       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                        LENSKY M. JEANBART,
                             Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D18-2726

                             [April 1, 2020]

   Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach     County;    Krista    Marx,      Judge;    L.T.     Case     No.
50-2016-CF-002976-AXXX-MB.

  Kari Jorma Myllynen of The Law Office of K.J. Myllynen, Esquire, Fort
Lauderdale, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Rachael Kaiman,
Assistant Attorney General, West Palm Beach, for appellee.

DAMOORGIAN, J.

   Lensky M. Jeanbart (“Defendant”) files a new appeal following this
Court granting his petition for writ of habeas corpus alleging ineffective
assistance of appellate counsel. See Jeanbart v. State, 254 So. 3d 1033
(Fla. 4th DCA 2018). Concluding that the court erred by (1) instructing
the jury to disregard relevant evidence admitted during trial; and (2)
admitting into evidence a gun with Defendant’s DNA that was not used in
the charged crimes, we reverse and remand for a new trial.

   Defendant was charged with two counts of attempted first-degree
murder with a firearm (premeditated), burglary while armed, two counts
of shooting into an occupied vehicle, aggravated assault with a firearm,
and accessory after the fact second degree or above.

   Defendant proceeded pro se to a jury trial, during which the following
facts were established. On the day of the incident, Jean Aime (“Victim 1”)
parked his car on the street, pulling in behind another vehicle that was
also parked on the road. Kason Lindor (“Victim 2”) was sitting in his
vehicle when Victim 1 arrived.

   As Victim 1 was assisting his daughters out of the car and escorting
them to his mother’s house, he noticed a silver Chevrolet come around the
block and make a U-turn. His younger daughter went back to the car, and
while she was inside the car, the Chevrolet pulled up alongside the parked
cars. The passenger from the Chevrolet (“codefendant”) exited the vehicle
and shot at Victim 1’s car. Victim 2 exited his vehicle and tussled with
the codefendant, yelling that there were kids in the car. Victim 1 and his
daughter went inside his mother’s house. When Victim 1 exited the house,
he noticed that Victim 2’s car and the Chevrolet were gone. The
codefendant was still there, and he fired another shot into Victim 1’s car.
Moments later, the Chevrolet returned, the driver lowered the car window,
and screamed at the codefendant, “let’s go, let’s go, you doing dumb shit
right now.” Victim 1 was able to see Defendant as the driver and
recognized his voice, whom he knew as a friend of his brother’s. Victim 1
also identified Defendant in a photo lineup.

   Hours later, after Defendant and the codefendant fled the scene, a
Broward Sheriff’s deputy observed an accident involving the Chevrolet.
The deputy identified Defendant as the driver of the Chevrolet. While the
deputy was dealing with the codefendant, who was still sitting in the
passenger seat, Defendant got in another car and left the scene. The
codefendant then got into the driver’s seat of the Chevrolet and drove away.
The Chevrolet was then involved in a second accident. During a search of
the vehicle, the police recovered two firearms: a Ruger 45 and Sig Sauer
9mm. The 9mm, which was just outside the passenger door of the vehicle,
contained Defendant’s DNA. The State presented evidence that the
codefendant used the Ruger 45. However, there was no evidence
establishing that the 9mm was used in the shooting.

   During Defendant’s closing argument, Defendant argued that there was
no conscious, criminal intent because he did not know that a crime was
going to be committed. The State objected on the grounds that the
statement was based on facts not in evidence and moved to strike. The
court sustained the objection.

   Defendant proceeded with his closing and argued that Victim 1’s
testimony demonstrated that Defendant was not in agreement with the
codefendant’s actions because he yelled “you doing dumb shit.” The State
again objected as facts not in evidence and moved to strike the statement.
The judge sustained the objection and ordered the jury to disregard the
last statement.

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   Defendant resumed his closing argument and stated that he was not in
agreement with the acts done by his codefendant. The State objected again
as facts not in evidence and the judge sustained the objection.

      Later in closing, the following exchange occurred:

      DEFENDANT: And I would like to point out a few things to
      the Court before I leave this podium. The Defendant in this
      case (1) was unaware of what the companion or this co-
      defendant intended to do. And [Victim 1] made that perfectly
      clear because he said there was a disagreement between the -
      - between the alleged driver and the shooting which means
      that the alleged driver did not know. He didn’t want to
      participate.

      STATE: Objection; facts not in evidence, move to strike.

      COURT: Sustained. Disregard the last comment.

      DEFENDANT: [Victim 1] gave testimony before the Court that
      this individual didn't even know that this crime was going to
      be committed. Why is that? Because –

      STATE: Objection; facts not in evidence, move to strike.

      COURT: Sustained. Disregard that comment.

      DEFENDANT: There is no proof of specific intent or
      participation in this case or aid in its perpetration. There is
      no evidence. From all the evidence that you have here today,
      there’s nothing that shows these things.

(Emphasis added).

   The jury found Defendant guilty, based on the principal theory, of two
counts of attempted first-degree murder with a firearm (premeditated), two
counts of shooting into an occupied vehicle, and accessory after the fact.
This appeal follows.

   On appeal, Defendant first argues that he is entitled to a new trial
because the court impermissibly sustained objections and instructed the
jury to disregard facts that were in evidence as Defendant argued his lack
of intent during closing argument. We agree. The trial court erred in

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sustaining the State’s objections to Defendant’s closing argument. On this
point, the State concedes that the court erred by sustaining the State’s
objections.

   Defendant’s entire defense was based on a lack intent to aid or abet the
codefendant since he had no knowledge that the codefendant intended to
commit the crimes. Evidence to support this theory was based on
Defendant’s words and deeds. The words, which were the focus of
Defendant’s closing, were gleaned from Victim 1 who testified that upon
Defendant’s return to the scene, Defendant lowered his car window and
yelled to the codefendant “let’s go, let’s go, you doing dumb shit right now.”
As Defendant’s characterization of Victim 1’s testimony was accurate, we
conclude that the court’s rulings on the State’s “facts not in evidence”
objections were error and any instruction to the jury to disregard the
evidence compounded the error.

    In addition, it cannot be said that “there is no reasonable possibility
that the error contributed to the conviction.” State v. DiGuilio, 491 So. 2d
1129, 1135 (Fla. 1986). Defendant’s statement was central to his defense.
When the court instructed the jury to disregard evidence of Defendant’s
statement, Defendant was unable to draw the inference that his statement
to the codefendant showed that he was in disagreement with and had no
intention of participating in the codefendant’s actions. See Brinson v.
State, 153 So. 3d 972, 980 (Fla. 5th DCA 2015) (citing McArthur v. State,
801 So. 2d 1037, 1039-40 (Fla. 5th DCA 2001)) (The parties are permitted
to “advance all legitimate arguments and draw logical inferences from the
evidence.”); see also Thomas v. State, 838 So. 2d 1192, 1196 (Fla. 2d DCA
2003) (“[T]he trial court’s comment was not harmless error because the
trial court commented on the evidence that went to the very foundation of
the defense.”).

   We next address Defendant’s argument that the court erred in
admitting a gun with his DNA that was not used in the commission of the
crimes.

   “The standard of review for admissibility of evidence is abuse of
discretion, limited by the rules of evidence.” Holloway v. State, 114 So. 3d
296, 296 (Fla. 4th DCA 2013) (quoting Tengbergen v. State, 9 So. 3d 729,
736 (Fla. 4th DCA 2009)).

   “[A]ll relevant evidence is admissible unless the law otherwise provides.”
State v. McClain, 525 So. 2d 420, 421 (Fla. 1988); see also § 90.402, Fla.
Stat. (2019). “Relevant evidence is evidence tending to prove or disprove a
material fact.” § 90.401, Fla. Stat. (2019). However, relevant evidence may

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be excluded “if its probative value is substantially outweighed by the
danger of unfair prejudice.” § 90.403, Fla. Stat. (2019).

   “[I]n order for evidence of a firearm to be admissible as relevant in a
criminal trial, ‘the State must show a sufficient link between the weapon
and the crime.”’ Agatheas v. State, 77 So. 3d 1232, 1236 (Fla. 2011)
(quoting Jackson v. State, 25 So. 3d 518, 528 (Fla. 2009)). The Fifth
District has described what is, and what is not, necessary to show the
sufficient link.

         In determining whether a sufficient nexus exists, the trial
      court can consider testimony identifying distinct similarities
      between the weapon used in the crime and the weapon
      proffered at trial. . . . A sufficient nexus does not, however,
      require testimony that the proffered weapon is definitively the
      weapon that was used during the crime. Indeed, if it is
      inconclusive that the proffered weapon is the weapon used
      during the crime but a sufficient nexus exists, it is the jury’s
      province to determine the credibility and weight of the
      evidence.

Gartner v. State, 118 So. 3d 273, 276 (Fla. 5th DCA 2013) (internal
citations omitted). However, “where the evidence at trial does not link a
seized gun to the crime charged, the gun is inadmissible in evidence. A
gun different than the one used in a crime is not relevant to prove that the
crime occurred.” Downs v. State, 65 So. 3d 594, 596 (Fla. 4th DCA 2011)
(internal citations omitted).

    Defendant argues the gun was erroneously admitted because the State
failed to show a sufficient link between the crime and the firearm. The
State counters that the gun was relevant and inextricably intertwined to
the crimes because it was probative of (1) Defendant’s identity as the driver
of the Chevrolet; and (2) Defendant’s intent as a principal to the crimes.

   We reject the State’s argument that the 9mm gun was relevant to
establish the identity of Defendant as the driver of the Chevrolet. No one
saw Defendant with the gun before, during, or after the commission of the
crimes. Furthermore, none of the shots fired came from the 9mm. In fact,
the State established Defendant’s identity as the driver through the
testimony of Victim 1 and the deputy at the scene of accident who saw
Defendant exit from the driver’s side after the accident.

   We likewise reject the State’s argument that the 9mm was relevant
because it was circumstantial evidence that Defendant had the “intent to

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assist with the crimes or his knowledge of what his co-defendant was going
to do.” The State supports this argument by suggesting that the 9mm was
likely in the car with Defendant at the time of the shooting. The State
offers no proof to support its suggestion. But even if that suggestion was
true, Defendant’s possession of a gun at some point does not prove that
he knew the codefendant’s intentions or that he intended to participate in
the codefendant’s criminal acts. See Fugate v. State, 691 So. 2d 53, 54
(Fla. 4th DCA 1997) (finding that the trial court erred in admitting a
handgun that was found some distance from the crime scene of an
aggravated assault, but where there was no link to the charged crime);
Sosa v. State, 639 So. 2d 173, 174 (Fla. 3d DCA 1994) (holding that where
the defendant was charged with firing a handgun at the victim’s car, trial
court erred in admitting bullets found in defendant’s car because there
was no link established between the bullets and the crime).

    Even if we were to conclude that the 9mm was marginally relevant to
proving Defendant guilty as a principal to the crimes charged, the danger
of unfair prejudice substantially outweighed any relevance. See Downs,
65 So. 3d at 596 (alteration in original) (quoting O’Conner v. State, 835 So.
2d 1226, 1231 (Fla. 4th DCA 2003)) (“Any marginal relevance in this type
of testimony [is] substantially outweighed by the danger of unfair prejudice
under section 90.403.”).

   Finally, the error in admitting the gun was not harmless beyond a
reasonable doubt. Since Defendant’s main theory of defense was that he
did not have the requisite intent to commit the crimes charged, there is a
reasonable possibility that admission of a gun clearly not connected with
the crimes contributed to the verdict.

      Harmlessness is not established . . . when there is otherwise
      sufficient, even persuasive, evidence in the record to support
      the convictions. Nor . . . is the pertinent test satisfied by our
      being pretty sure either that the defendant actually was guilty,
      or that the jury was not influenced by the error we have
      identified. Instead . . . we must be satisfied beyond a
      reasonable doubt that it did not contribute to the verdict.
      Particularly because of the critical potential effect of the
      erroneous evidence on the defendant’s credibility and in light
      of the fact that an important and fairly disputed issue in the
      case concerned the very question implicated by the error . . . .

Ousley v. State, 763 So. 2d 1256, 1257 (Fla. 3d DCA 2000) (emphasis
added).


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   Based on the foregoing, we reverse the judgment and sentences and
remand for a new trial.

  Reversed.

GROSS and MAY, JJ., concur.

                         *       *        *

  Not final until disposition of timely filed motion for rehearing.




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