Amendments to criminal jury instructions.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases submits the following new and amended instructions to the Florida Standard Jury Instructions in Criminal Cases for comment. The committee proposes the following:

7.9--VEHICULAR HOMICIDE

11.10(f)--LEWD OR LASCIVIOUS EXHIBITION OVER COMPUTER SERVICE

11.10(g)--LEWD OR LASCIVIOUS OFFENSES COMMITTED IN PRESENCE OF ELDERLY PERSON OR DISABLED PERSON

13.1--BURGLARY

14.9--EXPLOITATION OF AN ELDERLY PERSON OR DISABLED ADULT

20.15--FRAUDULENT USE OF PERSON IDENTIFICATION INFORMATION OFA MINOR OR PERSON 60 YEARS OF AGE OR OLDER

20.16--FRAUDULENT USE OF PERSON IDENTIFICATION INFORMATION OFA MINOR OR PERSON 60 YEARS OF AGE OR OLDER BY A PARENT, GUARDIAN, ETC.

20.21--FRAUDULENT USE OF PERSON IDENTIFICATION INFORMATION OFA DISABLED ADULT, PUBLIC SERVANT, VETERAN, FIRST RESPONDER, GOVERNMENT EMPLOYEE

22.5--SETTING UP, PROMOTING, CONDUCTING A LOTTERY

22.6--DISPOSING OF MONEY OR PROPERTY BY LOTTERY

22.7--CONDUCTING OR ADVERTISING A LOTTERY DRAWING

22.8--ASSISTING IN SETTING UP, PROMOTING, CONDUCTING A LOTTERY

22.9--SALE OF LOTTERY TICKETS

22.10--POSSESSING A LOTTERY TICKET

22.11- POSSESSING RUN DOWN SHEETS, ETC.

23.8--SELLING A MINOR INTO PROSTITUTION BY A PARENT

29.24--HUMAN TRAFFICKING

29.25--HUMAN TRAFFICKING BY A PARENT, LEGAL GUARDIAN, ETC.

The committee invites all interested persons to comment on the proposals, reproduced in full below. Comments must be received by the committee in either electronic format or hard copy on or before November 14. The committee will review all comments received in response to the above proposal at its next meeting and will consider amendments based upon the comments received. Upon final approval of the instruction, the committee will make a recommendation to the Florida Supreme Court. File your comments electronically to CrimJuryInst@flcourts.org, in the format of a Word document. If you cannot file electronically, mail a hard copy of the comment to Standard Jury Instructions Committee in Criminal Cases, c/o Bart Schneider, General Counsel's Office, Office of the State Courts Administrator, 500 S. Duval Street, Tallahassee 32399-1900.

7.9 VEHICULAR OR VESSEL HOMICIDE

[section] 782.071 or [section] 782.072, Fla. Stat.

To prove the crime of [Vehicular] [Vessel] Homicide, the State [begin strike through]must prove more than a failure to use ordinary care, and[end strike through] must prove the following three elements beyond a reasonable doubt:

1. [(Victim)] [An unborn child] is dead.

2. The death was caused by the operation of a [motor vehicle] [vessel] by (defendant).

3. (Defendant) operated the [motor vehicle] [vessel] in a reckless manner likely to cause the death of or great bodily harm to another person.

   [begin strike through]An intent by the defendant to harm or injure the victim or any other person is not an element to be proved by the State[end strike through]. The State does not have to prove that the defendant intended to harm or injure anyone. However, the reckless operation of a [motor vehicle] [vessel] requires the State to prove more than a failure to use ordinary care.

   Enhanced penalty. [section] 782.071(l)(b) or [section] 782.072(2), Fla. Stat. Give if applicable.

   If you find the defendant guilty of [[begin strike through]v[end strike through]Vehicular] [[begin strike through]v[end strike through]Vessel] [begin strike through]h[end strike through]Homicide, you must then determine whether the State has further proved beyond a reasonable doubt that:

1. At the time of the accident, (defendant) knew, or should have known, that the accident occurred; and

2. (Defendant) failed to give information and render aid as required by law. (Read applicable portion of [section] 316.062, Fla. Stat., as charged in information or indictment.)

   However, the State is not required to prove (defendant) knew that the accident resulted in injury or death.

   Definitions.

   Give if applicable. [section] 782.071(2), Fla. Stat. Applicable only to Vehicular Homicide.

   [begin strike through]"Victim" includes a human being or a viable fetus which is killed as a result of any injury to the mother. A fetus is viable when it becomes capable of meaningful life outside the womb through standard medical measures[end strike through]. An "unborn child" means a member of the species homo sapiens, at any stage of development, who is carried in the womb.

   [section] 327.02(39) Fla. Stat. Applicable only to Vessel Homicide.

   "Vessel" is synonymous with boat and includes every description of watercraft, barge, and airboat, other than a seaplane on the water, used or capable of being used as a means of transportation on water.

   Lesser Included Offenses

   VEHICULAR OR VESSEL HOMICIDE--782.071 or 782.072 CATEGORY ONE CATEGORY TWO Reckless driving Reckless [begin strike through or careless[end strike through] operation of vessel Culpable negligence Culpable negligence CATEGORY ONE FLA. STAT. INS. NO. Reckless driving 316.192 28.5 Reckless [begin strike through or 327.33 careless[end strike through] operation of vessel 784.05(2) 8.9 784.05(1) 8.9 Comment

   Culpable negligence is a Category Two lesser included offense of both vehicular and vessel homicide. This instruction was adopted in 1981 and amended in 2006 [946 So. 2d 1061], [begin strike through]and[end strike through] 2008 [994 So. 2d 1038], and 2015.

   11.10(f) LEWD OR LASCIVIOUS EXHIBITION OVER COMPUTER SERVICE

   [section] 847.0135(5), Fla. Stat.

   To prove the crime of Lewd or Lascivious Exhibition over a Computer Online Service, the State must prove the following four elements beyond a reasonable doubt:

1. a. [(Defendant) intentionally masturbated].

   b. [(Defendant) intentionally exposed [his] [her] genitals in a lewd or lascivious manner].

   c. [(Defendant) committed [a sexual act] [sadomasochistic abuse] [sexual bestiality] [simulation of any act involving sexual activity] that did not involve actual physical or sexual contact with (victim)].

2. The act was committed live over a [computer on-line service] [internet service] [local bulletin board service].

3. (Victim) was under the age of 16 years

   or

   (Defendant) [knew] [should have known] [had reason to believe] that the transmission was viewed on a computer or television monitor by a victim in this state who was under the age of 16 years.

   Give 4a or 4b as applicable.

4. a. (Defendant) was 18 years of age or older at the time of the offense.

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

   Definitions.

   The words "lewd" and "lascivious" mean the same thing and mean a wicked, lustful, unchaste, licentious, or sensual intent on the part of the person doing an act.

   [section] 800.04(1)(a), Fla. Stat.

   "Sexual activity" means the oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual activity does not include an act done for a bona fide medical purpose.

   Lakey v. State, 113 So. 3d 90 (Fla. 5th DCA 2013).

   The definition of "an object" includes a finger.

   [section] 847.001(13), Fla. Stat.

   "Sadomasochistic abuse" means flagellation or torture by or upon a person or animal, or the condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction, or satisfaction brought about as a result of sadistic violence, from inflicting harm on another or receiving such harm oneself.

   [section] 847.001(15), Fla. Stat.

   "Sexual bestiality" means any sexual act, actual or simulated, between a person and an animal involving the sex organ of the one and the mouth, anus, or vagina of the other.

   [section] 800.04(2), Fla. Stat.

   Neither (victim's) lack of chastity nor (victim's) consent is a defense to the crime charged.

   [section] 800.04(3), Fla. Stat.

   The defendant's ignorance of the (victim's) age, (victim's) misrepresentation of [his] [her] age, or the defendant's bona fide belief of (victim's) age is not a defense to the crime charged.

   The fact that an undercover operative or law enforcement officer was involved in the detection and investigation of an offense is not a defense to the crime charged.

   Lesser Included Offenses

   LEWD OR LASCIVIOUS EXHIBITION OVER COMPUTER SERVICE--847.0135(5) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Attempt 777.04(1) 5.1 Comment

   This instruction was adopted in 2008 [998 So. 2d 1138] and amended in 2015. For offenses occurring prior to October 1, 2008, refer to section 800.04(7)(b), Florida Statutes (2007).

   11.10(g) LEWD OR LASCIVIOUS EXHIBITION BY A DETAINEE IN THE PRESENCE OF AN EMPLOYEE OF A FACILITY [section] 800.09, Fla. Stat.

   To prove the crime of Lewd or Lascivious Exhibition by a Detainee in the Presence of an Employee of a Facility, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) was detained in a [state correctional institution] [private correctional facility].

2. While detained, (defendant) intentionally

   Give as applicable.

   a. masturbated.

   b. exposed [his] [her] genitals in a lewd or lascivious manner.

   c. committed [a sexual act] [sadomasochistic abuse] [sexual bestiality] [the simulation of any act involving sexual activity] that did not involve actual physical or sexual contact with a victim.

3. (Defendant's) act was intentionally committed in the presence of a person [he] [she] knew or reasonably should have known was an employee of the [institution] [facility].

   Definitions. Give as applicable.

   [section] 944.02(8), Fla. Stat.

   A "state correctional institution" is any prison, road camp, prison industry, prison forestry camp, or any prison camp or prison farm or other correctional facility, temporary or permanent, in which prisoners are housed, worked, or maintained, under the custody and jurisdiction of the Department of Corrections.

   [section] 944.710(3), Fla. Stat.

   A "private correctional facility" is any facility, which is not operated by the Department of Corrections, for the incarceration of adults or...