Yes. Just because prosecutors used the words 'actually held' the gun to ask for a special, tougher sentence doesn't mean they were stuck with that one story. The question of whether Birch gets a longer sentence is separate from the question of whether he is guilty of the basic crime. The crime of 'felon with a gun' can be proven if he was holding it OR if he just had control over it. Because the charging paper listed the correct law, Birch knew what he was accused of. The jury said 'no' to the tougher sentence but 'yes' to the crime, and that's okay because those are two different decisions. There was enough evidence that Birch had control over the gun in the tiny kitchen during the fight, so the guilty verdict was fair.

Yes, the legal papers were good enough to charge Birch with having control over a gun, even if he didn't have it right on him. The jury was told correctly about the rules for having a gun, including having it nearby or in a place you control. There was enough proof to show that Birch knew about the gun and could control it, even if he wasn't holding it. The evidence showed he was very close to where the gun was when it was used, and he might have had access to bullets that fit the gun. Just because the jury said he didn't have the gun right on him for the extra punishment doesn't mean he couldn't be found guilty of having control over it in some way. So, we agree with the decision that found him guilty of having a gun when he wasn't supposed to.

No. The state's inclusion of language required for a sentence enhancement does not limit its theory of prosecution for the underlying substantive crime. The charge for a sentence enhancement is analytically distinct from the charge for the underlying offense. The crime of felon in possession can be proven by either actual or constructive possession. The charging document cited the correct statute for the offense, which provided Birch with sufficient notice to satisfy due process. The jury's separate interrogatory finding of no 'actual possession' for the 10-20-Life enhancement legally precludes only the enhancement itself, not a conviction for the underlying offense based on constructive possession. The evidence presented, showing Birch's presence, knowledge, and ability to control the firearm in the small kitchen during a violent struggle, was sufficient to support a finding of constructive possession.

Yes. The information was constitutionally sufficient to support a conviction for constructive possession because it charged the defendant under the statute governing felon in possession, which includes both actual and constructive possession. The jury was properly instructed on the definitions of actual and constructive possession. The evidence presented at trial was sufficient to support a finding of constructive possession. We reject the argument that the charging language precluded prosecution for constructive possession. The 10-20-Life sentence enhancement is analytically distinct from the underlying crime of felon in possession. The jury's finding of no actual possession for 10-20-Life purposes does not negate a possible finding of constructive possession for the underlying offense. The evidence, viewed in the light most favorable to sustaining the jury's verdict, was sufficient to establish that Birch had knowledge of and control over the firearm, satisfying the elements of constructive possession. The physical evidence and witness testimony placed Birch in close proximity to the gun at the time of the shooting, and circumstantial evidence suggested he had access to ammunition matching the fatal bullet. Therefore, we affirm Birch's conviction and sentence for possession of a firearm by a convicted felon.

Yes. The information charging the defendant with possession of a firearm by a convicted felon was constitutionally sufficient to support a conviction for constructive possession, and there was sufficient evidence to support such a conviction because it charged the defendant under the statute governing felon in possession, which includes both actual and constructive possession. The jury was properly instructed on the definitions of actual and constructive possession. The evidence presented at trial was sufficient to support a finding of constructive possession. We reject the argument that the charging language precluded prosecution for constructive possession. The 10-20-Life sentence enhancement is analytically distinct from the underlying crime of felon in possession. The jury's finding of no actual possession for 10-20-Life purposes does not negate a possible finding of constructive possession for the underlying offense. The evidence, viewed in the light most favorable to sustaining the jury's verdict, was sufficient to establish that Birch had knowledge of and control over the firearm, satisfying the elements of constructive possession. The physical evidence and witness testimony placed Birch in close proximity to the gun at the time of the shooting, and circumstantial evidence suggested he had access to ammunition matching the fatal bullet. Therefore, we affirm Birch's conviction and sentence for possession of a firearm by a convicted felon.

Kishon Larhame Birch v. State of Florida

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