Opinion
Case No. 2D19-1227
12-09-2020
Alexander Cipriano CHRISTIAN, Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II, Public Defender, and Victoria E. Hatfield, Special Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Jeffrey H.Assistant Attorney General, Tampa, for Appellee.
Howard L. Dimmig, II, Public Defender, and Victoria E. Hatfield, Special Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Jeffrey H.Assistant Attorney General, Tampa, for Appellee.
BLACK, Judge,
Alexander Christian appeals his judgment and sentence for possession of a firearm by a convicted felon. We affirm Christian's conviction but reverse his sentence because we find merit in Christian's claim that the trial court abused its discretion in declining to give a special jury instruction defining actual and constructive possession.
Christian was charged with aggravated battery with a deadly weapon, domestic battery by strangulation, false imprisonment, possession of a firearm by a convicted felon, and possession of ammunition by a convicted felon. The two possession charges stemmed from an incident unrelated to the events resulting in the battery and false imprisonment charges; the deadly weapon alleged to have been used in the aggravated battery was a knife. The operative amended information charged Christian with both actual and constructive possession of a firearm.
The case proceeded to trial on all counts in March 2019. The victim of the alleged batteries and false imprisonment testified. She described a harrowing ordeal that included being choked by Christian and stabbed with a knife wielded by Christian during an argument in the home they shared. She also testified that she had previously seen Christian holding a firearm. The State presented evidence that a firearm had been located in the home after Christian's arrest on the battery and false imprisonment charges and that Christian's DNA had been found on the firearm.
During the charge conference, Christian requested a special instruction relevant to the felon in possession of a firearm charge. The requested instruction, to be given in addition to the standard instruction, defined the terms actual and constructive possession. Christian contended that the instruction was necessary for purposes of sentencing because the jury was required to find that Christian actually possessed the firearm in order for the enhancement under section 775.087(2)(a)(1), Florida Statutes (2018), to apply but the standard instruction fails to differentiate between actual and constructive possession. The court entertained argument for and against the instruction and found Christian's argument to be valid; however, the court declined to give the instruction.
The jury found Christian not guilty of the batteries and false imprisonment, apparently rejecting the victim's testimony. However, the jury found Christian guilty of possession of a firearm by a convicted felon and possession of ammunition by a convicted felon. The verdict form included a special interrogatory requiring the jury to determine whether Christian actually possessed the firearm if it found him guilty of being a felon in possession of a firearm. The interrogatory was answered in the affirmative.
Because Christian could not be convicted of both felon in possession of a firearm and felon in possession of ammunition for simultaneous possession, the trial court acquitted Christian of the possession of ammunition charge. See Boyd v. State, 17 So. 3d 812, 818 (Fla. 4th DCA 2009). A judgment was entered for possession of a firearm by a convicted felon, a second-degree felony, and Christian was sentenced to ten years in prison with a three-year mandatory minimum term pursuant to section 775.087(2)(a)(1).
On appeal, with regard to the requested special jury instruction Christian primarily contends that the trial court abused its discretion in failing to give the special instruction because the standard instruction for felon in possession of a firearm did not adequately cover the theory of defense. He also contends that had the jury been instructed on the definitions of actual and constructive possession it would not have found that he actually possessed the firearm but would have answered the special interrogatory in the negative. While we do not agree with the former argument, and therefore affirm his conviction, we find merit in the latter argument insofar as it relates to Christian's sentence.
In 2018, the standard instruction for possession of a firearm by a convicted felon was significantly amended, and it no longer includes express definitions of either actual or constructive possession. In re Standard Jury Instructions in Criminal Cases-Report 2018-01, 253 So. 3d 1024, 1025 (Fla. 2018). As given at Christian's trial, the standard instruction provides, in relevant part:
To prove the crime of [possession of a firearm], the State must prove the following two elements beyond a reasonable doubt:
1. (Defendant) had been convicted of a felony.
2. After the conviction, (defendant) knowingly
a. owned or had in [his] ... care, custody, possession, or control [a firearm] ....
....
"Care" and "custody" mean immediate charge and control exercised by a person over the named object. The terms care, custody, and control may be used interchangeably.
To prove (defendant) "possessed" [a firearm] ... the State must prove beyond a reasonable doubt that [he] ... a) knew of the existence of the [firearm] ... and b) intentionally exercised control over it.
Control can be exercised over [a firearm] ... whether it is carried on a person, near a person, or in a completely separate location. Mere proximity to [a firearm] ... does not establish that the person intentionally exercised control over it in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the [firearm] ... or the present ability to direct its control by another.
Fla. Std. Jury Instr. (Crim.) 10.15 (2018). Until 2018, the standard instruction identified the two types of possession—actual and constructive—and provided definitions of each, with the definition of constructive possession to be given if applicable to the case:
To "possess" means to have personal charge of or exercise the right of ownership, management, or control over an object.
Possession may be actual or constructive.
Actual possession means
a. the object is in the hand of or on the person, or
b. the object is in a container in the hand of or on the person, or
c. the object is so close as to be within ready reach and is under the control of the person.
....
Constructive possession means the object is in a place over which (defendant) has control, or in which (defendant) has concealed it.
If an object is in a place over which (defendant) does not have control, the State establishes constructive possession if it proves that (defendant) (1) has knowledge that the object was within (defendant's) presence, and (2) has control over the object.
Fla. Std. Jury Instr. (Crim.) 10.15 (2017). Although not identical to the pre-2018 standard instruction, the special instruction requested by Christian identified the two types of possession and accurately defined them.
While a finding of either actual or constructive possession will support a conviction for possession of a firearm by a felon, case law is clear that a finding of actual possession is necessary to support imposition of the three-year mandatory minimum enhancement under section 775.087(2)(a)(1). Swain v. State, 226 So. 3d 1002, 1003-04 (Fla. 1st DCA 2017) (first citing Miller v. State, 838 So. 2d 644, 644 (Fla. 1st DCA 2003) ; then citing Johnson v. State, 855 So. 2d 218, 222 (Fla. 5th DCA 2003) ; and then citing Bundrage v. State, 814 So. 2d 1133, 1135 (Fla. 2d DCA 2002) ). It is equally clear that the actual possession finding for purposes of sentencing must be made by the jury: "[F]acts that increase mandatory minimum sentences must be submitted to the jury ...." Alleyne v. United States, 570 U.S. 99, 116, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) ; see also Williams v. State, 242 So. 3d 280, 286 (Fla. 2018) ("[A]ny fact that increases the mandatory minimum sentence for an offense is an ‘element’ which must be submitted to a jury and found beyond a reasonable doubt." (citing Alleyne, 570 U.S. at 108, 133 S.Ct. 2151 )).
"[T]he failure to give special jury instructions does not constitute error where the instructions given adequately address the applicable legal standards." Stephens v. State, 787 So. 2d 747, 755 (Fla. 2001). Here, although the jury was presented with a special interrogatory asking it to determine whether Christian actually possessed the firearm, the jury was not given an instruction defining actual possession or otherwise explaining that there are two types of possession. On the issue of whether Christian actually possessed the firearm for purposes of determining whether the enhancement of section 775.087(2)(a)(1) applied, the standard instruction was inadequate; the jury had no definition of actual possession under which to consider the interrogatory and allow it to make an informed decision. Cf. Humphreys v. State, 299 So. 3d 576, 579 (Fla. 5th DCA 2020) (concluding that alteration of an instruction was erroneous where the question submitted to the jury was whether a flare gun is a deadly weapon and the jury had no definition of deadly weapon to apply). For that reason, we conclude that the trial court abused its discretion in declining to give the requested instruction. And "[b]ecause the record fails to demonstrate beyond a reasonable doubt that a rational jury would have found [the fact necessary for the enhancement]," the error in refusing to give the special instruction cannot be deemed harmless. See Williams, 242 So. 3d at 292.
Accordingly, we reverse Christian's sentence and remand for a full resentencing hearing at which Christian shall be present.
Affirmed in part; reversed in part; remanded.
LUCAS and ATKINSON, JJ., Concur.