FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-4094

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TIMOTHY CLARENCE MILLER,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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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.
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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. 
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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.

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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.