APPENDIX B Committee on Standard Jury Instructions in Criminal Cases The Honorable Samantha L. Ward, Chair March 1, 2011

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1 APPENDIX B Committee on Standard Jury Instructions in Criminal Cases The Honorable Samantha L. Ward, Chair March 1, 2011

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10 IN THE SUPREME COURT OF FLORIDA IN RE: PROPOSED AMENDMENTS TO STANDARD CRIMINAL JURY INSTRUCTION 16.3 (CHILD ABUSE) COMMENT ON PROPOSED INSTRUCTION The Florida Public Defender Association (FPDA) offers the following comments on the amendment to Instruction 16.3 proposed by the Supreme Court Committee on Standard Jury Instructions in Criminal Cases and published in the June 15, 2010, Florida Bar News. The FPDA consists of the twenty elected public defenders, hundreds of assistant public defenders, and support staff. FPDA members representation of criminal defendants at all levels of the Florida court system gives them useful insight into jury instruction issues. The FPDA is concerned that the Committee s proposed revision, like the current standard instruction, gives jurors inadequate guidance on the statutory elements of intentional infliction of physical or mental injury or [a]n intentional act that could reasonably be expected to result in physical or mental injury under subsections (1)(a) and (b), Florida Statutes, in cases involving the affirmative defense of corporal discipline. In Raford v. State, 828 So. 2d 1012 (Fla. 2002), the Court ruled that parents may be convicted of a third-degree under section (1) for child abuse that /

11 does not result in great bodily harm, but that a parent may assert as an affirmative defense his or her parental right to administer reasonable or nonexcessive corporal punishment, i.e., a typical spanking, in a prosecution for simple child abuse. Id. at Applying Raford in Czapla v. State, 957 So. 2d 676 (Fla. 1st DCA 2007), the First District rejected an argument that the defendant s conduct was reasonable, and hence permissible corporal discipline by a parent, simply because the son did not sustain more than significant bruising or welts. Czapla did not show that he employed reasonable corporal discipline under the circumstances. Czapla's act in kicking his son while the son was laying on the ground was an intentional act that could reasonably be expected to result in physical or mental injury to the son, see section (1)[b], Florida Statutes, and was an act that was likely to result in physical injury to the son. See 39.01(30)(a)4. Thus, Czapla failed to establish the affirmative defense of reasonable parental corporal punishment. See also Julius v. State, 953 So.2d 33 (Fla. 2d DCA 2007). Because, given the form of discipline used, intentionally kicking a child who is lying on ground, Czapla's conduct was, as a matter of law, not reasonable corporal discipline, it is not necessary for us to consider whether there was harm actually sustained by the child. Id. at 680. In Julius, cited in Czapla, the Second District stated in dicta that using a wooden table leg with a protruding screw on the arms and legs of [the defendant s] children might well have been child abuse even if used as a legitimate form of discipline. 953 So. 2d at 35. In King v. State, 903 So. 2d 954 (Fla. 2d DCA 2005), the Second District stated that spankings that result in significant 2

12 bruises or welts do not rise to the level of felony child abuse, which requires more serious beatings that do not result in permanent disability or permanent disfigurement. Id. at 955 (quoting State v. McDonald, 785 So.2d 640, 646 (Fla. 2d DCA 2001), and 39.01, Fla. Stat. (1999)). The language in these decisions can provide guidance to jurors assessing whether a parent or guardian s corporal discipline was unreasonable in form or excessive in force. The Committee s proposal merely posits that a parent s imposition of reasonable physical discipline for misbehavior under the circumstances is not a crime, without assisting the jurors in defining what form or level of discipline is reasonable. Accordingly, the FPDA proposes as an alternative the following instruction, which uses the current standard instruction as a starting point. This proposal also infuses definitions of abuse, harm, physical injury, mental injury, and legal custody from Chapter 39, Florida Statutes, in accord with the court s recognition in DuFresne v. State, 826 So. 2d 272, (Fla. 2002), that the provisions of chapter 39 and section should be read in proper relation to one another and the use of the chapter 39 definition of mental injury in section (1). The Committee s proposal defines only mental injury. Finally, in place of the note to judge on the burden of persuasion proposed by the Committee, this proposal requires a jury finding beyond a reasonable doubt that the parental discipline 3

13 defense does not apply, comparable to language in the instructions on justifiable use of force of Florida Standard Jury Instructions 3.6(f) and (g), which require the jury to acquit if it has reasonable doubt whether the defendant was justified in using force CHILD ABUSE (1), Fla.Stat. To prove the crime of Child Abuse, the State must prove the following two elements beyond a reasonable doubt: 1. (Defendant), knowingly or willfully, Give as applicable. a. intentionally inflicted [physical][or] [mental] injury upon (victim). b. committed an intentional act that could reasonably be expected to result in [physical] [or] [mental] injury to (victim). c. actively encouraged another person to commit an act that resulted in or could reasonably have been expected to result in [physical] [or] [mental] injury to (victim). 2. (Victim) was under the age of 18 years. Give if applicable. An issue in this case is whether the defendant used reasonable, nonexcessive corporal discipline, or in other words, physical punishment. An act of corporal discipline by a [parent] [legal custodian] [person standing in the place of a parent] does not constitute child abuse unless other circumstances are present. If you find that the defendant was authorized to engage in corporal discipline at the time of the alleged offense, you must next assess whether the form of discipline used was reasonable or the level of force excessive. Corporal discipline is reasonable under the law if the form of discipline used 4

14 would not reasonably be expected to result in physical injury more severe than significant bruises or welts. If the form of corporal discipline was reasonable under this standard, the defendant s actions constitute child abuse only if the discipline, although reasonable in form, caused injury more severe than significant bruises or welts or other comparable injury. Give if violation of section (1) is charged. If you find beyond a reasonable doubt that the defendant s actions constituted an unreasonable form of corporal discipline, or that the level of force used in administering corporal discipline resulted in an injury more serious than significant bruises or welts or other comparable injury, then you should find the defendant guilty if all the elements of the charge have been proved beyond a reasonable doubt. Give if child abuse is a lesser offense of aggravated child abuse charged under section (2). If you find beyond a reasonable doubt that the corporal discipline resulted in an injury more serious than significant bruises or welts other comparable injury, but did not reach the level of injury necessary to prove aggravated child abuse, then you should find the defendant guilty if all the elements of the charge have been proved beyond a reasonable doubt. Definitions, give as applicable (2), Florida Statutes. Abuse means a willful act or threatened act that results in any physical, mental, or sexual injury or harm that causes or is likely to cause the child s physical, mental, or emotional health to be significantly impaired. Abuse of a child includes acts or omissions. [Corporal discipline of a child by a parent or legal custodian for disciplinary purposes does not in itself constitute abuse when it does not result in harm to the child.] 39.01(32), Florida Statutes. Harm means (insert specific allegation included from this subsection of the statute charged in the indictment or information) (56), Florida Statutes. Physical injury means death, permanent or temporary disfigurement, or impairment of any bodily part (42), Florida Statutes. 5

15 Mental injury means any injury to the intellectual or psychological capacity of a child as evidenced by a discernible and substantial impairment in the ability to function within the normal range of performance and behavior. Note to Judge. See 39.01(49), Florida Statutes if the defendant s status as a parent is at issue (35), Florida Statutes. (Give only when the guardian is not a parent). Legal custody means a legal status created by a court which vests in a custodian of the person or guardian, whether an agency or an individual, the right to have physical custody of the child and the right and duty to protect, nurture, guide, and discipline the child and to provide [him] [her] with food, shelter, education and ordinary medical, dental, psychiatric, and psychological care. Lesser Included Offenses CHILD ABUSE (1) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Contributing to the (1) 16.4 dependency of a minor Attempt (1) 5.1 Comment See Raford v. State, 828 So.2d 1012 (Fla. 2002), and Dufresne v. State, 826 So.2d 272 (Fla. (2002), for authority to incorporate definitions from Chapter 39, Florida Statutes. This instruction was adopted in 1981 and amended in 1985, 1989, and 2002, and

16 SIGNATURES OF ATTORNEY AND CERTIFICATE OF SERVICE We hereby that a copy of these comments were served by U.S. Mail Judge Lisa T. Munyon, Chair, Standard Jury Instructions Committee in Criminal Cases, c/o Les Garringer, General Counsel s Office, Office of the State Courts Administrator, 500 S. Duval Street, Tallahassee , this day of August, Respectfully submitted, NANCY A. DANIELS PUBLIC DEFENDER SECOND JUDICIAL CIRCUIT FLORIDA BAR NO GLEN P. GIFFORD ASSISTANT PUBLIC DEFENDER APPELLATE DIVISION CHIEF FLORIDA BAR NO LEON COUNTY COURTHOUSE 301 S. MONROE ST., SUITE 401 TALLAHASSEE, FLORIDA (850) FOR THE FLORIDA PUBLIC DEFENDER ASSOCIATION 7

17 November 22, 2010 Judge Lisa T. Munyon, Chair, Std. Jury Inst. Comm. In Criminal Cases c/o Bart Schneider, General Counsel s Office Office of the State Court Administrator 500 S. Duval St. Tallahassee, FL COMMENT ON 16.3 CHILD ABUSE Undersigned counsel recommends that the committee s proposal be changed as follows: The proposal quotes the definition of mental injury in 39.01(42). The proposal does not define what constitutes unreasonable physical discipline by a parent or a person who is acting as the lawful guardian. Section 39.01(32)(a)4 defines excessively harsh and inappropriate discipline that is likely to result in physical injury as defined by section Counsel submits that this definition of excessively harsh (i.e. unreasonable) discipline should be added to the proposal as follows: It is not a crime for [a parent] [a person who is acting as the lawful guardian] of a child to impose reasonable physical discipline on a child for misbehavior under the circumstances. Physical discipline is not reasonable when it results in any of the following injuries: a. sprains, dislocations or cartilage damage. b. bone or skull fractures. c. brain or spinal cord damage. d. intracranial hemorrhage or injury to other internal organs. e. asphyxiation, suffocation, or drowning. f. injury resulting from the use of a deadly weapon. g. burns or scalding. h. cuts, lacerations, punctures, or bites. i. permanent or temporary disfigurement. j. permanent or temporary loss or impairment of a body part or function. k. significant bruises or welts.

18 Counsel submits that this definition of unreasonable physical discipline needs to be in the instruction so that parents who inflict only welts or redness or slight bruising during corporal punishment are not convicted of felony child abuse. Without a definition of what constitutes unreasonable corporal discipline, the instruction essentially would lead the jury to convict for slight bruises, welts, or redness because these are physical injuries. Without any definition of unreasonable discipline, the jury instruction, as proposed, leads to the logical conclusion that physical discipline that results in only welts, redness, or slight bruising is not reasonable physical discipline because there is physical injury and the defendant is guilty if there is physical injury according to part one of the instruction. The committee s proposal would allow the prosecutor to make the following closing argument pertaining to the jury instruction: In this case you saw the photograph of the welt that was left on the victim s buttocks and which was admittedly caused by the defendant spanking his son with his hand. This photograph was taken 10 minutes after the spanking. This welt is a physical injury and physical injury is all that is required for conviction under the instruction from the judge. The reasonable physical discipline defense asserted by the defendant does not apply to the facts of this case because there is physical injury to the victim the welt on the buttocks. By the terms of the Court s instruction on the law, there can be no reasonable physical discipline defense when the discipline results in physical injury such as a welt to the victim. Under the Court s jury instructions, the reasonable physical discipline defense is only a legitimate defense if the discipline does not result in any physical harm. Because part one of the jury instruction instructs you that the defendant committed the crime if he inflicted physical injury, the reasonable physical discipline defense necessarily means that physical discipline is only reasonable and a defense to the crime when no physical injury results. The proposal essentially requires conviction even when the physical injury is as slight as the temporary welt that results from a spanking with the bare hand. To avoid this preposterous result, the proposal should be changed to include a definition of what constitutes unreasonable, excessive corporal discipline. If the committee decides against amending the proposal as recommended above, then counsel submits that the following language should be added: It is not a crime for [a parent] [a person who is acting as the lawful guardian] of a child to impose reasonable physical discipline on a child for misbehavior under the circumstances even though physical injury results from the discipline. 2

19 CERTIFICATE OF SERVICE I certify that a true copy of the foregoing was sent by U.S. mail delivery to Judge Lisa T. Munyon, Chair, Standard Jury Instructions in Criminal Cases, c/o Bart Scheider, General Counsel s Office, Office of the State Court Administrator, 500 S. Duval St., Tallahassee, FL , this day of November, R. Blaise Trettis Executive Assistant Public Defender Fla. Bar No Judge Fran Jamieson Way Building E Viera, FL