DONALD RAY KERVIN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D15-1174

_____________________________/

Opinion filed July 6, 2016.

An appeal from the Circuit Court for Escambia County.

Terry D. Terrell, Judge.

Nancy A. Daniels, Public Defender, and Mark Graham Hanson, Assistant Public 

Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Michael Schaub, Assistant Attorney 

General, Tallahassee, for Appellee.

ROWE, J.

Appellant, Donald Ray Kervin, challenges his conviction for felony animal 

cruelty in violation of section 828.12(2), Florida Statutes (2012), arguing that the 

trial court erred in using the 2014 revised jury instruction to instruct the jury on the 

charged offense rather than the 2012 version of the instruction. Because the 2014 

revised jury instruction was an accurate statement of the applicable law, we affirm.
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Background

The testimony at trial established that on July 10, 2012, Juanita Vinson, an 

animal control officer, and Heather Stevens, an environmental enforcement officer, 

arrived at Kervin’s residence in response to a call that a dog was in distress. Upon 

arrival of the officers, Kervin directed them to the back of the property where the 

dog, “Chubbie,” was located. The officers testified that as they approached the back 

of the house, they smelled a rotten-flesh odor. They found Chubbie in what appeared 

to be a small laundry room attached to the back of Kervin’s home. Chubbie was 

visibly wet and lying down on the cement floor in his own feces and urine. He had 

several open wounds containing maggots. The officers also noticed tapeworms 

around his rear area. They testified that the room was small and hot, and that the

windows were boarded up allowing no ventilation in the room. There was also no 

sign of water or food for Chubbie.

Officer Vinson spoke to Kervin about the dog’s injuries. Kervin first told the 

officers that Chubbie was hit by a car, but he later told the officers that he thought 

the dog ran away and a neighbor beat him with a shovel. Upon walking outside to 

survey the backyard, Officer Stevens observed a shovel handle with what appeared 

to be blood on it laying on the ground. It was then that Kervin admitted hitting 

Chubbie with the shovel for discipline. Kervin was unwilling to take the dog to a 

veterinarian at that time, even though he admitted that he knew Chubbie had not 
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stood up to walk for two days. Because Chubbie was unable to physically stand, it 

took three officers to remove him from the room. Chubbie was taken to a veterinary

clinic where he was humanely euthanized due to the severity of his condition and 

the unlikelihood of recovery. Subsequently, Kervin was brought to trial on the 

charge of felony animal cruelty.

At the charge conference, Kervin requested that the trial court use the standard 

jury instruction that was in effect in 2012, the time of the alleged offense, rather than 

the 2014 version. While noting that the instructions were slightly different, in that 

the new instruction included the language “failure to act,” the trial court determined 

that it was appropriate to use the 2014 revised standard jury instruction based on the 

holding in Brown v. State, 166 So. 3d 817 (Fla. 2d DCA 2015). After receiving the 

revised instructions, the jury returned a guilty verdict.

Analysis

On appeal, Kervin argues that the use of the 2014 instruction was error 

because that instruction was revised to reflect the 2013 amendment to section 

828.12(2), which expanded the definition of felony animal cruelty to include a 

person’s failure to act. We review the trial court’s decision to give or withhold a 

proposed jury instruction for an abuse of discretion. Truett v. State, 105 So. 3d 656, 

658 (Fla. 1st DCA 2013); Langston v. State, 789 So. 2d 1024, 1026 (Fla. 1st DCA 

2001).
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To determine whether an abuse of discretion occurred when the trial court 

instructed the jury using the 2014 revised standard jury instruction and declined to 

instruct the jury using the 2012 instruction, we examine (1) whether the instruction 

given accurately states the applicable law; (2) whether the facts in the case support 

the instruction; and (3) whether the instruction given was necessary to allow the jury 

to properly resolve all issues in the case. Alderman v. Wysong & Miles Co., 486 

So.2d 673, 677 (Fla. 1st DCA 1986). Here, the jury instruction read to the jury 

accurately stated the applicable law, and the trial court did not abuse its discretion 

in giving the instruction.

Kervin was charged under section 828.12(2), Florida Statutes (2012), which 

read:

A person who intentionally commits an act to any animal which results 

in the cruel death, or excessive or repeated infliction of unnecessary 

pain or suffering, or causes the same to be done, is guilty of a felony of 

the third degree.

The applicable standard jury instruction in effect at that time stated, in relevant part:

To prove the crime of Animal Cruelty, the State must prove the 

following element beyond a reasonable doubt: (Defendant) 

intentionally committed an act to an animal which resulted in [the 

excessive or repeated infliction of unnecessary pain or suffering to an 

animal] [an animal's cruel death]. 

In re Std. Jury Instr. In Crim. Cases—Report No. 2007-03, 976 So. 2d 1081, 1095 

(Fla. 2008).
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In 2013, the statute was amended to read, in relevant part:

A person who intentionally commits an act to any animal, or a person 

who owns or has the custody or control of any animal and fails to act, 

which results in the cruel death, or excessive or repeated infliction of 

unnecessary pain or suffering, or causes the same to be done, commits 

aggravated animal cruelty, a felony of the third degree.

§ 828.12(2), Fla. Stat. (2013) (emphasis added). In 2014, the standard jury 

instruction was revised to reflect the 2013 amendment. In re Std. Jury Instr. in Crim.

Cases--Report No. 2013-07, 143 So. 3d 893, 905-06 (Fla. 2014). The revised 

instruction reads, in relevant part:

To prove the crime of Aggravated Animal Cruelty, the State must prove 

the following two elements beyond a reasonable doubt:

1. (Defendant) [intentionally committed an act to an animal] [or] 

[owned or had custody or control of an animal and failed to act].

2. (Defendant's) [act] [or] [failure to act] resulted in [excessive or 

repeated infliction of unnecessary pain] [or] [suffering to the animal or 

the animal's cruel death].

Id. (emphasis added).

Although the 2013 amendment to the statute did, in a literal sense, add new 

language to the body of the statute, we agree with the Second District that the 2012

version of section 828.12(2) already included a person’s failure to act. See Brown, 

166 So. 3d at 821 (citing State v. Morival, 75 So. 3d 810, 812 (Fla. 2d DCA 2011) 

and Hynes v. State, 1 So. 3d 328, 330-31 (Fla. 5th DCA 2009) (Griffin, J., specially 

concurring)). Further, even absent the decision in Brown, the Florida Supreme Court 

has held that in a criminal context, an act of omission may constitute an 
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“act.” Nicholson v. State, 600 So. 2d 1101, 1004 (Fla. 1992) (approving our decision 

in Nicholson v. State, 579 So. 2d 816 (Fla. 1st DCA 1991), wherein we held that 

because the Florida child abuse statute clearly defined “torture” as “an act of 

omission,” we had no difficulty concluding that “willful torture” included acts of 

commission and omission. 579 So. 2d at 818-19 (emphasis added)).

As such, interpreting the 2012 version of the statute to include an act of 

omission fits squarely within Florida precedent, as acts of negligence have been held 

to constitute felony animal cruelty under the 2012 version of the statute. See Horn

v. Sec’y, Fla. Dep’t of Corr., 488 F. App’x 421, 425 (2012) (stating that even if the 

jury convicted the defendant under section 828.12(2) based on negligence, such a 

conviction would be consistent with the charge under Florida law). The 2014 revised 

standard jury instruction merely clarified the previous version of the instruction to 

include the failure to act. Thus, the trial court did not abuse its discretion by using 

the 2014 revised version of the standard jury instruction to suit the particular facts 

and circumstances presented in the trial and to aid the jury in understanding the 

meaning of the statute.

Furthermore, the facts in this case support instructing the jury using the 2014 

revised standard instruction. This is a serious case of neglect. The testimony 

established that Chubbie’s wounds were at least three to five days old, and that 

Chubbie had been recumbent for at least two days. Chubbie had urine scald, a 
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condition that occurs when an animal urinates on itself and the area goes uncleaned. 

Within twenty-four to forty-eight hours, the uric acid started to burn Chubbie’s skin. 

There were large fly larvae (maggots) surrounding Chubbie’s wounds on his hip, 

elbow, and shoulder area, which would have taken at least three to four days to form. 

The State presented evidence and testimony that Chubbie’s injuries, regardless of 

their source, had not been treated; that Chubbie had not stood up in at least two days; 

that there was no sign of food or water in the room where Chubbie was found; and 

that Chubbie was completely emaciated. The facts in this case clearly support 

instructing the jury on Kervin’s failure to act. See Hooper v. State, 703 So. 2d 1143, 

1148 (Fla. 4th DCA 1997) (Farmer, J., concurring in the result) (stating that the 

“formulaic” jury instructions may and should be varied to suit the particular facts 

and circumstances).

Finally, the 2014 instruction was necessary to allow the jury to resolve all

issues in this case. The instruction requested by Kervin reflected the version of the 

statute in effect in 2012, but read as a whole, it did not fairly present the law in light 

of Brown’s analysis of Florida case law concerning section 828.12(2). 166 So. 3d 

at 818-20. In fact, absent the inclusion of the “failure to act” language, the jury may 

have been misled as to the actual meaning of the statute. The 2014 version of the 

standard jury instruction properly instructed the jury and was the correct statement 

of law based on precedent and the facts and circumstances presented in the case.
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Accordingly, we AFFIRM the trial court’s decision to use the 2014 revised 

standard jury instruction rather than the 2012 standard instruction.

MAKAR and BILBREY, JJ., CONCUR.