       Third District Court of Appeal
                               State of Florida

                          Opinion filed August 9, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D14-2270
                         Lower Tribunal No. 13-10249
                             ________________

                          Charles Kyle Williams,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Bronwyn C.
Miller, Judge.

     Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third
Region, and Philip L. Reizenstein, Assistant Regional Counsel, for appellant.

     Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney
General, for appellee.

Before LAGOA, SCALES and LUCK, JJ.

      LUCK, J.

      Charles Kyle Williams appeals his aggravated battery conviction and

sentence, following a jury trial, because (1) of improper statements made by the
state during closing argument and (2) the trial court’s sentence was

unconstitutionally vindictive. After review of the record and briefs, and with the

benefit of oral argument, we affirm.

        FACTUAL BACKGROUND AND PROCEDURAL HISTORY

       On March 18, 2013, Michelle Emmanuel (a student at Miami-Dade College)

went to the college computer lab to visit her boyfriend, Williams, who was a

Miami-Dade College employee working in the lab. The couple discussed a fight

which had occurred several days before when Emmanuel discovered pictures of

another woman on Williams’ phone. After hours talking and sitting in the lab,

Williams suggested that they go to the next room, a “testing area.” The computer

lab and testing area were separated by a sliding partition and “steal door.”

       Upon entering the room, Emmanuel sat in the “far corner of the testing

room” and Williams proceeded to go through her cellular telephone. Williams “got

mad” when he found a text message conversation between Emmanuel and her

“good friend” Richard Pearson. Williams directed Emmanuel to call Pearson and

the two men spoke on the telephone. After hanging up with Pearson, Williams told

Emmanuel that she disrespected him and punched her on the eye “repeatedly.” He

also hit her on the mouth twice with an open palm, busting her lip. He then spit on

her.




                                          2
       After the attack, Williams gave Emmanuel a napkin for her bloody lip and

opened a separate door so that she would not have to walk through the computer

lab. Only a few people were working in the lab during the altercation. Emmanuel

went to the bathroom to clean up and was eventually picked up by Pearson who

took her to the college’s public safety office to report the attack.

       Prior to voir dire, the following exchange occurred between Williams and

the trial court:

       Court: The State has indicated that if you are convicted in this case,
       the minimum that the Court can give you, absent statutory mitigating
       circumstances is 44.7 months in state prison.

       The maximum, of course, as charged is fifteen years in state prison
       absent any announcement the State filed prior to sentence, do you
       understand that?

       Williams: Yes.

       Court: Is there any offer in this case?

       Assistant State Attorney: I’ll offer him seven years state prison absent
       hearing defense counter.

       Court: They are offering you seven years in state prison at this time,
       are you interested in that offer?

       Williams: No, ma’am.

       Court: Do you need any additional time to speak with the attorney
       regarding any negotiations in this case?

       Williams: No, ma’am.

       Court: All right. Very good.


                                           3
After rejecting the state’s plea offer, Williams proceeded to trial.

      At trial, three state witnesses testified to either seeing Emmanuel in the lab

the day of the beating or seeing a young woman with a bloodied rag over her face

leave the building around the time of the attack. The witnesses present in the lab at

the time testified they did not hear screaming coming from the testing area.

      The defense’s theory of the case was that the parties were not dating (as

Williams was married), and that, in fact, Williams defended Emmanuel from an

attack by Pearson which took place across the street from the college at the

Walgreens parking lot.      In support of its theory, the defense presented two

witnesses: Brenda Pearsall and Stanley Collins, an engaged couple, who testified

to an altercation in the Walgreens parking lot across the street from the college on

March 18. They both testified that Williams told an unidentified-man not to hit the

woman. Pearsall admitted that she was a five time convicted felon; and Collins

admitted that he had been convicted of twelve prior felonies. On cross

examination, the couple also testified that, months after the battery took place,

Williams’ wife contacted Collins about testifying in the case.

      Following closing arguments, defense counsel moved for a mistrial “based

on [the] [s]tate’s rebuttal, based on multiple instance[s of denigration] of [the]

defense, based on statement of the law with regards to burden of proof. Multiple




                                           4
instances of burden shifting.” The motion was denied. The jury returned a verdict

of guilty as charged for aggravated battery.

      The trial court subsequently held a sentencing hearing. During the hearing,

Williams stipulated that he had been convicted of two prior felonies: one from

Texas for aggravated robbery with a firearm; and one from Broward County for

possession of a weapon (a dagger) by a convicted felon. He also stipulated to one

prior misdemeanor conviction for driving without a valid driver’s license.

Emmanuel was present at sentencing and the state read a statement from her

detailing the continuing physical and emotional effects of the attack.

      The state asked the trial court to sentence Williams to the fifteen year

statutory maximum because of Williams’ prior convictions which involved the use

of weapons (firearm and knife), and the victim’s testimony regarding her injuries.

After commenting on the evidence presented at the hearing, the trial court

sentenced Williams to thirteen years’ imprisonment, followed by one year of

community control and one year of probation.

                           STANDARD OF REVIEW

      “A trial court has discretion in controlling opening and closing statements,

and its decisions will not be overturned absent an abuse of discretion. We look at

the closing argument as a whole to determine whether that discretion was abused.”

Merck v. State, 975 So. 2d 1054, 1061 (Fla. 2007) (citation omitted). “Where



                                          5
counsel failed to raise a contemporaneous objection when improper closing

argument comments were made, the unobjected-to comments must rise to the level

of fundamental error, which has been defined as error that reaches down into the

validity of the trial itself to the extent that a verdict of guilty could not have been

obtained without the assistance of the alleged error.” Evans v. State, 177 So. 3d

1219, 1234 (Fla. 2015) (quotation omitted). On the other hand, “[t]he issue of

whether a defendant’s sentence is vindictive is a question of law subject to de novo

review.” Simplice v. State, 134 So. 3d 555, 556 (Fla. 5th DCA 2014); see also

Vardaman v. State, 63 So. 3d 925, 926 (Fla. 4th DCA 2011) (“Whether a

defendant’s sentence is vindictive is a question of law subject to de novo review.”);

Baxter v. State, 127 So. 3d 726, 734 (Fla. 1st DCA 2013) (“Our analysis of

whether a defendant’s sentence is the product of judicial vindictiveness involves a

question of law subject to de novo review.”).

                                   DISCUSSION

      Williams, on appeal, challenges more than twenty statements made by the

state during its first and second closing arguments, and contends that his sentence

was unconstitutionally vindictive. We address each of these arguments below.

                 1. Improper Comments During Closing Argument

      Williams claims the state made approximately twenty improper comments

during its two closing arguments. For the vast majority of these alleged errors,



                                          6
Williams did not raise a contemporaneous objection, and they were not errors at

all.   For example, in its rebuttal closing, the state argued:       “The defendant

savagely, maliciously, and intentionally beat [Emmanuel] causing great bodily

injury in this case.” This was a reasonable inference from the evidence, and a fair

reply to Williams’ argument in his closing that:

       The State wants to charge that Mr. Williams intentionally caused great
       bodily harm by striking Miss Emmanuel with a closed fist. That’s not
       intentionally causing great bodily harm unarmed. Hitting someone
       three times that’s not intentional. That’s felony battery at best.

See Watson v. State, 50 So. 3d 685, 686 (Fla. 3d DCA 2010) (“[A] proper rebuttal

argument is limited to a reply to what has been brought out in the defendant’s

closing argument.”).

       As part of its burden to prove that Williams committed aggravated battery

on Emmanuel, the state had to show that Williams “[i]ntentionally or knowingly

cause[d] great bodily harm, permanent disability, or permanent disfigurement.” §

784.045(1)(a)1., Fla. Stat. (2013). Given that Williams’ defense, in part, was that

his beating of Emmanuel did not intentionally cause her great bodily harm, the

state was entitled to argue, using synonyms of “intentional” and “great bodily

harm,” that the state met its burden to prove this essential element of the crime.

       The evidence, moreover, supported the inference that the beating was

savage, malicious, and intentional. Emmanuel testified that after getting off the

telephone with Emmanuel’s friend, Pearson, Williams told Emmanuel that she


                                          7
disrespected him and then punched her repeatedly on the eye, hit her on the mouth

twice, busted her lip open, and spat on her. Emmanuel was bleeding as she fled

the computer lab, and the next day, because it hurt to even open her eye, she had to

go to the hospital. Emmanuel ultimately was diagnosed with a fractured left eye.

The jury saw pictures of Emmanuel’s beaten face. Because Williams’ intent was a

jury question, State v. Gee, 624 So. 2d 284, 285 (Fla. 2d DCA 1993) (“[I]ntent is

generally a jury question that in most instances cannot be ascertained by direct

evidence but only inferred . . . .”), and he put intent at issue in his closing

argument, there was a reasonable inference to be made that beating a woman until

she’s bleeding, her lip is busted, her eye cannot open, she has to go to the hospital,

breaking her eye socket, and spitting on her, all because she disrespected Williams,

was savage and malicious.

      Williams also contends that it was improper for the state to argue in its

rebuttal closing that:

            [Emmanuel] didn’t cry out. She didn’t yell out for help. She
      was victimized by this thirty-eight year old defendant at the time who
      was romantically involved with a twenty year old little girl. . . .
      The victim in this case didn’t cry loud. She didn’t scream out.
            She was a mouse on that witness stand. I submit to you
      members of the jury she was a mouse on that day. She couldn’t cry
      out. She couldn’t scream for help. She was paralyzed with fear.
            When she cried, she cried softly and took it.

This, too, was a reasonable inference from the evidence, and a fair reply to

Williams’ argument that the beating did not happen in the computer lab as


                                          8
Emmanuel testified because no one heard her scream. Williams argued in closing

that:

               The State would have you believe that while this brutal attack
        took place, which Miss Emmanuel was crying out to the point that Mr.
        Williams was allegedly hitting her more for how loud she was being
        that no one in that room heard it.
               The fact that Miss Moore and Miss Holliman [two witnesses]
        were there and heard nothing is reasonable doubt.

The evidence supported the inference that Emmanuel was a quiet person. The two

witnesses in the computer lab testified that she was. Emmanuel came off that way

on the witness stand. See Parker v. State, 641 So. 2d 483, 485 (Fla. 5th DCA

1994) (where a witness takes the stand, “he subject[s] himself, as does every

witness, to opposing counsel’s comments regarding his credibility and demeanor as

a witness.”); Fla. Stnd. Jury Instr. (Crim.) 3.9 (the standard criminal jury

instruction on credibility states that the jury should “consider how the witnesses

acted, as well as what they said”). Emmanuel testified that her focus, after being

hit, was on “just leaving and getting away.” And Detective Harris testified that

domestic violence victims are sometimes reluctant to come forward. The purpose

for describing Emmanuel as a mouse was not to evoke sympathy for her, as

Williams claims on appeal, but rather to rebut Williams’ argument that no one

heard her scream. This was a fair explanation in response to the defense’s closing

argument that others in the computer lab did not hear Emmanuel being beaten.




                                         9
      Williams contends the state denigrated the defense when it said the defense

witnesses’ testimony was “out of thin air,” and “[b]y the way between the two of

[them] we have got seventeen felony convictions.”            These statements were

reasonable inferences from the evidence, and a fair reply to Williams’ closing

argument. Williams’ defense, in part, was that he did not beat Emmanuel in the

computer lab, but that Pearson beat Emmanuel at the Walgreens parking lot across

the street and Williams tried to stop it. Williams argued in his closing:

            You can believe [the defense witnesses’] testimony, not only
      because it is consistent with each other. Not only because these two
      people have no reason to lie about this. They have no stake in this,
      but because they were honest with you.

It was a fair reply for the state to respond that the defense witnesses had a reason to

lie about their testimony, and were not being honest with the jury. The defense

witnesses’ testimony was contradicted by others who saw Emmanuel together with

Williams at the computer lab (and had seen them together in the past), and saw

Emmanuel run from the computer lab with a bloody napkin in front of her face.

The defense witnesses, moreover, were solicited to testify by Williams’ wife, and

only came forward at her prompting. Ms. Pearsall admitted she was a five time

convicted felon, and Mr. Collins testified he was a twelve time convicted felon.

See Fla. Stnd. J. Instr. (Crim.) 3.9 (“You should consider how the witnesses acted,

as well as what they said. Some things you should consider are . . . Has the

witness been convicted of a felony . . . .”).


                                           10
      It is not burden shifting for the state to comment on the lack of evidence

supporting a defense theory where the defendant puts on a case and argues that a

third person committed the crime. The “out of thin air” and “seventeen felony

convictions” comments, in context, were a fair reply by the state to the credibility

of the defense witnesses and the lack of evidence supporting the Walgreens’

defense theory. See Concepcion v. State, 188 So. 3d 5, 9 (Fla. 3d DCA 2016)

(“The record, however, demonstrates that the State’s arguments were responsive,

and were directed to the evidence, and were not personal attacks of defense

counsel or improper denigration of the defendant’s theory of defense. The State

merely argued that the case was about a child who had been victimized by the

defendant, and that the evidence did not suggest that the mother had concocted a

story or that VDR was lying about what happened that day. These arguments were

fair responses to defense counsel’s closing arguments and were based on the

evidence introduced at trial.”).

      And so on. None of the alleged errors, separately or together, was an abuse

of discretion (for preserved errors) or fundamental error (for the unpreserved ones)

that reached down into the validity of the trial itself such that a guilty verdict could

not have been obtained without the assistance of the alleged error.            For the

unpreserved errors, the evidence of Williams’ guilt was strong. The jury had

Emmanuel’s testimony with pictures of her injuries. Two independent witnesses



                                          11
saw Emmanuel in the computer lab around the time of the attack. And a third

independent witness saw a woman with a bloody rag on her face leaving the

computer lab building. The unpreserved errors alleged by Williams did not reach

down to the validity of this evidence supporting that Emmanuel was beaten at the

computer lab, where Williams worked, and not at the Walgreens across the street.

                               2. Vindictive Sentence

      Williams contends that his thirteen year sentence should be reversed because

it was unconstitutionally vindictive.

      [W]hen a claim of vindictive sentencing is raised, the reviewing court
      must examine all of the surrounding circumstances of a rejected plea
      and the sentence imposed to determine whether they create a
      presumption of vindictiveness. If the totality of the circumstances
      give rise to a presumption of vindictiveness, then the burden shifts to
      the State to produce evidence to dispel the presumption. However, if
      the totality of the circumstances do not give rise to a presumption of
      vindictiveness, the burden never shifts to the State and the defendant
      must satisfy his burden to prove actual vindictiveness.

Concepcion, 188 So. 3d at 9 (citations omitted). In determining whether the

totality of the circumstances give rise to a presumption of vindictiveness, we begin

by applying the Wilson v. State, 845 So. 2d 142 (Fla. 2003) factors:

      (1) Whether the trial judge initiated the plea discussions with the
      defendant . . . .;
      (2) Whether the trial judge, through his or her comments on the
      record, appears to have departed from his or her role as an impartial
      arbiter by either urging the defendant to accept a plea, or by implying
      or stating that the sentence imposed would hinge on future procedural
      choices, such as exercising the right to trial;



                                        12
      (3) The disparity between the plea offer and the ultimate sentence
      imposed; and
      (4) The lack of any facts on the record that explain the reason for the
      increased sentence other than that the defendant exercised his or her
      right to a trial or hearing.

Concepcion, 188 So. 3d at 9-10 (quotation omitted).

      a.   Initiating plea discussions.        The trial court did not initiate plea

discussions with Williams. Before jury selection, the trial court went over the

sentencing guidelines and maximum penalties with Williams, and asked if there

were any outstanding plea offers in the case. Once the state indicated that it had a

plea offer, the trial court asked if Williams wished to accept the offer and whether

he needed more time to discuss it with his attorney.

      There is no presumption of vindictiveness from the trial court’s pre-trial

colloquy with the defendant. See Floyd v. State, 198 So. 3d 718 (Fla. 2d DCA

2016) (stating it was not a violation of Warner for judge to ask if defendant was

aware of state’s plea offer, explain the state’s offer, and inform defendant of his

sentencing exposure as long as it is done impartially and not while advocating for

the state offer); Hornbuckle v. State, 864 So. 2d 1203, 1205 (Fla. 4th DCA 2004)

(finding no vindictiveness where “[t]he only discussion involving the plea centered

around whether Mr. Hornbuckle wanted to accept the State’s offer, or plead open

to the court”); Vondervor v. State, 847 So. 2d 610, 614 (Fla. 5th DCA 2003)

(“Prior to trial, a judge may ask the attorneys if a plea offer has been extended, and



                                          13
may ask the defendant if he is aware of a pending plea offer without violating

Warner’s restrictions. The judge can even tell the defendant at the same time of his

or her maximum exposure if convicted at trial.” (citation omitted)). Indeed, the

experienced trial court did what we would commend all trial courts do prior to jury

selection: ask the parties whether any plea offers had been extended; ensure the

offers have been communicated to the defendant by counsel; confirm the defendant

is aware of the maximum and minimum penalties and the sentencing guidelines;

and inquire whether the defendant is rejecting the plea offer. See Rosado v. State,

129 So. 3d 1104, 1109 (Fla. 5th DCA 2013) (“[A] presumption of vindictiveness

does not arise because the trial judge neither initiated the plea discussions nor

departed from her role of neutrality. Rather, as most experienced trial judges do,

prior to jury selection, she inquired of the parties as to whether any plea offers had

been tendered and ensured that they had been communicated to Rosado. The judge

further inquired whether Rosado had rejected that offer and was aware of the

potential maximum sentence.”).

      Defendants have a constitutional right to be advised of plea offers and to

have the effective assistance of counsel in deciding whether to accept or reject

them. See Missouri v. Frye, 566 U.S. 133, 145 (2012) (“[D]efense counsel has the

duty to communicate formal offers from the prosecution to accept a plea on terms

and conditions that may be favorable to the accused.”); Lafler v. Cooper, 566 U.S.



                                         14
156, 162 (2012) (“Defendants have a Sixth Amendment right to counsel, a right

that extends to the plea-bargaining process. During plea negotiations defendants

are ‘entitled to the effective assistance of competent counsel.’” (citations omitted)).

For this reason, it is wise and appropriate for the trial courts to ensure that

defendants’ plea-offer rights are being protected, in the same way that trial judges

make sure defendants are knowingly, voluntarily, and intelligently accepting a

plea. See Fla. R. Crim. P. 3.170(k) (“No plea of guilty or nolo contender shall be

accepted by a court without the court first determining . . . that the circumstances

sounding the plea reflect a full understanding of the significance of the plea and its

voluntariness and that there is a factual basis for the plea of guilty.”). Just as trial

courts have a standard plea colloquy with defendants before entering a guilty plea,

so too should trial courts colloquy a defendant before trial about knowingly,

voluntarily, and intelligently rejecting a plea offer. Doing so is not initiating plea

discussions, and is not vindictive.

      b. Comments on the record. The trial court did not urge Williams to accept

the plea. And the trial court did not state or imply that Williams’ sentence would

hinge on whether he exercised his right to trial. The trial court asked Williams if

he wished to accept the offer and if he needed more time with his trial counsel.

Once Williams said he was rejecting the plea offer, the trial court said, “All right.

Very good,” and then proceeded to trial.           Without more, there can be no



                                          15
presumption of vindictiveness. See Concepcion, 188 So. 3d at 10 (finding no

presumption of vindictiveness where “[t]he trial court did not recommend or urge

the defendant to accept the State’s plea offer or imply that upon a conviction, the

defendant’s sentence would be increased because he exercised his right to a trial”).

      c. Disparity. The disparity referred to in the third Wilson factor is the

disparity between the trial court’s plea offer to resolve the case, and after defendant

rejects the court-extended offer, the trial court’s ultimate post-trial sentence. See

Wilson, 845 So. 2d at 158 (“Turning to Wilson, this case involves a violation of

probation where the trial judge offered to sentence Wilson to 128 months if he pled

guilty. . . . This implication is heightened by the fact that immediately after the

hearing, which was held shortly after the plea discussions, the judge imposed a

150-month sentence without explanation.” (citation omitted)); id. at 157-58

(“[T]he trial judge exceeded the limits of Warner by both urging Byrd to accept the

plea offer of thirty years and stating that if Byrd chose to go to trial he ‘certainly’

would not get that low. . . . Further, there is an extremely large disparity between

the offered thirty-year sentence and the seventy-five year sentence imposed.”

(citation omitted)). Here, because the trial court did not make a plea offer to

Williams, there was no disparity. The trial court did not indicate any preference

before the trial began, or urge the defendant to accept a particular plea, to compare

to the ultimate sentence.



                                          16
      d. Explanation for the sentence. The trial court explained that its sentence

was based on the jury’s verdict, the statements from members of the community,

including Emmanuel, and Williams’ “very serious prior criminal history,”

including the facts of his prior cases from Texas and Broward County. The Florida

Supreme Court cited these same factors as ones that could justify an increased

sentence from the one offered by the trial court pre-trial but rejected by the

defendant. Id. at 157 (quoting Prado v. State, 816 So. 2d 1155, 1164 (Fla. 3d DCA

2002) (Sorondo, J., concurring)) (“Factors such as the nature of the defendant’s

prior convictions, the degree of violence employed by the defendant during the

commission of the crime, the sophistication with which the charged offense was

committed, and/or the physical or psychological suffering endured by the

victim(s), are some factors that might lead the court to increase what it originally

considered to be an acceptable sentence.”). The trial court, here, gave a detailed

explanation for her sentence based on objective factors that it did not have at the

time of its pre-trial plea colloquy.

      In sum, none of the Wilson factors indicate a presumption of vindictiveness.

“[W]here,” as here, “the trial court merely confirms that the defendant understands

the terms of the plea offer and the potential sentences he is facing, there exists no

presumption of vindictiveness.” Concepcion, 188 So. 3d at 10. Likewise, “[t]he

disparity between the State’s pre-trial plea offer and the sentence imposed by the



                                         17
trial court after trial, standing alone, does not create a presumption of

vindictiveness nor require resentencing.” Id. Here, as in Concepcion, other than

the fact the trial court’s sentence was higher than the state’s pretrial plea offer,

Williams has presented no evidence that the sentence was vindictive. Even as to

this fact, however, there is nothing in the record to indicate the trial court would

have accepted, or urged the defendant to accept, the state’s seven-year plea offer.

There is nothing in the record to indicate the trial court penalized Williams for

exercising his right to go to trial. And the trial court explained the reasons for its

sentence, which included information it did not have at the time of the pre-trial

plea colloquy: the details of Williams’ prior criminal history; the remarks made at

the sentencing hearing, including Emmanuel’s statement of the emotional and

physical impacts the beating had on her; and facts of the case supporting the jury’s

verdict, including the extent of Emmanuel’s injuries. These facts, even where the

trial court makes a plea offer and the presumption of vindictiveness arises, may

support an increased sentence. Without the presumption of vindictiveness, it is not

enough for Williams to meet his burden to show the trial court’s sentence was

actually vindictive.

                                  CONCLUSION

      For these reasons, Williams’ conviction and sentence for aggravated battery

are affirmed.



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Affirmed.




            19
