            FIRST DISTRICT COURT OF APPEAL
                   STATE OF FLORIDA
                 _____________________________

                        Nos. 1D17-5161
                             1D17-5162
                 _____________________________

AKEEN KADONI PAUL,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Duval County.
Marianne L. Aho, Judge.

                          July 22, 2019


LEWIS, J.

     In these consolidated appeals, Appellant, Akeen Kadoni Paul,
appeals his judgment and sentence for burglary of a dwelling and
resisting an officer without violence and the order revoking his
probation and the sentence resulting therefrom. Appellant raises
four issues on appeal, none of which warrant reversal. We,
therefore, affirm.

                     FACTUAL BACKGROUND

    In 2013, Appellant pled guilty to five counts of armed robbery
and one count of possession of less than twenty grams of cannabis.
The offenses occurred when Appellant was eighteen years old.
Appellant was sentenced as a youthful offender to six years’
imprisonment, “of which 4 [years were to] be served by
imprisonment followed by 2 [years] probation.”

     In February 2017, a probation violation report was filed,
alleging that Appellant committed the new law violations of
burglary of a dwelling and resisting an officer without violence.
While the State charged Appellant with these offenses in a
separate case, the probation violation evidentiary hearing and the
trial on the new law offenses occurred simultaneously. The State
filed a notice of intent to classify Appellant as a prison releasee
reoffender (“PRR”) in the new law violation case, relying on
Appellant’s 2013 conviction and sentence for armed robbery.

    Thereafter, Appellant filed a motion in limine in which he
asked the trial court to prohibit the State from introducing any
evidence “relating to or testimony regarding [him] having a gun
and drugs on his person and any other reference to [him] regarding
a gun and drugs.” In opposition to the motion, the prosecutor
asserted in part:

         Your Honor, one of the State’s witnesses, in the
    police reports and in depositions, did state that one of the
    suspects – there are three in this case that were observed
    committing the burglary – made a statement to a witness
    at the time the burglary was being committed, stating
    that he needed to run and that he had a stick and he had
    five seconds to run.
         Now, the State is intending to elicit this testimony
    as a statement of a co-conspirator. . . .
         Also . . . in this particular case, the State is not
    necessarily introducing that statement for the truth of
    the matter asserted. We are not going – or at this point
    do not plan on asserting that anyone was actually armed,
    solely that this statement is evidence that this witness
    interrupted a burglary in process, that the persons that
    were there, by the statement, indicated they did not have
    permission to be there, that they had the intent to commit
    an offense, and that is relevant to proving the charge of
    burglary . . . .


                                 2
Defense counsel argued in response that the statements were not
relevant and were hearsay and that admission of the statements
would violate the confrontation clause. The trial court denied
Appellant’s motion in part, finding “that this anticipated
statement is a statement of a co-conspirator, which would not be
subjected to the confrontation clause.” It further stated, “So I do
find that would not be hearsay, it’s not being offered for the truth
of the matter asserted or, in the alternative, it would be an
exception to the hearsay rules of evidence.”

     During trial, the State first called the victim, who was notified
while at work that his house was being burglarized. When he
arrived home, he found that his back door was completely off the
hinge, everything was in disarray, and several items were missing.
After the police left his home, the victim and his fiancé saw a light
down the road. Appellant was later arrested in the area where the
light was coming from. The victim recognized Appellant as the
man who was “on the footage in [his] video.” The victim testified
that a phone was found in his yard that did not belong to him.

     The victim’s cousin testified that, at the victim’s request, he
went to the victim’s home before the victim arrived. The cousin
saw a TV and phone in the victim’s yard. He also saw a silhouette
of someone and asked the person what he was doing. When asked
what the male voice said, defense counsel objected and “renew[ed]
[her] objection from yesterday regarding the motion in limine.”
When the trial court said, “Statement of a coconspirator,” defense
counsel asserted, “It is inadmissible hearsay.” The trial court
replied, “So the objection is overruled and the record is
incorporated by reference.” The cousin then testified, “I said, Hey,
what are you doing? He said, oohh, nothing.” When asked if he
heard another voice, the cousin replied, “He said, You have got five
seconds to get back because I’ve got a stick.” When asked what he
understood that to mean, the cousin replied, “When they say
they’ve got a stick, it means you’ve got a pistol, a gun.”

     An officer later testified that upon arriving at the scene, he
saw that the victim’s back door had been kicked in. The house had
been rummaged through and ransacked. The victim told the
officer that he saw on his “video feed off his cell phone” several
males enter his residence. The officer watched the video and saw

                                  3
the men enter the home and remove “several of the victim’s items
as they fled.” The officer later responded to an area about three
houses down from the victim’s home and saw the victim and his
girlfriend “in the middle of the street as the suspect [Appellant]
was . . . crawling out from the embankment next to the road.” The
victim was pointing at Appellant saying, “That’s him, that’s him.”
Appellant told the officer he was looking for his cell phone.
Another officer testified that Appellant fled from officers before
being arrested. The cell phone found at the scene contained
Appellant’s picture. During his police interview, Appellant was
described as being upset and agitated, he claimed to have dropped
his phone, and he denied his involvement in the burglary.

     The trial court subsequently instructed the jury in part as
follows:

         To prove the crime of burglary, the state must prove
    the following two elements beyond a reasonable doubt:
         1. [Appellant] entered a structure owned by or in the
    possession of [the victim].
         2. At the time of entering the structure, [appellant]
    had the intent to commit theft, an offense other than
    burglary or trespass in that structure.

         ....

         Proof of possession by an accused of property
    recently stolen by means of a burglary unless
    satisfactorily explained, may justify a conviction of
    burglary if the circumstances of the burglary and of the
    possession of the stolen property convince you beyond a
    reasonable doubt that [Appellant] committed the
    burglary.

     During jury deliberations, the trial court addressed
Appellant’s violation of probation case, taking judicial notice of “all
testimony, exhibits, evidence, arguments and otherwise placed on
the record” during trial. After the testimony of Appellant and his
probation officer, the trial court found that the State had met its
burden of proof by a preponderance of the evidence that Appellant
violated his probation. The jury found Appellant guilty as charged

                                  4
on the two new law offenses. The trial court denied Appellant’s
motion for new trial.

     During the sentencing hearing, the prosecutor noted that she
wanted to play for the court certain jail calls, explaining, “This was
entered into the court record as a court exhibit at trial. It was
never entered in as an exhibit for trial purposes for the jury.” The
prosecutor claimed that the calls contained conversations between
Appellant and his mother and girlfriend during which he was
seeking to influence any potential testimony by witnesses or
influence them to provide him an alibi. Over defense objection, the
trial court received the calls into evidence. During one call,
Appellant stated to his mother, “All she got to do, man, is just tell
them what I told y’all. I’m goin’ to court tomorrow at 1 o’clock. All
she has to do is just tell him, man. . . .” He later stated, “All you
got to do is just tell them what I told you, dog. And make sure you
keep that video when they whooped me too,” and “All I need you to
do, man, is tell them what I told you.” After defense counsel argued
that the calls were irrelevant and constituted hearsay, the trial
court stated, “So overruled. I find that the statements to date are
admissible, and I will be very careful to assign them the weight
that I think they deserve. I am very aware of the testimony at
trial, which I think is the primary information before the Court,
because we’re here for sentencing on the guilty verdicts . . . .”

    Thereafter, defense counsel asked for a “guidelines of 18.025
years,” while the State asked for a thirty-year sentence, including
“that 15-year period for which he would not earn gain time.” As to
the new law offense of burglary, the trial court sentenced
Appellant, who was twenty-two years of age at the time, to fifteen
years’ imprisonment as a PRR. Appellant was sentenced to 272
days in jail on the resisting offense. As for the violation of
probation case, the trial court revoked probation and sentenced
Appellant to thirty years’ imprisonment, with the sentences to run
concurrently.

    While his appeal was pending, Appellant filed a Motion to
Correct Sentencing Errors Under Rule 3.800(b)(2), Florida Rules
of Criminal Procedure. Appellant argued in part that his
sentences were illegal because they were unconstitutionally cruel
and unusual, “lacking a basis in proportionality analysis.”

                                  5
Appellant asserted that brain research demonstrated that he was
not an adult with respect to mental capacity. He cited to Miller v.
Alabama, 567 U.S. 460 (2012), and Graham v. Florida, 560 U.S.
48 (2010), in support of his argument. The trial court rejected
Appellant’s argument, setting forth in part, “Defendant has failed
to cite any case holding or otherwise suggesting that Defendant’s
sentences are unconstitutional. In fact, the cases cited by
Defendant apply to juveniles; Defendant is an adult. Therefore,
those cases are inapposite. Accordingly, this claim is denied.” This
appeal followed.

                             ANALYSIS

     In his first issue, Appellant argues that the trial court failed
to make the mandatory threshold findings before admitting into
evidence the victim’s cousin’s testimony about any co-conspirator’s
hearsay statements and that the statements were not relevant and
were prejudicial. “Hearsay” is defined as “a statement, other than
one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted.” §
90.801(1)(c), Fla. Stat. (2016). “A statement by a person who was
a coconspirator of the party during the course, and in furtherance,
of the conspiracy” falls under a hearsay exception. § 90.803(18)(e),
Fla. Stat. (2016). “In determining the existence of a conspiracy, a
court must rely upon evidence independent of the hearsay
statements to prove the conspiracy before the coconspirator’s
hearsay statements are admissible.” Foster v. State, 679 So. 2d
747, 753 (Fla. 1996); see also Tramontano v. State, 778 So. 2d 449,
450 (Fla. 4th DCA 2001) (holding that the statements of the co-
conspirator were properly admitted against the appellant because
the State presented sufficient independent evidence of a
conspiracy). While the admissibility of evidence is within the
sound discretion of the trial court and is reviewed for an abuse of
discretion on appeal, the question of whether a statement
constitutes hearsay is a matter of law subject to de novo review.
Tundidor v. State, 221 So. 3d 587, 598 (Fla. 2017). However, the
abuse of discretion standard has been applied when reviewing
whether a hearsay exception applies. Beckman v. State, 230 So.
3d 77, 89 (Fla. 3d DCA 2017).



                                 6
     As for the issue of preservation, which the State raises, the
record establishes that while defense counsel argued below that
the testimony at issue constituted hearsay and violated the
confrontation clause, counsel did not argue that the trial court
failed to make any threshold findings for the co-conspirator
hearsay exception to apply. In order for an argument to be
cognizable on appeal, it must be the specific contention asserted
below as the legal ground for the objection, exception, or motion.
Harrell v. State, 894 So. 2d 935, 940 (Fla. 2005). Because
Appellant did not make any argument about threshold conspiracy
findings below, the argument was not preserved for appeal.

     With that said, even if the argument had been preserved,
affirmance as to this issue would still be warranted. The trial
court initially determined that the challenged testimony was not
hearsay. To the extent that Appellant disputes that determination
on appeal, he has failed to show any error on the trial court’s part.
As the State contends, it did not attempt to use the cousin’s
testimony as to what he heard one of the men in the victim’s yard
say to prove the truth of the matter asserted, i.e., that any of the
men there had a weapon. Instead, as the prosecutor argued, the
State used the statement in order to prove that the men, including
Appellant, were knowingly committing a crime.

     As to Appellant’s argument that there was no evidence of a
conspiracy, the State is correct that it introduced independent
evidence of such in the form of the video evidence showing three
men entering the victim’s home. There was also evidence of items
being found outside the victim’s home. Appellant’s arguments that
the evidence was irrelevant and prejudicial are also meritless.

      We further determine that even if it could be said that the
trial court erred, any error would be harmless. See Chavez v. State,
25 So. 3d 49, 54 (Fla. 1st DCA 2009) (noting that an error in
admitting hearsay is subject to a harmless error analysis, which
looks at whether there is a reasonable possibility that the error
affected the verdict). Appellant was not charged with possession
of a firearm, and the cousin never identified Appellant as the man
who made the statements at issue. Thus, there is no reasonable
possibility that any error would have affected the verdict.


                                 7
     In his second issue, Appellant argues that the portion of the
burglary instruction explaining in part that proof of possession by
an accused of property recently stolen may justify a conviction was
fundamentally erroneous because it deprived him of a fair trial.
Jury instructions are subject to the contemporaneous, specific
objection rule. Smith v. State, 76 So. 3d 379, 383 (Fla. 1st DCA
2011). If no objection is made, a defendant must demonstrate that
any error was fundamental. Id. A fundamental error analysis in
the context of jury instructions considers the effect of the erroneous
instruction in light of the other instructions given, the evidence
adduced in the case, and the arguments and trial strategies of
counsel. Id.

     According to Appellant, the instruction at issue allowed the
jury to consider “the inference of guilt of burglary from property
recently stolen, which was confusing and misleading because there
was no evidence to support it.” The State argues that no
fundamental error occurred because the jury did not need to
consider possession of stolen property to convict, and it was not an
issue during the trial. This argument is correct. As the State also
contends, if anything, inclusion of this instruction benefitted
Appellant given the fact that he did not possess any stolen property
when he was arrested. Appellant has failed to establish any
fundamental error as to the jury instruction at issue.

     In his third issue, Appellant argues that his sentences violate
due process and constitute fundamental error because the trial
court erroneously took into consideration some of his jail calls
where there was no evidence that he was ever arrested, charged,
or convicted of any crimes involving the witnesses or calls. For an
error related to a sentence to be considered on appeal, it must fall
into one of three categories: (1) a sentencing error preserved
through a contemporaneous objection or timely motion under
Florida Rule of Criminal Procedure 3.800(b); (2) an error that
occurred during the sentencing process that is preserved by
contemporaneous objection; or (3) fundamental error that occurred
during the sentencing process. Pressley v. State, 73 So. 3d 834, 836
(Fla. 1st DCA 2011). An exception to the general rule that a
sentence imposed within the statutory limits is unassailable on
appeal is where the sentence is based on constitutionally
impermissible factors, such as unsubstantiated allegations of

                                  8
wrongdoing. Williams v. State, 193 So. 3d 1017, 1018 (Fla. 1st
DCA 2016). This is because a sentence that is based on a mere
allegation or surmise violates a defendant’s constitutional rights.
Id.

       In Williams, the prosecutor asserted that the appellant had
several prior cases where the charges were dropped because the
State could not get witnesses to testify, implying that the appellant
had threatened the witnesses not to testify. Id. In reversing and
remanding for resentencing, we noted that there was no record
evidence of witness threats or any evidence that the appellant was
charged with threatening witnesses in the prior cases and that it
was clear that the trial court based its sentencing decision on the
prosecutor’s assertions of witness tampering. Id. at 1019. We set
forth, “Although it was not necessarily improper for the trial court
to consider Appellant’s prior arrests not resulting in convictions at
sentencing, it was improper for the court to base Appellant’s
sentence in whole or in part on uncharged and wholly
unsubstantiated allegations of wrongdoing. Id.; see also Craun v.
State, 124 So. 3d 1027, 1030 (Fla. 2d DCA 2013) (noting that
nothing presented either in the sentencing memorandum or at the
sentencing hearing connected the appellant to any alleged
continuing fraud and reversing and remanding for a new
sentencing hearing); Macintosh v. State, 182 So. 3d 888, 889 (Fla.
5th DCA 2016) (“[T]he trial court’s comments indicate that the
sentence was influenced by its belief that [the appellant] had
committed uncharged acts of violence . . . . Although this may be
a proper sentencing consideration, here, the allegations of violence
were unsubstantiated hearsay from the assistant state attorney . .
. .”).

      As the State argues on appeal, Appellant’s argument is
meritless. This was not a situation like that in Williams, Craun,
or Macintosh where the trial courts relied upon unsubstantiated
allegations of wrongdoing. Here, instead, the trial court heard the
jail calls and was able to determine if what it heard supported the
State’s contention that Appellant attempted to influence his
mother and girlfriend. Indeed, the trial court stated, “I will be very
careful to assign them the weight that I think they deserve. I am
very aware of the testimony at trial, which I think is the primary
information before the Court, because we’re here for sentencing on

                                  9
the guilty verdicts . . . .” Given such, Appellant has failed to show
any fundamental error as to this issue.

     In his fourth and final issue, Appellant contends that his
fifteen-year PRR sentence for burglary and his thirty-year
sentence for violating probation violate the constitutional
prohibition on excessive punishments given his age at the time of
sentencing. According to Appellant, brain science research shows
that he, as a twenty-two-year-old, was not an adult with respect to
mental capacity.

     “‘[M]ixed questions of law and fact that ultimately determine
constitutional rights should be reviewed by appellate courts using
a two-step approach, deferring to the trial court on questions of
historical fact but conducting a de novo review of the constitutional
issue.’” Andrews v. State, 82 So. 3d 979, 984 (Fla. 1st DCA 2011)
(quoting Hilton v. State, 961 So. 2d 284, 293 (Fla. 2007)).
“However, when considering Eighth Amendment issues, appellate
courts must yield ‘substantial deference to the broad authority
that legislatures necessarily possess in determining the types and
limits of punishment for crimes, as well as to the discretion that
trial courts possess in sentencing convicted criminals.’” Id.
(quoting Solem v. Helm, 463 U.S. 277, 290 (1983)). “Florida courts
have been reluctant to declare a prison sentence unconstitutional
because of its length,” and “[t]he Florida Supreme Court has held
that in order for a prison sentence to constitute cruel and unusual
punishment solely because of its length, the sentence must be
grossly disproportionate to the crime.” Id.

     In Roper v. Simmons, 543 U.S. 551, 555 (2005), the Supreme
Court held that the Eighth and Fourteenth Amendments prohibit
the imposition of the death penalty on juvenile offenders and
explained that courts must look to the evolving standards of
decency to determine whether a punishment is cruel and unusual.
While recognizing that “[t]he qualities that distinguish juveniles
from adults do not disappear when an individual turns 18,” the
Court nevertheless concluded that the line must be drawn at the
age of 18 because that is “the point where society draws the line
for many purposes between childhood and adulthood.” Id. at 574.

     Subsequently, in Graham v. Florida, 560 U.S. 48, 74 (2010),
the Supreme Court held that the imposition of a life without parole
                                 10
sentence on a juvenile offender who did not commit a homicide
constitutes cruel and unusual punishment. The Court reasoned
that juvenile nonhomicide offenders’ limited culpability, the
severity of the sentence of life without parole, and the lack of
penological justification for the punishment for such offenders led
the Court to conclude that the sentencing practice was cruel and
unusual. Id. at 74. After examining the characteristics of
juveniles, the Court again drew the “clear line” at the age of
eighteen for the purposes of its holding because that is the point
where society draws the line for many purposes between childhood
and adulthood. Id. at 74-75.

     Two years later, in Miller v. Alabama, 567 U.S. 460 (2012),
the Supreme Court held that mandatory life without parole
sentences for juvenile offenders violate the Eighth Amendment’s
prohibition on cruel and unusual punishment because they
prevent consideration of juveniles’ lessened culpability and greater
capacity for change. The Court focused on the fact that “Roper and
Graham establish that children are constitutionally different from
adults for purposes of sentencing” and on the reasons for why
“juveniles have diminished culpability and greater prospects for
reform.” Id. at 471. The Court again defined juvenile offenders as
those who are under the age of eighteen at the time of their crimes
and it interchangeably used the terms juveniles and children. Id.
at 465.

     Appellant cites various opinions from non-Florida courts that,
according to him, have extended Roper, Graham, and Miller to
offenders who are eighteen years of age or older. See, e.g., Cruz v.
United States, 11-CV-787 (JCH), 2018 WL 1541898, at *25 (D.
Conn. Mar. 29, 2018) (holding that Miller applies to eighteen-year-
olds and that the Eighth Amendment forbids a sentencing scheme
that mandates life in prison without the possibility of parole for
offenders that were eighteen years old at the time of their crimes).
However, we have rejected the argument that a sentence of life
without parole for a non-juvenile offender convicted of murder is
unconstitutional pursuant to Graham. In Romero v. State, 105 So.
3d 550, 551 (Fla. 1st DCA 2012), the appellant, who was eighteen
years old at the time of his crime, asked this Court to extend
Graham to him based on his youth and the attendant factors. Id.
at 551-53. We held that “Graham is not controlling for an adult

                                11
defendant” and emphasized that “the Supreme Court itself limited
the scope of Graham.” Id. at 553. We footnoted Miller and found
that the appellant’s reliance upon it and Daugherty v. State, 96 So.
3d 1076 (Fla. 4th DCA 2012), was misplaced and noted that the
appellant was not a juvenile and that his sentence was not
statutorily mandated. Id. at 554; see also Wilson v. State, 249 So.
3d 800, 800 (Fla. 1st DCA 2018) (per curiam affirming the
appellant’s sentence and citing Romero for the proposition that
Graham does not apply to offenders eighteen years of age or older);
McCray v. State, 247 So. 3d 721, 722 (Fla. 1st DCA 2018) (per
curiam affirming the appellant’s sentence and citing Romero for
the proposition that Graham does not apply to an eighteen-year-
old defendant, “notwithstanding the juvenile nature of the
defendant’s mental and emotional development”). More recently,
in Lockhart v. State, 260 So. 3d 1184, 1185 (Fla. 1st DCA 2018), we
rejected the appellant’s argument that “the rationales of the
Graham line of cases and the neurological research showing that
the brain continues to develop until the mid-twenties” should lead
us to require that sentencing courts focus on offenders’ actual
mental age on a case-by-case basis. We affirmed on the authority
of Romero, McCray, and Wilson. Id.

      As the foregoing cases make clear, Appellant’s argument that
the sentencing court should have considered his mental age rather
than his chronological age is unavailing. Not only are the cases
relied upon by Appellant distinguishable given that he was not
sentenced to life imprisonment, but nothing in the Graham line of
cases requires the analysis proposed by Appellant, either in cases
of life imprisonment or otherwise.

    For the reasons set forth herein, we reject Appellant’s
arguments and affirm.

    AFFIRMED.

MAKAR and M.K. THOMAS, JJ., concur.




                                12
               _____________________________

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


Andy Thomas, Public Defender, and Joanna A. Mauer, Assistant
Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Benjamin L. Hoffman,
Assistant Attorney General, Tallahassee, for Appellee.




                            13
