author: PER CURIAM. PARIENTE, J.,

text:
    Donte Jermaine HALL, Appellant, v. STATE of Florida, Appellee.
    No. SC09-2326.
    Supreme Court of Florida.
    Feb. 2, 2012.
    Rehearing Denied May 21, 2012.

      James S. Purdy, Public Defender, and Christopher S. Quarles, Assistant Public Defender, Seventh Judicial Circuit, Dayto-na Beach, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Barbara Davis, Assistant Attorney General, Daytona Beach, FL, for Appellee.
   PER CURIAM.

Donte Hall appeals his conviction for first-degree murder and his sentence of death. For the reasons that follow, we affirm his conviction and sentence.

I. FACTS AND PROCEDURAL BACKGROUND

Donte Hall was sentenced to death for the September 2006 murder of Anthony Bernard Blunt. The jury found Hall guilty of conspiracy to commit armed robbery, armed burglary, robbery with a firearm, attempted felony murder of Joshua Daniel, attempted felony murder of Willie Shelton, first-degree murder of Keson Evans, and first-degree murder of Anthony Blunt.

The evidence at trial revealed that on September 8, 2006, 22-year-old Hall learned that his girlfriend, 18-year-old Angel Glenn, had been hired to dance and strip at a house party that night. Angel had been told she would make a lot of money for dancing, and Hall told Angel that he planned to rob the attendees of the party. Hall, along with his twin brother, Dante, and acquaintances Shoo-Shoo and Pig, followed Angel and her two fellow dancers from Orlando to the party in Eus-tis. At the party, several men were present, drinking alcohol, smoking marijuana, and using ecstasy. The girls entered the house, went into a back room, took ecstasy pills, and began changing clothes. Hall stayed in communication with Angel via cell phone while she was in the room, asking her how many men were in the house, whether there were guns in the house, and when the party would begin. After some delay, music began playing and the girls began dancing and stripping.

Within approximately five or ten minutes, Hall entered the house, carrying an assault rifle and saying he was going to “make this choppa dance.” Hall was followed by Dante, Shoo-Shoo, and Pig, and all four men were wearing dark clothing and had their faces partially covered. They were carrying handguns and assault rifles. The attendees of the party, as well as the three dancers, gathered in the living room.

The intruders started shooting, and the lights went out. The gunmen demanded money and told the partygoers to get down on the ground, and the partygoers began taking off their jewelry and handing it to the gunmen. The seized items included gold chains, bracelets, watches, and a Gucci bag containing about $1500 in cash.

Eyewitness testimony established that Hall was the first to fire a gun and that Hall did most of the talking. In order to stop the shooting and distract the gunmen, partygoer Keson Evans stated that there was a box of money in the back room. Hall went to the back room but found the door locked; he returned to the living room and fired his gun again, fatally shooting Evans in the head.

The four gunmen were in the house for ten minutes or less. During that time, Willie “Jay” Shelton, William Robinson, Joshua Daniel, Keson Evans, and Anthony Blunt were each shot. Daniel was the first to be shot, and he suffered several gunshot wounds to his hands, thighs, abdomen, and torso. Later, after being rushed to the hospital, Daniel spent eighteen hours in surgery to remove the bullets and treat his approximately twenty entrance and exit wounds, which were very severe but ultimately nonfatal. Shelton was shot once in the stomach and once in the forearm. His injuries caused him to be hospitalized for two years. Robinson was shot in the stomach and in the shoulder. Blunt was fatally shot in his chest, right thigh, and left hand. Evans was shot in the face and the right thigh and died as a result.

The gunmen fled the house immediately after Evans was shot. The three women then left the house together with Angel driving them back to Orlando. Hall called Angel, asking her whether the women were okay and telling them to calm down. Hall and Angel arranged to meet at a gas station on a major road leading from Eus-tis back to Orlando. At the gas station, Hall got out of Dante’s car and into Angel’s car, carrying a gun and stolen property from the robbery. During the car ride, Hall stated that he was angry because he did not get enough money and the robbery did not go as he had planned. Angel dropped Hall off at his mother’s house, where he was living at the time.

The next morning, Angel went to Hall’s mother’s house to see him at his request. Twin brother Dante .and Hall’s mother were also home. Dante was pulling jewelry from the robbery out of a Gucci bag, and the twins discussed what they would do with the jewelry, how much it was worth, and how they would make money off of it. Hall gave some of the jewelry to Dante’s girlfriend and instructed her to pawn it. Some of the robbery victims later identified jewelry that had been pawned, and Angel identified the same jewelry as jewelry she had seen in Hall’s possession at his mother’s house the day after the robbery.

The following day, Dante went to the hotel where Hall, Angel, and Angel’s one-year-old son were staying and discussed with Hall the logistics of pawning the jewelry from the robbery. The twin brothers left the hotel together with most of the jewelry. Hall also gave Angel a few of pieces of jewelry to pawn, for which she received $1,000 that she then gave to Hall. Over the next several days, Hall made phone calls to Shoo-Shoo and Pig to discuss the jewelry and how the proceeds would be divided.

Angel was soon arrested for pawning the stolen jewelry and was in jail for several weeks, during which time she lied to police about the events of September 9 because she was frightened for her family’s wellbeing. Meanwhile, one of the other dancers from the party, Nikita Jackson, told police what had happened the night of the robbery and murders. Eventually, Angel also admitted to the police what had happened and agreed to testify against Hall.

During the penalty phase, the court received expert testimony regarding Hall’s mental health. Two psychologists testified that Hall was of very low intelligence with an IQ in the borderline range of intellectual abilities. Both psychologists also testified that Hall had some history of substance abuse.

Using special verdict forms, the jury voted unanimously that three aggravating circumstances were established beyond a reasonable doubt for the murders of Anthony Blunt and Keson Evans: (1) that Hall had a prior violent felony conviction; (2) that he knowingly created a great risk of death to many people; and (3) the murders were committed for pecuniaiy gain. Additionally, the jury voted eleven to one that the murder of Anthony Blunt was especially heinous, atrocious or cruel. The jury voted eight to four in favor of a death sentence for the murder of Blunt and recommended a life sentence for the murder of Evans.

After conducting a Spencer hearing, the trial court followed the jury’s recommendation of death for the murder of Anthony Blunt, concluding that the four aggravating factors outweighed several mitigating factors. Specifically, the trial court found the following aggravators for Blunt’s murder: (1) Hall was contemporaneously convicted of armed burglary, armed robbery, attempted felony murder of Willie Shelton, attempted felony murder of Joshua Daniel, and first-degree murder of Keson Evans (some weight); (2) Hall created a great risk of death to many people (great weight); (3) Hall committed the murder for pecuniary gain (great weight); and (4) Hall committed the murder of Blunt in an especially heinous, atrocious, or cruel manner (great weight). The trial court found one statutory mitigating circumstance: Hall’s capacity to conform his conduct to the requirements of the law was substantially impaired (some weight). The court also found the following nonstatutory mitigating circumstances: (1) Hall demonstrated appropriate courtroom behavior (minimal weight); (2) Hall’s family background included generational drug and alcohol use (some weight); (3) Hall’s family background included generational criminal behavior (some weight); (4) Hall did not grow up with good role models (some weight); (5) Hall grew up in a dangerous neighborhood that reinforced drug use (some weight); (6) Hall may have been abused as a child (minimal weight); (7) Hall had many different living arrangements as a child (minimal weight); (8) Hall suffered from attention deficit disorder and is considered borderline mentally retarded (some weight); and (9) Hall has an extensive history of drug and alcohol abuse (minimal weight).

II. ISSUES RAISED ON APPEAL

Hall claims that (A) the trial court erred by instructing the jury on and finding the heinous, atrocious, or cruel (HAC) aggra-vator for the murder of Anthony Blunt and that (B) Hall’s death sentence is disproportionate. Neither claim warrants relief.

A. Heinous, Atrocious, or Cruel Aggravator

Hall claims that the trial court erred in instructing the jury on and finding the HAC aggravator for the murder of Anthony Blunt. We disagree.

Florida law provides that “evidence may be presented as to any matter that the court deems relevant to the nature of the crime and the character of the defendant and shall include matters relating to any of the aggravating or mitigating circumstances.” § 921.141(1), Fla. Stat. (2006). The trial court must instruct the jury on any aggravators for which credible and competent evidence is presented. Aguirre-Jarquin v. State, 9 So.3d 593, 607 (Fla.2009). And this Court reviews a trial court’s decision to find an aggravator for competent substantial evidence. See id.

The HAC aggravating circumstance applies when “[t]he capital felony was especially heinous, atrocious, or cruel.” § 921.141(5)(h), Fla. Stat. (2006). This Court has explained the following regarding the HAC aggravator:

HAC focuses on the means and manner in which the death is inflicted and the immediate circumstances surrounding the death, rather than the intent and motivation of a defendant, where a victim experiences the torturous anxiety and fear of impending death. Thus, if a victim is killed in a torturous manner, a defendant need not have the intent or desire to inflict torture, because the very torturous manner of the victim’s death is evidence of a defendant’s indifference.

Barnhill v. State, 834 So.2d 836, 849-50 (Fla.2002) (citation omitted). “[F]ear, emotional strain, and terror of the victim during the events leading up to the murder may make an otherwise quick death especially heinous, atrocious, or cruel.” Lynch v. State, 841 So.2d 362, 369 (Fla.2003) (quoting James v. State, 695 So.2d 1229, 1235 (Fla.1997)). “The intention of the killer to inflict pain on the victim is not a necessary element of the aggravator.” Guzman v. State, 721 So.2d 1155, 1160 (Fla.1998). Rather, “the HAC aggravator may be applied to torturous murders where the killer was utterly indifferent to the suffering of another.” Id. And “the victim’s mental state may be evaluated for purposes of such determination in accordance with a common-sense inference from the circumstances.” Swafford v. State, 533 So.2d 270, 277 (Fla.1988).

Here, there was evidence supporting the HAC aggravator for the murder of Anthony Blunt. Blunt was attending a party when Hall stormed in and demanded money with the threat that he was going to start firing his AK-47. After Hall made good on his threat and Blunt was shot multiple times, Blunt was left groaning, breathing heavily, sweating, begging for help, and indicating that he was in severe pain. Blunt was aware that he had been shot and remained conscious for as long as it took emergency medical responders to arrive at the scene and throughout much of the time that paramedics were providing aid. Blunt was also conscious and nearby when a fellow partygoer was shot to death in the face for mentioning additional money that the intruders could not locate. A medical examiner testified that none of Blunt’s wounds would have rendered him immediately unconscious and each would have caused serious bleeding and pain. Emergency medical responders classified Blunt as being “critical” and “in serious distress” because of his wounds. Blunt eventually went into cardiac arrest and had to be intubated, monitored, and given CPR. While he was bleeding to death, Blunt repeatedly said, “I don’t want to die, I don’t want to die.”

With these facts presented, the jury instruction on this aggravator was not error. Additionally, we conclude that the trial court did not err in finding the HAC ag-gravator because it was supported by the above competent substantial evidence. See McGirth v. State, 48 So.3d 777, 795-96 (Fla.2010) (holding that the HAC aggravator was supported by competent substantial evidence when the victim witnessed her daughter bound and taken from her home, and when the gunshot victim remained conscious, asked the defendant for help, and experienced pain, difficulty breathing, and anxiety while suffering for fifteen to thirty minutes before dying), cert. denied, — U.S. -, 131 S.Ct. 2100, 179 L.Ed.2d 898 (2011).

B. Proportionality

Hall also claims that his death sentence is disproportionate. However, this claim is without merit.

Proportionality review “is not a comparison between the number of aggravating and mitigating circumstances.” Crook v. State, 908 So.2d 350, 356 (Fla.2005) (quoting Urbin v. State, 714 So.2d 411, 416 (Fla.1998)). Instead, the Court considers the totality of the circumstances to determine if death is warranted in comparison to other cases where the death sentence has been upheld. Davis v. State, 859 So.2d 465, 480 (Fla.2003).

The circumstances- of this case reveal murder by shooting, committed during the course of a robbery. Evidence established that the shooting occurred in a room containing at least thirteen people, that at least twenty shots were fired, that four people suffered multiple gunshot wounds, and that two attendees were fatally wounded. And evidence was presented that Blunt was killed in a manner involving unnecessary agony and that Hall was indifferent to Blunt’s suffering. Hall was also subject to the prior violent felony aggravator based for his contemporaneous convictions for armed burglary, armed robbery, two counts of attempted felony murder, and first-degree murder. Of these four aggravators, the trial court gave “great weight” Hall’s prior violent felony convictions, “great weight” to the committed for pecuniary gain aggravator, “great weight” to the great risk of death to many people aggravator, and “great weight” to the HAC aggravator.

Evidence was presented indicating that Hall was of low intelligence. The trial court gave “some weight” to the statutory mental mitigator of Hall’s impaired capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law, “some weight” to the nonstatutory mitigators of family history of criminal behavior, family history of substance abuse, poor role models, mental health issues, and growing up in a dangerous neighborhood that reinforced drug use. The trial court gave “minimal weight” to the nonstatutory mitigators of substance abuse issues, appropriate courtroom behavior, different living arrangements as a child, and possible abuse as a child.

Considering those circumstances, the aggravating and mitigating factors weighed by the trial court, and other cases with similar facts, we conclude that Hall’s death sentence is proportionate. See, e.g., McLean v. State, 29 So.3d 1045 (Fla.2010) (in a robbery with multiple gunshot victims, death sentence proportionate with prior violent felony • aggravator and committed during a robbery aggravator, both statutory mental health mitigators, and nonstatutory mitigators of substance abuse, family problems, mild brain injury, and miscellaneous factors) cert. denied, - U.S. -, 131 S.Ct. 153, 178 L.Ed.2d 92 (2010); Hayward v. State, 24 So.3d 17 (Fla.2009) (death sentence proportionate with prior violent felony aggra-vator and merged committed during a robbery/committed for pecuniary gain ag-gravator and nonstatutory mitigators including academic problems, an absent father, some capacity for rehabilitation, and financial stress at the time of the crime); Singleton v. State, 783 So.2d 970 (Fla.2001) (death sentence proportionate with prior violent felony aggravator and HAC aggravator, both statutory mental miti-gators as well as age, and various nonstat-utory mitigators (substance abuse, impaired capacity, good behavior as prisoner and soldier, intent to kill formed during argument, mental issues)); Shellito v. State, 701 So.2d 837 (Fla.1997) (death sentence proportionate with prior violent felony aggravator and merged pecuniary gain/commission during a robbery aggra-vator and several nonstatutory mitigating circumstances (family issues, mental issues, and a troubled childhood)); Henyard v. State, 689 So.2d 239 (Fla.1996) (death sentence proportionate with the prior violent felony aggravator, pecuniary gain ag-gravator, HAC aggravator, and committed during the course of a felony aggravator, statutory mitigators of young age, extreme emotional disturbance, and impaired capacity to conform conduct to the requirements of the law, and nonstatutory mitigators including low intelligence and emotional immaturity, impoverished upbringing, dysfunctional family, ability to adjust to prison life, and disparate treatment of codefendant); Pope v. State, 679 So.2d 710 (Fla.1996) (death sentence proportionate with prior violent felony aggra-vator and pecuniary gain aggravator, statutory mitigators of mental or emotional disturbance at the time of the crime and impaired capacity to appreciate the criminality of conduct or to conform conduct to the requirements of the law, and nonstatu-tory mitigators including that defendant was intoxicated, was under the influence of mental or emotional disturbance, and acted after a disagreement with his girlfriend).

III. SUFFICIENCY

Hall does not challenge the sufficiency of the evidence, but in death sentence appeals, this Court independently reviews the record to confirm that the jury’s verdict is supported by competent substantial evidence. See Delgado v. State, 948 So.2d 681, 689-90 (Fla.2006).

The following competent substantial evidence presented at trial is sufficient to support Hall’s conviction: (1) Hall’s former girlfriend, Angel, testified that Hall told her he intended to rob the men at the party and that Hall followed her and the other women to the house; (2) Angel testified that Hall was the first gunman to enter the house, that he was carrying an AK-47, and that he was threatening to shoot the victims; (3) another eyewitness, Nikita Jackson, testified that Hall was the gunman demanding money and jewelry, that Hall was carrying a large gun, and that Hall was the first to fire his weapon; (4) Willie Shelton testified that the man with the AK-47 was the one giving the orders to the other robbers; (5) Angel and Nikita testified that, immediately after the robbery, they met Hall at a gas station, that Hall was carrying both a gun and property stolen during the robbery, and that Hall complained that he had not received enough money in the robbery; (6) cell phone records established that Hall was in communication with Dante, Pig, Shoo-Shoo, and Angel on the night of the murders and that his cell phone was in the area of the crime scene during the time of the crimes; (7) a fellow inmate testified that Hall admitted that he orchestrated the robbery and described the details of the robbery, including stating that he had been armed with an AK-47 and had shot a man.

IV. CONCLUSION

For the foregoing reasons, we affirm Hall’s convictions and his sentence of death.

It is so ordered.

CANADY, C.J., and LEWIS, QUINCE, POLSTON, and PERRY, JJ, concur.

PARIENTE, J., concurs in part and dissents in part with an opinion, in which LABARGA, J., concurs.

PARIENTE, J.,

concurring in part and dissenting in part.

Although I concur as to the conviction, I dissent as to the majority’s conclusion that HAC applies to this shooting murder. Despite the majority’s attempt to distinguish Teffeteller v. State, 439 So.2d 840 (Fla.1983), our well-established precedent establishes that while there are other aggravating circumstances in this case, HAC is not established here.

HAC is shorthand for “especially heinous, atrocious and cruel.” § 921.141(5)(h), Fla. Stat. (2006) (emphasis added). The HAC aggravator applies only to those “physically and mentally torturous murders which can be exemplified by the desire to inflict a high degree of pain or utter indifference to or enjoyment of the suffering of another.” Barnhill v. State, 834 So.2d 836, 849 (Fla.2002).

While the Court certainly should look to a victim’s mental state and viewpoint in determining the applicability of HAC, this Court has never held that HAC revolves solely around the victim’s perspective or the nature of the wound itself. In fact, we have explicitly rejected such a view and have long recognized that HAC can be applied only where the defendant himself desired to inflict a high degree of pain on another, was utterly indifferent to the suffering of another, or enjoyed the suffering of another. Guzman v. State, 721 So.2d 1155, 1159 (Fla.1998); see also Buckner v. State, 714 So.2d 384, 390 (Fla.1998) (“Only when a murder evinces extreme and outrageous depravity as exemplified either by the desire to inflict a high degree of pain or utter indifference to or enjoyment of the suffering of another is a finding of HAC appropriate.”). In other words, the finding of HAC requires both elements: the murder must be torturous from the victim’s viewpoint, and there must be actual evidence that the defendant either intended to inflict a high degree of pain or was utterly indifferent to or enjoyed the suffering of another.

Yet in its sentencing order, the trial court rejected the defendant’s argument that HAC did not apply because the evidence failed to demonstrate that Hall intended that the victim suffer a torturous death or was utterly indifferent to Blunt’s suffering. Instead, the court stated that to determine whether HAC applies, “Mr. Blunt’s perceptions are the controlling criteria.” That statement is incorrect. The victim’s perceptions, while important, are not the controlling fact in deciding whether HAC applies, and the trial court made a critical error that affected its finding of HAC.

The actions in this case involve a defendant who used an assault rifle to fire rapidly and indiscriminately throughout a crowded living room during a short robbery, showing the victims that he was serious. The initial, random shots hit some of the victims, who suffered various wounds, most of which were nonlethal. In addition, the shots blew out the television and light fixture, which left the living room dark. When one of the victims, Evans, informed Hall that there was more money in a back bedroom, Hall left to find it. After his attempt to locate the money was unsuccessful, he returned to the living room, fatally shot Evans, and then immediately fled the scene along with the other men involved in the robbery. It was only after Hall left that Blunt was seen to be in pain and was heard to be groaning, repeatedly stating that he did not want to die.

The facts regarding Hall’s indiscriminate shooting in a crowded room clearly support the statutory aggravator that Hall “created a great risk of death to many people.” The fact that numerous individuals were shot, including Evans who was fatally shot in the head, support the contemporaneous violent felony aggravator. These facts alone, however, do not support HAC.

Both the trial court and the majority base the finding of HAC on two circumstances: (1) the pain that Blunt exhibited after the defendant left; and (2) that Blunt was aware other victims were shot. Without more, these circumstances do not establish HAC. Simply put, there is no evidence that was submitted by the State to show the second necessary element of HAC — that the defendant intended to cause or was utterly indifferent to the victim’s suffering. In this case, there is no additional act by the defendant evidencing his intent to mentally or physically torture Blunt beyond the initial rapid and indiscriminate gunfire, which resulted in Blunt’s injuries that eventually caused his death.

The majority first bases its determination of HAC on the assertion that Blunt was aware other victims were shot. While this Court has found HAC based on the shooting deaths of other victims, it was based on the fact that the victims clearly understood their impending deaths because they saw the other victims were being systematically eliminated. See, e.g., Allred v. State, 55 So.3d 1267, 1280 (Fla. 2010) (affirming HAC where evidence showed that after the defendant informed the victim that he would kill her, he broke into her home and started hunting for her, resulting in the victim calling 911 in a panic and relating to the 911 operator that she heard the defendant killing her best friend, she anticipated her own death and pleaded for assistance, and then she screamed as she was repeatedly shot), cert. denied, — U.S. -, 132 S.Ct. 181, 181 L.Ed.2d 91 (2011); Henderson v. State, 463 So.2d 196, 201 (Fla.1985) (affirming HAC where evidence showed that the defendant bound and gagged the victims and then systematically shot each one in the head, permitting the victims to see what was happening and to suffer extreme fear while they anticipated their fate). Here, this case does not involve a systematic elimination of witnesses where the other victims watched and understood that they would all soon die and faced the fear of their impending deaths. Thus, this fact does not support HAC. Moreover, there was no evidence presented that Blunt knew or saw the injuries that the other victims endured. In fact, the evidence presented at trial establishes that many of the witnesses found it difficult, if not impossible, to see what happened to each other since the crime occurred at night and the defendant’s initial shots blew out the lights in the room.

The majority also affirms the finding of HAC based on the pain that Blunt exhibited. However, these events happened after the defendant left. Thus, this evidence cannot establish that the defendant intended for the victim to suffer a torturous death or that he was utterly indifferent to the victim’s pain. No evidence was presented that Hall knew that Blunt continued to suffer from this fatal gunshot wound. In fact, most of the surviving victims testified that it was after Hall left that they realized what injuries other victims had suffered.

In Barnhill, cited by the majority, we explained that “if a victim is killed in a torturous manner, a defendant need not have the intent or desire to inflict torture, because the very torturous manner of the victim’s death is evidence of a defendant’s indifference.” 834 So.2d at 850. Specifically, in Barnhill, we were discussing strangulation deaths and went on to explain that “[bjecause strangulation of a conscious victim involves foreknowledge and the extreme anxiety of impending death, death by strangulation constitutes prima facie evidence of HAC.” Id. Moreover, based on that fact that strangulation requires the defendant to apply extreme force to the victim’s neck for a substantial period of time before the victim dies, this manner of death inherently shows that the defendant was indifferent to the victim’s pain. In fact, Barnhill involved a defendant who strangled the victim repeatedly over a period of several minutes, after several failed attempts, and the victim did not lose consciousness immediately and attempted to fight back.

Unlike strangulations, shooting deaths have been considered in a different light with no inference of the defendant’s state of mind. This Court has previously recognized that “a murder by shooting, when it is ordinary in the sense that it is not set apart from the norm of premeditated murders, is as a matter of law not heinous, atrocious, or cruel.” Lewis v. State, 398 So.2d 432, 438 (Fla.1981); see Kearse v. State, 662 So.2d 677, 686 (Fla.1995). Thus, this Court has previously struck the finding of HAC in this type of case. For example, in Teffeteller, 439 So.2d at 846, this Court struck the HAC aggravator under similar circumstances, where the victim died a slow death after being shot. The gunshot was not immediately fatal, and the victim lived for a couple of hours in undoubted pain and knew that he was facing imminent death. Id. Regardless, this Court held that this circumstance, even though horrible, did “not set this senseless murder apart from the norm of capital felonies.” Id.

While the majority attempts to distinguish Teffeteller because here Blunt purportedly knew that other victims had been shot, as addressed above, this Court has used this circumstance to establish HAC only where the defendant’s action in systematically eliminating the witnesses led the victim to clearly understand his or her impending death. Such was not the case here. Moreover, since some of the witnesses testified they could not see what was happening because the lights went out, the facts do not establish that Blunt was aware of the other victims’ injuries. In addition, although the majority attempts to distinguish Teffeteller because Blunt made statements that showed he knew he was dying, this same circumstance was also present in Teffeteller. Further, such evidence is not relevant to whether Hall was “utterly indifferent” to Blunt’s suffering since those events occurred after Hall left, and no evidence was presented to show that Hall intended to shoot the victim in a manner that would cause a slow, painful death.

A review of our prior precedent in these types of cases shows that the Court has struck HAC in other shooting deaths where the facts did not establish that the defendant intended to inflict pain upon the victim or was utterly indifferent to the suffering of another. For example, in Buckner, 714 So.2d at 386, the defendant shot the victim twice and, after the victim stumbled out of the vehicle yelling for help, the defendant walked back to the victim and shot him three more times. Even though evidence established that based on the victim’s injuries, the victim would have remained conscious for several minutes before he died, this Court held that the trial judge erred in finding HAC because no evidence was submitted that the defendant “intended to subject the victim to any prolonged or torturous suffering.” Id. at 390.

In another similar case, after the defendant shot a police officer in the arm, the officer begged for his life, and the defendant shot the victim twice more in the head. Brown v. State, 526 So.2d 903, 904-05, 907 (Fla.1988), abrogated on other grounds by Fenelon v. State, 594 So.2d 292 (Fla.1992). This Court struck the HAC aggravator, stating that “[t]he murder was not accompanied by additional acts setting it apart from the norm of capital felonies and the evidence disproved that it was committed so as to cause the victim unnecessary and prolonged suffering.” Id. at 907; see also Bonifay v. State, 626 So.2d 1310, 1313 (Fla.1993) (striking HAC aggra-vator and holding that “[t]he fact that the victim begged for his life or that there were multiple gunshots is an inadequate basis to find this aggravating factor absent evidence that [the defendant] intended to cause the victim unnecessary and prolonged suffering”); Robinson v. State, 574 So.2d 108, 111-12 (Fla.1991) (striking HAC where victim was shot twice and there was no evidence submitted that defendant intended to cause victim unnecessary suffering or that she labored under the apprehension' that she was to be murdered).

By continuing to expand HAC, the Court risks undermining the very principles that have kept Florida’s death penalty statutory scheme constitutional. The purpose of aggravating circumstances is to supply a “meaningful basis for distinguishing the few cases in which [death] is imposed from the many cases in which it is not.” Furman v. Georgia, 408 U.S. 238, 313, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (White, J., concurring). In order for our statutory scheme to continue to be constitutional, an aggravator cannot be expanded to such a degree that it could potentially apply to all first-degree murders. The HAC aggravator could easily be applied to all first-degree murders as killing in and of itself is atrocious and cruel. See Tedder, 322 So.2d at 910 (“It is apparent that all killings are atrocious.... ”).

To prevent such an expansion, this Court has long defined the HAC aggravator narrowly:

The aggravating circumstance which has been most frequently attacked is the provision that commission of an especially heinous, atrocious or cruel capital felony constitutes an aggravated capital felony. Fla. Stat. § 921.141(6)(h), F.S.A. ... It is our interpretation that heinous means extremely wicked or shockingly evil; that atrocious means outrageously wicked and vile; and, that cruel means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others. What is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies — the conscienceless or pitiless crime which is unnecessarily torturous to the victim.

Dixon, 283 So.2d at 9 (emphasis added); see also Hernandez v. State, 4 So.3d 642, 668-69 (Fla.), cert. denied, — U.S. -, 130 S.Ct. 160, 175 L.Ed.2d 101 (2009). To date, we have adhered to that definition. However, now, the majority is expanding HAC beyond that which Dixon originally intended.

Accordingly, I would strike the HAC aggravator, which would leave three remaining aggravators that were found to exist in relation to Evans’ murder (pecuniary gain, prior violent felony, and knowingly creating a great risk of harm to many people). This error cannot be considered harmless because when the jury considered the appropriate sentence for Evans’ murder, the jury recommended a life sentence, even though the jury found that the same three remaining aggravators applied to that murder.

For the reasons above, I dissent as to the sentence.

LABARGA, J., concurs.

      . We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

      . The State had not sought the heinous, atrocious, or cruel aggravator in regard to the murder of Keson Evans.

      . Spencer v. State, 691 So.2d 1062 (Fla. 1996).

      . Hall also claims that Florida’s capital sentencing scheme is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). However, his claim is without merit because the prior violent felony aggravator is present in this case. See Bryant v. State, 901 So.2d 810, 823 (Fla.2005).

      . Contrary to Hall’s argument, this case is not similar to Teffeteller v. State, 439 So.2d 840 (Fla.1983). There are additional circumstances here that were not present in Teffetel-ler, including the fact that Blunt was conscious while others were shot nearby. As the trial court in this case stated when finding HAC, “It is not unreasonable to conclude that [Blunt] knew he was dying. He likewise was aware that others were shot, thus heightening his terror of the potential result.”

      . Many first-degree murders would initially appear heinous, atrocious, or cruel. See Amoros v. State, 531 So.2d 1256, 1260 (Fla.1988) ("First-degree murder is a heinous crime; however, this statutory aggravating circumstance requires the incident to be 'especially heinous, atrocious, [or] cruel.’ ”); Tedder v. State, 322 So.2d 908, 910 (Fla.1975) ("It is apparent that all killings are atrocious .... Still, we believe that the Legislature intended something 'especially' heinous, atrocious or cruel when it authorized the death penalty for first degree murder.”).

      . The manner in which a victim is killed can be evidence that the defendant is indifferent to the victim’s suffering. See Barnhill, 834 So.2d at 850 ("[I]f a victim is killed in a torturous manner, a defendant need not have the intent or desire to inflict torture, because the very torturous manner of the victim’s death is evidence of a defendant's indifference.”). However, this does not mean that intent or indifference is no longer required. That would be contrary to the very definition of HAC, which requires that the defendant acted in a manner "designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others.” State v. Dixon, 283 So.2d 1, 9 (Fla.1973).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2010-05.
    No. SC10-2434.
    Supreme Court of Florida.
    Feb. 9, 2012.
    As Revised on Denial of Rehearing May 8, 2012.
    Judge Jacqueline Hogan Scola, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Eleventh Judicial Circuit, Miami, Florida, and Samantha Lee Ward, Past Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Thirteenth Judicial Circuit, Tampa, FL, for Petitioner.
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted proposed changes to the standard criminal jury instructions. We have jurisdiction. See art. V, § 2(a), Fla. Const.

On December 22, 2010, the Committee filed its report proposing amendments to the standard criminal jury instructions. The majority of the Committee’s proposals derive from recommendations by Committee members based upon changes in statutory and decisional law.

Having considered the Committee’s report, we hereby authorize the publication and use of the following instructions as proposed by the Committee: 3.8(a) — Evidence of Other Crimes, Wrongs, or Acts; 13.3 — Trespass in a Structure or Convey-anee; 16.4(a) — Contributing to Child Dependency, Person 21 or Older Impregnating Child Under 16; 24.6 — Prohibition of Certain Acts in Connection with Obscene Materials; Promoting or Performing; 28.14-28.17 — Boating Under the Influence; and 29.14 — Taking Deer/Wild Turkey with Gun and Light.

The Court also authorizes for publication and use instruction 2.13, Questions by Jurors, as proposed by the Committee but with the following modification. Instruction 2.13, in addition to the Committee’s proposed amendment, is further amended to include the following sentence: “If your question[s] is [are] not asked, you must not discuss it with other jurors or hold it against either party.” This modification to the Committee’s proposal is consistent with Florida Rule of Criminal Procedure 3.371, Juror Questions of Witnesses, which provides in pertinent part:

(b) Procedure. The trial judge shall utilize the following procedure if a juror indicates that the juror wishes to ask a question: ... (5) the jury must be advised that if a question submitted by a juror is not allowed for any reason, the juror must not discuss it with the other jurors and must not hold it against either party.

Fla. R.Crim. P. 3.371(b)(5).

Lastly, on the Court’s own motion, instruction 3.10, Rules for Deliberation, is amended to also include a paragraph to be given when a juror’s question was not asked of a witness.

In authorizing the publication and use of these instructions, we express no opinion on their correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution all interested parties that any comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. New language is indicated by underlining and deleted language is indicated by struck-through type. The instructions as set forth in the appendix shall be effective when this opinion becomes final.

It is so ordered.

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

APPENDIX

2.13 QUESTIONS BY JURORS

Note to Judge.

To be given if the Judge decides to permit.jury questions.

To be given if a juror(s)-indicates that ihe-yu/ror-ivishes-be-aska-qnestion:

During the trial, you will be permitted to ask questions of witnesses in case you missed something, you did not understand something, or you need to clarify a pertinent issue.

The rules of evidence apply regardless of whether a question is asked by the attorneys, by me or by you. Therefore, there may be a legal reason why I will not ask your question. If I do not ask your question, you must not hold that against any of the parties, you must not discuss it with the other jurors, and please do not take it personally.

Subject to that understanding, this is how we will proceed: (Two possible procedures are outlined below. Give only one. The second alternative is designed to ensure anonymity).

1) When the attorneys have finished asking their questions, please raise your hand to get my attention. I will give you time to write your question[s] on a clean piece of paper and give the paper to the [bailiff] [court deputy]. I will then confer privately with the attorneys. If I ask your question[s], the witness will answer and the attorneys may follow up if they choose. The questioning of witnesses is the primary responsibility of the attorneys. If your question[s] is [are] not asked, you must not discuss it with other jurors or hold it against either party. You are not obligated to ask any questions, but if it will help your understanding of the case, you may do so.
2) When the attorneys have finished asking their questions, I will ask each of you to write something down on a clean piece of paper. If you do not have a question, please write — “no questions.” If you have [a] question[s], please write the questions] on the paper. Please do not put your name on the paper because I do not want anyone to know which juror is submitting a question. Please then fold the paper in half and give it to the [court deputy][bailiff]. I will then confer privately with the attorneys. If I ask the question^], the witness will answer and the attorneys may follow up if they choose. The questioning of witnesses is the primary responsibility of the attorneys. If your questions] is [are] not asked, you must not discuss it with other jurors or hold it against either party. You are not obligated to ask any questions, but if it will help your understanding of the case, you may do so.

A juror- has indicated that the juror wishes to ask a question-of the witness. After the attorneys have-completed-their questioning of the witness,-1 will — give sufficient-time for the juror to write the question on the paper-which you-have been provided, fold it and give it to the bailiff, who-will pass-it-to me. Please do not show — your- question-to anyone-or discuss it with anyone.

I will-then review-the question with the attorneys. — Under our-law, only-certain evidence may be -considered by a jury in determining-a verdict. — You are bound by-the same rules of evidence and procedure — that.control—the attorneys’ questions- If I decide-that a question majr not be asked under our rules of evidence-or procedure,-I will tell you. Otherwise» I will direct-the question to the witness, — The attorneys may ask-fol-Iow-up-questions,

Comment

This instruction was adopted in 2007 [SC05-1091] and amended in 2011.

3.8(a) EVIDENCE OF OTHER CRIMES, WRONGS, OR ACTS “WILLIAMS RULE”

§ 90.404(2)(a) Fla. Stat.

To be given at the close of evidence, if applicable.

The evidence which has been admitted to show other crimes, wrongs, or acts allegedly committed by the defendant will be considered by you only as that evidence relates to proof of [motive] [opportunity] [intent] [preparation] [plan] [knowledge] [identity] [the absence of mistake or accident] on the part of the defendant.

The defendant cannot be convicted for a crime, wrong, or act that is not included in the [information] [indictment].

Comments

See § 90.404(2)(b) Fla. Stat., effective July 1, 2001, in child molestation cases.

This instruction was adopted in 1981 and was amended in 2000 [765 So.2d 692], and 2007 [SC07-325, Corrected Opinion, August 30, 2007] and 2011.

3.10 RULES FOR DELIBERATION

These are some general rules that apply to your discussion. You must follow these rules in order to return a lawful verdict:

1.You must follow the law as it is set out in these instructions. If you fail to follow the law, your verdict will be a miscarriage of justice. There is no reason for failing to follow the law in this case. All of us are depending upon you to make a wise and legal decision in this matter.
2. This case must be decided only upon the evidence that you have heard from the testimony of the witnesses [and have seen in the form of the exhibits in evidence] and these instructions.
3. This case must not be decided for or against anyone because you feel sorry for anyone, or are angry at anyone.
4. Remember, the lawyers are not on trial. Your feelings about them should not influence your decision in this case.

When the jm~y is to be involved in a penalty phase, omit the second sentence of paragraph 5.

5. Your duty is to determine if the defendant has been proven guilty or not, in accord with the law. It is the judge’s job to determine a proper sentence if the defendant is found guilty.
6. Whatever verdict you render must be unanimous, that is, each juror must agree to the same verdict.

Give 7 if applicable.

7. It is entirely proper for a lawyer to talk to a witness about what testimony the witness would give if called to the courtroom. The witness should not be discredited by talking to a lawyer about [his] [her] testimony.

Give 8 if applicable.

8. The jury is not to discuss any questions] that [a juror] [jurors] wrote that was [were] not asked by the court, and must not hold that against either party.
89. Your verdict should not be influenced by feelings of prejudice, bias, or sympathy. Your verdict must be based on the evidence, and on the law contained in these instructions.

Comment

This instruction was adopted in 1981 and was amended in 1995, and September 2005, and 2011.

13.3 TRESPASS — IN STRUCTURE OR CONVEYANCE

§ 810.08, Fla. Stat.

To prove the crime of Trespass in a [Structure] [Conveyance], the State must prove the following three elements beyond a reasonable doubt:

Give a. for trespass and/or b. for trespass after warning to depart.

a._1. (Defendant) [willfully [entered] or [remained in] a [structure] [conveyance]. (structure or conveyance alleged) ]. [having been [authorized] [licensed] [invited] -to [enter] [remain in] the (structure or conveyance alleged), willfully refused to depart after-having been warned by [owner] [lessee] [ (person"authorized by the owner or lessee alleged) ] to depart],
2. The [structure] [conveyance] (structure or conveyance alleged) was in the lawful possession of (person alleged).
3. (Defendant’s) [entering] [remaining--in] the property was without the permission, — express—or implied, of (person alleged) or any other person authorized to give that permission,(Defendant’s) entering or remaining in the [structure] [conveyance] was without authorization, license, or invitation by (person alleged) or any other person authorized to give that permission.
b. 1. (Defendant) had been authorized, licensed, or invited to enter or remain in a [structure] [conveyance],
2. [The owner] [The lessee] [A person authorized by the owner or lessee] of the premises warned (defendant) to depart.
3. (Defendant) refused to depart. Authority to [enter][or remain in] a

[structure] or [conveyance] need not be given in express words. It may be implied from the circumstances. It is lawful to [enter][or remain in]a [structure] or [conveyance] of another if, under all the circumstances, a reasonable person would believe that [he] [she] had the permission of the owner or occupant.

Definitions. Give as applicable.

S 810.08(3) Fla. Stat.

“Person authorized” means an owner or lessee, or his or her agent, or any law enforcement officer whose department has received written authorization from the owner or lessee, or his or her agent, to communicate an order to depart the property in case of a threat to public safety or welfare.

“Willfully” means intentionally, knowingly, and purposely.

§ 810.011(1), Fla. Stat. and State v. Hamilton, 660 So.2d 1038 (Fla.1995). Gim if-applicable.

“Structure” means any building of any kind, either temporary or permanent, that has a roof over it, and the enclosed space of ground and outbuildings immediately surrounding that structure.

§ 810.011(3), FlaStat. Give if applica-

“Conveyance” means any motor vehicle, ship, vessel, railroad car, trailer, aircraft, or sleeping car; and to enter a conveyance includes taking apart any portion of the conveyance.

Enhanced penalty. — Give-if-cepplicable-

The punishment provided-by law-for the crime of trespass in — a—[structure] [conveyance] is greater-if-the-trespass-is committed — under certain aggravating circumstances. — Therefore, if you find the defendant guilty of — trespass in a [structure-Hconveyance], you must then consider — whether-the-State has further proved those circumstances.

While amed.

If you find the defendant guilty of trespass in a a [structure] [conveyance], you must then determine whether the State proved beyond a reasonable doubt that If you-find that during-the trespass the defendant was armed or armed [himself] [herself] with a firearm or other dangerous weapon during the trespass.,you should find [him][-her] guilty of trespass-in a- [structure] [conveyance] while armed.

Human being in structure or conveyance.

If you find the defendant guilty of [attempted] trespass in a [structure] [conveyance], you must then determine whether the State proved beyond a reasonable doubt that If you find that at the time-of the trespass there was a human being in the [structure] [convey-anee] at the time of the [attempted] trespass., you should find [him][her] guilty of trespass in-a [structure] [conveyance] with a human being in the [skateture] [conveyance].

With no aggravating-circumstances,

If you find that-the defendant committed the trespass-in-a [structure] [conveyance] without any aggravating--circumstanceS) you should find [him] [her] guilty only of trespass in a [structure] [conveyance],

§ 790.001(6), Fla.JStat. Give if applicable.

A “firearm” is legally defined-as-any weapon, including a starter gun, which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; any destructive device; or any machine gun. [The term “firearm” does not include an antique firearm unless the antique firearm is used in the commission of a crime.] (adapt-from § 790.001, FIa.Stat., as — required—by—the—allegations-).—See § 790.001(1) Fla. Stat. for the definition of “antique firearm’’ and, § 790.001(1.) Fla. Stat. for the definition of “destructive device.

A “dangerous weapon” is any weapon that, taking into account the manner in which it is used, is likely to produce death or great bodily harm.

Lesser Included Offenses

TRESPASS IN STRUCTURE OR CONVEYANCE — 810.08

CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.

None

Attempt (except 777.04(1) 5.1 refuse to depart)

Comment

This instruction was adopted in 1981 and amended in 1985 [477 So.2d 985], and 2011.

13.4 TRESPASS — ON PROPERTY OTHER THAN A STRUCTURE OR CONVEYANCE

§ 810.09(l)(a)l and 2, Fla. Stat.

To prove the crime of Trespass on Property other than a Structure or Conveyance, the State must prove the following four elements beyond a reasonable doubt:

1. (Defendant) willfully [entered][upon or remained in] property other than a structure or conveyance. (property alleged-)?

2. The property was [owned by] [in the lawful possession of] (person alleged).

3. Notice not to [enter upon] [remain in] that-property — had been-given by:

{actual communication to the defendant],
{■[■posting] [fencing] — [cultivation]—of the property],
Give one of the following paragraphs, as applicable.
Give if§ 810.09(l)(a)l is charged.
Notice not to enter upon or remain in that property had been given by [[actual communication to the defendant] [[posting] [fencing] [cultivation] of the property in the manner defined in this instruction]].
Give jf§ 810.09(l)(a)2 is charged.
The property was the unenclosed cur-tilage of a dwelling and (defendant) entered or remained with the intent to commit a crime thereon other than trespass.

4. (Defendant’s) — [entering]—[remaining in] the property-was without the permission, express or implied, of (per son alleged) or any other person-author-i*ed — to—give—that—permission,(Defendant’s) entering upon or remaining in the property was without authorization, license, or invitation from (person alleged) or any other person authorized to give that permission.

Authority to [enter upon or][remain in] property need not be given in express words. It may be implied from the circumstances. It is lawful to [enter upon or][remain in] the property of another if, under all the circumstances, a reasonable person would believe that [he] [she] had the permission of the owner or occupant.

Definitions.

§ 810.011(1) Fla. Stat. and State v. Hamilton, 660 So.2d 1038 (Fla.1995).

“Structure” means a building of any kind, either temporary or permanent, which has a roof over it, and the enclosed space of ground and outbuildings immediately surrounding it.

§ 810.011(3) Fla. Stat.

“Conveyance” means any motor vehicle, ship, vessel, railroad vehicle or car, trailer, aircraft, or sleeping car; and “to enter a conveyance” includes taking apart any portion of the conveyance.

§ 810.09(3) Fla. Stat.

“Person authorized” means any owner, his or her agent, or a community association authorized as an agent for the owner, or any law enforcement officer whose department has received written authorization from the owner, his or her agent, or a community association authorized as an agent for the owner, to communicate an order to leave the property in the case of a threat to public safety or welfare.

§ 810.09(l)(b) Fla. Stat.

“Unenclosed curtilage of a dwelling” means the unenclosed land or grounds, and any outbuildings, that are directly and intimately adjacent to and connected with the dwelling and necessary, convenient, and habitually used in connection with that dwelling.

§ 810.011(2) Fla. Stat.

“Dwelling” means a building or conveyance of any kind, including any attached porch, whether such building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night.

“Willfully” means intentionally, knowingly, and purposely.

§ 810.011(5)(a)l. and (b), FlaStat. Give if applicable.

Notice not to enter upon property may be given by posting The phrase- “posted land — is legally-defined-as land upon which signs are placed not more than 500 feet apart along and at each corner of the property’s boundaries. The signs themselves must prominently state, in letters not less than two inches high, the words “No Trespassing.” The signs also must state, with smaller letters being acceptable, the name of the owner or lessee or occupant of the land. The signs must be placed so as to be clearly noticeable from outside the boundary lines and corners of the property. [If the property is less than five acres in area, and a dwelling house is located on it, it should be treated as posted land even though no signs have been erected.]

§ 810.011(6), FlaStat. Give if applicable.

Notice not to enter property may be given by cultivation of the property. The phrase “Cultivated land” is legally 4efined-as-Iand that has been cleared of its natural vegetation, and at the time of the trespass was planted with trees, a crop, an orchard or a grove, or was a pasture. [Fallow land, left that way as part of a crop rotation, would is also be “cultivated land.”]

§ 810.011(7), FlaStat. Give if applicable.

Notice not to enter property may be given by fencing the property. The phrase “Fenced land” is legally defined as land that has been enclosed by a fence of substantial construction. The fence may be made from rails, logs, posts and railings, iron, steel, barbed wire or other wire or material. The fence must stand at least three feet high. [If a part of the boundary of a piece of property is formed by water, that part should be treated as legally fenced land.]

Give if applicable.

When every part of property is either posted or cultivated or fenced, the entire property is considered as enclosed and posted land.

Enhanced penalty. Give if applicable.

The punishment provided by law for trespass on-property other-fchan a- structure or conveyance is greater if -the-defendant was — armed with a firearm or other dangerous weapon, — Therefore, if If you find the defendant guilty of trespass on property other than a structure or conveyance, you must then determine whether the State proved beyond a reasonable doubt that and-you-further find that the defendant was armed with a firearm or other dangerous weapon during the trespass., — you—should—find fhim][her] guilty of trespass on property other than a structure or- conveyance while armed.

With no firearm or dangerous %oeapon.

If-you-find that- the defendant carried no- firearm or other dangerous-weapon but-did-Gommit the trespass, you should find- [him][her] guilty only-of-trespass on-property other than a-structure or conveyance.

§ 790.001(6), FlaStat. Give if applicable.

A “firearm” is legally-defined as any weapon [including a starter gun] which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; any destructive device; or any machine gun. [The term “firearm” does not include an antique firearm unless the antique firearm is used in the commission of a crime.] (adapt-from § 790.001, Fla.Stat., as required by the allegations).

See § 790.001(1), Fla. Stat. for the definition of “antique firearm” and § 790.001(1.), Fla. Stat. for the definition of “destructive device.

A “dangerous weapon” is any weapon that, taking into account the manner in which it is used, is likely to produce death or great bodily harm.

Lesser Included Offenses

TRESPASS ON PROPERTY OTHER THAN STRUCTURE OR CONVEYANCE — 810.09(l)(a)

CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.

None

Attempt 777.04(1) 5.1

Comment

This instruction was adopted in 1981 and amended in 1985 and 2011.

14,8 ORGANIZED FRAUD

817.034(4)(a)l, 2, 3 Fla. Stat.

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

1. (Defendant) engaged in a scheme to defraud.
2. (Defendant) thereby obtained [property] [ (specify property if alleged in the information) ].

Degrees. Give as applicable.

If you find the defendant guilty of Organized Fraud, you must also determine if the State has proved beyond a reasonable doubt whether:

a. The aggregate value of the property obtained was $50,000 or more;
b. The aggregate value of the property obtained was s $20,000 or more but less than $50,000;
c. The aggregate value of the property obtained was less than $20,000.

Definitions. Give if applicable.

“Scheme to Defraud” means a systematic, ongoing course of conduct with intent to defraud one or more persons, or with intent to obtain property from one or more persons by false or fraudulent pretenses, representations, or promises or willful misrepresentations of a future act.

“Obtain” means to temporarily or permanently deprive any person of the right to property or a benefit therefrom, or to appropriate the property to one’s own use or to the use of any other person not entitled thereto.

“Property” means anything of value, and includes:

1. Real property, including things growing on, affixed to, or found in land;
2. Tangible or intangible personal property, including rights, privileges, interests, and claims; and
3. Services.

“Value” means value determined according to any of the following: The market value of the property at the time and place of the offense, or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.

If the exact value cannot be determined, you should attempt to determine a minimum value. If the minimum value of the property cannot be determined, you must find the value is less than $20,000.

Note to Judge. If the property obtained is a written instrument or trade secret that does not have a readily ascertainable market value, give the definition of “value” in s. 817.03Jf(S)(e)l.b or l.c.

“Willful” means intentional, purposeful, and with knowledge.

Lesser Included Offenses

ORGANIZED FRAUD 817.034(4)(a)l, 2, 3 Fla. Stat.

CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.

Grand theft— second degree 812.014(2)(b)l 14.1

Grand theft — third degree 812.014(2)(c)l, 2,3 14.1

Petit theft — first degree 812.014(2)(e) 14.1

Petit theft — second degree 812.014(3)(a) 14.1

Comment

This instruction was adopted in 2011.

16.4(a) CONTRIBUTING TO CHILD DEPENDENCY, PERSON 21 OR OLDER IMPREGNATING CHILD UNDER 16

§ 827.04(3), Fla.Stat.

To prove the crime of Contributing to Child Dependency, the State must prove the following three elements beyond a reasonable doubt:

L (Defendant) impregnated (victim).
2. At the time, (defendant) was 21 years of age or older.
3. At the time, (victim) was a child under the age of 16 years.

Neither the victim’s lack of chastity nor the victim’s consent is a defense to this offense.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2011,

24.6 PROHIBITION OF CERTAIN ACTS IN CONNECTION WITH OBSCENE MATERIALS — PROMOTING OR PERFORMING

§ 847.011(4), Fla.Stat.

To prove the crime of (crime charged), the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) knowingly promoted, conducted, performed, or participated in an obscene, lewd, lascivious, or indecent show, exhibition, or performance by live persons or a live person before an audience.
2. The material charged in this case is obscene. In order for such material to be legally obscene, each of the following facts must be found:
a. The average person applying contemporary community standards of_County, Florida, would find that the material, taken as a whole, appeals to the prurient interest.
b. The material depicts or describes sexual conduct in a patently offensive way.
c. The material, taken as a whole, lacks serious literary, artistic, political, or scientific value.
8. The defendant had knowledge of the nature, character or content of the materials.

Definitions.

Prurient Interest

A “prurient interest” in-sex is — a shameful-or- morbid interest in sex, nudity, or excretion. — Material does not appeal to-a-prurient interest if the average person-today can-view the material candidly,-openly, and with a normal interest in sex.

Patently Offensive Obscene.

In order to be obscene, the dominant theme of the material must depict or describe sexual conduct in a patently offensive way, that is, it must do so in a way that offends the contemporary community standards of _ County. Not all descriptions or depictions of sexual conduct goes substantially beyond customary community standards of decency for it to be patently offensive. You must determine the collective view of the community in evaluating this element of the offense.

In order for you to find that this material is obscene, you must also find that, taken as a whole, it lacks serious literary, artistic, political, or scientific value. If the material has such value, it is not obscene even if it appeals to the prurient interest in sex, and even if it depicts or describes sexual conduct in a patently offensive way. In judging whether the value is serious, you should consider the intent of the material. If it is a serious literary or artistic effort, or if it attempts to convey scientific information, or a political point of view, it cannot be obscene. If the primary intent is to appeal to the prurient interest, then the mere insertion of literary, artistic, political, or scientific materials irrelevant to the predominant theme will not prevent you from determining that the material is obscene. Sex can be a legitimate subject for literature, art, scientific inquiry, or political argument, and such serious treatments of sex, even if appealing to the prurient interest and patently offensive, cannot be obscene.

Prurient Interest.

A “prurient interest” in sex is a shameful or morbid interest in sex, nudity, or excretion. Material does not appeal to a prurient interest if the average person today can view the material candidly, openly, and with a normal interest in sex.

Optional Definition.

“Morbid interest” means diseased, dwelling on the gruesome, or sick.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 1981 and amended in 2011.

28.14 BOATING UNDER THE INFLUENCE

§ 327.35(1), Fla. Stat.

To prove the crime of Boating under the Influence, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) operated a vessel.
2. While operating the vessel, (defendant)
Give 2a or b or both as applicable.
a. was under the influence of [alcoholic beverages][a chemical substance] [a controlled substance] to the extent that [his][her] normal faculties were impaired.
b. had a [blood] [breath]-alcohol level of .08 or more grams of alcohol per [100 milliliters of blood] [210 liters of breath].

Give if applicable.

If you find the defendant guilty of Boating under the Influence, you must also determine whether the State has proven beyond a reasonable doubt whether:

a. the defendant had a [blood] [breath]-alcohol level of .2015 or higher while operating the vessel.
b. the defendant was accompanied in the vessel by a person under the age of 18 years at the time of the boating under the influence.

Definitions. Give as applicable.

“Vessel” means a boat that is subject to a license tax for operation and includes every description of watercraft, barge, and airboat, other than a seaplane, on the water used or capable of being used as a means of transportation on water.

“Normal faculties” include but are not limited to the ability to see, hear, walk, talk, judge distances, operate a vessel, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.

“Operate” means to be in charge of or in command of or in actual physical control of a vessel upon the waters of this state, or to exercise control over or to have responsibility for a vessel’s navigation or safety while the vessel is underway upon the waters of this state, or to control or steer a vessel being towed by another vessel upon the waters of the state.

“Alcoholic beverages” are considered to be substances of any kind and description which contain alcohol.

(_) is a controlled substance under Florida law. Ch. 893, Fla. Stat.

(_) is a chemical substance under Florida law. § 877.111(1), Fla. Stat.

When appropriate, give one or more of the following instructions on the “presumptions of impairment” established by § 327.35i(2)(a), (2)(b), and (2)(c), Fla. Stat.

1. If you find from the evidence that while operating or in actual physical control of the vessel, the defendant had a [blood] [breath]-alcohol level of .05 or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired; but this presumption may be overcome by other evidence demonstrating that the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.
2. If you find from the evidence that while operating or in actual physical control of the vessel, the defendant had a [blood] [breath]-alcohol level in excess of .05 but less than .08, that fact does not give rise to any presumption that the defendant was or was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. In such cases, you may consider that evidence along with other evidence in determining whether the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.
3.If you find from the evidence that while operating or in actual physical control of the vessel, the defendant had a [blood] [breath]-alcohol level of .08 or more, that evidence would be sufficient by itself to establish that the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. But this evidence may be contradicted or rebutted by other evidence demonstrating that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.

Defense of inoperability; give if applicable.

It is a defense to the charge of Boating under the Influence if the vessel was inoperable at the time of the alleged offense, unless the defendant was controlling or steering the vessel while it was being towed by another vessel upon the waters of the state. However, it is not a defense if the defendant was boating under the influence before the vessel became inoperable.

Lesser Included Offenses

BOATING UNDER THE INFLUENCE — 327.35(1)

CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.

None

Attempt 777.04(1) 5.1

Comment

This instruction was adopted in 2009 and amended in 2011.

28.15 BOATING UNDER THE INFLUENCE CAUSING PROPERTY DAMAGE OR INJURY

§ 327.35(3)(a)(b)(c)l, Fla. Stat.

To prove the crime of Boating under the Influence Causing [Property Damage] [Injury], the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) operated a vessel.
2. While operating the vessel, (defendant)
Give 2a or b or both as applicable.
a. was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the extent that [his][her] normal faculties were impaired.
b. had a [blood] [breath]-alcohol level of .08 or more grams of alcohol per [100 milliliters of blood] [210 liters of breath].
3.As a result of operating the vessel, (defendant) caused or contributed to causing [damage to the property of (victim) ] [injury to the person of (victim) ].
Give if applicable.

If you find the defendant guilty of Boating under the Influence Causing [Property Damage] [Injury], you must also determine whether the State has proven beyond a reasonable doubt whether:

a. the defendant had a [blood] [breath]-alcohol level of .2015 or higher while operating the vessel.
b. the defendant was accompanied in the vessel by a person under the age of 18 years at the time of the boating under the influence.

Definitions. Give as applicable.

“Vessel” means a boat that is subject to a license tax for operation and includes every description of watercraft, barge, and airboat, other than a seaplane, on the water used or capable of being used as a means of transportation on water.

“Normal faculties” include but are not limited to the ability to see, hear, walk, talk, judge distances, operate a vessel, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.

“Operate” means to be in charge of or in command of or in actual physical control of a vessel upon the waters of this state, or to exercise control over or to have responsibility for a vessel’s navigation or safety while the vessel is underway upon the waters of this state, or to control or steer a vessel being towed by another vessel upon the waters of the state.

“Alcoholic beverages” are considered to be substances of any kind and description which contain alcohol.

(_) is a controlled substance under Florida law. Ch. 893, Fla. Stat.
(_) is a chemical substance under Florida law. § 877.111(1), Fla. Stat.

When appropriate, give one or more of the following instructions on the “presumptions of impairment” established by § 327.354.(2)(a), (2)(b), and (2)(c), Fla. Stat.

1. If you find from the evidence that while operating or in actual physical control of the vessel, the defendant had a [blood] [breathi-alcohol level of .05 or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired; but this presumption may be overcome by other evidence demonstrating that the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.
2. If you find from the evidence that while operating or in actual physical control of the vessel, the defendant had a [blood] [breath]-alcohol level in excess of .05 but less than .08, that fact does not give rise to any presumption that the defendant was or was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. In such cases, you may consider that evidence along with other evidence in determining whether the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.
3.If you find from the evidence that while operating or in actual physical control of the vessel, the defendant had a [blood] [breath]-alcohol level of .08 or more, that evidence would be sufficient by itself to establish that the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. But this evidence may be contradicted or rebutted by other evidence demonstrating that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.

Defense of inoperability; give if applicable.

It is a defense to the charge of Boating under the Influence Causing [Property Damage] [Injury] if the vessel was inoperable at the time of the alleged offense, unless the defendant was controlling or steering the vessel while it was being towed by another vessel upon the waters of the state. However, it is not a defense if the defendant was boating under the influence before the vessel became inoperable.

Lesser Included Offenses

BOATING UNDER THE INFLUENCE CAUSING PROPERTY DAMAGE OR INJURY — 327.35(3)(a)(b)(c)l

CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.

Boating under the 327.35(1) 28.14 Influence

Attempt 777.04(1) 5.1

Comment

This instruction was adopted in 2009 and amended in 2011.

28.16 FELONY BOATING UNDER THE INFLUENCE

§ 327.35(2)(b)l or § 327.35(2)(b)3, Fla. Stat.

To prove the crime of Boating under the Influence, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) operated a vessel.
2. While operating the vessel, (defendant)
Give 2a or b or both as applicable.
a. was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the extent that [his] [her] normal faculties were impaired.
b. had a [blood] [breath]-alcohol level of .08 or more grams of alcohol per [100 milliliters of blood] [210 liters of breath].
Give if applicable.

If you find the defendant guilty of Boating under the Influence, you must also determine whether the State has proven beyond a reasonable doubt whether:

a. the defendant had a [blood] [breath]-alcohol level of .2015 or higher while operating the vessel.
b. the defendant was accompanied in the vessel by a person under the age of 18 years at the time of the boating under the influence.

Definitions. Give as applicable.

“Vessel” means a boat that is subject to a license tax for operation and includes every description of watercraft, barge, and airboat, other than a seaplane, on the water used or capable of being used as a means of transportation on water.

“Normal faculties” include but are not limited to the ability to see, hear, walk, talk, judge distances, operate a vessel, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.

“Operate” means to be in charge of or in command of or in actual physical control of a vessel upon the waters of this state, or to exercise control over or to have responsibility for a vessel’s navigation or safety while the vessel is underway upon the waters of this state, or to control or steer a vessel being towed by another vessel upon the waters of the state.

“Alcoholic beverages” are considered to be substances of any kind and description which contain alcohol.

(_) is a controlled substance under Florida law. Ch. 893, Fla. Stat.
(_) is a chemical substance under Florida law. § 877.111(1), Fla. Stat.

When appropriate, give one or more of the following instructions on the “presumptions of impairment” established by § 327.35í(2)(a), (2)(b), and (2)(c), Fla. Stat.

1. If you find from the evidence that while operating or in actual physical control of the vessel, the defendant had a [blood] [breath]-alcohol level of .05 or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired; but this presumption may be overcome by other evidence demonstrating that the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.
2. If you find from the evidence that while operating or in actual physical control of the vessel, the defendant had a [blood] [breath]-alcohol level in excess of .05 but less than .08, that fact does not give rise to any presumption that the defendant was or was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. In such cases, you may consider that evidence along with other evidence in determining whether the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.
3. If you find from the evidence that while operating or in actual physical control of the vessel, the defendant had a [blood] [breath]-alcohol level of .08 or more, that evidence would be sufficient by itself to establish that the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. But this evidence may be contradicted or rebutted by other evidence demonstrating that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.

Defense of inoperability; give if applicable.

It is a defense to the charge of Boating under the Influence if the vessel was inoperable at the time of the alleged offense, unless the defendant was controlling or steering the vessel while it was being towed by another vessel upon the waters of the state. However, it is not a defense if the defendant was boating under the influence before the vessel became inoperable.

Give as applicable if the jury finds the defendant is guilty of Boating Under the Influence. Note: A Driving Under the Influence conviction, whether in Florida or out-of-state, counts as a prior conviction. See § 327.35(6)(i), Fla. Stat. See State v. Harbaugh, 751 So.2d 691 (Fla. 2000).

Since you have found the defendant guilty of Boating under the Influence, you must now determine whether the State has proven beyond a reasonable doubt whether:

a. the defendant was previously convicted two times of Boating under the Influence and one of the prior Boating under the Influence convictions took place within 10 years of the Boating under the Influence that you found the defendant committed.
b. the defendant was previously convicted three times of Boating under the Influence.

Lesser Included Offenses

FELONY BOATING UNDER THE INFLUENCE — PRIOR _CONVICTIONS — 327.35(2)(b)l or 327,35(2)(b)3_.

CATEGORY ONE CATEGORY TWO_FLA. STAT._INS. NO.

Boating under the 327.35(1) 28.14 influence

Attempt_777.04(1)5.1

Boating under the 327.35(3)(a)(b)(c)l 28.15 influence causing property damage or injury

Comment

This instruction should be used for Felony Boating under the Influence based on prior convictions. For Felony Boating under the Influence based on prior convictions, it is error to inform the jury of prior Boating or Driving under the Influence convictions before the verdict is rendered. Therefore, if the information or indictment contains an allegation of prior Boating or Driving under the Influence convictions, do not read that allegation and do not send the information or indictment into the jury room. If the defendant is found guilty of Boating under the Influence, the historical fact of prior convictions shall be determined separately by the jury in a bifurcated proceeding. See State v. Harbaugh, 754 So.2d 691 (Fla.2000).

This instruction was adopted in 2009 and amended in 2011.

28.17 BOATING UNDER THE INFLUENCE CAUSING SERIOUS BODILY INJURY

§ 327.35(3)(a)(b)(c)2, Fla. Stat.

To prove the crime of Boating under the Influence Causing Serious Bodily Injury, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) operated a vessel.
2. While operating the vessel, (defendant)
Give 2a or 2b or both as applicable.
a. was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the extent that [his] [her] normal faculties were impaired.
b. had a [blood] [breath]-alcohol level of .08 or more grams of alcohol per [100 milliliters of blood] [210 liters of breath].
3. As a result of operating the vessel, (defendant) caused or contributed to causing serious bodily injury to (victim).
Give if applicable.

If you find the defendant guilty of Boating under the Influence Causing Serious Bodily Injury, you must also determine whether the State has proven beyond a reasonable doubt whether:

a. the defendant had a [blood] [breath]-alcohol level of .2015 or higher while operating the vessel.
b. the defendant was accompanied in the vessel by a person under the age of 18 years at the time of the boating under the influence.

Definitions. Give as applicable.

“Vessel” means a boat that is subject to a license tax for operation and includes every description of watercraft, barge, and airboat, other than a seaplane, on the water used or capable of being used as a means of transportation on water.

“Normal faculties” include but are not limited to the ability to see, hear, walk, talk, judge distances, operate a vessel, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.

“Operate” means to be in charge of or in command of or in actual physical control of a vessel upon the waters of this state, or to exercise control over or to have responsibility for a vessel’s navigation or safety while the vessel is underway upon the waters of this state, or to control or steer a vessel being towed by another vessel upon the waters of the state.

“Alcoholic beverages” are considered to be substances of any kind and description which contain alcohol.

(_) is a controlled substance under Florida law. Ch. 893, Fla. Stat
(-) is a chemical substance under Florida law. § 877.111(1), Fla. Stat.

“Serious bodily injury” means a physical condition that creates a substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

When appropriate, give one or more of the following instructions on the “presumptions of impairment” established by § 327.35h(2)(a), (2)(b), and (2)(e), Fla. Stat.

1.If you find from the evidence that while operating the vessel, the defendant had a [blood] [breath]-alcohol level of .05 or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired; but this presumption may be overcome by other evidence demonstrating that the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.
2. If you find from the evidence that while operating or in actual physical control of the vessel, the defendant had a [blood] [breath]-alcohol level in excess of .05 but less than .08, that fact does not give rise to any presumption that the defendant was or was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. In such cases, you may consider that evidence along with other evidence in determining whether the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.
3. If you find from the evidence that while operating or in actual physical control of the vessel, the defendant had a [blood] [breath]-alcohol level of .08 or more, that evidence would be sufficient by itself to establish that the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. But this evidence may be contradicted or rebutted by other evidence demonstrating that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.

Defense of inoperability; give if applicable.

It is a defense to the charge of Boating under the Influence Causing Serious Bodily Injury if the vessel was inoperable at the time of the alleged offense, unless the defendant was controlling or steering the vessel while it was being towed by another vessel upon the waters of the state. However, it is not a defense if the defendant was boating under the influence before the vessel became inoperable.

Lesser Included Offenses

BOATING UNDER THE INFLUENCE CAUSING SERIOUS BODILY INJURY — 327.35(3)(a)(b)(c)2

CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.

Boating under the 327.35(3)(a)(b)(c)l 28.15 influence Causing Injury

Boating under the 327.35(1) 28.14 influence

Attempt 777.04(1) 51

Boating under the 327.35(3)(a)(b)(c)l 28.154 influence causing property damage

Comment

This instruction was adopted in 2009 and amended in 2011.

29.14 TAKING DEER/WILD TURKEY WITH GUN AND LIGHT

§ 37⅜⅛9⅛49.404(1), Fla. Stat.

To prove the crime of Taking [Deer] [Wild Turkey] with Gun and Light, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) did take any [deer] [wild turkey].
2. (Defendant) used a gun and light in such taking.

Definitions.

Take § 37^.001(17)9.101(38), Fla. Stat.

“Take” shall include taking, attempting to take, pursuing, hunting, molesting, capturing, or killing any [deer] [wild turkey, or their nests or eggs], by any means, whether or not such actions result in obtaining possession of such [deer] [wild turkey or their nests or eggs].

Gun: Fla. Admin. Code 68A-1.001.(39)

“Gun” means a shotgun, rifle, pistol, revolver, air gun, gas gun, blow gun, bow, crossbow, or any other device mechanically propelling an arrow, spear, or other projectile.

Light: Fla. Admin. Code 68A-1.00U(hl)

“Light” means any artificial light.

“Possession” means any one of the following:

1. Manual possession
2. Physical possession
3. Control or custody
4. Possession in one’s clothing, attire, or equipment
5. Possession in or about a vessel, vehicle, or beast of burden under one’s custody or control, including but not limited to compartments, drawers, pockets, trunks, and similar places in and about such vessel, vehicle, or beast of burden.

§ 372.99(2), Fla.Stat.

If you find from the evidence that the defendant displayed or used a light in a place where [deer] [wild turkey] might be found and in a manner capable of disclosing the presence of [deer] [wild turkey], and that the defendant possessed a firearm or other weapon customarily used for the taking of [deer] [wild turkey], between one hour after sunset and one hour before sunrise, then this would be sufficient by itself to establish that the defendant was taking or attempting to take [deer] [wild turkey] by use of a gun and light. However, such evidence may be contradicted or rebutted by other evidence.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in March 2000 and amended in 2011.

      . The Committee proposes amendments to the following instructions: 2.13 — Questions by Jurors; 3.8(a) — Evidence of Other Crimes, Wrongs, or Acts; 6.6 — Attempted Voluntary Manslaughter; 13.3 — Trespass in a Structure or Conveyance; 13.4 — Trespass on Property Other than a Structure or Conveyance; 24.6 — Prohibition of Certain Acts in Connection with Obscene Materials; Promoting or Performing; 25.9-25.13 — Trafficking; 28.14-28.17 — Boating Under the Influence; and 29.14 — Taking Deer/Wild Turkey with Gun and Light. In addition, the Committee proposes three new jury instructions: 14.8 — Organized Fraud; 16.4(a) — -Contributing to Child Dependency, Person 21 or Older Impregnating Child Under 16; and 28.41 — Leaving the Scene of a Crash Involving Damage to an Attended Vehicle or Property.

      . The Court published the Committee’s proposals in the February 15, 2011, edition of The Florida Bar News. Two comments were received, limited to the Committee's proposed amendments to the drug trafficking offenses and attempted manslaughter jury instructions. On May 24, 2011, the Court severed those proposals from the instant case, and set up a new case for the proposed amendments to the drug trafficking instructions and the attempted voluntary manslaughter instruction, which is currently pending before the Court (Case No. SCI 1-1010).

      . The Court also modifies the Committee’s proposal to instruction 13.4, Trespass — On Property Other Than a Structure or Conveyance; the modifications are solely organizational.

      . At this time we decline to authorize instruction 28.41, Leaving the Scene of a Crash Involving Damage to an Attended Vehicle or Property. By separate letter, that proposal will be referred back to the Committee for further study.

      .The amendments as reflected in the appendix are to the Criminal Jury Instructions as they appear on the Court's website at www. floridasupremecourt.org/jury_instructions/ instructions.shtml. We recognize that there may be minor discrepancies between the instructions as they appear on the website and the published versions of the instructions. Any discrepancies as to instructions authorized for publication and use after October 25, 2007, should be resolved by reference to the published opinion of this Court authorizing the instruction.