         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D16-3763
                 _____________________________

TERRY G. TRUSSELL,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Dixie County.
James C. Hankinson, Judge.

                         August 24, 2018

PER CURIAM.

     Terry Trussell raises nine issues on appeal of his convictions
for falsely acting as a public officer in connection with a legal
process. See § 843.0855, Fla. Stat. (2014). We affirm and, in
particular, find no error with respect to how the State charged Mr.
Trussell in the Information, or presented its closing argument to
the jury.

                                I.

    In 2014, Dixie County impaneled a grand jury and Mr.
Trussell was selected to be its foreperson. During the grand jury
proceedings, Mr. Trussell presented a theory of a large-scale
criminal conspiracy involving various individuals and entities. The
grand jury provided Mr. Trussell time to find evidence to support
his conspiracy theory, but ultimately declined to pursue the
theory. Around this same time, the grand jury was scheduled to
reconvene on the afternoon of August 14, 2014. But that morning,
Mr. Trussell sought early entry to the courtroom from the Clerk of
Court and received it. Upon gaining access to the courtroom, Mr.
Trussell assembled with twenty-five other persons who declared
themselves to be the “People’s Grand Jury Under Common Law in
Dixie County, Florida.” Mr. Trussell assumed the role as this
group’s “Foreman,” and presented his criminal conspiracy theory
to them. The group proceeded to approve two “True Bills” calling
for the arrest and prosecution of many public officials on multiple
criminal charges. And then they adjourned. *

     The next day, on August 15, 2014, Mr. Trussell returned to
the court and presented the Clerk of Court with the two “True
Bills” approved by the ad hoc “People’s Grand Jury” the previous
day, which called for the arrest of several public officials and others
on numerous charges. The Clerk of Court received the documents,
stamped them “Sworn To and Subscribed Before Me,” and signed
and dated them. The first line of the Bills stated:

    We the People’s Grand Jury Under Common Law in
    Dixie County, Florida . . . met [on August 14, 2014, at
    10:00 AM] at the Dixie County Court House for the
    purpose of considering charges against [various public
    officials].

From there, the Bills identified the many persons and entities who
were recommended for arrest and prosecution and listed a
smorgasbord of charges. Mr. Trussell signed the “True Bills” as
“Foreman, People’s Grand Jury Under Common Law In Dixie
County, Florida.”

    Approximately one month later, the State charged Mr.
Trussell by information with multiple counts of violating
§ 843.0855. Mr. Trussell ultimately received a jury trial and was
convicted on five counts.

    * Later that afternoon, the real grand jury for Dixie County,
including Mr. Trussell as its foreperson, convened as previously
scheduled. But they were promptly dismissed.
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                                 II.

     Mr. Trussell now raises nine arguments on appeal seeking to
reverse his conviction. We disagree and affirm on all of them, but
write specifically to address his arguments related to Counts I and
II, that the State’s closing argument improperly relied upon a
theory of the crime not charged in the Information.

     Counts I and II of the Information charged Mr. Trussell with
unlawful impersonation-related crimes for filing two purported
true bills as the foreman of Dixie County’s “People’s Grand Jury.”
The Information alleged:

        On or about August 15, 2014, [Mr. Trussell] did
    unlawfully and deliberately impersonate or falsely act
    as a foreperson of a grand jury, a public officer or
    employee, in connection with or relating to the filing of
    a True Bill . . . , a legal process affecting persons and
    property, or otherwise took any action under color of law
    against persons or property, contrary to section
    843.0855(2), Florida Statutes.

     Mr. Trussell argues that the State improperly argued to the
jury and secured his conviction on the basis of his actions to gain
courtroom access for the “People’s Grand Jury” on August 14. He
argues that this was fundamental error because the Information
only charged him with impersonation or false acts in connection
with filing the “True Bills” on August 15, not with improperly
entering or using the courtroom. Specifically, the State asserted
that Mr. Trussell’s actions satisfied the first element of the crime
on account of the evidence that he accessed the courtroom by using
his position as foreman of the real grand jury in Dixie County:
“One of the things that Terry Trussell did with . . . the clerk of
court was he came in, she knew him to be the foreman of the grand
jury, and told her he needed the courtroom to set up for the grand
jury.” The State rebuttal argument called Mr. Trussell’s actions to
obtain the courtroom a “[t]otal fraud.” And it asked the jury to find
the defendant guilty of Counts I and II in part because “he used a
ruse to get the courtroom.” The defense made a timely objection
asserting that the State was introducing improper character

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evidence in violation of § 90.404(b), but the trial court overruled
the objection. In Mr. Trussell’s responsive argument, his counsel
countered that he wasn’t charged with impersonation with respect
to requesting or accessing the courtroom, but rather in connection
with the filing of true bills with the clerk’s office.

      We have little difficulty concluding that Mr. Trussell was
properly charged and convicted of the crimes stated in the
Information related to filing bogus true bills. See Price v. State, 995
So. 2d 401, 404 (Fla. 2008) (describing charging requirements).
The charges filed against Mr. Trussell were drafted in broader
strokes than his argument suggests. Mr. Trussell was charged
with impersonating or falsely acting as the foreperson of a grand
jury “in connection with or relating to the filing of [True Bills].”
(Emphasis added.) His convictions on these charges found support
in the evidence that Mr. Trussell committed multiple discrete acts
of “deliberately impersonat[ing] or falsely act[ing] as a foreperson
of a grand jury . . . in connection with or related to the filing of True
Bill[s].” The evidence of Mr. Trussell’s culpable acts leading to the
filing of the “True Bills” included: impersonating his own alter ego,
the foreman of the real grand jury in Dixie County, to gain early
access to the courthouse; assembling a sham grand jury in the
Dixie County courthouse before the proper meeting of the real
grand jury; assuming the role of foreman of the sham grand jury;
presenting criminal conspiracy charges to the sham grand jury
against a number of public officials and entities; gleaning
unanimous votes recommending the arrest and prosecution of
public officials and entities as foreman of the sham grand jury; and
then signing and presenting the clerk of court with two “True Bills”
as “Foreman” of the sham grand jury, which directed the Clerk of
Court “to forward a copy of [the True Bills] to the Dixie County
Sheriff for the[ir] arrest . . . and for the court clerk to send the
Special Prosecutor.” Mr. Trussell’s act-by-act impersonation of a
legitimate grand jury foreperson over the two-day period,
culminated with his filing of the two sham “True Bills.” But it all
began with his acts to gain access to the courtroom for the multi-
member “People’s Grand Jury,” which the State highlighted in its
closing argument.

    That the State’s closing argument chose to focus on Mr.
Trussell’s early actions in this episode to make its impersonation-

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related case is not problematic. Mr. Trussell’s initial deception in
gaining access to the courtroom for himself and the members of a
sham grand jury inaugurated his entire charade. It led directly to
Mr. Trussell’s filing the two “True Bills” the next day. In fact, the
“True Bills” themselves purported to establish their legitimacy and
authority from the fact that they arose from a meeting the day
before at the courthouse: “We the People’s Grand Jury Under
Common Law in Dixie County, Florida on August 14th, 2014, at
10:00 AM met at the Dixie County Court House for the purpose of
considering charges against [certain public officials].” And so, Mr.
Trussell’s access and use of the courtroom fit squarely within the
Information’s charge of impersonating a foreperson of a grand jury
“in connection with or relating to the filing of [the] True Bill[s].”
Under these circumstances, we cannot agree with Mr. Trussell’s
argument that the Information was faulty, or that the State
improperly argued an uncharged theory.

                                III.

    For these reasons, Mr. Trussell’s judgment and sentence is
AFFIRMED.

OSTERHAUS and M.K. THOMAS, JJ., concur; JAY, J., concurs in
part and dissents in part with opinion.

                  _____________________________

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


JAY, J., concurring in part and dissenting in part.

     Because the State argued that the jury should convict Trussell
on Counts I and II—based on an incident not charged in the
information or supported by the evidence—I would reverse those
convictions and remand for a new trial.



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                     I. PROCEEDINGS BELOW

      Although the underlying facts are ably summarized by the
majority opinion, it is necessary—for my analysis—to further
elaborate on what transpired at trial. During the State’s case-in-
chief, Dana Johnson, the clerk of the court for Dixie County,
testified that Trussell requested and received access to the
courtroom on August 14, 2014, the day before he filed the two “true
bills.” On cross-examination, defense counsel further explored this
incident with Johnson as follows:

         Q. When Mr. Trussell asked you to use this
    courtroom on August 14th of 2014, where was the
    conversation you had with him? Where were you guys
    physically?
         A. I believe he came to my office, the main office in
    the building here.
         ....
         Q. And do you recall Mr. Trussell simply asking you
    if he could use the courtroom that morning?
         A. Uh-huh. Yes, ma’am.

         Q. He didn’t actually tell you why, did he?
         A. No, ma’am.

          Q. You just made an assumption that he was using
    it for the grand jury, correct?
          A. Because I knew him to be the grand jury foreman
    of the statutory grand jury for Dixie County.

        Q. So based on the fact that he was, you just made
    an assumption that that was what it was for?
        A. That is correct.

        Q. So there was no direct representation to you, was
    there? You know, I’m the statutory grand jury foreman, I
    want to use this courtroom this morning?
        A. No, ma’am.

(Emphasis added.)


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   During the State’s closing argument,            the   prosecutor
commented on Johnson’s testimony as follows:

         One of the things that Terry Trussell did with Dana
    Johnson, the clerk of the court, was he came in, she knew
    him to be the foreman of the grand jury, and told her he
    needed the courtroom to set up for the grand jury that she
    knew was going to come into session at one o’clock and
    that she testified that she made arrangements through
    the county judge’s judicial assistant for the courtroom to
    be available for him to set up for the grand jury.

         So as it pertains to that first element, was he falsely
    acting as the grand jury foreman to get that room, she
    knew he was, and as a public officer.

        ....

         So as we consider the testimony of Dana Johnson, no
    question that Terry Trussell falsely acted as the statutory
    grand jury foreman, came in, used a session to get the
    courtroom to institute some legal process against Jeffrey
    Siegmeister and Mark Rains, which is Counts I and II of
    the information.

(Emphasis added.)

    After defense counsel reminded the jury that Trussell was not
charged with “improperly reserving the room” and that Trussell
made no false representations in requesting the courtroom, the
prosecutor revisited this issue during rebuttal by stating:

          The courtroom, she [defense counsel] just talked
    about that, on the morning of October [sic] the 14th was
    obtained by Terry Trussell. It was obtained by fraud.




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    Total fraud. I need to set up for the grand jury. I don’t
    think that’s in dispute in any part.

          ....

           Reserving this courtroom for the one o’clock meeting
    to set up was a ruse, it was falsely acting as the foreman
    of the grand jury and you should find the defendant guilty
    of Counts I and II because he used a ruse to get the
    courtroom. It was not true. It was for the people’s common
    law grand jury who circumvented the rules of this
    courthouse to get the courtroom.

(Emphasis added.) Defense counsel made a timely objection to this
comment asserting that the State was introducing improper
character evidence in violation of section 90.404(b), Florida
Statutes. The trial court overruled the objection. Trussell was
convicted on Counts I and II.

                           II. ANALYSIS

     On appeal, Trussell argues that the State improperly asked
the jury to convict him for his actions on August 14—when Trussell
requested the courtroom—even though the information only
charged Trussell for his August 15 actions in filing the true bills.
The State concedes that the information did not charge Trussell for
requesting the courtroom, but asserts that because the defense
failed to properly object during closing argument, the standard is
fundamental error, a standard that the defense has failed to meet.

     When a defendant is convicted “on a charge not made in the
information or indictment,” both his right to be fully informed of
the charges against him and his right to due process are denied.
Weatherspoon v. State, 214 So. 3d 578, 583 (Fla. 2017); see also
Price v. State, 995 So. 2d 401, 404 (Fla. 2008) (“For an information
to sufficiently charge a crime it must follow the statute, clearly
charge each of the essential elements, and sufficiently advise the
accused of the specific crime with which he is charged.”); Zwick v.
State, 730 So. 2d 759, 760 (Fla. 5th DCA 1999) (“A defendant is
entitled to have the charge against him proved substantially as
alleged in the indictment or information and [he] cannot be

                                 8
prosecuted for one offense and convicted and sentenced for
another. . . . ”).

     In Brown v. State, 41 So. 3d 259, 261 (Fla. 4th DCA 2010), the
information alleged that the defendant committed aggravated
child abuse by 1) willful torture, malicious punishment, or
unlawful caging; or 2) causing great bodily harm, permanent
disability, or disfigurement. At trial, the jury instructions stated
that the jury could alternatively convict the defendant for
aggravated child abuse by use of a deadly weapon. Id. at 262. The
prosecutor argued this theory, inviting the jury to convict the
defendant based on his use of a bat. Id.

     In language particularly applicable to this case, the Fourth
District recognized that it was “possible . . . that the jury convicted
the defendant based upon his use of a deadly weapon, a theory not
charged.” Id. This “possibility” could not be excluded because “the
State specifically invited the jury to convict the defendant of
aggravated child abuse based upon his use of a deadly weapon . . .
.” Id. As a result, the Fourth District reversed the defendant's
conviction for aggravated child abuse and remanded the case for a
new trial. Id. at 263; see also Richards v. State, 43 Fla. L. Weekly
D239, D241 (Fla. 2d DCA Jan. 26, 2018) (reversing a conviction
because the defendant was “convicted of a charge that was not
made in the information”).

     Here, Trussell advanced a defense to the charge that he was
impersonating a public official when he presented the true bills to
the clerk of court. It was not until closing argument that the State
argued that Trussell should be convicted for fraudulently
requesting the courtroom—conduct that was not charged in the
information or supported by the evidence. The defense attempted
to rebut this improper argument in the defense closing, and when
the State persisted in advancing this uncharged and unproven
theory, the defense objected, referencing section 90.404(b). This
objection was sufficient to preserve Trussell’s challenge to the
improper argument, and the trial court erred in overruling the
objection. Because I cannot exclude the possibility that the jury
convicted Trussell based on the uncharged and unproven theory
argued by the prosecutor, I would reverse the convictions as to


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Counts I and II and remand for a new trial. See Brown 41 So. 3d
at 262.

                _____________________________


Arthur J. Morburger, Miami, and Inger M. Garcia, Davie, for
Appellant.

Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate,
Assistant Attorney General, Tallahassee, for Appellee.




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