         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D17-502
                 _____________________________

DAVID LEE HUCKABA,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________

On appeal from the Circuit Court for Columbia County.
Wesley R. Douglas, Judge.

                      November 20, 2018

B.L. THOMAS, C.J.

     Appellant challenges his convictions and sentences for
vehicular homicide and reckless driving causing serious bodily
injury, raising the following issues on appeal: 1) the charging
instrument and jury instructions were fundamentally defective,
as they were based on an incorrect version of the vehicular
homicide statute; 2) the trial court failed to order a competency
evaluation; 3) Appellant received ineffective assistance of
counsel; 4) prosecutorial comments about alcohol consumption
entitle Appellant to a new trial; and 5) the common law “born-
alive” rule precludes one of Appellant’s convictions.

    As to Appellant’s second, fourth, and fifth issues on appeal,
we reject Appellant’s arguments without discussion. For the
reasons set forth below, we also reject Appellant’s arguments
presented in the first and third issues raised on appeal.
                                Facts

     In December 2014, Appellant was charged by information
with three counts of vehicular homicide, three counts of reckless
driving causing serious bodily injury, and one count of reckless
driving causing injury, plus several counts based on driving
under the influence of alcohol. All charges arose from a 2013
multi-car collision that resulted in the deaths of Kenneth
Pelletier, Jennifer Duncan, and her unborn child (“Baby Boy
Duncan”).

   In the original 2014 information, Count 6, alleging vehicular
homicide, read:

    . . . [Appellant] . . . by the operation of a motor vehicle in
    a reckless manner likely to cause death or great bodily
    harm to another, did then and there unlawfully kill a
    viable fetus, to wit: BABY BOY DUNCAN, by injury to
    the mother, JENNIFER DUNCAN, contrary to Florida
    Statute 782.071(1).

(Emphasis added).

    In October 2016, the State amended the information,
removing all counts for driving under the influence, and charging
Appellant with three counts of vehicular homicide (Counts 1-3)
and one count of reckless driving causing serious bodily injury
(Count 4). In the amended information, Count 3 read:

    . . . [Appellant] . . . by the operation of a motor vehicle in
    a reckless manner likely to cause death or great bodily
    harm to another, did then and there unlawfully kill an
    unborn child, to wit: BABY BOY DUNCAN, by injury to
    the mother, JENNIFER DUNCAN, contrary to Florida
    Statute 782.071(1).

(Emphasis added).

    The “viable fetus” language is consistent with the 2013
version of Florida’s vehicular homicide statute, whereas the
“unborn child” language in the amended information tracks the
2014 version. Compare § 782.071, Fla. Stat. (2013) (amended
2014), with § 782.071, Fla. Stat. (2014). Significantly, both
                                  2
charging instruments alleged that Appellant’s conduct was
“contrary to Florida Statute 782.071(1).”

     During the State’s case-in-chief, eyewitnesses and law
enforcement officers testified that Appellant was driving uphill
and passing several vehicles in a no-passing zone while traveling
in the lane of oncoming traffic at a speed of up to 90 miles per
hour. One witness testified that Appellant made an obscene
gesture as he sped past. When Appellant reached the top of the
hill, he swerved back into his correct lane to avoid an
approaching vehicle, but hit the victim’s car, sending it careening
into oncoming traffic, at which point the victims’ car was hit by
the approaching vehicle. The victims were ejected and the driver
of the approaching car that hit the victims was seriously injured.

     The State called Dr. Aurelian Nicolaescu, a medical
examiner, who testified that the fatal injuries sustained by
Mr. Pelletier and Ms. Duncan were consistent with a crash and
ejection. Dr. Nicolaescu testified that Baby Boy Duncan suffered
blunt trauma to multiple body parts, with the cause of death
being “intrauterine demise because the baby died in the uterus
due to multiple blunt trauma due to maternal multiple injuries.”
He testified that the estimated gestational age was 26 to
28 weeks, based on the weight of 900 grams. The State then
entered a photograph of Baby Boy Duncan taken after delivery as
part of the medical examination. Defense counsel did not object
to any of this evidence, and did not cross-examine Dr. Nicolaescu.

     The State called Lisa Montgomery, a forensic toxicologist,
who testified that Appellant had a blood alcohol level of 0.045
after the crash. She testified that, although this was below the
limit for intoxication, it would lead to difficulty in making
rational decisions and an increase in risky behavior.

    After the State rested, defense counsel moved for a judgment
of acquittal, stating, “Your Honor, the defense would move for
judgment of acquittal and make no argument.” The trial court
denied the motion.

     At the charge conference, defense counsel accepted a jury
instruction that the elements of vehicular homicide included the
killing of an unborn child, and defining unborn child as a human

                                3
carried in the womb, at any stage of development. Defense
counsel requested definitions for willful and wanton to be added
to the vehicular homicide instruction, and the prosecutor agreed
to add those definitions “right under the unborn child” language.

     During closing argument, the prosecutor stated that
vehicular homicide included killing an “unborn child.” The
prosecutor also commented that Appellant was driving with
“liquid courage,” and had “alcohol coursing through his veins.”
Defense counsel made no objections during the State’s closing
argument. In Appellant’s closing argument, defense counsel
argued that Appellant was not reckless, and made no mention of
viability.

    After closing arguments, the trial court instructed the jury:

        To prove the crime of vehicular homicide, the State
    must prove the following three elements beyond a
    reasonable doubt:

         One. A, the victim is dead.

       Or, B, an unborn child is dead by injury to the
    mother.

        Two, the death was caused by the operation of a
    motor vehicle by the defendant.

        Three, the defendant operated the motor vehicle in
    a reckless manner likely to cause the death of or great
    bodily harm to another person.

         ....

         An unborn child means a member of the species,
    homo sapiens, at any stage of development, who is
    carried in the womb.

     The jury found Appellant guilty as charged on all counts.
Appellant was sentenced to 363.98 months in prison on Counts 1-
3, plus five years on Count 4 to run concurrently with Counts 1-3.



                                4
                             Analysis

                                I.

     “[I]t is firmly established law that the statutes in effect at
the time of commission of a crime control as to the offenses for
which the perpetrator can be convicted . . . .” Heath v. State, 532
So. 2d 9, 10 (Fla. 1st DCA 1988).

     The 2014 version of Florida’s vehicular homicide statute
defines vehicular homicide as “the killing of a human being, or
the killing of an unborn child by any injury to the mother, caused
by the operation of a motor vehicle by another in a reckless
manner likely to cause the death of, or great bodily harm to,
another.” § 782.071, Fla. Stat. (2014). The statute provides that
“the term ‘unborn child’ means a member of the species Homo
sapiens, at any stage of development, who is carried in the
womb.” § 775.021(5)(e), Fla. Stat. (2014).

     By contrast, the 2013 version of the same statute defined
vehicular homicide as “the killing of a human being, or the killing
of a viable fetus by any injury to the mother, caused by the
operation of a motor vehicle by another in a reckless manner
likely to cause the death of, or great bodily harm to, another.”
§ 782.071, Fla. Stat. (2013) (amended 2014) (emphasis added).
The legislation provided that “a fetus is viable when it becomes
capable of meaningful life outside the womb through standard
medical measures.” § 782.071(2), Fla. Stat. (2013) (amended
2014).

     The 2013 version of the vehicular homicide statute applied
on the date of Appellant’s crimes. § 782.071(2), Fla. Stat. (2013);
Heath, 532 So. 2d at 10. The amended information, however,
charged Appellant with killing an unborn child, rather than a
viable fetus. Likewise, the trial court instructed the jury on the
unborn-child requirement, along with an instruction that unborn
child meant a child carried in the womb “at any stage of
development.” Thus, the charging instrument and jury
instructions were erroneous.

     A technical deficiency in a charging instrument is waived if
it is not objected to before the State rests its case. Castillo v.

                                5
State, 929 So. 2d 1180, 1181 (Fla. 4th DCA 2006). By contrast, if
an information wholly fails to state a crime such that it cannot
support a conviction, it is fundamentally defective, and may be
raised for the first time on appeal. State v. Burnette, 881 So. 2d
693, 694-95 (Fla. 1st DCA 2004) (“An information is
fundamentally defective only where it totally omits an essential
element of the crime or is so vague, indistinct or indefinite that
the defendant is misled or exposed to double jeopardy.”).

     But even where the body of a charging instrument omits an
essential element, such an error is a waivable technical defect, if
the charging instrument references the correct statute, and the
statute sets forth the required elements. Id. at 695. In Burnette,
the charging instrument failed to allege that a burglarized
structure was a “dwelling.” Id. at 694. Although the body of the
information in Burnette omitted an essential element, the caption
stated the correct offense, and the information alleged that the
defendant’s actions were “contrary to the provisions of section
810.02(3), Florida Statutes.” Id. This court held that the
information was not fundamentally defective, because it
“reference[d] a specific section of the criminal code which
sufficiently details all the elements of the offense.” Id. at 695.

     The caption of Appellant’s amended information stated that
Appellant was charged with vehicular homicide. The body of the
amended information alleged that Appellant’s conduct was
“contrary to Florida Statute 782.071(1).”       Appellant could
therefore have read the referenced statute and found that the
charged offense required proof of viability. See § 782.071, Fla.
Stat. (2013).    Accordingly, like in Burnette, the charging
instrument in this case did not wholly fail to state a crime and
was not fundamentally defective. See Burnette, 881 So. 2d at 695.
Thus, because Appellant did not object to the information, his
argument is waived.

     As to the erroneous jury instruction, “[j]ury instructions are
‘subject to the contemporaneous objection rule, and absent an
objection at trial, can only be raised on appeal if fundamental
error occurred.’” State v. Spencer, 216 So. 3d 481, 484 (Fla. 2017)
(quoting State v. Weaver, 957 So. 2d 586, 588 (Fla. 2007)); see also
Foster v. State, 861 So. 2d 434, 436 (Fla. 1st DCA 2002)

                                 6
(affirming a conviction, despite the jury being instructed on the
wrong version of the burglary statute, as defense counsel “stated
no objection to the instruction that was given, and did not move
for judgment of acquittal on grounds that the verdict might
reflect jury findings of fact that did not amount to burglary”).

     Where an essential element of an offense is never disputed at
trial, failure to instruct on that element is not fundamental error.
State v. Delva, 575 So. 2d 643, 645 (Fla. 1991). In Delva, the
State was required to prove that the defendant knew a substance
was cocaine, but the trial court failed to instruct on this element.
Id. at 644.        The supreme court held that this was not
fundamental error, as the theory of defense was that the
defendant never knew about the package containing the
substance. Id. at 645 (“Because knowledge that the substance in
the package was cocaine was not at issue as a defense, the failure
to instruct the jury on that element of the crime could not be
fundamental error and could only be preserved for appeal by a
proper objection.”).

    Appellant never disputed the unborn child’s viability at trial.
Dr. Nicolaescu testified that Baby Boy Duncan’s gestational age
was between 26 and 28 weeks, with a fetal weight of 900 grams. 1
The State entered a photograph of the deceased baby, taken
during the autopsy, showing an advanced level of development.
Defense counsel did not cross-examine Dr. Nicolaescu or object to
the evidence presented. Likewise, defense counsel did not argue
viability when moving for judgment of acquittal, and made no
mention of viability in closing argument.

     Appellant’s theory of defense was that he did not operate his
vehicle in a reckless manner likely to cause death or great bodily
injury, and that his actions therefore did not amount to homicide


    1  See Webster v. Reproductive Health Servs., 492 U.S. 490,
515, 520 (1989) (finding it reasonable to expect viability at 23 to
24 weeks, and upholding a state abortion statute that created a
rebuttable presumption of viability at 20 weeks); In re T.W., 551
So. 2d 1186, 1193-94 (Fla. 1989) (“Under current standards,
[viability] generally occurs upon completion of the second
trimester.”).
                                 7
regarding any of the victims. See § 782.071, Fla. Stat. (2013).
Lack of the unborn child’s viability was not necessary to
Appellant’s exculpatory theory of defense, and any emphasis in
this regard likely would have been a strategic error.

     Thus, we hold that the court’s failure to instruct on viability
did not deprive Appellant of a fair trial and was not fundamental
error. See Delva, 575 So. 2d at 645. Accordingly, a
contemporaneous objection was necessary to preserve the issue
for appeal, and no such objection was made.

      Furthermore, although Appellant argues that a photograph
of a deceased unborn child, by itself, cannot establish viability,
other jurisdictions have held that such photographs are
admissible to show viability in vehicular-homicide cases. See
State v. Williamson, 919 S.W.2d 69, 79 (Tenn. Crim. App. 1995).
In Williamson, the prosecution had to prove viability under
Tennessee’s vehicular-homicide statute, and a photograph of the
stillborn infant was entered into evidence. Id. at 78-79. The
Tennessee Court of Criminal Appeals held that “testimony and
the photograph established the viability of the infant.” Id.
(emphasis added). Here, there was more evidence of viability
than just a photograph, including testimony about the unborn
child’s weight and injuries. We therefore hold that the jury
instruction here was not fundamentally defective, as a guilty
verdict could have been obtained without the assistance of the
error.

                                II.

    Generally, a claim of ineffective assistance of counsel must
be raised in a postconviction motion. Beazley v. State, 148 So. 3d
552, 554 (Fla. 1st DCA 2014). An ineffective assistance claim
may only be raised on direct appeal if: 1) the ineffectiveness is
obvious on the face of the appellate record; 2) the prejudice
caused by the conduct is indisputable; and 3) a tactical
explanation for the conduct is inconceivable. Id.; Latson v. State,
193 So. 3d 1070, 1071 (Fla. 1st DCA 2016). 2


    2In Latson, Judge Winokur wrote separately to discuss the
growing frequency of defendants bringing claims of ineffective
                                 8
     Here, Appellant claims that defense counsel was ineffective
for 1) failing to object to the erroneous charging instrument and
jury instruction; 2) failing to argue insufficient evidence of
viability when moving for judgment of acquittal; 3) failing to
object to evidence of alcohol use and comments drawn therefrom;
4) failing to object to questions asking Appellant to comment on
the veracity of other witnesses; and 5) failing to timely move for a
new trial. Because we find that none of these claims demonstrate
indisputable prejudice or an inconceivable tactical explanation,
we hold that Appellant is not entitled to relief on direct appeal.
See Beazley, 148 So. 3d at 554.

    As to the defective charging instrument, had defense counsel
moved to dismiss the amended information, the State could have
amended it again to allege the correct statutory language, and
presented the same evidence at trial that led to a conviction. See
State v. Garcia, 692 So. 2d 984, 985 (Fla. 3d DCA 1997) (“The
State may also substantively amend an information during trial,
even over the defendant’s objection, unless there is a showing of
prejudice to the substantive rights of the defendant.”). Thus,
Appellant fails to establish prejudice.

     The unborn-child jury instruction was not fundamentally
defective, as discussed above. See Delva, 575 So. 2d at 645;
Spencer, 216 So. 3d at 485. Because evidence of viability was
presented at trial, it is not indisputable that defense counsel’s
failure to object to the jury instruction prejudiced Appellant. See
Beazley, 148 So. 3d at 554.

    As to defense counsel not arguing the issue of viability when
moving for judgment of acquittal, this argument assumes that
the trial court would have granted an acquittal on that basis.
Because the State presented enough evidence of viability for the
issue to go to the jury, the trial court could have correctly denied


assistance of counsel on the face of the record “as an unjustifiable
substitute for claims of fundamental error.” 193 So. 3d at 1072
(Winokur, J., concurring). Judge Winokur concluded that the
trend of permitting such claims on direct appeal stems from a
misreading of case law “and is directly contrary to controlling
statutory law.” Id. at 1074.
                                 9
the motion; therefore, Appellant fails to show indisputable
prejudice. See Beazley, 148 So. 3d at 554.

      As to Appellant’s claim that defense counsel failed to object
to evidence about alcohol consumption below the legal limit, and
inferences drawn therefrom, such evidence is not inadmissible, as
it is probative of recklessness. Jackson v. State, 100 So. 2d 839,
842 (Fla. 1st DCA 1958); see also Rogers v. State, 957 So. 2d 538,
548 (Fla. 2007) (counsel cannot be ineffective for failing to object
to evidence that is not improper).

     Likewise, we cannot say that no tactical explanation is
conceivable for defense counsel not objecting to questions about
the veracity of other witnesses, or that Appellant was
indisputably prejudiced by the questions, especially as he never
actually commented on the veracity of a witness. See Johnson v.
State, 969 So. 2d 938, 944 (Fla. 1st DCA 2007) (holding that an
improper question was harmless error where the defendant did
not respond that the witness was untruthful). On cross-
examination, when Appellant was asked if a witness was giving
unreliable testimony, Appellant answered, “That’s not what I’m
saying.” When Appellant was asked whether a witness was
wrong in his testimony that Appellant was passing vehicles while
going uphill in a no passing zone, Appellant responded that “they
also said things that were inaccurate,” but never claimed the
witness was lying. When Appellant was asked if a witness was
telling the truth in his testimony that Appellant attempted to
pass a line of cars in a no passing zone, Appellant responded, “I
never attempted to pass any vehicles in a non-passing zone.”

     Finally, as to counsel’s failure to timely file a motion for new
trial, we have held that, absent clear evidence that such a motion
would have been granted, the remedy is a postconviction motion,
not direct appeal. Crenshaw v. State, 490 So. 2d 1054, 1055 (Fla.
1st DCA 1986). Thus, based on the relevant evidence admitted at
trial, we find nothing in the record to show that the trial court
would have granted the motion for a new trial, as the verdict was
not contrary to the weight of the evidence.

    AFFIRMED.

WINSOR, J., concurs; MAKAR, J., concurs in result with opinion.

                                 10
                 _____________________________

MAKAR, J., concurring in result with opinion.

     On December 6, 2013, David Lee Huckaba’s reckless driving
resulted in a horrendous multi-vehicle accident that killed four
people (one an infant in utero) as well as injuring several others.
One of the fourteen charges in the initial information accused
Huckaba of vehicular homicide of the unborn infant under the
applicable 2013 version of section 782.071, Florida Statutes,
which required proof that Huckaba’s recklessness resulted in the
killing of “a viable fetus.”

    Almost two years later, an amended charging document—
narrowed to four counts and eliminating all DUI counts—
modified the vehicular homicide charge against Huckaba by
replacing “a viable fetus” with “an unborn child,” which was
language from an intervening amendment to section 782.01 that
became effective October 1, 2014:

    “Vehicular homicide” is the killing of a human being, or
    the killing of a viable fetus an unborn child by any
    injury to the mother, caused by the operation of a motor
    vehicle by another in a reckless manner likely to cause
    the death of, or great bodily harm to, another.

Ch. 2014-194, Laws of Florida, § 5. Neither Huckaba’s new
lawyer, nor the prosecutor, nor the trial judge recognized the
error, resulting in jury instructions, a trial, and a conviction
based upon the incorrect statutory language (i.e., “an unborn
child” versus “a viable fetus”).

     Because his trial lawyer failed to object to the incorrect
language in the charging document and the jury instructions,
Huckaba’s appellate claim is that fundamental error resulted due
to the jury convicting him of killing “an unborn child” when the
State’s obligation was to allege and prove the deceased was “a
viable fetus,” the latter being more scientifically and medically
difficult to prove. The question is not whether the correct statute

                                11
number was cited (it was in both the initial and amended
information), whether the jury instructions were correct (they
weren’t), or whether Huckaba’s counsel disputed the viability of
the unborn child (he didn’t because it was not an issue to be
proven at trial). Rather, the inquiry is whether fundamental
error exists due to the error in the information and jury
instructions that the prosecutor, Huckaba’s trial lawyer, and
even the trial judge missed.

     A fundamental error is one that “must reach down into the
validity of the trial itself to the extent that a verdict of guilty
could not have been obtained without the assistance of the
alleged error.” Brown v. State, 124 So. 2d 481, 484 (Fla. 1960); see
also Smith v. State, 521 So. 2d 106, 108 (Fla. 1988) (the doctrine
of fundamental error applies “where the interests of justice
present a compelling demand for its application.”).

     The error at issue—interlineating “unborn child” in place of
“viable fetus”—does not meet the fundamental error test. First of
all, our supreme court has held that when a standard jury
instruction is used—and later determined to be inadequate—the
flaw need not always be so serious as to amount to fundamental
error. Smith v. State, 521 So. 2d 106, 108 (Fla. 1988). The
inadequate insanity instruction used in Smith was deemed not
“so flawed as to deprive defendants claiming the defense of
insanity of a fair trial.” Id. As in Smith, a degree of judicial
judgment is exercised in drawing the line between a fair and
unfair trial.

     In this case, the 2013 version of the vehicular homicide
statute, and its corresponding standard jury instruction, said
that “a fetus is viable when it becomes capable of meaningful life
outside the womb through standard medical measures.”
§ 782.071(2), Fla. Stat. (2013); see In re Standard Jury
Instructions In Criminal Cases—No. 2006-1, 946 So. 2d 1061,
1068 (Fla. 2006) (adopting standard criminal instruction 7.9,
related to vehicular and vessel homicide), modified by In re
Standard Jury Instructions in Criminal Cases-Report No. 2014-
08, 176 So. 3d 938, 941 (Fla. 2015) (amending 7.9 to say that “An
‘unborn child’ means a member of the species homo sapiens, at
any stage of development, who is carried in the womb.”).

                                12
     On the facts presented, it cannot be concluded that a guilty
verdict could not have been obtained without the error in the
information and jury instructions. It was proven that the unborn
child had a gestational age of between 26 and 28 weeks and a
fetal weight of 900 grams, placing him at or within the general
parameters of fetal viability set forth in judicial decisions.
Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833,
860 (1992) (noting that viability was approximately 28 weeks at
the time of Roe v. Wade, 410 U.S. 113, 160 (1973), that it can
occur in some situations at 23-24 weeks, and that it may occur “at
some moment even slightly earlier in pregnancy, as it may if fetal
respiratory capacity can somehow be enhanced in the future.”); In
re T.W., 551 So. 2d 1186, 1190 (Fla. 1989) (stating that “viability
of the fetus” occurs “approximately at the end of the second
trimester.”); see also Moore et al., The Developing Human:
Clinically Oriented Embryology, 93 (10th ed. 2016) (“Viability is
defined as the ability of fetuses to survive in the extrauterine
environment . . . Most fetuses weighing between 750 and 1500 g
usually survive, but complications may occur; they are referred to
as preterm infants.”) [hereinafter The Developing Human].

     Had the unborn child’s gestational age and fetal weight been
further from these general parameters, a more compelling case
for fundamental error would exist. For example, if gestational age
were in the range of 20-21 weeks and fetal weight was 500 grams
or less, the likelihood of viability would be exceedingly small for
such a child. Jon E. Tyson et al., Intensive Care for Extreme
Prematurity—Moving Beyond Gestational Age, 358 NEW ENG. J.
MED. 1672 (2008) (stating that infants born between 22-25 weeks
require extreme intensive care to promote chance of survival); see
also The Developing Human at 92-93. Under those circumstances,
a conviction for killing a “viable fetus”—as required by the 2013
statutory language of the vehicular homicide statute—would
likely be fundamental error because a violation of the statute
couldn’t have been proven absent the error; likewise if the unborn
child was in the first trimester of development.

    Admittedly, the 2013 version of the statute appears to have
required proof of the viability of the specific unborn child versus
proof of when viability generally occurs among the unborn of

                                13
similar gestational age and weight. For example, certain fetal
conditions correlate with a higher medically-significant mortality
rate, such as genetic conditions, heart or lung defects, infections,
low placental circulation, or substance abuse by the mother. The
Developing Human at 99. But no Florida court has held that
generalized proof as to viability—as reflected in judicial decisions
discussing gestational age and fetal weight—is inadequate under
the circumstances presented. And Huckaba does not say how a
retrial would be meaningfully different if the State had to prove
the viability of the deceased unborn child versus the viability of a
cohort of unborn children of identical gestational age and weight;
he posits no individualized evidence that the unborn child would
have been unable to survive outside of his mother’s womb.

    For these reasons, I agree that affirmance is warranted.

                 _____________________________


    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________

Andy Thomas, Public Defender, Danielle Jorden, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Benjamin L. Hoffman and
Virginia Chester Harris, Assistant Attorneys General,
Tallahassee, for Appellee.




                                14
