Croft v. State, 2020 Fla. App. LEXIS 4055 (FL Ct. App. 5th 2020)
Court of Appeal of Florida, Fifth District
March 27, 2020, Opinion Filed
The Defendant was helping his sister move out of her boyfriend’s apartment. Initially the boyfriend was assisting in the move, but then the two men got into a dispute about how to dismantle a bed. The boyfriend would end up with a cut on his finger requiring some stitches, and the sister would suffer a similar injury when she stepped between the men to stop the fight.
Prosecutors would argue that the Defendant used a knife as a deadly weapon to cause great bodily harm to the boyfriend and sister, and charged him with two counts of aggravated battey.
The Defendant would argue self-defense at trial with respect to the aggravated battery charge based on the injury to the boyfriend, saying that it was the boyfriend who was the initial aggressor, striking the Defendant and causing a cut to his forehead. The Defendant also argued that he’d used a screwdriver to defend himself, not a knife.
The Defendant’s claim of self-defense with respect to the boyfriend would also, if successful relieve him of the aggravated battery charge based on the injury to his sister. If a use of force is justified as self-defense against an intended target of that force, it is also a defense to a criminal charge based on the unintentional harm caused to an innocent bystander.
In short, the force was justified for criminal liability purposes, period. Note, however, that this justification with respect to the unintended victim would not apply if the force was used in a negligent or reckless manner. Reckless conduct cannot be justified as self-defense, because reckless conduct is by definition not the conduct of a reasonable person, and thus it fails the self-defense element of Reasonableness.
The Defendant requested jury instructions on both deadly force self-defense and non-deadly force self-defense. You’ll recall that the threshold for each, the conditions that must exist to justify each, is different. In order for deadly force self-defense to be justified the Defendant must have been facing a deadly force threat. In order for non-deadly self-defense to be justified, however, the Defendant must have been facing any unlawful threat of harm, however slight.
The trial judge did instruct the jury on deadly force self-defense, requiring that the Defendant faced a deadly force threat, but refused to instruct the jury on non-deadly force self-defense. In effect the judge made the call that the Defendant’s defensive force was deadly force as a matter of law, removing from the jury the ability to conclude that the Defendant’s use of force may have been only non-deadly in nature.
At closing the prosecution argued vigorously that the Defendant should be denied self-defense by the jury because the evidence did not support the view that the Defendant was facing a deadly force threat from the boyfriend.
The jury apparently agreed with this argument. They rejected the Defendant’s claim of self-defense and found the Defendant guilty of both counts of aggravated battery.
The Defendant appeals his convictions on the grounds that the trial court committed reversible error when it refused to instruct the jury on non-deadly self-defense. Had they been so instructed the jury might have found that although the Defendant was not facing a deadly force threat he was facing a non-deadly force threat, and thus was justified in using non-deadly force in self-defense.
By instructing the jury only on deadly force self-defense the trial judge removed the jury’s ability to decide that the Defendant’s use of force was non-deadly in nature, and thus made it impossible for the jury to acquit him on the basis of non-deadly self-defense.
The appellate court noted that there are circumstances in which it is appropriate for a trial judge to instruct the jury on only deadly force self-defense and not non-deadly, or alternatively on only non-deadly self-defense and not deadly. In particular, where the defensive force involved is unambiguously either deadly or non-deadly in nature, then only the relevant jury instruction should be given, to avoid confusion.
In this case, however, whether the Defendant’s use of force was deadly or non-deadly was somewhat ambiguous. The prosecution claimed the Defendant used a knife as a deadly weapon, but the Defendant claimed he used a screwdriver as a defensive weapon of opportunity once attacked. Similarly, the injuries to the boyfriend and victim—relatively small cuts requiring a few stitches—could reasonably be argued as constituted either great bodily harm, or some lesser degree of harm.
In the light of such ambiguity of the facts, it is the role of the jury rather than the trial judge to resolve those factual ambiguities. Thus it should have been left to the jury to decide whether the Defendant’s force was deadly or non-deadly in nature, and the jury should have been instructed on both deadly force self-defense and non-deadly force self-defense.
Had the jury been instructed on non-deadly force self-defense, they might have concluded that the Defendant met that much lower threshold of having been faced with any bodily harm, and acquitted with respect to the aggravated battery charge based on the injury to the boyfriend. Thus had this instructional error not been made the verdict might well have been one for acquittal rather than guilt with respect to that aggravated battery charge.
The failure to instruct on non-deadly self-defense also impacted the verdict in the case of the aggravated battery charge based on the injury to the sister. If one is justified under self-defense in causing injury to an attacker, and thus free from criminal liability for that intentional injury to the attacker, one is also excused from injury caused to an innocent bystander, and thus free form criminal liability for that unintentional injury to the bystander.
Had the jury accepted the non-deadly force self-defense justification with respect to the aggravated battery charge based on the intentional injury to the boyfriend, that would necessarily also have cleared the Defendant of the aggravated battery charge based on the unintentional injury to the sister, and the Defendant would have been acquitted of all charges.
The court of appeals concludes that the failure of the trial judge to instruct the jury on non-deadly force self-defense was reversible error with respect to both aggravated battery convictions, reverses both, and remands the case back to the trial court for a new trial.
Does that mean that the Defendant will actually be retried in a new trial? That’s entirely at the discretion of the prosecutor. The prosecutor could well decide that he doesn’t have a good chance of winning the case if the jury is going to be instructed on both deadly force and non-deadly force self-defense, as will now be required, and could simply decide to not proceed with a new trial.
How would we know whether that was the ultimate outcome? Well, we wouldn’t, unless we were personally involved in the case or read the local papers. Certainly, we won’t know from the appellate court records unless the Defendant is, in fact, re-tried, convicted, and appeals again. Otherwise the Defendant will have no further records in the appellate courts and will effectively have disappeared from our view.
Case No. 5D19-2266
2020 Fla. App. LEXIS 4055
KENYA CROFT, Appellant, v. STATE OF FLORIDA, Appellee.
James S. Purdy, Public Defender, and Joseph Chloupek, Assistant Public Defender, Daytona Beach, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Appellee.
Judges: LAMBERT, J. COHEN and EISNAUGLE, JJ., concur.
Opinion by: LAMBERT
Kenya Croft was convicted after trial of two counts of aggravated battery with a deadly weapon or causing great bodily harm. Croft raises two issues for reversal in this direct appeal, one of which we find to be dispositive. Concluding that the trial court erred in denying Croft’s request that the jury be instructed on the justifiable use of non-deadly force, we reverse the judgment and sentences and remand for a new trial. 
The altercation that ultimately led to Croft’s convictions occurred at the apartment where his sister, Zhane McCarthy, lived. Croft was helping her move furniture and some of her personal belongings from the apartment. McCarthy’s boyfriend, Ramon Burgos, was also present to assist with the move.
Croft and Burgos got into a disagreement as to how to disassemble a bedframe. While their testimony at trial differed as to the origin and chronology of their dispute, both Croft and Burgos acknowledged that it became physical. Croft testified that Burgos attacked him first by striking him in the head, resulting in a cut to his forehead. Croft further testified that he defended himself from Burgos by using a screwdriver he had in his possession at the time. Burgos testified that Croft was the aggressor and that he sustained wounds to his finger and to his side or abdomen when Croft cut or stabbed him with a knife. Burgos received a stitch on his finger, but did not require stitches for his other injury. As to McCarthy, she was injured when she got between the two men in an effort to break up the confrontation. McCarthy testified that she did not see Croft with a knife, but, nevertheless, was cut on her hand or arm requiring three stitches.
Croft’s position at trial was that he had acted in self-defense. During the charge conference, the trial court indicated that it intended to instruct the jury with Florida Standard Jury Instruction in Criminal Cases 3.6(f) regarding the justifiable use of deadly force. Croft’s trial counsel requested that the court instruct the jury with Florida Standard Jury Instruction 3.6(g) pertaining to the justifiable use of non-deadly force. Counsel argued that while the State had presented evidence of a stabbing, there was no evidence that either Burgos or McCarthy had suffered extensive or internal injuries or had been at risk of death or great bodily harm from the altercation.  The court denied Croft’s request for the non-deadly force instruction, but observed that counsel could “certainly argue nondeadly force [to the jury].”
A trial court’s decision to give or withhold a proposed jury instruction is reviewed for an abuse of discretion. Davis v. State, 922 So. 2d 438, 444 (Fla. 5th DCA 2006) (citing Worley v. State, 848 So. 2d 491, 492 (Fla. 5th DCA 2003)). This discretion, however, is narrower in a criminal proceeding “because a criminal defendant is entitled to have the jury instructed on his or her theory of defense if there is any evidence to support the theory and the theory is recognized as valid under Florida law.” Vila v. State, 74 So. 3d 1110, 1112 (Fla. 5th DCA 2011) (citing Cruz v. State, 971 So. 2d 178, 181-82 (Fla. 5th DCA 2007)). For the following reasons, the trial court abused its discretion in not giving the requested non-deadly force jury instruction on Croft’s claim of self-defense.
When the type of force used by a defendant is clearly deadly or non-deadly as a matter of law, only the applicable instruction should be given. Brown v. State, 113 So. 3d 103, 104 (Fla. 5th DCA 2013) (quoting DeLuge v. State, 710 So. 2d 83, 84 (Fla. 5th DCA 1998)). However, where there is any evidence presented at trial that supports an instruction on either deadly or non-deadly force, it is error not to give it. Id. (citing Curington v. State, 704 So. 2d 1137, 1140 (Fla. 5th DCA 1998)). In deciding the instruction to be given, the trial court’s focus is on the nature of the force used by the defendant. DeLuge, 710 So. 2d at 84 (citing Garramone v. State, 636 So. 2d 869, 871 (Fla. 4th DCA 1994)).
Deadly force used in self-defense occurs “where the natural, probable, and foreseeable consequences of the defendant’s acts are death.” Copeland v. State, 277 So. 3d 1137, 1140 (Fla. 5th DCA 2019) (quoting Cruz, 971 So. 2d at 182). Deadly force may be used in self-defense if, under the circumstances, it appears to be reasonably necessary to prevent imminent death or great bodily harm or the commission of a forcible felony. DeLuge, 710 So. 2d at 84 (citing § 776.012, Fla. Stat. (1995)). In contrast, a defendant is justified in using non-deadly force, which is force not likely to cause death or great bodily harm,  to the extent reasonably necessary to defend oneself against the imminent use of unlawful force. Id. (citing § 776.012, Fla. Stat. (1995)). Thus, a defendant’s use of deadly force is justifiable in much narrower circumstances than the use of non-deadly force. Copeland, 277 So. 3d at 1141.
By rejecting Croft’s request for the non-deadly force jury instruction and concluding that only the deadly force instruction would be given, the trial court necessarily determined that, as a matter of law, the force used by Croft that resulted in McCarthy receiving three stitches to her hand or arm and Burgos having one stitch to his finger, was deadly. See Brown, 113 So. 3d at 104. Even assuming that Croft used a knife when he stabbed or cut Burgos and McCarthy, this would not summarily equate to the use of deadly force as a matter of law. See Copeland, 277 So. 3d at 1140 (citing DeLuge, 710 So. 2d at 84 (recognizing that even a deadly weapon, such as a knife, can be used without deadly force)). Under the evidence presented at trial, including the nature and location of the victims’ injuries, whether the extent of the force used by Croft was deadly or non-deadly was a question of fact for the jury to decide. Accordingly, it was reversible error for the trial court not to have given the standard jury instruction on non-deadly force. See Brown, 113 So. 3d at 104 (holding that a trial court errs in failing to give the non-deadly force instruction where any evidence presented at trial supports it); Radler v. State, 2020 Fla. App. LEXIS 1752, *7, 45 Fla. L. Weekly D336, 337 (Fla. 4th DCA Feb. 12, 2020) (“Failure to give a standard jury instruction is reversible error when the omitted standard jury instruction goes to the heart of the defendant’s case.” (quoting Hosnedl v. State, 126 So. 3d 400, 403 (Fla. 4th DCA 2013))).
We reject the State’s argument that the failure to give the non-deadly force instruction was harmless error. During his rebuttal closing argument, the prosecutor told the jury that under the facts of the case, the deadly force jury instruction did not support Croft’s self-defense claim because there was no evidence that Croft had been placed in imminent danger of death or great bodily harm by Burgos to justify the use of deadly force, or that such force was necessary to prevent Burgos from committing a forcible felony against Croft.
Assuming that the jury accepted the prosecutors argument, then, absent the non-deadly force instruction, Croft’s jury was left without the ability to fully evaluate his self-defense claim. Because it was not provided with the definition of non-deadly force, the jury could not assess whether, instead of deadly force, Croft had used non-deadly force against Burgos that day and, if so, whether Croft’s use of non-deadly force was justified to prevent Burgos’s alleged use of imminent force against him. The prejudice to Croft is further evidenced by the verdicts rendered finding Croft guilty of aggravated battery, but not differentiating as to whether the convictions were based solely on the use of a deadly weapon or because the force used by Croft caused great bodily harm. See DeLuge, 710 So. 2d at 85 (holding that the trial court erred in not giving the jury the opportunity to determine whether the defendant used non-deadly force as the defendant’s conviction for aggravated battery may have been based only on the use of a deadly weapon).
Finally, the trial court’s denial of Croft’s request for the non-deadly force instruction also prejudiced him regarding the charge involving McCarthy, who clearly was not an intended victim. ‘Where self-defense is a viable defense to the charge of battery on an intended victim, the defense also operates to excuse the battery on the unintended victim.” V.M. v. State, 766 So. 2d 280, 281 (Fla. 4th DCA 2000) (citing Pinder v. State, 27 Fla. 370, 8 So. 837, 841 (Fla. 1891); Battles v. State, 498 So. 2d 1028, 1030 (Fla. 1st DCA 1986)). Furthermore, “where there is evidence indicating that the accidental infliction of an injury and the defense of self defense . . . are so intertwined that the jury could reasonably find that the accident resulted from the justifiable use of force, an instruction on self defense . . . is not logically precluded.” Williams v. State, 588 So. 2d 44, 45 (Fla. 1st DCA 1991).
Accordingly, we reverse the judgment and sentences and remand for a new trial.
REVERSED and REMANDED.
COHEN and EISNAUGLE, JJ., concur.
1. As a result of this disposition, we find it unnecessary to address the second issue raised by Croft in this appeal.
2. The State conceded that Croft’s sister did not suffer great bodily harm, but argued that the scar that she received from the incident caused her to have permanent disfigurement.
3. Fla. Std. Jury Instr. (Crim.) 3.6(g).