       Third District Court of Appeal
                               State of Florida

                         Opinion filed November 7, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D17-0361
                        Lower Tribunal No. 09-15874B
                            ________________


                             Stevenson Charles,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Stephen T.
Millan, Judge.

     Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public
Defender, for appellant.

     Pamela Jo Bondi, Attorney General, and Natalia Costea, Assistant Attorney
General, for appellee.


Before ROTHENBERG, C.J., and SALTER, and LINDSEY, JJ.

      LINDSEY, J.
      A jury found Stevenson Charles guilty of first-degree murder (Count I),

armed robbery (Count II), and grand theft auto (Count III) on January 26, 2017.

The trial court sentenced Charles to consecutive life sentences for Counts I and II,

and to a concurrent five-year sentence for Count III. On appeal, Charles contends

that the trial court abused its discretion by denying his motion for a mistrial based

on two improper comments made by the prosecutor. We disagree and for the

reasons set forth below, affirm.

      On November 28, 2008, Martin Sprung was shot and killed inside the

pawnshop he owned in North Miami. On the day of the incident, Charles and

Passion Carr went to Sprung’s pawnshop together and were inside at the time of

the shooting. Both Charles and Carr testified at trial, with each blaming the other

for shooting Sprung.1 On appeal, Charles asserts that the following comments

made by the prosecutor were improper:

             [PROSECUTOR]: Okay. So you looked for girls, and
             you exploit them; right?

             [CHARLES]: You could say that.

             [PROSECUTOR]: You could say that. In fact, you
             indicated on direct, your very first words, is I’m a
             hustler; right?

             [CHARLES]: Yes, ma’am.

1Carr was also arrested and charged with first-degree murder, armed robbery, and
grand theft of a motor vehicle in connection with Sprung’s killing. Carr ultimately
pleaded guilty to accessory after the fact in exchange for testifying against Charles.

                                          2
             [PROSECUTOR]: And you’re trying to hustle this jury
             with that testimony that you just gave to your defense
             counsel. You’re trying to hustle them, that you hustled
             those girls, and like you tried to hustle Martin Sprung;
             isn’t that right?

             [CHARLES]: Wrong.

             [PROSECUTOR]: Okay. So let’s talk about what you
             told him on direct because I’m not going to let you hustle
             this jury.

             [DEFENSE COUNSEL]: Objection –

             [PROSECUTOR]: All right.

             [DEFENSE COUNSEL]: Objection, Judge. She can ask
             questions, not make comments.

             [PROSECUTOR]: I’ll ask questions. I’ll keep going.

             THE COURT: Sustained.

      Charles claims that the prosecutor’s “hustle” comments were an improper

attempt by the State to attack his integrity in front of the jury. Shortly thereafter,

the prosecutor questioned Charles about his connection to the victim’s stolen

vehicle. After Charles repeatedly denied any knowledge about the stolen car, the

prosecutor asked, “[y]ou expect this jury to believe that?” Defense counsel’s

contemporaneous objection was sustained by the trial court. A sidebar conference

was subsequently held and defense counsel moved for a mistrial, explaining that

multiple objections were made to the prosecutor’s “speaking arguments.” Defense



                                          3
counsel further explained that the cumulative nature of the prosecutor’s speaking

arguments were so improper that a mistrial was warranted. The trial court denied

the motion for a mistrial, reasoning that it had sustained defense counsel’s

objections and that the prosecutor moved on to different questions.

         On appeal, Charles asserts that a new trial is warranted based on the

prosecutor’s improper comments and questions that were designed to attack his

integrity.    The State argues that the objected-to remarks were not properly

preserved for appellate review because Charles raises a different legal ground for

the objection on appeal than the “speaking arguments” basis provided at trial. We

agree.

         It has long been settled law in Florida that “[t]o be preserved for appeal, ‘the

specific legal ground upon which a claim is based must be raised at trial and a

claim different than that will not be heard on appeal.’” Chamberlain v. State, 881

So. 2d 1087, 1100 (Fla. 2004) (quoting Spann v. State, 857 So. 2d 845, 852 (Fla.

2003)). Accordingly, a party must satisfy the following three components to

properly preserve an issue for appellate review: “(1) a timely, contemporaneous

objection; (2) a legal ground for the objection and; (3) ‘[i]n order for an argument

to be cognizable on appeal, it must be the specific contention asserted as legal

ground for the objection, exception, or motion below.’” Fleitas v. State, 3 So. 3d

351, 355 (Fla. 3d DCA 2008) (quoting Harrell v. State, 894 So.2d 935, 940 (Fla.



                                             4
2005)). “The purpose of this rule is to place the trial court on notice that an error

may have been committed and therefore provide the trial court with an opportunity

to rectify the error prior to any appellate review.” Id. at 355.2

      At trial, defense counsel stated that the first objection was based on the

prosecutor making comments instead of asking questions. Defense counsel made

no assertion that the legal ground for objecting to the prosecutor’s “hustle”

comments was because it improperly attacked Charles’s integrity.              During a

subsequent exchange about the victim’s stolen vehicle, defense counsel objected

after the prosecutor asked Charles whether “[y]ou expect this jury to believe that?”

During a sidebar discussion, defense counsel again stated that the legal ground for

the objection was the prosecutor’s “speaking arguments” and that the cumulative

nature of the errors warranted a mistrial.

      On appeal, however, Charles raises a different legal basis, now arguing that

a new trial is required because the prosecutor’s comments were an improper attack

on his integrity. Because Charles asserts a different legal basis from that presented

below, the objected-to remarks were not properly preserved for appellate review.


2  Fundamental error is the only recognized exception to the preservation
requirements. See § 924.051(3), Fla. Stat. (2016); Cherisma v. State, 86 So. 3d
1195, 1197 (Fla. 3d DCA 2012). However, to be fundamental, the error must be
one 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.”
Caraballo v. State, 39 So. 3d 1234, 1249 (Fla. 2010) (internal quotations and
citations omitted).

                                             5
See Murray v. State, 3 So. 3d 1108, 1117 (Fla. 2009) (“For an issue to be preserved

for appeal, it must be presented to the lower court, and the specific legal argument

or ground to be argued on appeal must be part of that presentation.” (quoting

Doorbal v. State, 983 So. 2d 464, 492 (Fla. 2008))). “While no magic words are

needed to make a proper objection, the articulated concern must be sufficiently

specific to inform the court of the perceived error.” Id. at 1117 (internal quotations

and citations omitted). Here, it was not.

      Further, even if the objected-to comments had been properly preserved, we

find Charles’ argument without merit. “A ruling on a motion for mistrial is within

the sound discretion of the trial court, and we review the denial of that motion

under a standard of abuse of discretion.” Wellons v. State, 87 So. 3d 1223, 1225

(Fla. 3d DCA 2012) (citing Salazar v. State, 991 So. 2d 364, 372 (Fla. 2008)).

Here, the prosecutor made two improper comments. However, the trial court

properly sustained defense counsel’s objections, the comments were isolated and

not pervasive, and no curative instruction was requested. See Ledea v. State, 121

So. 3d 88, 89 (Fla. 3d DCA 2013) (concluding that the denial of the defendant’s

motion for mistrial was not an abuse of discretion where the objections were

properly sustained, the defendant declined the trial court’s invitation to give a

curative instruction, the objected-to question was isolated, and the jury was

properly instructed at the close of the evidence).



                                            6
      Moreover, the evidence of guilt was overwhelming: (i) Carr testified that she

was with Charles when he shot and killed Sprung; (ii) Charles’ fingerprint was

found on a piece of paper underneath the victim’s body; (iii) Charles was in

possession of the victim’s firearm when arrested by police on December 8, 2008;

(iv) the State proffered testimony connecting Charles to the victim’s stolen vehicle;

and (v) the medical examiner testified that the victim suffered a gunshot entry

wound consistent with a trajectory from Charles’ height and inconsistent with

Carr’s height. Accordingly, there is no reasonable probability that the two isolated

comments made by the prosecutor affected the verdict, and therefore any “such

error is harmless and does not require reversal.” Braddy v. State, 111 So. 3d 810,

837 (Fla. 2012) (citing Hitchcock v. State, 755 So. 2d 638, 643 (Fla. 2000)). See

also Mora v. State, 211 So. 3d 308, 310 (Fla. 3d DCA 2017) (holding that reversal

was not required because the prosecutor’s improper “comments were isolated and

not pervasive” and the “evidence of guilt was overwhelming”) (internal quotation

omitted).

      Based on the foregoing, we conclude that the trial court did not abuse its

discretion in denying Charles’ motion for a mistrial.

      Affirmed.




                                         7
