          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D16-1668
                  _____________________________

KISHON LARHAME BIRCH,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________

On appeal from the Circuit Court for Duval County.
Marianne L. Aho, Judge.

                           May 25, 2018

KELSEY, J.

     On appeal from his conviction for possession of a firearm by a
convicted felon, Appellant raises four issues, all of which we reject.
We affirm Appellant’s conviction and sentence, and write to
address two of his arguments: (I) that the charging language was
constitutionally defective and precluded the state from pursuing a
theory of constructive possession, and (II) that the evidence was
insufficient to support a finding of constructive possession.

I. THE CHARGING LANGUAGE.

    A. The Information, Verdict Form, and Instructions.

    The state charged Appellant by information with both second-
degree murder and possession of a firearm by a convicted felon.
Both counts of the information charged that Appellant “actually
possessed” a firearm—language required to invoke the 10-20-Life
sentence enhancement. § 775.087(2)(a)1., Fla. Stat. (2012)
(requiring that the accused “actually possessed a ‘firearm’ or
‘destructive device’”); Arnett v. State, 128 So. 3d 87, 87–88 (Fla. 1st
DCA 2013) (“In order to enhance a defendant’s sentence under
section 775.087(2), the grounds for enhancement must be clearly
charged in the information.”). The information caption and the
charge for felon in possession provided as follows:

    INFORMATION FOR:

    1)    MURDER IN THE SECOND DEGREE
    2)    POSSESSION OF A FIREARM BY A CONVICTED
          FELON
    ...
                              COUNT 2

          KISHON LARHAME BIRCH on May 16, 2012, in
    the County of Duval and the State of Florida, did actually
    possess a firearm, to-wit, a handgun, having been
    convicted of a felony in the courts of the State of Florida,
    to-wit: Armed Robbery, in the Circuit Court, in and for
    the Fourth Judicial Circuit of Florida, on December 11,
    2003, contrary to the provisions of Sections 790.23(1)(a)
    [felon in possession] and 775.087(2)(a)(1) [10-20-Life],
    Florida Statutes.

     The verdict form for felon in possession started with “We, the
jury, find the defendant guilty of Possession of a Firearm by a
Convicted Felon, as charged in the information.” The “as charged”
phrase fuels Appellant’s first argument: that the state was limited
to pursuing actual possession because the information used the
phrase “actually possess” to satisfy 10-20-Life.

     On the same page of the verdict form, just below the option of
guilty as charged, was a special interrogatory verdict asking
whether Appellant did or did not actually possess a firearm during
the commission of the offense. This special interrogatory is a
mandatory prerequisite to 10-20-Life sentence enhancement,
because the enhancement requires the jury to find facts different
from the facts necessary to convict of the underlying crime. See

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Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than the
fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.”); State
v. Overfelt, 457 So. 2d 1385, 1387 (Fla. 1984) (“The question of
whether an accused actually possessed a firearm while committing
a felony is a factual matter properly decided by the jury.”),
overruled in part by Washington v. Recueno, 548 U.S. 212, 221
(2006), as recognized in Galindez v. State, 955 So. 2d 517, 522–23
(Fla. 2007); Banks v. State, 949 So. 2d 353, 355 (Fla. 4th DCA 2007)
(“To impose a three-year mandatory minimum sentence . . . the
factfinder must make a specific finding of actual possession.”)
(quoted in Arnett, 128 So. 3d at 87–88).

      In contrast to the 10-20-Life sentence enhancement, the crime
of felon in possession is not limited to actual possession. The felon
in possession statute prohibits convicted felons, among others,
from owning or having in their “care, custody, possession, or
control any firearm, ammunition,” and other weapons or devices.
§ 790.23(1), Fla. Stat. Thus, “[a] finding of either actual or
constructive possession will support a conviction” for felon in
possession. Swain v. State, 226 So. 3d 1002, 1003 (Fla. 1st DCA
2017); see also State v. Mulus, 970 So. 2d 349, 350 (Fla. 3d DCA
2007) (noting courts interpret section 790.23 as meaning
possession can be actual or constructive).

     A jury can infer constructive possession when the evidence
shows a gun was in plain view or the defendant otherwise knew of
its presence and had the ability to control it. Barlatier v. State, 26
So. 3d 29, 32 (Fla. 3d DCA 2009) (holding presence of gun under
driver’s seat where defendant was sitting established constructive
possession); Hunter v. State, 914 So. 2d 985, 986 (Fla. 4th DCA
2005) (holding evidence sufficiently supported constructive
possession of a firearm in plain view next to defendant’s position
in the driver’s seat; he knew of its presence and had the ability to
control it); see also Ubiles v. State, 23 So. 3d 1288, 1291 (Fla. 4th
DCA 2010) (holding the state proved constructive possession of
marijuana in defendant’s vehicle where passenger was smoking it
while defendant was driving, and burnt marijuana cigarettes were
plainly visible in center ashtray).


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      Consistent with the felon in possession statute and case law
holding that either actual or constructive possession will support
a felon in possession conviction, this jury was instructed accurately
and without objection that “possession” could be either actual or
constructive. The instruction defined each form of possession,
tracking the pertinent portions of Standard Jury Instruction
(Criminal) 10.15, as follows:

    To “possess” means to have personal charge of or exercise
    the right of ownership, management, or control over.

     Possession may be actual or constructive.

     Actual possession means

             a. the [gun] is in the hand of or on
         [Appellant’s] person, or

              b. the [gun is] in a container in the hand
         of or on [Appellant’s] person, or

             c. the [gun] is so close as to be within
         ready reach and is under the control of
         [Appellant].

    Mere proximity to an object is not sufficient to establish
    control over the object when the object is not in a place
    over which the person has control.

    Constructive possession means the object is in a place
    over which [Appellant] has control, or in which
    [Appellant] has concealed it.

    If an object is in a place over which [Appellant] does not
    have control, the State establishes constructive
    possession if it proves that [Appellant] (1) has knowledge
    that the object was within [Appellant’s] presence, and
    (2) has control over the object.

    Possession may be joint, that is, two or more persons may
    jointly possess an object, exercising control over it. In that

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    case, each of those persons is considered to be in
    possession of that object.

     On the facts presented, we must affirm. As explained in
subsections B and C below, we conclude that the information was
not defective or fundamentally erroneous, and did not preclude a
conviction for either actual or constructive possession. The jury’s
special interrogatory verdict finding no actual possession under
10-20-Life is not properly extended to preclude guilt of the
underlying offense by constructive possession. Point II
demonstrates that the evidence of possession was more than
sufficient to survive Appellant’s motion for judgment of acquittal,
and to support the guilty verdict for felon in possession.

        B. Unpreserved and Not Fundamental Error.

     Appellant did not preserve his present arguments arising
from the charging language for possession of a firearm, and cannot
show fundamental error. Any defect in the charging instrument
did not rise to the level of a deprivation of due process.

     The charging paragraph under “Count 2” did not use the word
“constructive,” and did not recite the statutory language making it
unlawful to “own or to have in his or her care, custody, possession,
or control” a firearm or other prohibited item. Instead, the
information caption designated the charge in Count 2 as
“Possession of a Firearm by a Convicted Felon,” and the charging
paragraph stated that Appellant’s actions were “contrary to the
provisions of Sections 790.23(1)(a) and 775.087(2)(a)(1).” The word
“possess” appears only in the phrase “actually possess,” which the
State argues was included to satisfy Arnett. 128 So. 3d at 87–88.
Appellant argues that by charging actual possession as required
under Arnett to invoke 10-20-Life, the state gave up the right to
pursue constructive possession as the basis for a felon in
possession charge.

     Appellant concedes he did not challenge the adequacy of the
information below. His motion for judgment of acquittal made
after the state rested, and renewed at the close of evidence, did not
distinguish between actual and constructive possession, but
argued superficially that there was no evidence that Appellant

                                 5
had, used, or possessed a firearm. Appellant did not object to the
jury instruction on constructive possession, nor to the verdict form.
Likewise, his new-trial argument did not distinguish between
actual and constructive possession. The alleged error was not
preserved.

     An unpreserved error is reviewed only for fundamental error,
meaning it 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). Fundamental error in a charging
instrument exists only when the alleged defect deprives the
defendant of due process. No such deprivation occurs so long as the
defendant is on notice of the charges against him, and this
requirement is satisfied when the information cites the statute
defining the crime. 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.”).

     A document charging both felon in possession and 10-20-Life
sentence enhancement can be written in a variety of ways and still
be valid. Here, the information was captioned as “Possession of a
Firearm by a Convicted Felon,” and the body of the charge cited
section 790.23(1)(a), the felon in possession statute. The statute
includes all elements of the possession crime, and its citation in
the information placed Appellant on notice of the charges against
him. Burnette, 881 So. 2d at 695. In addition, Appellant was well
aware of the evidence supporting each form of possession, from his
own personal knowledge as a direct participant in the fatal
encounter, from the facts revealed during discovery, from the
evidence introduced at trial, and from argument of counsel at trial.
This was not a deprivation of due process. We therefore reject
Appellant’s argument arising out of an alleged defect in the
charging information.




                                  6
  C. 10-20-Life Does Not Redefine The Underlying Crime.

     Appellant’s other argument arising from the charging
language is that the information must be construed as precluding
prosecution for constructive possession. Appellant suggests that
the jury’s acquittal of second-degree murder and its 10-20-Life
finding of no actual possession preclude guilt of constructive
possession. To the contrary, it is analytically incorrect to interpret
10-20-Life charging language as limiting the permissible scope of
the prosecution for the underlying crime. The charge, instruction,
and interrogatory for 10-20-Life sentence enhancement are
analytically distinct from the underlying crime. The state was free
to prosecute Appellant for both actual and constructive possession.
The jury’s separate interrogatory finding of no actual possession
“during the commission of the offense” precludes only the
minimum-mandatory sentence enhancement under 10-20-Life, not
guilt of the underlying possession offense.

     By definition, the 10-20-Life sentence enhancement applies
only in cases of actual physical possession, not for constructive
possession and not through some other theory such as principal.
Kenny v. State, 693 So. 2d 1136, 1136–37 (Fla. 1st DCA 1997). The
sentence enhancement created in section 775.087(1) is not itself a
substantive offense or an element of any underlying offense. Even
though a connection between the enhancement and underlying
crime may seem facially logical, a jury’s 10-20-Life finding has no
legal bearing on the findings or evidence required to convict of an
underlying crime. The statute and case law governing the
underlying crime apply to determine whether the state has
established guilt of that crime. A special interrogatory verdict such
as for 10-20-Life is thus analytically separate from verdicts for
underlying crimes, and neither eliminates nor supplies an element
of the underlying crimes.

     The need to recognize that functional limitation on a 10-20-
Life finding, and similar enhancement and reclassification
findings, is one reason why it is advisable to present special
interrogatories separately from verdicts for underlying crimes.
The Florida Supreme Court has advised that, in the course of
sequencing charged and lesser offenses in descending order in
verdict forms, “[a]ny factor required to be found by the jury for

                                  7
reclassification or enhancement purposes may then [after
sequencing charged and lesser offenses by degree] be placed in a
separate interrogatory at the appropriate place.” Sanders v. State,
944 So. 2d 203, 207 (Fla. 2006). The court did not specify what “the
appropriate place” is, but the three-Justice concurring opinion
suggested that it be a place separate from the verdict form for the
substantive offense:

     [T]rial courts should provide an interrogatory separate
     from the verdict form for the core or substantive offenses
     for the jury to determine the existence of circumstances
     that can result in mandatory minimum sentences,
     sentence enhancements, or offense reclassifications.
     . . . . Substantive or core offenses and the facts
     supporting reclassifications, enhancements, and
     mandatory minimum sentences for these offenses are
     distinct. Trial courts instructing juries on lesser
     included offenses should give instructions and provide
     verdict forms that comport with this distinction.

Id. at 207, 208 (Pariente, J., concurring) (emphasis added); see also
Staten v. State, 203 So. 3d 169, 2016 WL 5156689, at *1–3 (Fla. 3d
DCA 2016) (Emas, J., concurring). Judge Emas “strongly echo[es]”
the suggestion of the Sanders concurrence that special
interrogatories be physically separated from the core verdict
forms. Id. at *2. He emphasizes that special interrogatories are
“not a determination of guilt for the core or substantive offense.”
Id. He recommends separate forms with separate signature lines
for the foreperson. Id. at *3. His analysis emphasizes the
distinction between determinations of guilt of the core offense and
the existence of facts necessary for reclassification or mandatory
minimum sentences. Id.

     These cogent analytical observations drive home the point
that jury determination of the two issues—guilt and additional
circumstances—is a “distinct, sequential task[].” Sanders, 944 So.
2d at 208. Likewise, because guilt and reclassification or
enhancement are distinct inquiries, we as a reviewing court must
not merge the two. Just as jurors are instructed that they must
consider separately each crime charged, so too must we respect the
legal distinction between separately-charged crimes, and between

                                 8
crimes and sentence reclassifications or enhancements. Applying
the proper analysis, we must reject Appellant’s argument that the
special interrogatory verdict finding no actual possession for
purposes of 10-20-Life requires us to vacate the verdict on felon in
possession.

II.   THE EVIDENCE WAS SUFFICIENT TO SUSTAIN THE VERDICT.

     Just as a sentence enhancement is analytically distinct from
the underlying crime, each crime charged is distinct and involves
its own elements. Acquittal of second-degree murder does not
require acquittal of felon in possession. Again, while there may be
facial logic in tying the two together, as a matter of law they are
distinct. If the evidence, viewed in a light most favorable to
sustaining the jury’s verdict, can satisfy the elements of felon in
possession, that verdict must stand regardless of the jury’s
decision on second-degree murder.

     Here, the jury could have acquitted Appellant of second-
degree murder by finding that he constructively possessed the gun
during the incident, but did not fire the fatal shot. The jury could
have found that Appellant did fire the fatal shot but did so by
accident. Or the jury could have found that regardless of who
pulled the trigger or was holding the gun when it discharged, there
was a moment after the victim was shot when Appellant alone had
control of the gun. In any such scenario, Appellant was not guilty
of second-degree murder, but could have been a felon in possession.
Alternatively, as the state argued, the jury could have exercised
its power of lenity and found that the state did not prove second-
degree murder, but that Appellant had some guilty involvement of
a lesser degree, choosing the only other option offered to it. All of
these are valid scenarios, and under any of them, Appellant’s
judgment and sentence must be affirmed.

     The evidence established without contradiction that the
victim died of a gunshot wound to the head. The barrel of the gun
was between her cheek and left molars when the gun discharged.
The physical evidence at the crime scene established that
Appellant was in the kitchen with the victim before she died, when
she was shot, and after she was shot; then fled the scene. The
inescapable threshold conclusion from that evidence is that there

                                 9
was a gun in the kitchen and that Appellant was in the kitchen at
the same time. It was a small galley kitchen. He could reach it
without taking more than a step or two no matter where it was. It
was within ready reach. He was there when it discharged, within
inches of the victim and facing her. He knew it was there. He could
control it.

     Appellant is a man, taller and, based on the evidence of the
victim’s non-lethal injuries, stronger than she was. The forensic
evidence established that before she died, the victim sustained
impact injuries resulting in bruising on the back of her left arm;
under and beside her left eye, resulting in a black eye; over her left
cheekbone and teeth; behind her right ear; and ligature marks on
her neck consistent with a necklace having been yanked off of her.
The bruise on her left cheek was deep, through to the inside of her
mouth and all the way down to the bone. The victim’s two
daughters, ages five and eight at the time, had seen and heard
Appellant and the victim fighting—both verbally and physically—
throughout the apartment and in the kitchen. They were standing
in the kitchen when they saw Appellant “slinging” their mother
around. The older girl saw him beating her mother’s head on the
window. Both girls saw and heard her yelling for him to stop
banging her against the window. They saw her pushing him away
with both hands. A neighbor boy was playing outside the kitchen
and saw the screen from the kitchen window pop out and nearly
hit him during the struggle because of something hitting the
window from the inside. He immediately went and told his mother
they were fighting in the apartment and the victim was “slung into
the window and the screen popped out.” The girls then saw
Appellant push their mother to the floor. This is competent
evidence that Appellant had control of the victim and he had
control of the place.

    The state adduced independent evidence that Appellant
possessed a gun. The victim’s older daughter testified that she saw
Appellant grab her mother, push her to the floor by the stove, and
then commit an action that resulted in blood coming from her
mother’s mouth and neck: “I saw him beating her head on the
window. Then that’s when she went on the floor. And he did
something by the stove, and then that’s when blood came out of her
mouth and neck.” The younger girl, only five at the time of the

                                 10
death, testified that she saw Appellant push her mother to the
floor and then grab “a small pot” from the stove, containing grease,
which he poured “a lot of” on the victim and then it turned into
blood. At about this time (working backwards from when
Appellant was seen running from the apartment), the neighbors
heard a “boom” that caused them to come to the apartment to see
what was going on. Although both girls testified that they did not
hear a shot or see a gun, the jury was entitled to interpret the girls’
descriptions of the crime as the girls’ way of depicting the shooting
that very obviously did, in fact, occur. Both of them as direct eye-
witnesses identified Appellant as having engaged in the actions
that resulted in blood pouring out of their mother’s mouth and
neck. Separate, undisputed evidence identified the causative
action as a shooting. That was legally sufficient evidence to allow
the jury to convict Appellant of either actual or constructive
possession of a firearm.

      In addition, there was evidence from which the jury could
conclude that shortly before the shooting, Appellant had exclusive
access to a box of cartridges from which the fatal bullet could have
come. Appellant and the victim had lived together off and on in the
victim’s apartment. The older girl testified that at one point during
the fight, Appellant went in the master bedroom alone and locked
the door. She saw her mother pound on the bedroom door and
heard her call for him to open it. Law enforcement investigating
the scene found the box of cartridges in open view on a closet shelf.
The box held 44 cartridges matching the caliber of the bullet found
in the victim’s head. Although there was only one empty spot in
the box, it contained five cartridges that did not match the original
contents. The defense argued at trial that the sole empty spot in
the box supported a suicide theory; but the same evidence,
including the absence of six cartridges matching the caliber of the
fatal shot, would equally support the theory that Appellant took
from the bedroom one cartridge or a gun containing one or up to
all six of the missing cartridges matching the caliber of the fatal
bullet.

     If we properly interpret and apply the governing law to this
evidence, we must conclude that the evidence was legally sufficient
to sustain the jury’s verdict. We reject as meritless Appellant’s
remaining arguments, and affirm his judgment and sentence.

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    AFFIRMED.

B.L. THOMAS, C.J., and RAY, J., concur.

                 _____________________________

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

Andy Thomas, Public Defender; Maria Ines Suber, Assistant
Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General; Angela R. Hensel and
Quentin Humphrey, Assistant Attorneys General, Tallahassee, for
Appellee.




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