Notice: Proposed civil jury instructions

first_imgThe Supreme Court Committee on Standard Jury Instructions in Criminal Cases invites comment on the proposed changes shown below. After reviewing comments received in response to this publication, the committee will make its final proposal to the Florida Supreme Court. Please submit all comments to Judge Philip J. Padovano, Chair, First District Court Of Appeal, 301 South Martin Luther King, Jr. Blvd., Tallahassee, FL 32399-1850. Your comments must be received by October 31 to ensure that they are considered by the committee.1. Revised drug abuse instructions 25.2 DRUG ABUSE — SALE, PURCHASE, MANUFACTURE, DELIVERY, OR POSSESSION WITH INTENT § 893.13(1)(a), Fla.Stat. Certain drugs and chemical substances are by law known as “controlled substances.” (Specific substance alleged) is a controlled substance. To prove the crime of (crime charged) , the State must prove the following (applicable number) elements beyond a reasonable doubt: 1. (Defendant) [sold] [purchased] [manufactured] [delivered] [possessed with intent to sell] [possessed with the intent to purchase] [possessed with intent to manufacture] [possessed with intent to deliver] a certain substance. 2. The substance was (specific substance alleged) . Give if possession is charged 3. (Defendant) had knowledge of the presence of the substance. Definitions; give as applicable Sell “Sell” means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value. Manufacture § 893.02(12)(a), Fla.Stat. “Manufacture” means the production, preparation, packaging, labeling or relabeling, propagation, compounding, cultivating, growing, conversion or processing of a controlled substance, either directly or indirectly. Manufacturing can be by extraction from substances of natural origin, or independently by means of chemical synthesis. It can also be by a combination of extraction and chemical synthesis. Deliver § 893.02(5), Fla.Stat. “Deliver” or “delivery” means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship. Possession To “possess” means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed. Possession may be actual or constructive. Actual possession means (a) the thing is in the hand of or on the person, or (b) the thing is in a container in the hand of or on the person, or (c) the thing is so close as to be within ready reach and is under the control of the person. Give if applicable Mere proximity to a thing is not sufficient to establish control over that thing when the thing is not in a place over which the person has control. Constructive possession means the thing is in a place over which the person has control, or in which the person has concealed it. Give if applicable. See Chicone v. State, 684 So.2d 736 (Fla. 1996) If a thing is in a place over which the person does not have control, in order to establish constructive possession the State must prove the person’s (1) control over the thing , and (2) knowledge that the thing was within the person’s presence , and (3) knowledge of the illicit nature of the thing . Possession may be joint, that is, two or more persons may jointly have possession of an article, exercising control over it. In that case, each of those persons is considered to be in possession of that article. If a person has exclusive possession of a thing, knowledge of its presence may be inferred or assumed. If a person does not have exclusive possession of a thing, knowledge of its presence may not be inferred or assumed. Give if applicable — § 893.101(2) and (3), Fla.Stat. An issue in this case is whether (defendant) knew of the illicit nature of the substance. Lack of knowledge of the illicit nature of the substance is a defense and the State must prove beyond a reasonable doubt that the defendant had such knowledge. Proof that the defendant actually or constructively possessed the (controlled substance alleged in the charge) may justify a finding that the defendant knew of its illicit nature if, from all the surrounding facts and circumstances, you are convinced beyond a reasonable doubt that the defendant had such knowledge. [Lesser Included Offenses chart has no changes] Comment Note § 893.13(1)(g), Fla.Stat., if the charge involves possession or delivery without consideration of not more than 20 grams of cannabis. If the defense seeks to show a lack of knowledge as to the nature of a particular drug, an additional instruction may be required. See State v. Medlin , 273 So.2d 394 (Fla. 1973). This instruction was adopted in 1981 and amended in 1989 , and 1997 , and 2002. The latest changes are in response to Chapter 2002-258, Laws of Florida, which created section 893.101, Florida Statutes. 25.3 DRUG ABUSE – SALE, PURCHASE, DELIVERY, OR POSSESSION IN EXCESS OF TEN GRAMS § 893.13(1)(b), Fla.Stat. This instruction will have to be altered if a combination of substances is alleged. Certain drugs and chemical substances are by law known as “controlled substances.” (Specific substance alleged) is a controlled substance. To prove the crime of (crime charged) , the State must prove the following (applicable number) elements beyond a reasonable doubt: 1. (Defendant) [sold] [purchased] [delivered] [possessed] more than 10 grams of a certain substance. 2. The substance was (specific substance alleged) . Give if possession is charged 3. (Defendant) had knowledge of the presence of the substance. Definitions; give as applicable Sell “Sell” means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value. Deliver § 893.02(5), Fla.Stat. “Deliver” or “delivery” means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship. Possession To “possess” means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed. Possession may be actual or constructive. Actual possession means (a) the thing is in the hand of or on the person, or (b) the thing is in a container in the hand of or on the person, or (c) the thing is so close as to be within ready reach and is under the control of the person. Give if applicable Mere proximity to a thing is not sufficient to establish control over that thing when the thing is not in a place over which the person has control. Constructive possession means the thing is in a place over which the person has control, or in which the person has concealed it. Give if applicable. See Chicone v. State, 684 So.2d 736 (Fla. 1996) If a thing is in a place over which the person does not have control, in order to establish constructive possession the State must prove the person’s (1) control over the thing , and (2) knowledge that the thing was within the person’s presence , and (3) knowledge of the illicit nature of the thing . Possession may be joint, that is, two or more persons may jointly have possession of an article, exercising control over it. In that case, each of those persons is considered to be in possession of that article. If a person has exclusive possession of a thing, knowledge of its presence may be inferred or assumed. If a person does not have exclusive possession of a thing, knowledge of its presence may not be inferred or assumed. Give if applicable — § 893.101(2) and (3), Fla.Stat. An issue in this case is whether (defendant) knew of the illicit nature of the substance. Lack of knowledge of the illicit nature of the substance is a defense and the State must prove beyond a reasonable doubt that the defendant had such knowledge. Proof that the defendant actually or constructively possessed the (controlled substance alleged in the charge) may justify a finding that the defendant knew of its illicit nature if, from all the surrounding facts and circumstances, you are convinced beyond a reasonable doubt that the defendant had such knowledge. [Lesser Included Offensesm chart has no changes] Comment If the defense seeks to show a lack of knowledge as to the nature of a particular drug, an additional instruction may be required. See State v. Medlin, 273 So.2d 394 (Fla. 1973). This instruction was adopted in 1981 and amended in 1989 , and 1997 , and 2002. The latest changes are in response to Chapter 2002-258, Laws of Florida, which created section 893.101, Florida Statutes. 25.4 DRUG ABUSE — DELIVERY TO OR USE OF MINOR § 893.13(1)(c), Fla.Stat. Certain drugs and chemical substances are by law known as “controlled substances.” (Specific substance alleged) is a controlled substance. To prove the crime of (crime charged) , the State must prove the following three elements beyond a reasonable doubt: 1. a. [ (Defendant) delivered a certain substance to a person under the age of 18 years.] Give 1a, 1b, or 1c as applicable b. [ (Defendant) used or hired a person under the age of 18 years as an agent or employee in the sale or delivery of a certain substance.] c. [ (Defendant) used a person under the age of 18 years to assist in avoiding detection or apprehension for (violation of Chapter 893, Fla.Stat., alleged) .] 2. The substance was (specific substance alleged) . 3. (Defendant) was 18 years of age or older at the time. Definition § 893.02(5), Fla.Stat. “Deliver” or “delivery” means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship. Give if applicable — § 893.101(2) and (3), Fla.Stat. An issue in this case is whether (defendant) knew of the illicit nature of the substance. Lack of knowledge of the illicit nature of the substance is a defense and the State must prove beyond a reasonable doubt that the defendant had such knowledge. Proof that the defendant actually or constructively possessed the (controlled substance alleged in the charge) may justify a finding that the defendant knew of its illicit nature if, from all the surrounding facts and circumstances, you are convinced beyond a reasonable doubt that the defendant had such knowledge. [Lesser Included Offenses chart has no changes] Comment This instruction was adopted in 1981 and amended in 1989 and 2002. The latest changes are in response to Chapter 2002-258, Laws of Florida, which created section 893.101, Florida Statutes. 25.5 DRUG ABUSE – BRINGING INTO STATE § 893.13(1)(d), Fla.Stat. Certain drugs and chemical substances are by law known as “controlled substances.” (Specific substance alleged) is a controlled substance. To prove the crime of (crime charged) , the State must prove the following three elements beyond a reasonable doubt: 1. (Defendant) brought a certain substance into Florida. 2. The substance was (specific substance alleged) . 3. (Defendant) had knowledge of the presence of the substance. Definition To “possess” means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed. Possession may be actual or constructive. Actual possession means (a) the thing is in the hand of or on the person, or (b) the thing is in a container in the hand of or on the person, or (c) the thing is so close as to be within ready reach and is under the control of the person. Give if applicable Mere proximity to a thing is not sufficient to establish control over that thing when the thing is not in a place over which the person has control. Constructive possession means the thing is in a place over which the person has control, or in which the person has concealed it. Give if applicable. See Chicone v. State, 684 So.2d 736 (Fla. 1996) If a thing is in a place over which the person does not have control, in order to establish constructive possession the State must prove the person’s (1) control over the thing , and (2) knowledge that the thing was within the person’s presence , and (3) knowledge of the illicit nature of the thing . Possession may be joint, that is, two or more persons may jointly have possession of an article, exercising control over it. In that case, each of those persons is considered to be in possession of that article. If a person has exclusive possession of a thing, knowledge of its presence may be inferred or assumed. If a person does not have exclusive possession of a thing, knowledge of its presence may not be inferred or assumed. Give if applicable — § 893.101(2) and (3), Fla.Stat. An issue in this case is whether (defendant) knew of the illicit nature of the substance. Lack of knowledge of the illicit nature of the substance is a defense and the State must prove beyond a reasonable doubt that the defendant had such knowledge. Proof that the defendant actually or constructively possessed the (controlled substance alleged in the charge) may justify a finding that the defendant knew of its illicit nature if, from all the surrounding facts and circumstances, you are convinced beyond a reasonable doubt that the defendant had such knowledge. [Lesser Included Offenses chart has no changes] Comment If the defense seeks to show a lack of knowledge as to the nature of a particular drug, an additional instruction may be required. See State v. Medlin, 273 So.2d 394 (Fla. 1973). This instruction was adopted in 1981 and amended in 1997 and 2002. The latest changes are in response to Chapter 2002-258, Laws of Florida, which created section 893.101, Florida Statutes. 25.6 DRUG ABUSE – SALE, PURCHASE, MANUFACTURE, ORDELIVERY IN SPECIFIED LOCATIONS § 893.13(1)(c), (d) and (e) To prove the crime of (crime charged) , the State must prove the following four elements beyond a reasonable doubt: 1. (Defendant) [sold] [purchased] [manufactured] [delivered] [possessed with intent to sell] [possessed with intent to manufacture] [possessed with intent to deliver] a certain substance. Give a, b or c as applicable 2. a. in, on, or within 1,000 feet of the real property comprising a child care facility or a public or private elementary, middle, or secondary school between the hours of 6:00 a.m. to 12:00 a.m. (§ 893.13(1)(c), Fla.Stat.) b. in, on, or within 200 feet of [the real property comprising a public housing facility] [the real property comprising a public or private college, university, or other postsecondary educational institution] [a public park]. (§ 893.13(1)(d), Fla.Stat.) c. in, on, or within 1000 feet of [a physical place for worship at which a church or religious organization regularly conducts a religious services] [a convenience business]. (§ 893.13(1)(e), Fla.Stat.) 3. The substance was (specific substance alleged) . 4. (Defendant) had knowledge of the presence of the substance. Definitions; give as applicable. “Sell” means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value. “Manufacture” means the production, preparation, packaging, labeling or relabeling, propagation, compounding, cultivating, growing, conversion or processing of a controlled substance, either directly or indirectly. Manufacturing can be by extraction from substances of natural origin, or independently by means of chemical synthesis. It can also be by a combination of extraction and chemical synthesis. “Deliver” or “delivery” means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship. To “possess” means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed. Possession may be actual or constructive. Actual possession means : (a) the thing is in the hand of or on the person, or (b) the thing is in a container in the hand of or on the person, or (c) the thing is so close as to be within ready reach and is under the control of the person. Give if applicable Mere proximity to a thing is not sufficient to establish control over that thing when the thing is not in a place over which the person has control. Constructive possession means the thing is in a place over which the person has control, or in which the person has concealed it. Give if applicable. If a thing is in a place over which the person does not have control, in order to establish constructive possession the State must prove the person’s (1) control over the thing , and (2) knowledge that the thing was within the person’s presence , and (3) knowledge of the illicit nature of the thing . Possession may be joint, that is, two or more persons may jointly have possession of an article, exercising control over it. In that case, each of those persons is considered to be in possession of that article. If a person has exclusive possession of a thing, knowledge of its presence may be inferred or assumed . If a person does not have exclusive possession of a thing, knowledge of its presence may not be inferred or assumed. Give if applicable — § 893.101(2) and (3), Fla.Stat. An issue in this case is whether (defendant) knew of the illicit nature of the substance. Lack of knowledge of the illicit nature of the substance is a defense and the State must prove beyond a reasonable doubt that the defendant had such knowledge. Proof that the defendant actually or constructively possessed the (controlled substance alleged in the charge) may justify a finding that the defendant knew of its illicit nature if, from all the surrounding facts and circumstances, you are convinced beyond a reasonable doubt that the defendant had such knowledge. Definitions; give as applicable “Child care facility” means any child care center or arrangement which provides child care for more than five children unrelated to the operator and which receives a payment, fee, or grant for any of the children receiving care. It does not matter if the child care facility is operated for profit or as a nonprofit operation. A “convenience business” means any place of business that is primarily engaged in the retail sale of groceries, or both groceries and gasoline, and that is open for business at any time between the hours of 11 p.m. and 5 a.m. The term does not include any of the following: a business that is primarily a restaurant, or one that always has at least five employees on the premises after 11 p.m. and before 5 a.m., or one that has at least 10,000 square feet of retail floor space. The term “convenience business” also does not include any business in which the owner or members of his family work between the hours of 11 p.m. and 5 a.m. The term “real property comprising a public housing facility” is defined as the real property of a public corporation created as a housing authority by statute. [Lesser Included Offenses chart has no changes] Comment This instruction is based on section 893.13, Florida Statutes (1997), and adapted from the standard instruction on sale of contraband near a school. In Chicone v. State, 684 So.2d 736 (Fla. 1996), the court defined the elements of constructive possession that apply if the defendant has no control over the place where the contraband was found. This instruction was adopted in 1981 and amended in 1989, 1997, and 2000 , and 2002. The latest changes are in response to Chapter 2002-258, Laws of Florida, which created section 893.101, Florida Statutes. 25.7 DRUG ABUSE – POSSESSION § 893.13(1)(f), Fla.Stat. Certain drugs and chemical substances are by law known as “controlled substances.” (Specific substance alleged) is a controlled substance. To prove the crime of (crime charged) , the State must prove the following three elements beyond a reasonable doubt: 1. (Defendant) possessed a certain substance. 2. The substance was (specific substance alleged) . 3. (Defendant) had knowledge of the presence of the substance. Definition To “possess” means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed. Possession may be actual or constructive. Actual possession means (a) the thing is in the hand of or on the person, or (b) the thing is in a container in the hand of or on the person, or (c) the thing is so close as to be within ready reach and is under the control of the person. Give if applicable Mere proximity to a thing is not sufficient to establish control over that thing when the thing is not in a place over which the person has control. Constructive possession means the thing is in a place over which the person has control, or in which the person has concealed it. Give if applicable. See Chicone v. State, 684 So.2d 736 (Fla. 1996) If a thing is in a place over which the person does not have control, in order to establish constructive possession the State must prove the person’s (1) control over the thing , and (2) knowledge that the thing was within the person’s presence , and (3) knowledge of the illicit nature of the thing . Possession may be joint, that is, two or more persons may jointly have possession of an article, exercising control over it. In that case, each of those persons is considered to be in possession of that article. If a person has exclusive possession of a thing, knowledge of its presence may be inferred or assumed. If a person does not have exclusive possession of a thing, knowledge of its presence may not be inferred or assumed. Give if applicable — § 893.101(2) and (3), Fla.Stat. An issue in this case is whether (defendant) knew of the illicit nature of the substance. Lack of knowledge of the illicit nature of the substance is a defense and the State must prove beyond a reasonable doubt that the defendant had such knowledge. Proof that the defendant actually or constructively possessed the (controlled substance alleged in the charge) may justify a finding that the defendant knew of its illicit nature if, from all the surrounding facts and circumstances, you are convinced beyond a reasonable doubt that the defendant had such knowledge. Lesser Included Offenses No lesser included offenses have been identified for this offense. Comment If the defense seeks to show a lack of knowledge as to the nature of a particular drug, an additional instruction may be required. See State v. Medlin, 273 So.2d 394 (Fla. 1973). Note § 893.13(1)(g), Fla.Stat., if the charge involves possession or delivery without consideration of not more than 20 grams of cannabis. This instruction was adopted in 1981 and amended in 1989 , and 1997 , and 2002. The latest changes are in response to Chapter 2002-258, Laws of Florida, which created section 893.101, Florida Statutes. 25.8 DRUG ABUSE — OBTAINING CONTROLLED SUBSTANCE BY FRAUD, ETC. § 893.13(3)(a)1, Fla.Stat. Certain drugs and chemical substances are by law known as “controlled substances.” (Specific substance alleged) is a controlled substance. To prove the crime of Obtaining a Controlled Substance by [misrepresentation] [forgery] [deception] [subterfuge] the State must prove the following three elements beyond a reasonable doubt: 1. (Defendant) [acquired or obtained] [attempted to acquire or obtain] possession of a certain substance. 2. The substance was (specific substance alleged) . 3. (Defendant) [acquired or obtained] [attempted to acquire or obtain] the substance by [misrepresentation]. [fraud]. [forgery]. [deception]. [subterfuge]. Give if applicable — § 893.101(2) and (3), Fla.Stat. An issue in this case is whether (defendant) knew of the illicit nature of the substance. Lack of knowledge of the illicit nature of the substance is a defense and the State must prove beyond a reasonable doubt that the defendant had such knowledge. Proof that the defendant actually or constructively possessed the (controlled substance alleged in the charge) may justify a finding that the defendant knew of its illicit nature if, from all the surrounding facts and circumstances, you are convinced beyond a reasonable doubt that the defendant had such knowledge. Lesser Included Offenses No lesser included offenses have been identified for this offense. Comment This instruction was adopted in 1981 and amended in 1989 and 2002. The latest changes are in response to Chapter 2002-258, Laws of Florida, which created section 893.101, Florida Statutes. 25.9 TRAFFICKING IN CANNABIS § 893.135(1)(a), Fla.Stat. Certain drugs and chemical substances are by law known as “controlled substances.” Cannabis is a controlled substance. To prove the crime of Trafficking in Cannabis, the State must prove the following four elements beyond a reasonable doubt: 1. (Defendant) knowingly [sold] [purchased] [manufactured] [delivered] [brought into Florida] [possessed] a certain substance. 2. The substance was cannabis. 3. [ The quantity of the cannabis involved was in excess of 50 25 pounds. ] [The quantity of the cannabis was 300 or more cannabis plants.] See State v. Dominguez, 509 So.2d 917 (Fla. 1987) 4. (Defendant) knew that the substance was cannabis. If applicable under the facts of the case and pursuant to § 893.135(2), Fla.Stat., the following bracketed language should be given instead of element 4 above. For example, if it is alleged that the defendant intended to sell heroin, but actually sold cannabis, the alternate element 4 would be given. [4. (Defendant) intended to [sell] [purchase] [manufacture] [deliver] [bring into Florida] [possess] (an enumerated controlled substance in § 893.135(1), Fla.Stat.) , but actually [sold] [purchased] [manufactured] [delivered] [brought into Florida] [possessed] cannabis.] Definitions; give as applicable Sell “Sell” means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value. Manufacture § 893.02(12)(a), Fla.Stat. “Manufacture” means the production, preparation, packaging, labeling or relabeling, propagation, compounding, cultivating, growing, conversion or processing of a controlled substance, either directly or indirectly. Manufacturing can be by extraction from substances of natural origin, or independently by means of chemical synthesis. It can also be by a combination of extraction and chemical synthesis. Deliver § 893.02(5), Fla.Stat. “Deliver” or “delivery” means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship. Possession To “possess” means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed. Possession may be actual or constructive. Actual possession means (a) the thing is in the hand of or on the person, or (b) the thing is in a container in the hand of or on the person, or (c) the thing is so close as to be within ready reach and is under the control of the person. Give if applicable Mere proximity to a thing is not sufficient to establish control over that thing when the thing is not in a place over which the person has control. Constructive possession means the thing is in a place over which the person has control, or in which the person has concealed it. Give if applicable. See Chicone v. State, 684 So.2d 736 (Fla. 1996) If a thing is in a place over which the person does not have control, in order to establish constructive possession the State must prove the person’s (1) control over the thing , and (2) knowledge that the thing was within the person’s presence , and (3) knowledge of the illicit nature of the thing . Possession may be joint, that is, two or more persons may jointly have possession of an article, exercising control over it. In that case, each of those persons is considered to be in possession of that article. If a person has exclusive possession of a thing, knowledge of its presence may be inferred or assumed. If a person does not have exclusive possession of a thing, knowledge of its presence may not be inferred or assumed. Give only if the defendant asserts the affirmative defense of lack of knowledge of the illicit nature of the substance – § 893.101(2) and (3), Fla.Stat. An issue in this case is whether (defendant) knew of the illicit nature of the substance. Lack of knowledge of the illicit nature of the substance is a defense and the State must prove beyond a reasonable doubt that the defendant had such knowledge. Proof that the defendant actually or constructively possessed the (controlled substance alleged in the charge) may justify a finding that the defendant knew of its illicit nature if, from all the surrounding facts and circumstances, you are convinced beyond a reasonable doubt that the defendant had such knowledge. See State v. Weller, 590 So.2d 923 (Fla. 1991) The punishment provided by law for the crime of Trafficking in Cannabis is greater depending on the amount of cannabis involved. Therefore, if you find the defendant guilty of trafficking in cannabis, you must determine by your verdict whether: Enhanced penalty; give if applicable up to extent of charge a. [The quantity of the substance cannabis involved was in excess of 50 25 pounds but less than 2,000 pounds.] [The quantity of the cannabis involved was 300 or more cannabis plants but not more than 2,000 plants.] b. [The quantity of the substance involved was 2,000 pounds or more but less than 10,000 pounds.] [The quantity of the cannabis involved was 2000 or more cannabis plants but not more than 10,000 plants.] c. [The quantity of the substance involved was 10,000 pounds or more.] [The quantity of the cannabis involved was 10,000 or more plants.] [Lesser Included Offenses chart has no changes] Comment Section 893.101(2) and (3), Florida Statutes, require the availability of the affirmative defense of lack of knowledge of the illicit nature of the substance and the accompanying instruction on the “permissive presumption” of knowledge. Proof of the fourth element of the crime, i.e. that the defendant knew the substance was cannabis, is close to but not identical with proof that the defendant knew the “illicit nature” of cannabis. This instruction was adopted in 1981 and amended in 1989 , and 1997 , and 2002. 25.10 TRAFFICKING IN COCAINE § 893.135(1)(b), Fla.Stat. Certain drugs and chemical substances are by law known as “controlled substances.” Cocaine or any mixture containing cocaine is a controlled substance. To prove the crime of Trafficking in Cocaine, the State must prove the following four elements beyond a reasonable doubt: 1. (Defendant) knowingly [sold] [purchased] [manufactured] [delivered] [brought into Florida] [possessed] a certain substance. 2. The substance was [cocaine] [a mixture containing cocaine]. 3. The quantity of the substance involved was 28 grams or more. See State v. Dominguez, 509 So.2d 917 (Fla. 1987) 4. (Defendant) knew that the substance was [cocaine] [a mixture containing cocaine]. If applicable under the facts of the case and pursuant to § 893.135(2), Fla.Stat., the following bracketed language should be given instead of element 4 above. For example, if it is alleged that the defendant intended to sell heroin but actually sold cocaine, the alternate element 4 would be given. [4. (Defendant) intended to [sell] [purchase] [manufacture] [deliver] [bring into Florida] [possess] (an enumerated controlled substance in § 893.135(1), Fla.Stat.) , but actually [sold] [purchased] [manufactured] [delivered] [brought into Florida] [possessed] cocaine or a mixture containing cocaine.] Definitions; give as applicable Sell “Sell” means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value. Manufacture § 893.02(12)(a), Fla.Stat. “Manufacture” means the production, preparation, packaging, labeling or relabeling, propagation, compounding, cultivating, growing, conversion or processing of a controlled substance, either directly or indirectly. Manufacturing can be by extraction from substances of natural origin, or independently by means of chemical synthesis. It can also be by a combination of extraction and chemical synthesis. Deliver § 893.02(5), Fla.Stat. “Deliver” or “delivery” means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship. Possession To “possess” means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed. Possession may be actual or constructive. Actual possession means (a) the thing is in the hand of or on the person, or (b) the thing is in a container in the hand of or on the person, or (c) the thing is so close as to be within ready reach and is under the control of the person. Give if applicable Mere proximity to a thing is not sufficient to establish control over that thing when the thing is not in a place over which the person has control. Constructive possession means the thing is in a place over which the person has control, or in which the person has concealed it. Give if applicable. See Chicone v. State, 684 So.2d 736 (Fla. 1996) If a thing is in a place over which the person does not have control, in order to establish constructive possession the State must prove the person’s (1) control over the thing , and (2) knowledge that the thing was within the person’s presence , and (3) knowledge of the illicit nature of the thing . Possession may be joint, that is, two or more persons may jointly have possession of an article, exercising control over it. In that case, each of those persons is considered to be in possession of that article. If a person has exclusive possession of a thing, knowledge of its presence may be inferred or assumed. If a person does not have exclusive possession of a thing, knowledge of its presence may not be inferred or assumed. Give only if the defendant asserts the affirmative defense of lack of knowledge of the illicit nature of the substance – section 893.101(2) and (3), Fla.Stat. An issue in this case is whether (defendant) knew of the illicit nature of the substance. Lack of knowledge of the illicit nature of the substance is a defense and the State must prove beyond a reasonable doubt that the defendant had such knowledge. Proof that the defendant actually or constructively possessed the (controlled substance alleged in the charge) may justify a finding that the defendant knew of its illicit nature if, from all the surrounding facts and circumstances, you are convinced beyond a reasonable doubt that the defendant had such knowledge. See State v. Weller, 590 So.2d 923 (Fla. 1991) The punishment provided by law for the crime of Trafficking in Cocaine is greater depending on the amount of cocaine involved. Therefore, if you find the defendant guilty of trafficking in cocaine, you must determine by your verdict whether: Enhanced penalty; give if applicable up to extent of charge a. [The quantity of the substance involved was in excess of 28 grams but less than 200 grams.] b. [The quantity of the substance involved was 200 grams or more but less than 400 grams.] c. [The quantity of the substance involved was 400 grams or more but less than 150 kilograms.] d. [The quantity of the substance involved was 150 kilograms or more but less than 300 kilograms .] [Lesser Included Offenses chart has no changes] Comment Section 893.101(2) and (3), Florida Statutes, require the availability of the affirmative defense of lack of knowledge of the illicit nature of the substance and the accompanying instruction on the “permissive presumption” of knowledge. Proof of the fourth element of the crime, i.e. that the defendant knew the substance was cocaine, is close to but not identical with proof that the defendant knew the “illicit nature” of cocaine. This instruction was adopted in 1981 and amended in 1989 , and 1997 , and 2002. 25.11 TRAFFICKING IN ILLEGAL DRUGS § 893.135(1)(c), Fla.Stat. Certain drugs and chemical substances are by law known as “controlled substances.” (Specific substance alleged) or any mixture containing (specific substance alleged) is a controlled substance. To prove the crime of Trafficking in Illegal Drugs, the State must prove the following four elements beyond a reasonable doubt: 1. (Defendant) knowingly [sold] [purchased] [manufactured] [delivered] [brought into Florida] [possessed] a certain substance. 2. The substance was [(specific substance alleged)] [a mixture containing (specific substance alleged) ]. 3. The quantity of the substance involved was 28 4 grams or more. See State v. Dominguez, 509 So.2d 917 (Fla. 1987) 4. (Defendant) knew that the substance was [(specific substance alleged)] [a mixture containing (specific substance alleged) ]. If applicable under the facts of the case and pursuant to § 893.135(2), Fla.Stat., the following bracketed language should be given instead of element 4 above. For example, if it is alleged that the defendant intended to sell heroin but actually sold (specific substance alleged), the alternate element 4 would be given. [4. (Defendant) intended to [sell] [purchase] [manufacture] [deliver] [bring into Florida] [possess] (an enumerated controlled substance in § 893.135(1), Fla.Stat.) , but actually [sold] [purchased] [manufactured] [delivered] [brought into Florida] [possessed] (specific substance alleged) or a mixture containing (specific substance alleged).] Definitions; give as applicable Sell “Sell” means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value. Manufacture § 893.02(12)(a), Fla.Stat. “Manufacture” means the production, preparation, packaging, labeling or relabeling, propagation, compounding, cultivating, growing, conversion or processing of a controlled substance, either directly or indirectly. Manufacturing can be by extraction from substances of natural origin, or independently by means of chemical synthesis. It can also be by a combination of extraction and chemical synthesis. Deliver § 893.02(5), Fla.Stat. “Deliver” or “delivery” means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship. Possession To “possess” means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed. Possession may be actual or constructive. Actual possession means (a) the thing is in the hand of or on the person, or (b) the thing is in a container in the hand of or on the person, or (c) the thing is so close as to be within ready reach and is under the control of the person. Give if applicable Mere proximity to a thing is not sufficient to establish control over that thing when the thing is not in a place over which the person has control. Constructive possession means the thing is in a place over which the person has control, or in which the person has concealed it. Give if applicable. See Chicone v. State, 684 So.2d 736 (Fla. 1996) If a thing is in a place over which the person does not have control, in order to establish constructive possession the State must prove the person’s (1) control over the thing , and (2) knowledge that the thing was within the person’s presence , and (3) knowledge of the illicit nature of the thing . Possession may be joint, that is, two or more persons may jointly have possession of an article, exercising control over it. In that case, each of those persons is considered to be in possession of that article. If a person has exclusive possession of a thing, knowledge of its presence may be inferred or assumed. If a person does not have exclusive possession of a thing, knowledge of its presence may not be inferred or assumed. Give only if the defendant asserts the affirmative defense of lack of knowledge of the illicit nature of the substance — section 893.101(2) and (3), Fla.Stat. An issue in this case is whether (defendant) knew of the illicit nature of the substance. Lack of knowledge of the illicit nature of the substance is a defense and the State must prove beyond a reasonable doubt that the defendant had such knowledge. Proof that the defendant actually or constructively possessed the (controlled substance alleged in the charge) may justify a finding that the defendant knew of its illicit nature if, from all the surrounding facts and circumstances, you are convinced beyond a reasonable doubt that the defendant had such knowledge. See State v. Weller, 590 So.2d 923 (Fla. 1991) The punishment provided by law for the crime of Trafficking in Illegal Drugs is greater depending on the amount of (specific substance alleged) involved. Therefore, if you find the defendant guilty of trafficking in illegal drugs, you must determine by your verdict whether: Enhanced penalty; give if applicable up to extent of charge a. [The quantity of the substance involved was in excess of 4 grams but less than 14 grams.] b. [The quantity of the substance involved was 14 grams or more but less than 28 grams.] c. [The quantity of the substance involved was 28 grams or more but less than 30 kilograms.] d. [The quantity of the substance involved was 30 kilograms or more but less than 60 kilograms .] [Lesser Included Offenses chart has no chart] Comment Section 893.101(2) and (3), Florida Statutes, require the availability of the affirmative defense of lack of knowledge of the illicit nature of the substance and the accompanying instruction on the “permissive presumption” of knowledge. Proof of the fourth element of the crime, i.e. that the defendant knew the identity of the specific substance alleged is close to but not identical with proof that the defendant knew the “illicit nature” of the substance. This instruction was adopted in 1981 and amended in 1989 , and 1997 , and 2002. 25.12 TRAFFICKING IN PHENCYCLIDINE § 893.135(1)(d), Fla.Stat. Certain drugs and chemical substances are by law known as “controlled substances.” Phencyclidine or any mixture containing phencyclidine is a controlled substance. To prove the crime of Trafficking in Phencyclidine, the State must prove the following four elements beyond a reasonable doubt: 1. (Defendant) knowingly [sold] [purchased] [manufactured] [delivered] [brought into Florida] [possessed] a certain substance. 2. The substance was [phencyclidine] [a mixture containing phencyclidine]. 3. The quantity of the substance involved was 28 grams or more. See State v. Dominguez, 509 So.2d 917 (Fla. 1987) 4. (Defendant) knew that the substance was [phencyclidine] [a mixture containing phencyclidine]. If applicable under the facts of the case and pursuant to § 893.135(2), Fla.Stat., the following bracketed language should be given instead of element 4 above. For example, if it is alleged that the defendant intended to sell heroin but actually sold phencyclidine, the alternate element 4 would be given. [4. (Defendant) intended to [sell] [purchase] [manufacture] [deliver] [bring into Florida] [possess] (an enumerated controlled substance in § 893.135(1), Fla.Stat.) , but actually [sold] [purchased] [manufactured] [delivered] [brought into Florida] [possessed] phencyclidine or a mixture containing phencyclidine.] Definitions; give as applicable Sell “Sell” means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value. Manufacture § 893.02(12)(a), Fla.Stat. “Manufacture” means the production, preparation, packaging, labeling or relabeling, propagation, compounding, cultivating, growing, conversion or processing of a controlled substance, either directly or indirectly. Manufacturing can be by extraction from substances of natural origin, or independently by means of chemical synthesis. It can also be by a combination of extraction and chemical synthesis. Deliver § 893.02(5), Fla.Stat. “Deliver” or “delivery” means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship. Possession To “possess” means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed. Possession may be actual or constructive. Actual possession means (a) the thing is in the hand of or on the person, or (b) the thing is in a container in the hand of or on the person, or (c) the thing is so close as to be within ready reach and is under the control of the person. Give if applicable Mere proximity to a thing is not sufficient to establish control over that thing when the thing is not in a place over which the person has control. Constructive possession means the thing is in a place over which the person has control, or in which the person has concealed it. Give if applicable. See Chicone v. State, 684 So.2d 736 (Fla. 1996) If a thing is in a place over which the person does not have control, in order to establish constructive possession the State must prove the person’s (1) control over the thing , and (2) knowledge that the thing was within the person’s presence , and (3) knowledge of the illicit nature of the thing . Possession may be joint, that is, two or more persons may jointly have possession of an article, exercising control over it. In that case, each of those persons is considered to be in possession of that article. If a person has exclusive possession of a thing, knowledge of its presence may be inferred or assumed. If a person does not have exclusive possession of a thing, knowledge of its presence may not be inferred or assumed. Give only if the defendant asserts the affirmative defense of lack of knowledge of the illicit nature of the substance – § 893.101(2) and (3), Fla.Stat. An issue in this case is whether (defendant) knew of the illicit nature of the substance. Lack of knowledge of the illicit nature of the substance is a defense and the State must prove beyond a reasonable doubt that the defendant had such knowledge. Proof that the defendant actually or constructively possessed the (controlled substance alleged in the charge) may justify a finding that the defendant knew of its illicit nature if, from all the surrounding facts and circumstances, you are convinced beyond a reasonable doubt that the defendant had such knowledge. See State v. Weller, 590 So.2d 923 (Fla. 1991) The punishment provided by law for the crime of Trafficking in Phencyclidine is greater depending on the amount of phencyclidine involved. Therefore, if you find the defendant guilty of trafficking in phencyclidine, you must determine by your verdict whether: Enhanced penalty; give if applicable up to extent of charge a. [The quantity of the substance involved was in excess of 28 grams but less than 200 grams.] b. [The quantity of the substance involved was 200 grams or more but less than 400 grams.] c. [The quantity of the substance involved was 400 grams or more but less than 800 grams .] [Lesser Included Offenses chart has no changes] Comment Section 893.101(2) and (3), Florida Statutes, require the availability of the affirmative defense of lack of knowledge of the illicit nature of the substance and the accompanying instruction on the “permissive presumption” of knowledge. Proof of the fourth element of the crime, i.e. that the defendant knew the substance was phencyclidine or a mixture containing phencyclidine, is close to but not identical with proof that the defendant knew the “illicit nature” of phencyclidine. This instruction was adopted in 1981 and amended in 1987, 1989 , and 1997 , and 2002. 25.13 TRAFFICKING IN METHAQUALONE § 893.135(1)(e), Fla.Stat. Certain drugs and chemical substances are by law known as “controlled substances.” Methaqualone or any mixture containing methaqualone is a controlled substance. To prove the crime of Trafficking in Methaqualone, the State must prove the following four elements beyond a reasonable doubt: 1. (Defendant) knowingly [sold] [purchased] [manufactured] [delivered] [brought into Florida] [possessed] a certain substance. 2. The substance was [methaqualone] [a mixture containing methaqualone]. 3. The quantity of the substance involved was 28 200 grams or more. See State v. Dominguez, 509 So.2d 917 (Fla. 1987) 4. (Defendant) knew that the substance was [methaqualone] [a mixture containing methaqualone]. If applicable under the facts of the case and pursuant to § 893.135(2), Fla.Stat., the following bracketed language should be given instead of element 4 above. For example, if it is alleged that the defendant intended to sell heroin but actually sold methaqualone, the alternate element 4 would be given. [4. (Defendant) intended to [sell] [purchase] [manufacture] [deliver] [bring into Florida] [possess] (an enumerated controlled substance in § 893.135(1), Fla.Stat.) , but actually [sold] [purchased] [manufactured] [delivered] [brought into Florida] [possessed] methaqualone or a mixture containing methaqualone.] Definitions; give as applicable Sell “Sell” means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value. Manufacture § 893.02(12)(a), Fla.Stat. “Manufacture” means the production, preparation, packaging, labeling or relabeling, propagation, compounding, cultivating, growing, conversion or processing of a controlled substance, either directly or indirectly. Manufacturing can be by extraction from substances of natural origin, or independently by means of chemical synthesis. It can also be by a combination of extraction and chemical synthesis. Deliver § 893.02(5), Fla.Stat. “Deliver” or “delivery” means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship. Possession To “possess” means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed. Possession may be actual or constructive. Actual possession means (a) the thing is in the hand of or on the person, or (b) the thing is in a container in the hand of or on the person, or (c) the thing is so close as to be within ready reach and is under the control of the person. Give if applicable Mere proximity to a thing is not sufficient to establish control over that thing when the thing is not in a place over which the person has control. Constructive possession means the thing is in a place over which the person has control, or in which the person has concealed it. Give if applicable. See Chicone v. State, 684 So.2d 736 (Fla. 1996) If a thing is in a place over which the person does not have control, in order to establish constructive possession the State must prove the person’s (1) control over the thing , and (2) knowledge that the thing was within the person’s presence , and (3) knowledge of the illicit nature of the thing . Possession may be joint, that is, two or more persons may jointly have possession of an article, exercising control over it. In that case, each of those persons is considered to be in possession of that article. If a person has exclusive possession of a thing, knowledge of its presence may be inferred or assumed. If a person does not have exclusive possession of a thing, knowledge of its presence may not be inferred or assumed. Give only if the defendant asserts the affirmative defense of lack of knowledge of the illicit nature of the substance – § 893.101(2) and (3), Fla.Stat. An issue in this case is whether (defendant) knew of the illicit nature of the substance. Lack of knowledge of the illicit nature of the substance is a defense and the State must prove beyond a reasonable doubt that the defendant had such knowledge. Proof that the defendant actually or constructively possessed the (controlled substance alleged in the charge) may justify a finding that the defendant knew of its illicit nature if, from all the surrounding facts and circumstances, you are convinced beyond a reasonable doubt that the defendant had such knowledge. See State v. Weller, 590 So.2d 923 (Fla. 1991) The punishment provided by law for the crime of Trafficking in Methaqualone is greater depending on the amount of methaqualone involved. Therefore, if you find the defendant guilty of trafficking in methaqualone, you must determine by your verdict whether: Enhanced penalty; give if applicable up to extent of charge a. [The quantity of the substance involved was in excess of 200 grams but less than 5 kilograms.] b. [The quantity of the substance involved was 5 kilograms or more but less than 25 kilograms.] c. [The quantity of the substance involved was 25 kilograms or more but less than 50 kilograms .] [Lesser Included Offenses chart has no changes] Comment Section 893.101(2) and (3), Florida Statutes, require the availability of the affirmative defense of lack of knowledge of the illicit nature of the substance and the accompanying instruction on the “permissive presumption” of knowledge. Proof of the fourth element of the crime, i.e. that the defendant knew the substance was methaqualone, is close to but not identical with proof that the defendant knew the “illicit nature” of methaqualone. This instruction was adopted in 1981 and amended in 1989 , and 1997 , and 2002. 25.14 DRUG ABUSE – USE OR POSSESSION OFDRUG PARAPHERNALIA § 893.147(1), Fla.Stat. To prove the crime of Use or Possession of Drug Paraphernalia, the State must prove the following two elements beyond a reasonable doubt: 1. (Defendant) used or had in [his] [her] possession with intent to use drug paraphernalia. 2. (Defendant) had knowledge of the presence of the drug paraphernalia. Definitions Possession To “possess” means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed. Possession may be actual or constructive. Actual possession means (a) the thing is in the hand of or on the person, or (b) the thing is in a container in the hand of or on the person, or (c) the thing is so close as to be within ready reach and is under the control of the person. Give if applicable Mere proximity to a thing is not sufficient to establish control over that thing when the thing is not in a place over which the person has control. Constructive possession means the thing is in a place over which the person has control, or in which the person has concealed it. Give if applicable. See Chicone v. State, 684 So.2d 736 (Fla. 1996) If a thing is in a place over which the person does not have control, in order to establish constructive possession the State must prove the person’s (1) control over the thing , and (2) knowledge that the thing was within the person’s presence , and (3) knowledge of the illicit nature of the thing . Possession may be joint, that is, two or more persons may jointly have possession of an article, exercising control over it. In that case, each of those persons is considered to be in possession of that article. If a person has exclusive possession of a thing, knowledge of its presence may be inferred or assumed. If a person does not have exclusive possession of a thing, knowledge of its presence may not be inferred or assumed. Drug paraphernalia § 893.145, Fla.Stat. The term “drug paraphernalia” means all equipment, products, and materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of this chapter. It includes, but is not limited to: Give specific definition as applicable (1) Kits used, intended for use, or designed for use in planting, propagating, cultivating, growing, or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived. (2) Kits used, intended for use, or designed for use in manufacturing, compounding, converting, producing, processing, or preparing controlled substances. (3) Isomerization devices used, intended for use, or designed for use in increasing the potency of any species of plant which is a controlled substance. (4) Testing equipment used, intended for use, or designed for use in identifying, or in analyzing the strength, effectiveness, or purity of, controlled substances. (5) Scales and balances used, intended for use, or designed for use in weighing or measuring controlled substances. (6) Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose, and lactose used, intended for use, or designed for use in cutting controlled substances. (7) Separation gins and sifters used, intended for use, or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, cannabis. (8) Blenders, bowls, containers, spoons, and mixing devices used, intended for use, or designed for use in compounding controlled substances. (9) Capsules, balloons, envelopes, and other containers used, intended for use, or designed for use in packaging small quantities of controlled substances. (10) Containers and other objects used, intended for use, or designed for use in storing or concealing controlled substances. (11) Hypodermic syringes, needles, and other objects used, intended for use, or designed for use in parenterally injecting controlled substances into the human body. (12) Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing cannabis, cocaine, hashish, or hashish oil into the human body, such as: (a) Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls. (b) Water pipes. (c) Carburetion tubes and devices. (d) Smoking and carburetion masks. (e) Roach clips: meaning objects used to hold burning material, such as a cannabis cigarette, that has become too small or too short to be held in the hand. (f) Miniature cocaine spoons, and cocaine vials. (g) Chamber pipes. (h) Carburetor pipes. (i) Electric pipes. (j) Air-driven pipes. (k) Chillums. (l) Bongs. (m) Ice pipes or chillers. Relevant factors § 893.146, Fla.Stat. In addition to all other logically relevant factors, the following factors shall be considered in determining whether an object is drug paraphernalia: (1) Statements by an owner or by anyone in control of the object concerning its use. (2) The proximity of the object, in time and space, to a direct violation of this act. (3) The proximity of the object to controlled substances. (4) The existence of any residue of controlled substances on the object. (5) Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom [he] [she] knows, or should reasonably know, intend to use the object to facilitate a violation of this act. The innocence of an owner, or of anyone in control of the object, as to a direct violation of this act shall not prevent a finding that the object is intended for use, or designed for use, as drug paraphernalia. (6) Instructions, oral or written, provided with the object concerning its use. (7) Descriptive materials accompanying the object which explain or depict its use. (8) Any advertising concerning its use. (9) The manner in which the object is displayed for sale. (10) Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products. (11) Direct or circumstantial evidence of the ratio of sales of the object or objects to the total sales of the business enterprise. (12) The existence and scope of legitimate uses for the object in the community. (13) Expert testimony concerning its use. [Lesser Included Offenses chart has no changes] Comment This instruction was adopted in 1981 and amended in 1989, 1992 , and 1997 , and 2002 . 25.15 DRUG ABUSE – DELIVERY, POSSESSION WITH INTENT TO DELIVER, OR MANUFACTURE WITH INTENT TO DELIVER DRUG PARAPHERNALIA § 893.147(2), Fla.Stat. To prove the crime of (crime charged) , the State must prove the following (applicable number) elements beyond a reasonable doubt: 1. (Defendant) [delivered] [possessed with intent to deliver] [manufactured with intent to deliver] drug paraphernalia. Give only if possession is charged 2. (Defendant) had knowledge of the presence of the drug paraphernalia. 3. (Defendant) knew or reasonably should have known that the drug paraphernalia would be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body (specific substance alleged) . Definitions Possession; give if possession is charged To “possess” means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed. Possession may be actual or constructive. Actual possession means (a) the thing is in the hand of or on the person, or (b) the thing is in a container in the hand of or on the person, or (c) the thing is so close as to be within ready reach and is under the control of the person. Give if applicable Mere proximity to a thing is not sufficient to establish control over that thing when the thing is not in a place over which the person has control. Constructive possession means the thing is in a place over which the person has control, or in which the person has concealed it. Give if applicable. See Chicone v. State, 684 So.2d 736 (Fla. 1996) If a thing is in a place over which the person does not have control, in order to establish constructive possession the State must prove the person’s (1) control over the thing , and (2) knowledge that the thing was within the person’s presence , and (3) knowledge of the illicit nature of the thing . Possession may be joint, that is, two or more persons may jointly have possession of an article, exercising control over it. In that case, each of those persons is considered to be in possession of that article. If a person has exclusive possession of a thing, knowledge of its presence may be inferred or assumed. If a person does not have exclusive possession of a thing, knowledge of its presence may not be inferred or assumed. Deliver; give if delivery is charged § 893.02(4), Fla.Stat. “Deliver” or “delivery” means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship. Manufacture; give if manufacture is charged § 893.02(11)(a), Fla.Stat. “Manufacture” means the production, preparation, packaging, labeling or relabeling, propagation, compounding, cultivating, growing, conversion or processing of a controlled substance, either directly or indirectly. Manufacturing can be by extraction from substances of natural origin, or independently by means of chemical synthesis. It can also be by a combination of extraction and chemical synthesis. Drug paraphernalia § 893.145, Fla.Stat. The term “drug paraphernalia” means all equipment, products, and materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of this chapter. It includes, but is not limited to: (1) Kits used, intended for use, or designed for use in planting, propagating, cultivating, growing, or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived. (2) Kits used, intended for use, or designed for use in manufacturing, compounding, converting, producing, processing, or preparing controlled substances. (3) Isomerization devices used, intended for use, or designed for use in increasing the potency of any species of plant which is a controlled substance. (4) Testing equipment used, intended for use, or designed for use in identifying, or in analyzing the strength, effectiveness, or purity of, controlled substances. (5) Scales and balances used, intended for use, or designed for use in weighing or measuring controlled substances. (6) Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose, and lactose used, intended for use, or designed for use in cutting controlled substances. (7) Separation gins and sifters used, intended for use, or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, cannabis. (8) Blenders, bowls, containers, spoons, and mixing devices used, intended for use, or designed for use in compounding controlled substances. (9) Capsules, balloons, envelopes, and other containers used, intended for use, or designed for use in packaging small quantities of controlled substances. (10) Containers and other objects used, intended for use, or designed for use in storing or concealing controlled substances. (11) Hypodermic syringes, needles, and other objects used, intended for use, or designed for use in parenterally injecting controlled substances into the human body. (12) Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing cannabis, cocaine, hashish, or hashish oil into the human body, such as: (a) Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls. (b) Water pipes. (c) Carburetion tubes and devices. (d) Smoking and carburetion masks. (e) Roach clips: meaning objects used to hold burning material, such as a cannabis cigarette, that has become too small or too short to be held in the hand. (f) Miniature cocaine spoons, and cocaine vials. (g) Chamber pipes. (h) Carburetor pipes. (i) Electric pipes. (j) Air-driven pipes. (k) Chillums. (l) Bongs. (m) Ice pipes or chillers. Relevant factors § 893.146, Fla.Stat. In addition to all other logically relevant factors, the following factors shall be considered in determining whether an object is drug paraphernalia: (1) Statements by an owner or by anyone in control of the object concerning its use. (2) The proximity of the object, in time and space, to a direct violation of this act. (3) The proximity of the object to controlled substances. (4) The existence of any residue of controlled substances on the object. (5) Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom [he] [she] knows, or should reasonably know, intend to use the object to facilitate a violation of this act. The innocence of an owner, or of anyone in control of the object, as to a direct violation of this act shall not prevent a finding that the object is intended for use, or designed for use, as drug paraphernalia. (6) Instructions, oral or written, provided with the object concerning its use. (7) Descriptive materials accompanying the object which explain or depict its use. (8) Any advertising concerning its use. (9) The manner in which the object is displayed for sale. (10) Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products. (11) Direct or circumstantial evidence of the ratio of sales of the object or objects to the total sales of the business enterprise. (12) The existence and scope of legitimate uses for the object in the community. (13) Expert testimony concerning its use. [Lesser Included Offenses chart has no changes] Comment This instruction was adopted in 1981 and amended in 1989, and 1997 , and 2002. The latest changes are in response to Chapter 2002-258, Laws of Florida, which created section 893.101, Florida Statutes. 2. New instructions for lewd and lascivious conduct Note: Current instruction 11.10 is to be deleted, and the following instructions are proposed new instructions. LEWD OR LASCIVIOUS BATTERY § 800.04(4)(a), Fla.Stat. – (Engaging in Sexual Activity) To prove the crime of lewd or lascivious battery, the State must prove the following two elements beyond a reasonable doubt: 1. (Victim) was twelve years of age or older, but under the age of sixteen years. 2. a. [(Defendant) committed an act [upon] [with] (victim) in which the sexual organ of the [ (defendant) ] [ (victim) ] penetrated or had union with the [anus] [vagina] [mouth] of the [ (victim) ] [ (defendant) ].] b. [ (Defendant) committed an act upon (victim) in which the [anus] [vagina] of (victim) was penetrated by an object.] “Union” means contact. However, any act done for bona fide medical purposes is not a lewd or lascivious battery. Neither the victim’s lack of chastity nor the victim’s consent is a defense to the crime charged. LEWD OR LASCIVIOUS BATTERY § 800.04(4)(b), Fla.Stat. – (Encouraging, Forcing or Enticing) T o prove the crime of lewd or lascivious battery, the State must prove the following two elements beyond a reasonable doubt: 1. (Victim) was under the age of sixteen years. 2. (Defendant) [encouraged] [forced] [enticed] (victim) to engage in [sadomasochistic abuse] [sexual bestiality] [prostitution] [any act involving sexual activity]. “Sexual activity” means the oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual activity does not include an act done for a bona fide medical purpose. “Union” means contact. “Sadomasochistic abuse” means flagellation or torture by or upon a person, or the condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction from inflicting harm on another or receiving such harm oneself. Note: Definition from § 827.071(d), Fla.Stat., Sexual Performance by a Child, and from § 847.001(13), Fla.Stat., regarding obscenity. “Sexual bestiality” means any sexual act between a person and an animal involving the sex organ of the one and the mouth, anus, or vagina of the other. Note: Definition from § 827.071(d), Fla.Stat., Sexual Performance by Child, and from § 847.001(13), Fla.Stat., regarding obscenity. LEWD OR LASCIVIOUS MOLESTATION § 800.04(5), Fla.Stat. To prove the crime of lewd or lascivious molestation, the State must prove the following two elements beyond a reasonable doubt: 1. (Victim) was under the age of sixteen years. 2. a. [ (Defendant) intentionally touched in a lewd or lascivious manner the [breasts] [genitals] [genital area] [buttocks] [clothing covering the breasts] [clothing covering the genitals] [clothing covering the genital area] [clothing covering the buttocks] of (victim). ] b. [( Defendant) [forced] [enticed] (victim) to touch the [breasts] [genitals] [genital area] [buttocks] [clothing covering the breasts] [clothing covering the genitals] [clothing covering the genital area] [clothing covering the buttocks] of (defendant). ] The words “lewd” and “lascivious” mean the same thing and mean a wicked, lustful, unchaste, licentious, or sensual intent on the part of the person doing an act. Neither the victim’s lack of chastity nor the victim’s consent is a defense to the crime charged. The punishment provided by law for the crime of lewd or lascivious molestation is greater depending on the age of the defendant and the age of the victim. Therefore, if you find the defendant is guilty of lewd or lascivious molestation, you must determine by your verdict whether at the time of the offense: a. [The defendant was eighteen years of age or older and the victim was under the age of twelve years.] b. [The defendant was under the age of eighteen years and the victim was under the age of twelve years.] c. [The defendant was eighteen years of age or older and the victim was twelve years of age or older.] d. [The defendant was under the age of eighteen years and the victim was twelve years of age or older.] Note: “but under the age of sixteen years” omitted from subparagraphs c. and d. because it is included in the elements of the crime. LEWD OR LASCIVIOUS CONDUCT § 800.04(6), Fla.Stat. To prove the crime of lewd or lascivious conduct, the State must prove the following two elements beyond a reasonable doubt: 1. (Victim) was under the age of sixteen years. 2. a. [ (Defendant) intentionally touched (victim) in a lewd or lascivious manner.] or b. [ (Defendant) solicited (victim) to commit a lewd or lascivious act.] The words “lewd” and “lascivious” mean the same thing and mean a wicked, lustful, unchaste, licentious, or sensual intent on the part of the person doing an act. To “solicit” means to ask earnestly or to try to induce the person solicited to do the thing solicited. Note: Definition of “solicit” from Criminal Solicitation instruction, § 777.04(2), Fla.Stat. Neither the victim’s lack of chastity nor the victim’s consent is a defense to the crime charged. The punishment provided by law for the crime of lewd or lascivious conduct is greater depend ing on the age of the defendant. Therefore, if you find the defendant is guilty of lewd or lascivious conduct, you must determine by your verdict whether at the time of the offense: a. The defendant was eighteen years of age or older. b. The defendant was under the age of eighteen years. LEWD OR LASCIVIOUS EXHIBITION (Presence of Child) § 800.04(7)(a), Fla.Stat. To prove the crime of lewd or lascivious exhibition, the State must prove the following three elements beyond a reasonable doubt: 1. (Victim) was under the age of sixteen years. 2. a. [ (Defendant) intentionally masturbated.] b. [ (Defendant) intentionally exposed [his] [her] genitals in a lewd or lascivious manner.] c. [ (Defendant) committed [a sexual act] [sadomasochistic abuse] [sexual bestiality] [simulation of any act involving sexual activity] that did not involve actual physical or sexual contact with (victim) .] 3. The act was committed in the presence of (victim) . The words “lewd’ and “lascivious” mean the same thing and mean a wicked, lustful, unchaste, licentious, or sensual intent on the part of the person doing an act. “Sadomasochistic abuse” means flagellation or torture by or upon a person, or the condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction from inflicting harm on another or receiving such harm oneself. Note: Definition from § 827.071(d), Fla.Stat., Sexual Performance by a Child, and from § 847.001(13), Fla.Stat., regarding obscenity. “Sexual bestiality” means any sexual act between a person and an animal involving the sex organ of the one and the mouth, anus, or vagina of the other. Note: Definition from § 827.071(d), Fla.Stat., Sexual Performance by a Child, and from § 847.001(13), Fla.Stat., regarding obscenity. “Sexual activity” means the oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual activity does not include an act done for a bona fide medical purpose. “In the presence of” means that the victim saw, heard, or otherwise sensed that the act was taking place. Note: See State v. Werner , 609 So.2d 585 (Fla. 1992). This definition was used for the instruction for Lewd, Lascivious, Indecent Assault or Act Upon or in the Presence of Child; Sexual Battery § 800.04. Neither the victim’s lack of chastity nor the victim’s consent is a defense to the crime charged. The punishment provided by law for the crime of lewd or lascivious exhibition is greater depending on the age of the defendant. Therefore, if you find the defendant is guilty of lewd or lascivious exhibition, you must determine by your verdict whether at the time of the offense: a. The defendant was eighteen years of age or older. b. The defendant was under the age of eighteen years. LEWD OR LASCIVIOUS EXHIBITION (Over Computer Service) § 800.04(7)(b ), Fla.Stat. To prove the crime of lewd or lascivious exhibition, the State must prove the following four elements beyond a reasonable doubt: 1. (Victim) was under the age of sixteen years. 2. a. [ (Defendant) intentionally masturbated.] b. [ (Defendant) intentionally exposed [his] [her] genitals in a lewd or lascivious manner.] c. [ (Defendant) committed [a sexual act] [sadomasochistic abuse] [sexual bestiality] [simulation of any act involving sexual activity] that did not involve actual physical or sexual contact with (victim) .] 3. The act was committed live over a [computer on-line service] [internet service] [local bulletin board service]. 4. (Defendant) [knew] [should have known] [had reason to believe] that the transmission was viewed on a computer or television monitor by a victim in this state who was under the age of sixteen years. The words “lewd” and “lascivious” mean the same thing and mean a wicked, lustful, unchaste, licentious, or sensual intent on the part of the person doing an act. “Sadomasochistic abuse” means flagellation or torture by or upon a person, or the condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction from inflicting harm on another or receiving such harm oneself. Note: Definition from § 827.071(d), Fla.Stat., Sexual Performance by a Child, and from § 847.001(13), Fla.Stat., regarding obscenity. “Sexual bestiality” means any sexual act between a person and an animal involving the sex organ of the one and the mouth, anus, or vagina of the other. Note: Definition from § 827.071(d), Fla.Stat., Sexual Performance by a Child, and from § 847.001(13), Fla.Stat., regarding obscenity. “Sexual activity” means the oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual activity does not include an act done for a bona fide medical purpose. Neither the victim’s lack of chastity nor the victim’s consent is a defense to the crime charged. The fact that an undercover operative or law enforcement officer was involved in the detection and investigation of an offense is not a defense to the crime charged. The punishment provided by law for the crime of lewd or lascivious exhibition is greater depending on the age of the defendant. Therefore, if you find the defendant is guilty of lewd or lascivious exhibition, you must determine by your verdict whether at the time of the offense: a. The defendant was eighteen years of age or older. b. The defendant was under the age of eighteen years. Notice: Proposed civil jury instructions September 15, 2002 Noticescenter_img Notice: Proposed civil jury instructionslast_img

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