        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                FOURTH DISTRICT

                              LISA ANN GRANT,
                                  Appellant,

                                        v.

                            STATE OF FLORIDA,
                                 Appellee.

                                No. 4D17-2167

                                [March 6, 2019]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Dennis Bailey, Judge; L.T. Case No. 14015163CF10A.

  Carey Haughwout, Public Defender, and Logan T. Mohs, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley B. Moody, Attorney General, Tallahassee, and Rachael Kaiman,
Assistant Attorney General, West Palm Beach, for appellee.

DAMOORGIAN, J.

    Lisa Ann Grant appeals her judgment and sentence for one count of
felony battery. Because the trial court committed fundamental error by
instructing the jury on the forcible-felony exception to the justifiable use
of force, we reverse. 1

   The victim in this case and Defendant’s adult son got into a physical
altercation after the victim witnessed what he perceived to be Defendant’s
son trying to break into the victim’s work trailer. During the course of the
altercation, the victim placed the son in a chokehold. Defendant then
intervened in the altercation and bit off a portion of the victim’s ear. Based
on the foregoing, the State charged the son with one count of attempted
burglary of a conveyance with battery and Defendant with one count of

1   In addition to raising issue with the jury instructions, Defendant also argues
that the court erred in denying her motion for judgment of acquittal and motion
for new trial based on prosecutorial misconduct; that defense counsel was
ineffective; and that the court erroneously assessed victim injury points on her
scoresheet. We affirm on these arguments without further comment.
aggravated battery. Notably, the State did not charge Defendant as a
principal for the attempted burglary.

    At trial, Defendant admitted to the battery but, as her sole affirmative
defense, argued that she was justified in using force to defend her son.
The court instructed the jury accordingly on both the justifiable use of
non-deadly force and deadly force in defense of another. The court also
gave the forcible-felony exception instruction and instructed the jury that
Defendant’s use of force was not justified if the jury found that Defendant’s
son was attempting to commit, committing, or escaping after the
commission of burglary of a conveyance. Defense counsel did not object
to this instruction. Defendant was ultimately found guilty of felony
battery, a lesser-included offense of aggravated battery, and sentenced to
five years in prison.

   On appeal, Defendant argues that the trial court erroneously instructed
the jury on the forcible-felony exception to the defense of another. This
Court generally reviews a trial court’s decision to give a jury instruction
for abuse of discretion. Gregory v. State, 141 So. 3d 651, 654 (Fla. 4th
DCA 2014). However, because Defendant failed to preserve the issue by
way of a timely, specific objection, she must demonstrate that the error
was fundamental. Id. “Fundamental error is error that reaches down into
the validity of the trial itself to the extent that a verdict of guilty could not
have been obtained without the assistance of the alleged error. An
erroneous instruction constitutes fundamental error if it negates the
defendant’s sole defense.” Id. (quoting Krause v. State, 98 So. 3d 71, 73
(Fla. 4th DCA 2012)). A claim of fundamental error is reviewed de novo.
Smith v. State, 76 So. 3d 379, 383 (Fla. 1st DCA 2011).

   Defense of another, much like self-defense, is “an affirmative defense
that has the effect of legally excusing the defendant from an act that would
otherwise be a criminal offense.” Mosansky v. State, 33 So. 3d 756, 758
(Fla. 1st DCA 2010); see also Keyes v. State, 804 So. 2d 373, 375 (Fla. 4th
DCA 2001) (recognizing that claims of self-defense and defense of another
both involve an admission and avoidance). In asserting defense of another,
the defendant acknowledges doing the act charged but seeks to justify it
as necessary to protect another from harm. See Smith, 76 So. 3d at 383.

   Section 776.012 governs the justifiable use of force in defense of person
and provides that a person is justified in using force, including deadly
force, to defend “himself or herself or another” if the person reasonably
believes that it is necessary to use such force. § 776.012(1)–(2), Fla. Stat.
(2014). Section 776.041, however, provides an exception to the justifiable
use of force in defense of person and states that “[t]he justification

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described in the preceding sections of this chapter is not available to a
person who . . . [i]s attempting to commit, committing, or escaping after
the commission of, a forcible felony.” § 776.041(1), Fla. Stat. (2014)
(emphasis added). Relying on the plain language of section 776.041,
Defendant argues that the forcible-felony instruction as given in this case
erroneously placed the focus on whether the son was attempting to commit
or committing a forcible felony instead of whether Defendant, the person
asserting the defense, was attempting to commit or committing a forcible
felony. We agree.

    Although there are no Florida cases analyzing the forcible-felony
exception in the context of defense of another, cases analyzing the
exception in the context of self-defense make clear that “the plain language
of section 776.041 indicates that it is applicable only under circumstances
where the person claiming self-defense is engaged in another, independent
‘forcible felony’ at the time.” Giles v. State, 831 So. 2d 1263, 1265 (Fla.
4th DCA 2002) (emphasis added); see also Martinez v. State, 981 So. 2d
449, 457 (Fla. 2008) (“[I]t is error for a trial court to read the forcible-felony
instruction to the jury where the defendant is not charged with an
independent forcible felony.” (emphasis added)). Stated differently, the
focus is on whether the accused was engaged in a separate forcible
felonious act. Whether the defense asserted is defense of another or self-
defense does not change the plain language of the statute.

   Because Defendant was the person asserting defense of another, the
instruction should have asked the jury to determine whether Defendant
was attempting to commit or committing a separate independent felony.
By instructing the jury that Defendant’s use of force was not justified if it
found that the son was attempting to commit, committing, or escaping
after the commission of a forcible felony, the instruction improperly shifted
the focus from Defendant’s behavior to the son’s behavior without regard
to Defendant’s knowledge of the surrounding circumstances. See Byrd v.
State, 858 So. 2d 343, 344 (Fla. 1st DCA 2003) (self-defense instruction
improperly shifted the jury’s focus from whether the defendant’s behavior
provoked the incident to whether the behavior of another may have been
the initial cause of the use of force). Aside from being a misstatement of
the law, the erroneous instruction effectively negated Defendant’s only
defense and, therefore, vitiated the fairness of her trial. See Smith, 76 So.
3d at 387 (holding that an instruction which “gutted” the defendant’s key
defense was so erroneous as to affect the verdict); Vowels v. State, 32 So.
3d 720, 721 (Fla. 5th DCA 2010) (erroneous forcible-felony instruction “led
the jury to believe that [the defendant’s] theory of self-defense was not
available to him” and vitiated the fairness of the trial).


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    The State nonetheless argues that because section 776.041 provides
that the forcible-felony exception applies to the “justification described in
the proceeding sections of this chapter,” and because defense of another
is included in the justification described in the proceeding chapter, by its
plain language the statute dictates that the forcible-felony exception must
apply to the affirmative defense of defense of another. Any reading of
section 776.041 to the contrary would add an exclusion to the statute that
the Legislature did not intend. We do not quarrel with the State’s
argument that the forcible-felony exception applies to a claim of defense of
another. Had the State also charged Defendant as a principal to the
attempted burglary, then certainly the exception would apply because
under that scenario Defendant would have been charged with an
independent forcible felony. Defendant, however, was not charged with an
independent forcible felony other than the one which she claimed to have
committed in defense of another and, therefore, based on the plain
language of the statute, the instruction did not apply. See Martinez, 981
So. 2d at 454.

    The only way in which the instruction as given in this case could have
been correct is if the common law alter ego rule applied. This is because
under the alter ego rule, “a defendant using deadly force to defend a person
who was not entitled to use deadly force would be held criminally liable.”
State v. Cook, 515 S.E.2d 127, 135 (W. Va. 1999); see also State v. Hussing,
1994 WL 24289, *3 (Ohio Ct. App. Jan. 27, 1994) (“[O]ne who intervenes
to help a stranger stands in the shoes of the person whom he is aiding,
and if the person aided is the one at fault, then the intervenor is not
justified in his use of force and is guilty of an assault.” (citations omitted)).
In other words, if the son was committing a forcible felony and therefore
not entitled to use force then, under the alter ego rule, Defendant would
stand in the son’s shoes and would likewise not be entitled to use force.
Florida, however, like nearly all American jurisdictions, abandoned the
common law alter ego rule long ago by adopting a “reasonable belief”
standard. See § 2378, Fla. Rev. Stat. (1890) (providing that homicide is
justifiable “[w]hen committed in the lawful defen[s]e of such person or of
his or her husband, wife, parent, child, master, mistress or servant, when
there shall be a reasonable ground to apprehend a design to commit a
felony or to do some great personal injury, and there shall be imminent
danger of such design being accomplished . . . .” (emphasis added)); see
also Marco F. Bendinelli & James T. Edsall, Defense of Others: Origins,
Requirements, Limitations and Ramifications, 5 REGENT U. L. REV. 153, 159–
60 (1995) (recognizing that nearly all American jurisdictions have
abandoned the alter ego rule).



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   The State further argues that, for public policy reasons, the exception
should apply to all defense of another cases when the person being
defended is attempting to commit, committing, or escaping from the
commission of a forcible felony unless there is evidence that the intervenor
reasonably did not know that the person he or she was defending was
engaged in a forcible felonious act. We reject this argument because we
are bound by the plain language of the statute. State v. Burris, 875 So. 2d
408, 410 (Fla. 2004) (“When a statute is clear, courts will not look behind
the statute’s plain language for legislative intent or resort to rules of
statutory construction to ascertain intent.”).

    In conclusion, we hold that the trial court fundamentally erred in
instructing the jury on the forcible-felony exception to the justifiable use
of force. Therefore, we reverse Defendant’s judgment of guilt and remand
for a new trial.

   Reversed and remanded for a new trial.

GROSS and MAY, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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