       Third District Court of Appeal
                               State of Florida

                          Opinion filed October 7, 2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D14-1174
                         Lower Tribunal No. 13-29805
                             ________________


                                James Ramey,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Miguel M. De
La O, Judge.

     Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public
Defender, for appellant.

     Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney
General, for appellee.

Before EMAS, LOGUE, and SCALES, JJ.

      LOGUE, J.
      James Ramey, the defendant, appeals his conviction of attempted robbery.

The only witnesses who testified at trial were the victim and the police officer who

encountered the victim as he was running away from the defendant. On appeal, the

defendant argues that the State improperly bolstered the testimony of the victim.

We affirm.

      The bolstering argument is without merit. “Improper bolstering occurs when

the State places the prestige of the government behind the witness or indicates that

information not presented to the jury supports the witness’s testimony.” Spann v.

State, 985 So. 2d 1059, 1067 (Fla. 2008) (citations omitted). Here, the victim

admitted on cross-examination that he had been convicted of two felonies. The

defense used the evidence of the victim’s prior criminal record to attack the

victim’s credibility:

      And [the victim], yes, was very honest about his convictions because
      he doesn’t really have a choice. He’s been convicted twice, he’s on
      felony probation. What is [the victim] going to say when this
      undercover cop pulls up and says hey, what’s going on? Is he going to
      say oh, I sold him some acid two days ago or yesterday and it wasn’t
      any good, or I didn’t give it to him and he gave me ten dollars? Of
      course not. He’s not going to say that. That’s going to land him right
      back in federal lockup. Does he have a reason to stick to that story?
      Absolutely. If he says anything different now, he’s violating his
      federal probation. Does he have a reason to lie to you? I would say
      most certainly yes.

      In rebuttal, the prosecutor responded that “[the victim] got on the stand, he

was honest with you. He told you the terms of his probation. He does not have a



                                         2
motive to lie.” The prosecutor’s argument that the victim was honest was no more

than a direct counter to the defense’s argument that the victim was dishonest.

Taken in context, no improper bolstering occurred. See Yok v. State, 891 So. 2d

602, 603 (Fla. 1st DCA 2005) (“[The defendant] asserts that the trial court erred in

denying his motion for mistrial after the prosecutor stated during closing argument

that the victim was ‘honest and straightforward’ while testifying. When reviewed

in context, we do not find that the comment constitutes improper bolstering on the

part of the prosecutor.”). Moreover, the trial court reminded the jury—before both

the opening and closing arguments—that what the lawyers say is argument, not

evidence.

      We find that the other error raised was not properly preserved.

      Affirmed.




                                         3
