           DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                  FOURTH DISTRICT

                                BRIAN K. SMITH,
                                   Appellant,

                                          v.

                              STATE OF FLORIDA,
                                   Appellee.

                                  No. 4D18-3076

                                [November 6, 2019]


                              CORRECTED OPINION

   Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Cynthia L. Cox, Judge; L.T. Case No.
312015CF001430B.

  Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Richard Valuntas,
Assistant Attorney General, West Palm Beach, for appellee.

FORST, J.

    Appellant was convicted for multiple offenses associated with his
robbery of a supermarket. He now raises three issues on appeal. We write
to address two of Appellant’s arguments; the third is affirmed without
discussion. First, we conclude the trial court did not fail to conduct an
adequate Richardson 1 hearing into the State’s discovery violation to
determine procedural prejudice to Appellant. Second, we conclude that
when the trial court instructed the jury on the lesser-included offense of
false imprisonment, it did not reversibly err in including restraint as an
element of the offense. Accordingly, the trial court’s judgment and
sentence are affirmed.



1   Richardson v. State, 246 So. 2d 771 (Fla. 1971).
                                Background

   About ten minutes before the supermarket closed, Appellant stormed
into the store, armed with a semiautomatic pistol and carrying a black
backpack. He pointed the pistol at the five people inside the store and
directed them to place their phones on the floor and go into the store’s
cash office, before closing the door behind them. Inside the cash office, he
directed the store manager to open the safe and put its contents (about
$3,000) into the black backpack.

    Appellant then took the black backpack, directed the victims to stay
inside the cash office for at least five minutes after he left, closed the door
to the cash office and ran out of the store. As he ran through the parking
lot, he encountered a store employee arriving for work. At gunpoint, he
ordered the employee into the store. Shortly thereafter, the victims
emerged from the cash office and called 911 to report the robbery. By this
time, Appellant had driven off. In response to the 911 call, police were
alerted about the robbery and pursued Appellant’s truck through local and
neighborhood roads, before apprehending him.

   The State ultimately charged and tried Appellant for robbery with a
deadly weapon while wearing a mask; six counts of kidnapping while
armed and masked; and fleeing and eluding. He was tried separately for
possession of a firearm by a convicted felon.

A. The State’s alleged discovery violation

   At trial, the primary issue was identity—whether Appellant was the
robber. In preparation for trial, the State prepared two map diagrams (“the
maps”) illustrating the flight route which Appellant took in his attempt to
evade the police. The maps also depicted the locations of various items,
such as the gun and the backpack filled with money, which had been
found along the flight route. Although the maps were prepared before trial
and the State intended to use the maps in presenting its case, the State
did not disclose the maps to the defense during discovery.

   The defense claimed that the State’s failure to disclose the maps
constituted a discovery violation. Specifically, it asserted that the State
had violated Florida Rule of Criminal Procedure 3.220(b)(1)(K), which
requires the State to disclose, within 15 days after service of the notice of
discovery, any tangible papers or objects intended for use at trial that are
not obtained from or do not belong to the defendant, so that the defense
may inspect, copy, test or photograph the material. In response, the State


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argued that the maps simply memorialized what was already in discovery,
and therefore, the maps could not be prejudicial.

   The trial court held a Richardson hearing and ruled that the State’s
nondisclosure of the maps was inadvertent and trivial, and that the
nondisclosure was not an attempt to hide anything from the defense
because the maps were “just a culmination and a demonstrative aid of”
evidence the defense had already received. Ultimately, the court allowed
the State to use both maps in its case in chief, subject to the defense’s
ability to cross-examine the officers testifying on the underlying
information. The maps were admitted into evidence without further
defense objection.

B. Appellant’s false imprisonment charges

    The information initially charged Appellant with, among other things,
six counts of kidnapping on the theory that he “did unlawfully and forcibly,
secretly or by threat, confine, abduct or imprison” the victims in the cash
office. At the close of the evidence, the trial court granted Appellant’s
motion for judgment of acquittal on the kidnapping charges on the basis
that the State had not presented sufficient evidence to support a finding
of kidnapping. Instead, the court instructed the jury on the lesser-
included offense of false imprisonment, correctly noting that false
imprisonment is established if the jury finds the defendant “forcibly,
secretly, or by threat, confined, abducted, imprisoned or restrained the
victims.” The jury returned a general verdict, finding Appellant guilty on
all five counts of false imprisonment.

                                  Analysis

A. Adequacy of the Trial Court’s Richardson Hearing

   On appeal, Appellant maintains that, although the trial court
conducted a Richardson hearing into the State’s purported discovery
violation, the hearing was inadequate because it failed to determine
whether the violation procedurally prejudiced his defense.

    “A Richardson hearing is required when there is a possible discovery
violation in order to flesh out whether there has indeed been a discovery
violation.” Thomas v. State, 63 So. 3d 55, 59 (Fla. 4th DCA 2011). This
requirement applies “even if the defendant does not request a Richardson
hearing.” Jones v. State, 32 So. 3d 706, 710-11 (Fla. 4th DCA 2010)
(internal citation omitted). However, “it is only after the trial court finds a
discovery violation” that it must inquire into whether the State’s discovery

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violation was (1) inadvertent or willful, (2) trivial or substantial, and (3)
whether it procedurally prejudiced the opposing party’s ability to prepare
for trial. Knight v. State, 76 So. 3d 879, 887-88 (Fla. 2011) (emphasis
added); Goldsmith v. State, 182 So. 3d 824, 827-28 (Fla. 4th DCA 2016);
Brown v. State, 165 So. 3d 726, 728-29 (Fla. 4th DCA 2015); Martin v.
State, 41 So. 3d 1100, 1101 (Fla. 4th DCA 2010). Thus, a trial court is
not required to conduct a Richardson hearing where it has not first
determined that a discovery violation has occurred. See Knight, 76 So. 3d
at 888.

   Here, it appears the trial court had difficulty finding the maps were
discovery because, although prepared for use at trial, the maps were
merely “demonstrative of the . . . physical evidence and the statements
and everything [the State] had already disclosed to the [Appellant].” “It is
well settled that the use of demonstrative devices to aid the jury’s
comprehension is well within the court’s discretion.” Lowe v. State, 259
So. 3d 23, 40 (Fla. 2018) (internal quotations omitted). “Demonstrative
aids may be used when they are ‘relevant to the issues in the case’ and
‘constitute an accurate and reasonable reproduction of the object
involved.’” Id. (quoting Brown v. State, 550 So. 2d 527, 528 (Fla. 1st DCA
1989).

   Here, the State used the maps at trial to supplement prosecution
witness testimony, and to help the jury visualize Appellant’s flight route
and specific locations along that route where various items of evidence
were found.     There is nothing to suggest the maps inaccurately
represented the flight route, or the locations of the evidence.

    Even assuming a Richardson hearing was required, we see no
conceivable prejudice to Appellant with respect to his trial preparation or
strategy. See Ferrari v. State, 260 So. 3d 295, 311-12 (Fla. 2018) (“[A]
discovery violation is subject to a harmless error analysis. A Richardson
violation is harmless error only if an appellate court can determine, beyond
a reasonable doubt, that the defense was not procedurally prejudiced.”)
(internal citations and quotation marks omitted); Lowe, 259 So. 3d at 40.
Again, as the trial court noted, the maps were simply “demonstrative of
the evidence and the physical evidence and the statements and everything
they have that they disclosed.”

   Therefore, the trial court did not abuse its discretion in allowing the
State to use the maps during the presentation of its case.

B. The False Imprisonment Instruction


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   Appellant argues the trial court erred in instructing the jury that it
could find him guilty of false imprisonment if it believed he “restrained”
the victims. Appellant submits that this was error because he was charged
in the information with kidnapping, an offense that does not include
“restraint” as an element.

   Appellant did not object to the jury instructions at trial, either during
the charge conference on jury instructions or during the review of the
verdict form. Therefore, Appellant may now raise the issue of jury
instructions on appeal only if fundamental error occurred. § 924.051(3),
Fla. Stat.; Taylor v. State, 62 So. 3d 1101, 1119 (Fla. 1991). Fundamental
error is error that reaches 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. Woods v. State, 95 So. 3d 925, 927 (Fla.
2012).

    To determine whether a fundamental error has occurred, the appellate
court reviews the claim de novo, considering the error’s effect in the
context of the evidence presented at trial and counsel’s arguments and
strategies. Id. at 927. When the jury instruction misstates or fails to
instruct on an element of a crime, the error is fundamental only where the
element was in dispute at trial, and the error is pertinent or material to
what the jury must consider in order to convict. Reed v. State, 837 So. 2d
366 (Fla. 2002); State v. Delva, 575 So. 2d 643, 645 (Fla. 1991) (“Failing
to instruct on an element of the crime over which the record reflects there
was no dispute is not fundamental error. . .”).

    Similarly, a jury instruction that erroneously includes an element that
the State neither argued nor presented evidence to support is not
fundamental error because it is not in dispute. State v. Weaver, 957 So.
2d 586, 588-89 (Fla. 2007) (“As with the omission of an element of the
offense that is not contested, the erroneous inclusion of an element that
the State concedes does not apply, and concerning which it presents no
evidence, is not ‘pertinent or material to what the jury must consider in
order to convict.’”). In other words, improperly including an additional
element not initially charged is not fundamental error if the element of the
offense is not in dispute at trial or material to the jury’s consideration. Such
an error does not reach down into the validity of the trial itself. Id. at 589.

   Appellant implies that, as a per se rule, instructing the jury on an
additional element automatically constitutes fundamental error. However,
this court and the Florida Supreme Court have repeatedly held otherwise.
See, e.g., Weaver, 957 So. 2d at 588-89; Battle v. State, 911 So. 2d 85, 89
(Fla. 2005); Delva, 575 So. 2d at 644-5; Abbott v. State, 958 So. 2d 1140,

                                       5
1142 (Fla. 4th DCA 2007). In Weaver, the Florida Supreme Court
explained “when the jury is erroneously instructed on an element that was
not charged, but on which the State never relied and on which it offered
no evidence,” there is no fundamental error, as the Court is “confident”
that the jury’s verdict would be based “on the elements on which the State
actually presented evidence, on which the State based its arguments, and
which the defendant contested at trial.” 957 So. 2d at 589 (internal
citations omitted).

    Similarly, in the instant case, while Appellant was entitled to a jury
instruction on the confinement, abduction and imprisonment elements of
false imprisonment, the inclusion of “restraint” as an element of false
imprisonment did not constitute fundamental error under the
circumstances of this case. Appellant conceded that the primary issue at
trial was whether he was the robber in the store. Furthermore, there was
no evidence to refute the victims’ testimony that Appellant had confined
the victims in the cash office. A critical determination in fundamental
error analysis is whether the erroneous instruction pertained to a disputed
element. Here, it did not. Thus, we find no fundamental error.

                                Conclusion

    Assuming a Richardson inquiry was required with respect to the
admission of the maps into evidence, it appears the trial court conducted
a sufficient inquiry and we see no conceivable prejudice to Appellant. We
further find no fundamental error with respect to the trial court’s including
restraint as an element of false imprisonment in the jury instructions,
because whether Appellant “restrained” or “confined” the victims was not
at issue at trial. On all issues addressed by Appellant’s appeal, we affirm.

   Affirmed.

TAYLOR and MAY, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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