       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                           RENE ST. PIERRE,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D16-1669

                          [September 27, 2017]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Dennis D. Bailey, Judge; L.T. Case No. 12-12960CF10A.

  Jason T. Forman of the Law Offices of Jason T. Forman, P.A., Fort
Lauderdale, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R.
Napodano, Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

    Rene St. Pierre appeals his convictions and sentences for burglary and
misdemeanor battery. He argues that the trial judge erred in failing to give
the jury a self-defense instruction for the burglary offense. He also argues
that his attorney was ineffective on the face of the record for failing to
object to the justifiable use of force instruction given for battery and for
failing to object to police opinion evidence. We affirm, without comment,
appellant’s ineffective assistance of counsel claims, but we reverse and
remand for a new trial on the jury instruction issue.

   Appellant and the named victim of the burglary and battery charges
were neighbors in a four-unit duplex. One night in September 2012, they
got into a scuffle after their dogs fought in their shared backyard area.

   At trial, there were different accounts of what happened. The neighbor
testified that he was trying to get his dog back inside his apartment when
appellant came up behind him and knocked him to the floor. He said
appellant then stepped inside his apartment and hit him several more
times. He was not able to defend himself because appellant had left by the
time he was able to stand up.

   Appellant’s girlfriend testified that she was cooking in the kitchen and
appellant was grilling in the backyard when the dog fight began. She ran
outside to see the neighbor kicking appellant’s dog. Appellant approached
the neighbor, who was standing on the stoop of his apartment. The
neighbor kicked appellant in the chest, causing the food appellant was
carrying to fly out of appellant’s hand. The girlfriend turned to put the dog
inside, looked back up, and saw appellant and the neighbor fighting inside
the neighbor’s apartment.

    Appellant did not testify, but the jury watched his taped interview with
the police. During the interview, appellant told police that after the
neighbor hit him, he hit the neighbor to defend himself. Before the
encounter, appellant had seen the neighbor kick his dog and push his
girlfriend. He was at the neighbor’s doorway when the neighbor kicked
him, which prompted him to defend himself. Appellant said that at some
point, while defending himself, he may have ended up inside the neighbor’s
apartment. Appellant had the following two exchanges with the police
detective on this issue:

      Detective: Yeah, like what I’m saying is, like, what were you
      doing inside the guy’s house?
      Appellant: What was I doing? I didn’t go inside the guy’s
      house.
      Detective: So how did you end up inside the house then?
      Appellant: I don’t know. This all happened right -- this all
      happened right out -- I was cooking a steak. I wasn’t involved
      with this whole thing. I don’t even f****** know. I am so
      confused right now. All I did was tell the truth and now I’m
      sitting here.

                                    ....

      Detective: What I’m saying is how did you end up inside the
      guy’s house?
      Appellant: I don’t know. I can’t tell you. It all happened right
      there.
      Detective: Right there where?
      Appellant: Right in the doorway of his house. It’s not like I
      ran into his house or anything. I don’t know what -- I don’t
      know what, do you know what I mean, entering his house?
      It’s not like I chased him into his house. It all happened.
      That’s why I don’t understand what you guys are talking

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      about because it all happened right there in the doorway.
      Detective: Right in the doorway?
      Appellant: Yes.
      Detective: What I’m saying is it may have started out there in
      the doorway --
      Appellant: Well, it started outside.
      Detective: Right.
      Appellant: And then it led back in there. And then when I
      came over, that’s when I got kicked. I mean, I don’t know. I
      wasn’t expecting to get kicked, you know, and I was just bold
      kicked and then I remember like a little girl like this
      (demonstrating). And then I defended myself. That’s all --
      that’s all that I can -- that’s all that I know.

   After the incident, appellant was charged by information with burglary
of a dwelling (Count I) and misdemeanor battery (Count II). During the
charge conference, his attorney requested that the trial court instruct the
jury on self-defense as to both the burglary and battery counts.
Appellant’s attorney argued that the burglary offense was tied to the
battery offense, such that if the jury found appellant not guilty of battery,
then his entrance into the neighbor’s house would not be unlawful
because he was defending himself and happened to cross the neighbor’s
threshold during the course of his defense. Appellant’s attorney proposed
the following special instruction:

      In the event that you find the Defendant did not commit the
      offense of battery because he was entitled to the justifiable use
      of non-deadly force, then any entry or remaining upon the
      property of [the neighbor] by the Defendant in the course of
      defending himself would not be considered unlawful.

   The trial court declined to give the requested instruction, noting that it
was not a correct statement of the law to instruct the jury that if it
acquitted appellant on the battery charge, then it was required also to
acquit on the burglary charge. Further, the court found that self-defense
was not an available defense for the burglary offense because appellant
did not have a right to pursue the mutual combat into the neighbor’s
apartment.

    Defense counsel disagreed with the trial court’s ruling that self-defense
was not a defense to burglary, but offered to modify the language of the
requested special instruction. The trial court essentially replied that it had
“already ruled.”


                                      3
    Ultimately, the trial court gave the standard self-defense instruction as
to the battery offense, stating that “[i]f the Defendant was not engaged in
an unlawful activity . . . he had no duty to retreat and had the right to
stand his ground and meet force with force, including deadly force, if he
reasonably believed that it was necessary to do so to prevent death or great
bodily harm . . . .” However, the court refused to give a self-defense
instruction on the burglary offense. The jury rejected appellant’s self-
defense claim on the battery charge and found appellant guilty on both
counts as charged in the information. The court adjudicated appellant
and sentenced him to 21.15 months in prison on the burglary charge and
to time served on the battery charge.

   On appeal, appellant argues that the trial court erred in refusing to
instruct the jury on self-defense for the burglary charge, as well as the
battery charge. Appellant contends that the charges were based on the
same acts and, thus, were dependent on each other. We agree.

   A trial court’s decision to give a requested jury instruction is generally
reviewed for an abuse of discretion. Charles v. State, 945 So. 2d 579, 582
(Fla. 4th DCA 2006). The trial court’s discretion in criminal cases “is
rather narrow 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 this theory,” Davis v. State, 922 So. 2d 438, 444 (Fla. 5th DCA
2006), “no matter how weak or flimsy.” See Gregory v. State, 937 So. 2d
180, 182 (Fla. 4th DCA 2006). “The trial court should not weigh the
evidence for the purpose of determining whether the instruction is
appropriate.” Id. (quoting Garramone v. State, 636 So. 2d 869, 870 (Fla.
4th DCA 1994)); see also Calkins v. State, 170 So. 3d 888, 890 (Fla. 4th
DCA 2015) (finding error in the court’s decision that the evidence did not
support a self-defense instruction). For a defendant to be entitled to a
special jury instruction, one element the defendant must prove is that “the
special instruction was a correct statement of the law and not misleading
or confusing.” Stephens v. State, 787 So. 2d 747, 756 (Fla. 2001).

    Here, we find that the trial court committed reversible error by ruling
that self-defense was not an available defense for the burglary charge
under the circumstances of this case. We need not decide whether the
trial court properly refused to give the requested special instruction as
written. Defense counsel requested a self-defense instruction on the
burglary charge, defense counsel was not tied to the wording of the
proposed special instruction, and the trial court made it clear that the
court would deny any self-defense instruction as to the burglary charge
because the court believed self-defense could not apply to a burglary
offense. At a minimum, the trial court should have given the standard

                                     4
self-defense instruction for both the battery and the burglary charges,
rather than just for the battery charge, where appellant’s theory of defense
was that his possible entry into his neighbor’s apartment was not to start
a fight but was necessitated by his need to defend himself from an attack
that had begun outside and continued unabated inside. See Pitts v. State,
989 So. 2d 27, 30 (Fla. 2d DCA 2008) (failure to provide a self-defense
instruction was error where defendant was charged with burglary with
assault or battery and argued that his entry into the truck and battery
were necessitated by self-defense because, while defending himself, he lost
his balance and reached into the truck to grab the driver’s shirt); see also
Gregory, 937 So. 2d at 182 (failure to provide self-defense instruction was
error where defendant was charged with burglary with battery and there
was testimony that the victim first pushed the defendant, who pushed
back and ended up inside the victim’s apartment after a shoving match).
Whether appellant’s version of the events was credible or not was a
question for the jury to decide.

   In Garramone, we explained:

      It is not the quantum or the quality of the proof as to self-
      defense that determines the requirement for giving the charge.
      If any evidence of a substantial character is adduced . . . the
      element of self-defense becomes an issue, and the jury, as the
      trier of the facts, should be duly charged as to the law thereon,
      because it is the jury's function to determine that issue.

636 So. 2d at 870 (citing Kiernan v. State, 613 So. 2d 1362, 1364 (Fla. 4th
DCA 1993) (quoting Kilgore v. State, 271 So. 2d 148, 152 (Fla. 2d DCA
1972)).

    Although the state did not charge appellant with burglary with a
battery, the facts of this case—or, at the least, appellant’s theory of the
case—suggest that the two charged offenses are so inextricably intertwined
that they result in the functional equivalent of a single charge, such that
Pitts and Gregory would be directly on point. The trial court does not weigh
the evidence in determining whether the instruction is appropriate. See
Gregory, 937 So. 2d at 182; Calkins, 170 So. 3d at 890.

   Much like the defendants in Pitts and Gregory, appellant presented
evidence indicating that the burglary and the battery were part of the same
action. See Pitts, 989 So. 2d at 31 n.3 (distinguishing Pitts’ case from
cases in which the burglary and battery are not a part of the same
transaction). In short, appellant argued that he committed the battery in
self-defense and was then required, in self-defense, to continue the battery

                                     5
inside the neighbor’s apartment. See Gregory, 937 So. 2d at 182–83
(finding that evidence that the defendant was first struck and that he
responded only with the use of non-deadly force entitled the defendant to
have the jury instructed on his theory of self-defense, and the failure to
give the requested instruction on the justifiable use of non-deadly force
was reversible error).

    Appellant next argues the state cannot demonstrate that the error in
failing to give the self-defense instruction on the burglary charge was
harmless, because the standard jury instruction given on the battery
charge erroneously included a duty to retreat and a fatal grammatical error
that may have caused the jury to reject the self-defense claim as to the
battery charge. The state responds that any error in failing to instruct the
jury that justifiable use of force applies to the burglary charge is harmless,
because the jury received the standard instruction for justifiable use of
force as to the battery charge. See Vila v. State, 74 So. 3d 1110, 1113 (Fla.
5th DCA 2011) (guilty verdict for burglary rendered failure to give self-
defense instruction for battery harmless). In addition, the state argues
that the self-defense instruction given for battery was not so
fundamentally erroneous as to preclude harmless error on the burglary
charge.

   During the charge conference, the trial court initially said it would
remove the “no duty to retreat” language from the justifiable use of force
instruction for the battery offense. Appellant’s counsel asked the court to
include this language because appellant could argue that he was in his
own dwelling or residence when he first was kicked.             Ultimately,
appellant’s counsel agreed to an instruction based on the 2012 version of
section 776.013, Florida Statutes, which, in pertinent part, included:

      The defendant was not engaged in an unlawful activity. He
      was attacked in a place where he had a right to be. He had
      no duty to retreat and had the right to stand his ground and
      meet force with force if he believed that it was necessary to do
      so to prevent death or great bodily harm to himself or to
      prevent the commission of a forcible felony.

    Appellant’s counsel asked the trial court to read the stand your ground
version of no duty to retreat, changing the phrase “including deadly force”
to non-deadly force, but then agreed that the instruction was fine as it was
because it would include non-deadly force. The court read to the jury the
following instruction based on section 776.013 regarding the self-defense
claim on the battery charge:


                                      6
       If the Defendant was not engaged in an unlawful activity, and
       was attacked any place where he had a right to be, he had no
       duty to retreat and had the right to stand his ground and meet
       force with force, including deadly force, if he reasonably
       believed that it was necessary to do so to prevent death or
       great bodily harm to himself or to prevent the commission of
       a forcible felony. A person does not have a duty to retreat if a
       person is in place where he has a right to be.

   Florida courts have previously noted that the inclusion of the
extraneous comma after the phrase “including deadly force” is erroneous
because it suggests that a defendant does not have a right to defend
himself by meeting force with force unless the victim had threatened him
with deadly force. See Neal v. State, 169 So. 3d 158, 164 (Fla. 4th DCA
2015); see also Talley v. State, 106 So. 3d 1015, 1017–18 (Fla. 2d DCA
2013). Furthermore, there is no duty to retreat when using non-deadly
force. See Hansen v. State, 898 So. 2d 201, 204 (Fla. 2d DCA 2005) (citing
Morris v. State, 715 So. 2d 1177, 1179 (Fla. 4th DCA 1998)). Appellant
correctly points out that the 2012 version of section 776.012 did not
require him to prove that he was not engaged in unlawful activity, but this
was not the section under which appellant’s counsel requested the
justifiable use of force defense. See Dorsey v. State, 149 So. 3d 144, 146
(Fla. 4th DCA 2014). 1

    Although the erroneous battery instructions do not amount to
fundamental error in this case, the state has not met its burden to show
that the failure to properly instruct the jury on self-defense for the burglary
charge was harmless error. “[I]t is appropriate to consider both the
preserved and unpreserved errors in determining whether the preserved
error was harmless beyond a reasonable doubt.” Martinez v. State, 761
So. 2d 1074, 1082–83 (Fla. 2000). Here, the jury may have rejected the
self-defense claim for the battery offense because of the extra comma error
and additional burden imposed on appellant. This, of course, could have
affected the verdict. See State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla.
1986) (noting that under the harmless error test, the burden is on the state
to prove beyond a reasonable doubt that the complained of error did not
contribute to the verdict, i.e., “that there is no reasonable possibility that
the error contributed to the conviction”).


1Appellant claims trial counsel was ineffective on the face of the record for failing
to object to the justifiable use of force instruction given. We decline to address
this claim on direct appeal as trial counsel may have had strategic reasons, which
would be more properly addressed during post-conviction proceedings.

                                         7
   Accordingly, we reverse and remand with directions for the trial court,
on retrial, to instruct the jury as to self-defense on the battery and burglary
charges, consistent with appellant’s theory of defense.

   Reversed and Remanded.

MAY and CONNER, JJ., concur.

                             *        *         *

   Not final until disposition of timely filed motion for rehearing.




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