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August 15, 2014
Amendments to criminal jury instructions

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:
2.5 CONVICTION OF CERTAIN CRIMES AS IMPEACHMENT
3.8(b) CONVICTION OF CERTAIN CRIMES AS IMPEACHMENT
11.7 UNLAWFUL SEXUAL ACTIVITY WITH CERTAIN MINORS
11.10(a) LEWD OR LASCIVIOUS BATTERY (ENGAGING IN SEXUAL ACTIVITY)
11.10(b) LEWD OR LASCIVIOUS BATTERY (ENCOURAGING, FORCING OR ENTICING)
11.10(c) LEWD OR LASCIVIOUS MOLESTATION
11.10(d) LEWD OR LASCIVIOUS CONDUCT
11.10(e) LEWD OR LASCIVIOUS EXHIBITION PRESENCE OF CHILD
11.11 LEWD OR LASCIVIOUS OFFENSES COMMITTED UPON OR IN THE PRESENCE OF AN ELDERLY PERSON OR DISABLED PERSON
11.13 VOYEURISM
11.17(a) SOLICITING A [CHILD] [PERSON BELIEVED BY THE DEFENDANT 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
11.20 TRANSMISSION OF CHILD PORNOGRAPHY BY ELECTRONIC DEVICE OR EQUIPMENT
11.21 TRANSMISSION OF MATERIAL HARMFUL TO MINORS BY ELECTRONIC DEVICE OR EQUIPMENT
15.5 RESISTING RECOVERY OF STOLEN PROPERTY
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 September 15. The committee will review all comments received in response to the above proposals at its next meeting and will consider amendments based upon the comments received. Upon final approval of the instruction, the committee will make a recommendation to the Florida Supreme Court. File your comments electronically to CrimJuryInst@flcourts.org, in the format of a Word document or, mail a hard copy of your comments to: Standard Jury Instructions Committee in Criminal Cases, c/o Bart Schneider, General Counsel’s Office, Office of the State Courts Administrator, 500 S. Duval Street, Tallahassee 32399-1900.

2.5 CONVICTION OF CERTAIN CRIMES AS IMPEACHMENT
§§ 90.107, 90.610(1), Fla._Stat.

To be given at the time the evidence is admitted, if requested.
The evidence that you are about to receive that [(witness)] [(defendant)] has been convicted of (crime) a crime should be considered by you only in weighing the credibility of [(witness's)] [(defendant's)] testimony and not for any other purpose.
Comment

This instruction was adopted in 1995 [657 So. 2d 1152] and 2015.
3.8(b) CONVICTION OF CERTAIN CRIMES
AS IMPEACHMENT
§§ 90.107, 90.610(1), Fla. Stat.

To be given at the time the evidence is admitted, if requested.
The evidence that you are about to receive that [(witness)] [(defendant)] has been convicted of (crime) should be considered by you only in weighing the credibility of [(witness's)] [(defendant's)] testimony and not for any other purpose.
Comment

This instruction was adopted in July 1995.

11.7 UNLAWFUL SEXUAL ACTIVITY WITH CERTAIN MINORS
§ 794.05, Fla._Stat.

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

Give 1a and/or 1b depending on the allegations and the evidence.
      1. (Victim) was 16 or 17 years of age.
        a. (Defendant) committed an act with (victim) in which the sexual organ of the [(defendant)] [(victim)] penetrated or had union with the [anus][vagina][mouth] of the [(victim)]
        [(defendant)].

        b. (Defendant) committed an act with (victim) in which the [anus] [vagina] of [(victim)] [(defendant)] was penetrated
        by an object.
      2. At the time, (Ddefendant) was 24 years of age or older.
      3. At the time, (victim) was 16 or 17 years of age.
      (Defendant) engaged in sexual activity with a minor in which the sexual organ of the [(defendant)] [(victim)] penetrated or had union with the [anus] [vagina] [mouth] of the (victim)][(defendant)].]
Give if applicable.
Sexual activity does not include an act done for a bona fide medical purpose.

Give if requested. § 794.05(3), Fla. Stat.
(Victim’s) lack of chastity is not a defense to the crime charged.

Give if requested. Feliciano v. State, 937 So. 2d 818 (Fla. 1st DCA 2006); §794.021, Fla. Stat.
The defendant’s ignorance of victim’s age, victim’s misrepresentation of his or her age, or the defendant’s bona fide belief of victim’s age is not a defense to the crime charged.

Give if applicable. § 775.0862, Fla. Stat.
Enhancement for sexual offense against student by school authority figure.
If you find that (defendant) committed the crime of Sexual Activity With a Minor, you must also determine whether the State has proved beyond a reasonable doubt whether (defendant) was an authority figure at a school and (victim) was a student at the same school.

“Authority figure” means a person 18 years of age or older who is employed by, volunteering at, or under contract with a school.

“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 the rules of the State Board of Education]. The term “school” does not include facilities dedicated exclusively to the education of adults. If needed, insert appropriate definitions from § 775.0862(1)(b), Fla. Stat. for “private school” or “voluntary prekindergarten education program” or “early learning program” or “public school as described in s. 402.3025(1)” or “the Florida School for the Deaf and the Blind” or the “Florida Virtual School” or the “K-8 Virtual School.”

“Student” means a person younger than 18 years of age who is enrolled at a school.
Lesser Included Offenses
UNLAWFUL SEXUAL ACTIVITY WITH CERTAIN MINORS — 794.05
CATEGORY ONECATEGORY TWOFLA. STAT.INS. NO.
None
Attempt777.04(1)5.1
Comment

This instruction was adopted in 1998 [723 So. 2d 123] and amended in 2015.

If removal of the disabilities of nonage is raised as an issue pursuant to § 794.05(2), Fla._Stat., the jury should be instructed with respect to § 743.01 et seq.
11.10(a) LEWD OR LASCIVIOUS BATTERY
(ENGAGING IN SEXUAL ACTIVITY)
§ 800.04(4)(a)1, Fla. Stat.

To prove the crime of Lewd or Lascivious Battery, the State must prove the following two elements beyond a reasonable doubt:
      1. (Victim) was twelve years of age or older, but under the age of sixteen years.
2. (Defendant)
          a. [committed an act [upon] [with] (victim) in which the sexual organ of the [(defendant)] [(victim)] penetrated or had union with the [anus] [vagina] [mouth] of the [(victim)] [(defendant)].]
          b. [committed an act [upon] [with] (victim) in which the [anus] [vagina] of [(victim)] [(defendant)] was penetrated by an object.]
Definition.
“Union” means contact.

However, any act done for bona fide medical purposes is not a lewd or lascivious battery.

Neither the victim’s lack of chastity nor victim’s consent is a defense to the crime charged.

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

Give if applicable. § 775.0862, Fla. Stat.
Enhancement for sexual offense against student by school authority figure.
If you find that (defendant) committed the crime of Lewd or Lascivious Battery, you must also determine whether the State has proved beyond a reasonable doubt whether (defendant) was an authority figure at a school and (victim) was a student at the same school.
“Authority figure” means a person 18 years of age or older who is employed by, volunteering at, or under contract with a school.

“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 the rules of the State Board of Education]. The term “school” does not include facilities dedicated exclusively to the education of adults. If needed, insert appropriate definitions from § 775.0862(1)(b), Fla. Stat. for “private school” or “voluntary prekindergarten education program” or “early learning program” or “public school as described in s. 402.3025(1)” or “the Florida School for the Deaf and the Blind” or the “Florida Virtual School” or the “K-8 Virtual School.”

“Student” means a person younger than 18 years of age who is enrolled at a school.
Lesser Included Offenses
LEWD OR LASCIVIOUS BATTERY (ENGAGING IN SEXUAL ACTIVITY) — 800.04(4)(a)1
CATEGORY ONECATEGORY TWOFLA. STAT.INS. NO.
None
Attempt777.04(1)5.1
Assault784.0118.1
Battery784.038.3
Unnatural and lascivious act800.0211.8
Comment

In 2014, the legislature created a lewd and lascivious battery classified as a first degree felony if the defendant was 18 years of age or older at the time of the crime and had a prior conviction for an enumerated crime. See § 800.04(4)(c) Fla. Stat. If this enhancement is charged, it is likely that Apprendi v. New Jersey, 530 U.S. 466 (2000) requires the jury to make at least one additional finding regarding the defendant’s age.

This instruction was adopted in 2007 [SC05-1434, October 25, 2007 969 So. 2d 245] and amended in 2015.
11.10(b) LEWD OR LASCIVIOUS BATTERY
(ENCOURAGING, FORCING OR ENTICING)
§800.04(4)(ba)2, Fla. Stat.

To prove the crime of Lewd or Lascivious bBattery, the State must prove the following two elements beyond a reasonable doubt:
      1. (Victim) was under the age of sixteen years.

      2. (Defendant) [encouraged] [forced] [or] [enticed] (victim) to engage in [sadomasochistic abuse] [sexual bestiality] [prostitution] [any act involving sexual activity].

Definitions.
“Sexual activity” 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; however, sexual activity does not include an act done for a bona fide medical purpose.

“Union” means contact.

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

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

Neither the victim’s lack of chastity nor victim’s consent is a defense to the crime charged.

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


Give if applicable. § 775.0862, Fla. Stat.
Enhancement for sexual offense against student by school authority figure.
If you find that (defendant) committed the crime of Lewd or Lascivious Battery, you must also determine whether the State has proved beyond a reasonable doubt whether (defendant) was an authority figure at a school and (victim) was a student at the same school.

“Authority figure” means a person 18 years of age or older who is employed by, volunteering at, or under contract with a school.

“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 the rules of the State Board of Education]. The term “school” does not include facilities dedicated exclusively to the education of adults. If needed, insert appropriate definitions from § 775.0862(1)(b), Fla. Stat. for “private school” or “voluntary prekindergarten education program” or “early learning program” or “public school as described in s. 402.3025(1)” or “the Florida School for the Deaf and the Blind” or the “Florida Virtual School” or the “K-8 Virtual School.”

“Student” means a person younger than 18 years of age who is enrolled at a school.
Lesser Included Offenses
LEWD OR LASCIVIOUS BATTERY (ENCOURAGING, FORCING OR ENTICING) — 800.04(4)(ba)2
CATEGORY ONECATEGORY TWOFLA. STAT.INS. NO.
None
Attempt777.04(1)5.1
Assault784.0118.1
Battery784.038.3
Unnatural and lascivious act800.0211.8
Comment

In 2014, the legislature created a lewd and lascivious battery classified as a first degree felony if the defendant was 18 years of age or older at the time of the crime and had a prior conviction for an enumerated crime. See § 800.04(4)(c) Fla. Stat. If this enhancement is charged, it is likely that Apprendi v. New Jersey, 530 U.S. 466 (2000) requires the jury to make at least one additional finding regarding the defendant’s age.

This instruction was adopted in 2007 [SC05 1434, October 25, 2007 969 So. 2d 245] and amended in 2015.
11.10(c) LEWD OR LASCIVIOUS MOLESTATION
§ 800.04(5), Fla. Stat.

To prove the crime of Lewd or Lascivious Molestation, the State must prove the following three elements beyond a reasonable doubt:

Give 1a or 1b as applicable.
        1. (Victim)
                a. was 12 years of age or older but less than 16 years of age.
                b. was less than 12 years of age.

      Give 2a or 2b as applicable.
        2. (Defendant),
                a. in a lewd or lascivious manner, intentionally touched the [breasts] [genitals] [genital area] [buttocks] [clothing covering the breasts] [clothing covering the genitals] [clothing covering the genital area] [clothing covering the buttocks] of (victim).
                b. in a lewd or lascivious manner, intentionally [forced] [enticed] (victim) to touch the [breasts] [genitals] [genital area] [buttocks] [clothing covering the breasts] [clothing covering the genitals] [clothing covering the genital area] [clothing covering the buttocks] of (defendant).

Give 3a or 3b as applicable.
        3. (Defendant)
                a. was 18 years of age or older at the time of the offense.
                b. was less than 18 years of age at the time of the offense.

Definition.
The words “lewd” and “lascivious” mean the same thing: a wicked, lustful, unchaste, licentious, or sensual intent on the part of the person doing an act.

Neither (victim’s) lack of chastity nor consent is a defense to the crime charged.

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

Give if applicable. § 775.0862, Fla. Stat.
Enhancement for sexual offense against student by school authority figure.
If you find that (defendant) committed the crime of Lewd or Lascivious Molestation, you must also determine whether the State has proved beyond a reasonable doubt whether (defendant) was an authority figure at a school and (victim) was a student at the same school.

“Authority figure” means a person 18 years of age or older who is employed by, volunteering at, or under contract with a school.

“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 the rules of the State Board of Education]. The term “school” does not include facilities dedicated exclusively to the education of adults. If needed, insert appropriate definitions from § 775.0862(1)(b), Fla. Stat. for “private school” or “voluntary prekindergarten education program” or “early learning program” or “public school as described in s. 402.3025(1)” or “the Florida School for the Deaf and the Blind” or the “Florida Virtual School” or the “K-8 Virtual School.”

“Student” means a person younger than 18 years of age who is enrolled at a school.

Lesser Included Offenses

LEWD OR LASCIVIOUS MOLESTATION — 800.04(5)
CATEGORY ONECATEGORY TWOFLA. STAT.INS. NO.
None
Attempt777.04(1)5.1
Assault784.0118.1
Battery784.038.3
Unnatural and lascivious act800.0211.8
Comment

In 2014, the legislature created a lewd and lascivious molestation classified as a first degree felony depending on the ages of the defendant and victim and whether the defendant had a prior conviction for an enumerated crime. If this enhancement is charged, Apprendi v. New Jersey, 530 U.S. 466 (2000) may require the jury to make additional findings regarding the prior qualifying conviction and/or the age of the victim involved. See § 800.04(5)(e) Fla. Stat.

This instruction was adopted in 2008 [998 So. 2d 1138] and amended in 2013 [109 So. 3d 721] and 2015.
11.10(d) LEWD OR LASCIVIOUS CONDUCT
§ 800.04(6), Fla. Stat.

To prove the crime of Lewd or Lascivious Conduct, the State must prove the following three elements beyond a reasonable doubt:
      1. (Victim) was under the age of 16 years.

2. (Defendant)
          a. [intentionally touched (victim) in a lewd or lascivious manner].
          b. [solicited (victim) to commit a lewd or lascivious act].
Give 3a or 3b as applicable.
      3. a. (Defendant) was 18 years of age or older at the time of the offense.

      b. (Defendant) was less than 18 years of age at the time of the offense.

Definitions.
The words “lewd” and “lascivious” mean the same thing and mean a wicked, lustful, unchaste, licentious, or sensual intent on the part of the person doing an act.

To “solicit” means to ask earnestly or to try to induce the person solicited to do the thing solicited.

Neither (victim’s) lack of chastity nor (victim’s) consent is a defense to the crime charged.

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

Give if applicable. § 775.0862, Fla. Stat.
Enhancement for sexual offense against student by school authority figure.
If you find that (defendant) committed the crime of Lewd or Lascivious Conduct, you must also determine whether the State has proved beyond a reasonable doubt whether (defendant) was an authority figure at a school and (victim) was a student at the same school.
    “Authority figure” means a person 18 years of age or older who is employed by, volunteering at, or under contract with a school.
      “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 the rules of the State Board of Education]. The term “school” does not include facilities dedicated exclusively to the education of adults. If needed, insert appropriate definitions from § 775.0862(1)(b), Fla. Stat. for “private school” or “voluntary prekindergarten education program” or “early learning program” or “public school as described in s. 402.3025(1)” or “the Florida School for the Deaf and the Blind” or the “Florida Virtual School” or the “K-8 Virtual School.”
        “Student” means a person younger than 18 years of age who is enrolled at a school.
        Lesser Included Offenses
        LEWD OR LASCIVIOUS CONDUCT – 800.04(6)
        CATEGORY ONECATEGORY TWOFLA. STAT.INS. NO.
        None
        Attempt777.04(1)5.1
        Assault784.0118.1
        Battery784.038.3
        Unnatural and lascivious act800.0211.8

        Comment

        This instruction was adopted in 2008 [998 So. 2d 1138] and amended in 2015.

        11.10(e) LEWD OR LASCIVIOUS EXHIBITION
        PRESENCE OF CHILD
        § 800.04(7)(a), Fla. Stat.

        To prove the crime of Lewd or Lascivious Exhibition, the State must prove the following four elements beyond a reasonable doubt:
            1. (Victim) was under the age of 16 years.

            2. (Defendant)
                a. [intentionally masturbated].

                b. [intentionally exposed [his] [her] genitals in a lewd or lascivious manner].

                c. [committed [a sexual act] [sadomasochistic abuse] [sexual bestiality] [simulation of any act involving sexual activity] that did not involve actual physical or sexual contact with (victim)].

            3. The act was committed in the presence of (victim).
        Give 4a or 4b as applicable.
            4. a. (Defendant) was 18 years of age or older at the time of the offense.

            b. (Defendant) was less than 18 years of age at the time of the offense.

        Definitions.
        The words “lewd” and “lascivious” mean the same thing and mean a wicked, lustful, unchaste, licentious, or sensual intent on the part of the person doing an act.

        §800.04(1)(a), Fla. Stat.
        “Sexual activity” 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; however, sexual activity does not include an act done for a bona fide medical purpose.

        §847.001(13), Fla. Stat.
        “Sadomasochistic abuse” means flagellation or torture by or upon a person or animal, or the condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction, or satisfaction brought about as a result of sadistic violence, from inflicting harm on another or receiving such harm oneself.
          §847.001(15), Fla. Stat.
          “Sexual bestiality” means any sexual act, actual or simulated, between a person and an animal involving the sex organ of the one and the mouth, anus, or vagina of the other.
            § 800.04, Fla. Stat. See State v. Werner, 609 So.2d 585 (Fla. 1992).
            “In the presence of” means that (victim) saw, heard, or otherwise sensed that the act was taking place.
              Neither (victim’s) lack of chastity nor (victim’s) consent is a defense to the crime charged.

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

              Give if applicable. § 775.0862, Fla. Stat.
              Enhancement for sexual offense against student by school authority figure.
              If you find that (defendant) committed the crime of Lewd or Lascivious Exhibition in the Presence of a Child, you must also determine whether the State has proved beyond a reasonable doubt whether (defendant) was an authority figure at a school and (victim) was a student at the same school.
                “Authority figure” means a person 18 years of age or older who is employed by, volunteering at, or under contract with a school.
                  “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 the rules of the State Board of Education]. The term “school” does not include facilities dedicated exclusively to the education of adults. If needed, insert appropriate definitions from § 775.0862(1)(b), Fla. Stat. for “private school” or “voluntary prekindergarten education program” or “early learning program” or “public school as described in s. 402.3025(1)” or “the Florida School for the Deaf and the Blind” or the “Florida Virtual School” or the “K-8 Virtual School.”
                    “Student” means a person younger than 18 years of age who is enrolled at a school.
                    Lesser Included Offenses
                    LEWD OR LASCIVIOUS EXHIBITION PRESENCE OF CHILD — 800.04(7)(a)
                    CATEGORY ONECATEGORY TWOFLA. STAT.INS. NO.
                    None
                    Attempt777.04(1)5.1
                    Unnatural and lascivious act800.0211.8

                    Comment

                    This instruction was adopted in 2008 [998 So. 2d 1138] and amended in 2015.
                    11.11 Lewd or Lascivious Offenses Committed upon or in the Presence of an Elderly Person or Disabled Person
                    § 825.1025, Fla. Stat.

                    To prove the crime of [Lewd or Lascivious Battery] [Lewd or Lascivious Molestation] [Lewd or Lascivious Exhibition] upon or in the Presence of an Elderly Person or Disabled Person, the State must prove the following three elements beyond a reasonable doubt:
                        1. (Victim) was [an elderly] [a disabled] person.

                        Give 2a, 2b, or 2c as applicable.
                        2. a. (Defendant) committed lewd and lascivious battery by encouraging, forcing, or enticing (victim) to engage in [sadomasochistic abuse] [sexual bestiality] [prostitution] [any act involving sexual activity].

                        b. (Defendant) committed lewd and lascivious molestation of (victim) by intentionally touching in a lewd and lascivious manner [his] [her] [breasts] [genitals] [genital area] [buttocks] [clothing covering [his] [her] [breasts] [genitals] [genital area] [buttocks]].

                        c. (Defendant) committed lewd and lascivious exhibition to (victim) by [intentionally masturbating] [intentionally exposing [his] [her] genitals in a lascivious manner] [committing any other lewd or lascivious act not involving physical or sexual contact with (victim) including but not limited to [sadomasochistic abuse] [sexual bestiality] [simulated any act involving sexual activity]].

                        3. (Defendant) knew or reasonably should have known that the (victim) lacked the capacity to consent or failed to give consent.

                    Definitions. Give as applicable.
                    The words “lewd” and “lascivious” mean the same thing and mean a wicked, lustful, unchaste, licentious, or sensual intent on the part of the person doing an act.

                    If 2a or 2c is alleged, define the act charged from § 847.001, 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.

                    “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 care or protection is impaired.

                    “Lacks capacity to consent” means an impairment by reason of mental illness, developmental disability, organic brain disorder, physical illness or disability, chronic use of drugs, chronic intoxication, short-term memory loss, or other cause, that causes an elderly person or disabled adult to lack sufficient understanding or capacity to make or communicate reasonable decisions concerning the elderly person’s or disabled adult’s person or property.

                    Give if applicable. § 775.0862, Fla. Stat.
                    Enhancement for sexual offense against student by school authority figure.
                    If you find that (defendant) committed the crime of [Lewd or Lascivious Battery] [Lewd or Lascivious Molestation] [Lewd or Lascivious Exhibition] upon or in the Presence of an [Elderly] [Disabled] Person, you must also determine whether the State has proved beyond a reasonable doubt whether (defendant) was an authority figure at a school and (victim) was a student at the same school.

                    “Authority figure” means a person 18 years of age or older who is employed by, volunteering at, or under contract with a school.

                    “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 the rules of the State Board of Education]. The term “school” does not include facilities dedicated exclusively to the education of adults. If needed, insert appropriate definitions from § 775.0862(1)(b), Fla. Stat. for “private school” or “voluntary prekindergarten education program” or “early learning program” or “public school as described in s. 402.3025(1)” or “the Florida School for the Deaf and the Blind” or the “Florida Virtual School” or the “K-8 Virtual School.”

                    “Student” means a person younger than 18 years of age who is enrolled at a school.

                    Lesser Included Offenses
                    11.14 LEWD OR LASCIVIOUS OFFENSES COMMITTED UPON OR IN THE PRESENCE OF AN ELDERLY PERSON OR DISABLED PERSON – 825.1025
                    CATEGORY ONECATEGORY TWOFLA.STAT.INS. NO.
                    None
                    Attempt777.04(1)5.1
                    Assault784.0118.1
                    Battery784.038.3
                    Unnatural and lascivious act800.0211.8
                    Exposure of sexual organs800.0311.9
                    Comment

                    This instruction was adopted in 2007 [965 So. 2d 811] and amended in 2010 [48 So. 3d 41] and 2015. See Jennings v. State, 920 So. 2d 32 (Fla. 2d DCA 2005).

                    11.13 VOYEURISM
                    § 810.14, Fla. Stat.

                    To prove the crime of Voyeurism, the State must prove the following [three] [four] elements beyond a reasonable doubt:

                    Give if § 810.14(1)(a), Fla. Stat. is charged.
                        1. (Defendant) secretly [observed] (victim).
                          2. The (act alleged) (Defendant’s) observation was done with a [lewd], [lascivious], or [indecent] intent.

                          3. When (victim) was observed, [he] [she] (victim) was in a [dwelling] [structure] [conveyance] in which [he] [she] had a reasonable expectation of privacy.

                      Give if § 810.14(1)(b), Fla. Stat. is charged.
                          1. (Defendant) secretly observed any portion of (victim’s) body or
                              undergarments that were covered by clothing and were intended to be protected from public view.

                          2. (Defendant’s) observation was done with a lewd, lascivious, or indecent intent.

                          3. At the time, (victim) was located in a public or private [dwelling] [structure] [conveyance].

                          4. (Victim) had a reasonable expectation of privacy in the portion of
                          [his] [her] body or undergarments observed by (defendant).

                      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. 1st 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. 1st 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
                      VOYEURISM — 810.14
                      CATEGORY ONECATEGORY TWOFLA. STAT.INS. NO.
                      None
                      Attempt777.04(1)5.1
                      Comments

                      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 [122 So. 3d 263] and 2015.

                      11.17(a) SOLICITING A [CHILD] [PERSON BELIEVED BY THE DEFENDANT 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 by the Defendant to be a Child] for Unlawful Sexual Conduct Using Computer Services or Devices, the State must prove the following three elements beyond a reasonable doubt:
                          1. (Defendant) knowingly used a[n] [computer on-line service]
                        [Internet service] [local bulletin board service] [device
                              capable of electronic data storage or transmission] to contact (victim).
                          2. (Victim) was a child or a person believed by the defendant to be a child.
                            3. During that contact, (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 with a child or with a person believed by the defendant 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 whether the State has proved beyond a reasonable doubt that:

                                during the contact, (defendant) misrepresented [his] [her] age to [(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.

                          Give if applicable. § 775.0862, Fla. Stat.
                          Enhancement for sexual offense against student by school authority figure.
                          If you find that (defendant) committed the crime of Soliciting a [Child] [Person Believed by the Defendant to be a Child] for Unlawful Sexual Conduct Using Computer Services or Devices, you must also determine whether the State has proved beyond a reasonable doubt whether (defendant) was an authority figure at a school and (victim) was a student at the same school.

                          “Authority figure” means a person 18 years of age or older who is employed by, volunteering at, or under contract with a school.

                          “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 the rules of the State Board of Education]. The term “school” does not include facilities dedicated exclusively to the education of adults. If needed, insert appropriate definitions from § 775.0862(1)(b), Fla. Stat. for “private school” or “voluntary prekindergarten education program” or “early learning program” or “public school as described in s. 402.3025(1)” or “the Florida School for the Deaf and the Blind” or the “Florida Virtual School” or the “K-8 Virtual School.”

                          “Student” means a person younger than 18 years of age who is enrolled at a school.

                          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 [122 So. 3d 263] and 2015.

                          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 elements beyond a reasonable doubt:
                              1. (Defendant) knowingly used a[n] [computer on-line service]
                              [Internet service] [local bulletin board service] [device
                                  capable of electronic data storage or transmission] to contact 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. During that contact, (defendant) [solicited] [lured] [enticed] [attempted to [solicit] [lure] [entice]] a [parent of a child] [legal guardian of a child] [custodian of a child] [person believed by the defendant to be a [parent] [legal guardian] [custodian of] a child] to consent to the participation of the child 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 whether the State has proved beyond a reasonable doubt that:

                              during the contact, (defendant) misrepresented [his] [her] age to the [parent] [legal guardian] [custodian] [person believed by the defendant 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.

                          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.

                          Give if applicable. § 775.0862, Fla. Stat.
                          Enhancement for sexual offense against student by school authority figure.
                          If you find that (defendant) committed the crime of Soliciting a Parent of a Child for Unlawful Sexual Conduct Using Computer Services or Devices, you must also determine whether the State has proved beyond a reasonable doubt whether (defendant) was an authority figure at a school and (victim) was a student at the same school.

                          “Authority figure” means a person 18 years of age or older who is employed by, volunteering at, or under contract with a school.

                          “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 the rules of the State Board of Education]. The term “school” does not include facilities dedicated exclusively to the education of adults. If needed, insert appropriate definitions from § 775.0862(1)(b), Fla. Stat. for “private school” or “voluntary prekindergarten education program” or “early learning program” or “public school as described in s. 402.3025(1)” or “the Florida School for the Deaf and the Blind” or the “Florida Virtual School” or the “K-8 Virtual School.”

                          “Student” means a person younger than 18 years of age who is enrolled at a school.


                          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 [122 So. 3d 263] and 2015.

                          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 two elements beyond a reasonable doubt:
                              1. (Defendant 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 by the defendant 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) 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].
                          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.

                          Give if applicable. § 775.0862, Fla. Stat.
                          Enhancement for sexual offense against student by school authority figure.
                          If you find that (defendant) committed the crime of Traveling to Meet a Minor, you must also determine whether the State has proved beyond a reasonable doubt whether (defendant) was an authority figure at a school and (victim) was a student at the same school.

                          “Authority figure” means a person 18 years of age or older who is employed by, volunteering at, or under contract with a school.

                          “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 the rules of the State Board of Education]. The term “school” does not include facilities dedicated exclusively to the education of adults. If needed, insert appropriate definitions from § 775.0862(1)(b), Fla. Stat. for “private school” or “voluntary prekindergarten education program” or “early learning program” or “public school as described in s. 402.3025(1)” or “the Florida School for the Deaf and the Blind” or the “Florida Virtual School” or the “K-8 Virtual School.”

                          “Student” means a person younger than 18 years of age who is enrolled at a school.

                          Lesser Included Offenses

                          No lesser included offenses have been identified for this offense. It is unclear whether the courts will consider the crime of Solicitation in § 847.0135(3)(a), Fla. Stat. as a necessary lesser included offense because that crime requires the “knowing” use of a computer service or device and § 847.0135(4), Fla. Stat. does not. For the same reason, if the State charges both crimes and there is a not guilty on one of the counts, it is unclear if the courts will treat such a verdict as a “true inconsistent verdict.” See Brown v. State, 959 So. 2d 218 (Fla. 2007).

                          Comment

                          This instruction was adopted in 2009 [6 So. 3d 574] and amended in 2013 [122 So. 3d 263] and 2015.

                          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 two elements beyond a reasonable doubt:

                              1. (Defendant) 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 by the defendant to be a [parent] [legal guardian] [custodian]] of a child to consent for the [child] [person believed by the defendant 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) 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.

                          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.

                            Give if applicable. § 775.0862, Fla. Stat.
                            Enhancement for sexual offense against student by school authority figure.
                            If you find that (defendant) committed the crime of Traveling to Meet a Minor Facilitated by Parent, Legal Guardian, or Custodian, you must also determine whether the State has proved beyond a reasonable doubt whether (defendant) was an authority figure at a school and (victim) was a student at the same school.

                            “Authority figure” means a person 18 years of age or older who is employed by, volunteering at, or under contract with a school.

                            “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 the rules of the State Board of Education]. The term “school” does not include facilities dedicated exclusively to the education of adults. If needed, insert appropriate definitions from § 775.0862(1)(b), Fla. Stat. for “private school” or “voluntary prekindergarten education program” or “early learning program” or “public school as described in s. 402.3025(1)” or “the Florida School for the Deaf and the Blind” or the “Florida Virtual School” or the “K-8 Virtual School.”

                            “Student” means a person younger than 18 years of age who is enrolled at a school.


                            Lesser Included Offenses

                            No lesser included offenses have been identified for this offense. It is unclear whether the courts will consider the crime of Solicitation in § 847.0135(3)(b), Fla. Stat. as a necessary lesser included offense because that crime requires the “knowing” use of a computer service or device and § 847.0135(4)(b), Fla. Stat. does not. For the same reason, if the State charges both crimes and there is a not guilty on one of the counts, it is unclear if the courts will treat such a verdict as a “true inconsistent verdict.” See Brown v. State, 959 So. 2d 218 (Fla. 2007).

                            Comment

                            This instruction was adopted in 2009 [6 So. 3d 574] and amended in 2013 [122 So. 3d 263] and 2015.

                            11.20 TRANSMISSION OF CHILD PORNOGRAPHY BY
                            ELECTRONIC DEVICE OR EQUIPMENT
                            § 847.0137(2) and (3), Fla. Stat.

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

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

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

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

                              § 847.001(16) Fla. Stat.
                              “Sexual conduct” means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person’s clothed or unclosed genitals, public area, buttocks, or, if such person is a female, breast with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed. A mother’s breastfeeding of her baby does not under any circumstance constitute “sexual conduct.”

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

                              § 847.001(5) Fla. Stat.
                              “Deviate sexual intercourse” means sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva.

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

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

                              § 847.001(14) Fla. Stat.
                              “Sexual Battery” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, “sexual battery” does not include an act done for a bona fide medical purpose.

                              Give if applicable. § 775.0862, Fla. Stat.
                              Enhancement for sexual offense against student by school authority figure.
                              If you find that (defendant) committed the crime of Transmission of Child Pornography by Electronic Device or Equipment, you must also determine whether the State has proved beyond a reasonable doubt whether (defendant) was an authority figure at a school and (victim) was a student at the same school.
                              “Authority figure” means a person 18 years of age or older who is employed by, volunteering at, or under contract with a school.
                                “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 the rules of the State Board of Education]. The term “school” does not include facilities dedicated exclusively to the education of adults. If needed, insert appropriate definitions from § 775.0862(1)(b), Fla. Stat. for “private school” or “voluntary prekindergarten education program” or “early learning program” or “public school as described in s. 402.3025(1)” or “the Florida School for the Deaf and the Blind” or the “Florida Virtual School” or the “K-8 Virtual School.”
                                  “Student” means a person younger than 18 years of age who is enrolled at a school.

                                  Lesser Included Offenses
                                  TRANSMISSION OF CHILD PORNOGRAPHY BY ELECTRONIC DEVICE OR EQUIPMENT - 847.0137(2) and (3)
                                  CATEGORY ONECATEGORY TWOFLA. STAT.INS. NO.
                                  None
                                  Attempt777.04(1)5.1
                                  Comment

                                  This instruction was adopted in 2015.
                                    11.21 TRANSMISSION OF MATERIAL HARMFUL TO
                                    MINORS BY ELECTRONIC DEVICE OR EQUIPMENT
                                    § 847.0138(2), Fla. Stat.

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

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

                                        Definitions. Give as applicable.
                                    § 847.001(6) Fla. Stat.
                                    An image, information, or data that is “harmful to minors” means any reproduction, imitation, characterization, description, exhibition, presentation, or representation, of whatever kind or form, depicting nudity, sexual conduct, or sexual excitement when it:
                                            (a) Predominately appeals to a prurient, shameful, or morbid interest;
                                            (b) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material or conduct for minors; and
                                            (c) Taken as a whole, is without serious literary, artistic, political, or scientific value for minors.

                                    A mother’s breastfeeding of her baby is not under any circumstance “harmful to minors.”
                                      § 847.0137(1)(a) Fla. Stat.
                                          “Minor” means any person less than 18 years of age.

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

                                          § 847.001(16) Fla. Stat.
                                      “Sexual conduct” means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person’s clothed or unclosed genitals, public area, buttocks, or, if such person is a female, breast with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed. A mother’s breastfeeding of her baby does not under any circumstance constitute “sexual conduct.”

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

                                      § 847.001(5) Fla. Stat.
                                      “Deviate sexual intercourse” means sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva.

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

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


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

                                      Give if applicable. § 775.0862, Fla. Stat.
                                      Enhancement for sexual offense against student by school authority figure.
                                      If you find that (defendant) committed the crime of Transmission of Material Harmful to Minors by Electronic Device or Equipment, you must also determine whether the State has proved beyond a reasonable doubt whether (defendant) was an authority figure at a school and (victim) was a student at the same school.
                                        “Authority figure” means a person 18 years of age or older who is employed by, volunteering at, or under contract with a school.
                                          “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 the rules of the State Board of Education]. The term “school” does not include facilities dedicated exclusively to the education of adults. If needed, insert appropriate definitions from § 775.0862(1)(b), Fla. Stat. for “private school” or “voluntary prekindergarten education program” or “early learning program” or “public school as described in s. 402.3025(1)” or “the Florida School for the Deaf and the Blind” or the “Florida Virtual School” or the “K-8 Virtual School.”
                                            “Student” means a person younger than 18 years of age who is enrolled at a school.
                                            Lesser Included Offenses

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

                                            This instruction was adopted in 2015.

                                            15.5 RESISTING RECOVERY OF STOLEN PROPERTY
                                            § 812.015(6) Fla. Stat.
                                              To prove the crime of Resisting Recovery of Stolen Property, the State must prove the following five elements beyond a reasonable doubt:
                                                  1. (Defendant) [was committing] [or] [had a committed] a theft of property from (name of owner or custodian of property).
                                                  2. During or after the theft, (victim) made a reasonable effort to recover the property.
                                                  3. (Defendant) resisted (victim’s) effort to recover the property.
                                                  4. At the time of (defendant’s) resistance, (victim) had probable cause to believe (defendant) had concealed or removed the property from [its place of display] [(place where property had been kept)].
                                                  5. At the time of the resistance, (victim) was a [merchant] [merchant’s employee] [law enforcement officer].

                                              Definitions.
                                              § 812.014(1) Fla. Stat.
                                              A “theft” occurs when someone knowingly and unlawfully obtains or uses or endeavors to obtain or to use the property of another and does so with intent to, either temporarily or permanently, deprive the person of his or her right to the property or any benefit from it or to appropriate the property to his or her own use or to the use of any person not entitled to it.

                                              § 812.012(4) Fla. Stat.
                                              “Property” means anything of value , and includes tangible personal property.

                                              § 812.015(1) Fla. Stat.
                                              “Merchant” means an owner or operator, or the agent, consignee, employee, lessee, or officer of an owner or operator, of any premises or apparatus used for retail purchase or sale of any merchandise.



                                              § 812.015(1) Fla. Stat.
                                              “Merchandise” means any personal property, capable of manual delivery, displayed, held, or offered for retail sale by a merchant.

                                              Maryland v. Pringle, 540 U.S. 366 (2003); State v. Neumann, 567 So. 2d 950 (Fla. 4th DCA 1990).
                                              “Probable cause” is not capable of a precise quantification into percentages because it depends on an assessment of probabilities in a particular factual context. The term “probable cause” does not mean more likely true than false. Instead, “probable cause” is a practical, common sense determination, given the totality of circumstances, including a person’s knowledge, training and experience, as to whether there was a fair probability for a person to believe a certain fact is true.

                                              Affirmative Defense. § 812.015(6) Fla. Stat.
                                              The statute 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 an affirmative defense 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 a defense to the crime of Resisting Recovery of Stolen Property if, at the time of the resistance, (defendant) did not know or did not have reason to know that (victim) was a [merchant] [merchant’s employee] [law enforcement officer].

                                              If burden of persuasion is on the defendant:
                                              If you find that defendant proved (insert appropriate burden of persuasion) that [he] [she] did not know or did not have reason to know that (victim) was a [merchant] [merchant’s employee] [law enforcement officer], you should find [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion) that [he] [she] did not know or did not have reason to know that (victim) was a [merchant] [merchant’s employee] [law enforcement officer], 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 knew or had reason to know that (victim) was a [merchant] [merchant’s employee] [law enforcement officer], you should find [him] [her] guilty, if all of the elements of the charge have been proven beyond a reasonable doubt. However, if you are not convinced (insert appropriate burden of persuasion) that the defendant knew or had reason to know that (victim) was a [merchant] [merchant’s employee] [law enforcement officer], you should find [him] [her] not guilty.

                                              Lesser Included Offenses
                                              RESISTING RECOVERY OF STOLEN PROPERTY - 812.015(6)
                                              CATEGORY ONE
                                              CATEGORY TWO
                                              FLA. STAT.
                                              INS. NO
                                              Petit theft - second degree812.014(3)(a)14.1
                                              Attempt777.04(1)5.1
                                              Petit theft - first degree812.014(2)(e)14.1
                                              Battery784.038.3
                                              Assault784.0118.1

                                              Comment


                                              “Law enforcement officer” is not defined in chapter 812, Florida Statutes, or in case law interpreting § 812.015(6) Fla. Stat. Trial judges may consult sections 790.01, 934.02, and 943.10 in deciding whether and how to define “law enforcement officer” for the jury.

                                              This instruction was adopted in 2015.

                                              [Revised: 05-25-2015]