The Florida Bar

Florida Bar News

  1. Home
  2. News & Events
  3. Florida Bar News
The Florida Bar News
click to print this page  click to e-mail the address for this page 
September 15, 2017
Criminal jury instruction amendments

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

2.13 – PRIOR INCONSISTENT STATEMENT AS IMPEACHMENT

3.9(c) – EYEWITNESS IDENTIFICATION

5.1 – ATTEMPT TO COMMIT CRIME

8.3 – BATTERY

8.4 – AGGRAVATED BATTERY

8.4(a) – AGGRAVTED BATTERY (PREGNANT VICTIM)

8.5- FELONY BATTERY

8.11- BATTERY ON A LAW ENFORCEMENT OFFICER, ETC.

8.13 – AGGRAVATED BATTERY ON A LAW ENFORCEMT OFFICER, ETC.

8.14 – AGGRAVATED BATTERY ON PERSON 65 YEARS OF AGE OR OLDER

8.16 – BATTERY ON PERSON 65 YEARS OF AGE OR OLDER

8.20 – BATTERY ON FACILITY EMPLOYEE

8.26 – SEXUAL CYBERHARASSMENT

The committee invites all interested persons to comment on the proposals, reproduced in full below. Comments must be received by the committee in either electronic format or hard copy on or before October 15, 2017. 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 instructions, 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. If you cannot file electronically, mail a hard copy of the comment 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.

2.13 PRIOR INCONSISTENT STATEMENT AS IMPEACHMENT

To be given if requested.
The evidence that a witness may have made a prior statement that is inconsistent with [his] [her] testimony in court should be considered only for the purpose of weighing the credibility of the witness’s testimony and should not be considered as evidence or proof of the truth of the prior statement or for any other purpose.


Comment

This instruction was adopted in 2018.

3.9(c) EYEWITNESS IDENTIFICATION



Give if eyewitness identification is a disputed issue and if requested.
You have heard testimony of eyewitness identification. In deciding how much weight to give to this testimony, you may consider the various factors mentioned in these instructions concerning credibility of witnesses.

In addition to those factors, in evaluating eyewitness identification testimony, you may also consider:
      1. The capacity and opportunity of the eyewitness to observe the offender based upon the length of time for observation and the conditions at the time of observation, including lighting and distance.

      2. Whether the identification was the product of the eyewitness’s own recollection or was the result of influence or suggestiveness.

      3. The circumstances under which the defendant was presented to the eyewitness for identification.

4. Any inconsistent identifications made by the eyewitness.
      5. Any instance in which the eyewitness did not make an identification when given the opportunity to do so.
6. The witness’s familiarity with the subject identified.

7. Lapses of time between the event and the identification[s].

      8. Whether the eyewitness and the offender are of different races or ethnic groups, and whether this may have affected the accuracy of the identification.

      9. The totality of circumstances surrounding the eyewitness’s identification.

Lineup Requirements. Give if applicable. § 92.70, Fla. Stat.
You have heard testimony concerning a [live] [photo] lineup conducted by a law enforcement agency. Florida law requires that the person conducting the lineup must not have participated in the investigation of the crime alleged and must not have been aware of which person in the lineup was the suspect.

When an independent administrator was not used. Give as applicable.
As an alternative, it is permissible under Florida law if

[an automated computer program automatically administered the photo lineup directly to an eyewitness and prevented the person conducting the lineup from seeing which photograph the eyewitness viewed until after the procedure was completed.]

[photographs were placed in folders, randomly numbered, and shuffled and then presented to an eyewitness such that the person conducting the lineup did not see or did not track which photograph was presented to the eyewitness until after the procedure was completed.]

[the lineup procedure achieved neutral administration and prevented the person conducting the lineup from knowing which photograph was presented to the eyewitness during the identification procedure.]

Give in all cases involving a lineup.
Also, before conducting a lineup, the eyewitness must be instructed that:

1. The perpetrator might or might not be in the lineup;

Give #2 only when an independent administrator was used.
2. The person conducting the lineup does not know the suspect’s identity;

3. The eyewitness should not feel compelled to make an identification;

4. It is as important to exclude innocent persons as it is to identify the perpetrator; and

5. The investigation will continue with or without an identification.

The eyewitness must acknowledge, in writing, that he or she received a copy of the lineup instructions. If the eyewitness refused to sign a document acknowledging receipt of the instructions, the person conducting the lineup must document the refusal of the eyewitness to sign a document acknowledging receipt of the instructions, and the person conducting the lineup must sign the acknowledgment document himself or herself.

You may consider compliance or noncompliance with these requirements to determine the reliability of an eyewitness identification made during a lineup procedure.
    Comment

    This instruction was adopted in 20123 [141 So. 3d 132] and amended in 2013 [122 So. 3d 302], and 2018.


    5.1 ATTEMPT TO COMMIT CRIME


    § 777.04(1), Fla. Stat.

    Use when attempt is charged or is a lesser included offense.
    [To prove the crime of Attempted to Commit (crime chargedattempted), the State must prove the following two elements beyond a reasonable doubt:]

    Use when necessary to define “attempt” as an element of another crime.
    [In order to prove that the defendant attempted to commit the crime of (crime chargedattempted), the State must prove the following beyond a reasonable doubt:]

        1. (Defendant) did some act toward committing the crime of (crime attempted) that went beyond just thinking or talking about it.

        2. [He] [She] would have committed the crime except that

            a. [someone prevented [him] [her] from committing the crime of (crime chargedattempted).]

            [or]

            b. [[he] [she] failed.]

    The crime of (crime attempted) is defined as (insert elements of crime attempted);

    Give if applicable. Affirmative Defense. § 777.04(5)(a), Fla. Stat. Carroll v. State, 680 So. 2d 1065 (Fla. 3d DCA 1996). Harriman v. State, 174 So. 3d 1044 (Fla. 1st DCA 2015).
    It is a defense to the crime of attempt to commitAttempted (crime chargedattempted) if the defendant abandoned [his] [her] attempt to commit the offense or otherwise prevented its commission, under circumstances indicating a complete and voluntary renunciation of [his] [her] criminal purpose.

    Renunciation is not complete and voluntary where the defendant failed to complete the crime because of unanticipated difficulties, unexpected resistance, a decision to postpone the crime to another time, or circumstances known by the defendant that increased the probability of being apprehended.

    If you find that the defendant proved by a preponderance of the evidence that [he] [she] abandoned [his] [her] attempt to commit the offense or otherwise prevented its commission, under circumstances indicating a complete and voluntary renunciation of [his] [her] criminal purpose, you should find [him] [her] not guilty of Attempted (crime attempted).

    If the defendant failed to prove by a preponderance of the evidence that [he] [she] abandoned [his] [her] attempt to commit the offense or that [he] [she] otherwise prevented its commission, under circumstances indicating a complete and voluntary renunciation of [his] [her] criminal purpose, you should find [him] [her] guilty of Attempted (crime attempted) if all the elements of the charge have been proven beyond a reasonable doubt.

    Lesser Included Offenses

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

    As of November 2015August 2017, no case law addressed the issue of whether renunciation remains a defense to an attempt to commit a crime where some harm was done.

    This instruction was adopted in 1981 and amended in 2017 [213 So. 3d 680] and 2018.

    8.3 BATTERY


    § 784.03, Fla.­_Stat.

    To prove the crime of Battery, the State must prove the following element beyond a reasonable doubt:

    Give 1 and/or 2 as applicabledepending on the charging document.
        1. [(Defendant) actually and intentionally touched or struck (victim) against [his] [her] will.]

        2. [(Defendant) intentionally caused bodily harm to (victim).]

    Give only if applicable. Fey v. State, 125 So. 3d 828 (Fla. 4th DCA 2013).
    An intentional touching or striking includes situations where a defendant knows that a touch or strike is substantially certain to result from his or her act.

    Give only if applicable. Clark v. State, 783 So. 2d 967 (Fla. 2001).
    A battery may be found as a result of the intentional touching or intentional striking of something other than the actual body of the person. However, the object that is touched or struck must have such an intimate connection with the person that it is to be regarded as a part or as an extension of the person.

    Give if the reclassification in § 784.03(2), Fla. Stat. was charged and if jury found the defendant guilty of Battery.
    Now that you have found the defendant guilty of Battery, you must further determine whether the State has proven beyond a reasonable doubt that the defendant was previously convicted of [Battery] [Aggravated Battery] [Felony Battery]. “Convicted” means a determination of guilt that was the result of a plea or a trial, regardless of whether adjudication was withheld or a plea of nolo contendere was entered.

    Lesser Included Offenses
    BATTERY — 784.03
    CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
    None
    Attempt 777.04(1) 5.1
    Comment

    This instruction was approved in 1981 and amended in 2018.

    8.4 AGGRAVATED BATTERY
                    784.045(1)(a), Fla. Stat.

    To prove the crime of Aggravated Battery, the State must prove the following two elements beyond a reasonable doubt. The first element is a definition of bBattery.

    Give 1a and/or 1b depending on the charging document.
        1. (Defendant)

        a. [actually and intentionally touched or struck (victim) against
        [his] [her] will].

        b. .

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

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

            b. used a deadly weapon.

    Definitions. Give if 2b alleged.
    Give if 2b alleged. Rudin v. State, 182 So. 3d 724 (Fla. 1st DCA 2015).
    A weapon is a “deadly weapon” if it is used or threatened to be used in a way likely to produce death or great bodily harm. A “deadly weapon” is 1) any instrument which, when it is used in the ordinary manner contemplated by its design and construction will or is likely to cause great bodily harm or death, or 2) any instrument likely to cause great bodily harm or death because of the way it is used during a crime.

    Great bodily harm. Wheeler v. State, 203 So. 3d 1007 (Fla. 4th DCA 2016).
    “Great bodily harm” means great as distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises.


    Give only if applicable. Fey v. State, 125 So. 3d 828 (Fla. 4th DCA 2013).
    An intentional touching or striking includes situations where a defendant knows that a touch or strike is substantially certain to result from his or her act.

    Give only if applicable. Clark v. State, 783 So. 2d 967 (Fla. 2001).
    A battery may be found as a result of the intentional touching or intentional striking of something other than the actual body of the person. However, the object that is touched or struck must have such an intimate connection with the person that it is to be regarded as a part or as an extension of the person. [For example, in cases where a person intentionally drove into another occupied vehicle, it is for you to determine whether the vehicle that was struck should be considered as a part or as an extension of the person inside that vehicle. This determination may include consideration about whether the person was “touched” through the force of impact by being jostled or otherwise impacted through the transfer of energy from the collision.]
    Lesser Included Offenses
    AGGRAVATED BATTERY — 784.045(1)(a)
    CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
    Felony Battery* 784.03784.041 8.38.5
    Felony bBattery 784.041784.03 8.58.3
    Attempt 777.04(1) 5.1
    Improper exhibition of dangerous weapons or firearms 790.10 10.5
    Discharging a firearms in public 790.15 10.6
    Comments

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

    This instruction was approved in 1981 and amended in 1989 [543 So.2d 1205], and 2007 [962 So. 2d 310], and 2018.
    8.4(a) AGGRAVATED BATTERY (Pregnant Victim)
    § 784.045(1)(b), Fla. Stat.

    To prove the crime of Aggravated Battery, the State must prove the following three elements beyond a reasonable doubt. The first element is a definition of bBattery.
        Bracketed language depends on the charging document.
        1. (Defendant) [actually and intentionally touched or struck (victim) against her will] [intentionally caused bodily harm to (victim)].

        2. (Victim) was pregnant at the time.

        3. (Defendant) in committing the battery knew or should have known that (victim) was pregnant.
    Give only if applicable. Fey v. State, 125 So. 3d 828 (Fla. 4th DCA 2013).
    An intentional touching or striking includes situations where a defendant knows that a touch or strike is substantially certain to result from his or her act.

    Give only if applicable. Clark v. State, 783 So. 2d 967 (Fla. 2001).
    A battery may be found as a result of the intentional touching or intentional striking of something other than the actual body of the person. However, the object that is touched or struck must have such an intimate connection with the person that it is to be regarded as a part or as an extension of the person. [For example, in cases where a person intentionally drove into another occupied vehicle, it is for you to determine whether the vehicle that was struck should be considered as a part or as an extension of the person inside that vehicle. This determination may include consideration about whether the person was “touched” through the force of impact by being jostled or otherwise impacted through the transfer of energy from the collision.]
    Lesser Included Offenses

    AGGRAVATED BATTERY (PREGNANT VICTIM) – 784.045(1)(b)
    CATEGORY ONE
    CATEGORY TWO
    FLA. STAT.
    INS. NO.
    Battery 784.03 8.3
    Attempt 777.04(1) 5.1
    Comment

    This instruction was approved in 2007 [962 So. 2d 310] and amended in 2018. See Small v State, 889 So.2d 862 (Fla. 1st DCA 2004).

    8.5 FELONY BATTERY
    § 784.041(1), Fla._Stat.

    To prove the crime of Felony Battery, the State must prove the following two elements beyond a reasonable doubt:
        1. (Defendant) actually and intentionally touched or struck (victim) against [his] [her] will; and

        2. (Defendant) caused (victim) great bodily harm, permanent disability, or permanent disfigurement.

    Give only if applicable. Great bodily harm. Wheeler v. State, 203 So. 3d 1007 (Fla. 4th DCA 2016).
    “Great bodily harm” means great as distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises.

    Give only if applicable. Fey v. State, 125 So. 3d 828 (Fla. 4th DCA 2013).
    An intentional touching or striking includes situations where a defendant knows that a touch or strike is substantially certain to result from his or her act.

    Give only if applicable. Clark v. State, 783 So. 2d 967 (Fla. 2001).
    A battery may be found as a result of the intentional touching or intentional striking of something other than the actual body of the person. However, the object that is touched or struck must have such an intimate connection with the person that it is to be regarded as a part or as an extension of the person. [For example, in cases where a person intentionally drove into another occupied vehicle, it is for you to determine whether the vehicle that was struck should be considered as a part or as an extension of the person inside that vehicle. This determination may include consideration about whether the person was “touched” through the force of impact by being jostled or otherwise impacted through the transfer of energy from the collision.]
    Lesser Included Offenses
    FELONY BATTERY — 784.041(1)
    CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
    Battery 784.03 8.3
    NoneAttempt 777.04(1) 5.1
    Comment

    This instruction is based on the text of § 784.041, Fla.Stat. (1997), and generally patterned after the standard instructions on battery and aggravated battery.

    This instruction was adopted in 2000 [765 So. 2d 692] and amended in 2018.

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

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

    Give 1a and/or 1b depending on the charging document.

        1. (Defendant) intentionally
            a. [actually and intentionally touched or struck (victim) against

            [his] [her] will].

            b. [intentionally caused bodily harm to (victim)].

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

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

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

    Give only if applicable. Fey v. State, 125 So. 3d 828 (Fla. 4th DCA 2013).
    An intentional touching or striking includes situations where a defendant knows that a touch or strike is substantially certain to result from his or her act.

    Give only if applicable. Clark v. State, 783 So. 2d 967 (Fla. 2001).
    A battery may be found as a result of the intentional touching or intentional striking of something other than the actual body of the person. However, the object that is touched or struck must have such an intimate connection with the person that it is to be regarded as a part or as an extension of the person. [For example, in cases where a person intentionally drove into another occupied vehicle, it is for you to determine whether the vehicle that was struck should be considered as a part or as an extension of the person inside that vehicle. This determination may include consideration about whether the person was “touched” through the force of impact by being jostled or otherwise impacted through the transfer of energy from the collision.]

    For cases where the alleged victim is a law enforcement officer, do not refer to the victim by name when instructing on the sentence below. Instead, the instruction must state the class of officers to which the victim belongs, e.g., deputy sheriff, probation officer, correctional officer. See Wright v. State, 586 So. 2d 1024 (Fla. 1991).
    The court now instructs you that a (name of official position of victim designated in charge) is a law enforcement officer.

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

    Lesser Included Offenses
    BATTERY ON LAW ENFORCEMENT OFFICER, FIREFIGHTER, ETC. — 784.07(2)(b)
    CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
    Battery 784.03 8.3
    Attempt 777.04(1) 5.1
    Comments

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

    This instruction was adopted in 1981 [431 So. 2d 594] and amended in 1992 [603 So. 2d 1175], 1995 [657 So. 2d 1152], 2007 [962 So. 2d 310], 2008 [994 So. 2d 1038], and 2015 [157 So. 3d 1027], and 2018.

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


    § 784.07(2)(d), Fla. Stat.

    To prove the crime of Aggravated Battery on a [Law Enforcement Officer] [Firefighter] [Emergency Medical Care Provider] [Traffic Accident Investigation Officer] [Traffic Infraction Enforcement Officer] [Parking Enforcement Specialist] [Security Officer Employed by the Board of Trustees of a Community College] [Law Enforcement Explorer] [Non-sworn Law Enforcement Agency Employee Certified as an Agency Inspector] [Blood Alcohol Analyst] [Breath Test Operator] [Railroad Special Officer] [Licensed Security Officer], the State must prove the following five elements beyond a reasonable doubt. The first element is a definition of bBattery.

    Give 1a and/or 1b depending on the charging document.

        1. (Defendant)
            a. [actually and intentionally touched or struck (victim) against

            [his] [her] will].

            b. .

    Give 2a and/or 2b as applicable.
        2. (Defendant), in committing the bBattery,
            a. intentionally or knowingly caused
                [great bodily harm to (victim)].

                [permanent disability to (victim)].

                [permanent disfigurement to (victim)].

            b. used a deadly weapon.

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

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

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

    For cases where the alleged victim is a law enforcement officer, do not refer to the victim by name when instructing on the sentence below. Instead, the instruction must state the class of officers to which the victim belongs, e.g., deputy sheriff, probation officer, correctional officer. See Wright v. State, 586 So. 2d 1024 (Fla. 1991).
    The court now instructs you that a (name of official position of victim designated in charge) is a law enforcement officer.

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

    Definitions. Give if 2b alleged.
    Give if 2b alleged. Rudin v. State, 182 So. 3d 724 (Fla. 1st DCA 2015).
    A weapon is a “deadly weapon” if it is used or threatened to be used in a way likely to produce death or great bodily harm. A “deadly weapon” is 1) any instrument which, when it is used in the ordinary manner contemplated by its design and construction will or is likely to cause great bodily harm or death, or 2) any instrument likely to cause great bodily harm or death because of the way it is used during a crime.

    Great bodily harm. Wheeler v. State, 203 So. 3d 1007 (Fla. 4th DCA 2016).
    “Great bodily harm” means great as distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises.

    Give only if applicable. Fey v. State, 125 So. 3d 828 (Fla. 4th DCA 2013).
    An intentional touching or striking includes situations where a defendant knows that a touch or strike is substantially certain to result from his or her act.

    Give only if applicable. Clark v. State, 783 So. 2d 967 (Fla. 2001).
    A battery may be found as a result of the intentional touching or intentional striking of something other than the actual body of the person. However, the object that is touched or struck must have such an intimate connection with the person that it is to be regarded as a part or as an extension of the person. For example, in cases where a person intentionally drove into another occupied vehicle, it is for you to determine whether the vehicle that was struck should be considered as a part or as an extension of the person inside that vehicle. This determination may include consideration about whether the person was “touched” through the force of impact by being jostled or otherwise impacted through the transfer of energy from the collision.

    Lesser Included Offenses
    AGGRAVATED BATTERY ON LAW ENFORCEMENT OFFICER, FIREFIGHTER, ETC. — 784.07(2)(d)
    CATEGORY ONE CATEGORY TWO FLA. STAT INS. NO.
    Aggravated battery 784.045 8.4
    Felony battery* 784.041 8.5
    Battery on a law enforcement officer 784.07(2)(b) 8.11
    Battery 784.03 8.3
    Attempt 777.04(1) 5.1
    Comments

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

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

    This instruction was adopted in 1992 [603 So. 2d 1175] and was amended in 1995 [657 So. 2d 1152], 2007 [962 So. 2d 310], 2008 [994 So. 2d 1038], and 2015 [157 So. 3d 1027], and 2018.

    8.14 AGGRAVATED BATTERY ON PERSON 65 YEARS OF AGE OR OLDER


    784.08(2)(a), Fla. Stat.

    To prove the crime of Aggravated Battery on a Person 65 Years of Age or Older, the State must prove the following three elements beyond a reasonable doubt. The first element is a definition of bBattery.

    Give 1a and/or 1b depending on the charging document.
        1. (Defendant) intentionally

        a. [actually and intentionally touched or struck (victim)
        against [his] [her] will].

        b. [intentionally caused bodily harm to (victim)].

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

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

            b. used a deadly weapon.

    3. (Victim) was at the time 65 years of age or older.

    § 784.08(2), Fla. Stat.
    It is not necessary for the State to prove that (defendant) knew or had reason to know the age of (victim).

    Definitions. Give if 2b alleged.
    Give if 2b alleged. Rudin v. State, 182 So. 3d 724 (Fla. 1st DCA 2015).
    A weapon is a “deadly weapon” if it is used or threatened to be used in a way likely to produce death or great bodily harm. A “deadly weapon” is 1) any instrument which, when it is used in the ordinary manner contemplated by its design and construction will or is likely to cause great bodily harm or death, or 2) any instrument likely to cause great bodily harm or death because of the way it is used during a crime.

    Great bodily harm. Wheeler v. State, 203 So. 3d 1007 (Fla. 4th DCA 2016).
    “Great bodily harm” means great as distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises.

    Give only if applicable. Fey v. State, 125 So. 3d 828 (Fla. 4th DCA 2013).
    An intentional touching or striking includes situations where a defendant knows that a touch or strike is substantially certain to result from his or her act.

    Give only if applicable. Clark v. State, 783 So. 2d 967 (Fla. 2001).
    A battery may be found as a result of the intentional touching or intentional striking of something other than the actual body of the person. However, the object that is touched or struck must have such an intimate connection with the person that it is to be regarded as a part or as an extension of the person. For example, in cases where a person intentionally drove into another occupied vehicle, it is for you to determine whether the vehicle that was struck should be considered as a part or as an extension of the person inside that vehicle. This determination may include consideration about whether the person was “touched” through the force of impact by being jostled or otherwise impacted through the transfer of energy from the collision.

    Lesser Included Offenses

    AGGRAVATED BATTERY ON PERSON 65 YEARS OF AGE OR OLDER – 784.08(2)(a)
    CATEGORY ONE CATEGORY TWO FLA. STAT INS. NO.
    Aggravated battery 784.045 8.4
    Felony battery* 784.041 8.5
    Battery on person 65 years of age or older 784.08(2)(c) 8.16
    Battery 784.03 8.3
    Attempt 777.04(1) 5.1
    Improper exhibition of dangerous weapons or firearms 790.10 10.5
    Discharging firearms in public 790.15 10.6
    Comments

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

    This instruction was adopted in 1997 [697 So.2d 84] and amended in 2007 [962 So. 2d 310], and 2018.

    8.16 BATTERY ON PERSON 65 YEARS OF AGE OR OLDER
    § 784.08(2)(c), Fla._Stat.

    To prove the crime of Battery on a Person 65 Years of Age or Older, the State must prove the following two elements beyond a reasonable doubt:

    Give 1a and/or 1b depending on the charging document.
        1. (Defendant) intentionally [touched or struck (victim) against [his] [her] will] [caused bodily harm to (victim)].
        a. actually and intentionally touched or struck (victim) against
        [his] [her] will.

        b. intentionally caused bodily harm to (victim).

        2. (Victim) was at the time 65 years of age or older.
    § 784.08(2), Fla. Stat.
    It is not necessary for the State to prove that (defendant) knew or had reason to know the age of (victim).

    Give only if applicable. Fey v. State, 125 So. 3d 828 (Fla. 4th DCA 2013).
    An intentional touching or striking includes situations where a defendant knows that a touch or strike is substantially certain to result from his or her act.

    Give only if applicable. Clark v. State, 783 So. 2d 967 (Fla. 2001).
    A battery may be found as a result of the intentional touching or intentional striking of something other than the actual body of the person. However, the object that is touched or struck must have such an intimate connection with the person that it is to be regarded as a part or as an extension of the person. [For example, in cases where a person intentionally drove into another occupied vehicle, it is for you to determine whether the vehicle that was struck should be considered as a part or as an extension of the person inside that vehicle. This determination may include consideration about whether the person was “touched” through the force of impact by being jostled or otherwise impacted through the transfer of energy from the collision.]

    Lesser Included Offenses
    BATTERY ON PERSON 65 YEARS OF AGE OR OLDER — 784.08(2)(c)
    CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
    Battery 784.03 8.3
    Attempt 777.04(1) 5.1

    Comment

    This instruction was adopted in 1997 [697 So. 2d 84] and amended in 2018.

    8.20 BATTERY ON FACILITY EMPLOYEE
    § 784.078, Fla._Stat.

    To prove the crime of Battery on a Facility Employee, the State must prove the following five elements beyond a reasonable doubt:
        1. (Defendant) was detained in a facility.

        2. (Defendant) intentionally touched or struck or attempted to touch or strike (victim) against [his] [her] will by throwing, tossing, or expellingcaused or attempted to cause (victim) to come into contact with blood, saliva, masticated food, regurgitated food, seminal fluid, urine, or feces at(victim)by throwing, tossing, or expelling such fluid or material.

        3. (Defendant) intended did so with the intent to harass, annoy, threaten, or alarm (victim).

        4. (Victim) was a facility employee.

        5. (Defendant) knew (victim) or had reason to knowreasonably should have known that (victim) was a facility employee.

    Definitions.
    § 784.078(1), Fla. Stat. Additional definitions of the specific type of facility can be found in other statutes.
    A "facility" is any state correctional institution, private correctional facility, county, municipal, or regional jail or other detention facility of local government, or any secure facility operated and maintained by the Department of Corrections or the Department of Juvenile Justice.

    § 784.078(2), Fla. Stat.
    An "employee" is any person [employed by or performing contractual services for a public or private entity operating a facility] [or] [employed by or performing contractual services for the corporation operating the prison enhancement programs or the correctional work programs] [or] [who is a parole examiner with the Florida Parole Commission on Offender Review].
    Lesser Included Offenses
    BATTERY ON FACILITY EMPLOYEE — 784.078
    CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
    None
    Battery 784.03(1)(a) 8.3
    Assault 784.011 8.1

    Comment

    This instruction was adopted in 2003 [850 So. 2d 1272] and 2018.

    8.26 SEXUAL CYBERHARASSMENT
    § 784.049(3), Fla. Stat.

    To prove the crime of Sexual Cyberharassment, the State must prove the following four elements beyond a reasonable doubt:

    1. (Defendant) published a sexually explicit image of (victim) on an
    internet website.

    2. The image contained or conveyed (victim’s) personal identification
    information.

    3. (Defendant) did so willfully and maliciously, for no legitimate
    purpose, and with the intent of causing substantial emotional
    distress to (victim).

    4. (Victim) did not consent to the publication.

    Definitions.
    § 784.049(2)(d), Fla. Stat.
    “Sexually explicit image” means any image depicting nudity or depicting any person engaging in sexual conduct.

    § 784.049(2)(a), Fla. Stat.
    “Image” includes but is not limited to, any photograph, picture, motion picture, film, video, or representation.

    § 847.001(9), Fla. Stat.
    “Nudity” means showing of the human male or female genitals, pubic 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.
    If necessary, insert additional definitions from § 847.001, 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 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.”]

    § 784.049(2)(b), § 817.568(1)(f), Fla. Stat.
    “Personal Identification Information” means any name or number that may be used, alone or in conjunction with any other information, to identify a specific person, including any name, postal or electronic mail address, telephone number, social security number, date of birth, mother’s maiden name, official state or United States issued driver’s license or identification number, alien registration number, government passport number, employer or taxpayer’s identification number, Medicaid or food stamp account number, bank account number, credit or debit card number or personal identification number or code assigned to the holder of a debit card by the issuer to permit authorized use of such card, unique biometric data such as fingerprint, voice print, retina or iris image, or other unique physical representation, unique electronic identification number, address, or routing code, medical record, telecommunication identifying information or access device, or other number or information that can be used to access a person’s financial resources.

    Patterson v. State, 512 So. 2d 1109 (Fla. 1st DCA 1987).
    “Willfully” means knowingly, intentionally and purposely.

    As of August 2017, the courts had not determined whether the sexual cyberharassment statute requires actual malice or legal malice. The explanation of the two can be found in Seese v. State, 955 So. 2d 1145 (Fla. 4th DCA 2007). In the absence of clarification, trial judges must choose one of the following:
    “Maliciously” means intentionally and without any lawful justification.

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

    Lesser Included Offenses


    SEXUAL CYBERHARASSMENT — 784.049(3)
    CATEGORY ONE CATEGORY TWO FLA. STAT INS. NO.
    None
    Attempt 777.04(1) 5.1

    Comments

    As of August 2017, it is unclear whether the existence of a prior violation should be treated as an element of the crime that must be found by the jury or whether a prior violation can be proven to the judge at sentencing.

    If treated as an element, it would be error to inform the jury of a prior Sexual Cyberharassment conviction. Therefore, if the information or indictment contains an allegation of a prior Sexual Cyberharassment conviction, do not read the allegation and do not send the information or indictment into the jury room. If the defendant is found guilty of Sexual Cyberharassment, the historical fact of a previous conviction would be determined beyond a reasonable doubt in a bifurcated proceeding. See State v. Harbaugh, 754 So.2d 691 (Fla. 2000).

    As of August 2017, the courts had not determined if a withhold of adjudication counted as a conviction.

    This instruction was adopted in 2018.


    [Revised: 12-08-2017]