                                        IN THE DISTRICT COURT OF APPEAL
                                        FIRST DISTRICT, STATE OF FLORIDA

DONALD RAY KERVIN,                      NOT FINAL UNTIL TIME EXPIRES TO
                                        FILE MOTION FOR REHEARING AND
      Appellant,                        DISPOSITION THEREOF IF FILED

v.                                      CASE NO. 1D15-1174

STATE OF FLORIDA,

      Appellee.


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Opinion filed July 6, 2016.

An appeal from the Circuit Court for Escambia County.
Terry D. Terrell, Judge.

Nancy A. Daniels, Public Defender, and Mark Graham Hanson, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Michael Schaub, Assistant Attorney
General, Tallahassee, for Appellee.

ROWE, J.

      Appellant, Donald Ray Kervin, challenges his conviction for felony animal

cruelty in violation of section 828.12(2), Florida Statutes (2012), arguing that the

trial court erred in using the 2014 revised jury instruction to instruct the jury on the

charged offense rather than the 2012 version of the instruction. Because the 2014

revised jury instruction was an accurate statement of the applicable law, we affirm.
                                     Background

      The testimony at trial established that on July 10, 2012, Juanita Vinson, an

animal control officer, and Heather Stevens, an environmental enforcement officer,

arrived at Kervin’s residence in response to a call that a dog was in distress. Upon

arrival of the officers, Kervin directed them to the back of the property where the

dog, “Chubbie,” was located. The officers testified that as they approached the back

of the house, they smelled a rotten-flesh odor. They found Chubbie in what appeared

to be a small laundry room attached to the back of Kervin’s home. Chubbie was

visibly wet and lying down on the cement floor in his own feces and urine. He had

several open wounds containing maggots. The officers also noticed tapeworms

around his rear area. They testified that the room was small and hot, and that the

windows were boarded up allowing no ventilation in the room. There was also no

sign of water or food for Chubbie.

      Officer Vinson spoke to Kervin about the dog’s injuries. Kervin first told the

officers that Chubbie was hit by a car, but he later told the officers that he thought

the dog ran away and a neighbor beat him with a shovel. Upon walking outside to

survey the backyard, Officer Stevens observed a shovel handle with what appeared

to be blood on it laying on the ground. It was then that Kervin admitted hitting

Chubbie with the shovel for discipline. Kervin was unwilling to take the dog to a

veterinarian at that time, even though he admitted that he knew Chubbie had not

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stood up to walk for two days. Because Chubbie was unable to physically stand, it

took three officers to remove him from the room. Chubbie was taken to a veterinary

clinic where he was humanely euthanized due to the severity of his condition and

the unlikelihood of recovery. Subsequently, Kervin was brought to trial on the

charge of felony animal cruelty.

      At the charge conference, Kervin requested that the trial court use the standard

jury instruction that was in effect in 2012, the time of the alleged offense, rather than

the 2014 version. While noting that the instructions were slightly different, in that

the new instruction included the language “failure to act,” the trial court determined

that it was appropriate to use the 2014 revised standard jury instruction based on the

holding in Brown v. State, 166 So. 3d 817 (Fla. 2d DCA 2015). After receiving the

revised instructions, the jury returned a guilty verdict.

                                       Analysis

      On appeal, Kervin argues that the use of the 2014 instruction was error

because that instruction was revised to reflect the 2013 amendment to section

828.12(2), which expanded the definition of felony animal cruelty to include a

person’s failure to act. We review the trial court’s decision to give or withhold a

proposed jury instruction for an abuse of discretion. Truett v. State, 105 So. 3d 656,

658 (Fla. 1st DCA 2013); Langston v. State, 789 So. 2d 1024, 1026 (Fla. 1st DCA

2001).

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        To determine whether an abuse of discretion occurred when the trial court

instructed the jury using the 2014 revised standard jury instruction and declined to

instruct the jury using the 2012 instruction, we examine (1) whether the instruction

given accurately states the applicable law; (2) whether the facts in the case support

the instruction; and (3) whether the instruction given was necessary to allow the jury

to properly resolve all issues in the case. Alderman v. Wysong & Miles Co., 486

So.2d 673, 677 (Fla. 1st DCA 1986). Here, the jury instruction read to the jury

accurately stated the applicable law, and the trial court did not abuse its discretion

in giving the instruction.

        Kervin was charged under section 828.12(2), Florida Statutes (2012), which

read:

        A person who intentionally commits an act to any animal which results
        in the cruel death, or excessive or repeated infliction of unnecessary
        pain or suffering, or causes the same to be done, is guilty of a felony of
        the third degree.

The applicable standard jury instruction in effect at that time stated, in relevant part:

        To prove the crime of Animal Cruelty, the State must prove the
        following element beyond a reasonable doubt:               (Defendant)
        intentionally committed an act to an animal which resulted in [the
        excessive or repeated infliction of unnecessary pain or suffering to an
        animal] [an animal's cruel death].

In re Std. Jury Instr. In Crim. Cases—Report No. 2007-03, 976 So. 2d 1081, 1095

(Fla. 2008).


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      In 2013, the statute was amended to read, in relevant part:

      A person who intentionally commits an act to any animal, or a person
      who owns or has the custody or control of any animal and fails to act,
      which results in the cruel death, or excessive or repeated infliction of
      unnecessary pain or suffering, or causes the same to be done, commits
      aggravated animal cruelty, a felony of the third degree.

§ 828.12(2), Fla. Stat. (2013) (emphasis added).        In 2014, the standard jury

instruction was revised to reflect the 2013 amendment. In re Std. Jury Instr. in Crim.

Cases--Report No. 2013-07, 143 So. 3d 893, 905-06 (Fla. 2014). The revised

instruction reads, in relevant part:

      To prove the crime of Aggravated Animal Cruelty, the State must prove
      the following two elements beyond a reasonable doubt:
      1. (Defendant) [intentionally committed an act to an animal] [or]
      [owned or had custody or control of an animal and failed to act].
      2. (Defendant's) [act] [or] [failure to act] resulted in [excessive or
      repeated infliction of unnecessary pain] [or] [suffering to the animal or
      the animal's cruel death].

Id. (emphasis added).

      Although the 2013 amendment to the statute did, in a literal sense, add new

language to the body of the statute, we agree with the Second District that the 2012

version of section 828.12(2) already included a person’s failure to act. See Brown,

166 So. 3d at 821 (citing State v. Morival, 75 So. 3d 810, 812 (Fla. 2d DCA 2011)

and Hynes v. State, 1 So. 3d 328, 330-31 (Fla. 5th DCA 2009) (Griffin, J., specially

concurring)). Further, even absent the decision in Brown, the Florida Supreme Court

has held that in a criminal context, an act of omission may constitute an

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“act.” Nicholson v. State, 600 So. 2d 1101, 1004 (Fla. 1992) (approving our decision

in Nicholson v. State, 579 So. 2d 816 (Fla. 1st DCA 1991), wherein we held that

because the Florida child abuse statute clearly defined “torture” as “an act of

omission,” we had no difficulty concluding that “willful torture” included acts of

commission and omission. 579 So. 2d at 818-19 (emphasis added)).

      As such, interpreting the 2012 version of the statute to include an act of

omission fits squarely within Florida precedent, as acts of negligence have been held

to constitute felony animal cruelty under the 2012 version of the statute. See Horn

v. Sec’y, Fla. Dep’t of Corr., 488 F. App’x 421, 425 (2012) (stating that even if the

jury convicted the defendant under section 828.12(2) based on negligence, such a

conviction would be consistent with the charge under Florida law). The 2014 revised

standard jury instruction merely clarified the previous version of the instruction to

include the failure to act. Thus, the trial court did not abuse its discretion by using

the 2014 revised version of the standard jury instruction to suit the particular facts

and circumstances presented in the trial and to aid the jury in understanding the

meaning of the statute.

      Furthermore, the facts in this case support instructing the jury using the 2014

revised standard instruction. This is a serious case of neglect. The testimony

established that Chubbie’s wounds were at least three to five days old, and that

Chubbie had been recumbent for at least two days. Chubbie had urine scald, a

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condition that occurs when an animal urinates on itself and the area goes uncleaned.

Within twenty-four to forty-eight hours, the uric acid started to burn Chubbie’s skin.

There were large fly larvae (maggots) surrounding Chubbie’s wounds on his hip,

elbow, and shoulder area, which would have taken at least three to four days to form.

The State presented evidence and testimony that Chubbie’s injuries, regardless of

their source, had not been treated; that Chubbie had not stood up in at least two days;

that there was no sign of food or water in the room where Chubbie was found; and

that Chubbie was completely emaciated. The facts in this case clearly support

instructing the jury on Kervin’s failure to act. See Hooper v. State, 703 So. 2d 1143,

1148 (Fla. 4th DCA 1997) (Farmer, J., concurring in the result) (stating that the

“formulaic” jury instructions may and should be varied to suit the particular facts

and circumstances).

      Finally, the 2014 instruction was necessary to allow the jury to resolve all

issues in this case. The instruction requested by Kervin reflected the version of the

statute in effect in 2012, but read as a whole, it did not fairly present the law in light

of Brown’s analysis of Florida case law concerning section 828.12(2). 166 So. 3d

at 818-20. In fact, absent the inclusion of the “failure to act” language, the jury may

have been misled as to the actual meaning of the statute. The 2014 version of the

standard jury instruction properly instructed the jury and was the correct statement

of law based on precedent and the facts and circumstances presented in the case.

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      Accordingly, we AFFIRM the trial court’s decision to use the 2014 revised

standard jury instruction rather than the 2012 standard instruction.

MAKAR and BILBREY, JJ., CONCUR.




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