DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                           JEFFREY GABRIEL,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D17-1363

                              [June 27, 2018]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Martin S. Fein, Judge; L.T. Case No. 15-6568CF10A.

  Carey Haughwout, Public Defender, and Claire V. Madill, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina
Jimenez-Orosa, Senior, Assistant Attorney General, West Palm Beach, for
appellee.

WARNER, J.

   In this appeal from appellant’s conviction for grand theft, appellant
contends that the prosecutor’s closing argument merits reversal on
multiple grounds. After the prosecutor implied to the jury in closing
argument that mere presence at the scene of a crime was sufficient to
support a conviction, the court refused to give appellant’s requested
instruction on “mere presence.” The trial court erred in failing to give the
appellant’s instruction. It also erred in overruling appellant’s objection to
the prosecutor’s references to facts beyond the evidence. Further, the
prosecutor referenced facts not in evidence and made several comments
negatively reflecting on appellant’s right to a jury trial. Because we cannot
conclude that the cumulative effect of all of the comments were harmless
beyond a reasonable doubt, we reverse.

   In 2015, the State charged appellant, Jeffrey Gabriel, by information
with one count of grand theft under section 812.014, Florida Statutes
(2015), alleging he knowingly obtained the property of American Express,
merchandise at a value of $300 or more but less than $5,000. The State
also charged Claudel Thermidor, co-defendant, with criminal use of
personal identification information, grand theft, and fraudulent use of a
credit card. At trial, a detective testified that he had responded to a home
burglary where the homeowner’s American Express card was taken. The
detective contacted American Express, and he learned the card had been
used on the same day as the burglary at several retail stores about a block
away from the home. Surveillance footage from the stores showed the co-
defendant Thermidor, appellant, and another person checking out of the
stores. The footage caught Thermidor handing the stolen credit card to
the cashier to purchase merchandise, some of which was handed to
Thermidor by appellant.

   The detective arrested appellant, who gave a statement. He admitted
to being with Thermidor at the stores, claiming he was shopping with
Thermidor because Thermidor owed him money over a card game. While
the detective took fingerprints from appellant, none matched anything at
the scene of the burglary.

   Co-defendant Thermidor confessed to his participation and testified at
appellant’s trial. In consideration of his confession, the State put him in
a pretrial intervention program (PTI).

    Thermidor knew appellant from his neighborhood, but he wasn’t really
a friend — more of an acquaintance. Appellant called him on the day of
the crimes, saying he had something to show Thermidor. Appellant
eventually showed him the credit card that they used in the stores.
Appellant did not tell him from where he got it. It was Thermidor’s idea
for them to go shopping with the card. Thermidor’s friend, John, went
with them. Appellant gave Thermidor the card to use at the registers, and
Thermidor purchased items, some of which were handed to him by
appellant.

   The State played the surveillance videos to the jury. Thermidor
identified himself and appellant in the video. In it, Thermidor is seen
handing the credit card to the cashier while both appellant and
Thermidor’s friend stand by holding merchandise.

   On cross-examination, Thermidor admitted he entered PTI and
confessed to his crimes with the hopes his charges would be dropped. He
paid restitution to American Express. He admitted that in his sworn PTI
statement, he confessed he used the stolen card, but he did not mention
appellant’s involvement. Thermidor conceded that, as part of PTI, he was


                                     2
required to cooperate with the State regarding appellant’s prosecution and
to testify against appellant.

   After additional evidence from an American Express representative was
presented, the State rested. The court denied appellant’s motion for
judgment of acquittal. He presented no witnesses. At the charge
conference, appellant requested a “mere presence” instruction, informing
the jury that mere presence at the crime scene is insufficient to prove
participation. The court denied the appellant’s request, but it ruled that
appellant could make that argument during closing. The court ruled that
it would read the standard instruction on principal liability, which
provides:

      If the defendant helped another person or persons [commit]
      [attempt to commit] a crime, the defendant is a principal and
      must be treated as if [he] [she] had done all the things the
      other person or persons did if:

      1. the defendant had a conscious intent that the criminal act
      be done and

      2. the defendant did some act or said some word which was
      intended to and which did incite, cause, encourage, assist, or
      advise the other person or persons to actually [commit]
      [attempt to commit] the crime.

      To be a principal, the defendant does not have to be present
      when the crime is [committed] [or] [attempted].

Fla. Std. Jury Instr. (Crim.) 3.5(a).

   The prosecutor commenced her closing argument, telling the jury that,
“we’re all here because [appellant] refuses to take responsibility for his own
actions on May 7, 2015. That’s why we are here.” She contrasted
appellant to Thermidor, who “did take responsibility for his actions on that
day” and testified against appellant. She repeated this theme multiple
times throughout the closing argument.

   As the prosecutor discussed Thermidor’s recitation of events, she told
the jury that in Thermidor’s statement to the detective, he confessed and
said, “I knew what I did was wrong, but I got the card from [appellant].”
Defense counsel objected that those facts were not in evidence, as the



                                        3
court had disallowed the detective to testify regarding Thermidor’s
confession to the detective. The court overruled the objection.

   During the defense’s closing argument, counsel consistently attacked
Thermidor and the unreliability of his testimony. He argued that the
videos only showed “mere presence” of appellant, which was insufficient
to show participation without Thermidor’s testimony, stating:

      there is no evidence to prove that [appellant] participated in
      this theft; this theft and this fraud that Mr. Thermidor
      admitted to you and has confessed to I don’t know how many
      times now.

      That leaves us with [appellant’s] mere presence at the store.
      The law in Florida says mere presence, even mere
      knowledge, but mere presence without any participation
      is not enough to commit.

      So if mere presence is not enough, that leaves you with what?
      The only witness that mattered in this case, Claudell
      Thermidor. Every word that man spoke yesterday was covered
      in reasonable doubt. I think you could ask that guy what time
      it is and he would equivocate and would not be sure. Even
      simple questions from the State he wasn’t sure about.

(emphasis added). Later, he reiterated that, “Mere presence is not enough.
Mere knowledge isn’t even enough. The only evidence or testimony that
[appellant] knew what Mr. Thermidor was doing that day came from Mr.
Thermidor, not a reliable source.”

   In rebuttal, the prosecutor argued that the court would not instruct
that mere presence was insufficient. Her comments suggested that the
defense was not accurate in his explanation of the law.

      Let's talk about what defense counsel said about the principal
      theory again. I will show it to you one more time. You will
      not see anywhere in any of your jury instructions that
      mere presence at the scene of a crime is not enough.
      What you are going to see is that the person who is being
      charged as a principal does not even have to be at the
      scene of a crime to be a principal. I will show it to you
      again.



                                    4
(emphasis added). Defense counsel objected, but the trial court allowed
the prosecutor to continue, and she again told the jury that presence was
sufficient:

      This what you will have with you when you go back into the
      jury room. To be a principal the defendant does not have
      to be present when the crime is committed.

      We can even do one better than that. He was at the scene
      of the crime when it was committed. It's on the video and
      everyone saw it.

      Ladies and gentlemen, use your common sense. I'm asking
      you to bring your common sense back there with you.
      [Appellant] was in on it.

(emphasis added). After rebuttal, defense counsel contended he correctly
stated the law and that the prosecutor’s argument suggested that he had
misstated the law. Appellant again requested a special instruction that
mere presence is not enough, but the court denied the request.

   The jury convicted appellant of the lesser-included offense of petit theft.
This appeal follows.

   Appellant argues that the court erred in allowing the prosecutor’s
argument regarding the defense’s contention that “mere presence” was
insufficient to prove participation. He contends the State’s argument
improperly suggested to the jury that defense counsel was misrepresenting
the law, and the court erred in refusing to give the special jury instruction
on mere presence once the prosecutor had misled the jury on the issue.
We agree.

    “While wide latitude is permitted in closing argument, see Breedlove v.
State, 

, 8 (Fla. 1982), this latitude does not extend to permit
improper argument.” Gore v. State, 

, 1202 (Fla. 1998).
Misleading a jury on the law constitutes improper argument. See Evans
v. State, 

, 1234-35 (Fla. 2015). We have repeatedly held
that, “[m]ere knowledge that an offense is being committed, mere presence
at the scene, and even a display of questionable behavior after the fact, are
not, alone, sufficient to establish participation.” T.W. v. State, 

, 242 (Fla. 4th DCA 2012) (alteration in original) (quoting Theophile v.
State, 

, 578 (Fla. 4th DCA 2011)); see also Dorsainville v.



                                      5
State, 

, 1012 (Fla. 4th DCA 2016); A.B., A Child v. State,

, 648 (Fla. 4th DCA 2014).

   A defendant is also entitled to instructions which support his or her
theory of defense if there is any evidence to support it. See Funchess v.
State, 

, 1110 (Fla. 4th DCA 2012). While appellant is not
challenging the trial court’s initial denial of his request for a “mere
presence” instruction, the trial court denied the special instruction
because it opined that the standard instruction adequately covered the
issue of presence. We fail to understand this logic, as the standard
instruction states that the defendant does not need to be present to be a
principal in the crime. It does not cover the situation where a defendant
is present, but he or she takes no action in support of the actual crime.
Nevertheless, we do not hold that the trial court erred in denying the
request for the mere presence instruction prior to closing argument.

   The situation changed, however, when the prosecutor attacked defense
counsel’s argument that “mere presence” does not constitute sufficient
evidence of participation in a crime. She implicitly told the jury that
defense counsel was misleading them on the law by telling them that mere
presence at a crime scene is not enough to be convicted as a principal.
She argued that the legal principle, that mere presence at the crime scene
is not enough, was not included in the jury instructions, but that a
principal could be convicted even if he was not present. Thus, this was
not only a misleading statement regarding the law, but also an improper
impugning of the defense counsel’s argument. The trial court erred in
denying appellant’s objection.

    The court additionally erred in failing to grant the appellant’s renewed
request for the “mere presence” special instruction after the prosecutor’s
improper argument. At that point, it was clear that the trial court’s original
ground for denying the instruction, i.e., that it was covered by the standard
instruction, was refuted by the prosecutor’s argument. See Graves v.
State, 

, 1288-89 (Fla. 4th DCA 2006) (noting the court’s
failure to give a requested jury instruction is error if calculated to mislead
the jury).

   The State contends that the prosecutor’s argument was simply in
rebuttal to defense counsel’s argument that only the unreliable testimony
of Thermidor connected appellant to the crimes, as the video showed
appellant’s mere presence at the transactions conducted by Thermidor.
However, the prosecutor’s argument was misleading and suggested that



                                      6
mere presence at the scene was sufficient to prove the crime. In short,
misleading arguments are not proper rebuttal.

    The trial court also erred in overruling appellant’s objection to the
prosecutor’s comments in closing argument which injected facts not
presented in evidence.           In discussing Thermidor’s testimony, the
prosecutor mentioned Thermidor’s first statement to detectives in which
he said that he got the credit card from appellant. The statement had not
been admitted during the trial, but it bolstered Thermidor’s trial testimony
by showing that his testimony was consistent with his earlier confession
to the authorities. After the court overruled appellant’s objection, the
prosecutor then stated that when Thermidor met with the detective, “he
didn’t know anything about a [PTI] program. His story is the same. When
he was arrested on May 19, 2015, it’s the same story he told you yesterday
[in trial] . . . .” Appellant’s objection was again overruled.

    “A prosecutor must confine his closing argument to record evidence
and ‘must not make comments which could not be reasonably inferred
from the evidence.’” See Spoor v. State, 

, 1235 (Fla. 4th
DCA 2008). In Spoor, the defense had argued in closing that the victim’s
identification of the defendant was suspect because she had not noticed
the extensive tattoos on his arms. 

During rebuttal, the
prosecutor said that the defendant had gotten the tattoos after the crime,
but before the trial, so that he could show them in court and challenge the
victim’s identification. 

that such argument, which injected
facts not in evidence, was improper, and we remanded for a new trial. 

see also Howard v. State, 

, 829 (Fla. 2d DCA 2014)
(finding fundamental error where conviction was based on witness’s
testimony, and the State improperly bolstered that testimony during
closing by referencing information not in evidence).

    The prosecutor’s argument that Thermidor’s testimony was consistent
with his earlier statement to the police, which was never introduced, was
offered solely to bolster Thermidor’s testimony against the defense
counsel’s attacks on Thermidor’s reliability. It was not a fair inference
from the admitted evidence.

   Given the importance of Thermidor’s credibility at trial, any error was
not harmless. Thermidor was the only witness who directly inculpated
appellant, and he was required to testify against appellant as part of his
PTI. Defense counsel was never able to cross-examine Thermidor on the
excluded statement. See Brinson v. State, 

, 975-76 (Fla.
5th DCA 2015) (holding it was improper for prosecutor to refer to facts not


                                     7
in evidence to bolster the victim’s credibility).        Moreover, during
deliberation, the jury asked to see the detective’s investigative report,
indicating that it may have been a close call for them to decide appellant’s
complicity. See Linic v. State, 

, 393 (Fla. 4th DCA 2012)
(“Where, as here, it may have been a close call for the jury and the
prosecutor improperly injected facts and inferences that were not
supported by the evidence,” there was error).

    Finally, the prosecutor commented numerous times in closing
argument on what she termed appellant’s “refusal to take responsibility”
for his actions, and she repeatedly compared him to Thermidor, who pled
guilty. She repeatedly commented the jury was “here” in court because of
appellant’s failure to take responsibility. During her opening statement,
the prosecutor began, “Ladies and gentlemen of the jury. The reason we
are here today is because the defendant, [appellant], is refusing to take
responsibility for his actions.” She also began her closing argument with
the same “refusal to take responsibility” argument and repeated this line
multiple times through her argument.

    These comments implicate defendant’s right to a trial by jury. The
State’s theme—that appellant refused to take responsibility—violated his
right to a fair jury trial and to remain silent. “It is improper for a
prosecutor to comment on a defendant’s exercise of his right to a jury
trial.” 

(citing Bell v. State, 

, 897
(Fla. 2d DCA 1998), where prosecutor improperly commented the “only
one reason we’re here” was because the defendant had the right to a trial).
By emphasizing appellant’s failure to plead and contrasting him with
Thermidor, the prosecutor violated his right to a fair trial.

    A prosecutor’s argument that the defendant did not want to take
responsibility for his actions was found to violate the defendant’s right to
a fair trial in State v. Jones, 

, 672 (La. Ct. App. 1999). Just
as in this case, the prosecutor in Jones compared the co-defendant, who
pled guilty and testified against the defendant, to the defendant who pled
not guilty and went to trial. Noting that, “[a]n accused has the absolute
right not to plead guilty,” the court concluded that the prosecutor’s
comments undermined that right and the presumption of innocence
accorded to every defendant. 

The court concluded that this
was a structural error in the trial which could not be harmless, noting the
presumption of innocence is vital to a fair trial. 

   While we do not hold that the prosecutor’s comments constituted a
structural defect in the trial, we condemn the prosecutor’s pervasive use


                                     8
of appellant’s “refusal to take responsibility” by going to trial. Such
comments denigrate the fundamental principles of the right to jury trial
and presumption of innocence. When the prosecutor plans the entire
theory of the case around attacking these principles, the defendant is
denied a fair trial.

   Because of the prosecutor’s improper comments, which do not
constitute harmless error, we reverse appellant’s conviction and sentence
and remand for a new trial.

TAYLOR and LEVINE, JJ., concur.

                          *         *        *

   Not final until disposition of timely filed motion for rehearing.




                                   9