Florida Bar News

Amendments to jury instructions in criminal cases

Amendments to

jury instructions in criminal cases

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

6.1 INTRODUCTION TO ATTEMPTED HOMICIDE

10.20 [CARE] [CUSTODY] [POSSESSION] [CONTROL] OF [A FIREARM] [AMMUNITION] WHILE A FINAL INJUNCTION FOR [DOMESTIC VIOLENCE] [STALKING] [CYBERSTALKING] IS IN EFFECT

10.21 IMPROPER EXHIBITION OF A [WEAPON] [FIREARM] [AT A SCHOOL-SPONSORED EVENT] [ON SCHOOL PROPERTY] [ON A SCHOOL BUS] [AT A SCHOOL BUS STOP] [WITHIN 1,000 FEET OF A SCHOOL]

11.19 SEXUAL MISCONDUCT BETWEEN DETENTION FACILITY EMPLOYEES AND INMATES

20.20 MORTGAGE FRAUD

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

The committee invites all interested persons to comment on the proposals, reproduced in full below. Comments must be received by the committee in either hard copy or electronic format
on or
before August 16, 2013.

The committee will review all comments received in response to the above proposal at its next meeting and will consider amendments based upon the comments received. Upon final approval of the instruction, the committee will make a recommendation to the Florida Supreme Court.

File your comments electronically to [email protected], in the format of a Word document or, mail a hard copy of your comments to: Standard Jury Instructions Committee in Criminal Cases, c/o Bart Schneider, General Counsel’s Office Office of the State Courts Administrator, 500 S. Duval Street, Tallahassee 32399-1900.

Read in all attempted murder and attempted manslaughter by act cases.
In this case (defendant) is accused of (crime charged) .

Give degrees as applicable.
Attempted murder in the first degree includes the lesser crimes of attempted murder in the second degree , attempted murder in the third degree, and attempted voluntary manslaughter by act, all of which are forms of attempted homicide and all of which are unlawful.

An attempted killing homicide that is excusable or was committed by the use of justifiable deadly force is lawful.

If you find that there was an attempted killing homicide of (victim) by (defendant) , you will then consider the circumstances surrounding the attempted killing homicide in deciding if whether it was attempted first degree murder, or attempted second degree murder, or attempted third degree murder, or attempted voluntary manslaughter by act, or whether the attempted killing homicide was excusable or resulted from justifiable use of deadly force.

The An attempted killing homicide of a human being is justifiable and lawful if necessarily done while resisting an attempt to murder or commit a felony upon the defendant, or to commit a felony in any dwelling house in which the defendant was at the time of the attempted killing homicide .

The An attempted killing homicide of a human being is excusable and therefore lawful under any one of the three following circumstances:

1. When the attempted killing homicide is committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution and without any unlawful intent, or

2. When the attempted killing homicide occurs by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or

3. When the attempted killing homicide is committed by accident and misfortune resulting from a sudden combat, if a dangerous weapon is not used and the attempted killing is not done in a cruel and unusual manner.

Definition
“Dangerous weapon” is any weapon that, taking into account the manner in which it is used, is likely to produce death or great bodily harm.

I now instruct you on the circumstances that must be proved before defendant may be found guilty of [ attempted first degree murder ] [or] [attempted second degree murder] [or] attempted manslaughter by act or any lesser included crime .

This instruction was adopted in 1994 and amended in 2013.

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

1. A judge issued a final injunction for protection against [domestic violence] [stalking] [cyberstalking] against ( defendant) .

2. The final injunction had been served upon (defendant) or (defendant) had acknowledged receipt.

3. While the final injunction was in force and effect, (defendant) had [ammunition] [a firearm] in [his] [her] care, custody, possession, or control.

Definitions. Give as applicable.
Fla. Stat. § 790.001(6).
“Firearm” means any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon, any firearm muffler or firearm silencer; any destructive device; any machine gun. [The term “firearm” does not include an antique firearm unless the antique firearm is used in the commission of a crime .] See Fla. Stat. § 790.001(1) for the definition of antique firearm.

Fla. Stat. § 790.001(4)
“Destructive device” means any bomb, grenade, mine, rocket, missile, pipebomb, or similar device containing an explosive, incendiary, or poison gas and includes any frangible container filled with an explosive, incendiary, explosive gas, or expanding gas, which is designed or so constructed as to explode by such filler and is capable of causing bodily harm or property damage; any combination of parts either designed or intended for use in converting any device into a destructive device and from which a destructive device may be readily assembled; any device declared a destructive device by the Bureau of Alcohol, Tobacco, and Firearms; any type of weapon which will, is designed to, or may readily be converted to expel a projectile by the action of any explosive and which has a barrel with a bore of one-half inch or more in diameter; and ammunition for such destructive devices, but not including shotgun shells or any other ammunition designed for use in a firearm other than a destructive device.

“Destructive device” does not include:

a. A device which is not designed, redesigned, used, or intended for use as a weapon; b. Any device, although originally designed as a weapon, which is redesigned so that it may be used solely as a signaling, line-throwing, safety, or similar device; c. Any shotgun other than a short-barreled shotgun; or
d. Any nonautomatic rifle (other than a short-barreled rifle) generally recognized or particularly suitable for use for the hunting of big game.]

Fla. Stat. § 790.001(19)
“Ammunition” means an object consisting of all of the following:

a. A fixed metallic or nonmetallic hull or casing containing a primer,

b. One or more projectiles, one or more bullets, or shot.

c. Gunpowder.

“Care” and “custody” mean immediate charge and control exercised by a person over the named item. The terms care, custody, and control may be used interchangeably.

Possession.
There are two ways to exercise control: actual possession and constructive possession.

Actual possession.
Actual possession means the person is aware of the presence of the object and

a. the object is in the hand of or on the person, or

b. the object is in a container in the hand of or on the person, or

c. the object is so close as to be within ready reach and is under the control of the person.

Constructive possession.
Constructive possession means the person is aware of the presence of the object, the object is in a place over which the person has control, and the person has the ability to control the object.

Give if applicable.
Mere proximity to an object is not sufficient to establish control over that object when the object is in a place that the person does not control.

Give if applicable.
In order to establish constructive possession of an object that was in a place (defendant) did not control, the State must prove (defendant) (1) knew that the object was within [his] [her] presence and (2) exercised management, control, or ownership over the object itself.

Joint possession.
Possession may be sole or joint, that is, two or more persons may be aware of the presence of an object and may jointly exercise control over it. In that case, each of those persons is considered to be in possession of that object.

Inferences.
Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1 ^st DCA 2012); Meme v. State, 72 So. 3d 254 (Fla. 4 ^th DCA 2011).
If you find that (defendant) :

a. had direct physical custody of the [ammunition] [firearm], or

b. was within ready reach of the [ammunition] [ firearm] and the [ammunition] [firearm] was under [his] [her] control, or

c. had exclusive control of the place where the [ammunition] [firearm]was located, you may infer that [he] [she] was aware of the presence of the [ammunition] [ firearm] and had the ability to control [it] [them].

If (defendant) did not have exclusive control over the place where [ammunition] [a firearm] was located, you may not infer [he] [[she] had knowledge of the presence of the [ammunition] [firearm] or the ability to control [it] [them], in the absence of other incriminating evidence.

Give if applicable. Duncan v. State, 986 So. 2d 653 (Fla. 4 ^th DCA 2008).
However, you may infer that (defendant) knew of the presence of the [ammunition] [firearm] and had the ability to control [it] [them] if [he] [she] had joint control over the place where the [ammunition] [firearm]was located, and the [ammunition] [firearm]was located in a common area in plain view and in the presence of the defendant.

[CARE] [CUSTODY] [POSSESSION] [CONTROL] OF [A FIREARM] [AMMUNITION] WHILE A FINAL INJUNCTION FOR [DOMESTIC VIOLENCE] [STALKING] [CYBERSTALKING] IS IN EFFECT 790.233(1)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
None
	Attempt	777.04(1)	5.1

This crime does not apply to a state or local officer as defined in Fla. Stat. 943.10(14), holding an active certification, who received or possessed a firearm or ammunition for use in performing official duties on behalf of the officer’s employing agency, unless otherwise prohibited by the employing agency.

This instruction was adopted in 2013.

To prove the crime of Improper Exhibition of a [Weapon] [Firearm] [Sword] [Sword Cane] [Electric Weapon or Device] [Destructive Device] [at] [on] [within] [ (insert prohibited place in Fla. Stat. 790.115(1)) ], the State must prove the following four elements beyond a reasonable doubt.

1. (Defendant) had or carried a[n] [weapon] [firearm] [sword] [sword cane] [electric weapon or device] [destructive device].

2. (Defendant) exhibited the [weapon] [firearm] [sword] [sword cane] [electric weapon or device] [destructive device] in a rude, careless, angry, or threatening manner.

3. (Defendant) did so in the presence of one or more persons.

4. At the time, (defendant) was [at a school-sponsored event] [on the grounds [or facilities] of a [school] [school bus]] [school bus stop]] [within 1,000 feet of the real property that compromises a [public or private elementary school] [middle school] [secondary school] during school hours [or during the time of a sanctioned school activity].

Self-defense.

If you find that the defendant exhibited the [weapon] [firearm][sword] [sword cane][electric weapon or device] [destructive device] in necessary self-defense, you must find the defendant not guilty. Read instructions 3.6(f) and/or 3.6(g) as applicable.

Definitions. Give as applicable.
§ 790.001(13) and § 790.115(1) Fla. Stats.
“Weapon” means any dirk, knife, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, razor blade, box cutter, common pocketknife, box cutter, or a deadly weapon, except a plastic knife or blunt-bladed table knife.

R.R. v. State, 826 So. 2d 465 (Fla. 5^th DCA 2002); Cook v. Crosby, 914 So. 2d 490 (Fla. 1^st DCA 2005).
A “deadly weapon” is any instrument which will likely cause death or great bodily harm when used in the ordinary and usual manner contemplated by its design and construction. An object can be a deadly weapon if its sole modern use is to cause great bodily harm. An object not designed for use as a weapon may nonetheless be a deadly weapon if its use, intended use, or threatened use by the defendant was in a manner likely to inflict death or great bodily harm.

§ 790.001(6) Fla. Stat.
“Firearm” means any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon, any firearm muffler or firearm silencer; any destructive device; any machine gun. [The term “firearm” does not include an antique firearm unless the antique firearm is used in the commission of a crime.] The definition of “antique firearm is in Fla. Stat. s. 790.001(1).

§ 790.001(14) Fla. Stat.
“Electric weapon or device” means any device which, through the application or use of electrical current, is designed, redesigned, used, or intended to be used for offensive or defensive purposes, the destruction of life, or the infliction of injury.

See § 790.001(4) Fla. Stat. for the definition of “destructive device.”

IMPROPER EXHIBITION OF A [WEAPON] [FIREARM] AT SCHOOL – 790.115(1)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
Improper Exhibition of a Weapon or Firearm (except if the weapon is a closed common pocketknife)		790.10	10.5
	Attempt	777.04(1)	5.1
	Assault	784.011	8.1

The statute has an exception if the exhibition of the weapon or firearm was authorized and in support of school-sanctioned activities. See § 790.115(1) Fla. Stat.

This crime does not apply if the exhibition of the weapon or firearm was on private real property, within 1,000 feet of a school, by the owner of the property or by a person who had been authorized, licensed, or invited by the owner to be on the property. See § 790.115(1) Fla. Stat.

This crime does not apply if the defendant was a law enforcement officer as defined in § 943.10(1), (2), (3), (4), (6), (7), (8), (9), or (14) Fla. Stat. See § 790.115(3) Fla. Stat.

This instruction was adopted in 2013.

To prove the crime of Sexual Misconduct Between Detention Facility Employees and Inmates, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) was an employee of a [county or municipal detention facility] [private detention facility under contract with a county commission].

2. While an employee, (defendant) engaged in sexual misconduct with (inmate) . 3. At the time, (inmate) was an [inmate] [offender supervised by the facility].

§ 951.221(1) Fla. Stat. Consent is not a defense.
The consent of an [inmate] [offender] to any act of sexual misconduct is not a defense to the crime of Sexual Misconduct.

Definitions.
§ 951.221(1) Fla. Stat. and § 944.35(3)(b)1, Fla. Stat.
“Sexual Misconduct” means the 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, but does not include an act done for a bona fide medical purpose or an internal search conducted in the lawful performance of the employee’s duty.

Give as applicable.
“Union” means contact.

§ 944.23(1)(a), Fla. Stat.
“County Detention Facility” means a county jail, a county stockade, a county work camp, a county residential probation center, and any other place except a municipal detention facility used by a county or county officer for the detention of persons charged with or convicted of either felony or misdemeanor.

§ 944.23(1)(b), Fla. Stat.
“County Residential Probation Center” means a county-operated facility housing offenders serving misdemeanor sentences or first-time felony sentences.

§ 944.23(1)(d), Fla. Stat.
“Municipal Detention Facility” means a city jail, a city stockade, a city prison camp, and any other place except a county detention facility used by a municipality or municipal officer for the detention of persons charged with or convicted of violation of laws.

SEXUAL MISCONDUCT BETWEEN DETENTION FACILITY EMPLOYEES AND INMATES – 951.221(1)
None
	Battery	784.03	8.3
	Attempt	777.04(1)	5.1
	Assault	784.011	8.1

This instruction was adopted in 2013.

In order to prove the crime of Mortgage Fraud, the State must prove the following element beyond a reasonable doubt:

(Defendant) , with intent to defraud, knowingly:
Give a, b, c, d, and/or e as applicable.

a. made any material [misstatement][misrepresentation] [omission] during the mortgage lending process with the intent that the [misstatement] [misrepresentation] [omission] would be relied on by [a mortgage lender][a borrower] [or] [any other person or entity] involved in the mortgage lending process];

b. used or facilitated the use of any material [misstatement] [misrepresentation] [omission] during the mortgage lending process with the intent that the material [misstatement] [misrepresentation] [omission] would be relied on by [a mortgage lender][a borrower] or [any other person or entity] involved in the mortgage lending process;

c. received any [proceeds][or other funds] in connection with the mortgage lending process that [he] [she] knew resulted from the making of any material [misstatement] [misrepresentation] [omission] during the mortgage lending process that was made with the intent that the [misstatement] [misrepresentation] [omission] would be relied on by [a mortgage lender] [a borrower] [or] [any other person or entity] involved in the mortgage lending process];

d. received any [proceeds][or other funds] in connection with the mortgage lending process that [he] [she] knew resulted from the use of any material [misstatement] [misrepresentation] [omission] during the mortgage lending process that was made with the intent that the material [misstatement] [misrepresentation] [omission] would be relied on by [a mortgage lender] [a borrower] or [any other person or entity] involved in the mortgage lending process];

e. filed or caused to be filed with the clerk of the circuit court forany Florida county a document involved in the mortgage lending process which contained a material [misstatement] [misrepresentation] [or] [omission].

Give if applicable. § 817.545(5)(b) Fla. Stat.

If you find that the defendant guilty of Mortgage Fraud, you must also determine if the State proved beyond a reasonable doubt whether the loan value stated on documents used in the mortgage lending process exceeded $100,000.

§ 817.545(2)(a) & (b) Fla. Stat.
Omissions on a loan application regarding employment, income, or assets for a loan which does not require this information are not considered material omissions for purposes of Mortgage Fraud.

§ 817.545(1) Fla. Stat.
Documents involved in the mortgage lending process include, but are not limited to, mortgages, deeds, surveys, inspection reports, uniform residential loan applications, or other loan applications; appraisal reports; HUD-1 settlement statements; supporting personal documentation for loan applications such as W-2 forms, verifications of income and employment, credit reports, bank statements, tax returns, and payroll stubs; and any required disclosures.

“Knowingly” means that the defendant is aware of the act and is not acting through ignorance, mistake or accident.

“Material” means a fact a reasonable person would use to decide whether to do or not to do something. A fact is material if it has the capacity or natural tendency to influence a person’s decision. Any misrepresentation or concealment must be reasonably calculated to deceive persons of ordinary prudence and comprehension.

Definition. § 817.545(1) Fla. Stat.
“Mortgage lending process” means the process through which a person seeks or obtains a residential mortgage loan, including, but not limited to, the solicitation, application or origination, negotiation of terms, third-party provider services, underwriting, signing and closing, and funding of the loan.

MORTGAGE FRAUD — 817.545
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
None
	Attempt	777.04(1)	5.1

The crime of Mortgage Fraud may not be predicated solely upon information lawfully disclosed under federal disclosure laws, regulations, or interpretations related to the mortgage lending process. See § 817.545(3) Fla. Stat.

This instruction was adopted in 2013.

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

Give as applicable.

(Defendant)
a. [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].
b. 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].

c. permitted the operation of any slot machine or device [or any part of a slot machine or device].
d. 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.
e. 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 or system or network of devices that is adapted for use in such a way that, upon activation, which may be achieved by, but is not limited to, the insertion of any piece of money, coin, account number, code, or other object or information, such device or system is directly or indirectly caused to operate or may be operated and if the user, whether by application of skill or by reason of any element of chance or any other outcome unpredictable by the user, may:

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

(b) receive or become entitled to 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 the device or system may be available for free play, or, in addition to any element of chance or unpredictable outcome of such operation, may also sell, deliver, or present some merchandise, indication of weight, entertainment, or other thing of value.

Give if applicable. §§ 849.16(1)(b), 551.102(8) Fla. Stats.
A “slot machine” includes, but is not limited to, devices regulated as slot machines under chapter 551 of Florida Statutes. Under chapter 551, a “slot machine” means any mechanical or electrical contrivance, terminal that may or may not be capable of downloading slot games from a central server system, machine, or other device that, upon insertion of a coin, bill, ticket, token, or similar object or upon payment of any consideration whatsoever, including the use of any electronic payment system except a credit card or debit card, is available to play or operate, the play or operation of which, whether by reason of skill or application of the element of chance or both, may deliver or entitle the person or persons playing or operating the contrivance, terminal, machine, or other device to receive cash, billets, tickets, tokens, or electronic credits to be exchanged for cash or to receive merchandise or anything of value whatsoever, whether the payoff is made automatically from the machine or manually. The term includes associated equipment necessary to conduct the operation of the contrivance, terminal, machine, or other device. Slot machines may use spinning reels, video displays, or both. [A slot machine is not a “coin-operated amusement machine” as defined in § 212.02(24) Fla. Stat. or an amusement game or machine as described in § 849.161 Fla. Stat.] Instruct on § 212.02(24) Fla. Stat. or § 849.161 Fla. Stat. as applicable.

Give if applicable. § 849.094(8)(a) Fla. Stat.
Compliance with the rules of the Department of Agriculture and Consumer Services is not a defense to a charge of Possession of a Slot Machine or Device.

Give if applicable. § 849.16(3) Fla. Stat.
You are permitted to infer that a device, system, or network is a prohibited slot machine or device if it is used to display images of games of chance and is part of a scheme involving any payment or donation of money or its equivalent and awarding anything of value.

[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

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

This instruction was adopted in 2013.