Crump v. State, 92-2712

• Decision Date: 10 December 1993
• Docket Number: No. 92-2712,92-2712
• Citation: 629 So.2d 231
• Parties: 18 Fla. L. Weekly D2619 Robinson CRUMP, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 231

629 So.2d 231

18 Fla. L. Weekly D2619

Robinson CRUMP, Appellant, v. STATE of Florida, Appellee.

No. 92-2712.

District Court of Appeal of Florida Fifth District.

Dec. 10, 1993.

Rehearing Denied Jan. 5, 1994.

Lynn Alan Thompson, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Rebecca Roark Wall, Asst. Atty. Gen., Daytona Beach, for appellee.

THOMPSON, Judge.

Robinson Crump appeals his judgment and sentence adjudicating him guilty of attempted robbery with a firearm pursuant to Section 812.13, Florida Statutes (1991). We affirm his conviction and sentence.

Crump along with codefendant Darryl Embry entered the lobby of a Ramada Inn motel. Behind the counter was Alice Swope, the night auditor. Swope referred to the two men as the taller one and the shorter one. Swope identified Crump as the shorter one. Both men, she said, were armed with firearms. She testified that Crump had a small "silver gun, something a lady would carry in her purse" and that it looked like a real gun capable of firing a bullet. The taller one, Embry, jumped the counter and went to another room. Crump told Swope to keep quiet and not say a thing. He then asked her where the money was kept. She pointed to where the money was because she was afraid and wanted to do exactly as ordered by Crump.

Unknown to the two men, an off duty Orlando Police Officer, Shawn Fawbush, was working on the premises as a security guard. He was in his police uniform and he was carrying his service weapon. Once he became aware of the attempted robbery, he told Swope to get down and stay down and he attempted to apprehend the two men. Swope heard Embry call to Crump to "shoot him," referring to Fawbush. Fawbush apprehended Embry after firing four rounds from his service weapon. Crump fled the building and was apprehended later in another county. The weapon Crump carried was never recovered.

Embry identified Crump as his codefendant and testified at trial that both of them were armed and that the guns came from Crump. Embry said that Crump had given him a black gun shortly before they entered the Ramada Inn. Embry saw Crump with a small silver automatic. Embry said both guns appeared to be capable of firing a bullet and they had not been altered to prevent firing a bullet. The jury found Crump guilty of attempted armed robbery with a firearm.

Crump raises three points on appeal: first, although the judge defined "firearm," the judge failed to define "deadly weapon" and "weapon" during his initial instructions to the jury; second, the state did not prove that Crump had a firearm during the attempted robbery; and, third, Crump's sentence was improperly enhanced based solely on the fact that his codefendant had a weapon.

During the charge conference, Crump's trial counsel and the state debated the offenses to be given as lesser included offenses. After discussing which lesser included offenses were mandatory and which were permissive, it was agreed by the lawyers that the court would give instructions on attempted robbery with a deadly weapon, attempted robbery with a weapon and attempted robbery. The trial judge agreed to do this. During the initial instructions to the jury the judge defined "firearm," but did not define "deadly weapon" and "weapon." During deliberations the jury came back with a request:

We need instructions on the difference between firearm, deadly weapon, and weapon.

The trial judge read the instruction defining "firearm" twice at the request of the jury and defined "deadly weapon" and "weapon" once for the jury. Crump was then sentenced to three years in the Department of Corrections with the requirement that he serve a minimum mandatory sentence of three years pursuant to Section 775.087(2), Florida Statutes (1991) because he used a firearm.

Crump argues on appeal that this case must be reversed because the trial judge erred when he did not initially define "deadly weapon" and "weapon." Crump argues that there was fundamental error committed by the trial judge and the only cure is to reverse and remand his case for a new trial. He argues that the failure to define the terms requires reversal because there was not a proper instruction on lesser included offenses. He also argues that a proper objection need not be raised in the trial court because a failure to properly instruct is fundamental error. See Brown v. State, 206 So.2d 377 (Fla.1968); Thompson v. State, 487 So.2d 311 (Fla. 5th DCA), review denied, State v. Coleman, 494 So.2d 1153 (Fla.1986); Hayes v. State, 564 So.2d 161 (Fla. 2d DCA 1990). Crump cites the correct law, but it does not apply in this case. There was a proper instruction to the jury on the definition of the terms necessary to understand the lesser included offenses.

During the trial the defense attorney raised no objection to the trial judge not defining the terms that are the subject of this appeal. Had there been a proper objection, the trial judge could have cured the problem by reinstructing the jury. Instead, the jury was reinstructed at the jury's request. The experienced trial judge gave the precise definitions sought after the jury came back for clarification. There is no doubt that the terms were defined to the jury as often as they requested: "firearm" twice and "deadly weapon" and "weapon" once each. The trial judge asked the jury if they wanted the last two definitions read again. None of the jurors requested that the definitions be reread. The trial judge then asked the defense attorney if there was anything else and he said no. The jury heard all of the definitions needed to decide the case.

This case is not one where the appellate court is required to determine if the proper complete...