        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                        RAYMOND C. GLEASON,
                             Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D14-678

                            [March 9, 2016]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Robert R. Makemson, Judge; L.T. Case No.
562013CF000865A.

   Carey Haughwout, Public Defender, and Jeffrey L. Anderson,
Assistant Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine
Germanowicz, Assistant Attorney General, West Palm Beach, for
appellee.

CIKLIN, C.J.

   Raymond Gleason appeals his convictions of burglary of a dwelling
and dealing in stolen property. He raises three issues, two of which we
find have no merit. However, we agree with Gleason that his conviction
should be reversed based on improper closing argument by the
prosecutor.

   Evidence at trial showed that, while the victim was at work, someone
entered both her home and a shed located in the backyard. That person
took a wood chipper from the shed. A neighbor saw a man carrying a
large object as he left the victim’s property. The neighbor questioned the
man, who told him he “was gonna go do a job,” and that he was selling
the wood chipper for somebody. The man sported tattoos on his arms
and neck. The neighbor was eighty percent certain that Gleason was the
man he saw that day. A law enforcement officer testified that soon after
the neighbor saw the man leaving the victim’s property, Gleason
appeared at a taxi cab station near the victim’s home with the wood
chipper in his possession, and that Gleason left the taxi cab station after
being confronted. The officer also testified that Gleason had tattoos on
his arms and neck. In the time leading up to trial, the officer learned
that Gleason did not have a neck tattoo. He speculated that what he
thought was a neck tattoo could have been dirt. Photos entered into
evidence showed that Gleason had tattoos on his arms but not on his
neck. Gleason was interviewed by law enforcement officers during an
unrelated criminal investigation. During the taped interview, he made
statements placing him with the wood chipper at the taxi cab station.
However, he did not admit to being the person who stole the wood
chipper.

   During closing argument, the prosecutor stated as follows:

      [Y]ou’ll get another instruction that possession of recently
      stolen property, unless satisfactorily explained, gives rise to
      an inference that the person knew or should [have] known
      that the property had been stolen. Very similar to the last
      instruction on burglary about possession of stolen property,
      it’s very similar.     Because again, the legislature, they
      understand that people who steal the items have the items.
      So possession of the items shows, it’s good evidence to show
      that he committed the crime. And again, this is not a case
      where, you know, it’s months, days, weeks later, this is right
      after the burglary, right after. And there has been no
      satisfactory explanation as to why or how he had this
      property, this stolen property. There’s been no evidence at
      trial to explain satisfactorily why he had this other than he
      committed the burglary, other than he committed the dealing
      in stolen property. That’s the only reasonable explanation.
      So you shouldn’t go back there and say, well, maybe, maybe
      he just found it. There’s no evidence of that. He didn’t just
      find this on the street, he stole it and that’s why he lied
      about his name and that’s why he ran.

   Defense counsel objected, arguing that the prosecutor had shifted the
burden of proof to Gleason and commented on his silence. The trial
court overruled the objection, agreeing with the prosecutor that the
argument was related to the jury instruction and thus proper.
Presumably emboldened by the trial court’s evidentiary ruling, the
prosecutor then continued: “As I said, there has been no evidence to –
satisfactorily to explain why this Defendant had that stolen chipper,
mulcher, unless if he just stole it.”


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   The trial court instructed the jury on the presumption provided for in
section 812.022(2), Florida Statutes (2013), namely that “[p]roof of
possession of recently stolen property, unless satisfactorily explained,
gives rise to an inference that the person in possession of the property
knew or should have known that the property had been stolen.”1 The
court also instructed the jury on the following common law presumption:
“Proof of possession by an accused of property recently stolen by means
of a burglary, unless satisfactorily explained, may justify a conviction of
burglary if the circumstances of the burglary and of the possession of the
stolen property convince you beyond a reasonable doubt that the
defendant committed the burglary.”2

   We begin with the well-settled premise that the trial court has
“discretion to control the comments made to a jury.” Salazar v. State,
991 So. 2d 364, 377 (Fla. 2008) (quoting Ford v. State, 802 So. 2d 1121,
1132 (Fla. 2001)).

         Improper prosecutorial comments give rise to error justifying
         mistrial when they are “so prejudicial that [they] vitiate the
         entire trial.” In determining whether reversal is warranted
         for an improper remark made by a prosecutor during the
         closing argument, the court must determine whether the
         effect of the comment was to prejudice the jury and impair
         the fairness of the proceeding.

Mannarino v. State, 869 So. 2d 650, 652 (Fla. 4th DCA 2004) (alteration
in original) (quoting Taylor v. State, 640 So. 2d 1127, 1133 (Fla. 1st DCA
1994)). In keeping with a defendant’s constitutional right to choose not
to testify at trial, “[a]ny comment on, or which is fairly susceptible of
being interpreted as referring to, a defendant’s failure to testify is error
and is strongly discouraged.” State v. Marshall, 476 So. 2d 150, 153
(Fla. 1985).     This “‘fairly susceptible’ test is a ‘very liberal rule.’”
Rodriguez v. State, 753 So. 2d 29, 37 (Fla. 2000) (quoting State v.
DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986)). See also Fla. R. Crim. P.
3.250 (providing, in pertinent part, that “no accused person shall be
compelled to give testimony against himself or herself, nor shall any
prosecuting attorney be permitted before the jury or court to comment on
the failure of the accused to testify in his or her own behalf”).

    We note there is a distinction between impermissible comments on
silence and permissible comments on the evidence in a case. “A

1   See Fla. Std. Jury Instr. (Crim.) 14.2.
2   See Fla. Std. Jury Instr. (Crim.) 13.1.

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constitutional violation occurs . . . if either the defendant alone has the
information to contradict the government evidence referred to or the jury
naturally and necessarily would interpret the summation as a comment
on the failure to testify.” Rodriguez, 753 So. 2d at 38 (alteration in
original) (citation and internal quotation marks omitted). Stated another
way, “where the evidence is uncontradicted on a point that only the
defendant can contradict, a comment on the failure to contradict the
evidence becomes an impermissible comment on the failure of the
defendant to testify.” Id.

   Additionally, “[w]hen arguing to the jury, the State may not make
comments that mislead the jury as to the burden of proof.” Paul v. State,
980 So. 2d 1282, 1283 (Fla. 4th DCA 2008). Comments on silence may
also equate to burden-shifting comments: “[T]he State may not comment
on a defendant’s failure to mount a defense because doing so could lead
the jury to erroneously conclude that the defendant has the burden of
doing so.” Rodriguez, 753 So. 2d at 38.

   Here, the state contends the prosecutor’s arguments were proper
comments related to the presumption of knowledge. A previous opinion
of this court leads us to conclude that reversal is required here. In
Mannarino, 869 So. 2d 650, the defendant was charged with uttering a
forgery and petit theft, arising from his possession of stolen credit cards.
His girlfriend testified that she stole the credit cards and that the
defendant unknowingly came into possession of the stolen goods when
she asked him to pay for their meal at a restaurant with her credit card,
and he took the credit card out of her purse. Id. at 651. During closing
argument, the prosecutor argued as follows:

      The judge will instruct you the mere fact that the defendant
      had that card on him, the mere fact that he had it in his
      possession, presumption of guilt, and he stole those items,
      unless he can explain them away.         And Ms. Bereda’s
      explanation does not explain that away.

Id. (emphasis omitted). The trial court denied defense counsel’s motion
for mistrial, reasoning that the comment was not inconsistent with the
jury instruction.3    On appeal, the state argued that the comment

3 Although the opinion does not quote the instruction that was given, it is clear
that it was the presumption provided for in Florida Standard Jury Instruction
(Criminal) 14.2 and section 812.022(2), Florida Statutes. Mannarino was
charged with theft, and the opinion reflects that the trial court referenced the
“theft instruction.” Id. at 652.

                                       4
mirrored the jury instruction. We rejected the argument, noting that the
prosecutor “added the word ‘he,’ which obviously refers to appellant and
suggests that he was required to, but did not, explain his possession of
the stolen credit cards.” Id. at 653. This court also reasoned that “even
if her comment were a correct statement of the law as it is given in the
standard jury instruction, in the context in which the comment was
made, it was an inappropriate comment on appellant’s right to remain
silent.” Id. We found the error was not harmless “because appellant was
the only person besides [his girlfriend] who could have explained why he
had the credit cards,” and the girlfriend’s testimony was impeached by
her prior statement to police that the defendant stole the purse. Id.

   Here, the prosecutor crossed the line when he said: “And there has
been no satisfactory explanation as to why or how he had this property,
this stolen property. There’s been no evidence at trial to explain
satisfactorily why he had this other than he committed the burglary,
other than he committed the dealing in stolen property. . . . As I said,
there has been no evidence to—satisfactorily to explain why this
Defendant had that stolen chipper, mulcher, unless if he just stole it.”

   The prosecutor did not directly reference Gleason’s failure to testify,
but his reference to a lack of evidence to explain Gleason’s possession
highlighted his failure to testify, and in doing so, shifted the burden to
Gleason to prove his innocence. Although the state is permitted to have
the jury instructed on the presumptions that arise when a defendant is
found in possession of recently stolen property, it is not permitted to
invite the jury to convict based on a defendant’s failure to attempt to
rebut the presumptions. The state’s closing argument did not direct the
jury to consider the evidence that was presented; instead, the comments
directed the jury to consider Gleason’s failure to present an explanation
for his possession of the property. Additionally, Gleason was the only
person who could provide the reasonable explanation to overcome the
presumption.

   We point out that the state, through the testimony of the victim’s
neighbor, presented evidence of an explanation offered by Gleason. If the
prosecutor had focused his comments on whether that explanation was
satisfactory, the comment would have been permissible. Instead, the
prosecutor made comments that were fairly susceptible of being
interpreted as comments on Gleason’s silence. The Fifth Amendment
prohibits that type of oratory.

   The error was not harmless. This was a case built largely on
circumstantial evidence. The neighbor was not certain in his

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identification of Gleason, and there were discrepancies in the description
of the man carrying the wood chipper away from the victim’s house. On
this record, it cannot be said beyond a reasonable doubt that the error
had no effect on the verdict. See DiGuilio, 491 So. 2d at 1139.

   Reversed and remanded for new trial.

CONNER and KLINGENSMITH, JJ., concur.

                           *        *        *

   Not final until disposition of timely filed motion for rehearing.




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