       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                      DESMOND EUGENE OWENS,
                            Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D17-3504

                           [December 19, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Glenn D. Kelley, Judge; L.T. Case No. 16CF009270AMB.

  Carey Haughwout, Public Defender, and Erika Follmer, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Alexandra A.
Folley, Assistant Attorney General, West Palm Beach, for appellee.

HILAL, JENNIFER, Associate Judge.

   The defendant was found guilty after a jury trial of fleeing or attempting
to elude a law enforcement officer with lights and sirens activated while
driving recklessly or at a high speed pursuant to section 316.1935(3)(a),
Florida Statutes. The defendant appeals his judgment and sentence on
the basis that the court erred in: (1) denying his motion for judgment of
acquittal; (2) overruling his objection regarding the prosecutor’s
misstatement of law in closing argument; and (3) overruling his objections
to the troopers’ testimony characterizing the defendant’s driving
maneuvers as “fleeing.” We affirm as to issue one and reverse and remand
on issue two. We decline comment on issue three.

   Background

   At trial, two Florida Highway Patrol troopers testified that they were
conducting a traffic detail on the Florida Turnpike. They were both in
uniform and stood approximately ten to fifteen feet behind their marked
vehicles.
   Trooper one noticed a black Chevy sedan, later known to be driven by
the defendant, make a very erratic and abrupt lane change from the center
to the outside lane. Trooper two indicated that the Chevy was trying to
pass slower moving traffic, but it did so in an unsafe manner without a
turn signal. They both estimated the Chevy’s speed to be approximately
90 miles per hour and clocked him driving 89 miles per hour using their
laser guns. The posted speed limit was 65 miles per hour.

   As the Chevy approached where the troopers were standing, both
troopers stated they made eye contact with the driver. Trooper one got
into his vehicle, activated his lights and siren, and attempted to catch up
to the Chevy to issue a speeding ticket. Trooper one accelerated to 120
miles per hour in an effort to reach the speeding vehicle to no avail. He
observed the Chevy go from the right-hand lane to the center lane, and
from the center lane back to the right-hand lane, and then to the exit ramp.

    Over defense objection, Trooper one testified that this driving pattern
was consistent with “[f]leeing” and “[t]rying to get away from [him].” He
further testified over the defendant’s objection, “he attempted to flee from
me” when the defendant sideswiped two vehicles and hit a concrete barrier
at the exit ramp.

   Trooper two also observed the driver’s maneuvers and “evasive
action[s]” and testified over defense objection that unlike this motorist,
drivers “usually step on the brakes to slow down.” The prosecutor
proceeded to ask Trooper two if the defendant, in his opinion, was fleeing
and eluding, to which she replied “yes.” However the court sustained this
objection.

   After the crash, the defendant got out of his vehicle, looked back at
Trooper one, who was now on foot, and proceeded to jump over the
guardrail of the exit ramp. Trooper one was able to detain the defendant
about a quarter of a mile away from the crash.

   During closing argument, the prosecutor stated:

      Most everyone looked back at me with these kind of
      dumbfounded faces saying what do you mean how did we
      know? The lights go on, the sirens go on, they’re right behind
      you. It’s very obvious when a law enforcement officer is trying
      to pull you over. Everybody knows.




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      You have a feeling in your stomach, you know when someone
      has seen you doing something wrong you know right away
      you’ve been caught. There’s no question about it.

      How did this come about? They said they were doing speed
      detail. Let’s be frank about what it is, it’s a speed trap and
      you’ve all been there. They’re sitting on the side of the
      highway, they’re just looking all day for people that are
      speeding. And it sucks. Everyone’s got caught in that.

      The problem is that they see you from far, far away. They
      know you’re coming from far, far away and that you’re
      speeding. That’s why they talked about pointing the laser
      gun, they get the readout. It magnifies the image and they
      know right away you’ve been speeding, their attention is
      caught on you.

      So what does a reasonable person do in that situation?
      Everybody sees the officer on the side of the road. Crap, I’m
      speeding. Slams on the brakes right away. Everybody slows
      down because [y]ou know the law enforcement officer has seen
      [y]ou. You don’t continue to speed, continue to erratically
      make lane changes, trying to get away from the officer. That’s
      not what a reasonable person does and that’s what the
      standard is, what would a reasonable person in that
      circumstance do?

Defense counsel objected that this was a “misstatement of the law.” The
objection was overruled. The prosecutor continued:

      Of course he’s going to try to exit off. This isn’t someone who’s
      past their exit, oh, my gosh, I’m quickly go past my exit, what
      am I going to do? I’m going to first go over to the center lane
      and then I’m going to go all the way back over to the exit ramp.
      That’s not what you do. That’s not what the reasonable
      person does.

The prosecutor then addressed the four elements of the crime and told the
jury that the only element at issue was whether the defendant knew he
had been directed to stop.




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      Analysis

   We review trial court rulings regarding the propriety of comments made
during closing argument for an abuse of discretion. Cardona v. State, 185
So. 3d 514, 520 (Fla. 2016).

        Where the comments were improper and the defense objected,
        but the trial court erroneously overruled defense counsel’s
        objection, we apply the harmless error standard of review.
        This standard involves placing 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.

Id.

   The defendant argues the State misstated the law in closing argument.
Specifically, the prosecutor told the jury that because the defendant did
not drive in a manner a reasonable person would drive when seeing
troopers conducting a speed detail, he was driving recklessly by fleeing
them. Further, the defendant contends that relating him to a reasonable
person who sees a speed detail or who is trying to exit the highway
eliminates the State’s burden to prove that he knew he was being directed
to stop, and this was a crucial element that the State needed to prove.

    The State responds that the “reasonable person” reference did not refer
to the standard used to determine whether the defendant drove recklessly.
Rather, the reference was “a tool for the jury to infer” that the defendant
knew the trooper was attempting to stop him. Moreover, the State argues
that the prosecutor explained in closing how the evidence proved each
element of the crime, which corrected any potential error.

   “It is error for a prosecutor to misstate the law during closing
arguments.” Evans v. State, 177 So. 3d 1219, 1235 (Fla. 2015) (finding
error when the prosecutor misstated the law in closing argument); see also
Charriez v. State, 96 So. 3d 1127, 1127 (Fla. 5th DCA 2012) (misstating
the standard of reasonable doubt with no objection was one of three
improper comments which cumulatively amounted to fundamental error).




                                       4
    The prosecutor here misstated the law. 1 The reasonable person
standard is the incorrect standard in determining reckless driving,
knowledge and fleeing. Although the State may utilize different tools to
infer knowledge, the prosecutor expressly told the jury that the applicable
standard was a reasonable person standard, which is a misstatement of
law. The trial court erred in overruling defense counsel’s objection. See
Warmington v. State, 149 So. 3d 648, 655 (Fla. 2014) (finding error when
counsel misstated the law and there was a timely and proper objection
that was overruled). We must next determine if the error was harmless.
Id.

   The improper statement here was not harmless because the State
cannot show beyond a reasonable doubt that the prosecutor’s
misstatement of law did not affect the verdict. See State v. DiGuilio, 491
So. 2d 1129, 1138 (1986). As the prosecution recognized, “the only thing
at issue is [element] number two,” and the misstatement of law went
directly to the only element at issue—whether defendant knew that he was
being directed to stop. See Young v. State, 137 So. 3d 532, 535 (Fla. 4th
DCA 2014) (unable to find harmless error when a misstatement of law went
directly towards the “hotly contested” issue “critical to the state’s case”).
Thus, it cannot be said that the State’s comment had no impact on the
jury.

    We reverse and remand the case to the trial court for a new trial.

MAY, J. concurs.

FORST, J. dissents with opinion.

FORST, J., dissenting.

  Because I do not believe that the prosecutor’s comment was improper
when viewed in context, I respectfully dissent as to the issue addressed by

1 To prove the crime of Fleeing to Elude a Law Enforcement Officer, the State
must prove the following four elements beyond a reasonable doubt: 1) the
defendant was operating a vehicle upon a street or highway in Florida; 2) the
defendant knowing he had been directed to stop by a duly authorized law
enforcement officer, willfully fled in a vehicle in an attempt to elude a law
enforcement officer; 3) the law enforcement officer was in an authorized law
enforcement patrol vehicle with agency insignia and other jurisdictional markings
prominently displayed on the vehicle and with the lights and sirens activated;
and 4) during the course of the fleeing or attempting to elude, the defendant drove
at high speed or in any manner demonstrating a wanton disregard for the safety
of persons or property. Fla. Std. Jury Instr. (Crim.) 28.8.

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the majority.

   The subject comment was made in closing argument where attorneys
are afforded wide latitude in arguing to the jury. See, e.g., Thomas v. State,
748 So. 2d 970, 984 (Fla. 1999). Furthermore, “[w]hen evaluating a
prosecutor’s comment, the comment ‘should be examined in the context
in which it was made.’” Jackson v. State, 89 So. 3d 1011, 1018 (Fla. 4th
DCA 2012) (quoting Lubin v. State, 963 So. 2d 822, 824 (Fla. 4th DCA
2007)).

   The prosecution’s reference to a “reasonable person” standard was not
a misstatement of the law, as the State was not articulating a legal
standard. Rather, the “reasonable person” reference was a tool to assist
the jury in making a factual inference regarding the knowledge element of
the crime charged.

   Moreover, as noted by the majority, after making the “reasonable
person” comment, the prosecutor addressed the four elements of the crime
and told the jury that the only element at issue was whether the defendant
knew he had been directed to stop by law enforcement officers. The
burden was on the State to present evidence and argument that would
permit the jury to infer that the defendant had this knowledge. It was in
that context that the prosecutor earlier referenced how a “reasonable
person” would know that law enforcement was trying to pull him over. The
prosecutor made no further reference to the “reasonable person.”

   Viewed in context, I find the comment complained of to be within the
bounds of a proper closing argument. Accordingly, I would affirm the trial
court’s final judgment.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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