       Third District Court of Appeal
                               State of Florida

                         Opinion filed February 13, 2019.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D18-494
                          Lower Tribunal No. 16-1239
                             ________________

                               J.R., a Juvenile,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



       An Appeal from the Circuit Court for Miami-Dade County, Orlando
Prescott, Judge.

       Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant
Public Defender, for appellant.

     Ashley Moody, Attorney General, and Kayla H. McNab, Assistant Attorney
General, for appellee.


Before LOGUE and MILLER, JJ., and SUAREZ, Senior Judge.

      MILLER, J.
      Appellant, J.R., a juvenile, appeals from an order withholding adjudication

of delinquency and placing him on probation for possession of cocaine, in violation

of section 893.13, Florida Statutes (2016). Because the trial court erred in

expressly admitting prejudicial evidence immaterial to the charged offense, over

objection, and failed to expressly disavow reliance upon the evidence in rendering

a decision, we cannot conclude under the facts presented that any associated error

was harmless. Accordingly, we reverse and remand for a new trial.

    FACTUAL BACKGROUND AND TRIAL COURT PROCEEDINGS

      J.R. was charged with one count of cocaine possession. At the adjudicatory

hearing, the State called several witnesses, beginning with Officer Nestor Amoris

of the City of Miami Police Department Homicide Unit. Officer Amoris testified

that on May 4, 2016, he was patrolling Little Havana with a patrol trainee, Officer

Earl Simington. In the early morning hours, Officer Amoris approached a closed

grocery store. There, he noticed J.R. pacing up and down on the sidewalk in front

of the store. As Officer Amoris drew nearer to the storefront, J.R. promptly seated

himself on the ground.     According to his testimony, he then observed J.R.

discarding an item known as a “Dutch cigar wrapper.”              Officer Amoris

immediately retrieved the item and discovered crack cocaine partially concealed

within plastic wrap. He impounded the narcotics and took J.R. into custody.

      The transcript reveals the following exchange during direct examination:



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             State: Can you tell us a little about the area that you were
             patrolling?
             Officer: Yes. They had us concentrate in particular areas that
             we were having trouble with. We had a lot of shootings,
             stabbings-
             Defense: Objection, relevance.
             Officer: -narcotics sales.
             Judge: Overruled.

During cross-examination, the transcript reflects the following:

             Defense: And people hang around this area, right?
             Officer: People hang around and use narcotics in that area. And
             buy narcotics, and sell narcotics.

      The State then called a criminalist and Officer Simington as witnesses.

Officer Simington testified that, on the evening in question, he observed J.R.

sitting on steps in front of the store beside a plate of food. There was insufficient

lighting to see clearly.   He approached J.R., walking slightly behind Officer

Amoris. Officer Simington did not see anything in J.R.’s hands and he did not see

J.R. discard the narcotics. However, he did witness Officer Amoris retrieving the

narcotics.

      After the State’s presentation of evidence, J.R. testified in his own defense.

He stated that his mother was in the hospital on the evening of his arrest. He was

waiting for his brother to return from work, and did not wish to remain home

alone, thus he purchased food from a nearby café. After selecting a location to

consume his meal, he was approached by the law enforcement officers. J.R.

denied possessing or discarding any narcotics, but conceded that he observed

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Officer Amoris recover plastic-wrapped cocaine approximately five feet from his

location.

      During the State’s closing, the prosecutor argued, without further objection,

that the neighborhood where J.R. was arrested was “known for its issues.” At the

conclusion of the hearing, the trial court found J.R. to have committed a delinquent

act, and, in so ruling, stated the following:

      After listening to the testimony of the witnesses, and hearing
      argument of counsel, the sole count of the Petition is possession of a
      controlled substance, possession of cocaine, it comes down to a
      credibility determination.

      Because the testimony adduced in the State’s case in chief was
      sufficient to withstand a Judgment of Dismissal that there was a prima
      facie case established.

      Then the Respondent took the stand. And he denied that he was in
      possession of anything. He said it was found approximately five feet
      away from him.

      He didn’t know it was there. The police picked it up, and it was
      approximately five feet away from him.

      After listening to the testimony of the witnesses, and making
      credibility determinations, the Court will find the Respondent
      delinquent.

The court withheld adjudication of delinquency and placed J.R. on supervision.

This appeal followed.

                                LEGAL ANALYSIS




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      J.R. contends that the admission of testimony characterizing the area as

known for narcotics sales was improper. We agree. “In Florida, evidence that a

criminal defendant was arrested in a high crime area is generally inadmissible.”

Latimore v. State, 819 So. 2d 956, 958 (Fla. 4th DCA 2002). “Such evidence is

usually considered irrelevant to the issue of guilt and unduly prejudicial because of

its tendency to establish guilt by association.” Id.; see also Fleurimond v. State, 10

So. 3d 1140, 1146 (Fla. 3d DCA 2009) (“Florida law disapproves references to the

area in which a defendant is observed as a location known to be a place where

drugs are sold because such evidence is irrelevant to the issue of guilt.”).

      In E.M. v. State, 61 So. 3d 1255, 1256 (Fla. 3d DCA 2011), an appeal of a

juvenile delinquency proceeding, we considered the propriety of admitting

testimony that the area where E.M. was observed was “what we call a hot area, a

hot spots for narcotics,” that had been checked “the prior week for narcotics.” We

found error, reiterating the principle that “Florida law disapproves references to the

area in which a defendant is observed as a location known to be a place where

drugs are sold because the evidence is irrelevant to the issue of guilt.” Id. at 1256-

57, citing State v. Johnson, 575 So. 2d 1292 (Fla. 1991) and Gillion v. State, 573

So. 2d 810, 811 (Fla. 1991).

      Likewise, in Lowder v. State, 589 So. 2d 933 (Fla. 3d DCA 1991), we

considered a detective’s comments characterizing the location of a crime as a



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“narcotics area.” There we found that “[i]t is well settled that reference to the area

in which a defendant is arrested as a location known to be inhabited by drug

dealers is prohibited because such reference is irrelevant to the issue of guilt.” Id.

at 935, citing Beneby v. State, 354 So. 2d 98 (Fla. 4th DCA 1978), cert. denied,

359 So. 2d 1220 (Fla. 1978).

      Here, law enforcement testimony regarding shootings, stabbings, and using,

buying, and selling narcotics, in the neighborhood in which J.M. was apprehended,

was irrelevant to a determination of delinquency. Thus, the trial court erred in

admitting the testimony.

      In Petion v. State, 48 So. 3d 726 (Fla. 2010), the Florida Supreme Court

considered the effect of improperly admitted evidence in the context of a bench

trial. Noting the well-established legal proposition that a trial court is presumed to

have disregarded inadmissible evidence, the court announced an exception to the

general rule. Id. at 730. Specifically, the court found: “It is logical and practical

that the presumption must be overcome where a trial court judge admits evidence

over objection, because the judge would understandably believe that the evidence

is properly before the court for consideration.”      Id. at 737.    Thus, the court

expressly rejected the initial presumption in this scenario, concluding:

      When an appellate court is reviewing a bench trial, it should presume
      that the trial court judge rested its judgment on admissible evidence
      and disregarded inadmissible evidence, unless the record demonstrates
      that the presumption is rebutted through a specific finding of

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      admissibility or another statement that demonstrates the trial court
      relied on the inadmissible evidence. When improper evidence is
      admitted over objection in this context, the trial court must make an
      express statement on the record that the erroneously admitted
      evidence did not contribute to the final determination. Otherwise, the
      appellate court cannot presume the trial court disregarded evidence
      that was specifically admitted as proper. In addition, the appellate
      court still must conduct a harmless error analysis to determine
      whether there is a reasonable possibility that the challenged error
      affected the final judgment. This harmless error analysis is necessary
      to prevent reversals based on the admission of inconsequential or
      immaterial evidence, which can sometimes occur during a bench trial
      for the purposes of expediency and conservation of judicial resources.

Id. at 737-38.

      Here, although the trial court did not include the erroneously admitted

evidence in its oral findings, it did not make an express statement on the record

that the evidence did not contribute to its final determination. Thus, we cannot

presume that the evidence was disregarded. Nonetheless, pursuant to Petion, we

are directed to perform a harmless error analysis.

      “[T]he mere identification of an area as a high crime area does not per se

constitute prejudicial error.” Dorsey v. State, 639 So. 2d 158, 159 (Fla. 1st DCA

1994), citing Gillion, 573 So. 2d 810.        “Whether such testimony is unduly

prejudicial depends upon the facts of each case.” Id., citing Gillion, 573 So. 2d at

812. “Where the proof of guilt is so convincing that a person would clearly have

been found guilty even without collateral evidence introduced in violation of the




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evidence code, the violation of the code may be considered harmless.” Petion, 48

So. 3d at 735.

      As aptly characterized by the trial judge, the case below hinged on a

“credibility determination.” Officer Simington never saw J.R. in possession of the

narcotics. Thus, the case rested upon whether the trial court believed Officer

Amaris observed J.R. throw the same plastic wrapper that was recovered

containing narcotics or whether the trial court believed J.R.’s diametrically

opposed version of events. The reference to the inadmissible testimony was not

isolated, as the record contains two testimonial references to variations on the

“high crime” nature of J.R.’s neighborhood.         This error in admission was

compounded by the prosecutor’s prejudicial inference in closing argument.

       Under these circumstances, and applying the holding of Petion, we are

unable to conclude that the introduction of the inadmissible collateral evidence did

not contribute to the finding of delinquency, thus, the error may not be considered

harmless. 48 So. 3d 726.

      For the foregoing reasons, we reverse and remand for a new trial.

      Reversed and remanded.




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