       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                        BRYANT DANIEL NEAL,
                             Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D13-3403

                              [June 3, 2015]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Charles E. Burton, Judge; L.T. Case No. 2013CF003304
AMB.

   Carey Haughwout, Public Defender, and Jeffrey L. Anderson,
Assistant Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel,
Assistant Attorney General, West Palm Beach, for appellee.

KLINGENSMITH, J.

    Bryant Daniel Neal (“appellant”) appeals the final order of the trial
court finding him guilty of two counts of battery on a law enforcement
officer and one count of resisting arrest with violence following a jury
trial. Before deliberations, the jury was provided with a written set of
jury instructions that included an instruction on the justifiable use of
non-deadly force. Appellant asserts it was fundamental error to include
the word “injury” in the jury instruction for justifiable non-deadly force.
Additionally, appellant claims that offsetting the phrase “including deadly
force” with commas in the written jury instructions also constituted
fundamental error. We disagree with appellant on both of these issues
under the facts of this case, and affirm the trial court. We also find
appellant’s remaining issue on appeal to be without merit.

   Officers Yermanos and Negron arrived at appellant’s address in
response to a missing persons report regarding appellant’s wife.
According to the testimony of Officer Yermanos, appellant appeared
aggravated while they were questioning him. When appellant began
yelling and started to approach Yermanos, appellant was asked to calm
down. Yermanos testified that he placed his hand on appellant’s chest to
create more distance between them whereupon appellant responded by
slapping Yermanos’s hand out of the way, striking the officer in the face
and poking him in the eye. An altercation involving both officers quickly
ensued, and after a third police officer arrived on the scene, appellant
was eventually subdued.

    Appellant took the stand in his own defense and described a much
different version of events. He claimed that the officers did not appear to
take his complaints seriously, and when appellant voiced his
displeasure, Yermanos said to him, “Stop yelling at me or else I’m going
to swing on you.” Appellant then replied, “I would like to see (you) try,”
at which point Yermanos swung at him and grazed his face. Appellant
said he then grabbed Yermanos’s shoulders, and was in turn grabbed by
Negron, then repeatedly punched by Yermanos. Appellant’s theory of
defense was that he acted in lawful self-defense in response to the
officer’s actions.

   Both appellant and the State agreed to a jury instruction for the
justifiable use of non-deadly force before it was read to the jury, and a
printed copy was also provided to the jurors during their deliberation.
This instruction stated the following:

           3.6(g) JUSTIFIABLE USE OF NON-DEADLY FORCE

          An issue in this case is whether the defendant acted in
      self-defense. It is a defense to the offense with which Bryant
      Neal is charged if the injury to CARLOS YERMANOS or
      JERRELL NEGRON resulted from the justifiable use of non-
      deadly force.

         “Non-deadly” force means force not likely to cause death
      or great bodily harm.

         BRYANT NEAL would be justified in using non-deadly
      force against CARLOS YERMANOS or JERRELL NEGRON if
      the following two facts are proved:

         1. BRYANT NEAL must have reasonably believed that
            such conduct was necessary to defend himself against
            CARLOS YERMANOS’ or JERRELL NEGRON’S
            imminent use of unlawful force against the defendant.


                                    2
         2. The use of unlawful force by CARLOS YERMANOS or
            JERRELL NEGRON must have appeared to BRYANT
            NEAL to be ready to take place.

         If the defendant was not engaged in an unlawful activity
      and was attacked in any place where he had a right to be, he
      had no duty to retreat and had the right to stand his ground
      and meet force with force, including deadly force, if he
      reasonably believed that it was necessary to do so to prevent
      death or great bodily harm to himself or to prevent the
      commission of a forcible felony.

         As used with regard to self defense,

         A person does not have a duty to retreat if the person is
      in a place where he has a right to be.

          A person is not justified in using force to resist an arrest
      by a law enforcement officer, or to resist a law enforcement
      officer who is engaged in the execution of a legal duty, if the
      law enforcement officer was acting in good faith and he or
      she is known, or reasonably appears, to be a law
      enforcement officer.

         However, if an officer uses excessive force to make an
      arrest, then a person is justified in the use of reasonable
      force to defend himself, but only to the extent he reasonably
      believes such force is necessary.

         In deciding whether the defendant was justified in the use
      of non-deadly force, you must judge him by the
      circumstances by which he was surrounded at the time the
      force was used. The danger facing the defendant need not
      have been actual; however, to justify the use of non-deadly
      force, the appearance of danger must have been so real that
      a reasonably cautious and prudent person under the same
      circumstances would have believed that the danger could be
      avoided only through the use of that force. Based upon
      appearances, the defendant must have actually believed that
      the danger was real.

Fla. Std. Jury Instr. (Crim.) 3.6(g) (emphasis added). Since appellant did
not object to the jury instructions at the time of trial, we review both
issues for whether the error was fundamental. Bassallo v. State, 46 So.

                                     3
3d 1205, 1209 (Fla. 4th DCA 2010) (“‘Issues pertaining to jury
instructions are not preserved for appellate review unless a specific
objection has been voiced at trial,’ . . ., and absent an objection at trial,
can be raised on appeal only if fundamental error occurred.” (quoting
Lawrence v. State, 831 So. 2d 121, 137 (Fla. 2002))). We address both of
appellant’s arguments in turn.

   a. Reference to Injury

    The first alleged error involves the reference to an “injury,” which
appears in the section of the jury instructions that states: “An issue in
this case is whether the defendant acted in self-defense. It is a defense
to the offense with which Bryant Neal is charged if the injury to CARLOS
YERMANOS or JERRELL NEGRON resulted from the justifiable use of
non-deadly force.” (emphasis added). Appellant contends that it was
fundamental error to include any reference to an “injury” in these
instructions because none of the officers were injured.

    This court has previously considered the same challenge to an
identical set of jury instructions given in a similar case. In Brown v.
State, 59 So. 3d 1217, 1218 (Fla. 4th DCA 2011), as in this case, the
defendant was charged with and convicted of battery upon a police
officer. At trial, the defendant’s sole defense to this crime was self-
defense. Brown, 59 So. 3d at 1218. There, we stated:

          On appeal, appellant maintains that the standard jury
      instruction on self-defense is fundamentally flawed, because
      it erroneously indicates that an injury to the victim is
      required before a jury may find that a defendant acted in
      self-defense. Recently, in Bassallo . . . , we decided this very
      issue and held that the trial court fundamentally errs in
      giving the standard jury instruction on self-defense, which
      included the word “injury,” where injury was not an element
      of the crime and the state presented no evidence of injury to
      the victim. In that case, as in this one, the prosecutor also
      used the “no injury” response to the claim of self-defense in
      closing argument. Bassallo concluded that the error in the
      instruction was fundamental error, because it negated the
      defendant’s sole defense to the crime charged. Id. at 1211
      (citing Martinez v. State, 933 So. 2d 1155, 1166 (Fla. 3d DCA
      2006)). Just as in Bassallo, injury was not an essential
      element of any of the crimes, and there was no evidence of
      injury to the deputy. Because the jury instruction on self-
      defense indicated that the defense applied only if the victim

                                     4
       suffered an “injury,” and the state argued that the
       instruction did not apply because no injury occurred to the
       victim, fundamental error occurred in the instruction on self-
       defense, negating appellant’s sole defense.

          Because of the error, we reverse for a new trial on battery
       on a law enforcement officer.

Id. at 1219.

    As we stated in Brown, the crime of battery upon a law enforcement
officer does not require proof of injury. Id.; see also § 784.07(2), Fla.
Stat. (2013). In contrast to what occurred in Brown and Bassallo, the
State presented evidence in the instant case that Yermanos was injured,
both through his testimony and other evidence. Further, the prosecutor
did not use the “no injury” response during closing argument to negate
appellant’s claim of self-defense. Therefore, including the reference to an
“injury” did not rise to the level of fundamental error.1 Bassallo, 46 So.
3d at 1209 (quoting Lawrence, 831 So. 2d at 137).

    b. Offsetting the Phrase “Including Deadly Force”

    To determine whether a jury instruction deprived the defendant of a
fair trial, a court should conduct a “totality of the circumstances
analysis.” See Croom v. State, 36 So. 3d 707, 709 (Fla. 1st DCA 2010).
“[I]f the totality of the circumstances indicates there is no reasonable
possibility an alleged jury instruction error contributed to the verdict, the
error is not fundamental.” Id. “In considering the effect of an erroneous
instruction under the fundamental error analysis, the court reviews the
instruction in the context of the other instructions given, the evidence
adduced in the case, and the arguments and trial strategies of counsel.”
Sims v. State, 140 So. 3d 1000, 1004 (Fla. 1st DCA 2014).

   Appellant argues that offsetting the phrase “including deadly force”
with commas in the jury instructions was fundamental error, because it
served to destroy his sole defense of self-defense. Two of our sister
courts have considered the same challenge to this language contained in
the jury instruction at issue here, specifically the Second District in
Talley v. State, 106 So. 3d 1015 (Fla. 2d DCA 2013), and the First

1 We wish to clarify that the reference to “injury” in the standard jury
instructions for justifiable use of non-deadly force is not itself an inherent error,
as the defense of self-defense may be utilized in cases where the crime charged
does require proof of injury.

                                         5
District in Sims. For the reasons stated below, we believe this case more
closely resembles Sims, and we therefore disagree with appellant on this
issue as well.

    In Talley, the defendant was charged with aggravated battery (great
bodily harm) and battery (domestic violence), and his sole defense was
that “the alleged victim . . . had attacked him with nondeadly force and
thus [the defendant] was justified in using nondeadly force in self defense
[sic].” 106 So. 3d at 1016. The defendant was convicted of felony
battery, a lesser-included offense. Id. at 1017. There, the trial court
read the same jury instructions as used in this case. Id. at 1016-17.
The relevant portion of those instructions is as follows:

         If the defendant was not engaged in an unlawful activity
      and was attacked in any place where he had a right to be, he
      had no duty to retreat and had the right to stand his ground
      and meet force with force, including deadly force, if he
      reasonably believed that it was necessary to do so to prevent
      death or great bodily harm to himself or to prevent the
      commission of a forcible felony.

Id. at 1016. The defendant in Talley argued on appeal that the jury
instructions as given were “fundamentally erroneous because they were
misleading and eviscerated [the defendant’s] only defense.” Id. at 1017.
Additionally, the defendant “point[ed] out that there is a comma after the
phrase ‘including deadly force’ in the standard jury instruction . . . but
not in the statutory section upon which the instruction is based.” Id.

   The Second District agreed, and stated:

      Section 776.013, Florida Statutes (2012), provides as follows:

         (3) A person who is not engaged in an unlawful activity
         and who is attacked in any other place where he or
         she has a right to be has no duty to retreat and has
         the right to stand his or her ground and meet force
         with force, including deadly force if he or she
         reasonably believes it is necessary to do so to prevent
         death or great bodily harm to himself or herself or
         another or to prevent the commission of a forcible
         felony.




                                    6
(Emphasis added.) The standard jury instruction given in
this case follows the language of this statutory section but,
as noted previously, sets off the phrase “including deadly
force” with an additional comma. See Fla. Std. Jury Ins[t]r.
(Crim.) 3.6(g). This additional comma is erroneous because
under the rules of grammatical construction it makes the
phrase “including deadly force” a nonessential part of the
sentence and thus changes the meaning by indicating that a
defendant has no duty to retreat and has the right to stand
his ground and meet force with force only if he reasonably
believed that it was necessary to do so to prevent death or
great bodily harm to himself or to prevent the commission of
a forcible felony. See Kasischke v. State, 991 So. 2d 803,
812 (Fla. 2008) (explaining that phrases set off by commas
“are parenthetical, meaning that the sentence can stand
alone without them. When an expression is essential to the
sentence, however, it is not separated with commas.”). In
other words, the erroneous comma eliminated Talley’s sole
defense by suggesting that Talley had no right to defend
himself with any force whatsoever unless Mullendore
threatened him with deadly force.        Even if Mullendore
attacked Talley with nondeadly force, Talley would have the
duty to retreat according to this erroneous instruction.

   The State further misled the jury by relying on the
erroneous instruction in closing argument: “Even if you
believe the fish tale that John Mullendore was coming at
[Talley], where was the great bodily harm or death that he
was going to suffer? It didn’t happen. Or commission of a
forcible felony, that wasn’t provided to you either.” If the
State had not highlighted the erroneous instruction, this error
may have been harmless.

   But as this court stated in Carter v. State, where

   a trial judge gives an instruction that is an incorrect
   statement of the law and necessarily misleading to the
   jury, and the effect of that instruction is to negate the
   defendant’s only defense, it is fundamental error and
   highly prejudicial to the defendant. Failure to give a
   complete and accurate instruction is fundamental
   error, reviewable in the complete absence of a request
   or objection.


                              7
      469 So. 2d 194, 196 (Fla. 2d DCA 1985). Further, “ ‘[w]hen
      jurors are faced with both correct and erroneous instructions
      as to the applicable legal rules, there is no reason to believe
      that they are likely to intuit which is the correct one and
      which is the erroneous one.’ ” Fields v. State, 988 So. 2d
      1185, 1189 (Fla. 5th DCA 2008) (quoting Murray v. State,
      937 So. 2d 277, 280 (Fla. 4th DCA 2006)).

         Here, the justifiable use of nondeadly force was Talley’s
      only defense and any confusion caused by the instruction
      may have deprived Talley of a fair trial because his defense
      was plausible. Compare Martinez v. State, 981 So. 2d 449,
      455–56 (Fla. 2008) (holding that the erroneous instruction
      on the defendant’s affirmative defense did not deprive him of
      a fair trial where he pursued multiple defenses and the one
      which received the erroneous instruction was extremely
      weak) with Fields, 988 So. 2d at 1190 (holding that the
      erroneous instruction on the defendant’s sole affirmative
      defense deprived him of a fair trial where the defense was
      plausible). This case came down to a credibility call between
      Talley and the victim. If the instruction misled the jury, the
      jury could have believed Talley’s version of events and still
      found him guilty. Accordingly, we reverse and remand for a
      new trial.

Id. at 1017-18 (emphasis added) (footnote omitted).

   In Sims, the First District reviewed the decision in Talley and agreed
with its reasoning concerning these jury instructions. See Sims, 140 So.
3d at 1004-05 (footnote omitted) (“[T]he standard jury instruction for
justifiable use of non-deadly force is grammatically flawed and . . . the
extra comma erroneously narrows the scope of the defense.”). The court
further noted:

      The problem with the instruction is not as much with the
      extra comma as it is with the inclusion of the language after
      the first comma, which pertains only to the use of deadly
      force and has no place in the instruction on justifiable use of
      non-deadly force. Where, as here, the defendant is only
      asserting the defense of justifiable use of non-deadly force,
      the instruction might be better stated by substituting a
      period for the first comma and omitting the remainder of the
      language: “A person who is not engaged in an unlawful
      activity and who is in a place where he or she has a right to

                                    8
      be has no duty to retreat and has the right to meet force with
      force.”

Id. at 1005 n.7.

   However, the First District found there was no fundamental error in
that case for several reasons, most notably because the State did not rely
on the erroneous instruction in its closing argument, and because the
defendant agreed to the standard instruction on the justifiable use of
force as read to the jury:

          Second, unlike Talley, the prosecutor in this case did not
      rely on the erroneous instruction in closing argument. The
      prosecutor merely argued the facts in evidence and
      encouraged the jury to find Appellant's testimony unreliable.
      Cf. Talley, 106 So. 3d at 1017 (suggesting that the error in
      the instructions “may have been harmless” if the prosecutor
      had not highlighted the error in closing argument); see also
      [Rangel v. State, 123 So. 3d 844 (Fla. 2d DCA 2013)]
      (rejecting claim of fundamental error based upon the same
      extra comma in the standard instruction for the justifiable
      use of deadly force and noting that the prosecutor’s closing
      argument on the issue was merely a comment on the
      evidence); [Bradley v. State, 127 So. 3d 806 (Fla. 2d DCA
      2013)] (distinguishing Talley where the prosecutor provided
      a correct explanation of the law of self-defense in closing
      arguments).

         Third, Appellant agreed to the standard instruction on the
      justifiable use of non-deadly force as read to the jury.
      Although that does not necessarily foreclose a claim of
      fundamental error, see Moore v. State, 114 So. 3d 486, 493
      (Fla. 1st DCA 2013), this court has explained that:

         where defense counsel agrees to a standard jury
         instruction and then challenges the conviction based
         upon fundamental error in that instruction, reversal
         would have the unintended consequence of
         encouraging defense counsel to ‘stand mute and, if
         necessary, agree to an erroneous instruction’ or
         sacrifice his client’s opportunity for a second trial.




                                    9
      Joyner v. State, 41 So. 3d 306, 307 (Fla. 1st DCA 2010)
      (quoting Calloway v. State, 37 So. 3d 891 (Fla. 1st DCA
      2010)).

Id. at 1006.

   Both of these factors are also present in the case at bar, thereby
making this case more closely analogous to the facts in Sims than to
Talley. As such, we affirm the judgment and sentence of the trial court,
finding that the closing paragraph of Sims applies to this case with equal
force:

         In sum, for the reasons stated above, although we agree
      with Appellant that a portion of the instruction on justifiable
      use of non-deadly force given in this case was grammatically
      flawed, we are not persuaded that the error in the
      instruction negated Appellant’s claim of self-defense or was
      so flawed that it deprived Appellant of a fair trial.

Id. at 1006-07.

    Accordingly, we reject appellant’s claim of fundamental error and
affirm his judgment and sentence.

   Affirmed.

DAMOORGIAN, C.J., and TAYLOR, J., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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