KENYA CROFT

v.

STATE OF FLORIDA

LAMBERT, J.

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. 1 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 1 As a result of this disposition, we find it unnecessary to address the second issue raised by Croft in this appeal. 2 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. 2 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 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 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, 3 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 3 Fla. Std. Jury Instr. (Crim.) 3.6(g). 4 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, 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 prosecutor’s argument, then, absent the nondeadly force instruction, Croft’s jury was left without the ability to fully evaluate his selfdefense 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 5 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, 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. 6