          Supreme Court of Florida
                                   ____________

                                   No. SC14-465
                                   ____________


                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 Committee 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
Person in Familial or Custodial Authority; and (6) 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.

      The Committee previously proposed amendments to Criminal Jury

Instruction 11.1. The Court declined to authorize the proposed changes 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 with 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 instruction 11.1 but also instructions

11.2–11.6. All 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




                                        -2-
deleted from the instructions. The tables of lesser-included offenses are revised for

technical correctness and consistency.

      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 language 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 to 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 instructions 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 authorizing the instruction.

                                         -3-
NOT FINAL UNTIL 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, Tallahassee, Florida,

      for Petitioner




                                       -4-
                                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 (victim) 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 battery.

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




                                     -5-
      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. 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.

                            Lesser-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  794.011(8)(c) 11.5
                 familial authority
                 Attempt                    777.04(1)     5.1
                 Assault Aggravated battery 784.011       8.18.4
                                            784.045(1)(a)
                 Felony Battery             784.041(1)    8.5
                 Aggravated assault         784.021(1)(a) 8.2
                 Aggravated battery Assault 784.045(1)(a) 8.4 8.1
                                            784.011


                                        -6-
                                  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 2015.

          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.    (Victim) 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).




                                     -7-
      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 renders that person temporarily or permanently incapable of
appraising the nature 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 great 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.

                                        -8-
       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 — 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  800.04(4)     11.10 or
                  battery                           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 2015.

 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.    (Victim) 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)]

                                      -9-
          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
          administering 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 reasonably believe that
          (defendant) was in a position of control or authority as an
          agent or employee of government.]

                             - 10 -
      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 renders 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.




                                      - 11 -
      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 800.04(4)     11.10 or
                   battery                          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

                                      Comments

       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 2015.


                                          - 12 -
  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
                  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.    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.

                                     - 13 -
      “Mentally 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 2015.




                                        - 14 -
    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 elements 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 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.



                                       - 15 -
      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

      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 2015.

 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 must 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:




                                         - 16 -
            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 AGE 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 800.04(4)  11.10 or
                  battery                       11.10(a)
                  Battery            784.03     8.3



                                        - 17 -
                                  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
2015.




                                    - 18 -
