ROBERT D. DUNLAP, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Dunlap was convicted by jury of breaking and entering with intent to commit a felony after allegedly abducting a child from an apartment and committing a lewd and lascivious act. On appeal, he challenged the sufficiency of evidence and the trial judge's jury instructions on intent, but the appellate court affirmed the conviction.
The evidence was sufficient to support the jury's guilty verdict, and the trial judge's instructions on intent, while not using the exact language of the Standard Jury Instructions, were sufficiently clear and complied with the standards to avoid error.
[1] A jury's finding of guilt will not be disturbed on appeal if there is sufficient evidence, if believed by the jury, to support the verdict.
[2] A jury instruction is not erroneous if it sufficiently follows the substance of the standard jury instructions, even if it does not use the exact language prescribed.
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Join FLexlaw to unlock all legal intelligence“while we may not have decided as the jury did, we have concluded that there was sufficient evidence if believed by the jury to support a finding of guilty”
Court's standard for reviewing sufficiency of evidence claims on appeal; appellate court will not disturb jury verdict if evidence could support conviction
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Join FLexlaw to unlock all legal intelligenceDunlap was charged with breaking and entering the apartment of Benny McDaniel and abducting a seven-year-old child by removing her from the apartment …
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Appellant, Robert D. Dunlap, defendant in the trial court, was charged by way of information with the crime of breaking and entering with intent to commit a felony. Following a trial by jury, he was found guilty and sentenced to serve fifteen years in the state prison.
Appellant was charged with breaking and entering the apartment of Benny McDaniel and abducting a child seven years of age by way of removing her from the apartment and taking her to the woods where he allegedly committed a lewd and lascivious act against the child.
Appellant urges that the testimony and evidence were insufficient to convict him of the crime and that the Judge’s charge regarding intent was contrary to the Standard Jury Instructions as approved by the Supreme Court in criminal cases, also known as Florida Rules of Criminal Procedure 1.985, Standard Jury Instructions, 33 F.S.A.
We have studied the record and the witnesses’ testimony given at the trial, and while we may not have decided as the jury did, we have concluded that there was sufficient evidence if believed by the jury to support a finding of guilty. We, therefore, will not disturb the jury’s finding of guilty.
Regarding the second point, while the Judge did not follow the exact language contained in the Standard Jury Instructions and refused to give the instruction requested by the appellant, he did nevertheless give a very clear and lucid instruction as set forth below:
“It is a crime for any person to break and enter the dwelling house of another with intent to commit a felony. The essential elements of the crime charged, which must be proved beyond a reasonable doubt before there can be a conviction in this case, are that the defendant broke and entered a building, the building was occupied as a dwelling house by Mr. and Mrs. McDaniel, that at the time of so breaking and entering, the defendant had a fully formed conscious intent to commit the felony alleged in the information, that is to say, a lewd and lascivious act in the presence of a female child under the age of fourteen years; fourth, the breaking and entering is related to the intended felony.”
*294We believe that the Judge followed the Standard Jury Instructions sufficiently close to avoid error. For these reasons the judgment and sentence is affirmed.
MANN and McNULTY, JJ., concur.
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Fulton v. State, 352 So. 2d 581 (Fla. 3d DCA 1977)…sal of the trial court to give the standard jury charges was not reversible error in this case, where charges given by the court were sufficient under the law applicable to the case. Yost v. State, 243 So. 2d 469 (Fla.3rd DCA 1971); Dunlap v. State, 252 So. 2d 292 (Fla.2nd DCA 1971); White v. State, 324 So. 2d 115 (Fla.3rd DCA 1975). The imposition of separate sentences for the two offenses of which the defendant was convicted was proper. Estevez v. State, 313 So. 2d 692 (Fla.1975); Swyers v. State, 334 So. 2…
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Darnel C. Atkinson v. State, 378 So. 2d 324 (Fla. 3d DCA 1980)…r remaining in the premises the defendant had a fully formed conscious intent to commit the offense, as to Count I, assault or battery”. This instruction was adequate to cover the element of intent as concerns the crime charged. See Dunlap v. State, 252 So. 2d 292 (Fla. 2d DCA 1971); White v. State, 324 So. 2d 115 (Fla. 3d DCA 1975). In addition, Atkinson failed to object to the subject instruction although he was given several opportunities to do so and, therefore, he cannot raise this issue on appeal for th…
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Leverette v. State, 295 So. 2d 372 (Fla. 1st DCA 1974)…Sup.Ct.Fla.1970, 240 So. 2d 472) Our sister court of the Second District has held that it is not reversible error when the trial court gives an instruction “sufficiently close” to the standard jury instruction. (Dunlap v. State, Fla.App. (2d) 1971, 252 So. 2d 292) In State v. Bryan, supra, the Supreme Court said: “It is apparent that the Supreme Court’s approval of recommended committee instructions is not iron clad or carte blanche and must be applied in each instance as appropriate. “By this Court’s app…