Opinion
No. 97-3802.
Opinion filed November 10, 1999.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; M. Daniel Futch, Jr., Judge; L.T. Case No. 96-14582CF10A.
Richard L. Jorandby, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Sarah B. Mayer, Assistant Attorney General, West Palm Beach, for appellee.
ON MOTION FOR REHEARING
In its motion for rehearing, the state calls our attention to a matter that was omitted from its answer brief and was not addressed in our original opinion:
[T]he term "circumstantial evidence", without any further definition, appears in several standard criminal jury instructions. The standard instructions on `Accessory After the Fact', `Burglary', `Use or Possession of Drug Paraphernalia', `Delivery, Possession with Intent to Deliver, or Manufacture with the Intent to Deliver Drug Paraphernalia', and `Delivery of Drug Paraphernalia to a Minor', all provide that the intent element of those offenses may be established by circumstantial evidence, yet none of those instructions defines or otherwise explains circumstantial evidence. Fla. Std. Jury Instr. (Crim.) [73, 196, 321, 327, 332].
We distinguish the charge given in this case from the standard jury instructions cited by the state. In this case, the court merged the charge on aggravated assault with a firearm with the charge on the lesser included offense of aggravated assault with a deadly weapon. As a result, the charge was confusing as read. One interpretation of it was that the state had to prove beyond a reasonable doubt that the defendant used a deadly weapon, but that it only had to prove the use of a firearm by some lesser standard. The possibility of error was magnified by the court's direct reference to the evidence at trial, where the state did not introduce a firearm into evidence.
The standard jury instructions cited by the state use the term "circumstantial evidence" in a narrower context unlikely to dilute the reasonable doubt standard. First, the term is used in that portion of the instructions pertaining to intent, which is not an observable fact, but a state of mind which must be inferred from other facts. This use contrasts with that in this case, where the use of a firearm is an act which will typically be established by direct evidence, with little need to resort to inferences.
Second, the standard jury instructions counterpoise the term "circumstantial evidence" with the concept of "direct evidence." For example, the standard instruction on burglary states:
The intent with which an act is done is an operation of the mind and, therefore, is not always capable of direct and positive proof. It may be established by circumstantial evidence like any other fact in the case.
Fla. Std. Jury Instr. (Crim.) [196]. (Emphasis supplied).
In this context, the term is properly understood to mean "indirect" evidence, a concept not foreign to a jury and one which does not impact the burden of proof by suggesting a lesser standard or quality of evidence. Read in conjunction with those portions of the instructions that intent is an element of a crime that must be proven beyond a reasonable doubt, there is little risk that the standard instructions will diminish the state's burden of proof.
The state's motion for rehearing is denied.
GUNTHER and HAZOURI, JJ., concur.