                                    IN THE DISTRICT COURT OF APPEAL
                                    FIRST DISTRICT, STATE OF FLORIDA

BOBBY LEE ZEIGLER,                  NOT FINAL UNTIL TIME EXPIRES TO
                                    FILE MOTION FOR REHEARING AND
      Appellant,                    DISPOSITION THEREOF IF FILED

v.                                  CASE NO. 1D15-2754

STATE OF FLORIDA,

      Appellee.


_____________________________/

Opinion filed August 11, 2016.

An appeal from the Circuit Court for Gadsden County.
Jonathan E. Sjostrom, Judge.

Nancy A. Daniels, Public Defender, and Susannah C. Loumiet, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General; Robert "Charlie" Lee and Matthew Pavese,
Assistant Attorneys General, Tallahassee, for Appellee.




PER CURIAM.

      AFFIRMED.

ROBERTS, C.J., and ROWE, J., CONCUR; MAKAR, J., CONCURRING WITH
OPINION.
MAKAR, J., concurring with opinion.

        Defendant, Bobby Lee Zeigler, raises issues regarding his convictions on

multiple counts, including the charge that he violated section 893.1351(2), Florida

Statutes, which criminalizes the possession of a place, structure, or conveyance

knowing that it “will be used” in the trafficking, sale, or manufacture of a controlled

substance that is meant for sale or distribution to others.1 Zeigler’s trial counsel did

not object (or provide an alternative) to the jury instruction on this charge, which

stated:

        To prove the crime of possession of Place for Trafficking in or
        Manufacturing of Controlled Substance, the State must prove the
        following three elements:

        1.     Bobby Zeigler possessed a place, structure, or part thereof, trailer or
        other conveyance;
        2.     Bobby Zeigler had the knowledge that the place, structure, or part
        thereof, trailer or other conveyance was used for the purpose of trafficking
        in a controlled substance or manufacture of a controlled substance.


1
    The statute provides:

        (2) A person may not knowingly be in actual or constructive possession of
        any place, structure, or part thereof, trailer, or other conveyance with the
        knowledge that the place, structure, or part thereof, trailer, or conveyance
        will be used for the purpose of trafficking in a controlled substance, as
        provided in s. 893.135; for the sale of a controlled substance, as provided
        in s. 893.13; or for the manufacture of a controlled substance intended for
        sale or distribution to another. A person who violates this subsection
        commits a felony of the second degree, punishable as provided in s.
        775.082, s. 775.083, or s. 775.084.

§ 893.1351(2), Fla. Stat. (2013).
                                            2
       3.     That substance was intended for sale or distribution to another.

(Emphasis added). The phrase “was used” is highlighted because it differs from the

statutory language, which says that Zeigler was required to know that the mobile

home complex over which he had control “will be used” for the specified illegal

purposes. See § 893.1351(2), Fla. Stat. Zeigler now claims fundamental error

because the jury instruction allowed the jury to conclude that he was guilty simply

because he knew the mobile home complex had been used for such illegal purposes

in the past (i.e., “was used”), when the statute seemingly requires that he must have

foreseen that it “will be used” for such purposes in the future.

       Zeigler is correct that the Legislature used specific language that focuses on

his intended use of the mobile home complex at the time of the alleged crime; what

he may have known about how the mobile home complex “was used” in the past is

not the statutory focus. See, e.g., Delgado-George v. State, 125 So. 3d 1031, 1033-

34 (Fla. 2d DCA 2013) (the phrase “will be used” is the “operative language” such

that the “true intent at issue under the statute is the use the accused intended for the

[place, structure, etc.]”).

       Viewed in this light, the jury instruction would have been better phrased as

follows: “[Defendant] had the knowledge, at the time of possession, that the place,

structure, or part thereof, trailer or other conveyance was would be used for the

purpose of trafficking in a controlled substance or manufacture of a controlled

                                           3
substance.” The instruction used created a possibility that the jury found him guilty

for having known the mobile home complex had been used in the past for specific

illegal purposes, but that he had no intent that it would continue to be used for such

purposes. Though a close question—one that was not raised or discussed below—it

cannot be concluded that this oversight meets the high standard for fundamental

error.

         Our supreme court has said that “not all error in jury instructions is

fundamental error. ‘Instructions [to the jury] . . . are subject to the contemporaneous

objection rule, and, absent an objection at trial, can be raised on appeal only if

fundamental error occurred.’” Garzon v. State, 980 So. 2d 1038, 1042 (Fla. 2008)

(citations omitted). To “constitute fundamental error, the error 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.’” Id. (citations omitted).

Further, “‘fundamental error occurs only when the omission is pertinent or material

to what the jury must consider in order to convict.’ Failing to instruct on an element

of the crime over which the record reflects there was no dispute is not fundamental

error.” Id. (citations omitted).

         Here, the record reflects no discussion or argument about what Zeigler may

have known about the prior uses of the mobile home complex, only that he was

proven to have possession of it at the time when, the evidence showed, there were

                                            4
substantial indicia of activities of which he was aware that support the jury’s

conclusion that “trafficking in a controlled substance or manufacture of a controlled

substance” was ongoing. In other words, the semantic argument that the instruction

could have been improved upon (and should be in future prosecutions under the

statute) is a valid one, but the context of this case does not lend itself to the

conclusion on appeal that the guilty verdict “could not have been obtained without

the assistance of the alleged error.” Id. Instead, the jury could have concluded that

Zeigler knew, at the time of possession, that the mobile home complex would

continue to be used for the specific illegal purposes, notwithstanding some evidence

that supports that some illegal activities at the site had been curtailed or ceased, all

or portions of which the jury could have rejected. For these reasons, I concur in the

decision to affirm as to all issues.




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