        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                         GLENROY ANDERSON,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D15-4300

                           [November 1, 2017]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Lisa Porter, Judge; L.T. Case No. 13-8650 CF10A.

  Richard L. Rosenbaum of the Law Offices of Richard Rosenbaum, Fort
Lauderdale, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey,
Assistant Attorney General, West Palm Beach, for appellee.

CIKLIN, J.

   An encounter between the defendant and another man on a public
roadway resulted in the defendant’s conviction of aggravated assault with
a firearm. Because the admission of certain hearsay evidence was not
harmless, we reverse and remand for a new trial.

   The evidence at trial revealed the following. During the victim’s drive
home from work, the defendant pulled up close behind his vehicle, even
though the victim was traveling well over the speed limit. The victim, a
two-time convicted felon, braked abruptly, causing the defendant to veer
his Lexus into another lane. Instead of being put off, the defendant pulled
his Lexus alongside the victim’s vehicle. The windows of the victim’s
vehicle were down, as was the front driver’s side window of the defendant’s
Lexus.

   The defendant rested a gun on the windowsill of his Lexus, pointed the
gun in the victim’s direction, and asked him if he had a “f’ing problem.”
The victim responded that there was no problem, and the defendant drove
ahead of him, seemingly ending the encounter. As soon as traffic came to
a stop, however, the defendant opened the door of his Lexus, placed one
foot on the ground, and looked back at the victim. The victim put his car
in reverse and threw up his hands to indicate that he was not interested
in a confrontation. The defendant sped away. The victim followed at a
distance and was able to obtain the license plate number on the
defendant’s Lexus, which he immediately reported to a 911 operator.

   During the investigation, law enforcement officers spoke to both the
victim and the defendant. The victim described the gun as “nickel plated
or chrome, something along those lines,” and as a silver automatic firearm.
He also stated that holes on the front of the gun were “silver because it’s
stainless steel.”

   When the defendant was arrested about three weeks after the incident,
a gun with a silver upper portion and black lower portion was recovered
from his Lexus.

   The case proceeded to trial. The victim first testified that the gun was
a nine-millimeter “nickel plated chrome plated gun,” and that on the
portion of the gun facing him, he observed the hole “where the bullet comes
out,” and a smaller hole below it. Next, an investigating officer testified
over a hearsay objection that “[t]he victim [had previously] said that the
gun had a silver or nickel plated top, or what we call upper, and the lower
was black and then what struck me about what he said was he said it had
two holes, one larger on top and one smaller hole on the bottom.”

   The officer testified that the gun found in the defendant’s Lexus “was a
semi-auto and it had a distinct feature that I found which was it had the
stainless steel upper with black lower.” Over still another hearsay
objection, the officer also testified that victim’s description of the gun was
“distinctive” as he described the gun as “a stainless steel upper with black
lower,” and there was one hole over a smaller hole.

   The defendant denied pointing a gun at the victim, although he
acknowledged that he owned a gun and was licensed to carry a concealed
weapon. The concealed firearm license was entered into evidence. The
defendant and his girlfriend testified that the gun was packed away the
day of the incident, as the two were in the midst of moving and did not
want the gun to be accessible to the girlfriend’s toddler. The defendant’s
employer testified that the defendant left work the day of the incident
around the timeframe of the incident.

   “The standard of review of a trial court’s decision on the admissibility
of evidence is generally an abuse of discretion standard. However, the

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question of whether evidence falls within the statutory definition of
hearsay is a matter of law, subject to de novo review.” Burkey v. State, 922
So. 2d 1033, 1035 (Fla. 4th DCA 2006).

    The state does not dispute that the testimony the defense objected to is
hearsay. See § 90.801(1)(c), Fla. Stat. (2015) (‘“Hearsay’ is 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.”).
There is no question that the testimony was offered to prove the truth of
the matter asserted—the physical characteristics of the gun that the
defendant was alleged to have brandished during the altercation. The
state did not argue at trial nor does it argue on appeal that the testimony
is subject to an exception to the hearsay rule. Thus, the only issue for this
court is whether the error was harmless.

   “The harmless error test . . . places the burden on the state, as the
beneficiary of the error, to prove beyond a reasonable doubt that the error
complained of did not contribute to the verdict or, alternatively stated, that
there is no reasonable possibility that the error contributed to the
conviction.” State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). “The
test for harmless error focuses on the effect of the error on the trier of fact.”
Johnson v. State, 53 So. 3d 1003, 1007 (Fla. 2010). Further—we
importantly note—the test is not:

      a sufficiency-of-the-evidence, a correct result, a not clearly
      wrong, a substantial evidence, a more probable than not, a
      clear and convincing, or even an overwhelming evidence test.
      Harmless error is not a device for the appellate court to
      substitute itself for the trier-of-fact by simply weighing the
      evidence.

Id. (quoting DiGuilio, 491 So. 2d at 1139).

   The state argues that the erroneously admitted testimony was “largely
cumulative” to other unobjected to testimony and evidence offered at trial
and thus was harmless. See English v. State, 43 So. 3d 871, 872 (Fla. 5th
DCA 2010) (recognizing that the contents of a BOLO were inadmissible as
they contained incriminating hearsay statements but that the error was
harmless where the victim testified to the same information at trial).

   Here, the evidence that was admitted without objection by either party
characterized the victim’s description of the gun as “nickel-plated chrome-
plated,” “silver,” “silver top,” and with two holes. Conversely, the state
presented the testimony of a police officer who stated that the gun found

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in the defendant’s car had a stainless steel upper and a black lower and
over the hearsay objection at issue, that the victim had earlier described
the gun as having a silver or nickel-plated top with a black lower section.

   Ultimately, this case came down to credibility and to whether the jury
believed the defendant’s claim that he did not have his gun on the day of
the incident. The officer’s hearsay testimony was the only evidence
corroborating that the victim’s previous descriptions of the gun matched
one of the distinctive color features of the defendant’s gun: its silver upper
portion and black lower portion. 1

   Considering all of the evidence - including testimony from a law
enforcement officer, whose veracity is generally regarded as highly
credible, and the fact that the jury made a specific request to see the gun
during its deliberations - it cannot be said that there is no reasonable
possibility the hearsay testimony affected the verdict.

    Reversed and remanded for new trial.

TAYLOR, J., concurs.
MAY, J., dissents with opinion.

MAY, J., dissenting.

   I respectfully dissent. As the majority emphasizes, the only issue for
our review is whether the admission of the detective’s hearsay testimony
was harmless. The State argues, and I agree, that the testimony was
cumulative of the victim’s statement and trial testimony describing the
gun. In short, it was harmless.

   The hearsay consisted of two answers to questions asked of the
detective at trial. Over defense hearsay objections, the detective testified:

      The victim said that the gun had a silver or nickel plated top,
      or what we call upper, and the lower was black and then what
      struck me about what he said was he said it had two holes,
      one larger hole on top and one smaller hole on the bottom.
      ....

      The distinctive was that it was a stainless steel upper with

1“[W]here the key witness’s credibility has been put in issue, it cannot be doubted
that corroborating testimony may play a substantial role in the jury’s weighing of
the evidence.” Conley v. State, 620 So. 2d 180, 184 (Fla. 1993).

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      black lower and the hole on top which was the barrel of the
      gun was bigger and then the description was that there was a
      hole on the bottom, but I knew that just couldn’t be but I
      figured the []hole on the bottom was the spring guide.

    But, the detective also testified that he drew a sketch of the gun based
on the victim’s description. The sketch showed the two holes on the front
of the gun with the larger hole on top and the smaller hole below the barrel.
The sketch was admitted into evidence without objection.

   The defendant was arrested three weeks after the incident, and
consented to a search of his car. A deputy found a gun in the glove
compartment. It was a “semi-auto” with a stainless steel upper with black
lower. The gun was admitted into evidence without objection.

   In a recorded police interview, the defendant admitted he owned the
gun found in his car, which matched the description of the gun given by
the victim. But, the defendant claimed the gun was not in his car on the
date of the incident. The detective informed the defendant that the victim
told him about the “distinctive” feature of the large hole over the smaller
hole, and the “silver top.”

   The victim testified at trial that he “saw the opening to where the bullet
comes out and right below it was the little opening.” He reiterated that the
gun was “nickel plated or chrome, something along those lines.” The
victim clarified that the two holes were on the front of the gun, and that
the larger hole on top was the one where he believed a projectile would be
emitted.

   During closing argument, the prosecutor argued that the victim
described the gun as “being a nickel back, a steel plate being on top of it,”
as having “two holes, one the larger hole, and then a second smaller hole.”
The prosecutor referenced the sketch.

   “The harmless error test [requires] the [S]tate . . . to prove . . . there is
no reasonable possibility that the error contributed to the conviction.”
State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986).

      The test is not a sufficiency-of-the-evidence, a correct result,
      a not clearly wrong, a substantial evidence, a more probable
      than not, a clear and convincing, or even an overwhelming
      evidence test. Harmless error is not a device for the appellate
      court to substitute itself for the trier-of-fact by simply
      weighing the evidence.

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Id. at 1139.

   Here, most of the detective’s testimony was cumulative to the victim’s
own trial testimony. The only difference between the two was the two-tone
coloring of the gun. And, the victim identified the defendant as the one
who threatened him with the gun.

   The Fifth District has held the admission of hearsay is harmless where
the victim testifies to the same information at trial. See English v. State,
43 So. 3d 871, 872-73 (Fla. 5th DCA 2010). It did so even though the
hearsay contained a more detailed description than the victim’s in-court
description. Id.

   In English, the victim reported a robbery of his cell phone. Law
enforcement found the defendant nearby in clothes matching the victim’s
description. When law enforcement called the victim’s cell phone number,
the phone in the defendant’s pants pocket rang. Id. at 872. The defendant
objected to testimony about the suspect’s description in a BOLO. While
the Fifth District found the admission of the hearsay was error, the error
was harmless because the testimony was cumulative of the victim’s trial
testimony.

    We reached the same conclusion in Presley v. State, 839 So. 2d 813,
813-14 (Fla. 4th DCA 2003). There, we held that an officer’s testimony of
a BOLO description was harmless where the witness who called in the
description testified at trial about her description of the defendant. Id. at
814; see also Casica v. State, 24 So. 3d 1236, 1241 (Fla. 4th DCA 2009)
(holding that an erroneously admitted statement the victim made to a
nurse was harmless in light of the victim’s trial testimony); Miles v. State,
839 So. 2d 814, 819 (Fla. 4th DCA 2003) (finding an officer’s hearsay
testimony of the assailant’s description was harmless given the victim’s
trial testimony); Livingston v. State, 219 So. 3d 911, 916 (Fla. 2d DCA
2017) (holding that an officer’s erroneously admitted BOLO testimony was
harmless considering the victim’s trial testimony).

    Here, a gun matching the victim’s description was found in the
defendant’s car and admitted without objection. A sketch drawn by the
detective, exhibiting the distinctive two holes at the front of the gun
described by the victim, was admitted without objection. The victim
testified about the incident and described the gun as chrome or silver with
two holes in the front, the larger being at the top. While the admission of
the hearsay was error, the detective’s hearsay testimony was cumulative
of other evidence describing the gun, including the victim’s trial testimony.

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I would affirm.

                      *        *        *

Not final until disposition of timely filed motion for rehearing.




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