ERIC AZERZER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Eric Azerzer appeals his convictions for false imprisonment, falsely personating a federal law enforcement officer, and battery following a jury trial. The Florida Fifth District Court of Appeal affirms the false imprisonment and battery convictions but reverses the falsely personating conviction due to a fundamental error in jury instructions.
The court affirms the false imprisonment and battery convictions but reverses the falsely personating a law enforcement officer conviction because the jury instruction contained fundamental error. The instruction used 'or' instead of 'and', allowing the jury to convict based solely on 'acting like' a law enforcement officer without proving the defendant actually assumed or pretended to be one, which was the disputed factual element at trial.
[1] A jury instruction error is fundamental if it affects a disputed element of a crime and is pertinent or material to what the jury must consider in order to convict.
[2] A conviction for falsely personating a law enforcement officer may be reversed when the jury instructions incorrectly omit a required element of the offense.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A person who falsely assumes or pretends to be a ... federal law enforcement officer ... and takes upon himself or herself to act as such ... commits a felony of the third degree.”
The correct statutory language from section 843.08, Florida Statutes, requiring both 'falsely assumes or pretends' AND 'takes upon himself to act as such' as separate elements.
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Join FLexlaw to unlock all legal intelligenceAzerzer was charged with false imprisonment, falsely personating a federal law enforcement officer, and battery. A witness testified that Azerzer clai…
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Eric Azerzer appeals from his convictions and sentences following a jury trial on charges of false imprisonment, falsely personating a law enforcement officer, and battery.1 We affirm the false imprisonment and battery convictions,2 but reverse the falsely personating a law enforcement officer conviction based upon an error in the jury instructions as to this charge.
Under section 843.08, Florida Statutes (2010): “A person who falsely assumes or pretends to be a ... federal law enforcement officer ... and takes upon himself or herself to act as such ... commits a felony of the third degree.” (emphasis added). Without objection, the trial judge incorrectly instructed that the State had to prove that the defendant “falsely assumed or pretended to be a federal law enforcement officer or took it upon himself to act as such.” (emphasis added). This error was fundamental under Martinez v. State, 981 So.2d 449 (Fla.2008) (explaining that an error in jury instructions is fundamental if it affects a disputed element of a crime and “ ‘is pertinent or material to what the jury must consider in order to convict ...’”) (quoting State v. Delva, 575 So.2d 643, 645 (Fla.1991)). Here, Azerzer’s defense focused on the first element of what should have been a two-element crime. A witness testified that Azerzer claimed to be an FBI agent. Azerzer testified that he was a licensed bail bondsman who never claimed *1125to be an FBI agent — and argued that the witness must have misunderstood him or been confused. Based upon this dispute in the evidence, Azerzer argued that the State had not proven beyond a reasonable doubt that he assumed or pretended to be a federal law enforcement officer. Considering the erroneous instruction, however, the jury could have decided that it need not even resolve this factual dispute to return a verdict of guilty, since Azerzer was “acting” like a law enforcement officer when searching for a fugitive.
Accordingly, we reverse the conviction for falsely personating a law enforcement officer, and remand for further proceedings with respect to that charge only.
AFFIRMED IN PART, REVERSED IN PART and REMANDED.
SAWAYA, LAWSON and COHEN, JJ„ concur.
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Citator
Authorities Cited
- D'Angelo v. State, 575 So. 2d 643 (Fla. 1991)
- State v. Batraville Vincent Delva, 575 So. 2d 643 (Fla. 1991)
- Martinez v. State, 981 So. 2d 449 (Fla. 2008)