WILLIAM TURNER

v.

STATE OF FLORIDA

COHEN, J.

William Turner was convicted of selling methamphetamine, possessing methamphetamine with the intent to sell, and unlawfully using a two-way communication device. On appeal, he argues that the trial court erred in disallowing his closing argument that the lack of fingerprint evidence relating to the baggie containing the methamphetamine constituted reasonable doubt. We agree and reverse.

The events leading to Turner’s charges occurred in a model shed outside of a Lowe’s Home Improvement store in Sumter County. The Sumter County Sheriff’s Department utilized a confidential informant, accompanied by an undercover deputy, to conduct a drug transaction with Turner. The confidential informant and undercover deputy parked at Lowe’s, and Turner approached the vehicle window. The confidential informant exited the vehicle and accompanied Turner into the shed.

Although the confidential informant wore a hidden camera, the video admitted into evidence does not show Turner possessing the methamphetamine 1 or making an exchange for money. The deputies who testified did not see Turner in possession of the methamphetamine. Further, the State did not present fingerprint evidence relating to the baggie containing the methamphetamine. Evidence of Turner’s guilt was comprised mostly of the testimony of the paid confidential informant. We recognize, however, that the video casts doubt on Turner’s testimony that the confidential informant planted the methamphetamine in the shed rafters earlier that day and retrieved those drugs upon entering the shed.

During closing argument, Turner asserted that had the Florida Department of Law Enforcement processed the baggie containing the methamphetamine for fingerprints, his fingerprints would not have been on the baggie. The State objected, arguing that there was no evidence supporting Turner’s claim. In a bench conference, Turner clarified that he intended to argue that the lack of fingerprint evidence was a factor the jury could 1 Our review of the video does not support the State’s contention that the video “showed [Turner] in possession of the methamphetamine at the very beginning of the transaction in the shed.” Turner appears to have something in his hand, but the splitsecond footage is too fast and blurry to discern what the item is. 2 consider in determining whether the State met its burden of proof.

The trial court sustained the State’s objection, reasoning, “I don't see your nexus of how you’ve shown that fingerprints are something that is required for them to prove their case.” Turner asserts that the trial court erred in disallowing his argument that the lack of fingerprint evidence constituted reasonable doubt.

We find that the trial court properly sustained the State’s initial objection because Turner’s argument that his fingerprints would not have been on the baggie was unsupported by the evidence. 2 Nevertheless, we agree with Turner that the trial court erred in disallowing his argument after he clarified his intent to address the lack of fingerprint evidence in terms of reasonable doubt.

As the jury was instructed during Turner’s trial, “[a] reasonable doubt as to the guilt of the defendant may arise from the evidence, conflict in the evidence, or lack of evidence.” Fla. Std. Jury Instr. (Crim.) 3.7. A defendant is entitled to highlight the State’s lack of evidence—either the nonexistence of fingerprints or the failure to attempt to obtain fingerprints—as reasonable doubt. See Starr v. State, 518 So. 2d 1389, 1391–92 (Fla. 4th DCA 1988) (noting that trial court erred in sustaining objection to defendant’s argument that state failed to prove defendant’s fingerprints were on baggie containing drugs because “[a] reasonable doubt is often created by the lack of evidence of guilt and, thus, comment on the absence of evidence on an issue pointing to guilt is fair and proper comment”).

The State often presents evidence of the virtual impossibility of obtaining fingerprints from small baggies in drug-related trials. It elected not to do so in this case.

Turner was entitled to argue that the State’s lack of fingerprint evidence constituted 2 In his reply brief, Turner concedes that his counsel unartfully articulated the lackof-evidence argument during closing argument. 3 reasonable doubt. The trial court erred in denying Turner the opportunity to present that argument.

Further, we conclude that based on limited evidence that Turner possessed the methamphetamine, the error was not harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986); cf. Lena v. State, 901 So. 2d 227, 233 (Fla. 3d DCA 2005) (applying harmless error test when trial court improperly sustained state’s objection during defense’s closing argument). Accordingly, we reverse and remand for a new trial.

REVERSED and REMANDED for a new trial.

GROSSHANS, J., and JACOBUS, B.W., Senior Judge, concur. 4