following two elements beyond a reasonable doubt:

[directed] [took] [transported] [offered or agreed to [direct] [take] [transport]] a person to [a place] [a structure] [a building] [another person].

At the time,

knew or had reasonable cause to believe that such [directing] [taking] [transporting] was for the purpose of [prostitution] [lewdness] [assignation].

Give if applicable. Fla. Stat. § 796.036.
If you find the defendant guilty of Transporting for the Purpose of [Prostitution] [Lewdness] [Assignation], you must then determine whether the State has proven beyond a reasonable doubt that:

A minor was engaged in the [prostitution] [lewdness] [assignation] [sexual conduct] [

(other conduct prohibited in Chapter 796)

The minor was not the person charged in this case.

Definitions.
“Prostitution” is the giving or receiving of the body for sexual activity for hire but excludes sexual activity between spouses.

“Lewdness” is any indecent or obscene act. “Indecent” means wicked, lustful, unchaste, licentious, or sensual intention on the part of the person doing the act.

“Assignation” includes the making of any appointment or engagement for prostitution or lewdness or any act in furtherance of such appointment or engagement.

A “structure” is any building of any kind, either temporary or permanent, which has a roof over it and includes any closely adjoining land enclosed by a fence or wall.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 1981 and amended in 2008 [995 So. 2d 476], ~~and~~ 2010 [48 So. 3d 41], and 2013.

23.5 OFFERING TO COMMIT, COMMITTING, OR ENGAGING IN
PROSTITUTION, LEWDNESS, OR ASSIGNATION
§ 796.07(2)(e), Fla. Stat.

To prove the crime of Offering to Commit, Committing, or Engaging in [Prostitution] [Lewdness] [Assignation], the State must prove the following element beyond a reasonable doubt:

(Defendant) [offered to commit] [committed] [engaged in] [prostitution] [lewdness] [assignation].

Give if applicable. Fla. Stat. § 796.036.
If you find the defendant guilty of Offering to Commit, Committing, or Engaging in [Prostitution] [Lewdness] [Assignation], you must then determine whether the State has proven beyond a reasonable doubt that:

A minor was engaged in the [prostitution] [lewdness] [assignation] [sexual conduct] [

(other conduct prohibited in Chapter 796)

b. The minor was not the person charged in this case.

Definitions.

“Prostitution” is the giving or receiving of the body for sexual activity for hire but excludes sexual activity between spouses.

“Lewdness” is any indecent or obscene act. “Indecent” means wicked, lustful, unchaste, licentious, or sensual intention on the part of the person doing the act.

“Assignation” includes the making of any appointment or engagement for prostitution or lewdness or any act in furtherance of such appointment or engagement.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 1981 and amended in 2008 [995 So. 2d 476], ~~and~~ 2010 [48 So. 3d 41], and 2013.

23.6 SOLICITING FOR PROSTITUTION, LEWDNESS, OR ASSIGNATION
§ 796.07(2)(f), Fla. Stat.

To prove the crime of Soliciting for [Prostitution] [Lewdness] [Assignation], the State must prove the following element beyond a reasonable doubt:

(Defendant) [solicited] [induced] [enticed] [procured] another to commit [prostitution] [lewdness] [assignation].

Give if applicable. Fla. Stat. § 796.036.
If you find the defendant guilty of Soliciting for [Prostitution] [Lewdness] [Assignation], you must then determine whether the State has proven beyond a reasonable doubt that:

A minor was engaged in the [prostitution] [lewdness] [assignation] [sexual conduct] [

(other conduct prohibited in Chapter 796)

The minor was not the person charged in this case.

Definitions.
“Prostitution” is the giving or receiving of the body for sexual activity for hire but excludes sexual activity between spouses.

“Lewdness” is any indecent or obscene act. “Indecent” means wicked, lustful, unchaste, licentious, or sensual intention on the part of the person doing the act.

“Assignation” includes the making of any appointment or engagement for prostitution or lewdness or any act in furtherance of such appointment or engagement. To “solicit” means to ask earnestly or to try to induce the person solicited to do the thing solicited.

To “procure” means to persuade, induce, prevail upon or cause a person to do something.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 1981 and amended in 2008 [995 So. 2d 476], ~~and~~ 2010 [48 So. 3d 41], and 2013.

23.7 ENTERING FOR THE PURPOSE OF PROSTITUTION,
LEWDNESS, OR ASSIGNATION
§ 796.07(2)(g), Fla. Stat.

To prove the crime of Entering for the Purpose of [Prostitution] [Lewdness] [Assignation], the State must prove the following element beyond a reasonable doubt:

( Defendant) [resided in] [entered] [remained in] a [place] [structure] [building] [conveyance] for the purpose of [prostitution] [lewdness] [assignation].

Give if applicable. Fla. Stat. § 796.036.
If you find the defendant guilty of Entering for the Purpose of [Prostitution] [Lewdness] [Assignation], you must then determine whether the State has proven beyond a reasonable doubt that:

A minor was engaged in the [prostitution] [lewdness] [assignation] [sexual conduct] [

(other conduct prohibited in Chapter 796)

The minor was not the person charged in this case.

Definitions.
“Prostitution” is the giving or receiving of the body for sexual activity for hire but excludes sexual activity between spouses.

“Lewdness” is any indecent or obscene act. “Indecent” means wicked, lustful, unchaste, licentious, or sensual intention on the part of the person doing the act.

“Assignation” includes the making of any appointment or engagement for prostitution or lewdness or any act in furtherance of such appointment or engagement.

A “structure” is any building of any kind, either temporary or permanent, which has a roof over it and includes any closely adjoining land enclosed by a fence or wall.

A “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.~~

ENTERING FOR THE PURPOSE OF PROSTITUTION, LEWDNESS, OR ASSIGNATION – 796.07(2)(g), Fla. Stat.
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
None
	Attempt	777.04(1)	5.1

Comment

This instruction was adopted in 1981 and amended in 2008 [995 So. 2d 476], ~~and~~ 2010 [48 So. 3d 41], and 2013.

23.8 SELLING A MINOR INTO PROSTITUTION BY A [PARENT] [LEGAL GUARDIAN] [PERSON WITH CONTROL OF THE MINOR]
§ 796.035, Fla. Stat.

To prove the crime of Selling a Minor Into Prostitution a [Parent] [Legal Guardian] [Person With Control of the Minor], the State must prove the following four elements beyond a reasonable doubt:

(Defendant

) [was a [parent] [legal guardian]] [had custody or control] of

(victim)

(Defendant)

[sold or otherwise transferred custody or control of

(victim)]

[offered to sell or offered to otherwise transfer custody of

(victim)

3. (Defendant) did so [knowing] [in reckless disregard of the fact] that as a consequence of the [sale] [transfer], (victim) will engage in prostitution.

4. At the time, (victim ) was under the age of 18 years .

Definition.
“Prostitution” is the giving or receiving of the body for sexual activity for hire but excludes sexual activity between spouses.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2013.

28.5 RECKLESS DRIVING
§ 316.192(1) (a) and (1)(b), Fla._Stat.

To prove the crime of Reckless Driving, the State must prove the following ~~two elements~~ beyond a reasonable doubt:

Give if § 316.192(1)(a), Fla. Stat. is charged.

drove a vehicle in Florida

with a willful or wanton disregard for the safety of persons or property.

~~[He] [She] did so with a willful or wanton disregard for the~~

~~safety of persons or property.~~

Give if Fla. Stat. § 316.192(1)(b), Fla. Stat. is charged.

(

Defendant)

, while driving a motor vehicle, fled from a law enforcement officer.

Give if applicable. Fla. Stat. § 316.192(3).
If you find (defendant) guilty of Reckless Driving, you must also determine whether the State has proven beyond a reasonable doubt that [he] [she] caused [damage to the [property] [or] [person] of another] [or] [serious bodily injury to another] as a result of operating the vehicle recklessly.

Definitions . Give if applicable.
W.E.B. v. State, 553 So. 2d 323 (Fla. 1 ^st DCA 1989).
“Willful” means intentionally, knowingly and purposely.

“Wanton” means with a conscious and intentional indifference to consequences and with knowledge that damage is likely to be done to persons or property.

~~Optional Definitions~~ .Fla. Stat. § 316.003(75).
A “vehicle” is any device in, upon, or by which any person or property is, or may be, transported or drawn upon a highway, except ~~bicycles or “mopeds” or~~ devices used exclusively upon stationary rails or tracks.

Give if applicable. Fla. Stat. § 316.192(3)(c)2.
“Serious bodily injury” means an injury to another person which consists of a physical condition that creates a substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

Give if applicable.
Fla. Stat. § 316.003(21).
A “motor vehicle” is a self-propelled vehicle not operated upon rails or guideway, but not including any bicycle, motorized scooter, electric personal assistive mobility device, swamp buggy, or moped.

Fla. Stat. § 316.1935.
“Fleeing a law enforcement officer” means 1) the defendant was operating a motor vehicle upon a street or highway in Florida; 2) a duly authorized law enforcement officer ordered the defendant to stop or remain stopped; 3) the defendant, knowing [he] [she] had been ordered to stop by a duly authorized law enforcement officer, either willfully refused or failed to stop the vehicle in compliance with the order or having stopped the vehicle, willfully fled in a vehicle in an attempt to elude the officer.

Fla. Stat. § 316.003(53).
“Highway” means:
(a) the entire width between the boundary lines of every way or place of whatever nature when any part thereof is open to the use of the public for purposes of vehicular traffic;
(b) the entire width between the boundary lines of any privately owned way or place used for vehicular travel by the owner and those having express or implied permission from the owner, but not by other persons, or any limited access road owned or controlled by a special district, whenever, by written agreement entered into under Fla. Stat. 316.006(2)(b) or (3)(b), a county or municipality exercises traffic control jurisdiction over said way or place;
(c) any area, such as a runway, taxiway, ramp, clear zone, or parking lot, within the boundary of any airport owned by the state, a county, a municipality, or a political subdivision, which area is used for vehicular traffic but which is not open for vehicular operation by the general public; or
(d) any way or place used for vehicular traffic on a controlled access basis within a mobile home park recreation district which has been created under Fla. Stat. 418.30 and the recreational facilities of which district are open to the general public.

Lesser Included Offenses

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

RECKLESS DRIVING CAUSING SERIOUS BODILY INJURY — 316.192(1); 316.192(3)(a)(b)(c)2
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
~~DUI~~ Reckless driving causing injury		316.192(3)(a)(b)(c)1	28.1 28.5
Reckless driving		316.192(1)(a)	28.5
	Reckless driving causing property damage	316.192(3)(a)(b)(c)1	28.5

Comment

This instruction was adopted in 1981 and amended in 2013.

29.20 ABUSE OF [AN ELDERLY PERSON] [A DISABLED ADULT]
§ 825.102(1), Fla. Stat.

To prove the crime of Abuse of [An Elderly Person] [A Disabled Adult], the State must prove the following two elements beyond a reasonable doubt:

(Defendant)

knowingly or willfully

Give as applicable.

intentionally inflicted physical or psychological injury upon

(victim)

committed an intentional act that could reasonably be expected to result in physical or psychological injury to

(victim)

actively encouraged another person to commit an act that resulted in or could reasonably have been expected to result in physical or psychological injury to

(victim)

At the time,

(victim)

was [an elderly person] [a disabled adult].

Definitions. Give as applicable.
§ 825.101(4), Fla. Stat.
“Disabled adult” means a person 18 years of age or older who suffers from a condition of physical or mental incapacitation due to a developmental disability, organic brain damage, or mental illness, or who has one or more physical or mental limitations that restrict the person’s ability to perform the normal activities of daily living.

§ 825.101(5), Fla. Stat.

“Elderly person” means a person 60 years of age or older who is suffering from the infirmities of aging as manifested by advanced age or organic brain damage, or other physical, mental, or emotional dysfunctioning, to the extent that the ability of the person to provide adequately for the person’s own care or protection is impaired.

Patterson v. State, 512 So. 2d 1109 (Fla. 1

^st

DCA 1987).

“Willfully” means knowingly, intentionally, and purposely.

Lesser Included Offenses

ABUSE OF [AN ELDERLY PERSON] [A DISABLED ADULT] — 825.102(1)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
None
	Battery	784.03	8.3
	Attempt	777.04(1)	5.1

Comment

This instruction was adopted in 2013.

29.21 AGGRAVATED ABUSE OF [AN ELDERLY PERSON] [DISABLED ADULT]
§ 825.102(2), Fla. Stat.

To prove the crime of Aggravated Abuse of [An Elderly Person] [Disabled Adult], the State must prove the following two elements beyond a reasonable doubt:

(Defendant)

Give as applicable.

committed aggravated battery upon

(victim)

willfully tortured

(victim)

maliciously punished

(victim)

willfully and unlawfully caged

(victim)

knowingly or willfully abused

(victim)

and in so doing caused great bodily harm, permanent disability, or permanent disfigurement.

At the time,

(victim)

was [an elderly person] [a disabled adult].

§ 825.101(5), Fla. Stat.

Give if element 1a is charged.
§ 784.045, Fla. Stat.
In order to prove that an aggravated battery was committed, the State must prove the following:

(Defendant)

intentionally touched or struck

(victim)

against the will of

(victim) or

caused bodily harm to

(victim)

In so doing,

(defendant)

intentionally or knowingly caused [great bodily harm] [permanent disability] [permanent disfigurement] or [used a deadly weapon].

Give if applicable.
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 1b, 1d, or 1e is charged.

Patterson v. State, 512 So. 2d 1109 (Fla. 1

^st

DCA 1987).

“Willfully” means knowingly, intentionally, and purposely.

Give if element 1c is charged.
In the context of Aggravated Child Abuse, the Florida Supreme Court held that “maliciously punishes” refers to actual malice. See Reed v. State, 837 So. 2d 366 (Fla. 2002). However, probably in response to the Reed opinion, the legislature defined “maliciously” as legal malice in the Aggravated Abuse of a Child statute. See § Fla. Stat. 827.03(1)(c). Since the legislature did not define “maliciously” in the Aggravated Abuse of an Elderly Person or Disabled Adult statute, trial judges will have to determine which of the following definitions apply:

“Maliciously” means with ill will, hatred, spite, or an evil intent.

“Maliciously” means wrongfully, intentionally, and without legal justification or excuse.

Give if element 1e is charged.
“Abused” means the [intentional infliction of physical or psychological injury upon [an elderly person] [a disabled adult]] [commission of an intentional act that could reasonably be expected to result in physical or psychological injury to [an elderly person] [a disabled adult]] [active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or psychological injury to [an elderly person] [a disabled adult]].

Lesser Included Offenses

AGGRAVATED ABUSE OF [AN ELDERLY PERSON] [A DISABLED ADULT] — 825.102(2)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
Aggravated Battery if Fla. Stat. 825.102(2)(a) is charged		784.045	8.4
Abuse of An Elderly Person or Disabled Adult		825.102(1)	29.20
Felony Battery if Fla. Stat. 825.102(2)(a) is charged		784.041(1)	8.5
Battery if Fla. Stat. 825.102(2)(a) is charged		784.03	8.3
	Attempt	777.04(1)	5.1

Comment

This instruction was adopted in 2013.

29.22 NEGLECT OF [AN ELDERLY PERSON]
[A DISABLED ADULT]
§ 825.102(3) Fla. Stat.

To prove the crime of Neglect of [An Elderly Person] [A Disabled Adult], the State must prove the following three elements beyond a reasonable doubt:

(Defendant)

was a caregiver for

(victim)

2. (Victim) was [an elderly person] [a disabled adult].

3. (Defendant)

Give as applicable.

[willfully] [by culpable negligence] failed or omitted to provide

(victim)

with the care, supervision, and services necessary to maintain

(victim’s)

physical or mental health.

failed to make a reasonable effort to protect

(victim)

from abuse, neglect, or exploitation by another person.

Give if the § 825.102(3)(b), Fla. Stat. is charged.
If you find the defendant guilty of Neglect of [An Elderly Person] [A Disabled Adult], you must then determine whether the State proved beyond a reasonable doubt that the defendant’s failure or omission caused [great bodily harm] [permanent disability] [or] [permanent disfigurement] to (victim).

Definitions.
Give if applicable. § 825.101(4), Fla. Stat.
“Disabled adult” means a person 18 years of age or older who suffers from a condition of physical or mental incapacitation due to a developmental disability, organic brain damage, or mental illness, or who has one or more physical or mental limitations that restrict the person’s ability to perform the normal activities of daily living.

Give if applicable. § 825.101(5), Fla. Stat.

dysfunctioning, to the extent that the ability of the person to provide adequately for the person’s own care or protection is impaired.

Give in all cases. § 825.101(2), Fla. Stat.
“Caregiver” means a person who has been entrusted with or has assumed responsibility for the care or the property of [an elderly person] [a disabled adult]. “Caregiver” includes, but is not limited to, relatives, court-appointed or voluntary guardians, adult household members, neighbors, health care providers, and employees and volunteers of facilities. [“Facility” means any location providing day or residential care or treatment for elderly persons or disabled adults. The term “facility” may include, but is not limited to, any hospital, training center, state institution, nursing home, assisted living facility, adult family-care home, adult day care center, group home, mental health treatment center, or continuing care community.]

Give if “willfully” is charged within element 3a.

Patterson v. State, 512 So. 2d 1109 (Fla. 1

^st

DCA 1987).

“Willfully” means knowingly, intentionally, and purposely.

Give if “culpable negligence” is charged within element 3a.
I will now define what is meant by the term “culpable negligence”: Each of us has a duty to act reasonably toward others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence. But culpable negligence is more than a failure to use ordinary care for others. For negligence to be called culpable negligence, it must be gross and flagrant. The negligence must be committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily harm.

Give if element 3a is charged. § 825.102(3)(a), Fla. Stat.
“Care, supervision, and services necessary to maintain the [elderly person’s] [disabled adult’s] physical and mental health” include, but are not limited to, food, nutrition, clothing, shelter, supervision, medicine, and medical services that a prudent person would consider essential for the well-being of the [elderly person] [disabled adult].

Give if “abuse” is charged within element 3b. § 825.102(1), Fla. Stat.
“Abuse” means the [intentional infliction of physical or psychological injury upon [an elderly person] [a disabled adult]] [commission of an intentional act that could reasonably be expected to result in physical or psychological injury to [an elderly person] [a disabled adult]] [active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or psychological injury to [an elderly person] [a disabled adult]].

Give if “neglect” is charged within element 3b. § 825.102(3), Fla. Stat.
Neglect of [an elderly person] [a disabled adult] may be based on repeated conduct or on a single incident or omission that resulted in, or reasonably could have been expected to result in, serious physical or psychological injury, or a substantial risk of death, to [an elderly person] [a disabled adult].

I f “exploitation” is charged within element 3b, insert the elements from Instruction 14.9. See § 825.103, Fla. Stat.

Lesser Included Offenses

NEGLECT OF [AN ELDERLY PERSON] [A DISABLED ADULT] CAUSING [GREAT BODILY HARM] [PERMANENT DISABILITY] [PERMANENT DISFIGUREMENT] — 825.102(3)(b)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
Neglect of [An Elderly Person] [A Disabled Adult] Without Causing Great Bodily Harm, Permanent Disability, or Permanent Disfigurement		825.102(3)(c)	29.22
Culpable Negligence Inflicting Actual Personal Injury, if culpable negligence is charged		784.05(2)	8.9
Culpable Negligence Exposing Another Person to Personal Injury, if culpable negligence is charged		784.05(1)	8.9

Comment

This instruction was adopted in 2013.

29.23 FAILURE TO PROVIDE REQUIRED DOCUMENTS WHILE [WORKING IN] [OPERATING] A MASSAGE ESTABLISHMENT
§ 480.0535, Fla. Stat.

To prove the crime of Failure to Provide Required Documents While [Working in] [Operating] a Massage Establishment, the State must prove the following three elements beyond a reasonable doubt:

Defendant)

[was employed by a massage establishment] [was performing massage in a massage establishment] [operated a massage establishment].

2. [A Department of Health investigator] [A law enforcement officer] requested valid government identification from (defendant).

Give this element #3 if Defendant is charged with either being employed by a massage establishment or performing a massage in the massage establishment.
3. ( Defendant ) failed to immediately produce:

Give as applicable.

a valid, unexpired driver license issued by a state, territory, or a district of the United States.

b. a valid, unexpired identification card issued by any state, territory, or district of the United States.

c. a valid, unexpired United States passport.
d. a naturalization certificate issued by the United States Department of Homeland Security.

e. a valid, unexpired alien registration receipt card.

a valid, unexpired employment authorization card issued by the United States Department of Homeland Security.

Give this element #3 if Defendant is charged with operating a massage establishment.

Defendant)

failed to immediately produce

for each employee and

person performing massage in the establishment:

Give as applicable.

a valid, unexpired driver license issued by a state, territory, or a district of the United States.

b. a valid, unexpired identification card issued by any state, territory, or district of the United States.

c. a valid, unexpired United States passport.
d. a naturalization certificate issued by the United States Department of Homeland Security.

e. a valid, unexpired alien registration receipt card.

a valid, unexpired employment authorization card issued by the United States Department of Homeland Security.

Definitions.
§ 480.033(3) Fla. Stat.
“Massage” means the manipulation of the soft tissues of the human body with the hand, foot, arm, or elbow, whether or not such manipulation is aided by hydrotherapy, including colonic irrigation, or thermal therapy; any electrical or mechanical device; or the application to the human body of a chemical or herbal preparation.

§ 480.033(7) and § 480.033(4) Fla. Stats.
“Establishment” means a site or premises, or portion thereof, wherein a massage therapist practices massage. A “massage therapist” is a person licensed by the state, who administers massage for compensation.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

There is no definition of “law enforcement officer.”
A first violation is a misdemeanor of the second degree. A second violation is a misdemeanor of the first degree. A third violation is a third degree felony. There is no case law as to whether the State can prove two prior violations to the judge at sentencing or whether the two prior violations are an element of the felony.

This instruction was adopted in 2013.

29.24 HUMAN TRAFFICKING
§ 787.06(3), Fla. Stat.

To prove the crime of Human Trafficking, the State must prove the following two elements beyond a reasonable doubt:

(Defendant

) [engaged in] [attempted to engage in] [[benefited financially by receiving something of value from a participation in a venture that subjected a person to] human trafficking.

(Defendant)

did so

[knowing] [in reckless disregard of the fact] that a person would be subject to human trafficking.

Definitions.
Give in all cases.
§787.06(2)(d) Fla. Stat.
“Human trafficking” means [transporting] [soliciting] [recruiting] [harboring] [providing] [enticing] [maintaining] [or] [obtaining] another person for the purpose of exploitation of that person through:

[coercion for labor or services].

[coercion for commercial sexual activity].

[coercion for labor or services of any individual who is an unauthorized alien].

[coercion for commercial sexual activity of any individual who is an unauthorized alien].

[coercion for labor or services who does so by the transfer or transport of any individual from outside Florida to within Florida].

[coercion for commercial sexual activity who does so by the transfer or transport of any individual from outside Florida to within Florida].

Give in all cases, as applicable.
§787.06(2)(a) Fla. Stat.
“Coercion” means:

Using or threatening to use physical force against any person;

Restraining, isolating, or confining or threatening to restrain, isolate,

or confine any person without lawful authority and against her or his will;

3. Using lending or other credit methods to establish a debt by any person when labor or services are pledged as a security for the debt, if the value of the labor or services as reasonably assessed is not applied toward the liquidation of the debt, the length and nature of the labor or services are not respectively limited and defined;

Destroying, concealing, removing, confiscating, withholding, or possessing any actual or purported passport, visa, or other immigration document, or any other actual or purported government identification document, of any person;

5. Causing or threatening to cause financial harm to any person;

6. Enticing or luring any person by fraud or deceit; or

Providing a controlled substance as outlined in Schedule [I] [II] of Florida Statute 893.03 to any person for the purpose of:

[using coercion for labor or services].

[using coercion for commercial sexual activity].

[using coercion for labor or services of any individual who is an unauthorized alien].

[using coercion for commercial sexual activity of any individual who is an unauthorized alien].

[using coercion for labor or services who does so by the transfer or transport of any individual from outside Florida to within Florida].

[using coercion for commercial sexual activity who does so by the transfer or transport of any individual from outside Florida to within Florida].

(Name of controlled substance) is a Schedule [I] [II] drug within Florida Statute 893.03.

Give as applicable.
§787.06(2)(b) Fla. Stat.

“Commercial sexual activity” means:

(name of chapter 796 crime)

(Name of chapter 796 crime)

is defined as

(

insert definition of Chapter 796 crime

)

an attempt to commit

(name of chapter 796 crime)

. An attempt to commit

(name of chapter 796 crime)

is defined as

(

insert definition of attempt in Instruction 5.1 and then define the Chapter 796 crime

)

c. sexually explicit performances. “Sexually explicit performance” means an act or show, whether public or private, that is live, photographed, recorded, or videotaped and intended to arouse or satisfy the sexual desires or appeal to the prurient interest.

d. the production of pornography.

§787.06(2)(c) Fla. Stat. Insert definition of loan sharking from §687.071 Fla. Stat. Insert explanation of the statute of frauds from §725.01 Fla. Stat.
“Financial harm” includes [extortionate extension of credit] [loan sharking] [employment contracts that violate the statute of frauds].

§787.06(2)(e) Fla. Stat.

“Labor” means work of economic or financial value.

§787.06(2)(f) Fla. Stat.

“Maintain” means in relation to labor or services, to secure or make possible continued performance thereof, regardless of any initial agreement on the part of a victim to perform such type service.

§787.06(2)(g) Fla. Stat.

“Obtain” means, in relation to labor or services, to secure performance thereof.

§787.06(2)(h) Fla. Stat.

“Services” means any act committed at the behest of, under the supervision of, or for the benefit of another. [The term includes, but is not limited to [forced marriage] [servitude] [the removal of organs].]

§787.06(2)(j) Fla. Stat. See 8 U.S.C. s. 1324a(h)(3).

“Unauthorized alien” means an alien who is not authorized under federal law to be employed in the United States.

§787.06(2)(k) Fla. Stat.

“Venture” means any group of two or more individuals associated in fact, whether or not a legal entity.
Enhanced penalty. §787.06(3)(g) and (h) Fla. Stat. Give if applicable but only in cases where the exploitation involves commercial sexual activity.
If you find the defendant guilty of Human Trafficking Involving Commercial Sexual Activity, you must then determine whether the State has proven beyond a reasonable doubt that a person under the age of [15] [18] was involved.

Enhanced penalty. §787.06(3)(g) and (h) Fla. Stat. Give if applicable.
If the defendant had a reasonable opportunity to observe (victim), the State does not need to prove that the defendant knew that (victim) had not attained the age of [15][18] years.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2013.

29.25 HUMAN TRAFFICKING BY A [PARENT] [LEGAL GUARDIAN] [PERSON WITH CONTROL] OF A MINOR
§ 787.06(4), Fla. Stat.

To prove the crime of Human Trafficking a [Parent] [Legal Guardian] [Person With Control] of a Minor, the State must prove the following four elements beyond a reasonable doubt:

(Defendant

) [was a parent] [was a legal guardian] [had custody or control] of

(victim)

(Defendant)

[sold or otherwise transferred custody or control of

(victim)]

[offered to sell or offered to otherwise transfer custody of

(victim)

3. (Defendant) did so [knowing] [in reckless disregard of the fact] that (victim) would be subject to human trafficking.