         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D17-1070
                 _____________________________

STEVEN RUSSELL STATHAM,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Columbia County.
Leandra G. Johnson, Judge.

                       February 28, 2018


PER CURIAM.

     Steven Statham was convicted of burglary of a dwelling. The
court found he was a habitual felony offender and sentenced him
to twenty years’ imprisonment. Statham raises a single issue on
appeal: he contends the court erred by overruling his objection to
a portion of the State’s closing argument.

     The only sign of forced entry into the burglarized home was a
broken window. There was blood on the broken window, and there
was more blood on the home’s front door. DNA tests matched the
blood to Statham. At trial, a DNA expert testified that in a group
of 20 quadrillion people, she would expect to find only one person
with the DNA profile that matched Statham’s blood and the blood
at the scene. On cross-examination, the expert acknowledged that
the 20-quadrillion statistic referred to unrelated individuals and
that she could not rule out the possibility that the DNA belonged
to one of Statham’s male relatives.

     In closing argument, the prosecutor argued that the DNA
evidence was conclusive. Addressing the cross-examination, the
prosecutor noted that there was no evidence that Statham had an
identical twin—or any brother—or that his father was living.
Statham objected, arguing that this was improper burden shifting.
The court overruled the objection, and Statham now pursues the
same argument here. We review for an abuse of discretion. Braddy
v. State, 111 So. 3d 810, 837 (Fla. 2012).

     It is the State’s burden to prove all elements of a crime, Cribbs
v. State, 111 So. 3d 298, 300 (Fla. 1st DCA 2013), and “it is error
for a prosecutor to make statements that shift the burden of proof
and invite the jury to convict the defendant for some reason other
than that the State has proved its case beyond a reasonable doubt,”
Gore v. State, 719 So. 2d 1197, 1200 (Fla. 1998). The issue here is
whether the State’s closing argument presented this type of error.

     Statham’s argument is similar to the argument rejected in
Guzman v. State, 214 So. 3d 625, 634 (Fla. 2017). In Guzman, the
defense counsel suggested during opening statements that DNA
analysis is performed by “imperfect human beings.” Later, when
cross-examining the State’s DNA experts, counsel asked whether
mistakes or sample contamination could have affected their
conclusions. Id. The State commented on the weakness of this
defense during closing arguments, arguing that no evidence
supported it. Id. In the supreme court, the defendant maintained—
as Statham does here—that this argument improperly shifted the
burden. But the supreme court found these comments “did not
invite the jury to convict Guzman for some reason other than that
the State proved its case beyond a reasonable doubt.” Id. at 636.
Like in Guzman, the State’s comments responded to defense
arguments that lacked evidentiary support. No witness testified
that Statham had male relatives who could have left matching
DNA at the crime scene. Rather than suggest Statham needed to
put on exculpatory evidence, the comments explained why there
was no reason to doubt the evidence that had already been
presented. See Robards v. State, 112 So. 3d 1256, 1270 (Fla. 2013)

                                  2
(rejecting burden-shifting argument, concluding “that the
prosecutor was responding to argument proposed by the defense”
and explaining that “[c]lose examination of the entire closing
argument demonstrates that these comments addressed theories
that were raised during the defense cross-examination of the
State’s witnesses and during closing argument but were never
contradicted with evidence”).

    AFFIRMED.

WOLF, ROWE, and WINSOR, 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, and David Alan Henson, Assistant
Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez,
Assistant Attorney General, Tallahassee, for Appellee.




                              3
