                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

YVONNE MARIE JOHNSON,                 NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D14-2907

STATE OF FLORIDA,

      Appellee.


_____________________________/

Opinion filed October 12, 2015.

An appeal from the Circuit Court for Duval County.
Mark Hulsey, III, Judge.

Nancy A. Daniels, Public Defender; Glen P. Gifford and Joanna Aurica Mauer,
Assistant Public Defenders, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Virginia Chester Harris, Assistant Attorney
General, Tallahassee, for Appellee.




ROBERTS, C.J.,

      The Appellant, Yvonne Marie Johnson, appeals her three convictions for

criminal use of personal identification. She raises numerous issues on appeal, only
two of which warrant reversal.       First, the Appellant argues the prosecutor’s

comments during cross-examination and closing argument constituted improper

bolstering. Second, she argues the trial court erred when it directed defense counsel

to instruct the jury that venue was a legal issue that could not be considered by the

jury and subsequently instructed the jury that venue was to be considered by the jury.

We agree that the prosecutor’s comments were improper, and the trial court’s

instructions on venue were in error. We reverse.

                                      FACTS

      The Appellant was charged with 16 counts of criminal use of personal

identification and two counts of criminal use of personal identification of a deceased

individual. A jury trial was held on three of the counts of criminal use of personal

identification. Special Agent Lawrence Lomonaco of the Secret Service testified

that during his investigation of the fraudulent tax return scheme, he examined the

Appellant’s text messages, which showed she had sent the victim’s personal

identification information to another woman.         This woman would then file

fraudulent tax returns using the information sent by the Appellant. The Appellant

received approximately $50,000 for her part in the scheme. After Lomonaco

confronted the Appellant, she confessed her part in the scheme. The Appellant

testified that she was merely referring people to a tax preparer, and she did not know

that the personal identification information was stolen.          During the cross-

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examination of the Appellant, the following exchange occurred:

            Prosecutor: So, ma’am, your testimony here today, and
            this is my last question, that your defense is that a man
            who is in charge of –

            Defense Counsel: Objection, Your Honor. Argumentative.

            The Court: Well, let him finish the question.

            Prosecutor: Two presidents and a vice president, lied to
            this jury on the stand today?

            Witness: I’m sorry?

            Prosecutor: You are telling this jury, your defense is that a
            man who’s entrusted to protect –

            Defense Counsel: Objection, Your Honor. Bolstering the
            witness.

            The Court: Let him finish the question, first of all, Mr.
            Holliday.

            Defense Counsel: Yes, sir.

            Prosecutor: -- two presidents and a vice president lied here
            on the stand today about the things you told him.

            Witness: Absolutely.

            The Court: Objection overruled.

During closing argument, the State made the following comment:

            The $50,000, I mean, if Agent Lomonaco – they’re
            suggesting that he basically came up here and perjured
            himself, that’s what they’re suggesting, that he came up
            here and perjured himself, a man who told you his
            qualifications, I won’t get into it, it was that important to
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               him that he came in here and perjured himself and he made
               that up. That’s what they’re asking you to believe, that he
               perjured himself about that.

               I mean, if that were the case, why not take it one step
               further, why not go and just write a statement and just say,
               you know what, this is her handwriting, why not do that.
               Why not create some bank records, why not take it all the
               way to the hilt, if that were the case. If he really was out to
               get her.

                             IMPROPER BOLSTERING

       The Appellant argues that the prosecutor improperly bolstered the testimony

of Special Agent Lomonaco during the cross-examination of the Appellant and

during closing argument. The Appellant properly preserved her argument regarding

the cross-examination bolstering by objecting and moving for mistrial. See Cole v.

State, 866 So. 2d 761, 763 (Fla. 1st DCA 2004) (“Generally, to preserve an issue for

appeal based on improper argument, counsel is required to object and request a

mistrial.”).   However, the Appellant failed to properly preserve the argument

regarding the improper bolstering in closing argument. As such, this comment must

be reviewed for fundamental error. Caraballo v. State, 39 So. 3d 1234, 1249 (Fla.

2010). For improper prosecutorial remarks to constitute fundamental error, the jury

must not have been able to reach the verdict absent the remarks. Id. The comments

must be so egregious as to vitiate the whole trial. Stubbs v. State, 673 So. 2d 964,

965 (Fla. 1st DCA 1996). Courts consider the cumulative effect of objected-to and

unobjected-to comments when reviewing whether a defendant received a fair
                                             4
trial. Merck v. State, 975 So. 2d 1054, 1061 (Fla. 2007). Improper closing argument

becomes fundamental error when a curative instruction from the bench and

retraction of the remark would not have cured the error. Pacifico v. State, 642 So.

2d 1178, 1184 (Fla. 1st DCA 1994).

      The State may not bolster a witness’s credibility by implying that he is less

likely to lie because he is a government employee. Spann v. State, 985 So. 2d 1059,

1067 (Fla. 2008) (“Improper bolstering occurs when the State placed the prestige of

the government behind the witness or indicates that information not presented to the

jury supports the witness’s testimony.”) (Internal quotations omitted.). Improper

bolstering of a witness is especially troubling in a case that rests solely on competing

witness accounts to establish an element of the crime. See Ortuno v. State, 54 So. 3d

1086, 1089 (Fla. 1st DCA 2011); Williams v. State, 673 So. 2d 974, 975 (Fla. 1st

DCA 1996).

      Here, the State asked the Appellant whether a man entrusted to protect two

presidents and a vice president had lied on the stand. During closing argument, the

State further commented on the unlikelihood of Special Agent Lomonaco lying due

to his qualifications. These comments placed the prestige of the government behind

Special Agent Lomonaco. This constituted improper bolstering.

      Improper prosecutorial comments are normally subject to a harmless error

analysis. See Knowles v. State, 632 So. 2d 62, 65-66 (Fla. 1993). However, here,

                                           5
the cumulative effect of objected-to and unobjected-to comments rendered the

Appellant incapable of receiving a fair trial. As such, this was fundamental error.

                                        VENUE

      The Appellant argues that the trial court erred when it instructed defense

counsel to tell the jury that venue was a legal rather than factual issue and was not

part of the jury’s purview. A defendant has the right to be tried in the county where

the crime takes place. Art. 1, § 16, Fla. Const. Venue is an essential element of a

crime. Mosley v. State, 842 So. 2d 855, 857 (Fla. 1st DCA 2002). If a defendant

can show that the crime did not occur in the venue alleged in the charging document

or the State has not presented sufficient proof of where the crime occurred, it is

reversible error. Id. Further, it is error for a trial court to “direct[ ] the jury to find

as a matter of law that an essential element was proved.” Wright v. State, 586 So. 2d

1024, 1030 (Fla. 1991). As such, the trial court’s instruction to defense counsel to

tell the jury that venue, an essential element, had been proven and did not need to be

considered by the jury was error.

       Additionally, when the jury was first told that venue was an improper

consideration and was then instructed that the jury should consider venue in the

written and oral jury instructions, the trial court most likely confused the jury about

whether it should consider venue. Such an error was prejudicial. See Tinker v. State,

784 So. 2d 1198, 1200 (Fla. 2d DCA 2001).

                                            6
      The improper bolstering of Special Agent Lomonaco’s credibility during the

Appellant’s cross-examination and during closing argument as well as the trial

court’s contradictory directions regarding whether the jury should consider venue

ultimately deprived the Appellant of a fair trial. Accordingly, this case is

REVERSED and REMANDED for a new trial.

BENTON and LEWIS, JJ., CONCUR.




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