Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D2023-3107 _____________________________ ANTHONY M. GABRIEL, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Okaloosa County. John Jay Gontarek, Judge. September 23, 2026 ON MOTION FOR WRITTEN OPINION PER CURIAM. We grant Appellant Anthony M. Gabriel’s motion for written opinion, withdraw our per curiam affirmance dated November 5, 2025, and substitute the following opinion in its place. Gabriel’s motion filed November 19, 2025, is otherwise denied. Gabriel appeals his convictions for burglary of a dwelling while armed with a firearm and possession of a firearm by a convicted felon. We affirm the convictions but write to address Gabriel’s claim that the court erred in giving the standard jury instruction addressing abnormal mental condition (AMC). I On the night of August 11, 2021, Gabriel entered the home of Veston Lane Wyatt. Gabriel did not have Wyatt’s permission to be there. Wyatt was startled by the appearance of Gabriel in his bedroom, as Gabriel was wearing all black and was armed with a firearm. Wyatt grabbed his bedside pistol and held Gabriel at gunpoint until law enforcement arrived. In addition to the firearm, which was reported stolen, Gabriel had a backpack with rope in it. Gabriel was arrested and charged with burglary and possession of a firearm as indicated above. At trial, Gabriel’s defense was that he was being chased by an animal or person (the story changed), and that it was out of necessity that he surreptitiously entered Wyatt’s home in the middle of the night. * In opening statement, Gabriel’s counsel told the jury, “I think that the evidence is going to show you . . . that he was incoherent and terrified out of his mind and that he was asking for help[.]” Later in the trial, the deputy who encountered Gabriel agreed with counsel that Gabriel had been incoherent. During the charge conference, the State asked the trial court to instruct the jury that “[m]ental illness, an abnormal mental condition, or diminished mental capacity is not a defense to any crime in this case.” See Fla. Std. Jury Instr. (Crim.) 3.6(p). The State noted that there was evidence relating to Gabriel’s “mental condition at that time” and that based on this, the jury should be “informed that mental illness and abnormal mental condition or diminished mental capacity is not a defense to any crime in this case[.]” Gabriel objected. Despite Gabriel’s claim in opening that the evidence would show that Gabriel had been “incoherent and terrified out of his mind,” Gabriel’s counsel argued that there had * Gabriel requested a jury instruction on the necessity defense, which the trial court denied. Gabriel challenges this denial on appeal. Because any error in failing to provide the necessity instruction would be harmless under the facts of this case (Gabriel wearing all black, armed with a firearm, carrying a backpack full of rope, but claiming an animal or person was chasing him), we reject this argument without further comment. See Potter v. State, 304 So. 3d 1270, 1276 (Fla. 3d DCA 2020). 2 been no reference to Gabriel being incoherent, or to mental illness, abnormal mental condition, or diminished mental capacity. The court overruled the objection and agreed to give the requested instruction, noting that the record contained “some inference that [Gabriel] was rambling and . . . talking incoherently and bringing up different things that [did not] seem to make sense,” and that “it could be inferred that he had some kind of mental [condition].” II Generally, a court’s decision to instruct the jury on a particular matter is reviewed for abuse of discretion. See e.g., Hunt v. State, 428 So. 3d 43, 52 (Fla. 2025). And while a court may not give a jury instruction that has no factual basis in the record, see Kelsey v. State, 152 So. 3d 1266, 1267 (Fla. 1st DCA 2014), “[a] jury is likely to disregard an option simply unsupported by the evidence.” Reed v. State, 208 So. 3d 1231, 1235 (Fla. 1st DCA 2017) (quotation omitted). For this reason, giving a jury instruction that is not supported by any record evidence can be harmless error. Id. Section 775.027, Florida Statutes, establishes the insanity defense, providing that insanity is a defense to a criminal charge when, at the time of the offense, the defendant had a mental infirmity, disease, or defect, and that because of that condition, either did not know what he or she was doing or its consequences or did not know that what he or she was doing was wrong. § 775.027(1), Fla. Stat. The statute specifies that insanity, as it defines this term, is the exclusive method by which a criminal defendant can assert a defense based on mental condition. Specifically, “[m]ental infirmity, disease, or defect does not constitute a defense of insanity except as provided in this subsection.” Id. This language forecloses any other mental condition evidence as a defense to a criminal charge. Id.; see also, Chestnut v. State, 538 So. 2d 820 (Fla. 1989) (holding that “evidence of abnormal mental condition not constituting legal insanity” is not admissible “for purposes of proving either that accused could not or did not entertain the specific intent or state of mind essential to proof of the offense, in order to determine whether crime charged, or lesser degree thereof, was in fact committed”); Occhicone v. State, 570 So. 2d 902 (Fla. 1990); Evans v. State, 946 So. 2d 1 (Fla. 2006). 3 Florida Standard Jury Instruction (Crim.) 3.6(p), acknowledges this statutory requirement and informs a jury that, consistent with statute, a particular fact is irrelevant to its deliberations. Logically, the record evidence necessary to support a jury instruction that a certain fact is not relevant is different from the record evidence necessary to support a jury instruction related to the elements of a crime or to a defense to that crime. Suffice it to say, we find that the evidence in this case was sufficient for the court to inform the jury that AMC was not a defense, especially in light of Gabriel’s own characterization of the evidence that he was “incoherent and terrified out of his mind” at the time of the offense. See, e.g., Rodriguez-Barnes v. State, 419 So. 3d 1174 (Fla. 1st DCA 2025) (holding that AMC standard instruction was appropriate where the instruction accurately stated the law, the facts supported giving the instruction, and the instruction was necessary to prevent jury from improperly considering mental health evidence as negating specific intent). Moreover, even if the record displayed insufficient evidence of AMC to justify the instruction, we would conclude that the jury was likely to ignore an instruction that was not supported by the evidence. See Reed¸ 208 So. 3d at 1235. Gabriel disputes this conclusion, arguing that Perry v. State, 256 So. 3d 888 (Fla. 4th DCA 2018), supports his argument. In Perry, the appellant argued that giving the AMC standard instruction—an instruction that does nothing but accurately convey the law—“plays upon the stigma, fear and prejudice associated with the mentally ill.” Perry, 256 So. 3d at 893. The Fourth District apparently accepted this argument, holding that the AMC instruction was “the judge’s comment on the defendant” that “interfered with the jury’s determination of specific intent based on its evaluation of all the evidence in the case.” Id. The Perry court suggested the standard instruction was meant to remind jurors how to evaluate expert mental-health evidence, and without any such evidence, was “tantamount to a comment on the evidence, a suggestion that Perry suffered from ‘mental illness or an abnormal mental condition or diminished mental capacity.’” Id. at 895 (emphasis in original). For three reasons, however, Perry has no application here. First, the evidence in this case supported the AMC instruction 4 more than the evidence in Perry did. Instead of confusing or misleading the jury, as alleged in Perry, the AMC instruction here provided clarity by accurately informing them that AMC is not a defense in Florida. Accordingly, we find that a correct statement of the law on AMC did not mislead the jury in this case or “cause[] them to arrive at a conclusion that otherwise would not have been reached by them[.]” Holman Live Stock Co. v. Louisville & N.R. Co., 87 So. 750, 751 (Fla. 1921). Second, we disagree with the suggestion that the AMC standard instruction should only be given when the defendant presents expert testimony of the defendant’s mental state. Instructions are appropriate when they relate to the evidence at trial. The fact that evidence of AMC generally cannot constitute a criminal defense applies regardless of how the evidence of AMC is presented. Finally, we do not share the Fourth District’s concern that the AMC standard instruction constitutes a judicial comment on a defendant who may suffer from a mental illness but fails to meet the statutory definition of insanity. In our view, a jury should know that a statute, duly enacted by the Florida Legislature, prohibits evidence of “mental infirmity, disease, or defect” that does not rise to the level of insanity. § 775.027(1), Fla. Stat. A trial court instructing the jury on AMC is not commenting on the evidence; rather, the court is performing an essential function: telling the jury what the law is and what it is not. Ultimately, we will not reverse a conviction simply based on speculation that the jury might have considered an accurate instruction as a “comment on the evidence.” We follow our supreme court’s holding in Walker v. State, where the court considered a claim that the instruction on possession of recently stolen property “constitutes an impermissible comment on the evidence.” 896 So. 2d 712, 714 (Fla. 2005). The court rejected the claim, accepting the State’s argument that “the basis for giving the instruction was section 812.022(2), not the trial court’s opinion of the evidence[,]” and that “the trial court did not state an opinion regarding Walker’s knowledge, did not express any thoughts about how Walker’s possession of the stolen property or his explanation of that possession demonstrated knowledge, did not distort or add to 5 the evidence, and did not show partisanship.” Id. The same analysis applies to the AMC standard instruction here. AFFIRMED. LEWIS, ROWE, and WINOKUR, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Hani Demetrious and Robert David Malove of the Law Office of Robert David Malove, P.A., Fort Lauderdale, for Appellant. James Uthmeier, Attorney General, and Darcy Townsend, Assistant Attorney General, Tallahassee, for Appellee. 6