          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D17-4094
                  _____________________________

TIMOTHY CLARENCE MILLER,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Duval County.
Steven B. Whittington, Judge.

                         August 16, 2018


JAY, J.

     In this direct criminal appeal from a judgment and sentence
for robbery with a firearm, Appellant argues that the trial court
committed fundamental error when it failed to instruct the jury
that a BB gun is not a firearm. Appellant also claims that if we
disagree with his first argument, we should find that defense
counsel’s failure to request the special instruction constituted
ineffective assistance of counsel that was evident on the face of the
appellate record. We decline to make the latter finding and do so
without further comment. Also, for the reasons that follow, we
conclude Appellant has failed to demonstrate fundamental error.
                                  I.

     On July 28, 2016, a surveillance camera captured stark
images of Appellant robbing a clerk at gunpoint at a Dollar Tree
Store in Jacksonville. In a post-arrest taped interview that was
played for the jury—when Appellant was faced with the
indisputable still photographs of him committing the robbery—
Appellant’s first concern was “what kind of time” he would get for
his actions. He then claimed that he had not planned to kill the
clerk because he was only armed with a BB gun. When the
detective asked Appellant to tell him where he had dumped the
gun—because it would “add to the credibility of [his] story . . . it
not being a real gun”—he equivocated. And, when asked to
describe the BB gun—whether it was a big one or a little one—
Appellant informed the detective that “it has a .44 [caliber] bullet.”
In response to the detective’s next question of whether it was
“semiautomatic or a revolver,” Appellant responded, “Revolver.”

     After studying the still photographs pulled from the
surveillance film, the detective commented, “So right now that as
far as I’m concerned it was a big ass gun, okay? You’re telling me
it was a BB gun. Tell me where I can find the gun that looks just
like that . . . .” Appellant gave the detective three different
locations as to where he had concealed the gun. The gun was never
recovered. The detective testified that after looking at the picture
of the gun and analyzing Appellant’s actions and statements, he
had “all the reason to believe that it was a firearm.” He further
explained it was his understanding that the opening where the
projectile comes out of a BB gun is “much smaller than a .44.”

     The store clerk testified as to how “cold” and “hard” the barrel
of the gun felt when Appellant placed it against the back of her
neck, under her hair. She heard the sound it made when Appellant
placed it on the counter in order to empty the cash register—it was
a heavy metal sound, like “when you drop something in the trash
can that’s metal.” It was not plastic. She stated she had shot a
handgun on prior occasions and the weapon Appellant possessed
did not appear to her to be a BB gun because the opening of the
gun’s barrel was not small, as it is on a BB gun. When asked if it
appeared to be a real gun, the clerk answered, “Yes, sir.”


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    The jury also heard a taped phone call from the jail between
Appellant and his mother. During their conversation, Appellant’s
mother asked him if he “did it.” Appellant said, “Yeah.” Then she
asked him if he had used a gun, Appellant said, “Yeah. Yeah.”

     In his closing arguments to the jury, defense counsel advanced
the following points:

         There is nothing in this case to show that it was a
    firearm. . . .

         ....

         And by definition what a firearm is is any weapon
    including a starter gun which will, is defined to or may
    readily be converted to expel a projectile by the action of
    an explosive, the frame or receiver of such weapon, any
    firearm muffler or firearm silencer, any destructive
    device, any machine gun. Key word explosive. There is
    nothing here that shows that – even what that weapon
    was, item or whatever you want to call what it was – had
    the capability of being an explosive weapon. . . . There
    was nothing to show that that gun had explosive
    capabilities.

        There’s nothing in that item to show that it was even
    a deadly weapon. Was it a BB gun? I don’t know. But
    according to Mr. Miller . . . [h]e said it was a BB gun . . . .

(Emphasis added.)

     With defense counsel’s express consent, the trial court
instructed the jury on the definition of “firearm” from section
790.001(6), Florida Statutes, as set out verbatim in Florida
Standard Jury Instruction (Crim.) 15.1:

         A firearm means any weapon including a starter gun
    which will, is designed to or may readily be converted to
    expel a projectile by the action of an explosive, the frame
    or receiver of any such weapon, any firearm muffler or
    firearm silencer, any destructive device, any machine
    gun.

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(Emphasis added.) In that same instruction, the trial court advised
the jury on the definition of a “deadly weapon” and a “weapon,” and
further, if the jury found Appellant was in possession of neither a
deadly weapon nor a weapon, but did commit the robbery, it was
free to find Appellant “guilty only of robbery.”

     Well into its deliberations, the jury submitted the following
question to the trial court: “Does a BB gun classify as a firearm
because it expels a projectile?” When the court read the question
to the parties, defense counsel immediately responded by asserting
that the “[d]efinition is in the jury instruction . . . .” After further
discussion, the prosecutor pointed out that “there is a case that
specifically cites that a BB gun is not a firearm.” The trial judge
retorted, “Well, I know that the BB gun is not a firearm. We all
know that.” Then he added, “There’s been no testimony about that,
no evidence about that. I don’t know that I’m comfortable telling
them that.” A brief, unreported sidebar took place following the
State’s suggestion that they craft a special instruction.

    Once back on the record, the judge announced:

         I have made a decision, I think both the state and the
    defense agree, that I’m simply going to bring the jury
    back in and tell them that they’ve heard all the evidence
    in the case and they’ve heard the definition specifically as
    to firearm and weapon, so I’ll refer them back. I’m not
    going to re-read it to them.

When asked, neither side had any objection to the judge’s decision.
The jury was called into the courtroom and the trial judge
instructed them as follows:

         You probably wish I could give you a better answer
    than this but this is what I am required to do and limited
    to do. All the evidence that you’ve heard in this case has
    been presented. There’s no other evidence that I can offer
    to you or explain to you and the definitions specifically as
    it relates to that question as to what a firearm is those
    are – that’s the law in Florida that defines what a firearm
    is, so I’ll defer [sic] you back to those pages in the jury
    instructions that you have back there that define again
    firearm, deadly weapon and weapon.
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Less than thirty minutes later, the jury returned a verdict finding
Appellant guilty of robbery as charged in the information. It also
specifically found that during the commission of the robbery,
Appellant carried a firearm and that Appellant “did actually
possess” the firearm. The trial court adjudicated Appellant guilty
in accordance with the jury’s verdict and sentenced him to a term
of thirty years’ imprisonment with a ten-year minimum
mandatory sentence based on his possession of the firearm. This
appeal followed.

                                  II.

     In Cardenas v. State, 867 So. 2d 384 (Fla. 2004), the Florida
Supreme Court applied the fundamental error analysis to jury
instructions:

    Instructions . . . are subject to the contemporaneous
    objection rule, and, absent an objection at trial, can be
    raised on appeal only if fundamental error occurred. To
    justify not imposing the contemporaneous objection rule,
    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.
    In other words, fundamental error occurs only when the
    omission is pertinent or material to what the jury must
    consider in order to convict.

Id. at 390 (emphasis added); see also Stewart v. State, 420 So. 2d
862, 863 (Fla. 1982).

     Here, consistent with the evidence, the jury received the
standard instructions related to the charge of robbery with a
firearm. Nothing essential to the charged offense was omitted.
When presented with the question of whether a BB gun is “a
firearm because it expels a projectile[,]” the trial court referred the
jury back to the instructions, which defined the terms firearm,
deadly weapon, and weapon. There was no objection to the court’s
response. The trial court was well within its discretion in the
manner it responded to the jury’s question. See Green v. State, 907
So. 2d 489, 497 (Fla. 2005) (“A trial court does have discretion in
answering or refusing to answer a jury’s question.”); Perriman v.


                                  5
State, 731 So. 2d 1243, 1247 (Fla. 1999) (“[T]he trial court did not
abuse its discretion in declining to give an additional instruction.”).

     Moreover, the State presented competent, substantial
evidence on the nature of the weapon used by Appellant during the
robbery, including the pictures of the gun from the surveillance
photographs, the store clerk’s testimony as to the characteristics
of the weapon pressed to her neck, the detective’s testimony that
what he saw in the photographs was a firearm, and Appellant’s
affirmative response to his mother’s question asking if he had
carried a gun. The taped interview of Appellant’s protestations
that he had only carried a BB gun could readily have been
interpreted by the jury as self-serving, given his initial interest as
to “what kind of time” he would get for the crime. Further, his
declaration to the detective that he had carried only a BB gun came
much later in the interview, when the detective emphasized the
undeniable evidence that Appellant was the robber.

     For his part, defense counsel forcefully cross-examined the
detective in order to inject doubt as to whether the weapon was in
fact a firearm or, as Appellant had claimed, merely a BB gun. And,
in closing arguments, he was careful to distinguish for the jury the
differences between a BB gun and a firearm based on the former’s
inability to expel a projectile by an “explosive” action.
Consequently, it was logical for defense counsel to propose
answering the jury’s “projectile” question with the statutory
definition of a firearm.

     Appellant relies for support on case law holding that a BB gun
is not a “firearm,” as that term is defined in section 790.001(6). See
J.M.P. v. State, 43 So. 3d 189 (Fla. 4th DCA 2010); Petz v. State,
917 So. 2d 381 (Fla. 2d DCA 2005); Mitchell v. State, 698 So. 2d
555 (Fla. 2d DCA 1997). However, in all three of those cases, the
weapon had been recovered and was identified as a BB gun. In the
present case, whether Appellant’s weapon was in fact a BB gun
was in dispute, since no weapon was ever found. As pointed out by
Appellee, there was circumstantial evidence from which the jurors
could have determined that it was not a BB gun—had they
believed the testimony of the store clerk and the detective; or, that
it was a BB gun—had they accepted as true Appellant’s statements
to the detective that it was only a BB gun.

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     That the jury wrestled with this evidence is readily apparent
from another question it posed to the trial court, that question
being whether there was “any more discussion about [the] gun or
BB gun on the collect [jail] call.” That question—and the one at the
forefront of this appeal—raised factual issues concerning the
ultimate question of fact the jurors were being asked to decide:
whether the weight of the evidence was sufficient to prove
Appellant was in possession of a firearm. This is not a case where
the trial court refused to give a requested instruction on a category
one lesser-included offense or gave a standard instruction that had
been invalidated by the Supreme Court, as in State v. Montgomery,
39 So. 3d 252 (Fla. 2010), or where the trial court gave instructions
that were fundamentally defective for omitting an essential
element of the crime charged, as was the case in Mercer v. State,
656 So. 2d 555, 556 (Fla. 1st DCA 1995). Rather, the trial court
properly instructed the jury on the necessary legal definitions. No
fault can be found on that score.

                                 III.

     We conclude that the trial court did not err—much less
commit fundamental error—when, in answer to the jury’s
question, it referred the jury back “to those pages in the jury
instructions” that defined a firearm, a deadly weapon, and a
weapon. See Cannon v. State, 180 So. 3d 1023, 1036 (Fla. 2015)
(“Generally, the feasibility and scope of any reinstruction of the
jury ‘resides within the discretion of the [trial] judge.’”) (citation
omitted). That response was perfectly consistent with the
evidence. Appellant, therefore, has not demonstrated fundamental
error within the meaning of Cardenas. Accordingly, Appellant’s
judgment of conviction and sentence are affirmed.

    AFFIRMED.

MAKAR and OSTERHAUS, JJ., concur.




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               _____________________________

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


Andy Thomas, Public Defender, and David A. Henson, Assistant
Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Benjamin L. Hoffman
and Samuel B. Steinberg, Assistant Attorneys General,
Tallahassee, for Appellee.




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