Jury instructions on an uncharged theory of liability and getting toasted

Jury instructions on an uncharged theory of liability or. . .what do you mean I had to charge a defendant with that before the jury could be instructed on it? 12-7-08

Jury instructions need to be carefully reviewed against the complaint/charging document and the answer/defense document. If a jury is instructed on uncharged theories of liability, that is a productive source of error. Where an offense can be committed in more than one way, a trial court commits error when it instructs the jury on an alternative theory not charged in the information. See, e.g., Vega v. State, 900 So. 2d 572, 573 (Fla. 2d DCA 2004), disapproved in part by State v. Weaver, 957 So. 2d 586 (Fla. 2007); Hodges v. State, 878 So. 2d 401, 402 (Fla. 4th DCA) (reversed and remanded for new trial on kidnapping charge because instructions allowed the jury to find defendant guilty of kidnapping if it found that he committed an act not charged in the information. Although the State demonstrated that defense counsel did not object to the reading of this instruction, the error was fundamental. Since appellate counsel was ineffective on the kidnapping conviction, that conviction was reversed and a new trial was ordered.), rev. denied, 890 So. 2d 1114 (Fla. 2004); Griffis v. State, 848 So. 2d 422, 427 (Fla. 1st DCA 2003) (similar); Dixon v. State, 823 So. 2d 792, 794 (Fla. 2d DCA 2001), disapproved in part by Weaver, 957 So. 2d 586; Braggs v. State, 789 So. 2d 1151, 1153-54 (Fla. 3d DCA 2001) (similar); Taylor v. State, 760 So. 2d 298, 299 (Fla. 4th DCA 2000) (similar); O'Bryan v. State, 692 So. 2d 290, 290-91 (Fla. 1st DCA 1997) (similar).

In State v. Weaver, 957 So. 2d 586, 587-88 (Fla. 2007), the Florida Supreme Court abrogated in part the rules enunciated in Vega and Dixon, wherein the Second District held that the defendants, charged by information only with intentionally touching a law enforcement officer, were entitled to a new trial because the trial court's erroneous instruction on both the intentional touching and bodily harm forms of BOLE constituted fundamental error. Weaver, instead approved the rule in Reed v. State, 837 So. 2d 366, 370 (Fla. 2002) (quoting State v. Delva, 575 So. 2d 643, 644 (Fla. 1991)), that jury instructions are "subject to the contemporaneous objection rule, and absent an objection at trial, can be raised on appeal only if fundamental error occurred." Citing Delva, the Weaver Supreme Court articulated the proper standard for determining whether a defective jury instruction rises to the level of fundamental error as being "fundamental error. . .only when the omission is pertinent or material to what the jury must consider in order to convict."
In Delva. . .‘[w]e expressly recognized a distinction regarding fundamental error between a disputed element of a crime and an element of a crime about which there is no dispute in the case.’ We held that the defective instruction could only constitute fundamental error if the malice issue was disputed at trial: ‘[F]undamental error occurred in the present case if the inaccurately defined term 'maliciously' was a disputed element in the trial of this case.’ We overturned the defendant's conviction because the record demonstrated that the malice element was disputed at trial, and therefore fundamental error occurred when the trial court instructed the jury using the erroneous definition for ‘maliciously.’

Weaver, 957 So. 2d at 587-89, citing Reed, 837 So. 2d at 369; see also Battle v. State, 911 So. 2d 85, 89 (2005) (similar); Garcia v. State, 901 So. 2d 788, 794 (Fla. 2005) (similar). In Debose v. State, 920 So. 2d 169 (Fla. 1st DCA 2006), for example, the First District Court of Appeal reiterated the general rule that, where an offense can be committed in more than one way, fundamental error occurs when the jury is instructed on an alternate theory not charged in the information and returns a general verdict of guilt without specifying the basis for the conviction. Such an error is deemed fundamental in nature because under a general verdict, it is in most cases "impossible to determine whether [the defendant] was convicted of a charged or uncharged offense." Debose, 920 So. 2d at 170; see also Eaton v. State, 908 So. 2d 1164, 1165 (Fla. 1st DCA 2005) ("[s]ince the jury returned a general verdict of guilty. . .it is impossible to determine whether appellant was convicted of a charged or an uncharged offense"); Hodges, 878 So. 2d at 402; Griffis, 848 So. 2d at 427; Dixon, 823 So. 2d at 794; Braggs, 789 So. 2d at 1153-54; Taylor, 760 So. 2d at 299; O'Bryan, 692 So. 2d at 290-91.

In Sanders v. State, 959 So. 2d 1232 (Fla. 2d DCA 2007), the Second District further explained the Florida Supreme Court’s Weaver rule of non-reversal for erroneous jury instructions as limited to those cases where there was neither evidence of nor argument on the uncharged theory of the offense, and it was not impossible to know whether the defendant was convicted of the charged theory of the offense or the uncharged theory:
In Weaver,. . .[t]he supreme court left intact, however, the rule enunciated in Vega and Dixon that it is fundamental error to instruct the jury on an uncharged alternate theory of a particular offense when it is impossible to ascertain whether the jury convicted the defendant of the uncharged theory rather than the charged theory.

Sanders, 959 So. 2d at 1233-34, citing Weaver, 957 So. 2d at 587-88. In Sanders, that defendant was charged with the "deadly weapon" theory of aggravated battery but the jury was also instructed on the uncharged "great bodily harm, permanent disability, or permanent disfigurement" theory of aggravated battery. Sanders, 959 So. 2d at 1233-34.

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