In Re: Standard Jury Instructions in Criminal Cases - Report 2017-03 – Corrected Opinion

Supreme Court of Florida
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No. SC17-1652
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IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—
REPORT 2017-03.

[March 8, 2018]
CORRECTED OPINION

PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal

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

16.10 (Possession of Material Including Sexual Conduct by a Child with Intent to

Promote) and 25.7 (Possession of a Controlled Substance). The Committee

requests that the Court authorize for publication and use the amended standard

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

The Committee’s proposals derive from a referral made by the Court,

requesting that the Committee “consider appointing a subcommittee of

prosecutors, defense lawyers, and judges to more thoroughly consider [the issue of

simplifying the possession instructions] and determine whether the criminal jury

instructions should be simplified.” Accordingly, the Committee created a
subcommittee of eleven persons, including district court of appeal judges, circuit

court judges, prosecutors, and defense attorneys, with the Committee’s Chair

acting as chair of the subcommittee. The subcommittee unanimously agreed, and

the Committee also agreed, that the existing explanation of “possession” in the

standard criminal jury instructions should be simplified. Following receipt of the

subcommittee’s recommendations on amending the possession-related instructions,

the Committee ultimately submitted to the Court its proposals to amend

instructions 16.10 and 25.7.1 We amend the instructions as proposed by the

Committee, and significant amendments are discussed below.2

Instruction 16.10 is amended to include an explanation of “possession,”

which was not previously defined in the instruction, as follows:

Possession.
To prove (defendant) possessed a[n] [photograph] [motion
picture] [exhibition] [show] [representation] [presentation] that
included sexual conduct by a child, the State must prove beyond a
reasonable doubt that [he] [she] a) knew of the nature of the

1. After the Court’s referral to the Committee, the proposal to amend
instruction 25.7 was published by the Committee, while the Court published the
Committee’s proposed amendments to instruction 16.10. One comment was
received, pertaining to the proposal to amend instruction 25.7. The Committee
chose the two instructions, one involving possession of material that contains
sexual conduct by a child and one for offenses involving illegal drugs, for
consideration by the Court, rather than proposing amendments to all possession-
related instructions at one time. We appreciate the Committee’s methodology in
bringing this matter before the Court.
2. Minor, technical changes to the instructions are not elaborated upon.

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 material in the [photograph] [motion picture] [exhibition] [show]
[representation] [presentation] and b) intentionally exercised
control over that [photograph] [motion picture] [exhibition]
[show] [representation] [presentation].

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

Joint possession. Give if applicable.
Possession may be sole or joint, that is, two or more persons
may possess a[n] [photograph] [motion picture] [exhibition]
[show] [representation] [presentation].

With regard to instruction 25.7, the explanation for “possession” used in

instruction 16.10 as amended is also added to instruction 25.7, with modifications

applicable to an offense pertaining to a controlled substance. In addition, the

definitions for “mixture,” “possession,” “actual possession,” and “constructive

possession” are removed, as is the inference for “exclusive control.”

Having considered the Committee’s report, the comment from attorney

Richard Sanders, and the Committee’s response, we authorize for publication and

use amended instructions 16.10 and 25.7, as proposed, and as set forth in the

appendix to this opinion.3 New language is indicated by underlining, and deleted

3. 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

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language is indicated by struck-through type. 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. 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. The

instructions as set forth in the appendix shall become effective when this opinion

becomes final.

It is so ordered.

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

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.

Original Proceeding – 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

/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.

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 APPENDIX

16.10 POSSESSION OF MATERIAL INCLUDING SEXUAL
CONDUCT BY A CHILD WITH INTENT TO PROMOTE
§ 827.071(4), Fla. Stat.

To prove the crime of Possession of Material including Sexual Conduct
by a Child with Intent to Promote, the State must prove the following two
elements beyond a reasonable doubt:

1. (Defendant) possessed with intent to promote a[n] [photograph]
[motion picture] [exhibition] [show] [representation]
[presentation].

2. The [photograph] [motion picture] [exhibition] [show]
[representation] [presentation] included, in whole or in
part, sexual conduct by a child less than 18 years of age.

The possession of three or more copies of such [photograph] [motion
picture] [exhibition] [show] [representation] [presentation] may justify a
finding of an intent to promote if, from all the surrounding facts and
circumstances, you are convinced beyond a reasonable doubt that the intent
existed.

Definitions.
Possession.
To prove (defendant) possessed a[n] [photograph] [motion picture]
[exhibition] [show] [representation] [presentation] that included sexual
conduct by a child, the State must prove beyond a reasonable doubt that [he]
[she] a) knew of the nature of the material in the [photograph] [motion
picture] [exhibition] [show] [representation] [presentation] and b)
intentionally exercised control over that [photograph] [motion picture]
[exhibition] [show] [representation] [presentation].

Give if applicable.
Control can be exercised over an item whether the item is carried on a
person, near a person, or in a completely separate location. Mere proximity to
an item does not establish that the person intentionally exercised control over
the item in the absence of additional evidence. Control can be established by

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proof that (defendant) had direct personal power to control the item or the
present ability to direct its control by another.

Joint possession. Give if applicable.
Possession may be sole or joint, that is, two or more persons may
possess a[n] [photograph] [motion picture] [exhibition] [show]
[representation] [presentation].

§ 827.071(1)(d), Fla. Stat.
“Promote” means to procure, manufacture, issue, sell, give, provide,
lend, mail, deliver, transfer, transmute, publish, distribute, circulate,
disseminate, present, exhibit, or advertise or to offer or agree to do the same.

§ 827.071(1)(h), Fla. Stat.
“Sexual conduct” means actual or simulated sexual intercourse, deviate
sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse;
actual lewd exhibition of the genitals; actual physical contact with a person’s
clothed or unclothed genitals, pubic area, buttocks, or, if such person is a
female, breast, with the intent to arouse or gratify the sexual desire of either
party; or any act or conduct which constitutes sexual battery or simulates that
sexual battery is being or will be committed.

Give if applicable.
A mother’s breastfeeding of her baby does not under any circumstance
constitute “sexual conduct.”

Give as applicable.
§ 827.071(1)(a), Fla. Stat.
“Deviate sexual intercourse” means sexual conduct between persons not
married to each other consisting of contact between the penis and the anus,
the mouth and the penis, or the mouth and the vulva.

§ 827.071(1)(e), Fla. Stat.
“Sadomasochistic abuse” means flagellation or torture by or upon a
person, or the condition of being fettered, bound, or otherwise physically
restrained, for the purpose of deriving sexual satisfaction from inflicting harm
on another or receiving such harm oneself.

§ 827.071(1)(f), Fla. Stat.
“Sexual battery” means oral, anal, or vaginal penetration by, or union
with, the sexual organ of another or the anal or vaginal penetration of another

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by any other object; however, “sexual battery” does not include an act done
for a bona fide medical purpose.

§ 827.071(1)(g), Fla. Stat.
“Sexual bestiality” means any sexual act between a person and an
animal involving the sex organ of the one and the mouth, anus, or vagina of
the other.

§ 827.071(1)(j), Fla. Stat.
“Simulated” means the explicit depiction of “sexual conduct,” as
defined above, which creates the appearance of such conduct and which
exhibits any uncovered portion of the breasts, genitals, or buttocks.

Lesser Included Offenses

POSSESSION OF MATERIAL INCLUDING SEXUAL
CONDUCT BY A CHILD WITH INTENT TO PROMOTE —
827.071(4)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Knowing possession of 827.071(5)(a) 16.11
a photograph, motion
picture, exhibition,
show, representation,
or other presentation
which, in whole or in
part, was known by
defendant to include
any sexual conduct by
a child
Attempt 777.04(1) 5.1

Comment

This instruction was adopted in 2008 [995 So. 2d 489] and amended in 2018.

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 25.7 POSSESSION OF A CONTROLLED SUBSTANCE
§ 893.13(6), Fla. Stat.

Certain drugs and chemical substances are by law known as “controlled
substances.” (Specific substance alleged) is a controlled substance.

To prove the crime of Possession of a Controlled Substance, the State
must prove the following [two] [three] [four] elements beyond a reasonable
doubt:

1. (Defendant) knew of the presence ofpossessed a substance.

2. (Defendant) exercised control or ownership over that substance.

32. The substance was (specific substance alleged).

§ 893.13(6)(b), Fla. Stat. Give if applicable.
The jury must make a finding as to weight if the defendant is charged with
possessing more than 20 grams of cannabis.
43. The cannabis weighed more than 20 grams.

§ 893.13(6)(c), Fla. Stat. Give if applicable.
The jury must make a finding as to weight if the defendant is charged with
violating § 893.13(6)(c), Fla. Stat.
4. The [(insert name of substance listed in 893.03(1)(a) or
893.03(1)(b)] [combination of (insert names of substances
listed in 893.03(1)(a) or 893.03(1)(b)] [mixture containing
(insert name of substance listed in 893.03(1)(a) or 893.03(1)(b)]
weighed more than 10 grams.

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

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

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power to control the substance or the present ability to direct its control by
another.

Joint possession. Give if applicable.
Possession of a substance may be sole or joint, that is, two or more
persons may possess a substance.

Definitions.
Give if applicable. Cannabis. §§ 893.02(3), 893.13(6)(b), Fla. Stat.
See Comment section for medical marijuana.
Cannabis means all parts of any plant of the genus Cannabis, whether
growing or not, and the seeds thereof [but does not include any resin extracted
from the plant].

Give if applicable. Mixture. § 893.02(16), Fla. Stat.
“Mixture” means any physical combination of two or more substances,
including, but not limited to, a blend, an aggregation, a suspension, an
emulsion, a solution, or a dosage unit, whether or not such combination can be
separated into its components by physical means, whether mechanical or
thermal.

Possession.
There are two types of possession: actual possession and constructive
possession.

Actual possession.
Actual possession means the person is aware of the presence of the
substance and:

a. The substance is in the hand of or on the person, or

b. The substance is in a container in the hand of or on
the person, or

c. The substance is so close as to be within ready reach
and is under the control of the person.

Constructive possession.
Constructive possession means the person is aware of the presence of
the substance, the substance is in a place over which the person has control,
and the person has the ability to control the substance.

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 Give if applicable.
Mere proximity to a substance is not sufficient to establish the power
and intention to control that substance when the substance is in a place that
the person does not control.

Give if applicable.
In order to establish (defendant’s) constructive possession of a substance
that was in a place [he] [she] did not control, the State must prove (defendant)
(1) knew that the substance was within [his] [her] presence and (2) exercised
control or ownership over the substance itself.

Joint possession.
Possession of a substance may be sole or joint, that is, two or more
persons may be aware of the presence of a substance and may jointly exercise
control over it. In that case, each of those persons is considered to be in
possession of the substance.

Give if applicable. § 893.02(19), Fla. Stat.
“Possession” includes temporary possession for the purpose of
verification or testing, irrespective of dominion or control.

Inference.
Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012);
Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).
If you find that (defendant):

a. had direct physical custody of the substance, [or]

b. was within ready reach of the substance and the
substance was under [his] [her] control, [or]

c. had exclusive control of the place where the substance
was located,

you may infer that [he] [she] was aware of the presence of the substance
and had the power and intention to control it.

If (defendant) did not have exclusive control over the place where a
substance was located, you may not infer [he] [she] had knowledge of the
presence of the substance or the power and intention to control it, in the
absence of other incriminating evidence.

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 Give if applicable. See Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).
However, you may infer that (defendant) knew of the presence of the
substance and had the power and intention to control it if [he] [she] had joint
control over the place where the substance was located, and the substance was
located in a common area in plain view and in the presence of the defendant.

Affirmative defense: Lack of knowledge of illicit nature. Give if applicable.
§ 893.101(2) and (3), Fla. Stat.
Lack of knowledge of the illicit nature of a controlled substance is a
defense to (crime charged). You are permittedmay but are not required to infer
that (defendant) was aware of the illicit nature of the controlled substance if
you find that [he] [she] knew of the presence of the substance and exercised
control or ownership over thepossessed the controlled substance.

If you are convinced beyond a reasonable doubt that (defendant) knew
of the illicit nature of the controlled substance, and all of the elements of the
charge have been proved, you should find [him] [her] guilty of Possession of a
Controlled Substance.

If you have a reasonable doubt on the question of whether (defendant)
knew of the illicit nature of the controlled substance, you should find [him]
[her] not guilty of Possession of a Controlled Substance.

Lesser Included Offenses

POSSESSION OF A CONTROLLED SUBSTANCE — 893.13(6)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Possession of Less 893.13(6)(b) 25.7
than 20 Grams of
Cannabis if the
felony level of
cannabis is charged
Attempt 777.04(1) 5.1

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 POSSESSION OF MORE THAN TEN GRAMS OF A CONTROLLED
SUBSTANCE LISTED IN 893.13(1)(a) OR (1)(b) — 893.13(6)(c)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Possession of a 893.13(6)(a) 25.7
controlled substance
(listed in
893.13(1)(a) or
(1)(b))
Attempt 777.04(1) 5.1

Comments

§ 893.21, Fla. Stat.
A person acting in good faith who seeks medical assistance for an individual
experiencing a drug-related overdose may not be prosecuted for Possession of a
Controlled Substance if the evidence of the possession was obtained as a result of
the person seeking medical assistance.

A special instruction is necessary when the defense is a mere involuntary or
superficial possession. See cases such as Hamilton v. State, 732 So. 2d 493 (Fla. 2d
DCA 1999) and Sanders v. State, 563 So. 2d 781 (Fla. 1st DCA 1990).

Starting in 2014, the Legislature passed laws pertaining to “medical
cannabis” or “low-THC cannabis,” which is excluded from the definition of
“cannabis” in § 893.02(3), Fla. Stat.; is defined in § 381.986(1), Fla. Stat.; and
must be manufactured, possessed, sold, purchased, delivered, distributed, or
dispensed in conformance with § 381.986, Fla. Stat. A special instruction will be
necessary in cases where a defendant relies on a cannabis-related prescription
defense.

This instruction was adopted in 1981 and amended in 1989 [543 So. 2d
1205], 1997 [697 So. 2d 84], 2007 [969 So. 2d 245], 2014 [153 So. 3d 192], 2016
[191 So. 3d 291], and 2017 [216 So. 3d 497], and 2018.

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