         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D16-5213
                 _____________________________

ANTHONY LAMAR SIMMONS,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________

On appeal from the Circuit Court for Duval County.
Angela M. Cox, Judge.


                       October 15, 2018


B.L. THOMAS, C.J.

    Appellant was convicted and sentenced on two counts of
attempted second-degree murder and four counts of attempted
armed robbery. Appellant challenges evidentiary rulings allowing
deposition testimony to be admitted at a pretrial similar-fact
hearing and admitting related evidence at trial. Appellant
argues that these two rulings, together with improper
prosecutorial comments, require reversal and a new trial.
                  Facts and Trial Proceedings

     Six people went out to a restaurant to sing karaoke and
celebrate a birthday. After the restaurant closed, they remained
outside for an hour or longer, talking and laughing about the
weekend.

     Appellant, identified in court by four witnesses, approached
the restaurant and checked the door to see if the business was
closed. Appellant then walked a few feet toward the group, told
them his car was out of gas, and asked for money to help. One
member of the group immediately offered to take care of the car
for Appellant. Declining that assistance, Appellant accepted
$2.00 from another person and walked away a few feet, but then
turned to the group again, his hand fumbling in his pocket, and
irately asked why the victims had given him so little money.
Appellant pulled out a handgun and told the group he would
shoot anyone who attempted to leave, and demanded their
wallets and money.

    One member of the group stood up and stepped toward
Appellant, and Appellant immediately shot the victim in the
chest. The bullet entered the victim’s lower torso, exited, and
then entered the second victim’s face. The first victim testified
that he tried to run after Appellant but found that he couldn’t
breathe, and looked at his chest to find a hole in his body. The
second victim testified that his face started shaking and his body
“slumped” to the left, and he could not move. The bullet lodged
permanently in that victim’s neck.

    Appellant’s girlfriend testified that Appellant, whom she met
on Facebook, was known as “Amp.” When a local televised news
report posted pictures of the suspect from restaurant surveillance
video, Appellant admitted to her that the picture depicted him.

    The State introduced a photograph of Appellant with a
handgun, which was posted to Facebook near the date of the
crimes and matched the victims’ descriptions of the perpetrator.
The State noted that the gun in the photograph was consistent
with the .40-caliber Smith & Wesson semi-automatic pistol seized
from the apartment Appellant shared with his girlfriend. The

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State presented evidence that Appellant’s DNA was found on the
magazine of that firearm.

     After law enforcement obtained sufficient evidence to secure
an arrest warrant, several officers attempted to arrest Appellant
as he arrived at his girlfriend’s apartment. The officers used
three cars to attempt to block the egress route of the car in which
Appellant arrived. Appellant jumped into the driver’s seat and
drove into a parked car and then directly into an officer’s car, and
continued until he reached a dead end. Appellant then drove into
a dumpster, and one officer rammed his car. Appellant leapt out
of the car and was hit by another vehicle, but quickly jumped up
and attempted to run away. Appellant was then tackled by
several officers and arrested.

     The State presented the similar-fact testimony of a witness
who was robbed by Appellant two nights earlier, at a restaurant
less than a mile away from the location of the charged crimes.
The trial court informed the jury of the limited purpose of the
evidence, noting that “the defendant cannot be convicted for a
crime, wrong or act that is not included in the Information.”

     The similar-fact witness testified that she and friends
arrived at the restaurant near 2:45 a.m. She did not know
Appellant, who was standing outside the restaurant, but she
asked him to use her phone to take a picture of her and two
friends. The witness and her friends then went into the
restaurant.     When the witness left the restaurant alone
15 minutes later, Appellant approached her and asked for a
cigarette lighter. She went to her car and looked for a lighter,
then turned to tell Appellant she did not have one, and saw that
Appellant was pointing a handgun at her. Appellant demanded
her clothing, which contained her wallet and cell phone, and then
returned her driver’s license after wiping it off with his shirt.
The witness testified that she drove home in her undergarments.
The witness further testified that Appellant had on a white tank-
top, which was a similar shirt to the one described by the
witnesses to the charged crime. The witness also testified that
Appellant was in a car similar to the car shown in the
surveillance video on the televised news report. Shortly after the


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robbery, the witness identified Appellant from a photographic
line-up, and she positively identified him at trial.

     Appellant testified in his own defense, stating that on the
night of the charged crimes he told the victims he needed money
for gas, and they gave him money in exchange for marijuana.
After noticing he had been short-changed, he returned to them,
when the first shooting victim pulled a knife and threatened
Appellant, and then chased him. Appellant testified that he fell
and got back up, but his pants were baggy and needed to be
pulled up; while he was pulling up his pants, his gun went off
accidently. He further testified that he fled the attempted arrest
because he thought he was being assaulted, as the officers were
in unmarked cars. Appellant denied any involvement in the prior
robbery.

    After the defense rested, the State called the victims of the
charged case, who testified on rebuttal that they never bought
drugs from Appellant and no one attacked Appellant with a knife.
The State also called the arresting officer, who testified that
Appellant, after being read his rights, told police he did not own a
gun and he was never at the restaurant that night.

     During closing argument, the State told the jury that
Appellant’s story about being attacked by the victim was “made
up – made up for the first time three years and one month later.”
Defense counsel objected, which was overruled. The State made
several similar remarks attacking Appellant’s credibility and
veracity. Defense counsel did not object to these statements. The
State also argued that the discharge of the firearm “doesn’t have
to be accidental, it doesn’t have to be intentional, it’s the fact that
[Appellant] was the person with the firearm, he is the one that
discharged it.”

     Appellant was found guilty on all counts. At sentencing, the
victim who had been shot in the face testified to the pain and
suffering he continued to endure, urging the court to sentence
Appellant to life imprisonment. Another victim testified to the
extreme mental anguish she experienced after the crime. The
court sentenced Appellant to forty years in prison on one count of
attempted second-degree murder and twenty-five concurrent

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years in prison on all other counts, based on a jury finding that
Appellant discharged a firearm during the offenses causing great
bodily harm.

                              Analysis

                 I. Use of Deposition Testimony at
                   Similar-Fact Pretrial Hearing

    Appellant argues that the trial court committed reversible
error in allowing the State to proffer deposition transcripts from
the charged offense in the pretrial similar-fact hearing.
Appellant argues that the deposition testimony used at the
pretrial hearing was hearsay, and therefore this Court should
reverse and remand for a new trial.

    The relevant statutory law requires no proffer of the
evidence of the charged crimes during a pretrial review of
similar-fact evidence:

    Similar fact evidence of other crimes, wrongs, or acts is
    admissible when relevant to prove a material fact in
    issue, including, but not limited to, proof of motive,
    opportunity, intent, preparation, plan, knowledge,
    identity, or absence of mistake or accident, but it is
    inadmissible when the evidence is relevant solely to
    prove bad character or propensity.

§ 90.404(2)(a), Fla. Stat. (2016).

     Before introducing evidence of collateral crimes, the State
“shall furnish to the defendant . . . a written statement of the acts
or offenses it intends to offer, describing them with the
particularity required of an indictment or information . . . .”
§ 90.404(2)(d)1, Fla. Stat. (2016). The supreme court has held
that, “before even considering whether to allow evidence of prior
acts to be presented to the jury, the trial court must find that the
prior acts were proved by clear and convincing evidence.”
McLean v. State, 934 So. 2d 1248, 1262 (Fla. 2006) (emphasis
added); Barber v. State, 781 So. 2d 425, 428-29 (Fla. 5th DCA
2001) (“[t]he State is only required to give notice of its intent to

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rely on Williams[ *] rule evidence pursuant to section 90.404(2)(b),
Florida Statutes (1997).”).

     After considering arguments and case law during the
pretrial hearing, the trial court here ruled that the State could
use the depositions of the witnesses to the charged offense at the
pretrial hearing to serve as a comparison to the similar-fact
evidence. In pretrial hearings, hearsay evidence is generally
admissible. See, e.g., Bauer v. State, 528 So. 2d 6, 10 (Fla. 2d
DCA 1988) (“hearsay evidence is admissible at such a pretrial
hearing”); Lara v. State, 464 So. 2d 1173, 1177 (Fla. 1985)
(finding that hearsay evidence “was properly admitted at the
suppression hearing, even though [a witness] was unavailable for
cross-examination”). In addition, the State’s notice of its intent to
use similar-fact evidence was specific and adequate, referring to
both the case number of the similar-fact robbery and the name of
that robbery victim.

     After the depositions from the charged crime were entered
into evidence, the State called a deputy sheriff and the victim of
the similar-fact robbery. Defense counsel cross examined these
witnesses. The trial court then heard arguments as to whether
the collateral crime was similar enough to the charged offense (as
described in the depositions) to be admissible at trial. The trial
court found that the evidence of the collateral robbery was
admissible. Thus, because the State gave sufficient notice of the
similar-fact evidence, and the hearsay evidence was admissible in
the pretrial Williams rule hearing, and testimony from the
similar-fact witness was subject to cross examination, the trial
court did not err in allowing the State to use the deposition
testimony at the hearing. See Barber, 781 So. 2d at 427.

     Were we to hold otherwise, each victim in the charged
offenses would be required to appear and testify three times –
once at a pretrial deposition, again at the pretrial similar-fact
hearing, and finally at trial. Such is not required under either
the statute or the relevant case law. The collateral-crime
witnesses testified at the pretrial hearing and were cross

    *   Williams v. State, 110 So. 2d 654 (Fla. 1959).

                                   6
examined by defense counsel on how these incidents compared to
what was known of the charged offenses. Furthermore, the
witnesses to the charged offense were cross examined at their
depositions and at trial. In addition, the trial court continued to
assess the admissibility of the similar-fact evidence at trial,
asking if defense counsel had “any rebuttal as it relates to that
argument about additional crimes.” Thus, Appellant was not
prejudiced by the trial court’s decision to allow the use of
deposition testimony during the pretrial hearing.

         II. Admission of Similar-Fact Evidence at Trial

     A trial court’s decision to admit similar-fact evidence is
reviewed for abuse of discretion. Black v. State, 630 So. 2d 609,
618 (Fla. 1st DCA 1993). “[C]ollateral crime evidence is not
required to be so unique that no other perpetrator could have
committed both offenses. Rather, the two crimes must share
some unique features suggesting the same perpetrator.” Id. at
617-18. In Black, this Court found that the following facts were
sufficiently similar as to render the Williams rule evidence
admissible:

    All robberies occurred at the end of weekend business;
    at gunpoint, the robber ordered all store employees into
    a confined area, and they were told not to come out for
    ten minutes; the robber disabled the store phones in
    each instance; the robber carried a large, dark,
    semiautomatic handgun in each instance; and in each
    instance, the perpetrator was a tall, bulky black man
    wearing a plaid flannel shirt, a dark ski mask and
    gloves.

Id. at 617.

     Appellant argues that the collateral armed robbery was not
sufficiently similar to the charged crime as to render the evidence
admissible. The trial court found that both robberies occurred on
103rd Street in Jacksonville; both crimes happened outside of
chain restaurants; both crimes were committed in the early-
morning hours, within two days of each other; both crimes were
committed by similarly described lone gunmen wearing white

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tank tops; and both crimes were committed against strangers.
The trial court then explained that the “signature feature” shared
by each instance was that the perpetrator struck up a friendly
conversation with strangers and made innocent requests, then
returned with a gun to make demands. The trial court found it
“unusual in robberies for there to be an innocent encounter and a
request for something seemingly innocent prior to a robbery.”

     We agree with the trial court that there were sufficient
similarities and “significant feature[s]” between the collateral
and the charged robberies. Although there may have been
insignificant differences between the robberies, “[d]issimilarities
are not fatal when they ‘seem to be a result of differences in the
opportunities with which [the defendant] was presented, rather
than differences in modus operandi.’” Durousseau v. State, 55
So. 3d 543, 553 (Fla. 2010) (quoting Gore v. State, 599 So. 2d 978,
984 (Fla. 1992)). Thus, while it is correct that a trial court must
evaluate both similarities and differences, it is the entire picture
of the criminal episodes which a court must view, not simply
differences in isolation. By definition, no two criminal episodes
are identical.

     Based on the similarities and unusual modus operandi noted
by the trial court, plus other similarities, the trial court did not
abuse its discretion in admitting the similar-fact evidence. See
State v. Norris, 168 So. 2d 541, 543 (Fla. 1964). As in Black,
where similar modus operandi, clothing, description, and location
established a logical connection, here the State showed
“similarity and an unusual nature of the factual circumstances.”
630 So. 2d at 617. We therefore reject Appellant’s arguments on
this issue.

             III. Improper Prosecutorial Arguments

     If a defendant does not contemporaneously object to an
improper comment made in closing argument, he waives the
claim on appeal. Randolph v. State, 853 So. 2d 1051, 1068 (Fla.
2003); see also Wasko v. State, 505 So. 2d 1314, 1317 (Fla. 1987)
(finding that a trial court’s ruling on such an objection is
reviewed for abuse of discretion). Likewise, if a defendant does
object to an improper comment, but does not move for mistrial

                                 8
before the jury retires for deliberation, he waives the claim on
appeal. State v. Cumbie, 380 So. 2d 1031, 1033 (Fla. 1980).
When a criminal defendant fails to object to an allegedly
improper prosecutorial argument, an appellate court may not
reverse a conviction on that basis, unless the prosecutorial
comment constitutes fundamental error, although the reviewing
court may find the cumulative effect of improper comments to be
so prejudicial as to deprive a defendant of a fair trial, requiring
reversal. See Lukehart v. State, 70 So. 3d 503, 524 (Fla. 2011).
Of course, where all individual claims of prosecutorial misconduct
are meritless, a cumulative error claim necessarily fails. Id.

     Here, Appellant alleges that the State: 1) improperly argued
that Appellant lied on the stand; 2) misstated the law by telling
the jury it could convict if Appellant accidentally discharged his
firearm; 3) improperly shifted the burden of proof for self-defense;
and 4) improperly commented on Appellant’s right to remain
silent. Appellant asserts that the cumulative effect of these
comments warrants reversal.

     It is improper for a prosecutor to opine that a defendant lied
on the stand, unless the comments were “made in fair reference
to the evidence.” Blackwood v. State, 946 So. 2d 960, 970 (Fla.
2006); see also Lugo v. State, 845 So. 2d 74, 107-08 (Fla. 2003)
(holding that where the evidence substantially proved the
defendant was deceitful, remarks challenging the veracity of the
defendant were proper comments on the evidence). “It is only
when, viewed in the totality of the case, the prosecutor’s
comments drift far afield from the evidence adduced at trial that
they may constitute fundamental error.” Zack v. State, 911
So. 2d 1190, 1205 (Fla. 2005). Appellant cannot prevail in his
argument for reversal, unless the combined remarks were so
prejudicial as to deny him a fair trial. See Lukehart, 70 So. 3d at
524; Cumbie, 380 So. 2d at 1033.

     We hold that the State’s comments were a fair reference to
the evidence, and were not so far afield from the evidence
adduced at trial as to constitute fundamental error. The State
introduced evidence tending to show that Appellant gave a false
statement to police by claiming that he was never at the scene
and did not own a firearm. The State also presented evidence

                                 9
that Appellant committed the collateral robbery, including the
collateral-crime victim’s identification of Appellant.      The
collateral-crime evidence showed that Appellant had a modus
operandi for robberies, contradicting his testimony that he was
an innocent victim ambushed by the victims of the charged
offenses. Likewise, Appellant’s statements to police discredited
his trial testimony.

    Appellant also argues that, during closing argument, the
State misstated the law by incorrectly informing the jury that
Appellant could be convicted even if the jury believed the
discharge of the firearm was an accident. Where a prosecutor
misstates the law during closing argument, and the defendant
does not object or move for mistrial, the issue is not preserved for
appellate review unless the comment rises to fundamental error,
such that a conviction could not have been obtained without the
error. See, e.g., Evans v. State, 177 So. 3d 1219, 1234 (Fla. 2015);
State v. Fountain, 930 So. 2d 865, 866 (Fla. 2d DCA 2006).

     During closing arguments, the State told the jury that the
discharge of the firearm “doesn’t have to be intentional, it’s the
fact that [Appellant] was the person with the firearm, he is the
one that discharged it.” Appellant neither objected nor moved for
mistrial; thus, absent fundamental error, the issue is waived.
Evans, 177 So. 3d at 1234. Regardless, we do not view the State’s
comment as a misstatement of law, let alone fundamental error.
The State argued that intent was not required for the
aggravating factor of discharging a firearm. The State had
already explained how to find second-degree murder, and
prefaced the challenged comment with “So, if you find [Appellant
attempted to] commit[] murder in the second degree . . . .”
(Emphasis added.) Thus, no fundamental error occurred.

     Next, Appellant claims that the State improperly shifted the
burden of proof on his self-defense claim. When a defendant
raises a self-defense claim, he must produce enough evidence to
establish a prima facie case of justifiable use of force. Fields v.
State, 988 So. 2d 1185, 1188 (Fla. 5th DCA 2008). Once a
defendant makes this showing, the State has the burden to prove
beyond a reasonable doubt that the defendant did not act in self-
defense. Id. Where a defendant does not object to a comment

                                10
that shifts the burden of proof, the claim is waived on appeal.
Morrison v. State, 818 So. 2d 432, 445 (Fla. 2002).

     Here, the State told the jury that “in order to find a
justifiable attempted homicide, you all would have to believe
unanimously that [Appellant] was the one being attacked by [the
victim] with that pocketknife in order to find that [Appellant’s]
actions, the firing of the gun, was justifiable.” As Appellant did
not object or move for mistrial, this claim is not preserved for
appeal. See id. Moreover, this comment did not shift the burden
of proof. See Fields, 988 So. 2d at 1188. Shortly after making the
comment, the State told the jury that if, “in your consideration of
the issue of self-defense, you have reasonable doubt on the
question of whether [Appellant] was justified in the use of deadly
force, you should find [Appellant] not guilty.” (Emphasis added.)
Thus, Appellant fails to show any fundamental error.

     Appellant next argues that “[a] prosecutor’s comments on a
defendant’s failure to offer an exculpatory statement prior to trial
amounts to a comment upon the defendant’s right to remain
silent.” Munroe v. State, 983 So. 2d 637, 641 (Fla. 4th DCA 2008)
(citing State v. Hoggins, 718 So. 2d 761, 772 (Fla. 1998)). A
comment on a defendant’s right to remain silent is not
fundamental error, and a contemporaneous objection is required
to preserve for appeal any claim asserting that the State violated
the defendant’s constitutional right to remain silent. Clark v.
State, 363 So. 2d 331, 333 (Fla. 1978), overruled in part on other
grounds, State v. DiGuilio, 491 So. 2d 1129, 1137 n.14 (Fla. 1986).

     Appellant waived this argument by not objecting to the
comments at trial. Clark, 363 So. 2d at 333. In addition, the
record shows that, after being read his rights, Appellant
voluntarily gave a statement to law enforcement indicating that
he was never at the crime scene and did not own a firearm. After
Appellant testified at trial that he was at the scene and did shoot
a firearm in self-defense, the State called the arresting officer on
rebuttal and asked, “at any point in time did [Appellant] tell you
that he shot in the direction of [the two shooting victims] in self-
defense?” The officer answered, “No, ma’am, he said he wasn’t
even there.” In closing, the State argued that Appellant’s trial
testimony was inconsistent with the statement he gave to police.

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     Because Appellant did offer an exculpatory statement prior
to trial, the State did not comment on his silence. Appellant’s
reliance on Munroe is misplaced, as that case does not stand for
the proposition that the Fifth Amendment allows defendants to
testify at trial and change their previous explanations with no
risk of impeachment. See Munroe, 983 So. 2d at 641. Thus we
hold that none of the prosecutorial arguments entitle Appellant
to a new trial.

    AFFIRMED.

OSTERHAUS and BILBREY, JJ., concur.

                _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Andy Thomas, Public Defender, Victor D. Holder, Assistant
Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Sharon S. Traxler, Assistant
Attorney General, Tallahassee, for Appellee.




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