Opinion
No. 1D18-706
12-27-2019
Jerome Devin RUFFINS, Appellant, v. STATE of Florida, Appellee.
Andy Thomas, Public Defender; Joanna A. Mauer, Assistant Public Defender; and Kathleen Pafford, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General; and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee.
Andy Thomas, Public Defender; Joanna A. Mauer, Assistant Public Defender; and Kathleen Pafford, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General; and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee.
Kelsey, J.
Appellant was convicted of trafficking in illegal drugs (heroin); possession of cocaine and marijuana; violating section 790.07(2), Florida Statutes (2016) (having a firearm while committing or attempting to commit a felony (drug possession or trafficking)); resisting a law enforcement officer without violence; and possession of drug paraphernalia. In this direct appeal, Appellant argues that the trial court erred in finding him competent; erred in denying his motion to suppress his statements to law enforcement, as well as the drugs and paraphernalia found on his person and in the car he was driving; and fundamentally erred in instructing the jury on the firearm offense. We reject these arguments on their merits, and affirm each of Appellant's convictions and sentences. We write only to address the jury instruction issue.
I. Facts.
After detaining Appellant, law enforcement officers found a gun under the driver's seat of the car Appellant had been driving. The gun was within three inches of the front edge of the seat, with the bottom of the handle pointed toward the steering wheel and the muzzle pointed toward the driver's-side door. The gun was loaded and there was a cartridge in the chamber. Appellant was the major contributor to the DNA found on the gun. The gun-related issue before us is whether Appellant was convicted of a non-existent offense because the jury instructions and verdict form, in places, used slightly different language than that of section 790.07(2) and the language of the amended information. The language from each source at issue is set forth below.
The Statute. Section 790.07(2) provides as follows:
790.07 Persons engaged in criminal offense, having weapons.—
....
(2) Whoever, while committing or attempting to commit any felony, displays, uses, threatens, or attempts to use any firearm or carries a concealed firearm is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, and s. 775.084.
The Amended Information. Both the original and amended informations cited section 790.07(2), and used the same verbs used in the statute, with a different caption, "Possession of a firearm during the commission of a felony." In pertinent part, the amended information charged this crime as follows (emphasis original):
3) POSSESSION OF A FIREARM DURING THE COMMISSION OF A FELONY
....
COUNT 3: [...] JEROME DEVIN RUFFINS, on or about October 17, 2016, at and in Escambia County, Florida, did unlawfully display, use, or attempt to use, or threaten to use a firearm or carry a concealed firearm, a handgun while committing or attempting to commit the felony of [the drug offenses], in violation of Section 790.07(2), Florida Statutes. (F2-L4)
The Jury Instruction. While giving the jury an overview of Appellant's charges before trial, the trial court read the caption from the amended information: "Count 3. Possession of a firearm during the commission of a felony."
The written jury instructions introduced the firearm offense generally as follows:
In Count 2 [sic] of the Information the defendant is charged with Possession of a Firearm during the Commission of a Felony. The lesser crime indicated in the definition of Possession of a Firearm during the Commission of a Felony is Carrying a Concealed Firearm.
The written instructions submitted to the jury presented Standard Instruction (Criminal) 10.3, the title of which is identical to the caption of section 790.07(2) : "Persons Engaged in Criminal Offense Having Weapon." The body of this instruction then immediately used the "possession" language drawn directly from the amended information to identify the crime charged, and then used "carried"—a verb used in both the statute and the amended information—to identify the elements of the crime:
10.3 PERSONS ENGAGED IN CRIMINAL OFFENSE HAVING WEAPON
To prove the crime of Possession of a Firearm during the Commission of a Felony, the State must prove the following two elements beyond a reasonable doubt:
1. [Appellant] carried a firearm which was concealed from the ordinary sight of another person.
2. He did so while committing or attempting to commit the felony of Trafficking in Heroin or Possession of Controlled Substance (Cocaine).
The instructions also presented Standard Instruction (Criminal) 10.1 for Carrying a Concealed Firearm. The two elements of this crime were knowingly carrying a firearm on or about his person, and the firearm was concealed from the ordinary sight of another person. The instruction defined "on or about his person" as "physically on the person or readily accessible to him," and "ordinary sight of another person" as "the casual and ordinary observation of another" but not necessarily completely hidden.
The Verdict Form. The verdict form set out Count 3 of the amended information as follows:
COUNT 3
____ Guilty of Possession of a Firearm during the Commission of a Felony, as charged.
____ Guilty of Carrying a Concealed Firearm, a lesser included offense.
____ Not Guilty.
The jury checked the first line, finding Appellant guilty of Possession of a Firearm during the Commission of a Felony, "as charged." Appellant's recorded Judgment again used the caption from the amended information, stating he was found guilty of "CT 3 – POSSESSION OF A FIREARM DURING THE COMMISSION OF A FELONY."
II. Analysis.
Appellant argues that he was convicted of a non-existent crime, "possession," a word that is not used in section 790.07(2). He reasons that because the statute does not use the word "possession" in describing the prohibited acts, there arises the theoretical possibility that a defendant who engaged in an act constituting "possession"—arguably broader than the specific acts actually proscribed in the statute—could be convicted wrongfully of violating this statute.
If Appellant's argument were that his due process rights were infringed because he was unable to determine the exact charge against him, he would lose, because the amended information cited the correct statute and recited the statutory elements of the crime accurately. See State v. Burnette , 881 So. 2d 693, 695 (Fla. 1st DCA 2004) ("An information may withstand an untimely challenge to a technical deficiency (1) where a statutory citation for the crime is given, but all elements are not properly charged, or (2) where the wrong or no statutory citation is given, but all elements of the crime are properly charged."). Appellant always knew what the charge was and under what statute.
Appellant did not object to the jury instructions or verdict form, and therefore we review this legal issue de novo for fundamental error. See State v. Spencer , 216 So. 3d 481, 483 (Fla. 2017) (applying de-novo standard of review to legal question of whether omission of part of jury instruction constituted fundamental error); Reed v. State , 837 So. 2d 366, 370 (Fla. 2002) (holding that use of jury instruction that incorrectly defined an element of the crime was fundamental error). To establish fundamental error, Appellant must demonstrate that the alleged error impacted the validity of the trial to the extent that a guilty verdict could not have been obtained without the error. See Elliot v. State , 49 So. 3d 269, 270 (Fla. 1st DCA 2010).
As a practical threshold observation, the State correctly points out that violations of section 790.07(2) are called "possession of a firearm during the commission of a felony" in numerous opinions. Every appellate court in Florida, including the Florida Supreme Court, has used the colloquial descriptive phrase "possession of a firearm" to refer to crimes under section 790.07(2). In these contexts, it appears to be understood that the colloquial description of this crime is deemed to be limited to the statutory definition of the crime. So understood, as it should be, there is indeed such a crime.
See Love v. State , 559 So. 2d 198, 199 (Fla. 1990) ("one count of possession of a firearm while engaged in a criminal offense in violation of section 790.07(2), Florida Statutes"); Pitts v. State , 425 So. 2d 542, 543–44 (Fla. 1983) (using "possession of a firearm during the commission" phrase repeatedly); Ward v. State , 21 So. 3d 896, 898 & n.1 (Fla. 5th DCA 2009) (calling crime "possession of a firearm while engaged in a criminal offense," while citing section 790.07(2) ); James v. State , 936 So. 2d 738, 739 (Fla. 2d DCA 2006) ("possession of a firearm during the commission of a felony, section 790.07(2)"); Ryan v. State , 747 So. 2d 434, 435 (Fla. 4th DCA 1999) ("for conviction for possession of a firearm under section 790.07(2), Florida Statutes"); Brown v. State , 617 So. 2d 744, 745–47 (Fla. 1st DCA 1993) (utilizing both "use" and "possess" when discussing section 790.07(2) ); Castillo v. State , 590 So. 2d 458, 459–60 (Fla. 3d DCA 1991) (citing language of 790.07(2) but then immediately stating, "the charge under section 790.07 was that the defendant had possessed a firearm while committing or attempting to commit the felony of trafficking in cocaine").
While it would be ideal for all standard jury instructions, all jury instructions used at trial, and all court orders and opinions to mirror statutory language exactly, it is not necessarily fundamental error if they do not. The question in our fundamental-error analysis is whether the terminology, which was used only in parts of the instructions and verdict form, with other parts correctly tracking the statute and reflecting the State's evidence and arguments, vitiated the trial to the extent that a guilty verdict could not have been obtained without the error. See Elliot , 49 So. 3d at 270. The documents at issue do not demonstrate fundamental error.
Here, the colloquial description of crimes under section 790.07(2), using the word "possession," was used in the caption of the amended information, was inserted in the jury instructions in the slot reserved for a description of the crime, and was repeated on the verdict form (but only after the correct heading of the statute was presented and the qualifier "as charged" was added). Thus, the jury was given the correct statutory citation, the correct statutory caption of the crime, the correct description of the language used in the amended information, the correct elements of the crime, and a verdict form setting forth the correct statutory caption and referring back to the crime "as charged." All of the acts enumerated within the express language of the statute (display, use, threaten or attempt to use, and carry concealed) would constitute a form of possession; and even if "possess" can be broader than "carry," the State did not argue possession at trial, but rather argued and presented evidence supporting the elements of carrying a weapon. The evidence adduced at trial satisfied the statutory definition of the crime charged. The jury instructions required a conviction only if the jury found concealment and carrying, and that is what the jury found.
The cases on which Appellant relies are distinguishable. In Wiggins v. State , 253 So. 3d 1196, 1199 (Fla. 1st DCA 2018), we expressly noted that "the [jury] instructions also contained the definitions of ‘possess’ and ‘actual possession,’ which are not applicable to the ‘carrying’ offense in regards to a concealed weapon." See also James v. State , 16 So. 3d 322, 325 (Fla. 4th DCA 2009) (explaining that the instructions for the mislabeled crime included actual and constructive possession definitions). In those cases, possession became part of the crime, as defined for the jury. Here, Appellant's jury was not incorrectly instructed that "possession" violated the statute. On these facts, Appellant's argument is semantic only, and he has failed to demonstrate fundamental error. Accordingly, we affirm.
AFFIRMED .
Winokur, J., concurs; Wolf, J., concurs in result only.