          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                            ISAIAH BROOKS,
                                Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D17-3448

                             [March 20, 2019]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Laura Johnson, Judge; L.T. Case No. 2012CF010423BXX.

   Philip J. Massa of Philip J. Massa, P.A., West Palm Beach, for appellant.

  Ashley B. Moody, Attorney General, Tallahassee, and Kimberly T.
Acuna, Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

   The defendant appeals his conviction and sentence for first-degree
murder with a firearm and robbery with a firearm. He argues the evidence
was insufficient to establish he was the shooter, and the court should have
granted his motion for judgment of acquittal. He also argues the trial court
erred in admitting testimony from a detective that shifted the burden of
proof. We disagree and affirm.

   The State charged the defendant and co-defendants with: (1) first-
degree murder with a firearm; (2) robbery with a firearm; (3) grand theft
auto; and (4) grand theft. The amended information alleged the defendant
arranged a fake drug transaction during which he robbed and shot the
victim. Four individuals were involved in the commission of the crime: the
defendant and three co-defendants. Two of the co-defendants, Jerry and
Robinson, testified at trial.

   Robinson testified that he, the defendant, the victim, and a fourth man
traveled in the victim’s rental car to conduct a drug transaction. The
defendant drove, the victim occupied the front passenger seat, and the co-
defendant and fourth man sat in the back seat. When the victim and the
fourth man went inside a gas station, the defendant talked about robbing
the victim and then called another man from his phone. Robinson heard
the defendant ask the other person if he was already there.

   When all four men were back in the car, they drove to a parking lot
where co-defendant Jerry was waiting in his truck. When they got out of
the car to meet Jerry, the defendant held the victim at gunpoint while Jerry
went through the victim’s pockets and possessions. They took $100 and
a cell phone from the victim.

   After the robbery, Robinson and Jerry returned to the truck when
Robinson heard a gunshot. He did not see who shot the gun, but testified
that Jerry was on the truck’s driver’s side. The defendant was the last
person Robinson saw with the gun. Robinson and Jerry left and later met
up with the defendant. They all returned to the Days Inn, where the
defendant, his girlfriend, and her uncle were staying.

   Robinson went to his sister’s house the next day. When Robinson
learned the police were investigating the shooting, his sister encouraged
him to tell the police what happened. He gave a statement to the police
and identified a photograph of the victim at the crime scene. Robinson
identified Jerry, the defendant, and others present during the crime.

   Jerry testified the defendant called and asked to meet him. The
defendant told him he had a “lick,” meaning getting money from someone,
on a “white guy” and asked Jerry to feign a drug sale. Jerry drove the
truck to a dead end as instructed.

   The victim and defendant walked towards Jerry’s truck, at which point
the victim asked Jerry for pills. Jerry testified the defendant approached
the victim from behind and hit him in the back of the head with a gun.
When the victim asked what was happening, the defendant pointed the
gun at the victim and told him to “give it up.” The victim reached into his
pockets, taking out a cell phone and some money.

   The defendant walked back towards the victim’s rental car. Jerry heard
the victim say, “just don’t shoot,” at which point, the defendant shot the
victim.

   The defendant got in the victim’s rental car. Robinson and Jerry left in
the truck. The defendant called Jerry later and arranged to meet at an
apartment building where Jerry picked up the defendant. They all
returned to the hotel.


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    There, Jerry asked the defendant why he shot the victim. The
defendant did not respond. Jerry repeatedly told the defendant that “he
should never have shot the white guy” and the defendant told him to be
quiet, not worry, and say nothing. Jerry stayed the night at the hotel. In
the morning, the defendant gave him $50. The defendant gave the
cellphone to his girlfriend to sell.

   Jerry met with the police; he agreed to talk to them and to make a
controlled call the same day. During the controlled call, the defendant
asked Jerry what the police were saying when they came to Jerry’s house
and whether they had a warrant. Jerry told the defendant that he
“shouldn’t have never even did that sh__,” and identified the defendant as
responding: “don’t even start with that little whoe sh__,” “stop acting like
a B_____,” and “get some ba___.” The controlled call was admitted into
evidence.

   During the detective’s testimony, the following occurred:

      [PROSECUTOR]: [W]hen you met with . . . Jerry and you
      heard that controlled phone call, . . . was there any doubt in
      your mind that [the defendant] was involved?

      [DETECTIVE]: Yes -- I'm sorry, no, there was no doubt in my
      mind.
      ....

      [PROSECUTOR]: Okay. And were those responses that you
      heard coming from [the defendant], were they responses that
      would indicate he didn't know what the heck . . . Jerry was
      talking about?

      [DETECTIVE]: No, not at all; he knew what he was saying.

      [PROSECUTOR]: Did you ever hear him say on that controlled
      phone call, man I, don't even know what you are talking
      about?

      [DETECTIVE]: No, I did not.

      [PROSECUTOR]: Did you ever hear him say, look, I was there,
      but I didn't shoot the man; you shot the man. . . ? Did you
      ever him hear him say that?

      [DETECTIVE]: No, I did not.

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      [PROSECUTOR]: Did you hear him use language that was
      consistent with trying to shut [Jerry] up?

      [DETECTIVE]: Yes.

      [DEFENSE COUNSEL]: Objection, Judge. Speculation. Move
      to strike. The jury heard the tape; her opinion doesn't count.

      THE COURT: I will sustain your objection as to the officer's
      interpretation.

      [DEFENSE COUNSEL]: Move to strike it.

      THE COURT: Granted.
      ....

      [PROSECUTOR]: All right. And based on what was being said
      . . . during that phone call, did this man ever respond by
      saying he didn't know what he was talking about?

      [DETECTIVE]: No.

      [PROSECUTOR]: So at that point in your mind, is he
      responding like someone who had no involvement and didn't
      know what he was talking about?

      [DETECTIVE]: No.

      [PROSECUTOR]: So in your mind, is that statement for you,
      incriminating enough?

      [DETECTIVE]: Yes.

   The defendant’s girlfriend testified that she checked into the hotel with
the defendant, Robinson, and her uncle. The defendant told her he was
taking the victim to get pills and drove off. The men were gone for
approximately forty-five minutes. When they returned, the victim was not
with them.

   She testified that they seemed nervous and frequently checked the
window. Jerry gave her an iPhone to sell. She received $200 for the phone.
When she saw a news story on TV about the murder, she recognized the
victim as the man in the car with the defendant.

                                     4
   Without objection, she testified that she asked the defendant about
what happened and all he said was that he didn’t do anything. He
subsequently admitted to the robbery. He told her he did not intend to
shoot the victim, but when the victim reached into the car, he thought he
was reaching for a weapon and shot him.

   The defendant moved for judgment of acquittal both at the close of the
State’s case-in-chief and at the close of the evidence. The trial court denied
the motions. The jury found the defendant guilty on both counts. The
court sentenced the defendant to life in prison with a 25-year minimum
mandatory sentences on both counts to run concurrently.

   The defendant first argues there was no direct evidence to prove that
he shot and killed the victim. He insists the witnesses’ testimony was
circumstantial, and not credible because they agreed to testify against him
for lesser sentences. He suggests the trial court erred in denying his
motions for judgment of acquittal.

   The State responds there was direct evidence in the form of eyewitness
testimony, the controlled call, and a confession. We agree with the State.
The trial court correctly denied the motions for judgment of acquittal.

    We have de novo review of a trial court’s ruling on a motion for judgment
of acquittal. State v. Konegen, 18 So. 3d 697, 698 (Fla. 4th DCA 2009).

   The defendant is simply wrong when he suggests there was no direct
evidence in this case. Our supreme court has held that eyewitness
testimony can constitute direct evidence. See Smith v. State, 139 So. 3d
839, 844 (Fla. 2014). Here, there was direct evidence in the form of
eyewitness testimony, the defendant’s confession, and his incriminating
statements on the controlled call. The trial court correctly denied the
defendant’s motions for judgment of acquittal.

   The defendant next argues the court erred in admitting the detective’s
testimony concerning the defendant’s failure to respond to Jerry’s
statements during the controlled call. He suggests the State’s direct
examination of the detective shifted the burden of proof to the defendant.
The State responds that the defendant failed to preserve the issue because
defense counsel failed to make a contemporaneous objection, and refutes
the contention that the comments were burden shifting.

   “It is well settled that due process requires the state to prove every
element of a crime beyond a reasonable doubt . . . .” Jackson v. State, 575

                                      5
So. 2d 181, 188 (Fla. 1991). “For that reason, it is error for a prosecutor
to make statements that shift the burden of proof and invite the jury to
convict the defendant for some reason other than that the State has proved
its case beyond a reasonable doubt.” Gore v. State, 719 So. 2d 1197, 1200
(Fla. 1998).

   As the State argues, the detective’s testimony about the controlled call
was admissible and did not shift the burden of proof for two reasons. First,
the defendant’s silence was an adoptive admission. And second, the
detective’s testimony was relevant to rebut the defendant’s position that a
co-defendant shot the victim.

   To establish the defendant’s silence as an admission by acquiescence,
the court should consider the following factors:

      1. The statement must have been heard by the party claimed
         to have acquiesced.

      2. The statement must have been understood by him.

      3. The subject matter of the statement is within the knowledge
         of the person.

      4. There were no physical or emotional impediments to the
         person responding.

      5. The personal make-up of the speaker or his relationship to
         the party or event are not such as to make it unreasonable
         to expect a denial.

      6. The statement itself must be such as would, if untrue, call
         for a denial under the circumstances.

Nelson v. State, 748 So. 2d 237, 242-43 (Fla. 1999) (quoting Privett v.
State, 417 So. 2d 805, 806 (Fla. 5th DCA 1982)). “The essential inquiry
thus becomes whether a reasonable person would have denied the
statements under the circumstances.” Id. at 243 (citation omitted).

   The State argues the requirements for admission by acquiescence are
met because the statement was:       (1) heard by the defendant; (2)
understood by the defendant; (3) the subject matter was within the
defendant’s knowledge; (4) there were no known physical or emotional
impediments to the defendant responding; (5) the relationship between
and the defendant would not make it unreasonable to expect a denial; and

                                     6
(6) the question “why did you do that” would prompt a denial under the
circumstances—a phone call with the defendant’s friend. See id. at 242-
43.

   The defendant argues, however, that this case is akin to Warmington v.
State, 149 So. 3d 648 (Fla. 2014). There, the detective’s testimony was
considered a commentary on the defendant’s inability to produce evidence
to support his position that the money was taken as a loan rather than
theft. Id. at 656. We disagree.

      Pre-arrest silence does not carry the same protection as post-
      arrest silence . . . . Moreover, the prosecutor was not
      commenting on [the defendant’s] silence but on what [the
      defendant] actually said in the recorded conversation, i.e., his
      exhortation to [the detective] (posing as [defendant’s friend])
      not to talk, to get out of town, etc. The prosecutor’s
      comments were no more than a suggestion to the jury that
      [the defendant’s] statements were not the comments of an
      innocent man.

Rao v. State, 52 So. 3d 40, 44 (Fla. 4th DCA 2010) (emphasis added)
(citations omitted).

   Here, the State elicited testimony from the detective about the
controlled call, but the call took place pre-arrest while the defendant was
speaking with his friend. The admission of this testimony did not shift the
burden of proof. The State also correctly argues the statements were
admissible to refute the defense theory that the co-defendant was the
shooter.

   As in Rao, “the prosecutor’s remarks on the [detective’s] telephone call
made months before the arrest were not comments on silence but were
used to contradict [the defendant’s] theory that he was not guilty and never
admitted committing the murder. The comment was not error, let alone
fundamental error.” Id. Here, even if the testimony constituted error, it
did not “go[] to the foundation of the case or the merits of the cause of
action . . . .” F.B. v. State, 852 So. 2d 226, 229 (Fla. 2003) (citation
omitted).

   The court correctly denied the defendant’s motions for judgment of
acquittal and did not err in admitting the detective’s testimony. Even if
the admission of the detective’s testimony had been error, that error was
not fundamental. We therefore affirm.


                                     7
  Affirmed.

GROSS and DAMOORGIAN, JJ., concur.

                         *       *        *

  Not final until disposition of timely filed motion for rehearing.




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