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text:
    Christopher S. HUGHES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1767.
    District Court of Appeal of Florida, Third District.
    July 12, 2006.
    Rehearing and Rehearing En Banc Denied Dec. 22, 2006.

      Jeffrey L. Freeman, Miami Beach, and James K. Rubin, North Miami Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellees.
    Before SUAREZ and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, Judge.

Christopher Scott Hughes (“Hughes”), a pilot for a commercial airline, and Thomas Porter Cloyd (“Cloyd”), a copilot for the same airline, were criminally prosecuted as codefendants and convicted of operating an aircraft while intoxicated or in a careless or reckless manner, in violation of section 860.13, Florida Statutes (2002). As Hughes and Cloyd have filed separate appeals, we have reviewed each separately. After a careful review of the record and the issues raised by Hughes, we affirm, and this opinion reflects our findings as to Hughes.

THE EVIDENCE

A brief review of the evidence is as follows. Hughes and Cloyd were scheduled to fly a commercial aircraft with approximately 125 passengers onboard, from Miami International Airport to Phoenix, Arizona, at 10:38 a.m., on July 1, 2002. Less than forty minutes prior to departure, Cloyd attempted to pass through an airport security checkpoint, carrying a cup of coffee. When security personnel stopped him and informed him that he could not pass through with the coffee, Cloyd became belligerent, demanded to see the regulations which prohibited the conduct, and used profanity. He did eventually dispose of the coffee. Meanwhile, when Hughes passed through the checkpoint, security personnel noticed an odor of an alcoholic beverage coming from Hughes, and asked him if he had been drinking. Hughes denied that he had been drinking. Security personnel allowed the defendants to continue to their gate, but reported their observations to the Transportation Security Administration (“TSA”) and the defendants’ airline. The TSA notified the Miami-Dade Police Department, and a number of police officers who worked at the airport responded. When they arrived, the defendants were in the cockpit of the aircraft, the jet way had been pulled back from the aircraft, and the aircraft was connected to the tug that pushes it out from the gate. The officers stopped the aircraft by ordering the tug driver to return the aircraft to the gate.

Sergeant Steve Leibowitz, who conducted an examination of the defendants, noticed that each had a flushed face, bloodshot eyes, and the odor of an alcoholic beverage on his breath. Based upon his observations, Sergeant Leibowitz performed a horizontal gaze nystagmus test (“HGN test”) on each of the defendants, and testified that the HGN tests indicated that each was impaired, with an estimated breath alcohol level of approximately .10 percent. He, therefore, arranged for the defendants to be transported to the police station for further testing.

Officer Harold Ruffner, who conducted a breath test of the defendants at the station, testified that Cloyd’s first breath result was .1091 and his second was .09; while Hughes’ readings were .084 and .081. H. Chip Wells, a forensic toxicologist, testified that, based upon the lowest of Cloyd’s breathalyzer test results, he calculated through retrograde extrapolation that Cloyd’s breath alcohol content was between .121 and .15; and that, based upon Hughes’ lowest breathalyzer result, Hughes’ breath alcohol content was between .113 and .145, when they were on-board the aircraft.

In addition to the observations of the security personnel and law enforcement, the results of the HGN tests, the breathalyzer results, and the forensic toxicologist’s expert opinion regarding the defendants’ breath alcohol at the time they were on-board the aircraft, the State introduced the defendants’ bar tab from the night before, a videotape of them at the bar being served, and the testimony of witnesses. This evidence corroborated the observations and test results regarding the defendants’ consumption of alcohol. The night before this scheduled flight, the defendants shared a bottle of wine with two crew members at dinner, and each of the defendants also drank a martini. From the restaurant, they proceeded to Mr. Moe’s Restaurant and Bar (“Moe’s”) where they opened a bar tab at approximately 10:49 p.m. From 10:49 at night until after 5:00 the next morning, they drank at Moe’s, ordering seven 34-ounce mugs of beer, eight 16-ounce mugs of beer, a martini, and a burger. The two crew members, who were with the defendants, consumed one 16-ounce beer, the martini, and the burger, and left before midnight. The videotape showed the defendants continuously drinking throughout the night, and leaving just after 5:00 a.m., with the remainder of their beers, which they poured into a plastic cup carried by Cloyd. The evidence also established that Cloyd, Hughes, and the crew arrived at the airport late because Hughes had overslept.

Over defense objection, the State elicited testimony regarding the .08 blood alcohol limitation for operating a motor vehicle contained in section 316.193, Florida Statutes, even though the statute Cloyd and Hughes were charged with violating, section 360.13, contains no such limitation. Aso, over defense objection, the State’s witnesses were permitted to discuss the .04 civil standard contained in the federal aviation regulations, whereas the defense was precluded from introducing the .10 presumption of impairment contained in the federal criminal code, 18 U.S.C. § 343 (1988).

Whether the defendants were operating the aircraft before the police intervened was a matter hotly disputed at trial. The State’s commercial aviation expert testified that he considered the pilots to be operating the aircraft when they activated and checked systems prior to departure, and he testified as to the extensive preflight inspections and systems checks that the pilots were required to complete. The pilots must enter critical data into the aircraft’s computer, including the flight plan of the route, performance data, takeoff speeds, fuel load, and radio configurations for the navigation radio. The information entered into the computer is then displayed in the cockpit for the pilots to refer to when flying the aircraft. The aviation expert testified that he would consider it careless and reckless to perform any of these functions while under the influence of alcohol because they are critical for safety. He testified that the captain gives permission to the tug to begin the push back of the aircraft, and that, although the driver of the tug is physically controlling the movement of the aircraft at that point, the captain is in actual control of the aircraft.

The driver of the tug testified that once the aircraft is hooked up to the tug, he has control of the aircraft; to his knowledge the pilot cannot steer the aircraft; and its engines are not on. He did admit, however, on cross-examination, that, when he is operating the tug, he has to wear a headset to communicate with the pilot and copilot, and cannot begin the push back until the pilot instructs him to do so.

The defendants moved for a judgment of acquittal, arguing that the evidence demonstrated that they did not operate or control the aircraft. The trial court denied their motions. The defendants requested a jury instruction on “inoperability,” arguing that the evidence established that the aircraft could not be flown while it was attached to the tug. Cloyd, but not Hughes, additionally requested that the court instruct the jury on attempt. Both requests were denied by the trial court. Over the defendants’ objections, the court granted the State’s request for an instruction on principals.

In closing argument, the State argued, over defense objection, that the defendants could be found guilty of violating section 860.13 under two separate theories: (1) by being under the influence of an alcoholic beverage or (2) by operating the aircraft in a careless or reckless manner. The State told the jury that it could find the defendants guilty even if it did not have unanimity regarding the specific theory of prosecution. The defendants moved for mistrial or, in the alternative, requested a specific instruction, requiring a unanimous verdict as to the theory upon which their verdict was based, and requested that the jury be given a special verdict form in order to identify its verdict as to each of the two theories of prosecution. The trial court denied these motions. The jury returned a guilty verdict, and the defendants were sentenced.

PREEMPTION

The first issue we address in this appeal is whether the trial court erred in denying Hughes’ motion to dismiss for lack of jurisdiction. It is Hughes’ position that the federal government has preempted all state action regarding the physical qualifications and capacity of a federally certified pilot. Prior to trial, the defendants moved to dismiss the charges based upon federal preemption. When the trial court denied the motion, and the defendants sought review with this court by filing a petition for writ of prohibition, this court denied the writ without opinion, and the defendants petitioned the federal court for a writ of habeas corpus. The United States District Court for the Southern District of Florida granted the petition, finding that the state action was preempted. Hughes v. Eleventh Judicial Circuit of Fla., 274 F.Supp.2d 1334 (S.D.Fla.2003). On appeal, the Eleventh Circuit Court of Appeals reversed the district court’s opinion, and held that the district court should have abstained from hearing the claim because the defendants’ preemption claim was not facially conclusive. Hughes v. Attorney Gen. of Fla., 377 F.3d 1258 (11th Cir.2004), cert. denied, 543 U.S. 1051, 125 S.Ct. 881, 160 L.Ed.2d 772 (2005).

Based upon controlling case law in our district, we conclude that this claim is barred by res judicata. At the time when the defendants filed their petition and we issued our mandate denying the petition on January 9, 2003, a denial of a petition for a writ of prohibition in our district was a ruling on the merits, unless otherwise indicated. See Obanion v. State, 496 So.2d 977, 980 (Fla. 3d DCA 1986), abrogated by Topps v. State, 865 So.2d 1253, 1258 (Fla. 2004). Because the preemption issue was already decided against the defendants on the merits, they are barred by res judicata from relitigating the claim. Denson v. State, 775 So.2d 288, 290 n. 3 (Fla.2000) (“The doctrine of res judicata provides that a final judgment on the merits is conclusive of the rights of the parties and constitutes a bar to a subsequent action or suit involving the same cause of action or subject matter.”).

While we conclude that the preemption issue is barred by res judicata, had the issue not been barred, we would have found, as did our sister court to the north, that the defendants’ prosecutions were not preempted. Gluhareff v. State, 888 So.2d 733 (Fla. 5th DCA 2004) (determining that section 860.13 is not preempted by federal law). Under the Supremacy Clause of the United States Constitution, the federal government has the power to preempt state criminal laws, and if state law conflicts with federal law, the state law must “yield.” See State v. Stepansky, 761 So.2d 1027, 1030-31 (Fla.2000). There are three types of preemption: (1) express preemption, (2) field preemption, and (3) conflict preemption. E.I. Du Pont de Nemours & Co. v. Aguamar S.A., 881 So.2d 1, 4 n. 3 (Fla. 4th DCA 2004). Express preemption is when the language of the federal statute explicitly demonstrates Congress’ intent to preempt state law. Field preemption applies when federal regulation in a legislative field is so pervasive, that Congress left no room for the states to supplement it. Conflict preemption occurs when it is impossible to comply with both federal and state law, or when state law stands as an obstacle to the objectives of federal law. Id.; State v. Harden, 873 So.2d 352, 354 (Fla. 3d DCA 2004).

In conducting a preemption analysis in areas traditionally regulated by the states, there is a presumption against preemption. California v. ARC Am. Corp., 490 U.S. 93, 101, 109 S.Ct. 1661, 104 L.Ed.2d 86 (1989) (“When Congress legislates in a field traditionally occupied by the States, ‘we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’ ”) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)). Thus, because criminal law is an area traditionally regulated by the states, the defendants have the burden of overcoming the presumption against preemption. Id.; Air Line Pilots Ass’n, Int’l v. UAL Corp., 874 F.2d 439 (7th Cir.1989); State v. Klinakis, 206 Ga.App. 318, 425 S.E.2d 665, 669 (1992).

Hughes argues that his prosecution is expressly preempted by 14 C.F.R. 121 App. I, § XI, which provides, in part, that any state law covering the subject matter of 14 C.F.R. Parts 65, 121, and 135, including drug testing, is preempted. We find that section 860.13, Florida Statutes, criminalizing the operation of an aircraft while under the influence or in a careless or reckless manner, does not cover the subject matter of the specified Parts. As explained by the Eleventh Circuit Court of Appeals, “[tjhose Parts deal with certification and operating requirements of various designated airline employees,” such as the drug testing requirements imposed upon such employees. Hughes v. Attorney Gen. of Fla., 377 F.3d 1258, 1273 (11th Cir. 2004), cert. denied, 543 U.S. 1051, 125 S.Ct. 881, 160 L.Ed.2d 772 (2005). However, unlike the Parts of the Code of Federal Regulations specified above, section 860.13 does not impose certification or operating requirements upon airline employees. Rather, it regulates the conduct of persons operating aircrafts. There is no language in 14 C.F.R. § 121 App. I, § XI or any other federal source stating that state criminal statutes regulating the conduct of those operating aircrafts are preempted. Therefore, 14 C.F.R. § 121 App. I, § XI does not expressly preempt this action.

Hughes argues that his prosecution is expressly preempted by 49 U.S.C. § 41713(b). This section is a part of the Federal Aviation Act, as amended by the Airline Deregulation Act. We find that this section does not expressly preempt state action either. The purpose of the Airline Deregulation Act was to deregulate the airline industry, while promoting not only lower prices, but higher quality, efficiency, and innovation. Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992). Since Congress did not want the states to interfere with those goals, it expressly preempted state laws or regulations related to price, route, and services of an air carrier. 49 U.S.C. § 41713(b); Morales, 504 U.S. at 378, 112 S.Ct. 2031. It did not include, however, a preemption of the criminal conduct of the crew. In fact, the Federal Aviation Act, as amended by the Airline Deregulation Act, does not provide for any criminal penalties for crew members operating an aircraft under the influence. While there are federal statutes criminalizing such conduct, 18 U.S.C. §§ 341-343 (2000), they are not a part of the federal aviation legislation or any statutory scheme dealing specifically with the airline industry. Rather, they are contained in the general criminal section of the Federal Code, and were enacted as a part of the Anti-Drug Abuse Act of 1986. We conclude that if Congress intended for section 41713(b) of the United States Code to preempt state law regarding criminal conduct, it could have expressly stated so as it did in regard to other areas.

In the alternative, Hughes argues that field preemption bars his prosecution because the federal government, through the Federal Aviation Administration (“FAA”), has issued pervasive regulations that preempt interference in the subject area of the qualifications and capacity of airmen to pilot aircraft in interstate commercial air transportation. We disagree. First, we note that field preemption should not be inferred “simply because [an] agency’s regulations are comprehensive.” R.J. Reynolds Tobacco Co. v. Durham County, N.C., 479 U.S. 130, 149, 107 S.Ct. 499, 93 L.Ed.2d 449 (1986); Hughes, 377 F.3d at 1267. Secondly, we find, as did the Eleventh Circuit Court of Appeals, that the existence of 14 C.F.R. § 91.17(c) “severely undercuts [the] argument that the challenged Florida criminal statutes are preempted.” Hughes, 377 F.3d at 1268. Section 91.17(c) of the Code of Federal Regulations provides:

(c) A crewmember shall do the following:
(1) On request of a law enforcement officer, submit to a test to indicate the percentage by weight of alcohol in the blood, when—
(i) The law enforcement officer is authorized under State or local law to conduct the test or to have the test conducted; and
(ii) The law enforcement officer is requesting submission to the test to investigate a suspected violation of State or local law governing the same or substantially similar conduct prohibited by paragraph (a)(1) [operating an aircraft within eight hours of consuming alcohol], (a)(2) [operating an aircraft while under the influence of alcohol], or (a)(4) [operating an aircraft while having a .04 percent or more blood alcohol level] of this section.

14 C.F.R. § 91.17(c). This section clearly allows states to investigate violations of their laws which make it illegal to pilot an aircraft while intoxicated, and may specifically do so when the state law prohibits conduct that is the same or is substantially similar to the conduct that is prohibited by a federal regulation. By allowing the investigation of a state law violation, it also clearly implies that such laws, once violated, may be prosecuted and are, therefore, not preempted.

Hughes’ final preemption argument is that his prosecution is barred by conflict preemption. We disagree because a pilot could comply with both the Florida law and the federal law and regulations, and criminalizing the operation of an aircraft while intoxicated does not stand as an obstacle to the federal regulatory scheme. Hughes, 377 F.3d at 1266 n. 11.

CONSTITUTIONAL CHALLENGES

Hughes claims that section 860.13, Florida Statutes (2002), is unconstitutional (1) due to vagueness and (2) because it incorporates federal standards.

Vagueness Challenge

Hughes claims that the statute is unconstitutionally vague as it fails to define “under the influence” and “operate.” He argues that the failure to define these terms denies a man of ordinary understanding the ability to determine what action is proscribed. By way of example, he argues that a person who consumes one alcoholic beverage and operates an emergency door on the aircraft, could be subject to this statute.

We begin our review and analysis with the presumption that the statute is constitutional, see Fla. Dep’t of Revenue v. City of Gainesville, 918 So.2d 250 (Fla. 2005); Fla. Dep’t of Educ. v. Glasser, 622 So.2d 944, 946 (Fla.1993), and that “courts have the judicial obligation to sustain legislative enactments when possible.” State v. Williams, 343 So.2d 35, 37 (Fla.1977).

A constitutional challenge as to vagueness is based upon procedural due process, whether the statute provides fair notice, measured by common practice and understanding, as to the conduct which is prohibited. Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Hermanson v. State, 604 So.2d 775 (Fla.1992). To raise a vagueness challenge, the defendant must demonstrate that the statute in question lacks specificity as to his own actions, as opposed to some hypothetical situation, State v. Normandale Props., 420 N.W.2d 259 (Minn.Ct. App.1988), or “on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court.” New York v. Ferber, 458 U.S. 747, 767,102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) (citing Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)); see also Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) (“A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.”); Sieniarecki v. State, 756 So.2d 68, 75 (Fla.2000) (defendant lacked standing to raise facial vagueness challenge where his conduct fell within the statute’s proscription); McKenney v. State, 388 So.2d 1232, 1233 (Fla.1980) (“A person whose conduct clearly falls within the statute’s prohibition cannot reasonably be said to have been denied adequate notice.... ”).

After reviewing the evidence presented at trial, we conclude that Hughes lacks the requisite standing to challenge the statute on vagueness grounds since his conduct clearly falls within the conduct proscribed in section 860.13, and that Hughes, who is a person of at least ordinary intelligence, should have had no difficulty in knowing that his conduct was vio-lative of section 860.13.

Section 860.13 is entitled “Operation of aircraft while intoxicated or in careless or reckless manner” and provides that it is unlawful to operate an aircraft in the air or on the ground while under the influence of alcoholic beverages or in a careless or reckless manner so as to endanger the life or property of another. The evidence presented at trial was that Hughes, knowing that he was scheduled to fly a commercial aircraft at 10:38 a.m. and required to board the aircraft forty-five minutes prior to departure (9:53 a.m.), and upon boarding, he was required to conduct a lengthy, detailed preflight procedure critical to the safety of the flight, the crew, and passengers, began drinking the evening before the flight, and continued to drink throughout the night and until 5:00 in the morning. He began with a martini and wine with dinner, and between he and the copilot, Cloyd, drank seven 34-ounce and seven 16-ounce mugs of beer. After drinking all night, Hughes returned to his hotel room at 5:30 a.m., overslept, causing him and the crew to arrive late at the airport. Based upon the HGN test conducted by Sergeant Leibowitz shortly after the aircraft was pushed back from the gate and cleared for departure, Sergeant Leibowitz estimated that Hughes’ blood alcohol level was at least .10. The breath test subsequently performed placed Hughes’ blood alcohol level at between .113 and .145 at the time Hughes was onboard the aircraft performing his preflight inspections, and safety checks, entering critical data in the aircraft’s computer, computing takeoff speeds, fuel load, and radio configurations, and communicating with the tower and the tug.

We, therefore, agree with the State, that Hughes’ conduct is clearly prohibited by section 860.13 and that he “cannot seriously contend that [he][was] not on notice that [his] conduct was illegal.” This is especially true given the fact that commercial airline pilots operate in a highly regulated industry where there is zero tolerance for alcohol in the cockpit. See Johnson v. Nat’l Transp. Safety Bd., 979 F.2d 618 (7th Cir.1992) (upholding the revocation of Johnson’s commercial pilot certificate for allowing his intoxicated copilot to fly the aircraft); 14 C.F.R § 91.11 (1999)(federal aeronautics safety regulation which prohibits any crewmember from serving as a crewmember with a .04 blood alcohol level or within eight hours of having consumed any alcohol). While we conclude that the statute, as applied to Hughes and under the facts of this case, is not unconstitutionally vague, and that Hughes, therefore, lacks standing to facially attack the statute on vagueness grounds, we will nevertheless extend our analysis to address the merits of his claim.

Hughes argues that the statute is unconstitutionally vague as it fails to define the terms “operate” and “under the influence.” We disagree. The plain and ordinary meaning of a word can be ascertained by reference to a dictionary, Sieniarecki, 756 So.2d at 75, or one may look to “ ‘case law or related statutory provisions which define the term.’ ” State v. Fuchs, 769 So.2d 1006, 1008 (Fla.2000) (quoting State v. Hagan, 387 So.2d 943, 945 (Fla.1980)). Section 860.13(2) provides:

In any prosecution charging careless or reckless operation of aircraft in violation of this section, the court, in determining whether the operation was careless or reckless, shall consider the standards for safe operation of aircraft as prescribed by federal statutes or regulations governing aeronautics.

As the statute itself incorporates the federal regulations and statutes governing aeronautics in determining what constitutes careless or reckless operation of an aircraft, we have reviewed both the dictionary definition of “operate” and the federal definition.

“Operate” is defined as “[t]o run or control the functioning of.” The American Heritage Dictionary of the English Language 1233 (4th ed. 2000). The FAA is charged with the responsibility of promoting air safety and has established various regulations regulating the airline industry and the conduct of pilots. The federal regulations governing aeronautics defines “operate” as follows:

Operate, with respect to aircraft, means use, cause to use or authorize to use aircraft, for the purpose (except as provided in § 91.13 of this chapter) of air navigation including the piloting of aircraft, with or without the right of legal control (as owner, lessee, or otherwise).

14 C.F.R. § 1.1 (1997).

Although Hughes did not fly the aircraft, the evidence established that he did “control the functioning of’ the aircraft, and did “use, cause to use or authorize to use [the] aircraft, for the purpose ... of air navigation.” He conducted extensive preflight inspections and systems checks, and inputted critical data into the aircraft computer with the intent (“for the purpose ... of’) to fly the passengers and crew from Miami to Phoenix (“air navigation”). As his onboard preflight activities clearly fall within both the dictionary definition and the definition of “operate” contained in the federal regulations, and the jury was provided with the definition of “operate” contained in the Code of Federal Regulations, we reject Hughes’ constitutional challenge of the statute based upon the failure of the statute to specifically define “operate.”

We likewise reject Hughes’ constitutional challenge based upon the statute’s failure to define “under the influence,” as his conduct, which we have previously addressed, is clearly prohibited under the statute. “The standard for testing vagueness under Florida law is whether the statute gives a person of ordinary intelligence fair notice of what constitutes forbidden conduct.” Brown v. State, 629 So.2d 841, 842 (Fla.1994). “A person whose conduct clearly falls within [a] statute’s prohibition cannot reasonably be said to have been denied adequate notice....” McKenney v. State, 388 So.2d 1232, 1233 (Fla.1980).

Incorporation Challenge

Hughes additionally argues that section 860.13(2) unconstitutionally incorporates federal regulations that did not exist at the time that the statute was enacted. Article II, section 3 of the Florida Constitution provides that no person belonging to one branch of the government may exercise any power belonging to the other branches. Because the legislature has the sole authority and responsibility to make laws, this provision has been construed to prohibit the legislature from delegating its power to others. Gallagher v. Motors Ins. Corp., 605 So.2d 62, 71 (Fla.1992); Adoue v. State, 408 So.2d 567, 570 (Fla.1981). Therefore, although the legislature may adopt or incorporate regulatory and statutory standards existing at the time of the adoption, any attempt to adopt or incorporate standards that will arise in the future is unconstitutional as an improper delegation of legislative power. Adoue, 408 So.2d at 570; State v. Carswell, 557 So.2d 183, 184 (Fla. 3d DCA 1990).

Section 860.13 was last reenacted without any amendments in 1983. Thus, incorporation of a federal standard that did not come into existence until after 1983, would be unconstitutional. Section 860.13(2) provides:

In any prosecution charging careless or reckless operation of aircraft in violation of this section, the court, in determining whether the operation was careless or reckless, shall consider the standards for safe operation of aircraft as prescribed by federal statutes or regulations governing aeronautics.

In Carswell, we found that section 860.13(2) does incorporate the federal standards for the safe operations of aircraft. Carswell, 557 So.2d at 184. As it was undisputed in Carswell that the federal standards relied upon in that case existed at the time of section 860.13’s enactment, we concluded that there was no improper delegation of legislative power. Id. In the instant case, however, the parties dispute whether the federal standards relied upon in this case existed at the time that section 860.13 was reenacted in 1983. The federal standards referred to in the instant case are found in 14 C.F.R. § 91.17(a), which prohibit a crewmember from acting in that capacity within eight hours of consuming any alcoholic beverage or with a blood alcohol level of .04 percent or higher. In 1983, the federal regulations clearly prohibited acting as a crewmember within eight hours of consuming alcohol. See 14 C.F.R. § 91.11. However, the prohibition against acting as a crewmember with a blood alcohol level of .04 percent or higher, did not exist in 1983. Thus, for section 860.13(2) to adopt and include the federal regulation prohibiting acting as a crew member with a blood alcohol level of .04 percent or higher, would constitute an unconstitutional delegation of legislative power. Because we must construe statutes in a manner so as to uphold their constitutionality, we interpret section 860.13(2) to incorporate only those federal aeronautic safety regulations that existed in 1983. As we conclude that section 860.13(2) cannot and, therefore, does not incorporate the federal .04 percent blood alcohol standard, we deny Hughes’ constitutional challenge on that ground.

EVIDENTIARY ISSUES

Admission at Trial of Federal Aviation Regulations

Over defense objection, the trial court permitted the State to introduce evidence that, pursuant to federal regulations for the safe operation of an aircraft, a crewmember is prohibited from operating an aircraft within eight hours of consuming any alcoholic beverages, or with a blood alcohol level of .04 or above. As section 860.13(2) specifically provides that the court shall consider federal regulations governing aeronautics in determining whether the operation of the aircraft was done in a careless or reckless manner, and the prohibition against operating an aircraft within eight hours of consuming any alcoholic beverage, which is found in 14 C.F.R. § 91.17(a), was in existence when section 860.13(2) was reenacted in 1983, we conclude that the trial court properly allowed the introduction of this evidence. We, however, agree with Hughes that the trial court erred in allowing the State to introduce evidence that under these same regulations, a crewmember is prohibited from operating an aircraft with a blood alcohol level of .04 percent or above, as this regulation was not in existence when section 860.13 was reenacted. Based upon our review of the evidence and the focus of the State’s closing argument, we, however, find that the error was harmless beyond a reasonable doubt. See Smith v. State, 888 So.2d 112 (Fla. 3d DCA 2004) (applying the harmless beyond a reasonable doubt standard where an employee manual was improperly introduced to establish defendant’s guilt as to grand theft).

A review of the record reflects that the State focused on Hughes’ actions, not on federal regulations. The State argued that it had proven its case based upon the following. When Hughes arrived for the 10:38 a.m. flight, he was late, smelled of alcoholic beverages, had bloodshot eyes and a flushed face, but denied that he had been drinking. The evidence established that he had consumed a martini and wine with dinner and continued to drink all night with the copilot. Together they consumed seven 34-ounce and seven 16-ounce mugs of beer, drinking until at least 5:00 a.m., despite being required to begin preflight operations before 10:00 that morning for a commercial flight earry-ing over 100 passengers. In support of the State’s claim that Hughes appeared to be under the influence and that he had in fact consumed as much alcohol and as late as the evidence suggested, the State relied on the results of the HGN test, which placed Hughes’ blood alcohol level at, at least, .10; the subsequent breath test results, which placed his blood alcohol level at between .113 and .145 when he was operating the aircraft; Hughes’ admission that he had consumed “many” beers throughout the night; and the expert’s testimony that Hughes’ ability to operate the critical systems of the aircraft would be impaired at these levels. As the State did not place any emphasis on the improperly admitted evidence, and the evidence establishing that Hughes operated the aircraft under the influence of alcoholic beverages and/or in a careless or reckless manner so as to endanger the lives of those aboard the aircraft was overwhelming, we conclude that the improperly introduced evidence was harmless beyond a reasonable doubt.

Failure to Admit the .10 Federal Criminal Presumption

While Hughes claims that the trial court erred when it precluded him from introducing evidence that, under the federal law criminalizing the operation of a common carrier under the influence of alcohol, the presumption of intoxication is .10, we reject this argument on the same basis wherein we concluded that the federal regulation prohibiting operation of an aircraft with a blood alcohol level of .04 was inadmissible. The federal statutes in question, 18 U.S.C. §§ 342-43 (2000), was not created until 1986. See Pub. L. 99-570, Title I, § 1971(a), Oct. 27, 1986, 100 State. 3207-59. This federal statute, therefore, could not have been adopted by the Florida Legislature when it reenacted section 860.13 in 1983 and, thus, was not admissible. Adoue, 408 So.2d at 570; Carswell, 557 So.2d at 184. Furthermore, section 860.13(2) requires the court to consider the “standards for safe operation of aircraft as prescribed by federal statutes or regulations governing aeronautics.” The .10 presumption of intoxication is not relevant as to whether Hughes was operating the aircraft under the influence or in a careless or reckless manner. They are entirely different standards. The trial court, therefore, did not abuse its discretion in denying the introduction of the federal criminal intoxication presumption.

Admission of Tharpe’s Equation

Hughes contends that the trial court erred in permitting Sergeant Lei-bowitz to rely on the Tharpe’s Equation after performing the HGN test in estimating Hughes’ blood alcohol level, without conducting a Frye analysis to determine its validity. The HGN test evaluates the ability of the eye to track a moving object smoothly. See Williams v. State, 710 So.2d 24, 29 n. 7 (Fla. 3d DCA 1998). The Tharpe’s Equation is the formula used to correlate a blood alcohol level based upon the angle of onset of the observed nystag-mus, which is when the eye begins to “jerk” while trying to follow an object.

In Williams, we took judicial notice that HGN test results are generally accepted as reliable in the relevant scientific community and therefore, the requirements of Frye were satisfied. Williams, 710 So.2d at 32. Once a proper foundation is laid that the test was correctly administered by an officer properly trained and qualified to administer the test, the results are admissible. Id.; see also Bowen v. State, 745 So.2d 1108 (Fla. 3d DCA 1999).

Use of Beer Mugs as Demonstrative Evidence

Hughes additionally objects to the State’s use of fourteen beer mugs as demonstrative evidence of the number and size of the beers reflected on Hughes’ and Cloyd’s bar tab, as none of the witnesses could testify that Hughes and Cloyd drank all of the beer contained on their tab. “ ‘Demonstrative evidence is admissible only when it is relevant to the issues in the case. Such evidence is generally more effective than a description given by a witness, for it enables the jury, or the court, to see and thereby better understand the question or issue involved.’ ” Harris v. State, 843 So.2d 856, 863 (Fla.2003) (quoting Alston v. Shiver, 105 So.2d 785, 791 (Fla.1958)). The number and size of the beers reflected on the bar tab was relevant as to the amount of beer Hughes and Cloyd had consumed that night and was supported by their blood alcohol levels the following morning onboard the aircraft. While there was no witness who actually observed exactly how many mugs of beer each drank, that fact goes to the weight, not the admissibility of the evidence. As the demonstrative evidence was relevant and supported by competent substantial evidence, we find no abuse of discretion in its use.

JURY INSTRUCTIONS

Inoperability

Hughes argues that, because the aircraft was attached to a tug which controlled the movement of the aircraft, the trial court erred in rejecting his request for a jury instruction on inoperability. In-operability is a defense to driving a motor vehicle under the influence, pursuant to section 316.193, Florida Statutes (2002).

Section 316.193, the driving under the influence statute, provides that, before a person may be found guilty of this offense, the State must prove the following two elements beyond a reasonable doubt:

1. That the defendant drove or was in actual physical control of a vehicle, and
2. While driving or in actual physical control of the vehicle the defendant
a. was under the influence of [alcoholic beverages][a chemical substance][a controlled substance] to the extent that [his][her] normal faculties were impaired, or
b. had a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood, or a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.
“Actual physical control of a vehicle” means the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether he/she is actually operating the vehicle at the time.

Fla. Std. Jury Instr. (Crina.) 28.1.

A defendant, therefore, may be found guilty of this offense if he/she (1) drove or is driving a vehicle while under the influence or (2) is in actual physical control of a vehicle while under the influence. While the State is not required to prove that the vehicle is capable of operation, inoperability may be a defense to whether the defendant was in actual physical control of the vehicle. Jones v. State, 510 So.2d 1147, 1149 (Fla. 1st DCA 1987); see also Standard Jury Instructions in Criminal Cases (97-2), 723 So.2d 123, 144-47 (Fla.1998). The defense of inoperability is based upon the premise that:

a person ought not be convicted of having a vehicle under his or her control while intoxicated when in fact the vehicle was inoperable, the intoxicated person did not operate the vehicle prior to its becoming disabled, and the vehicle’s mechanical problems were such that it could not under any reasonable circumstances have been operated by the person accused.

Jones v. State, 510 So.2d at 1149.

Hughes, however, was not charged with violating section 316.193, the driving under the influence statute. Rather, he was charged with violating section 860.13, Florida Statutes (2002), “Operation of aircraft while intoxicated or in careless or reckless manner,” which provides, in part, that:

(1) It shall be unlawful for any person:
(a) To operate an aircraft in the air or on the ground or water while under the influence of:
1. Alcoholic beverages;
2. Any substance controlled under chapter 893;
3. Any chemical substance set forth in s. 877.111; or
(b) To operate an aircraft in the air or on the ground or water in a careless or reckless manner so as to endanger the life or property of another.
(2) In any prosecution charging careless or reckless operation of aircraft in violation of this section, the court; in determining whether the operation was careless or reckless, shall consider the standards for safe operation of aircraft as prescribed by federal statutes or regulations governing aeronautics.

§ 860.13, Fla. Stat. (2002). Since the statute itself requires that the federal statutes and regulations governing aeronautics be considered in determining whether the operation of the aircraft was careless or reckless, the trial court relied on the federal statute which defines what “operates” means with respect to an aircraft:

Operate, with respect to aircraft, means use, cause to use or authorize to use aircraft, for the purpose (except as provided in § 91.13 of this chapter) of air navigation including the piloting of aircraft, with or without the right of legal control (as owner, lessee, or otherwise).

14 C.F.R. § 1.1 (1997).

As is readily obvious, section 860.13, the statute under which Hughes was charged and convicted, differs from section 316.193, the driving under the influence statute. The elements are not the same, nor is the proof which is required to sustain a conviction. While the driving under the influence statute, section 316.193, requires that the State prove that the accused was driving or in actual physical control of the vehicle while under the influence, the statute Hughes was charged with violating, section 860.13, requires operation of the aircraft while under the influence or in a careless or reckless manner. While operability may be a defense to the driving under the influence statute, it is an dement of the crime charged pursuant to section 860.13. While the trial court must instruct the jury on the applicable law regarding a defense whenever there is evidence introduced at trial which supports that theory of defense, Hamilton v. State, 703 So.2d 1038, 1042 (Fla.1997); Bryant v. State, 412 So.2d 347, 350 (Fla.1982), operability in this case is an element of the crime charged. As such, the jury was instructed that before it could find the defendant guilty, the State was required to prove beyond a reasonable doubt that the defendant operated the aircraft, and the trial court also instructed the jury as to the definition of “operate” with respect to an aircraft.

“[A] trial court has wide discretion in instructing the jury, and the court’s decision regarding the charge to the jury is reviewed with a presumption of correctness on appeal,” Carpenter v. State, 785 So.2d 1182, 1199-1200 (Fla.2001), which will not be disturbed on appeal “unless palpable abuse of this discretion is clearly shown from the record.” Williams v. State, 437 So.2d 133, 136 (Fla.1983). The trial court is not required to provide additional instructions if the instructions given are adequate or when a requested instruction would only serve to confuse the jury. See Carpenter, 785 So.2d at 1200; Doyle v. State, 483 So.2d 89, 90 (Fla. 4th DCA 1986).

Because “operate” is an element of the crime charged and that term was defined, we find that the trial court did not err in failing to instruct the jury on “inoperability.” Additionally, as actual physical control only requires that the vehicle, which in this case is an aircraft, be reasonably capable of being rendered operable, not that the defendant have the immediate ability to operate the vehicle, the trial court did not err by failing to provide the requested instruction.

A review of the case law reveals that the “reasonably capable of being rendered operable standard” is applied when a person is charged with driving under the influence and claims either that the vehicle was not operational or that he was not in actual physical control of the vehicle. For example, if a person is found passed out behind the steering wheel of a vehicle with the keys either in the ignition or on the floor of the vehicle, he may be found guilty of violating this statute because he is in actual physical control of a vehicle which can readily be made operational. See State, Dep’t of Highway Safety & Motor Vehicles v. Prue, 701 So.2d 637 (Fla. 2d DCA 1997) (conviction upheld for being in actual physical control while under the influence where a defendant was found passed out in a vehicle on the shoulder of a highway, with her face resting on the steering wheel and the keys either in the ignition or on the floor of the vehicle, because she could have used the keys to start the vehicle and drive away); Baltrus v. State, 571 So.2d 75 (Fla. 4th DCA 1990) (upholding the reversal of a motion to dismiss where the defendant was found passed out and slumped over the steering wheel of his car, with the keys to the car in his hands); Fieselman v. State, 537 So.2d 603 (Fla. 3d DCA 1988) (finding that the trial court erred by dismissing a charge of being in actual physical control of a vehicle while under the influence, where the defendant was found lying down, asleep in the front seat of his automobile, with the engine off but with the keys in the ignition, explaining that the presence of the keys in the ignition led to the inference that the defendant could have started the automobile and have driven away at any time); Griffin v. State, 457 So.2d 1070, 1072 (Fla. 2d DCA 1984) (affirming a conviction based upon actual physical control where the defendant was in the driver’s seat of a car that was stationary in the roadway with the keys in the ignition and the lights on, finding that, since the defendant had “placed himself behind the wheel of the vehicle and could have at any time started the automobile and driven away,” he was in actual physical control of the vehicle).

In State v. Smelter, 36 Wash.App. 439, 674 P.2d 690 (1984), a case relied upon by the First District in Jones v. State, 510 So.2d 1147 (Fla. 1st DCA 1987), the court applied the “reasonably capable of being rendered operable standard” to a driving under the influence statute similar to Florida’s, and concluded that the defendant was in actual physical control and, therefore, guilty of the offense, where he was found intoxicated in his car which was out of gas. The court explained that “control” means more than the ability to stop an automobile. It includes the authority to manage it. Smelter, 674 P.2d at 691-92. “Actual physical control” is the present ability to operate, move, park, or direct whatever use or non-use is to be made of the motor vehicle at the moment. Id. (citing State v. Purcell, 336 A.2d 223, 226 (Del.Super.Ct.1975)); see also State v. Starfield, 481 N.W.2d 834 (Minn.1992) (actual physical control proven where car keys were found in defendant’s jacket pocket and car was stuck in a snow-filled ditch); Abeln v. Comm’r of Pub. Safety, 413 N.W.2d 546 (Minn.Ct.App.1987) (actual physical control found despite dead battery); State v. Woodward, 408 N.W.2d 927 (Minn.Ct.App.1987) (actual physical control found where vehicle had a flat tire); State v. Duemke, 352 N.W.2d 427 (Minn.Ct.App.1984) (actual physical control where car was stuck in a snow-filled ditch).

In contrast, when a vehicle’s condition renders it incapable of being operated and it cannot be readily made operable due to the necessity of making substantial mechanical repairs or other factors which reflect that the vehicle’s disability is not just temporary, then physical control is not established. See Jones, 510 So.2d 1147, 1149 (Fla. 1st DCA 1987) (finding that the defendant could not be convicted of driving under the influence in light of evidence that the vehicle she was found in was inoperable, the defendant did not operate the vehicle prior to it becoming disabled, and the vehicle’s mechanical problems were such that it could not, under any reasonable circumstances, have been operated where vehicle had to be pushed to an automobile repair shop and electrical problems prevented the car from running); State v. Carter, 889 S.W.2d 231, 233 (Tenn.Crim.App.1994) (finding insufficient evidence to support defendant’s conviction for driving under the influence because her car was incapable of being operated without substantial mechanical repairs; experienced mechanic testified that the car was “dead,” could not be jump started, and could only be started if the carburetor was replaced or taken apart and thoroughly cleaned).

The rationale for applying the “reasonably capable of being rendered operable standard” is due to the recognition that the law in this area is preventive in nature. Its purpose is to deter intoxicated individuals from getting into their vehicles, except as passengers, and enables law enforcement to apprehend an intoxicated driver before he strikes.

In general, laws prohibiting driving while intoxicated are deemed remedial statutes, to be “liberally interpreted in favor of the public interest and against the private interests of the drivers involved.” [State v. Juncewski, 308 N.W.2d 316, 319 (Minn.1981) ]. Specifically, actual physical control statutes have been characterized as “preventive measure[s],” State v. Schuler, [243 N.W.2d 367, 370 (N.D.1976) ], which “deter individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers,” State v. Ghylin, [250 N.W.2d 252, 255 (N.D.1977) ], and which “enable the drunken driver to be apprehended before he strikes.” State v. Webb, [78 Ariz. 8, 274 P.2d 338, 339 (1954) ].

Smelter, 674 P.2d at 693. It is for these reasons that the courts in our state and in the states which have similar driving under the influence statutes have concluded that temporary inoperability does not preclude a finding of physical control, and have held “that physical control is meant to include situations where an intoxicated individual is found in a parked car under circumstances where the car, without too much difficulty, might again be started and become a source of danger to the driver, to others, or to property.” State v. Hendricks, 586 N.W.2d 413, 415 (Minn.Ct.App. 1999) (citing Starfield, 481 N.W.2d at 838-39).

In the instant case, there was no evidence introduced which even suggested that the aircraft was experiencing any mechanical difficulties. Although the aircraft was not capable of moving under its own power when it was attached to the tug, the defendants easily could have rendered it capable of moving under its own power at any time by ordering the tug to be detached from the aircraft. But more importantly, whether the defendants could move the aircraft under its own power during the time it was being towed by the tug is irrelevant and, with all due respect to the defense, nothing more than a red herring. The undisputed evidence at trial was that the defendants “operated” the aircraft well before it was attached to the tug and towed away from the gate in preparation for its takeoff. The undisputed evidence was that the defendants, acting as pilot and copilot of this commercial aircraft with over 100 passengers onboard, while sitting in the cockpit of the aircraft and thus in actual physical control of the aircraft, performed extensive preflight duties for the purpose of flying the aircraft.

To “[o]perate, with respect to aircraft, means use, cause to use or authorize to use aircraft, for the purpose ... of air navigation including the piloting of aircraft, with or without the right of legal control.... ” 14 C.F.R. § 1.1 (1997). Captain Chronic, an expert in the field of aircraft operations and flight standardization safety, testified that part of operating the aircraft is properly checking the operational systems; imputing the flight plan, takeoff speeds, fuel load, and any special radio configuration for navigation into the computer system; performing the “flow” and systems checks; obtaining permission to fly by radioing the air traffic controller on an assigned frequency and obtaining clearance information, the altitude, and the transponder code; and obtaining the total weight of the aircraft just before departure which is then used to correlate a speed from a speed chart which becomes critical information in the event a takeoff must be aborted. He testified that each of the many required and vital tasks the pilot and copilot must perform before the aircraft can move, is operating the aircraft, and that it is only after all of these functions are concluded that clearance may be obtained to move the aircraft. Once clearance has been obtained, the captain (pilot) releases the brake and orders the tug to push back the aircraft. Captain Chronic testified that, although the ramp crew is steering the aircraft while it is being towed, the captain (pilot) is actually in charge of the aircraft and is in charge from the time the door is closed. His undisputed testimony was that, by engaging in the extensive preflight procedures, the defendants were “using the aircraft for the purpose of air navigation” and, therefore, operating the aircraft.

The State’s case, simply put, was that the defendants operated the aircraft under the influence of alcohol or in a careless or reckless manner during these preflight procedures, not that they flew or drove the aircraft while under the influence or in a careless or reckless manner. If the jury was not persuaded by the evidence that these procedures satisfied the “operate” prong, the defendants would have been not guilty.

In summary, since (1) the State was required to prove beyond a reasonable doubt that Hughes did operate the aircraft (an essential element of the crime charged); (2) the State’s case was premised on whether the pilot and copilot violated the statute by taking control of the aircraft and performing the preflight functions while under the influence of alcohol; and (3) as there was no evidence of any mechanical or other problem which rendered the aircraft incapable of being operated without substantial mechanical repairs, the trial court did not abuse its discretion by failing to instruct on inopera-bility.

THE VERDICT

Pursuant to section 860.18, it is unlawful to operate an aircraft (1) while under the influence or (2) in a careless or reckless manner so as to endanger the life or property of another. Hughes claims that the statute, as written, defines two separate unlawful acts. He, therefore, argues that the trial court erred in permitting the State to argue, over his objection, that it was not necessary for the jurors to reach a unanimous verdict as to which unlawful act the defendant had committed, and in denying his request for a unanimity instruction. We agree.

In reaching the conclusion that section 860.13 creates two separate offenses, rather than a single offense which can be committed in two separate ways, we examined other cases where this issue was addressed. In State v. Rolle, 560 So.2d 1154 (Fla.1990), the Florida Supreme Court, in conducting its examination of Florida’s Driving Under the Influence statute, section 316.193, concluded that while the pre-1983 version of the statute created two separate offenses, the statute as amended in 1983, created one offense which could be proven in either of two ways. The earlier version made it a crime if you either (1) drove or were in actual physical control of a vehicle while under the influence to the extent that your normal faculties were impaired or (2) drove or were in actual physical control of a vehicle with a blood alcohol level of .10 or above. In contrast, the post-1983 version made it unlawful to drive or be in actual physical control of a vehicle while under the influence (1) to the extent that your normal faculties were impaired or (2) with a blood alcohol level of .10 or above. This later version created a single offense because under either scenario, the driver was guilty if he drove or was in actual physical control of a vehicle while under the influence to a particular degree: in one instance, to the extent that his normal faculties were impaired, and in the other instance if his blood alcohol level reached a particular numerical level. Thus, under the post-1983 version of the statute, which created one offense which could be proven by alternative theories, the jury would not be required to unanimously agree on which theory was proven. Euceda v. State, 711 So.2d 122 (Fla. 3d DCA 1998); Dejerez v. State, 580 So.2d 656 (Fla. 4th DCA 1991).

The reverse was found in State v. Dumas, 700 So.2d 1223 (Fla.1997), regarding section 316.027, which prohibits leaving the scene of an accident involving death or personal injury. The Florida Supreme Court found that the earlier version of the statute created one offense, while the 1983 statute, as amended, created two separate offenses. The earlier version provided that leaving the scene of an accident resulting in injury or death was a third degree felony. The post-1983 version, however, separated the offense into two categories based upon the level of the injury and provides for greater punishment based upon the severity of the offense. The posH983 version provides that leaving the scene of an accident resulting in injury is a third degree felony, while leaving the scene of an accident resulting in death is a second degree felony. As each offense varies in degree and in punishment, unanimity is required.

Based upon our review of these cases, we conclude that when a statute sets forth a specific prohibited act and then specifies the various means by which the act can be committed, then, and only then, does it create a single offense. When a statute sets forth various acts, stating that each is prohibited and/or provides for different punishment depending on the act committed, then the statute creates multiple offenses.

The State argues that section 860.13 creates a single offense, the dangerous operation of an aircraft, which can be violated in either of two ways, by operating an aircraft while under the influence or by operating an aircraft in a careless or reckless manner. We disagree, as the statute is simply not worded as the State suggests. The title of the statute is “Operation of aircraft while intoxicated or in careless or reckless manner,” while the statute itself specifies that “(1) It shall be unlawful for any person: (a) To operate an aircraft ... while under the influence ... or (b) To operate an aircraft ... in a careless or reckless manner so as to endanger the life or property of another.” Thus, we conclude that the statute prohibits two separate acts: one prohibiting the operation of an aircraft while under the influence and, the other, prohibiting the operation of an aircraft in a careless or reckless manner. Because the statute, as worded, creates two separate offenses, we agree with Hughes that unanimity was required. Thus, the trial court erred in permitting the State to argue otherwise and by denying Hughes’ request for a curative instruction.

Based on the particular facts of this ease and the wording of section 860.13, we, however, conclude that the error constitutes harmless error, as any reasonable person who concluded that Hughes was operating the aircraft while under the influence, would conclude that his conduct was careless or reckless. Thus, the jury by unanimously finding that Hughes was guilty of operating an aircraft either under the influence, or in a careless or reckless manner, necessarily found that he had operated the aircraft in a careless or reckless manner.

MISCELLANEOUS

We have additionally reviewed the remaining arguments on appeal, and conclude that they are without merit.

Affirmed.

SUAREZ, J., concurs.

SCHWARTZ, Senior Judge, concurs in conclusion only.

      . We likewise find that Sergeant Leibowitz's brief reference to Florida’s .08 percent blood alcohol limit for operating a motor vehicle was error, but the error was harmless beyond a reasonable doubt based upon the totality of the evidence and the State's failure to refer to it during its closing argument.

      . If the legislature intended to establish a single offense that can be committed in two separate ways, it must amend the statute accordingly.


author: BROWNING, C.J.

text:
    David P. LOPEZ, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D06-1550.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2006.
    Rehearing Denied Dec. 4, 2006.
    David P. Lopez, pro se, Petitioner.
    Bradley R. Bischoff, Assistant General Counsel, for Respondent.
   BROWNING, C.J.

The petitioner seeks certiorari relief from the ruling of the circuit court, sitting in its appellate capacity, denying certiorari and mandamus relief from the Florida Parole Commission’s decision to reject the hearing examiner’s non-binding recommendation to restore the petitioner to conditional release supervision. See Harvard v. Fla. Parole Comm’n, 782 So.2d 904 (Fla. 1st DCA 2001) (concluding that petitioner failed to show denial of due process of law or misapplication of law by circuit court, sitting in its appellate capacity, where Commission was not bound by parole examiner’s recommendation of a presumptive parole release date). The Commission accepted the hearing examiner’s finding of guilt upon the petitioner’s admission of guilt, but the Commission elected to revoke conditional release supervision. The petitioner misplaces his reliance on the materially distinguishable holding in Ellis v. Fla. Parole Comm’n, 911 So.2d 831, 832-33 (Fla. 1st DCA 2005), in which the Commission improperly rejected the hearing officer’s factual determination that Ellis’ violation was not willful (which was supported by competent substantial evidence) and made its own determination that Ellis had acted willfully and, thus, had violated conditional release. The petitioner has not met his extraordinary burden to show that the circuit court denied him procedural due process and failed to observe the essential requirements of law. See Sheley v. Fla. Parole Comm’n, 703 So.2d 1202 (Fla. 1st DCA 1997), approved, 720 So.2d 216 (Fla.1998). Accordingly, the petition for writ of certiorari is DENIED on the merits.

KAHN and DAVIS, JJ., concur.


author: PER CURIAM.

text:
    Sonja Renee JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-2300.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2006.
    Rehearing Denied Dec. 4, 2006.
    Sonja Renee Johnson, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

By petition for writ of mandamus, Sonja Renee Johnson seeks an order directing the circuit court to resentence her with the benefit of the corrected criminal punishment code scoresheet. However, Johnson fails to show that she has made an express, distinct demand of the circuit court that it perform this act. In the absence of such a showing, petitioner has failed to demonstrate an entitlement to mandamus relief. See Ward v. State, 875 So.2d 771 (Fla. 1st DCA 2004).

PETITION FOR WRIT OF MANDAMUS DENIED.

KAHN, BENTON, and LEWIS, JJ., concur.


author: ROTHENBERG, Judge.

text:
    Mikhail SHTALENKOV, Appellant, v. Dana J. DEATHERAGE, Appellee.
    No. 3D05-1679.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 2006.

      Jose M. Medina, Miami, for appellant.
    Pape & Chandler, John Pape and Marc A. Chandler, Fort Lauderdale, for appel-lee.
    Before RAMIREZ, SHEPHERD, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

Mikhail Shtalenkov, the appellant and father of two minor children born on December 5, 2000 (“father”), appeals a child support order. He challenges an adverse ruling on his motion to dismiss the complaint filed by the mother of the children, Dana J. Deatherage (“mother”), for failure to effectuate timely service upon him. Additionally, the father appeals the trial court’s conclusion that his financial affidavit reflects his income in dollars, rather than in rubles. We affirm.

The instant lawsuit is the result of a paternity action and subsequent attempt by the mother to obtain child support for the two children the appellant fathered while employed as a professional hockey player for the Florida Panthers of the National Hockey League. After it was determined that the appellant fathered the children, he returned to his native country, Russia. After numerous attempts to locate and serve the father, both in the United States and in Russia, service was effectuated. The father moved to dismiss the complaint due to protracted delay in perfecting service.

While Florida Rule of Civil Procedure 1.070(j) provides for a 120-day window in which to effectuate service after the filing of the initial pleading, the rule does allow for extensions “for an appropriate period” upon a showing of good cause or excusable neglect. While such extensions are within the discretion of the trial court, see Almeida v. FMC Corp., 740 So.2d 557 (Fla. 3d DCA 1999), we recognize that this discretion is not limitless. Based upon the record before us, we conclude that the trial court did not abuse its discretion in granting the extension and in denying the father’s motion to dismiss the complaint on that ground.

The father also claims that the trial court erred in concluding that the financial affidavit he submitted reflects his income in dollars, as he claims the sums are reported in rubles. Based upon the incomplete record provided, we are unable to perform any meaningful review regarding this claim and, therefore, affirm on this ground as well.

Affirmed.


author: THOMAS, J.

text:
    Brian BRADLEY and Markesha Bradley, individually and as Parents and Next Friends of Brian Bradley, Jr., a minor, Appellants, v. SOUTHERN BAPTIST HOSPITAL OF FLORIDA, INC., a Florida corporation, Appellee.
    No. 1D05-1816.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2006.
    Rehearing Denied Nov. 30, 2006.

      Tracy S. Carlin of Mills & Carlin, P.A., Jacksonville, for Appellants.
    William E. Kuntz, Earl E. Googe, Jr., and Michael H. Harmon of Smith Hulsey & Busey, Jacksonville, for Appellee.
   THOMAS, J.

Appellants, Brian and Markesha Bradley, appeal a final judgment entered in favor of Appellee, Southern Baptist Hospital, Inc. (“the Hospital”), finding Appellee not negligent for medical malpractice. Appellants raise three issues on appeal. We find that Appellants have not preserved their third issue, whether the Hospital im-permissibly argued that Appellants will receive free medical services, in violation of Florida Physician’s Insurance Reciprocal v. Stanley, 452 So.2d 514, 515 (Fla.1984). We address Appellants’ remaining two issues on appeal, but because we find that neither issue presents reversible error, we affirm the judgment entered in favor of the Hospital.

Facts and Procedural History

Brian Bradley, Jr. (“the child”), was born with congenital heart defects. Less than one year after his birth, he was admitted to the Hospital for a planned surgery. During this surgery, two catheters were implanted into his heart, allowing various fluids and medications to be infused directly into his heart. These catheters were covered with sterile gauze dressings at the wound site.

Following surgery, the child continued to experience problems with blood flow and low oxygen levels, and his cardiac surgeon performed emergency surgery the next morning to insert a pulmonary artery shunt. The child was monitored throughout the day by Nurse Wells and the surgeon. The child had an elevated temperature, low oxygen levels, and poor blood flow throughout the day, requiring various interventions. Around 5:30 p.m., the surgeon felt the child was stable. The surgeon left the Hospital but remained in contact with the nurses.

At 7:00 p.m., Nurse Harris took over from Nurse Wells. Nurse Harris assessed the child, noted that the dressings around the catheters were saturated, and reinforced the dressings with more gauze pads. She charted all assessments, reported them to the surgeon, and tested the child’s glucose level, as required by the Hospital following shift changes. Because his glucose was extremely low, she again called the surgeon, who instructed her to check one of the catheters leading into the heart. Nurse Harris reported that she could not get a blood return, and the surgeon instructed her to switch all medications to a catheter on which she was able to get a blood return. Even with this intervention, the child’s condition continued to deteriorate, and the surgeon returned to the hospital. Because the child did not have a pulse when he arrived, the surgeon began GPR. Although he was able to start the child’s heart, the child suffered a catastrophic brain injury. Tragically, the child is now a quadriplegic with the brain function of an infant.

Appellants filed a complaint against the Hospital, alleging that the Hospital was negligent, through its employees, when the employees failed to adequately maintain the catheters supplying medicine and nutrition to the child and failed to correct the malfunctioning catheters, which resulted in hypoglycemia and caused the brain injury.

The Hospital denied Appellants’ negligence claims, contending that the brain injury resulted not from hypoglycemia, but from his congenital heart abnormalities and multiple interventions during and following the surgeries.

The case proceeded to trial and at the conclusion, the court instructed the jurors on the applicable law, explaining that the jury first had to decide whether the Hospital was negligent through its employees, Nurse Wells or Nurse Harris. The jury was then to decide whether the Hospital was negligent through its nurse managers or supervising employees. The court further instructed the jury that they could consider the defense raised by the Hospital only if the greater weight of the evidence supported Appellants’ claims. The verdict form specifically instructed the jury that if they answered no to the first two questions, they should not answer any other questions.

The jury answered no to the first two questions on the verdict form, thus finding the Hospital was not negligent. The jury never reached the third and fourth questions, which asked them to decide if, at the time of the nurses’ negligence, the nurses were acting as the borrowed servants of “one or more” of the child’s physicians. Based on the jury’s finding of no negligence, the trial court entered judgment for the Hospital.

Appellants filed a motion for new trial, arguing that the Hospital’s conduct throughout the trial, including counsel’s remarks during closing argument, although unobjected to, were improper. In addition, Appellants argued that they were entitled to a new trial because the trial court erred when it gave the borrowed servant instruction. The trial court denied Appellants’ motion for new trial. We affirm, but separately address two of the issues Appellants raise.

The Borrowed Servant Instruction

Appellant’s first issue on appeal concerns whether the borrowed servant doctrine applies as a matter of law and, if so, whether the trial court properly instructed the jury regarding this defense. While the trial court’s instruction on the borrowed servant defense correctly stated the elements of the defense, we find that the borrowed servant defense does not apply here as a matter of law; however, we determine that the trial court’s error in giving the instruction was harmless.

While a hospital is generally liable for the negligent actions of its nurses, a nurse can come under the direction and control of a physician, and liability for the nurse’s actions then shifts from the hospital to the doctor. Variety Children’s Hosp., Inc., v. Perkins, 382 So.2d 331, 334 (Fla. 3d DCA 1980); Hudmon, M.D., v. Martin, 315 So.2d 516, 517 (Fla. 1st DCA 1975). “The most familiar example of this process occurs in the operating room where each of the attending personnel comes under the authority of the surgeon as the 'captain of the ship.’ ” Perkins, 382 So.2d at 334-35. In order for the doctrine to apply, the nurse must be under the complete control of the doctor. See Abraham v. United States, 932 F.2d 900, 902 (11th Cir.App.1991) (applying Florida law and citing Postal Telegraph & Cable Co. v. Doyle, 123 Fla. 695, 167 So. 358 (1936)). In addition, the doctor only becomes liable for the nurse’s negligent acts involving professional skill and knowledge, with the hospital remaining liable for the nurse’s acts which are purely ministerial. Beaches Hosp. v. Lee, M.D., 384 So.2d 234, 237 (Fla. 1st DCA 1980).

While the Hospital established facts which might generally support giving the borrowed servant instruction under principles of agency law, there is no view of the evidence to legally support giving the instruction. In Perkins, the Third District held that the borrowed servant doctrine did not apply as a matter of law in a postoperative setting. 382 So.2d at 334. The court reasoned that the borrowed servant doctrine had no applicability where the residents were employed and paid by the hospital, their negligent actions occurred several hours after the surgery, and the surgeon was no longer directing their activities nor was he present. Id. at 334-35. Similarly, the Hospital here employed the nurses and paid their salaries, and the nurses’ allegedly negligent actions occurred 10 hours after the child’s surgery and after the surgeon left the Hospital.

While Florida courts have extended the doctrine to other medical procedures closely related to surgery, Florida courts have not extended the doctrine to a situation far removed from a medical procedure. See Parmerter v. Osteopathic Gen. Hosp., 196 So.2d 505 (Fla. 3d DCA 1967) (extending the doctrine to a delivery room); Lighterman v. Porter, 548 So.2d 891 (Fla. 3d DCA 1989) (extending the doctrine to an emergency room). Courts in other jurisdictions have similarly refused to extend the borrowed servant doctrine to post-operative settings. See, e.g., Perkins, 382 So.2d at 335 (citing cases and stating that courts in other jurisdictions have unanimously held that the hospital, rather than the doctor, is liable in a post-surgical setting); Massey v. Heine, 497 S.W.2d 564, 567 (Ky.1973) (explaining that the borrowed servant principle does not apply when physician did not select the nurse, supervise the injection, and was not present when nurse administered post-operative injection); Clemente v. Roth, 2004 WL 3953814 (D. Md. June 7, 2004) (stating that Maryland law recognizes the borrowed servant doctrine during surgery but the Maryland Court of Appeals has discussed with approval cases from other jurisdictions where physicians were not liable for postoperative care). Further, public policy supports limiting the borrowed servant doctrine to surgical and other closely-related procedures. See Perkins, 382 So.2d at 335 (explaining that acceptance of hospital’s position that the residents providing post-operative care were borrowed servants of the surgeon “would both expose every admitting physician to liability for the actions of hospital employees merely because he remains generally in charge of the patient’s care and simultaneously relieve the hospital of responsibility for services which it alone should provide and for which it is paid.”).

Because we find that the Hospital’s borrowed servant defense does not apply as a matter of law, the trial court erred when it instructed the jury on this defense. However,

[n]o judgment shall be set aside or reversed, or new trial granted ... on the ground of misdirection of the jury ... unless in the opinion of the court to which application is made, after an examination of the entire case it shall appear that the error complained of has resulted in a miscarriage of justice. This section shall be liberally construed.

§ 59.041, Fla. Stat. (2003).

After reviewing the record, we find that the trial court’s error did not result in a miscarriage of justice because the jury found that the Hospital was not negligent through its nurses; therefore, it never considered the borrowed servant instruction. In fact, the court specifically instructed the jury not to consider the Hospital’s borrowed servant defense if the greater weight of the evidence did not support Appellants’ claims. We must presume that the jury followed the court’s instructions. See Carter v. Brown & Williamson Tobacco Corp., 778 So.2d 932, 942 (Fla.2000). Therefore, based on its verdict, the jury rejected Appellants’ theory of the case and did not consider who employed the nurses in reaching its verdict.

While Florida courts have not subjected an erroneous borrowed servant instruction to harmless error analysis, they have held that a trial court’s giving or withholding of an instruction on comparative negligence is harmless where a jury finds no negligence, because a party cannot be partially liable when there is no negligence. McArthur v. St. Louis-San Francisco Ry. Co., 306 So.2d 575 (Fla. 1st DCA 1975); Bryant v. Fiadini, 405 So.2d 1341, 1343 (Fla. 3d DCA 1981). In addition, a trial court’s failure to give an instruction apportioning damages is harmless in a medical malpractice action when a jury finds no negligence, because there is nothing to apportion when no negligence occurs. Reyka v. Halifax Hosp. Dist. 657 So.2d 967 (Fla. 5th DCA 1995). The Maryland Court of Appeals recognized that a trial court’s failure to instruct on a borrowed servant defense was harmless because the jury had found that the nurses were not negligent. Butler-Tulio v. Scroggins, 139 Md.App. 122, 774 A.2d 1209, 1229 (2001). The Maryland court reasoned that because the jury found no negligence, it could not have found the doctor vicariously liable for the nurses’ actions. Id. Similarly, the jury here could not have found the child’s doctor liable for the nurses’ negligence when it found the nurses not negligent.

Although the trial court erred when it gave the borrowed servant instruction, any error was harmless. “[T]he judgment should not be reversed because of the erroneous charges because the rule is well settled that where evidence in a law case discloses no liability, there can be no recovery and a verdict for the defendant in such cases must stand.” Bryant, 405 So.2d at 1343 (quoting Murden v. Miami Poultry & Egg Co., 113 Fla. 870, 152 So. 714, 716 (1934)). Thus, Appellants are not entitled to a new trial.

The Hospital’s Allegedly Improper Conduct

Appellants next argue that the trial court erred when it denied their motion for new trial, arguing that the Hospital’s conduct throughout the trial entitled them to a new trial. Appellants contend that the Hospital’s repeated violations of rule 4-3.4(e) of the Rules Regulating the Florida Bar were so egregious and pervasive as to prejudice the jury’s ability to fairly assess the evidence in this case; however, most of the conduct to which Appellants now object was not objected to during trial.

A trial court’s denial of a motion for new trial is subject to review under an abuse of discretion standard. Bocher v. Glass, 874 So.2d 701, 704 (Fla. 1st DCA 2004). Appellants objected to one comment by Hospital’s counsel during voir dire, and the trial court ruled that it constituted a personal attack on Appellants’ attorney and immediately instructed the potential jurors to disregard the comment. Appellants also objected to three comments made during the Hospital’s closing argument; the trial court sustained two of these objections and overruled one, but instructed Hospital’s counsel to limit his argument, and counsel complied. We find that these four contemporaneously objected-to comments were not so pervasive and egregious as to prejudice the jury’s ability to fairly assess the evidence in this case. Therefore, the trial court did not abuse its discretion when it denied Appellants’ motion for new trial.

Appellants have not demonstrated that the Hospital’s closing argument was so egregious that they are entitled to a new trial under the standard set out in Murphy v. International Robotic Systems, Inc., 766 So.2d 1010 (Fla.2000). In Murphy, the supreme court recognized that “a trial judge is in the best position to determine both the propriety of counsel’s closing argument and any possible prejudice resulting from any improper argument.” Id. at 1023. Therefore, the court held that “a civil litigant may not seek relief in an appellate court based on improper, but un-objected to, closing argument, unless the litigant has at least challenged such argument in the trial court by way of a motion for new trial even if no objection was voiced during trial.” Id. at 1027. The court further explained that to prevail on a motion for new trial, the litigant must demonstrate that the argument was improper, harmful, incurable, and so damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial. Id. at 1028-30.

In their motion for new trial, Appellants did not specifically list all the allegedly improper comments which they now list on appeal. While the court in Murphy stated only that the “argument” in the motion and the “argument” raised on appeal must be the same, the appellants in Murphy listed all of the allegedly improper comments both in the memorandum of law which accompanied the motion and also in the initial brief on appeal. Here, Appellants did not file a separate memorandum of law, nor did they list all of the allegedly improper remarks in their motion; thus, Appellants did not sufficiently apprise the trial court of the Hospital’s improper closing argument. Even if Appellants could meet the high standard for a new trial, their motion here was not sufficient to preserve the issue for appellate review.

Conclusion

Because none of the issues Appellants present requires reversal, we affirm the final judgment in favor of the Hospital.

AFFIRMED.

ALLEN and DAVIS, JJ., concur.


author: FLETCHER, Judge.

text:
    Nancy Canard BURT, Appellant, v. Robert E. BUCHMAN and Brenda Buchman, Intervenor, Appellees.
    No. 3D05-1103.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 2006.
    Rehearing Denied Dec. 21, 2006.
    Daniels, Kashtan, Downs, Robertson & Magathan and Madelyn Simon Lozano, Coral Gables; Adorno & Yoss and Jack R. Reiter, Miami, for appellant.
    Karen A. Gievers, Tallahassee; Michael A. Nuzzo; David B. Pakula, Pembroke Pines, for appellees.
    Before FLETCHER and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   FLETCHER, Judge.

Nancy Canard Burt appeals a post-judgment order granting Brenda Buchman’s motion to intervene to assert homestead rights in real property. We reverse.

In 1978, Robert Buchman purchased a house, took title in his own name and financed the purchase with a mortgage. In 1988, Nancy Burt and Robert Buchman entered into a partnership agreement in which Robert Buchman gave Nancy Burt a one-third interest in Minit Print, a small business that Robert Buchman had solely owned since 1968. In 1989, Nancy Burt left the business.

With the profits from the Minit Print business, Robert Buchman made house payments and other personal expenses. Between 1990 and 1991 Robert Buchman continued to pay Nancy Burt various amounts from the business, and gave her an automobile toward her one-third share of the eventual sale of the business. In 1994, Robert Buchman married Brenda Buchman.

In 1999, Robert Buchman sold Minit Print for $100,000. In 2000, Nancy Burt sued Robert Buchman for his alleged failure to distribute properly her share of the net sale proceeds. Among other demands she sought the imposition of a constructive trust on the house in favor of Minit Print and to declare the house a partnership asset. The cause went to arbitration and the arbitrator determined that the house was an asset of Minit Print. The trial court entered its order affirming the arbitrator’s findings.

Soon after final judgment was entered, Robert Buchman executed and recorded a quitclaim deed to the house to himself and to his wife Brenda as tenants by the entirety. He also recorded a designation of the house as homestead property. The trial court, on Burt’s motion, entered an enforcement order which vested title of the house in Minit Print and canceled the post-judgment quitclaim deed as a fraudulent conveyance. The order also denied Robert Buchman’s homestead claim based on the prior order finding the property to be a Minit Print asset.

More than two years after final judgment was rendered, Robert’s wife filed a motion to intervene for the purpose of bringing a Florida Rule of Civil Procedure 1.540 motion in order to assert that she had an interest in the house. This she argued, made her an indispensable party who should have been joined with Robert Buchman as a defendant. The trial court agreed and granted Brenda Buchman’s motion to intervene.

We find that Brenda Buchman’s intervention request should have been denied. The general rule is that intervention may not be allowed after the final judgment has been entered. Dickinson v. Segal, 219 So.2d 435 (Fla.1969); Wags Transp. Sys., Inc. v. City of Miami Beach, 88 So.2d 751 (Fla.1956). The only exception to the bar on post-judgment intervention is where the interest of justice requires it. Dickinson; Wags. Here the interests of justice have already been met by the arbitrator’s determinations on the merits, the trial court’s final judgment affirming those determinations, and our af-firmance of the trial court. We thus reverse the trial court’s grant of Brenda Buchman’s motion to intervene and remand with instructions to deny her intervention motion.

Reversed.

      . This court affirmed the arbitration award (with an exception irrelevant here). Buch-man v. Canard, 863 So.2d 487 (Fla. 3d DCA 2004).