# Supreme Court of Florida

____________

No. SC14

- 465

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IN RE: STANDARD JURY INSTRUCTIONS

IN CRIMINAL CASES

— REPORT NO. 2014

- 03.

[January 29, 2015]

PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal

Cases (Committee) has submitted a report proposing changes to the standard

criminal jury instructions and asks the Court to authorize the amended standard

instructions for publication and use. We have jurisdiction. See art. V, § 2(a), Fla.

Const.

The Committe e proposes changes to the following six standard criminal jury

instructions: (1) 11.1, Sexual Battery

– Victim Less Than 12 Years of Age; (2) 11.2,

Sexual Battery

– Victim 12 Years of Age or Older

– Great Force; (3) 11.3, Sexual

Battery

– Victim 12 Years of Age or Older

– Specified Circumstances; (4) 11.4,

Sexual Battery

– Person 12 Years of Age or Older; (5) 11.5, Solicitation of Child

Under 18 Years of Age to Engage in an Act that Constitutes Sexual Battery by- 2

-

Person in Familial or Custodial Authority; and (6) 11.6, Sexual Battery Upon Child

12 Year s of Age or Older but Under 18 Y ears of Age by Person in Familial or

Custodial Authority.

The Committee previously proposed amendments to Criminal Jury

Instruction 11.1. The Court declined to authorize the proposed change s due to a

lack of supporting legal authority for certain proposed changes and a perceived

logical inconsistency in the table of lesser

- included offenses. See In re Std. Jury

Instrs. in Crim. Cases

— Report No. 2012

- 05 , 131 So. 3d 755, 756 (Fla. 2013). We

asked the Committee to reconsider its proposal . The current report provides the

legal support previously found lacking and clarifies the Committee’s reasoning

with respect to the table of lesser

- included offenses. After the Committee’s report

was filed w ith the Court, the proposed changes were published in The Florida Bar

News and comments were solicited. No comments were filed.

In reconsidering its proposed changes to instruction 11.1, the Committee

discovered additional issues affecting not only instru ction 11.1 but also instructions

11.2

– 11.6. A ll six instructions are amended in order to include all the possible

ways the various offenses can be committed based on the statutory language

defining the offenses. Other changes are made to conform the instructions and

notes to the statutory language and caselaw. Obsolete notes and comments are- 3

-

deleted from the instructions. The tables of lesser

- included offenses are revised for

technical correctness and consistenc y.

Upon consideration of the Committee’s report, we authorize the amended

instructions

, as set forth in the appendix to this opinion, for publication and use

. 1

New langu age is indicated by underlining, and deleted language is indicated by

struck

- through type.

In authorizing the publication and use of these instructions, we express no

opinion on their correctness and remind all interested parties that this authorization

forecloses neither requesting additional or alternative instructions nor contesting

the legal correctness of the instructions. We further caution all interested parties

that any comments associated with the instructions reflect only the opinion of the

Committee and are not necessarily indicative of the views of this Court as t o their

correctness or applicability. The instructions as set forth in the appendix shall be

effective when this opinion becomes final.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,

and PERRY, JJ., concur.

1

. The amendments as reflected in the appendix are to the Criminal Jury

Instructions as they appear on the Court’s website at www.floridasupremecourt.org

/jury_instructions/instructions.shtml. We recognize that there may be minor

discrepancies between the inst ructions as they appear on the website and the

published versions of the instructions. Any discrepancies as to instructions

authorized for publication and use after October 25, 2007, should be resolved by

reference to the published opinion of this Court a uthorizing the instruction.- 4

-

NOT FINAL UNT IL TIME EXPIRES TO FILE REHEARING MOTION, AND

IF FILED, DETERMINED.

Original Proceedings

– Supreme Court Committee on Standard Jury Instructions in

Criminal Cases

Judge Jerri Lynn Collins, Chair, Supreme Court Committee on Standard Jury

Instructions in Criminal Cases, Sanford, Florida ; Judge Joseph Anthony Bulone,

Past Chair, Supreme Court Committee on Standard Jury Instructions in Criminal

Cases, Clearwater, Florida; and Bart Neil Schneider, Staff Liaison, Office of the

State Courts Administrator, Talla hassee, Florida,

for Petitioner- 5

- APPENDIX

11.1 SEXUAL BATTERY

— VICTIM LESS THAN 12 YEARS OF AGE

§ 794.011(2), Fla. Stat.

To prove the crime of Sexual Battery upon a Person Less Than 12 Years

of Age, the State must prove the following three elements beyond a reasonable

doubt:

1. (Victim) was less than 12 years of age.

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

2. a. (Defendant) 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. (Defendant) committed an act [ upon ] [with] (victim) in

which the [anus] [vagina] of [ (victim) ] [ (defendant) ] was penetrated by an object.

c. (Defendant) injured the sexual organ of (v ictim) in an

attempt to commit an act [upon] [with] (victim) in which the

sexual organ of the [ (defendant) ] [ (victim) ] would have

penetrated or would have had union with the [anus]

[vagina] [mouth] of the [ (victim) ] [ (defendant) ].

d. (Defendant) injured the sexual organ of (victim) in an

attempt to commit an act upon (victim) in which the [anus]

[vagina] of (victim) would be penetrated by an object.

Give 3a or 3b as applicable

. 3. a. (Defendant) was 18 years of age or older at the time of the

sexual bat tery.

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

sexual battery.- 6

-

Give if applicable.

However, any act done for bona fide medical purposes is not a sexual

battery.

Definition . G ive if applicable.

“Union” means contact.

Give if requested. Khianthalat v. State, 974 So. 2d 359 (Fla. 2008).

Consent of (victim) is not a defense to the crime charged.

Give if requested. § 794.022

, Fla. Stat.

(Victim’s) lack of chastity is not a defense to the crime charged.

§ 794.021

, Fla. Stat.

Ignorance of (victim’s) age, (victim’s) misrepresentation of his or her

age, or a defendant’s bona fide belief of (victim’s) age is not a defense to the

crime charged.

In the event that multiple perpetrators is charged and proven, give

instruction on enhancement.

§ 794.023, Fla. Stat.

The option of the word “[with] (victim)” in 2a and 2c is provided to reflect

the manner in which the crime was committed. See Coleman v. State, 484 So.2d

624 (Fla. 1st DCA 1986), at pages 627, 628.

Le sser

- Included Offenses

SEXUAL BATTERY

— VICTIM UNDER 12

— 794.011(2)(a)

– (b)

CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.

Battery 784.03 (1)(a)1 8.3

Solicitation by person in

familial authority 794.011(8)(c) 11.5

Attempt 777.04(1) 5.1

Assault Aggravated battery 784.011

784.045(1)(a) 8.1 8.4

Felony Battery 784.041(1) 8.5

Aggravated assault 784.021(1)(a) 8.2

Aggravated battery Assault 784.045(1)(a)

784.011 8.4 8.1- 7

- Comment

This instruction was adopted in 1981 and was amended in 1987 [508 So. 2d

1221], 1995 [657 So. 2d 1152], and 2007 , by adding 3(a) and 3(b) pursuant to

Glover v. State

, [ 863 So. 2d 236 ], (Fla. 2003) and 201 5

.

11.2 SEXUAL BATTERY

— VICTIM 12 YEARS OF

AGE OR OLDER

— GREAT FORCE OR DEADLY WEAPON

§ 794.011(3), Fla. Stat.

To prove the crime of Sexual Battery upon a Person 12 Years of Age or

Older with the Use of [ a Deadly Weapon ] [ or ] [ Physical Force Likely to Cause

Serious Personal Injury] , the State must prove the following four elements

beyond a reasonable doubt:

1. (Victi m) was 12 years of age or older.

2. a. [ (Defendant) 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. (Defendant) committed an act [ upon ] [with] (victim) in

which the [anus] [vagina] of [ (victim) ] [ (defendant) ] was penetrated by an object.

3. (Defendant) in the process

a. [used or threatened to use a deadly weapon].

b. [used actual physical force likely to cause serious personal

injury].

4. The act was done without the consent of (victim)

.- 8

-

Definitions.

Give in all cases.

“Consent” means intelligent, knowing, and voluntary consent and does

not include coerced submission. Consent does not mean the failure by the

alleged victim to offer physical resistance to the offender.

Give if applicable.

Evidence of the victim’s mental incapacity or defect, if any, may be

considered in determining whether there was an intelligent, knowing, and

voluntary c onsent.

“Mentally incapacitated” means that a person is rendered temporarily

incapable of appraising or controlling his or her conduct due to the influence

of a narcotic, anesthetic, or intoxicating substance administered to that person

without his or he r consent, or due to any other act committed upon that

person without his or her consent.

“Mentally defective” means that a person suffers from a mental disease

or defect that renders that person temporarily or permanently incapable of

appraising the nat ure of his or her conduct.

“Union” means contact.

Give if 3a alleged.

A weapon is a “deadly weapon” if it is used or threatened to be used in a

way likely to produce death or great bodily harm.

Give if 3b alleged.

“Serious personal injury” means gr eat bodily harm or pain, permanent

disability, or permanent disfigurement.

Give if applicable.

However, any act done for bona fide medical purposes is not a sexual

battery.

Give if requested. § 794.022

, Fla. Stat.

(Victim’s) lack of chastity is not a defense to the crime charged.

In the event that multiple perpetrators is charged and proven, give

instruction on enhancement. § 794.023, Fla. Stat.- 9

-

The option of the word “

[with] (victim)” in 2a is provided to reflect the

manner in which the crime was committed. See Coleman v. State , 484 So. 2d 624

(Fla. 1st DCA 1986), at pages 627, 628.

Lesser

- Included Offenses

SEXUAL BATTERY

— V ICTIM OVER 12

— WEAPON OR

FORCE

— 794.011(3)

CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.

Sexual battery 794.011(5) 11.4

Battery 784.03 (1)(a)1 8.3

Sexual battery 794.011(4) 11.3

Attempt 777.04(1) 5.1

Lewd or lascivious

battery 800.04(4) 11.10 or 11.10(a)

Aggravated battery 784.045(1)(a) 8.4

Felony battery 784.041(1) 8.5

Aggravated assault 784.021(1)(a) 8.2

Assault 784.011 8.1

Comment

This instruction was adopted in 1981 and was amended in 1987 [ 508 So. 2d

1221] , 1995 [ 657 So. 2d 1152] , 2003 [ 850 So. 2d 1272]

, and 2008 [995 So. 2d

476], and 201 5

.

11.3 SEXUAL BATTERY

— VICTIM 12 YEARS OF AGE OR OLDER

—

SPECIFIED CIRCUMSTANCES

§ 794.011(4), Fla. Stat.

To prove the crime of Sexual Battery upon a Person 12 Years of Age or

Older under Specified Circumstances, the State must prove the following four

elements beyond a reasonable doubt:

1. (V ictim) was 12 years of age or older.

2. a. [ (Defendant) committed an act [upon] [with] (victim) in

which the sexual organ of the [ (defendant) ] [ (victim) ]- 10

- penetrated or had union with the [anus] [vagina] [mouth] of

the [ (victim) ] [ (defendant) ].]

b. (Defendant) committed an act [ upon ] [with] (victim) in

which the [anus] [vagina] of [ (victim) ] [ (defendant) ] was penetrated by an object.

3. a. [ (Victim) was physically helpless to resist.]

b. [ (Defendant) coerced (victim) to submit by threatening to use

force or violence likely to cause serious personal injury and

(victim) reasonably believed the (defendant) had the present

ability to execute the threat.]

c. [ (Defendant) coerced (victim) to submit by threat of

retaliation against (victim) or any other person and (victim)

reasonably believed that (defendant) had the ability to

execute the threat in the future.]

d. [ (Defendant) , without prior knowledge or consent of (victim)

, administered or had knowledge of someone else

adm inistering to (victim) a narcotic, anesthetic, or other

intoxicating substance that mentally or physically

incapacitated (victim) .]

e. [ (Victim) was mentally defective and (defendant) had reason

to believe this or had actual knowledge of that fact.]

f. [ (Victim) was physically incapacitated.]

g. [ (Defendant) was at the time a[n] (insert official title or

position) and was a[n] [certified [law enforcement officer]

[correctional officer] [correctional probation officer]]

[elected official exempt from certification] [person in a

position of control or authority in a probation, community

control, controlled release, detention, custodial, or similar

setting] and the [officer] [official] [person] was acting in

such a manner as to lead ( victim ) to reasonab ly believe that

( defendant ) was in a position of control or authority as an

agent or employee of government.]- 11

-

4. The act was committed without the consent of (victim)

.

Definitions.

Give in all cases.

“Consent” means intelligent, knowing, and voluntary consent and does

not include coerced submission. Consent does not mean the failure by the

alleged victim to offer physical resistance to the offender.

Give if applicable.

Evidence of the victim's mental incapacity or defect, if any, may be

considered in determining whether there was an intelligent, knowing, and

voluntary consent.

“Mentally incapacitated” means that a person is rendered temporarily

incapable of appraising or controlling his or her conduct due to the influence

of a narcotic, anesthetic , or intoxicating substance administered to that person

without his or her consent, or due to any other act committed upon that

person without his or her consent.

“Mentally defective” means that a person suffers from a mental disease

or defect that rende rs that person temporarily or permanently incapable of

appraising the nature of his or her conduct.

“Union” means contact.

Give if 3a alleged.

“Physically helpless” means that a person is unconscious, asleep, or for

any other reason physically unable to communicate unwillingness to act.

Give if 3b alleged.

“Serious personal injury” means great bodily harm or pain, permanent

disability, or permanent disfigurement.

Give if 3f alleged.

“Physically incapacitated” means that a person is bodily impaired or

handicapped and substantially limited in his or her ability to resist or flee an

act.- 12

-

Give if applicable.

However, any act done for bona fide medical purposes is not a sexual

battery.

Give if requested. § 794.022

, Fla. Stat.

(Victim’s) lack of chastity is not a defense to the crime charged.

In the event that multiple perpetrators is charged and proven, give

instruction on enhancement. § 794.023, Fla. Stat.

The option of the word “

[with] (victim)” in 2a is provided to reflect the

manner in which the crime was committed. See Coleman v. State , 484 So.2d 624

(Fla. 1st DCA 1986), at pages 627, 628.

Lesser

- Included Offenses

SEXUAL BATTERY

— VICTIM OVER 12

— SPECIAL SPECIFIED

CIRCUMSTANCES

— 794.011(4)

CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.

Sexual battery 794.011(5) 11.4

Battery 784.03 (1)(a)1 8.3

Lewd or lascivious

battery 800.04(4) 11.10 or 11.10(a)

Attempt 777.04(1) 5.1

Aggravated battery 784.045(1) 8.4

Felony battery 784.041(1) 8.5

Aggravated assault 784.021(1)(a) 8.2

Assault 784.011 8.1

Comment s

Element 3g: See s. 943.10(1), (2), (3), (6), (7), (8), (9) for the definition of a

law enforcement officer, correctional officer, or correctional probation officer who

must be either certified pursuant to s. 943.1395 or an elected officer exempt from

certification pursuant to s. 943.253.

This instruction was adopted in 1981 and was amended in 1987 [ 508 So. 2d

1221] , 1992 [ 603 So. 2d 1175], 1995 [ 657 So. 2d 1152] , 2003 [ 850 So. 2d 1272]

, and 2008 [995 So. 2d 476], and 201 5

.- 13

-

11.4 SEXUAL BATTERY

— PERSON 12 YEARS OF AGE OR OLDER

§ 794.011(5), Fla._Stat.

To prove the crime of Sexual Battery upon a Person 12 Years of Age or

Older, the State must prove the following three elements beyond a reasonable

doubt:

1. (Victim) was 12 years of age or older.

Give 2a or 2b as applicable.

2. a. [ (Defendant) committed an act [upon] [with] (victim) in

wh ich 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 [ upon ] [with] (victim) in

which the [anus] [vagina] of [ (victim) ] [ (defendant) ] was penetrated by an object.

3. The act was committed without the consent of (victim)

.

Definitions

Give in all cases.

“Consent” means intelligent, knowing, and voluntary consent and does

not include coerced submission. Consent does not mean the failure by the

alleged victim to offer physical resistance to the offender.

Give if applica ble.

Evidence of the victim’ s mental incapacity or defect, if any, may be

considered in determining whether there was an intelligent, knowing, and

voluntary consent.

“ Mentally incapacitated ” means that a person is rendered temporarily

incapable of appra ising or controlling his or her conduct due to the influence

of a narcotic, anesthetic, or intoxicating substance administered to that person

without his or her consent, or due to any other act committed upon that

person without his or her consent.- 14

-

“ Ment ally defective ” means that a person suffers from a mental disease

or defect that renders that person temporarily or permanently incapable of

appraising the nature of his or her conduct.

Give if applicable.

“ Union ” means contact.

Give if applicable.

However, any act done for bona fide medical purposes is not a sexual

battery.

Give if requested. § 794.022

, Fla. Stat.

(Victim’s) lack of chastity is not a defense to the crime charged.

In the event that multiple perpetrators is charged and proven, give instruction

on enhancement. § 794.023, Fla._Stat.

The option of the word "

[with] (victim)" in 2a is provided to reflect the manner

in which the crime was committed. See Coleman v. State, 484 So.2d 624 (Fla. 1st

DCA 1986), at pages 627, 628.

Lesser

- Included Offenses

SEXUAL BATTERY

— VICTIM OVER 12

— WITHOUT FORCE

— 794.011(5)

CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.

Battery 784.03 (1)(a)1 8.3

Attempt 777.04(1) 5.1

Assault 784.011 8.1

Comment

This instruction was adopted in 1981 and was amended in 1987 [508 So. 2d

1221] , 1995 [657 So. 2d 1152]

, and 2003 [850 So. 2d 1272], and 201 5

.- 15

-

11.5 SOLICITATION OF CHILD UNDER 18 YEARS OF AGE TO

ENGAGE IN AN ACT THAT CONSTITUTES SEXUAL BATTERY BY

PERSON IN FAMILIAL OR CUSTODIAL AUTHORITY

§ 794.011(8)(a), Fla._Stat.

To prove the crime of Solicitation of a Child to Engage in an Act that

Constitutes Sexual Battery by a Person in Familial or Custodial Authority, the

State must prove the following three elemen ts beyond a reasonable doubt:

1. (Victim) was less than 18 years of age.

2. (Defendant) stood in the position of familial or custodial authority

with regard to (victim)

.

3. (Defendant ) [commanded] [encouraged] [hired] [requested] [tried

to induce] (victim) to engage in an act which constitutes sexual

battery in which:

a. [the sexual organ of the [ (defendant) ] [ (victim) ] would penetrate or

have union with the [anus] [vagina] [mouth] of the [ (victim) ]

[ (defendant) ]].

b. [the [anus] [vagina] of [ (victim) ] [ (defendant) ] would be penetrated

by an object].

It is not necessary that a sexual battery actually take place for the crime

to be completed.

§ 794.011(8), Fla. Stat.

It is not a defense that (victim) was willing to engage in an act which

constitutes sexual batte ry or consented to engage in such acts.

Give if applicable.

However, any act done for bona fide medical purposes is not a sexual

battery.- 16

-

Definition. Give if applicable.

“ Union ” means contact.

Give if requested. § 794.022

, Fla. Stat.

(Victim’s) lack of chastity is not a defense to the crime charged.

§ 794.021

, Fla. Stat.

Ignorance of (victim’s) age, (victim’s) misrepresentation of his or her

age, or a defendant’s bona fide belief of (victim’s) age is not a defense to the

crime charged.

L esser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 1987 [508 So. 2d 1221] and was amended in

1995 [657 So. 2d 1152], and 1997 [697 So. 2d 84], and 201 5

.

11.6 SEXUAL BATTERY UPON CHILD 12 YEARS OF AGE OR OLDER

BUT UNDER 18 YEARS OF AGE BY PERSON IN FAMILIAL OR

CUSTODIAL AUTHORITY

§ 794.011(8)(b), Fla. Stat.

To prove the crime of Sexual Battery Upon a Child by a Person in a

Familial or Custodial Authority, the State m ust prove the following three

elements beyond a reasonable doubt:

1. (Victim) was 12 years of age or older but less than 18 years of age.

2. (Defendant) stood in the position of familial or custodial authority

with regard to (victim)

.

3. (Defendant) committed an act [ upon ] [with] (victim ) in which:- 17

- a. [the sexual organ of the [ (defendant) ] [ (victim) ] penetrated

or had union with the [anus] [vagina] [mouth] of the

[ (victim) ] [ (defendant) ]].

b. [the [anus] [vagina] of [ (victim ) ] [ (defendant) ] was

penetrated by an object].

§ 794.011(8), Fla. Stat.

It is not a defense that (victim) was willing to engage in acts which would

constitute a sexual battery or consented to engage in such acts.

Give if applicable.

However, any act done for bona fide medical purposes is not a sexual

battery.

Definition. Give if applicable.

“Union” means contact.

Give if requested. § 794.022

, Fla. Stat.

(Victim’s) lack of chastity is not a defense to the crime charged.

§ 794.021

, Fla. Stat.

Ignorance of (victim’s) age, (victim’s) misrepresentation of his or her

age, or a defendant’s bona fide belief of (victim’s) age is not a defense to the

crime charged.

Lesser

- Included Offenses

SEXUAL BATTERY UPON CHILD 12 YEARS OF AGE OR OLDER

BUT UNDER 18 YEARS OF A GE BY PERSON IN FAMILIAL OR

CUSTODIAL AUTHORITY

— 794.011(8)( b )

CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.

None

Attempt 777.04(1) 5.1

Lewd or lascivious

battery 800.04(4) 11.10 or 11.10(a)

Battery 784.03 8.3- 18

- Comment

This instruction was adopted 1987 [ 508 So. 2d 1221] and was amended in

1995 [ 657 So. 2d 1152] , 1997 [ 697 So.2d 84], and 2008 [995 So. 2d 476], and

201 5

.