          Supreme Court of Florida
                                   ____________

                                  No. SC18-1478
                                  ____________


   IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—
                       REPORT 2018-07.

                                December 13, 2018

PER CURIAM.

      The Supreme Court Committee on Standard Jury Instructions in Criminal

Cases (Committee) has submitted proposed changes to the standard jury

instructions, including amendments to two instructions, the deletion of one

instruction, and the creation of two new instructions. The Committee asks the

Court to authorize the new and amended standard jury instructions for publication

and use. We have jurisdiction. See art. V, § 2(a), Fla. Const.

      The Committee proposes amending standard criminal jury instructions

3.6(o) (Transferred Intent) and 3.9(c) (Eyewitness Identification). In addition, the

Committee proposes deleting standard criminal jury instruction 8.8 (Aggravated

Stalking (Victim under 16 years of age)) and creating new instructions 8.27

(Violation of an Injunction for Protection Against Exploitation of a Vulnerable
Adult) and 8.28 (Violation of a Risk Protection Order). Following publication in

The Florida Bar News, no comments were received by the Committee. The more

significant amendments to the instructions are discussed below.

         First, revisions are made to instruction 3.9(c) to provide clarification and

improve readability. Instruction 3.9(c) is amended to add “[live] [photo]” before

the word “lineup” in appropriate places and “photo” before the word “lineup”

where the instruction solely refers to a photo lineup.

         Next, the Committee proposes deleting instruction 8.8 because there are two

standard instructions that pertain to section 784.048(5), Florida Statutes (2018),

aggravated stalking of a victim under 16 years of age—criminal jury instructions

8.7(c) and 8.8. The Committee proposes keeping instruction 8.7(c) and deleting

instruction 8.8 since 8.7(c) is the more up-to-date instruction.

         Additionally, we authorize new instruction 8.27, which the Committee

created in response to the enactment of section 825.1036(4), Florida Statutes

(2018), effective July 1, 2018. See ch. 2018-100, § 3, Laws of Fla. In section

825.1036(4), the Legislature created a first-degree misdemeanor crime for a person

who willfully violates an injunction for protection against a vulnerable adult in an

enumerated way. New instruction 8.27 instructs jurors as to the elements of that

crime.




                                           -2-
      Last, we authorize new instruction 8.28, which the Committee created in

response to the enactment of section 790.401, Florida Statutes (2018). See ch.

2018-3, § 15, Laws of Fla. In section 790.401(11)(b), the Legislature created a

new crime for a person who has in his or her custody or control a firearm or any

ammunition or who purchases, possesses, or receives a firearm or any ammunition

with knowledge that he or she is prohibited from doing so by a risk protection

order. New instruction 8.28 instructs jurors as to the elements of that crime.

      Having considered the Committee’s report, we authorize for publication and

use new and amended instructions 3.6(o), 3.9(c), 8.27, and 8.28, as proposed, and

as set forth in the appendix to this opinion.1 We delete instruction 8.8 as proposed

by the Committee and reserve that instruction number for future use. 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



       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-
contesting the legal correctness of the instructions. We 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 set forth in the appendix shall

become effective when this opinion becomes final.

      It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA,
and LAWSON, JJ., concur.

ANY MOTION FOR REHEARING OR CLARIFICATION MUST BE FILED
WITHIN SEVEN DAYS. A RESPONSE TO THE MOTION FOR
REHEARING/CLARIFICATION MAY BE FILED WITHIN FIVE DAYS
AFTER THE FILING OF THE MOTION FOR
REHEARING/CLARIFICATION. NOT FINAL UNTIL THIS TIME PERIOD
EXPIRES TO FILE A REHEARING/CLARIFICATION MOTION AND, IF
FILED, DETERMINED.

Original Proceedings – Supreme Court Committee on Standard Jury Instructions in
Criminal Cases

Judge F. Rand Wallis, Chair, Supreme Court Committee on Standard Jury
Instructions in Criminal Cases, Daytona Beach, Florida; and Bart Schneider, Staff
Liaison, Office of the State Courts Administrator, Tallahassee, Florida,

      for Petitioner




                                         -4-
                                    APPENDIX

                         3.6(o) TRANSFERRED INTENT
       If a person intends to [hit] [strike] [shoot] a person, and in the process
[hits] [strikes] [shoots] a different person, the law transfers the intent to [hit]
[strike] [shoot] from the person who was aimed at the intended person to any
person who was actually [hit] [struck] [shot].

                                      Comments
       See State v. Brady, 745 So. 2d 954 (Fla. 1999) and Nelson v. State, 853 So.
2d 563 (Fla. 4th DCA 2003). Also, in Mordica v. State, 618 So. 2d 301, 303 (Fla.
1st DCA 1993), the First District rejected the contention that the doctrine of
transferred intent is applicable only where the defendant entirely misses the
intended victim and hits the unintended victim.
        The doctrine of transferred intent may not apply to the crime of Attempted
First-Degree Murder. See Bell v. State, 768 So. 2d 22 (Fla. 1st DCA 2000)(stating
that if the issue is whether the defendant attempted to murder multiple victims,
then such specific intent is not subject to transfer but rather such intent should be
independently evaluated as to each victim); but see Frederick v. State, 93 So. 3d
445 (Fla. 4th DCA 2012)(holding that the giving of a transferred intent instruction
was not fundamental error because defendant was not charged with attempting to
murder multiple victims).
      This instruction was adopted in 2013 [131 So. 3d 720] and amended in 2017
[228 So. 3d 87] and 2018.

                    3.9(c) EYEWITNESS IDENTIFICATION
     Give if eyewitness identification is a disputed issue and if requested.
     You have heard testimony of eyewitness identification. In deciding how
much weight to give to this testimony, you may consider the various factors
mentioned in these instructions concerning credibility of witnesses.
      In addition to those factors, in evaluating eyewitness identification
testimony, you may also consider:
        1. The capacity and opportunity of the eyewitness to observe the




                                         -5-
         offender based upon the length of time for observation and the
         conditions at the time of observation, including lighting and
         distance.
     2. Whether the identification was the product of the eyewitness’s
        own recollection or was the result of influence or suggestiveness.
     3. The circumstances under which the defendant was presented to
        the eyewitness for identification.
     4. Any inconsistent identifications made by the eyewitness.
     5. Any instance in which the eyewitness did not make an
        identification when given the opportunity to do so.
     6. The witness’s familiarity with the subject identified.
     7. Lapses of time between the event and the identification[s].
     8. Whether the eyewitness and the offender are of different races
        or ethnic groups, and whether this may have affected the
        accuracy of the identification.
     9. The totality of circumstances surrounding the
        eyewitness’s identification.
       Lineup Requirements. Give if applicable. § 92.70, Fla. Stat.
       You have heard testimony concerning a [live] [photo] lineup conducted
by a law enforcement agency. Florida law requires that the person
conducting the [live] [photo] lineup must not have participated in the
investigation of the crime alleged and must not have been aware of which
person in the [live] [photo] lineup was the suspect.
     When an independent administrator was not used. Give as applicable.
     As an alternative, it is permissible under Florida law if

     [an automated computer program automatically administered the photo
lineup directly to an eyewitness and prevented the person conducting the
photo lineup from seeing which photograph the eyewitness viewed until after
the procedure was completed.]

     [photographs were placed in folders, randomly numbered, and shuffled
and then presented to an eyewitness such that the person conducting the


                                    -6-
photo lineup did not see or did not track which photograph was presented to
the eyewitness until after the procedure was completed.]
     [the photo lineup procedure achieved neutral administration and
prevented the person conducting the photo lineup from knowing which
photograph was presented to the eyewitness during the identification
procedure.]
      Give in all cases involving a lineup.
      Also, before conducting a [live] [photo] lineup, the eyewitness must be
instructed that:
      1. The perpetrator might or might not be in the [live] [photo] lineup;
      Give #2 only when an independent administrator was used.
      2. The person conducting the [live] [photo] lineup does not know
         the suspect’s identity;
      3. The eyewitness should not feel compelled to make an identification;
      4. It is as important to exclude innocent persons as it is to identify
         the perpetrator; and
      5. The investigation will continue with or without an identification.

      The eyewitness must acknowledge, in writing, that he or she received
a copy of the [live] [photo] lineup instructions. If the eyewitness refused to
sign a document acknowledging receipt of the instructions, the person
conducting the [live] [photo] lineup must document the refusal of the
eyewitness to sign a document acknowledging receipt of the instructions,
and the person conducting the [live] [photo] lineup must sign the
acknowledgment document himself or herself.

      You may consider compliance or noncompliance with these
requirements to determine the reliability of an eyewitness identification
made during a [live] [photo] lineup procedure.

                                 Comment

      This instruction was adopted in 2013 [141 So. 3d 132] and amended in
2013 [122 So. 3d 302], and 2018 [238 So. 3d 192], and 2018.



                                      -7-
                      8.8 AGGRAVATED STALKING
                        (Victim under 16 years of age)
                            § 784.048(5), Fla. Stat.

      To prove the crime of aggravated stalking, the State must prove the
following two elements beyond a reasonable doubt:

      1.    (Defendant) willfully, maliciously, and repeatedly
            [followed]

      2.    [harassed] [or] [cyberstalked] (victim); and,

      3.    At the time of (defendant’s) actions, (victim) was under 16 years
            of age.

       Definitions.
       “Harass” means to engage in a course of conduct directed at a
specific person that causes substantial emotional distress in such person
and serves no legitimate purpose.

      “Cyberstalk” means to engage in a course of conduct to
communicate, or to cause to be communicated, words, images, or language
by or through the use of electronic mail or electronic communication,
directed at a specific person, causing substantial emotional distress to that
person and serving no legitimate purpose.

                          Lesser Included Offenses

  AGGRAVATED STALKING (Victim under 16 years of age) — 784.048(5)
 CATEGORY ONE              CATEGORY TWO              FLA. STAT.       INS. NO.
 Stalking                                            784.048(2)       8.6
                           Attempt                   777.04(1)        5.1
                           Violation of injunction   741.31(4)        8.18
                           for protection against
                           domestic violence

                                  Comment


                                      -8-
       This instruction is based on the text of section 784.048(5), Florida
Statutes (1997), and generally patterned after the standard instructions on
stalking and aggravated stalking.
      This instruction was adopted in 2000 [765 So.2d 692] and amended in
2007 [953 So. 2d 495] to incorporate cyberstalking.
      8.27 VIOLATION OF AN INJUNCTION FOR PROTECTION
       AGAINST EXPLOITATION OF A VULNERABLE ADULT
                        § 825.1036(4), Fla.
                               Stat.

      To prove the crime of Violation of an Injunction for Protection
Against Exploitation of a Vulnerable Adult, the State must prove the
following two elements beyond a reasonable doubt:
      1.     A [temporary] [final] injunction for protection against
             exploitation of a vulnerable adult was issued by a court
             against (defendant) for the benefit of (victim).

      2. (Defendant) willfully violated the injunction by (alleged violation of
      §§ 825.1036(4)(a)1.–7., Fla. Stat.).

      Definition.
      “Willfully” means knowingly, intentionally, and purposely.

      If the allegation involves the defendant exploiting a vulnerable adult,
define “exploitation” and “vulnerable adult” from §§ 825.101(6),(14), Fla.
Stat.

                                 Lesser Included Offense

  VIOLATION OF AN INJUNCTION FOR PROTECTION AGAINST
     EXPLOITATION OF A VULNERABLE ADULT– 825.1036
CATEGORY ONE     CATEGORY TWO FLA. STAT. INS. NO.
None
                 Attempt          777.04(1) 5.1

                                   Comments



                                       -9-
       The crime of Violation of an Injunction for Protection Against Exploitation
of a Vulnerable Adult is bumped up from a first-degree misdemeanor to a third-
degree felony if the defendant had two or more prior convictions for violating
either an injunction or a foreign protection order involving the same victim. It is
unclear whether the courts will require the historical fact of the prior convictions
against the same victim to be proven to the jury or whether only the sentencing
judge may find that the prior convictions against the same victim exist. If the issue
is to be submitted to a jury, it is error to inform the jury of the allegation of prior
convictions until the verdict on the underlying Violation of an Injunction is
rendered. Therefore, if the charging document contains an allegation of prior
Violation of Injunction convictions, do not read that allegation and do not send
the information or indictment into the jury room prior to a verdict. If the
defendant is found guilty of Violation of an Injunction for Protection Against
Exploitation of a Vulnerable Adult, the historical fact of prior convictions against
the same victim shall be determined separately in a bifurcated proceeding. State v.
Harbaugh, 754 So. 2d 691 (Fla. 2000). The term “conviction” means a
determination of guilt which is the result of a plea or a trial, regardless of whether
adjudication is withheld or a plea of nolo contendere is entered. § 825.1036(4)(b),
Fla. Stat.

      This instruction was adopted in 2018.

                 8.28 VIOLATION OF A RISK PROTECTION
                                  ORDER
                          § 790.401(11)(b), Fla. Stat.

     To prove the crime of Violation of a Risk Protection Order, the State
must prove the following three elements beyond a reasonable doubt:

      1.     A [temporary] [final] risk protection order was issued by a court
             against (defendant).

      2.    (Defendant) knew that [he] [she] was prohibited from [possessing]
             [or] [having in [his] [her] custody or control] [or] [receiving] [or]
             [purchasing] [a firearm] [or] [ammunition] because of that court
             order.

       3. (Defendant) violated the court order by knowingly [possessing]
           [or] [having in [his] [her] custody or control] [or] [receiving]
           [or] [purchasing] [a firearm] [or] [ammunition].


                                        - 10 -
       Give as applicable.
       § 790.001(6), Fla. Stat.
       A “firearm” means any weapon [including a starter gun] which will, is
designed to, or may readily be converted to expel a projectile by the action of
an explosive; [the frame or receiver of any such weapon;] [any firearm
muffler or firearm silencer;] [any destructive device;] [any machine gun].
[The term “firearm” does not include an antique firearm unless the antique
firearm is used in the commission of another crime. An antique firearm is
(insert definition in § 790.001(1), Fla. Stat.)] [A destructive device is (insert
definition in § 790.001(4), Fla. Stat.)].

      § 790.001(19), Fla. Stat.
      “Ammunition” means an object consisting of all of the following:
      a. A fixed metallic or nonmetallic hull or casing containing a primer.
      b. One or more projectiles, one or more bullets, or shot.
      c. Gunpowder.

      Possession.
      To prove (defendant) “possessed” [a firearm] [or] [ammunition], the
State must prove beyond a reasonable doubt that [he] [she] a) knew of the
existence of the [firearm] [or] [ammunition] and b) intentionally exercised
control over it.

        Give if applicable.
        Control can be exercised over [a firearm] [or] [ammunition] whether
it is carried on a person, near a person, or in a completely separate
location. Mere proximity to [a firearm] [or] [ammunition] does not establish
that the person intentionally exercised control over it in the absence of
additional evidence. Control can be established by proof that (defendant) had
direct personal power to control the [firearm] [or] [ammunition] or the
present ability to direct its control by another.

      Joint possession.
      Possession of [a firearm] [or] [ammunition] may be sole or joint, that is,
two or more persons may possess it.




                                     - 11 -
                            Lesser Included Offense

    VIOLATION OF A RISK PROTECTION ORDER —790.401(11)(b)
CATEGORY       CATEGORY         FLA. STAT  INS. NO.
ONE            TWO
None
               Attempt          777.04(1)  5.1

                                Comment

   This instruction was adopted in 2018.




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