       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                             JAMES AMELIO,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D17-3325

                             [August 15, 2018]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Dennis D. Bailey, Judge; L.T. Case No. 15-10251CF10A.

  Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers,
Assistant Attorney General, West Palm Beach, for appellee.

KUNTZ, J.

   The Defendant appeals his conviction for one count of sexual battery
under specified circumstances under paragraphs (b) and (e) of section
794.011(4), Florida Statutes (2015). The Defendant raises several issues
on appeal, and we affirm without comment on all but one. The Defendant
argues the court erred when it instructed the jury on the victim’s mental
incapacity. We agree and reverse.

    Florida Standard Jury Instruction (Criminal) 11.3, titled “Sexual
Battery—Under Specified Circumstances,” enumerates five elements that
the State must prove beyond a reasonable doubt.                The standard
instruction also lists additional definitions and points of law that are read
to the jury “if applicable.”

    During trial, the Defendant’s counsel objected to the court giving one
of the “if applicable” instructions. The challenged instruction references
section 794.022(4), Florida Statutes, and states: “Evidence of (victim’s)
mental incapacity or defect, if any, may be considered in determining
whether there was an intelligent, knowing, and voluntary consent.” Id.
   The court overruled the Defendant’s objection and included the
optional mental incapacity portion of the instruction. The court explained
that “the case law is if there is an allegation of consent, [evidence of the
Victim’s mental incapacity] is applicable” and “[i]f you raise the issue of
consent, mental incapacity becomes relevant.”

   But consent is an element of the crime. The third element of the
charged crime, sexual battery—under specified circumstances, requires
the State to prove beyond a reasonable doubt that the “[d]efendant’s act
was committed without the consent of the victim.” Fla. Std. Jury Instr.
(Crim.) 11.3. So consent is an issue in every sexual battery case, and one
that the State bears the burden of proving beyond a reasonable doubt. If
the mental incapacity portion of the instruction is read in every case when
consent is an issue, then the mental incapacity instruction would always
be read. And the “if applicable” instruction would be mandatory, not
optional.

    Turning to the appropriateness of reading the instruction, the language
of the statute and instruction shows it was not applicable. The optional
portion of the instruction applies when the victim was mentally
incapacitated. A statutory definition for “mentally incapacitated” is
another optional instruction. The definition directly follows the optional
portion of the instruction at issue, and provides that mental incapacity
includes intoxication without consent:

      § 794.011(1)(c), Fla. Stat.

      “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.

Fla. Std. Jury Instr. (Crim.) 11.3. This definition unambiguously requires
that the person’s inability to appraise or control his or her conduct must
be due to an act without his or her consent. It does not apply to voluntary
intoxication.

   The State’s response to the Defendant’s argument is simple. The State
argues the court correctly read the instruction based on section
794.022(4), Florida Statutes (2015). That section provides that “[w]hen
consent of the victim is a defense to prosecution under s. 787.06, s.

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794.011, or s. 800.04, evidence of the victim’s mental incapacity or defect
is admissible to prove that the consent was not intelligent, knowing, or
voluntary; and the court shall instruct the jury accordingly.” Id. The State
argues: “[b]ased on [section 794.022(4)] and the fact that consent was the
defense asserted, the instruction at issue must be read. The trial judge
correctly read the portion of the standard instruction.”

    Section 794.022 is an evidentiary statute. The statute allows the State
to introduce “evidence of the victim’s mental incapacity or defect” in order
“to prove that the consent was not intelligent, knowing, or voluntary.” Id.
If the State does so, the statute provides that the court “shall instruct the
jury accordingly.” Id.

   Here, the State did not do so. It was uncontroverted that the victim
was voluntarily intoxicated. At trial, the victim testified that she drank
multiple alcoholic drinks at different establishments. She did not state
that she consumed any of the drinks against her will. The State did not
introduce evidence of her mental incapacity as that term is defined in the
statute. So the related instruction was not appropriate.

   Even if we interpreted the statute as requiring the court to read the
optional mental incapacity portion of the instruction in any case when
consent (an element of the crime) was an issue, we would still be compelled
to reverse. As noted above, immediately following the optional mental
incapacity portion of the instruction is a statutory definition of mental
incapacity. If the jury was entitled to hear the optional mental incapacity
portion of the instruction, then the jury was also entitled to hear the
statutory definition of mental incapacity.

   In conclusion, the legislature defines mental incapacity in the sexual
battery statute to include involuntary, and not voluntary, intoxication. §
794.011(1)(c), Fla. Stat.; see also Coley v. State, 616 So. 2d 1017, 1022-
23 (Fla. 3d DCA 1993) (“[T]he Florida sexual battery statute does not place
voluntary drug or alcohol consumption on the same footing as involuntary
consumption; if they were to be treated as equivalent, the statute would
say so.”). At trial, the State presented no evidence of involuntary
intoxication. Thus, the State was not entitled to have the voluntary mental
incapacity portion of the instruction read to the jury. We reverse the
Defendant’s conviction and remand for a new trial.

   Reversed and remanded.

MAY and CIKLIN, JJ., concur.


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Not final until disposition of timely filed motion for rehearing.




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