author: WARNER, J.

text:
    Zbigniew-Jacob LITWINCZUK, M.D., Appellant, v. PALM BEACH CARDIOVASCULAR CLINIC, L.C., Appellee.
    No. 4D06-5.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 2006.

      Hank Jackson and Joseph J. Ward of Holland & Knight LLP, West Palm Beach, for appellant.
    Alan C. Espy and Marjorie Gadarian Graham, Palm Beach Gardens, for appel-lee.
   WARNER, J.

Dr. Zbigniew-Jacob Litwinczuk appeals a temporary injunction enjoining him from practicing medicine within a geographical area of Palm Beach County in accordance with the terms of a non-competition agreement he signed with his previous employer, appellee Palm Beach Cardiovascular Clinic, L.C. He claims that the trial court erred in finding that the clinic would be irreparably damaged were the covenant not enforced and that the clinic had a legitimate business interest to enforce the covenant. Further, Dr. Litwinczuk claims that the clinic first breached the employment agreement. Because the court found as a factual matter that the clinic did not breach the contract and that Dr. Litwinc-zuk did not overcome the presumption of irreparable injury, the court did not abuse its discretion in enforcing the covenant. We affirm the trial court’s findings and order entering a temporary injunction.

Palm Beach Cardiovascular Clinic sought to expand its business by hiring a new doctor. It paid a recruiter $22,000 to find one for its practice. The recruiter contacted Dr. Litwinczuk, and after visits in Palm Beach, Dr. Litwinczuk agreed to a contract. In order to provide a patient base for him, the clinic also bought an existing practice for $40,000.

The clinic and Litwinczuk executed an employment agreement on June 15, 2003. It contained a non-competition clause in which Dr. Litwinczuk agreed that should he terminate his employment, then for two years he would not enter into any practice in any form with a “competing enterprise”, which was defined as “any business which is in competition with any of the business of the Corporation....” During that time he would not interfere with the corporation’s relationship with any of its employees or patients.

Dr Litwinczuk commenced seeing patients through the clinic and began to gather his own clinic patients from referrals from other physicians. Despite the agreement, Litwinczuk resigned from the clinic, citing its on-call requirements and various disagreements with billing and treatment practices as a reason. He opened a practice a short distance from the clinic and began seeing patients he had seen in the clinic. At the hearing on the temporary injunction, the clinic presented evidence that Litwinczuk saw at least forty-nine of the clinic’s patients at his new office in the first two months after opening his own practice.

The clinic filed suit for a temporary and permanent injunction to enforce the covenant not to compete: After the evidentia-ry hearing, the court entered an order enforcing the covenant, although it reduced the geographical area covered.

Although there was some conflict in the testimony, the Court accepts the testimony that a number of the patients of the Plaintiff have gone to the Defendant for treatment subsequent to his leaving the practice in contravention of the non-compete agreement. Moreover, the defendant has opened a practice less than four blocks from the existing offices of the Plaintiff. Likewise, he is a practicing cardiologist in the same hospitals as the Plaintiff corporation. The Court finds that the Plaintiff has invested substantial sums in bringing the Defendant into its practice and have [sic] legitimate business interests as set forth in the statute for enforcement of the restrictive covenant. Likewise, this Court finds that the period of two years is a reasonable period of time but finds that the geographical restrictions of the entire Palm Beach County area to be unreasonable. Based upon the testimony, the reasonable area would be an area from the southernmost boundaries of the City of West Palm Beach north to the Martin County line.... Otherwise, the court finds that Plaintiff has no adequate remedy at law and will suffer irreparable injury as a result of the failure to enforce the provisions.

Dr. Litwinczuk appeals this ruling. We review orders on temporary injunctions for an abuse of discretion. Colucci v. Kar Kare Auto. Group, Inc., 918 So.2d 431, 435 (Fla. 4th DCA 2006). Further,

To the extent [an order granting or denying an injunction] rests on factual matters, an order imposing a permanent injunction lies within the sound discretion of the trial court and will be affirmed absent a showing of abuse of discretion. To the extent it rests on purely legal matters, an order imposing an injunction is subject to full, or de novo, review on appeal.

Id. at 436 (quoting Smith v. Coalition to Reduce Class Size, 827 So.2d 959, 961 (Fla.2002)).

In seeking a temporary injunction, the movant must show: (1) irreparable harm if the status quo is not maintained; (2) no adequate remedy at law; (3) a clear legal right to the relief requested; (4) that any public interest will not be disserved; and (5) a substantial likelihood of success on the merits. Shafer v. Shafer, 898 So.2d 1053, 1055 (Fla. 4th DCA 2005). Section 542.335(1)(c), Florida Statutes, provides, in relevant part:

(c) A person seeking enforcement of a restrictive covenant also shall plead and prove that the contractually specified restraint is reasonably necessary to protect the legitimate business interest or interests justifying the restriction. If a person seeking enforcement of the restrictive covenant establishes prima facie that the restraint is reasonably necessary, the person opposing enforcement has the burden of establishing that the contractually specified restraint is overbroad, overlong, or otherwise not reasonably necessary to protect the established legitimate business interest or interests.

Section 542.335(1)(j) states, in part: “The violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of a restrictive covenant.” This presumption is rebuttable, not conclusive. Passalacqua v. Naviant, Inc., 844 So.2d 792, 796 (Fla. 4th DCA 2003).

Whether Dr. Litwinczuk violated the covenant not to compete by accepting patients from the clinic was a question of fact that the court resolved against him, based upon disputed evidence. Because he violated this provision, the clinic was entitled to a presumption of irreparable injury. Dr. Litwinczuk maintains that he overcame that presumption when he asked Dr. Crandall, the clinic’s chief executive officer, on cross-examination whether Dr. Crandall knew how much money the clinic lost since Dr. Litwinczuk left. Dr. Cran7 dall said he did not know, but they might be able to reconstruct a historical basis for how much money the clipic lost since Dr. Litwinczuk left the clinic. From this snippet of testimony, Dr. Litwinczuk maintains that money damages were able to be calculated, and thus the injury was not irreparable.

Litwinczuk relies primarily on First Miami Securities, Inc. v. Bell, 758 So.2d 1229 (Fla. 4th DCA 2000), for support for his contention that he rebutted the presumption of irreparable injury. In Bell, a securities firm brought an action for a temporary injunction against a former employee, alleging that he breached the non-compete provision of his employment agreement. At trial, the firm was able to establish that the employee engaged in direct solicitation of clients and provided customer information to his new firm. The firm therefore established a presumption of irreparable harm. However, the trial court found that this presumption was rebutted because the employee was able to prove actual damages, if any.

Affirming, this court agreed with the trial court that Bell was able to rebut the presumption of irreparable harm. It approved the trial court’s findings that the proof of damages could be achieved through the bookkeeping records of Bell’s new firm “and the forms that are required by the industry to be filed upon transferring accounts.” Id. at 1230. Additionally, “[t]he trial court also found that ‘damages can be readily calculated from the commissions derived by Defendant at his new place of employment.’ ” Id. Therefore, this court found that the trial court did not abuse its discretion in denying the motion for temporary injunction.

We think Bell is distinguishable because this court affirmed a trial court’s order, based upon a factual finding. There, the trial court found that the damages could be readily calculated based upon the facts of that case. Likewise, in 3299 North Federal Highway, Inc. v. Board of County Commissioners of Broward County, 646 So.2d 215 (Fla. 4th DCA 1994), and South Florida Limousines, Inc. v. Broward County Aviation Department, 512 So.2d 1059 (Fla. 4th DCA 1987), also cited by Litwinczuk, we also affirmed a trial court’s denial of a temporary injunction based upon its conclusion that no irreparable injury was shown because damages could be calculated.

Here, the trial court did not find that damages could be calculated, nor do we think that the evidence was “undisputed” that they could. In fact, the clinic’s business manager testified that he could not calculate the clinic’s losses because he had no idea what Dr. Litwinczuk was billing for his patients. Further, the mere fact that damages for current patients might be calculable does not address the investment made by the clinic in developing Dr. Litwinczuk’s practice in Palm Beach County and thus the goodwill that was generated. On such very limited evidence, the trial court did not abuse its discretion in determining that the presumption of irreparable injury was not overcome.

Likewise, the clinic established that the injunction was necessary to protect its legitimate business interests. Section 542.335(1)(b) provides, in pertinent part:

(b) The person seeking enforcement of a restrictive covenant shall plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant. The term “legitimate business interest” includes, but is not limited to:
1. Trade secrets, as defined in s. 688.002(4).
3. Substantial relationships with specific prospective or existing ... patients ....
4. [Pjatient, or client goodwill associated with:
a. An ongoing business or professional practice, by way of trade name, trademark, service mark, or “trade dress”;
b. A specific geographic location; or
c. A specific marketing or trade area.
5.Extraordinary or specialized training.

The Fifth District applied this statute in determining that a health care company had a legitimate business interest in its patients which it could protect against a physician violating the terms of a covenant not to compete in Supinski v. Omni Healthcare, P.A., 853 So.2d 526 (Fla. 5th DCA 2003). There, as in this case, a physician employed by a medical practice, under a contract containing a covenant not to compete, resigned his position and set up a practice close to his former employer and started seeing prior patients. Forty percent of his patients were patients of his former employer, and his new office was well within the geographical restriction in the covenant not to compete. The trial court entered a temporary injunction, and the appellate court affirmed, concluding that on this evidence, the employer had a legitimate business interest to protect. The trial court had not abused its discretion in granting the injunction.

Similarly, in this case Dr. Litwinczuk began practicing only a few blocks from the clinic’s offices and within a short period of time saw forty-nine of the clinic’s prior patients. Just as in Supinski, the trial court was within its discretion in determining that the clinic had a legitimate business interest to protect in the form of ongoing patients and patient goodwill “associated with a specific geographic location.” The trial court actually reduced the geographic reach of the injunction from all of Palm Beach County to the area from which the clinic drew its patients, concluding that this was the region in which the clinic had a legitimate business interest to protect.

Finally, Dr. Litwinczuk challenges the trial court’s conclusion that the clinic presented a prima facie case that it had a substantial likelihood of prevailing on the merits. He contends that the “undisputed evidence” showed that the clinic breached the contract or that his other defenses would prevail. However, the trial court heard clearly disputed evidence on all of these issues and found that his defense was based in large part on his own testimony which the court found questionable. Thus, because the trial court is the finder of fact, we will not disturb its rulings.

The temporary injunction is affirmed.

KLEIN and GROSS, JJ., concur.


source: Caselaw Access Project

author: GROSS, J.

license: Public Domain

text:
    Delrio Laviel ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-954.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 2006.

      Alexander R. Brumfield of Alexander R. Brumfield, III, P.A., West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

We reject the claim that the trial judge committed fundamental error when he inadvertently misstated the name of a charged crime during his oral instructions to the jury. Viewing the trial as a whole, instead of isolating on the judge’s slip of the tongue, we conclude that no fundamental error occurred.

In a two-count information, the state charged Delrio Allen with burglary of a dwelling and petit theft.

The evidence at Allen’s jury trial revealed that the burglarized dwelling was Tara Felder’s apartment. Before Felder left for work in the morning, she made her bed and locked the front and back doors. At work, Felder took a call from her sister, who told her that someone had broken into her apartment.

While Felder was at work, her downstairs neighbor, Gwen Marks, saw Allen knocking out the back window of Felder’s apartment. Marks identified Allen in court; she testified that she had known Allen since he was in daycare and had talked with him twice a month since he became an adult.

When Marks saw Allen breaking through the window, she called to him and asked what he was doing. Allen looked at Marks, but continued knocking out the window. Marks went inside her apartment and called the police. Although Marks, who lived directly below Felder’s apartment, did not see Allen enter the upstairs unit, she heard footsteps coming from inside the apartment.

By the time the Riviera Beach Police Department responded to Marks’s call, no one was in Felder’s apartment. The officers discovered the back window of the apartment “broken out,” the back door unlocked, the bedroom ransacked, and the bed a mess. Felder’s bicycle and a spare set of keys were missing from the apartment. Marks told an officer that she had seen Allen breaking the back window and she provided his address.

When defining trespass and burglary for the jury, the trial court misspoke and, at one point in the instructions, inserted the word “trespass” in place of the word “burglary”:

Allen, the defendant in this case has been accused of the crimes of burglary of a dwelling and petit theft. In considering the evidence you should consider the possibility that although the evidence did not convince you the defendant committed the main crimes of which he is accused, there may be evidence that he committed other acts that would constitute a lesser included crime....
[The] lesser included crime in burglary of a dwelling is trespass.
To prove the crime of trespass, the state must prove the following three elements beyond a reasonable doubt:
One, Mr. Allen entered an apartment owned by or in the possession of Ms. Felder. Two, Allen did not have the permission or consent of Ms. Felder or anyone authorized to act for her to enter the apartment at the time. Three, at the time of entering the apartment, Mr. Allen had a fully formed conscious intent to commit the offense of theft in that apartment.
To prove the crime of trespass in an apartment, the state must prove the following three elements beyond a reasonable doubt.
One Mr. Allen entered an apartment owned by or possessed by Tara Felder. Two, the apartment was in the lawful possession of Ms. Felder. And ... Mr. Allen’s entering the property was without the permission express or implied of Ms. Felder or any person authorized to give that permission.

(Emphasis added).

After the trial judge finished reading the instructions he asked if he “missfed] anything when [he] read the instructions.” The prosecutor and defense counsel both answered “No.” The judge then inquired if there was anything else he should be aware of; both parties answered in the negative. The court provided the jury with a written copy of the instructions which properly identified and defined the crime of burglary. After deliberating, the jury found Allen guilty of burglary and petit theft.

On appeal, Allen claims that the trial judge’s substitution of “trespass” for “burglary” in the oral instructions amounted to fundamental error.

To preserve an issue concerning the “giving or failure to give an instruction,” Florida Rule of Criminal Procedure 3.390(d) requires a criminal defendant to make a specific and timely objection to any disagreeable language. See Thompson v. State, 814 So.2d 1103, 1104 (Fla. 4th DCA 2002), disapproved of on other grounds by Battle v. State, 911 So.2d 85 (Fla.2005). The requirement of a contemporaneous objection to a jury instruction “is based on practical necessity and basic fairness in the operation of a judicial system. It places the trial judge on notice that error may have been committed, and provides him an opportunity to correct it at an early stage of the proceedings.” Castor v. State, 365 So.2d 701, 703 (Fla.1978). In the absence of a contemporaneous objection at trial, an appellate court may grant relief regarding an error in the instructions only if the error is fundamental. See Floyd v. State, 850 So.2d 383, 403 (Fla.2002); Archer v. State, 673 So.2d 17, 20 (Fla.1996).

To constitute fundamental error, an erroneous jury instruction “ ‘must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ” State v. Delva, 575 So.2d 643, 644-45 (Fla.1991) (quoting Brown v. State, 124 So.2d 481, 484 (Fla.1960)). This means that an erroneous jury instruction is fundamental error “ ‘when the omission is pertinent or material to what the jury must consider in order to convict.’ ” Id. at 645 (quoting Stewart v. State, 420 So.2d 862, 863 (Fla.1982)); accord Reed v. State, 837 So.2d 366, 369-70 (Fla.2002). Thus, “[flailing to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental error and there must be an objection to preserve the issue for appeal.” Delva, 575 So.2d at 645.

Following Delva and Stewart, Florida courts have placed the responsibility on the trial judge to ensure “that the jury is fully and correctly instructed as to the applicable law.” Moore v. State, 903 So.2d 341, 342 (Fla. 1st DCA 2005). Florida courts have found fundamental error where the trial court incorrectly instructed the jury on an element of a crime or a defense that was in dispute. See Reed, 837 So.2d at 369-70 (holding that the jury was incorrectly instructed on element of malice in aggravated child abuse); Davis v. State, 804 So.2d 400 (Fla. 4th DCA 2001) (finding instruction on defense of entrapment inaccurate and misleading); Moore, 903 So.2d at 342-43 (concluding that the jury was incorrectly instructed as to whether pellet gun was “other deadly weapon” under statute prohibiting possession of a concealed weapon by convicted felon); Viveros v. State, 699 So.2d 822, 824-25 (Fla. 4th DCA 1997) (finding circular instruction failed to properly instruct jury on the specific intent element of burglary); Carter v. State, 469 So.2d 194 (Fla. 2d DCA 1985) (deciding that instruction on self-defense was incorrect and “necessarily misleading”); see also Bagley v. State, 119 So.2d 400 (Fla. 1st DCA 1960) (holding that fundamental error occurred when jury charge failed to list “every essential element of justifiable homicide”).

In this case, the determination of whether fundamental error occurred requires that the trial judge’s slip of the tongue be examined in the context of the other jury instructions, the attorneys’ arguments, and the evidence in the case to decide whether the “ ‘verdict of guilty could not have been obtained without the assistance of the alleged error.’ ” Delva, 575 So.2d at 645; see Morin v. State, 790 So.2d 588 (Fla. 5th DCA 2001) (holding that “confusing” and “rather senseless” instruction did not amount to fundamental error). The supreme court took such a contextual approach in Delva, when it considered whether fundamental error occurred because the trial court failed to properly instruct the jury on an element of trafficking in cocaine, i.e., whether the defendant knew the substance he possessed was cocaine. Id. at 644. The court found that the jury instruction was erroneous. Id. Yet, the supreme court held that the error was not fundamental, because the defense at trial was that the defendant “did not know the package of cocaine was even in his car,” not that the defendant “knew of the existence of the packaged but] did not know what it contained.” Id. at 645. The supreme court concluded that “[b]ecause knowledge that the substance in the package was cocaine was not at issue as a defense, the failure to instruct the jury on that element of the crime could not be fundamental error and could only be preserved for appeal by a proper objection.” Id.

The supreme court adopted a similar contextual approach to fundamental error analysis in Floyd, 850 So.2d at 403. There, the supreme court held that an erroneous, incomplete instruction in the penalty phase of a capital case was not fundamental error, in part because the defense attorney’s closing argument “fully presented] and discuss[ed]” those mitigation factors that had been omitted from the court’s instructions. Id.

Here, the judge’s slip of the tongue did not give rise to a fundamental error. The judge charged the jury with the correct elements of both charges. During closing argument, the pros.ecutor discussed the elements of burglary, how the evidence established that crime, and the difference between burglary and trespass. The judge’s oral instructions explained that trespass was a lesser included offense of burglary. When reading the standard charge defining the elements of burglary, the trial judge erroneously substituted the word “trespass” for “burglary.” Apparently, the prosecutor was unaware; defense counsel was unaware; and the instructions proceeded without objection. Allen, with the benefit of hindsight, “would now have us believe that the jurors, with the ears of a gazelle, pounced upon the slip that everyone else had missed and gave it possibly dispositive significance.” Morris v. State, 153 Md.App. 480, 837 A.2d 248, 263 (2003).

Significantly, on separate pages, the written instructions given to the jury to use during deliberations correctly designated the crimes of burglary and trespass and set out the elements for each. The tangible, correct, written instructions available for the jury’s reference during its deliberations cured any error arising from the judge’s misstatement. Also, Allen did not contest that a burglary occurred; his defense was that he was misidentified. A slip of the tongue concerning an aspect of the case “over which the record reflects there was no dispute is not fundamental error and there must be an objection to preserve the issue for appeal.” Delva, 575 So.2d at 645.

Viewing the judge’s slip of the tongue not in isolation, but in the context of the entire trial, we conclude that the jury was adequately and fairly instructed on the elements of burglary and trespass. This is not a case where the trial judge’s gaffe reached “down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Delva, 575 So.2d at 644-45.

Appellate courts should be cautious about expanding the notion of fundamental error and should “exercise their discretion concerning fundamental error ‘very guardedly.’ ” Farina v. State, 937 So.2d 612, 629 (Fla.2006) (quoting Ray v. State, 403 So.2d 956, 960 (Fla.1981) (quoting Sanford v. Rubin, 237 So.2d 134, 137 (Fla.1970))). “[Fundamental error should be applied only in the rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.” Id. As one Maryland court has observed, attorneys “must never be lulled into the sense of false security that the [notion of fundamental error] is routinely available to pull neglected chestnuts out of the fire.” Morris, 837 A.2d at 274.

We decline to reach Allen’s claims of ineffective assistance of counsel on direct appeal. See, e.g., Henley v. State, 719 So.2d 990 (Fla. 4th DCA 1998).

Affirmed.

GUNTHER and FARMER, JJ., concur.


author: GROSS, J. KLEIN, J.,

text:
    Zamir GARZON and Ray C. Balthazar, Appellants, v. STATE of Florida, Appellee.
    Nos. 4D04-4699, 4D04-4705.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 2006.

      Samuel R.R. Halpern, Fort Lauderdale, for appellant Zamir Garzón.
    John Cotrone, Fort Lauderdale, for appellant Ray Balthazar.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

The primary issue we address in this case is whether the trial court’s use of the “and/or” conjunction between the names of codefendants in jury instructions, on substantive crimes amounted to fundamental error. We hold that, under the facts of this case, no fundamental error occurred, since the principals instruction placed the substantive crime instructions in the proper context. However, we find that fundamental error did occur, on a separate ground, as to two kidnapping counts, so we reverse those convictions as to each defendant.

This case arose from a home invasion that occurred on June 4, 2003. Along with another codefendant Charly Coles, appellants Zamir Garzón and Ray Balthazar were charged with criminal conspiracy, armed burglary of a dwelling, armed robbery, three counts of armed kidnapping, and extortion. After a jury trial, Balthazar was convicted as charged on all counts; Garzón was acquitted of the extortion and convicted on all other counts.

Evidence of March 21 and 22, 2003 Offenses

At a hearing on the state’s motion to offer evidence of other crimes, Kerry Smith, a high school boy, testified that on March 21, 2003 he was hauling furniture in his truck when a red Ford Explorer rear-ended him. He got out of the truck to talk with the Ford’s driver, a tall, skinny man with curly hair wearing military fatigues. Talking on a cell phone, the driver said, “I hit a kid. I need to take care of this.” Kerry noticed that the passenger in the Ford also wore military fatigues and held a gas mask.

Suddenly, the driver grabbed Kerry by the throat and the passenger tried to pull him into the Ford. Kerry broke away, ran to his car, and escaped. He identified Coles and Balthazar as the two men in the Ford.

Kerry’s grandmother, Doris Smith, testified that on March 22 Kerry’s family went to Sebastian. At about 9:00 p.m., she went to her son Michael Smith’s house to let out the dogs. An intruder placed his hand over her face and pushed her onto the bedroom floor; he was a dark skinned Latino, significantly taller than her 5 foot 4 inch height. Mrs. Smith heard a second voice tell the man holding her to “get that mask off, it looks stupid.” The two men spoke Spanish to each other. One man spoke to her in English and demanded to know where the safe was. She told them and the men commanded her to disclose the combination to the safe, which she did not know. Smith heard a noise that sounded like a safe being dragged. One of the men spoke on a cell phone and said, “This is not the motherfueking way you said it was.” Smith never got a good look at the two men and could not identify them.

The court ruled that the evidence was admissible.

At trial, both Kerry and his grandmother testified to essentially the same facts as outlined above.

Evidence of the Charged Crimes

On June 4, 2003, Marie Azzarone entered the Pompano Beach home of Kerry’s parents, Sandra and Michael Smith, where she worked as a housekeeper. Wearing “soldier pants,” Coles pushed Azzarone into the house by the neck, holding a gun to her head. Coles forced her to lie face down on the kitchen floor; he brought the Smiths’ daughter, Jamie, into the kitchen and forced her onto the floor.

Sandra Smith testified that the two gunmen came into the house as she was preparing to take her daughter to school. One wore dark clothes, gloves, and a ski mask. The other was tall and dark, with no mask and no gloves. Both men carried guns. Balthazar put a gun to Sandra’s head and dragged her to a hidden safe. He knew the location of the safe, even though it was concealed behind a false wall that looked like bookshelves. Balthazar forced Sandra to get the key to the safe and open it. From the safe, Sandra loaded Rolex watches and jewelry worth $150,000 into a pillowcase while Balthazar put on a mask and gloves. Sandra asked if she could keep her wedding ring. Balthazar asked into a cell phone whether she could keep the ring. Then, referring to the person on his cell phone, Balthazar said, “He tells me that you’re not allowed to have it because your husband does not deserve for you to wear it.... He’s fucking another woman in the Dominican Republic and you’re too good to even see it.” Michael Smith admitted at trial to having an affair with a woman in the Dominican Republic.

Balthazar forced Sandra to the front of the house, where she saw her daughter and Azzarone on the floor, with Coles standing over them holding a gun. Balthazar told Sandra that they had followed her and her daughter to the Coral Springs Mall and to a restaurant at the end of May. He repeatedly asked where the cash was. Sandra said she had none. To force Sandra to lead him to the money, Balthazar threatened to use the stove to burn her daughter’s “beautiful ass.” Sandra went with Balthazar to her bedroom, where he found a briefcase containing $13,000 in cash. Balthazar and Coles took the jewelry and money, tied up the two women and the girl in a back room, and left. The two women were able to get loose and call the police.

The state’s theory of the case was that Garzón directed the home invasion by his cell phone conversation with Balthazar. Garzón had previous connections with the Smiths. He had been in the Smiths’ home numerous times, working for a man who had built the false wall safe. The state presented evidence of a 39-minute cell phone call at the time of the home invasion; the call originated from Pompano Beach between Balthazar and a cell phone number identified with Garzón. Other testimony indicated calls between Balthazar’s phone and Garzon’s phone during the time when Balthazar and Coles had followed Sandra and her daughter.

The Charge to the Jury

The three defendants were tried together before a single jury. The day before the trial court charged the jury, the judge provided all counsel with a packet of instructions. The next day, the court asked all the lawyers if they had reviewed the instructions and whether they had any objections. The prosecutor and all defense counsel indicated that nothing in the instructions needed to be changed.

The court charged the jury on criminal conspiracy as follows:

To prove the crime of criminal conspiracy as charged in Count I of the information, the State must prove the following two elements beyond a reasonable doubt. Number one, the intent of Zamir Garzón and/or Charly [sic] Coles and/or Ray Balthazar was that the offense of armed robbery or armed burglary of a dwelling would be committed. Number two, in order to carry out the intent, Zamir Garzón, and/or Charly [sic] Coles and/or Ray Balthazar agreed, conspired, combined or confederated with each other to cause either the offense of armed robbery or armed burglary to be committed either by all of them or one of them or by some other person.

(Emphasis added).

As to armed burglary, the court charged the jury:

[T]o prove the crime of armed burglary of a dwelling, as charged in Count Two of the information, the State must prove the following three elements beyond a reasonable doubt. Number one, Zamir Garzón and/or Charly [sic] Coles and/or Ray Balthazar entered or remained in a structure owned by or in the possession of Sandra Smith.
Number two, Zamir Garzón and/or Charly [sic] Coles and/or Ray Balthazar did not have the permission or consent of Sandra Smith or anyone authorized to act for her to enter or remain in the structure at the time.
Number three, at the time of entering or remaining in the structure, Zamir Gar-zón and/or Charly [sic] Coles and/or Ray Balthazar had a fully formed, conscious intent to commit the offense of grand theft and/or robbery in that structure.

(Emphasis added).

On the robbery with a firearm charge, the court charged the jury as to the first element:

Number one, Zamir Garzón .and/or Charly [sic] Coles and/or Ray Balthazar took the jewelry and United States currency from the person or custody of Sandra Smith.

Regarding armed kidnapping, the court charged the jury:

To prove the crime of armed kidnapping as charged in the information, the State must prove the following three elements beyond a reasonable doubt. Number one, Zamir Garzón and/or Charly [sic] Coles and/or Ray Balthazar forcibly, secretly or by threat confined, abducted or imprisoned Maria Azzarone as to Count Four or Jamie Smith as to Count Five or Sandra Smith as to Count Six against her will.
Number two, Zamir Garzón and/or Charly [sic] Coles and/or Ray Balthazar had no lawful authority.
Number three, Zamir Garzón and/or Charly [sic] Coles and/or Ray Balthazar acted with intent to commit or facilitate the commission of robbery.

(Emphasis added).

On the crime of extortion, the judge charged the jury:

To prove the crime of extortion as charged in the information, the State must prove the following beyond a reasonable doubt. Zamir Garzón and/or Charly [sic] Coles and/or Ray Balthazar maliciously threatened by verbal communication to cause injury to the person of another, to wit Jamie Smith. Such communication having been made with the intent thereby to compel another person, to wit Sandra Smith, to do any act or refrain from doing any act against her will.

(Emphasis added).

After charging the jury on all of the substantive crimes, the court read the standard charge on principals. See Fla. Std. Jury Instr. (Crim.) 3.5(a).

If the defendant helped another person or persons commit or attempt to commit a crime, the defendant is a principal and must be treated as if he had done all the things the other person or persons did, if the defendant had a conscious intent that the criminal act be done and the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist or advise the other person or persons to actually commit or attempt to commit the crime. To be a principal, the defendant does not have to be present when the crime is committed or attempted.

The Use of the “And/Or” Conjunction in the Jury Instructions Was Not Fundamental Error

Balthazar and Garzón acknowledge that jury instructions are subject to the contemporaneous objection rule. See State v. Delva, 575 So.2d 643 (Fla.1991). The requirement of a contemporaneous objection to preserve an issue for appeal “is based on practical necessity and basic fairness in the operation of a judicial system. It places the trial judge on notice that error may have been committed, and provides him an opportunity to correct it at an early stage of the proceedings.” Castor v. State, 365 So.2d 701, 703 (Fla.1978).

However, Balthazar and Garzón contend that the contemporaneous objection rule does not apply because the court committed fundamental error by using the conjunction “and/or” between the names of the defendants when charging the jury on the substantive crimes.

To be fundamental, an erroneous jury instruction “‘must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ” Delva, 575 So.2d at 644-45 (quoting Brown v. State, 124 So.2d 481, 484 (Fla.1960)); see Floyd v. State, 850 So.2d 383, 403 (Fla.2002). This means that an erroneous jury instruction is fundamental error “ ‘when the omission is pertinent or material to what the jury must consider in order to convict.’ ” Id. at 645 (quoting Stewart v. State, 420 So.2d 862, 863 (Fla.1982)); accord Reed v. State, 837 So.2d 366, 369-70 (Fla.2002). Thus, “[flailing to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental error and there must be an objection to preserve the issue for appeal.” Delva, 575 So.2d at 645.

Following Delva and Stewart, Florida courts have placed the responsibility on the trial judge to ensure “that the jury is fully and correctly instructed as to the applicable law.” Moore v. State, 903 So.2d 341, 342 (Fla. 1st DCA 2005). Florida courts have found fundamental error where the trial court incorrectly instructed the jury on an element of a crime that was in dispute. See Reed, 837 So.2d at 369-70 (holding that the jury was incorrectly instructed on element of malice in aggravated child abuse); Moore, 903 So.2d at 342-43 (concluding that the jury was incorrectly instructed as to whether pellet gun was “other deadly weapon” under statute prohibiting possession of a concealed weapon by convicted felon); Anderson v. State, 780 So.2d 1012, 1014 (Fla. 4th DCA 2001) (concluding fundamental error occurred when court instructed jury on “non-existent element” of crime of fleeing and eluding, which was in dispute); Viveros v. State, 699 So.2d 822, 824-25 (Fla. 4th DCA 1997) (finding circular instruction failed to properly instruct jury on the specific intent element of burglary). Florida courts have also found fundamental error when a trial judge fails to properly instruct the jury on an element of a defense that is disputed at trial. See Davis v. State, 804 So.2d 400 (Fla. 4th DCA 2001) (holding inaccurate and misleading instruction on defense of entrapment); Carter v. State, 469 So.2d 194 (Fla. 2d DCA 1985) (deciding that instruction on self-defense was incorrect and “necessarily misleading”); see also Bagley v. State, 119 So.2d 400 (Fla. 1st DCA 1960) (holding that fundamental error occurred when jury charge failed to list “every essential element of justifiable homicide”).

Balthazar and Garzón say that the inclusion of the “and/or” conjunction in the jury instructions is fundamental error because the jury “could” have convicted one defendant based solely upon the conclusion that another codefendant’s conduct “may have satisfied the elements” of an offense.

However, the determination of whether fundamental error occurred requires that the “and/or” instructions be examined in the context of the other jury instructions, the attorneys’ arguments, and the evidence in the case to decide whether the “ ‘verdict of guilty could not have been obtained without the assistance of the alleged error.’ ” Delva, 575 So.2d at 645; see Morin v. State, 790 So.2d 588 (Fla. 5th DCA 2001) (holding that “confusing” and “rather senseless” instruction did not amount to fundamental error); see People v. Kitchen, 159 Ill.2d 1, 201 Ill.Dec. 1, 636 N.E.2d 433 (1994). The supreme court took such a contextual approach in Delva, when it considered whether fundamental error occurred because the trial court failed to properly instruct the jury on an element of trafficking in cocaine, i.e., whether the defendant knew the substance he possessed was cocaine. 575 So.2d at 644. The court found that the jury instruction was erroneous. Id. Yet, the supreme court held the error was not fundamental, because the defense at trial was that the defendant “did not know the package of cocaine was even in his car,” not that the defendant “knew of the existence of the packaged but] did not know what it contained.” Id. at 645. The supreme court concluded that “[b]ecause knowledge that the substance in the package was cocaine was not at issue as a defense, the failure to instruct the

jury on that element of the crime could not be fundamental error and could only be preserved for appeal by a proper objection.” Id.

The supreme court utilized a similar contextual approach to fundamental error analysis in Floyd. There, the supreme court held that an erroneous, incomplete instruction in the penalty phase of a capital case was not fundamental error, in part because the defense attorney’s closing argument “fully present[ed] and discuss[ed]” those mitigation factors that had been omitted from the court’s instructions. 850 So.2d at 403.

This is not a case where the court failed to correctly instruct on an element of the crime over which there was a dispute. Compare Reed, 837 So.2d at 369-70; Moore, 903 So.2d at 342-43; Viveros, 699 So.2d at 824-25. All elements of all crimes were correctly charged. What the “and/ or” conjunctions placed in issue was whether one defendant could be held criminally liable for the conduct of a codefen-dant. If the law of principals applies to a defendant’s conduct, that defendant can properly be convicted for a codefendant’s criminal acts. Garzon could have been found guilty if either Coles or Balthazar committed a substantive crime and Garzón helped either man commit the crime within the meaning of the principals instruction.

In this case, the standard principals instruction placed all the other instructions in the proper context. The instruction explained that a defendant is responsible for the criminal act of another person if “the defendant had a conscious intent that the criminal act be done” and the “defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist or advise the other person ... to actually commit the crime.” Fla. Std. Jury Instr. (Crim.) 3.5(a). If the jury found the principals instruction applied to him, Garzón could lawfully have been found guilty of crimes that either Balthazar or Coles, or both, committed in the house.

With respect to Garzón, everyone in the courtroom knew that the issue boiled down to whether the state had proven that he was the person to whom Balthazar spoke over the cell phone during the home invasion.

The prosecution used the principals instruction as the centerpiece of its argument that Garzón was guilty of the crimes committed by his codefendants. The state did not use the “and/or” conjunctions to argue for a legally incorrect or improper theory of guilt. The prosecutor argued:

[On June 4], there were only two people with firearms inside the house, yet there are three people on trial charged with the same crimes. How is that possible? The Judge is going to read you an instruction that’s titled principals. This is your classic example of the getaway driver being held responsible for the completed act of the person who drives to the scene. Principals will read as follows:
[Reads principals instruction]
[A]nd the kicker is, to be a principal the defendant does not have to be present when the crime is either committed or attempted. That’s the law.... To be a principal the person does not even have to be present when the crime is attempted or committed.
How do you apply that to this case? The person on the other end of the phone during the course of the crime feeding information to the people inside the house about the layout of the home, about intimate information relating to the family, assisting the people inside the home to commit the offense, encouraging them to do so, and I submit to you benefiting on the back end from the proceeds of the crime, all people that participate and assist and encourage are to be treated as if the had done all the things the others did. Keep that in mind as a backdrop to the evidence that we’re going to analyze.

Garzon’s attorney hammered home in closing that there was insufficient evidence to prove that he was the person on the other end of the phone during the crime. He also argued that a reasonable view of the evidence was that another person, uncharged by the state, was on the phone with Balthazar.

The jury’s acquittal of Garzón on the extortion count demonstrates that it followed the law on principals and was not misled by the “and/or” conjunction in the extortion instruction. The extortion charge was based on Balthazar’s threat to use the stove to burn Jamie unless her mother led him to the cash hidden in the house. There was no evidence that Balthazar cleared this threat with Garzón over the cell phone. Although the jury found Balthazar guilty of extortion, it gave Gar-zón and Coles the benefit of reasonable doubt.

Judge Klein’s dissent contends that the instructions given were fundamental error as to Garzón, without considering what instructions would have been proper in his case. The problem that Judge Klein identifies in this case is that the jury “could have concluded that all defendants were guilty, based on the and/or instructions, before ever reaching the principals instruction.”

A possibility of what the jury “could” do in response to a jury instruction is not the stuff of fundamental error. The law presumes that the jury has followed all of the trial court’s instructions, in the absence of evidence to the contrary. See Sutton v. State, 718 So.2d 215, 216 n. 1 (Fla. 1st DCA 1998). A proper approach to fundamental error considers the jury instructions as a whole, in the context of the case that was tried; a proper approach does not nitpick at the instructions to manufacture a fundamental error that was overlooked by all the participants at trial.

Even had the defense raised the objections now supplied by Judge Klein’s dissent, we would not find reversible error. As we have said in another context, “[j]u-rors are not potted plants.” Grant v. State, 738 So.2d 1020, 1022 (Fla. 4th DCA 1999). It is more likely that they would resist the notion of the principals charge rather than blindly convict defendant A for defendant B’s conduct, without proof of defendant A’s culpability. It is a stretch for the average juror to believe that someone not present at the scene of a crime is as culpable as the defendant who actually committed the criminal acts. This is why prosecutors spend time in voir dire and closing argument discussing the principals charge.

The dissent contends that “the manner in which the jury was instructed made it unnecessary for the jury to consider whether Garzón had the intent, under the principals instruction, for the kidnapping to have occurred.” To do this, the jury would have to have overlooked the undisputed fact that Garzón was not physically present at the Smith house, ignored the way the state and Garzón argued the case, and interpreted the jury instructions in an unusual way, contrary to common sense and not suggested by the argument of any party. In a vacuum, the inclusion of Garzon’s name in the definition of the substantive crimes may have been confusing, since Garzón was not present in the house where the crimes occurred. Even if this were error, and had it been preserved by a timely objection, we would still find such error to be harmless under the facts of this case.

This case is distinguishable from two “and/or” jury instruction cases from this court, Davis v. State, 804 So.2d 400 (Fla. 4th DCA 2001), and Williams v. State, 774 So.2d 841 (Fla. 4th DCA 2000). The conclusion that the “and/or” conjunction gives rise to fundamental error in one context does not compel such a finding in every case where the conjunction appears.

Davis was a case where Antoinette Davis and her codefendant/husband both relied on an entrapment defense to the charges of trafficking in cocaine and conspiracy. 804 So.2d at 401. The state offered evidence of the husband’s predisposition to commit the offenses — the husband’s two prior convictions for sale of cocaine. Id. The trial court’s entrapment instruction told the jury that it was not entrapment if the husband “and/or Antoinette Davis had the predisposition to commit” the crimes charged. Id. at 403. We held that the instruction was fundamental error because it misstated a crucial element of the defense— it told the jury that it could convict Davis if “it concluded that” the husband “alone had a predisposition to commit the crimes.” Id. at 405.

Davis did not involve a principals instruction that placed the “and/or” language in the proper context. Unlike Davis, this case does not involve a misstatement of an element of the entrapment defense.

Similarly, Williams involved no principal instruction, dissimilar charges, and a theory of prosecution different from that in this case. Elress Williams and a codefen-dant, Torrance Adderly, were charged with trafficking in cocaine and possession of drug paraphernalia. 774 So.2d at 842. Adderly dropped the drugs when he saw the police; no drugs were found on Williams. Id. The police found other drugs in an apartment. Id. Adderly told the police that Williams had nothing to do with the cocaine; “Williams denied possessing or owning any type of crack cocaine.” Id. The judge instructed the jury that it could find “either Defendant” guilty, if it found that Adderly or Williams knowingly possessed a substance that either Adderly or Williams knew was cocaine. Id. at 843. We held that fundamental error occurred because (1) the trial court erroneously charged the jury on elements of the offense and (2) the court incorrectly told the jury “that the evidence applicable to each crime, and not to each defendant, must be considered separately.” Id. The standard principals instruction was not given in Williams. In that case, the law of principals was the only legal theory that could have supported a finding that Williams was guilty of trafficking in cocaine that was so tied to Adderly. The Williams instruction allowed for Williams’s conviction simply because he was with Adderly at the time of the arrest.

Balthazar and Garzón also rely on cases from other districts which are similarly distinguishable. See Concepcion v. State, 857 So.2d 299 (Fla. 5th DCA 2003); Dorsett v. McRay, 901 So.2d 225 (Fla. 3d DCA 2005). In both Dorsett and Concepcion, it does not appear that the principals instruction was given and the opinions do not indicate how the cases were argued. Dor-sett states that the defendant was “charged, convicted and sentenced for acting as a ‘wheelman,’ and, therefore, a principal in an armed robbery.” 901 So.2d at 225. The opinion does not say that the principals instruction was given to the jury. If it was not, we agree with the third district that fundamental error occurred in that case. What the opinion in Dorsett pi'imarily discusses is whether the problems with an “and/or” instruction are cured by the standard multiple counts/multiple defendants instruction; Dorsett does not address the effect of the giving of the principals instruction that is central to this case.

With another line of cases we certify a direct conflict. Cabrera v. State, 890 So.2d 506 (Fla. 2d DCA 2005), and Zeno v. State, 910 So.2d 394 (Fla. 2d DCA 2005), arose from the same complex, 32 count racketeering, conspiracy and trafficking case with multiple codefendants. In both cases, the “and/or” conjunction linked the names of codefendants in the jury instructions on substantive crimes. Without discussion, the second district rejected the “State’s argument that the use of the standard ‘principals’ instruction cured the erroneous instructions on the substantive elements of the offenses,” Zeno, 910 So.2d at 396. Also, without analysis the first district followed Zeno in Davis v. State, 922 So.2d 279 (Fla. 1st DCA 2006). As they have been cited to us in cases before this court, Zeno and Davis stand for the proposition that the “and/or” conjunction in the jury charge on substantive crimes is always fundamental error in a case with multiple codefendants, regardless of context. We certify conflict with Zeno and Davis. See Fla. R.App. P. 9.030(a)(2)(vi).

The Trial Court Committed Fundamental Error in Charging the Jury on Kidnapping in Counts V and VI of the Information

Both Balthazar and Garzón attack the jury charge on Counts V and VI of the information. Those counts charged the defendants with (1) kidnapping Jamie Smith “with intent to inflict bodily harm or to terrorize her or” her mother and (2) kidnapping Sandra Smith “with intent to inflict bodily harm or to terrorize her.” Section 787.01(1)(a), Florida Statutes (2004), provides four alternative ways of establishing the intent element of kidnapping; the state charged the defendants in this case with only one theory of intent, the one described in section 787.01(1)(a)3.

On Counts V and VI, the court instructed the jury that to prove the crime of kidnapping, the state had to prove that the defendants had acted “with intent to commit or facilitate the commission of a robbery,” the intent element contained in section 787.01(1)(a)2, which was not charged in the information.

Fundamental error occurs where a criminal statute contains two or more distinct methods of committing an offense, consisting of different elements, and a defendant is charged with one of the means, but the jury is instructed in a manner that permits conviction for another, uncharged mode of guilt. See Taylor v. State, 760 So.2d 298 (Fla. 4th DCA 2000); Hodges v. State, 878 So.2d 401 (Fla. 4th DCA 2004); Fuentes v. State, 730 So.2d 366 (Fla. 4th DCA 1999). For example, in Taylor, the trial court committed fundamental error by instructing the jury that it could convict Taylor of aggravated battery if he used a deadly weapon or caused permanent disfigurement — separate violations under section 784.045(1)(a)1. and (1)(a)2., Florida Statutes (2000)—when the information charged him only with using a deadly weapon. Taylor, 760 So.2d at 299. In Hodges, we held that fundamental error occurred where the jury “instruction allowed the jury to find [Hodges] guilty of kidnapping if it found he committed an act which was not charged in the information.” 878 So.2d at 402.

We reject the state’s argument that the charging error is harmless. Fundamental error is not subject to harmless error review. Reed v. State, 837 So.2d 366, 369-70 (Fla.2002). We therefore reverse appellants’ kidnapping convictions in Counts V and VI of the information.

We find the remaining issues on appeal to be without merit. There was sufficient evidence to support the jury’s verdict, so the trial court did not err in denying Gar-zon’s motion for judgment of acquittal. The admission of the March 21 and 22 offenses against the same family were inextricably intertwined with the charged offenses, as failed attempts to rob the family of its valuables. See Griffin v. State, 639 So.2d 966, 968 (Fla.1994); Hall v. State, 403 So.2d 1321 (Fla.1981).

We affirm in all respects, except we reverse appellants’ convictions for kidnapping under Counts V and VI of the information.

WARNER, J. concurs.

KLEIN, J., concurs in part and dissents in part with opinion.

KLEIN, J.,

concurring in part and dissenting in part.

The issue raised by appellants is whether an “and/or” instruction is fundamental error. The majority states on page seven that the standard principals instruction placed all of the other instructions in the proper context. I believe such an instruction is never proper and, depending on the facts, can be fundamental error.

Under an “and/or” instruction the jury is informed that if defendant A has committed all the elements of the crime, B is guilty without having committed any elements, or having the intent that the crime be committed. In the alternative the jury could find both defendants guilty where only A committed some elements of the crime and only B committed other elements. The majority acknowledges that an incorrect instruction on an element of a crime can be fundamental error, Reed v. State, 837 So.2d 366 (Fla.2002). In the absence of a principals instruction, all courts, including this one, which have considered it, have found the “and/or” instruction to be so seriously flawed as to be fundamental error. See e.g. Davis v. State, 804 So.2d 400 (Fla. 4th DCA 2001); Williams v. State, 774 So.2d 841 (Fla. 4th DCA 2000).

In the written instructions, which the jury had during deliberations, the definitions of the crimes begin on page eighty of the record, and the principals instruction, which was only given once, is found at page eighty-eight. It was not given in conjunction with each crime definition. This jury, going through the written instructions, could have concluded that all defendants were guilty, based on the “and/ or” instructions, before ever reaching the principals instruction. The principals instruction, 3.5(a), requires that the defendant “had a conscious intent that the criminal act be done.” If the jury did not reach the principals instruction, it would be wrongfully convicting a defendant who could only be guilty under a principals instruction, where the state failed to prove the “conscious intent” required by the principals instruction.

The court also gave instruction 3.12(c), which provides:

A separate crime is charged against each defendant in each count of the information. The defendants have been tried together; however, the charges against each defendant and the evidence applicable to him must be considered separately. A finding of guilty or not guilty as to one or some of the defendants must not affect your verdict as to any other defendants or other crimes charged.

The “and/or” instruction is the opposite of this instruction.

The facts of this home invasion robbery were that two of the defendants were in the home, and a third defendant, who was familiar with the inside of the home, was not present. There was evidence, however, that the absent defendant, Garzón, was speaking to the others on a cell phone while they were in the home committing the robbery and other crimes, one of which was kidnapping. As to the two defendants who were in the home and actively involved in all of the crimes of which they were convicted, I can agree with the majority that the “and/or” instructions, combined with the principals instruction, were not such a serious error as to be fundamental. As to Garzón, however, who was not there, I disagree.

The telephone was not Garzon’s, but it was listed to a woman with his last name, and the state contended that she was his sister. It was Garzon’s position that he was not on the phone and did not participate. Because Garzón was not present, the “and/or” instructions were so deficient as to be fundamental error. It was far less likely that he would have been convicted of kidnapping, but for the “and/or” instruction, because the object of the home invasion was robbery, and the kidnapping carried out by those present was only incidental. Although Garzón could have been found guilty as a principal, the manner in which the jury was instructed made it unnecessary for the jury to consider whether Garzón had the intent, under the principals instruction, for the kidnapping to have occurred. I emphasize his conviction of the kidnapping, because it demonstrates the seriousness of the error in giving “and/or” instructions where one defendant is less involved than others, but I believe this error was fundamental as to all of Garzon’s convictions.

In deciding whether an “and/or” instruction is fundamental error, where there is a principals instruction, the third district considers the facts, which I think is the correct approach. It did so in the cases of Dorsett v. McRay, 901 So.2d 225 (Fla. 3d DCA 2005), and Lloyd v. Crosby, 917 So.2d 988 (Fla. 3d DCA 2005), in which the defendants were both involved in the same armed robbery and were tried together. Dorsett was the “wheel man,” who was convicted as a principal, in an armed robbery carried out by Lloyd and others. The third district held in Dorsett that Dor-sett’s appellate counsel had been ineffective in failing to argue that the trial court had committed fundamental error in giving the “and/or” instruction as to Dorsett, the driver. On the other hand, in Lloyd’s appeal, arising out of the same trial, the court held that the error in giving the “and/or” instructions was harmless, because Lloyd was one of the armed gunmen who directly held up the victims.

I concur with the result as to Balthazar, but dissent as to Garzón and would reverse his conviction.

      . The dissent seems to suggest that there was something wrong with the principals instruction being given only once, and "not in conjunction with each crime definition." The standard jury instruction does not indicate when the instruction is to be read. See Fla. Std. Jury Instr. (Crim.) 3.5(a). In many cases the principals charge is given only once, after the substantive crimes have been defined, and not' multiple times, after each substantive crime. Neither approach is wrong. Neither approach is fundamental error. This is the type of issue that must be preserved by a timely objection, if there is any error at all.

      . Fla. Std. Jury Instr. (Crim.) 3.12(c).


text:
    Idalia MALDONADO, Appellant, v. PUBLIX SUPERMARKETS, Appellee.
    No. 4D04-4335.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 2006.

      G. Ware Cornell, Jr. and Arianne Bom-balier Suarez of Cornell & Associates, P.A., Weston, for appellant.
    Annette Torres and Andrew L. Rodman of Stearns Weaver Miller Weissler Alha-deff & Sitterson, P.A., Miami, for appellee.
   GROSS, J.

Idalia Maldonado appeals an order granting summary final judgment in favor of Publix Supermarkets on her complaint for sexual harassment under section 760.01, et seg., Florida Statutes (2003), the Florida Civil Rights Act of 1992. We affirm, holding that the undisputed facts did not rise to the level of actionable sexual harassment under the Act.

In 1989, Maldonado commenced her employment with Publix as a meat wrapper. In 1998, Maldonado transferred to a different location, Store 159 in Coral Springs, where she became a seafood specialist. At that store, Maldonado worked with Catali-no Vazquez, who worked as a meat cutter. Vazquez worked at Store 159 between April 10, 1999 and November 23, 2002; he did not supervise Maldonado or any other employees.

In 2001, Vazquez “passed his hand” along Maldonado’s right side, between Maldonado’s hip and buttocks, as she left the freezer carrying four or five bags of shrimp. Vazquez did not say anything as he brushed Maldonado’s side. Maldonado did not know if the touching was intentional.

Shortly after the incident, Maldonado told meat manager Bill Thompson, her supervisor, that Vazquez had touched her hip. Thompson immediately spoke to Vazquez in Maldonado’s presence. Stating that he wanted no problems in the meat department, Thompson told Vazquez not to let it happen again and directed Vazquez to respect Maldonado. Vazquez told Thompson and Maldonado that “he didn’t do anything intentionally, that he did it unintentionally, and that [Maldonado] should forgive him.” Vazquez also told Maldonado “he wouldn’t do it again.”

Maldonado was satisfied with Thompson’s response to her complaint and reported that “it seemed [to her] that the problem was resolved.” Between the 2001 incident and August 14, 2002, Vazquez did not touch Maldonado in any inappropriate way.

On August 14, 2002, Vazquez grabbed Maldonado’s buttocks while she was grinding some meat. In response, Maldonado punched Vazquez in his back and told him to respect her. Vazquez then told Maldonado that she “was going to be his.”

The next morning, Maldonado told assistant meat manager Trieia Robotham about what happened. Robotham immediately alerted the new meat manager, Don Gale-no. Robotham and Galeno then informed store manager, Martin Jenner, who said that he would speak to both Maldonado and Vazquez.

The same day, Jenner spoke to Maldonado. Maldonado told Jenner about what transpired the day before with Vazquez. Jenner told Maldonado that he would speak to Vazquez and “handle the situation.” Later that same day, Galeno also spoke to Maldonado. After hearing Maldonado’s explanation of the incident, Gale-no told her that if she felt “worried” or “bad,” that she could go home. Galeno assured Maldonado that Jenner would speak to Vazquez.

Because Vazquez did not work on August 15, Jenner spoke to him the next day. The store manager told Vazquez about Maldonado’s complaint and that Vazquez should keep his distance from Maldonado and respect her. After hearing Vazquez’s side of the story, Jenner explained to Vazquez that he intended to document the incident in a counseling statement.

On August 17, 2002, Jenner presented Vazquez with an “associate counseling statement,” which warned Vazquez to keep his hands to himself and required immediate compliance. Jenner placed the counseling statement in Vazquez’s personnel file and forwarded a copy to the Publix corporate office. Jenner also reviewed Publix’s written sexual harassment policy with Vazquez. In addition, Jenner suggested, and Vazquez agreed, that Vazquez should transfer out of Store 159. Publix effectuated the transfer in November, 2002, the first date that a comparable position became available at another store.

Jenner reported to Maldonado the substance of his conversations with Vazquez. Jenner told Maldonado that Vazquez promised he “wouldn’t do it again,” and, indeed, Vazquez never touched Maldonado again.

About three to four weeks after the August 14 incident, Vazquez entered the cooler where Maldonado was working and “bit his lip.” Maldonado interpreted the lip biting as meaning “[y]ou’re really hot.” Maldonado left the cooler quicMy. Vazquez made no comments to Maldonado during this encounter.

Almost a week later, Vazquez again “bit his lip” while he and Maldonado were in the cooler. Again, Vazquez made no comments to Maldonado during this interaction.

After the second lip-biting incident, Maldonado told assistant store manager, Don Bridwell, what happened. Bridwell told Maldonado that he would “write it down” and that he and Galeno would sit down with Vazquez to make sure that nothing else would happen.

As a result of the lip-biting incidents and at Maldonado’s request, Publix attempted to schedule Maldonado and Vazquez so that their shifts would not overlap. Maldonado testified that Vazquez did not do anything else inappropriate between the second lip-biting incident and the date Vazquez was transferred out of the store in November, 2002.

The trial court granted Publix’s motion for summary judgment.

To obtain a final summary judgment, the moving party must conclusively demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to a judgment as a matter of law. See Fla. R. Civ. P. 1.510(c); Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966). “The proof must be such as to overcome all reasonable inferences which may be drawn in favor of the opposing party.” Holl, 191 So.2d at 43. Since the correctness of summary judgment is a question of law, this court reviews the matter de novo. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000).

Sexual harassment is a form of sex discrimination prohibited by the Florida Civil Rights Act, so that an employee may assert a claim for sexual harassment under section 760.10, Florida Statutes (2003). Similar to Title VII of the Civil Rights Act of 1964, Florida’s Civil Rights Act prohibits both employment discrimination and discrimination against any individual with respect to his or her compensation, terms, conditions or privileges of employment, on the basis of “race, color, religion, sex, national origin, age, absence of handicap, or marital status.” See § 760.10, Fla. Stat. (2003); Mendoza v. Borden, Inc., 195 F.3d 1238, 1244 (11th Cir.1999). Although neither the Florida nor Federal Civil Rights Acts specifically mention sexual harassment, the United States Supreme Court has long recognized that “[t]he phrase ‘terms conditions, or privileges of employment’ evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment, which includes requiring people to work in a discriminatorily hostile or abusive environment.” Mendoza, 195 F.3d at 1244-45 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)); see also Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 751, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (indicating that there are two types of sexual harassment cases: (1) quid pro quo, which are “based on threats which are carried out” or fulfilled, and (2) hostile environment, which are based on “bothersome attentions or sexual remarks that are sufficiently severe or pervasive to create a hostile work environment”).

Where harassment is perpetrated by a co-worker (as opposed to a supervisor or manager), to establish a hostile work environment sexual harassment claim, an employee must show that: (1) the employee is a member of a protected group; (2) the employee was subjected to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature; (3) the harassment was based on the sex of the employee; (4) the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and (5) that the employer knew or should have known about the harassment and took insufficient remedial action. See Speedway SuperAmerica, LLC v. Dupont, 933 So.2d 75, 80 (Fla. 5th DCA 2006); see also Natson v. Eckerd Corp., 885 So.2d 945, 947 (Fla. 4th DCA 2004) (citing Breda v. Wolf Camera & Video, 222 F.3d 886, 889 n. 3 (11th Cir.2000) and Castleberry v. Edward M. Chadbourne, Inc., 810 So.2d 1028, 1029-30 (Fla. 1st DCA 2002)).

This ease presents two issues: (1) whether the harassment was sufficiently severe or pervasive to alter the terms and conditions of Maldonado’s employment and (2) assuming-the sexual harassment was sufficiently severe and pervasive, whether Publix failed to take adequate remedial action.

Whether “the conduct complained of was ‘sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment’ — is the element that tests the mettle of most sexual harassment claims.” Gupta v. Florida Bd. of Regents, 212 F.3d 571, 583 (11th Cir.2000) (internal citations omitted). As the eleventh circuit has written,

[Requiring the plaintiff to prove that the harassment is severe or pervasive ensures that Title VII does not become a mere ‘general civility code.’ Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). This requirement is regarded “as crucial, and as sufficient to ensure that courts and juries do not mistake ordinary socializing in the workplace-such as male-on-male horseplay or intersexual flirtation-for discriminatory ‘conditions of employment.’ ” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998).

Gupta, 212 F.3d at 583. Having reviewed the Supreme Court’s sexual harassment cases, both the eleventh and fifth circuits have concluded that all of those cases “ ‘have involved patterns or allegations of extensive, long- lasting, unredressed, and uninhibited sexual threats or conduct.’ ” Id. at 586 (quoting Indest v. Freeman Decorating, Inc., 164 F.3d 258, 264 (5th Cir.1999)).

In a sexual harassment suit, if offensive conduct is gender-related or sexual in nature, courts consider four factors to determine, from an objective standpoint, whether such conduct is sufficiently severe and pervasive to alter the terms and conditions of employment and state an actionable claim of sexual harassment. See Harris, 510 U.S. at 23, 114 S.Ct. 367; Gupta, 212 F.3d at 584; Mendoza, 195 F.3d at 1246. These factors are: 1) the frequency of the conduct; 2) severity of the conduct; 3) whether the conduct was physically threatening or humiliating; and 4) whether the conduct unreasonably interfered with the employee’s job performance. Mendoza, 195 F.3d at 1246. “ ‘[SJimple teasing,’ offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’ ” Faragher, 524 U.S. at 788, 118 S.Ct. 2275 (internal citations omitted); see also Willets v. Interstate Hotels, LLC, 204 F.Supp.2d 1334, 1336 (M.D.Fla.2002). An analysis of the severity factors includes a subjective and objective component, in that the employee must subjectively perceive the harassment as sufficiently severe and pervasive to alter the terms or conditions of employment, and the subjective perception must be objectively reasonable. Mendoza, 195 F.3d at 1246 (citing Harris, 510 U.S. at 21-22, 114 S.Ct. 367). The objective severity of the harassment must be judged from the perspective of a reasonable person in the plaintiffs position, taking into consideration all the circumstances. Id. (citing Oncale, 523 U.S. at 81, 118 S.Ct. 998).

Analyzing this case in light of the four factors identified above, we conclude that, as a matter of law, Maldonado did not endure conduct that was sufficiently severe and pervasive to support an action for sexual harassment.

On the factor of frequency, Maldonado’s allegations amounted to four isolated incidents that occurred over a period of almost two and one-half years. Courts reviewing similar patterns have held that such conduct does not give rise to a sexual harassment claim. For example, in Mendoza, the eleventh circuit concluded that “a single instance of slight physical contact, one arguably inappropriate statement, and three instances of [a co-worker] making a sniffing sound[,] ... over an eleven month period,” were “far too infrequent to alter conditions” under which the harassment victim was required to perform her job. 195 F.3d at 1249 (citing Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1365-66 (10th Cir.1997) (holding five “sexually-oriented, offensive” statements over sixteen months insufficient to show a hostile environment, even though an offensive statement from one of the harassers occurred while he put his arm around plaintiff, looked down her dress and said, “well, you got to get it when you can”)).

This case contrasts with Speedway SuperAmerica, where a female employee was subjected to repeated, countless acts of verbal and physical harassment over a nine-week period; the employee was subjected to offensive conduct “every time she worked [with the offender] on a typical eight-hour shift.” 933 So.2d at 81.

On the issue of the severity, Vazquez’s conduct failed to cross the Mendoza line or the baseline established by the Supreme Court in cases such as Harris or Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). The first touching of Maldonado’s hip, the buttocks grabbing incident, and the two lip bites do not constitute the “hellish” work environment necessary to establish a sexual harassment claim. See Perez v. Norwegian-Amer. Hosp., Inc., No. 03-1619, 2004 WL 422555 (7th Cir. Mar. 5, 2004) (granting summary judgment and holding that a single slap on the buttocks does not create the requisite “hellish” work environment to establish a sexual harassment claim); see also Snellgrove v. Teledyne Abbeville, 117 F.Supp.2d 1218 (M.D.Ala.Ct.1999) (granting summary judgment on sexual harassment claim where one plaintiff alleged that a co-worker placed his hands on her breasts and that another co-worker touched her buttocks). Mendoza found that the following four instances of harassing conduct were not “severe” within the meaning of the four part test:

(1) one instance in which [the harasser] said to Mendoza “I’m getting fired up”; (2) one occasion in which [the harasser] rubbed his hip against Mendoza’s hip while touching her shoulder and smiling; (3) two instances in which [the harasser] made a sniffing sound while looking at Mendoza’s groin area and one instance of sniffing without looking at her groin; and (4) [the harasser’s] “constant” following and staring at Mendoza in a “very obvious fashion.”

195 F.3d at 1248.

As to the third aspect of the test, most of Vazquez’s inappropriate conduct was neither physically threatening nor humiliating. Maldonado conceded that the first touching incident may have been unintentional, which undermines the suggestion that it was physically threatening. Mendoza, 195 F.3d at 1248 (where court indicated that brushing up against plaintiffs hip was neither threatening nor humiliating). The lip bites were, at worst, flirtatious “come-ons.” Mere flirtation does not constitute sexual harassment. In Gupta, the eleventh circuit noted that “flirtation is not sexual harassment” and that employers cannot be required to ensure that employees never look or stare at each other in a way that may be perceived as a “come on.” 212 F.3d at 584-85.

“The fourth factor in determining whether conduct and statements are ‘sufficiently severe or pervasive’ to create a hostile work environment is whether the conduct and statements unreasonably interfere with the plaintiffs job performance — a factor which involves both a subjective and objective inquiry.” Id. at 586. After the buttocks grabbing incident, Maldonado testified that she quicMy punched out without cleaning her meat-grinding machine. However, Maldonado continued to work following her reports of Vazquez’s conduct, and she continues to work for Publix to this day.

Vazquez’s sporadic and nonthreatening conduct would not have interfered with a reasonable person’s job performance. Maldonado’s subjective beliefs about the effect of Vazquez’s conduct on her job performance “are not [a] complete measure of whether conduct is of a nature that it interferes with job performance. If it were, the most unreasonably hypersensitive employee would be entitled to more protection than a reasonable employee, and the standard would not have an objective component.” Gupta, 212 F.3d at 586.

Maldonado relies on Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998), Vance v. Southern Bell, 863 F.2d 1503 (11th Cir.1989), and Russell v. KSL Hotel Corp., 887 So.2d 372 (Fla. 3d DCA 2004), to support her contention that the trial court erred in granting Publix’s motion for summary judgment. Maldonado’s reading of Oncale is flawed, and her reliance on Vance and Russell is misplaced.

In Oncale, the Supreme Court dealt with the narrow issue of whether Title VII prohibits same-sex sexual harassment, which in Oncale consisted of male-on-male physical assaults and threatened rape. Justice Scalia delivered the opinion for the Court and answered that question affirmatively. Maldonado contends that the following language from Oncale establishes that a buttocks grab or slap constitutes sexual harassment:

In same-sex (as in all) harassment cases, that inquiry [into the objective severity of harassment] requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. A professional football player’s working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field-even if the same behavior would reasonably be experienced as abusive by the coach’s secretary (male or female) back at the office.

523 U.S. at 81, 118 S.Ct. 998.

However, this discussion occurs in a paragraph where Justice Scalia is demonstrating the importance of placing particular behavior in social context for purposes of sexual harassment analysis. That the Court did not intend to expand the definition of sexual harassment is demonstrated by Oncale’s discussion of why the Court’s recognition of same-sex sexual harassment would not transform Title VII into a “general civility code,” and that “common sense” and “sensitivity to social context” would guide the courts in recognizing the difference between “simple teasing” and “severely hostile or abusive” conduct. Oncale, 523 U.S. at 81-82, 118 S.Ct. 998. Oncale reaffirmed that Title VII “does not reach genuine but innocuous differences in the ways men and women routinely interact,” that it forbids “only behavior so objectively offensive as to alter the ‘conditions’ of the victim’s employment,” and that courts and juries must not mistake ordinary socializing in the workplace, including sexual flirtation, for discriminatory conditions of employment. Id. at 81, 118 S.Ct. 998.

Maldonado cites Vance for the proposition that the sexual harassment inquiry must be based on a totality of the circumstances, which includes consideration of the severity, as well as the number, of incidents at issue. However, Vance involved conduct that was more egregious and shocking than what is at issue here. The plaintiffs allegations of racial harassment in Vance included two incidents of hanging a noose from the light fixture in plaintiffs work station. Vance held that the severity of the alleged harassment must be determined by the totality of the circumstances, and that a reasonable jury could have concluded that plaintiff was subjected to racial harassment. Vance, 863 F.2d at 1511. As the Vance court acknowledged, “[i]t is hard to imagine an incident of this sort taking place in 1984. The grossness of hanging an object resembling a noose at the work station of a black female is self evident.” Id. at 1511 n. 4. Given this country’s tumultuous history of race relations, the symbolism of a noose, like a burning cross or a swastika, is clear. While Vazquez’s conduct should not be condoned, it does not rise to the level of workplace misconduct evident in Vance.

Maldonado also cites to Russell. However, that case involved more extensive and severe harassment than what occurred in this case. In Russell, the plaintiff presented evidence at trial that the harasser, a non-supervisory colleague, engaged in the following conduct: 1) expressed dissatisfaction that defendant had hired a woman (the plaintiff) for a pastry chef position; 2) pulled the plaintiff towards him and kissed her on the cheek; 3) laughed at the plaintiff and made kissing noises when the plaintiff protested that he had kissed her on the cheek when they first met; 4) frequently came up behind plaintiff making kissing noises, cursed at her, tapped on her back, laughed at her, and on one occasion pushed her ear very hard; 5) on several occasions approached plaintiff from the rear, rammed his erect penis into her buttocks and whispered in her ear, “Fuck you, Kitty. Fuck you.”; 6) threw a plastic water bottle at plaintiff inside the pastry kitchen freezer and hit plaintiff in the neck; and 7) said to another male employee loud enough for plaintiff to hear, “How many times should we fuck her? Should we call her husband? How many times can we fuck her?,” followed by the men’s laughter. 887 So.2d at 374-75. Vazquez’s conduct does not approach the conduct described in Russell.

Even assuming that Vazquez’s conduct rose to the level of actual harassment, we find that Publix’s corrective action was immediate, appropriate, and reasonably likely to stop the harassment, thereby precluding any finding of liability. See Natson, 885 So.2d at 947; Saxton v. AT & T, Co., 10 F.3d 526, 536 (7th Cir.1993); see also Watson v. Blue Circle, Inc., 324 F.3d 1252, 1257 (11th Cir.2003) (citing Breda v. Wolf Camera & Video, 222 F.3d 886, 889 (11th Cir.2000)); Landgraf v. USI Film Prods., 968 F.2d 427 (5th Cir.1992). Publix supervisors confronted Vazquez within twenty-four hours of Maldonado informing them of her complaints. The supervisors used an escalating pattern of discipline — verbal warning, adverse counseling statement, rescheduling and transfer-designed to end Vazquez’s offensive conduct. See Saxton, 10 F.3d at 536 (recognizing that a transfer of an offending employee satisfied employer’s obligation to take steps reasonably likely to stop harassment).

Affirmed.

GUNTHER and FARMER, JJ., concur.

      . Maldonado did not recall the day, month, year, or season of this first incident. Her supervisor, Bill Thompson, to whom she reported the incident, worked at Store 159 between March 11, 2000 and August 18, 2001.

      . The Florida Civil Rights Act is patterned after Title VII, and therefore federal case law regarding Title VII is applicable. See Castleberry v. Edward M. Chadbourne, Inc., 810 So.2d 1028, 1030 n. 3 (Fla. 1st DCA 2002).