         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D17-2803
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RANDY TERRELL GRIMSLEY,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Bay County.
Hentz McClellan, Judge.

                          April 3, 2019


KETCHEL, TERRANCE R., Associate Judge.

     A jury convicted Mr. Grimsley of unlawful sexual activity
with a minor after Grimsley (age 34) impregnated the victim (age
16), DNA tests showed a 99.9% chance Grimsley was the father,
and the victim testified Grimsley had sex with her. On appeal,
Grimsley maintains we should reverse his conviction because the
prosecutor twice made comments improperly suggesting he had a
burden to disprove he was the child’s father and provide evidence
of his innocence. We disagree.

     During opening statements, the prosecutor began by
informing the jury that DNA evidence would show Grimsley was
the father of a child born to the victim, a minor. She then told
the jury to also pay attention to the statement Grimsley
voluntarily gave police in a post-Miranda interview.

         [P]ay close attention when [the Investigator] is
         on the stand telling you about the interview she
         had with [Appellant] and pay attention to the
         things she said and also the thing that he
         didn’t say. He never flat out denies that this
         baby could be his. But knowing that [the
         victim] is an underage minor, he dances around
         the investigator’s questions saying things like,
         well, if that test comes back, I am f-d. He
         admits to the investigator that he does drink a
         lot. And when pushed more on the issue he
         finally says you don’t think about consequences
         in the time, in the moment.

     During the State’s case-in-chief, the prosecutor asked the
interviewing investigator “But he didn’t deny that the child was
his?”

    On both occasions, defense counsel objected on improper
burden shifting grounds and requested a mistrial. The court
denied the first objection, sustained the second, and denied both
requests for a mistrial. Grimsley now argues the court reversibly
erred by denying his mistrial requests.

     It is improper for a prosecutor to make statements that “shift
the burden of proof and invite the jury to convict the defendant
for some reason other than that the State has proved its case
beyond a reasonable doubt.” Warmington v. State, 149 So. 3d
648, 652 (Fla. 2014). It is inappropriate for a prosecutor to seek
conviction “for a specific reason other than the state’s proof of the
elements of the crime beyond a reasonable doubt.” Lenz v. State,
245 So. 3d 795, 798 (Fla. 4th DCA 2018) (quoting Rivera v. State,
840 So. 2d 284, 288 (Fla. 5th DCA 2003)). This means “an
argument emphasizing a defendant’s failure to proclaim his
innocence” is improper; it “is the equivalent of a burden-shifting
argument.” Id.




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    On the other hand, a prosecutor may comment on the
evidence. See Cribs v. State, 111 So. 3d 298, 300 (Fla. 1st DCA
2013).

     The prosecutor was proper in commenting on the interview
and what happened in the interview, and the investigator could
testify to the same: “Appellant told the investigator he would be
F-d,” “Appellant said he had woken up naked with the victim on
top of him.” But it was improper to suggest Appellant could have
said more and proclaimed his innocence. This crossed into
impermissibly “pointing out that [Grimsley] didn’t say certain
things.” See Lenz, 245 So. 3d at 797.

     However, mistrial is only appropriate “in cases of absolute
necessity.” Gosciminski v. State, 132 So. 3d 678, 696 (Fla. 2013);
see also White v. Consol. Freightways Corp. of Del., 766 So. 2d
1228, 1232 (Fla. 1st DCA 2000) (explaining mistrial should be
granted if “an absolute legal necessity to do so exists”). The error
must be more than prejudicial; it must vitiate the entire trial and
mistrial must be necessary to ensure a fair trial. Gosciminski,
132 So. 3d at 695-96. This Court reviews the trial court’s mistrial
decision for an abuse of discretion. Id. at 695.

     Here, the prosecutor—most compellingly—presented DNA
evidence that Grimsley was the father to a 99.9% certainty.
Furthermore, the victim testified Grimsley had sex with her, and
the State developed a timeline matching Grimsley’s sexual
interaction and the victim’s pregnancy and delivery. It took the
jury less than 20 minutes with that evidence to convict Grimsley.
Simply, the prosecutor’s comments and question could not have
vitiated this trial or deprived Grimsley of a fair trial. The
comments and question cannot alter DNA evidence to a 99.9%
certainty, bolstered by the other evidence. *



    * We find it gratuitous to decide on the propriety of the
prosecutor’s comments and question. It is unnecessary to the
resolution; because no matter that answer, mistrial requires
more than trivial error with no potential effect on the outcome.
Grimsley cannot show that.

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     Accordingly, mistrial was far from necessary and would not
have been proper. The trial court did not err, let alone abuse its
discretion, in denying Grimsley’s requests for mistrial.

    AFFIRMED.

B.L. THOMAS, C.J., and WINOKUR, J., 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.
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Andy Thomas, Public Defender, and L. Allen Beard, Assistant
Public Defender, Tallahassee, for Appellant.

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




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