          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                         No. 1D18-2883
                 _____________________________

DANIEL THOMAS FOUNTAIN,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Escambia County.
Thomas V. Dannheisser, Judge.

                          July 9, 2019


JAY, J.

     Appellant has appealed his judgment and sentences for
shooting at or into an occupied vehicle and aggravated assault by
threat with a deadly weapon. See §§ 790.19 & 784.021(1)(a), Fla.
Stat. (2016). We affirm both points raised by Appellant. Only one
of those points merits discussion.

                                I.

     In concluding her rebuttal closing argument, the prosecutor
declared:

         Now, you have seen the evidence, you have heard the
    testimony, and you are going to have all the evidence and
    testimony to take back with you. The only thing left to do
    in this instance is to apply the law the judge gives you to
    the facts and the testimony and return a verdict that
    truth dictates and justice demands, and that is that this
    defendant is guilty as charged on both counts.

Immediately, defense counsel asked the trial court if they could
approach the bench, whereupon counsel moved for a mistrial.
Counsel argued that the emphasized portion of the prosecutor’s
statement improperly apprised the jury of the State’s opinion as to
guilt, to which the jury would accord an inordinate and prejudicial
amount of weight in deliberating the question of Appellant’s guilt
or innocence. The trial court denied the motion, explaining that,
when viewed in context, the statement was relevant to what the
State’s evidence showed, and, to the extent “the word ‘evidence’
wasn’t mentioned in that sentence,” the court announced the
statement was not so pervasive or repetitive “as to be a basis or
even close to a mistrial.” We agree.

                                 II.

     We review the denial of a motion for mistrial for an abuse of
discretion. Jenkins v. State, 96 So. 3d 1110, 1113 (Fla. 1st DCA
2012). In that context, the bar has been set high to obtain a
mistrial based on improper prosecutorial comments: “A
prosecutor’s comments, to justify a mistrial, ‘must either deprive
the defendant of a fair and impartial trial, materially contribute to
the conviction, be so harmful or fundamentally tainted as to
require a new trial, or be so inflammatory that they might have
influenced the jury to reach a more severe verdict than it would
have otherwise.’” Id. (quoting Spencer v. State, 645 So. 2d 377, 383
(Fla. 1994)).

     We acknowledge that “[a] criminal trial is a neutral arena
wherein both sides place evidence for the jury’s consideration; the
role of counsel in closing argument is to assist the jury in analyzing
that evidence, not to obscure the jury’s view with personal opinion,
emotion, and nonrecord evidence[.]” Ruiz v. State, 743 So. 2d 1, 4
(Fla. 1999) (citing United State v. Garza, 608 F.2d 659, 662-63 (5th
Cir. 1979)). Consequently, a prosecutor cannot, in closing
arguments, imply that the State would not be prosecuting anyone
who was not guilty or call the defendant a liar. Id. at 5 (citing Hall
v. United States, 419 F.2d 582 (5th Cir. 1969)). Furthermore:
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    [A] bedrock principle of our criminal justice system is that
    every effort must be made in any trial . . . to ensure that
    the jurors base their decision, not on sympathy for the
    victim or prejudice against the defendant, but solely on
    the facts elicited during trial and the law instructed by
    the trial court. The State’s burden is to prove the
    elements of the crime beyond a reasonable doubt. When
    the State instead uses closing argument to appeal to the
    jury’s sense of outrage at what happened to the victim
    and asks the jurors to return a verdict that brings
    “justice” to the victim, the State perverts the purpose of
    closing argument and engages in the very type of
    argument that has been repeatedly condemned as
    antithetical to the foundation of our criminal justice
    system that guarantees a fair trial to every accused.

Cardona v. State, 185 So. 3d 514, 519-20 (Fla. 2016). Thus, a
prosecutor is prohibited from making repeated references asking
for “justice” for the victim, “regardless of whether the case involves
[] heart-wrenching circumstances.” Id. at 520. The supreme court
in Cardona stressed that such remarks are “the most egregious
category of clearly improper closing argument” because they
“improperly inflame[] the minds and passions of the jurors . . . .”
Id. at 519.

     But we are not persuaded by Appellant’s claim that, in his
case, the prosecutor’s comment—“truth dictates and justice
demands”—impermissibly invoked her status as the government’s
attorney in order to tip the scales in favor of conviction, or that it
so inflamed the passions of the jury as to impel a guilty verdict.
Instead, we agree with the trial court that, taken in context, the
prosecutor’s statement was simply a reference to the strength of
the State’s evidence. See, e.g., Morris v. Parker, No. 11–2331–STA–
cgc, 2014 WL 2956422, at *25 (W.D. Tenn. signed June 30, 2014)
(finding nothing in the prosecutor’s statement to the jury—in
which he asserted that “a guilty verdict ‘is the verdict that truth
dictates and that justice demands and any other verdict would be
a violation of the oath that [the jurors] took to return a true
verdict’”—expressed the prosecutor’s personal belief or opinion or
was designed to inflame the passions of the jury, but, instead, it
“simply reminded the jury of its oath and asserted the State’s

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position that it had met its burden, thereby necessitating, in the
State’s view, a guilty verdict”); State v. Fiore, No. A-0960-09T2, A-
1078-09T2, 2013 WL 4746466, at *12 (N.J. Super. Ct. App. Div.
Sept. 5, 2013) (holding the prosecutor’s final comment “that he was
‘confident’ that ‘after you hear all the evidence . . . you will be left
with one choice, one clear choice, that truth dictates and justice
demands,’ which would be a guilty verdict . . . was nothing more
than a statement of belief in the strength of the State’s case”); cf.
State v. Dotson, No. W2011–00815–CCA–R3–DD, 2013 WL
4728679, at *73 (Tenn. Ct. App. June 25, 2013) (emphasis in
original) (concluding that where the trial court repeatedly
instructed the jury that the defendant was innocent until proven
guilty, its instructing the jury to “‘[t]ake the case, consider all of
the facts and circumstances fairly and impartially and return to
the court with the verdict that TRUTH dictates and JUSTICE
demands’” would not have caused it to render a guilty verdict
regardless of whether the State had proved its case beyond a
reasonable doubt).

     Furthermore, the prosecutor’s statement was an isolated one.
See Truehill v. State, 211 So. 3d 930, 950-51 (Fla. 2017) (holding
that although the trial court erred in overruling defense counsel’s
objection to a clearly improper “‘justice for the victim’” statement
made by the prosecutor, the “statement was an isolated comment
and thus, it alone would not mandate reversal”). As such, we hold
it did not deprive Appellant “of a fair and impartial trial,” did not
“materially contribute to [his] conviction,” was not “so harmful or
fundamentally tainted as to require a new trial,” and was not “so
inflammatory that [it] might have influenced the jury to reach a
more severe verdict than it would have otherwise.” Jenkins, 96 So.
3d at 1113 (some quotation marks omitted).

                                  III.

     Accordingly, we hold Appellant has not demonstrated that the
trial court abused its discretion in denying his motion for mistrial.

    AFFIRMED.

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



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                _____________________________

    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 Megan Long, Assistant Public
Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Heather Flanagan Ross,
Assistant Attorney General, Tallahassee, for Appellee.




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