Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT WAYNE ANDREW NICHOLS, ) ) Appellant, ) ) v. ) Case No. 2D19-1721 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed January 15, 2021. Appeal from the Circuit Court for DeSoto County; Lon S. Arend, Judge. Howard L. Dimmig, II, Public Defender, and Karen M. Kinney, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Katie Salemi Ashby, Assistant Attorney General, Tampa, for Appellee. VILLANTI, Judge. Wayne Nichols appeals his convictions and sentences for three counts of the illegal killing, possessing, or capturing of alligators or other crocodilia or eggs (counts one, two, and three), one count of intentional killing or wounding of any species designated as of special concern (count four), and one count of attempted killing or wounding of any species designated as of special concern (count five).1 Nichols raises a number of issues, all of which we have carefully considered. Based on that review, we conclude that we must reverse Nichols' convictions on counts one, two, and three and remand for a new trial because the jury instructions given by the trial court were incomplete, misleading, and confusing. We reject the remainder of Nichols' arguments as to counts one, two, and three, as well as his arguments concerning counts four and five, without further discussion. The case involves the somewhat complicated interaction between the Florida Statutes governing the protection of alligators and the detailed Administrative Code provisions promulgated by the Florida Fish and Wildlife Conservation Commission under its alligator management program. In early 2016, Nichols became licensed by the Commission to operate an alligator farm outside of Fort Ogden. While this license generally permitted Nichols to open and operate the farm, it also required him to comply with the Commission's rules and regulations, as codified in the Florida Administrative Code, regarding any alligators taken under his farm license.2 See § 379.3751, Fla. Stat. (2015); Fla. Admin. Code R. 68A-25.004. Relevant to the issues in this case, Nichols was required to prepare and maintain documentation on each of the alligators he captured, possessed, transferred, or harvested. This included documentation identifying the exact location where the alligator was captured; whether it was kept alive 1Nichols entered a guilty plea to counts four and five prior to trial. Hence, the case went to trial on only counts one, two, and three. Nichols was sentenced on all of the counts after trial. 2"Taking" an alligator includes pursuing, hunting, molesting, capturing, or killing. See Fla. Admin. Code. R. 68A-1.004(81). -2- or killed; the location to which each live alligator or alligator carcass was then transported; and if the alligator was killed, what was done with the meat, skin, and other remains. Under his license, Nichols was permitted to capture or kill alligators only on specifically identified pieces of real property. He was also issued a limited number of CITES3 tags, which were required to be attached to any alligator that was killed. The CITES tag number was also required to be included with any skins or meat taken from the harvested alligator. In August 2017, the State filed an information charging Nichols with three violations of section 379.409, which provides, in pertinent part: (1) It is unlawful to intentionally kill, injure, possess, or capture, or attempt to kill, injure, possess, or capture, an alligator or other crocodilian, or the eggs of an alligator or other crocodilian, unless authorized by the rules of the Fish and Wildlife Conservation Commission. Any person who violates this section is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, in addition to such other punishment as may be provided by law. § 379.409(1) (emphasis added). The State alleged in counts one, two, and three that Nichols had violated section 379.409(1) on three separate occasions—once by having live alligators at his farm with no record of when or where he captured them; once by capturing an alligator on real property for which he was not licensed; and once by killing 3The Convention on International Trade in Endangered Species of Wild Fauna and Flora, or CITES, is an international agreement between governments that attempts to ensure that the international trade of wild animals and plants does not threaten their survival. See CITES, https://cites.org/eng/disc/what.php (last visited Dec. 21, 2020). The United States is a party to CITES, see CITES, https://cites.org/eng/disc/parties/chronolo.php (last visited Dec. 28, 2020), and the American alligator is a protected species under CITES Appendix II, see CITES, https://cites.org/eng/app/appendices.php (last visited Dec. 28, 2020). -3- an alligator and distributing its meat without preparing and maintaining the proper harvest documentation. The State alleged that each of these acts, which violated the applicable Administrative Code provisions, resulted in Nichols being in illegal possession of alligators. At trial, Nichols' defense to these charges was that his possession of the alligators was not illegal because he was licensed to take them, although he admitted to having had some "minor paperwork issues" that he attributed to his partner in the alligator farm business. Nichols contended that he was not guilty of violating section 379.409(1) but instead should be subject, at most, only to the penalties authorized by the Administrative Code for his paperwork errors and delinquencies. After the close of evidence at trial, the court held a charge conference to craft jury instructions. The State's proposed instructions included one on the illegal killing, possessing, or capturing of alligators; however, the proposed instruction did not include the "unless authorized by rules of the Fish and Wildlife Conservation Commission" language of section 379.409(1) because, according to the State, that exception did not constitute an element of the offense. While Nichols did not initially object to this omission, he later requested that the trial court include the "unless authorized" language as part of his argument that violations of the Administrative Code provisions constituted lesser offenses of the charged crime. The trial court rejected Nichols' argument that such violations constituted lesser offenses and never again addressed the applicability of the "unless authorized" language of the statute. Despite the court rejecting his argument concerning lesser offenses, Nichols persisted in his request that the trial court include in the jury instructions the -4- Administrative Code provisions relating to the Commission's documentation requirements because he wanted to be able to argue to the jury that the State had overcharged him. Nichols contended that he should be entitled to argue that while he might be guilty of a recordkeeping violation or a CITES tag violation under the applicable Administrative Code provisions, he was not guilty of illegally capturing, possessing, or killing an alligator because he had no intent to commit such an offense. After much back and forth, the trial court agreed to instruct the jury on the pertinent Administrative Code provisions because they were, in fact, part of the applicable law and because it would be improper to tell the jury that there were "no other laws" applicable to the case when the Administrative Code provisions had been introduced into evidence during trial and were being argued by both parties in closing. According to the court, including the text of the Administrative Code provisions in the instructions would permit Nichols to argue that he was not guilty of illegally possessing the alligators but instead was only guilty of violating technical paperwork requirements of the Commission even though the court was not going to instruct the jury that such a violation constituted either a defense to the charged offenses or a lesser offense. Hence, the final instructions given to the jury included the text of the pertinent Administrative Code provisions but did not include any explanation of how the jurors were to consider or apply those provisions. Instead, any such guidance was left solely to Nichols to provide in his closing argument. And while Nichols did use the Administrative Code provisions to support his arguments in closing, he was nevertheless found guilty as charged. -5- In this appeal, Nichols contends that the jury instructions ultimately given by the trial court were fatally flawed because they were incomplete, misleading, and confusing. In the context of this case, we agree because the instructions omitted a statutory phrase that was critical to the jury's understanding of the law applicable to the charges before it. It is undisputed that the trial judge has "the responsibility of correctly charging the jury." State v. Floyd, 186 So. 3d 1013, 1022 (Fla. 2016). "That responsibility includes giving instructions that are not 'confusing, contradictory, or misleading.' " Routenberg v. State, 301 So. 3d 325, 328 (Fla. 2d DCA 2020) (quoting Dooley v. State, 268 So. 3d 880, 885 (Fla. 2d DCA 2019)). "Reversible error occurs when an instruction is not only an erroneous or incomplete statement of the law, but is also confusing or misleading." Dockswell v. Bethesda Mem'l Hosp., Inc., 210 So. 3d 1201, 1214 (Fla. 2017) (quoting Gross v. Lyons, 721 So. 2d 304, 306 (Fla. 4th DCA 1998)). Moreover, "it is well settled that a defendant is entitled to an instruction on his theory of defense if there is any evidence to support it." Leschka v. State, 691 So. 2d 535, 537 (Fla. 2d DCA 1997) (citing Bryant v. State, 412 So. 2d 347, 350 (Fla. 1982)). Allowing defense counsel to argue a theory of defense to the jury while also refusing to instruct the jury on that defense does not solve the problem of improper instructions because the defense argument "would have carried more weight had the jury known that the law allowed it to accept such defense." Id. In short, the burden is on the trial court—not defense counsel—to provide clear, correct, and complete instructions to the jury on what the law is and how it is to be applied. -6- In this case, the trial court's decision to include the Administrative Code provisions in the jury instructions but also to deny Nichols' request to include the "unless authorized" language resulted in the court providing an incomplete, misleading, and manifestly confusing explanation of the law to the jurors. Nichols' defense was that he was not guilty of the charged offenses because the statutory exception applied—an exception that was based on the application of the Administrative Code provisions. Regardless of whether the "unless authorized" phrase in the statute defined an element of the offense or an affirmative defense to it, that phrase was necessary to the jury's understanding of both the charges and the evidence before it. Hence, the trial court's failure to offer any instruction explaining how, if at all, these Administrative Code provisions bore on the question of whether Nichols was guilty of illegally capturing, possessing, or killing an alligator rendered the instructions incomplete. The instructions were also misleading in that they omitted a relevant exception to the statute, making it appear that any killing, injuring, possessing, or capturing of an alligator was illegal regardless of a license holder's compliance with the Administrative Code provisions. Finally, the instructions were patently confusing because the court simply read several pages of Administrative Code provisions to the jury without offering any explanation as to whether those provisions constituted a potential defense to the State's charges, potential alternate charges to those that were brought by the State, potential lesser- included offenses available if the State failed to prove the main charge, or none of those. Given that the entire purpose of jury instructions "is to enlighten the jury upon questions of law pertinent to the issues of fact submitted to them in the trial of the case," -7- Holman Live Stock Co. v. Louisville & Nashville R.R. Co., 87 So. 750, 751 (Fla. 1921), these omissions resulted in reversible error. Accordingly, we reverse Nichols' convictions on counts one, two, and three and remand for a new trial on those charges. In all other respects, we affirm. Affirmed in part, reversed in part, and remanded for a new trial. SLEET and SMITH, JJ., Concur. -8-