BAHRAM AZIN

v.

THE STATE OF FLORIDA

Third District Court of Appeal State of Florida

Opinion filed October¹⁶, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-1622 Lower Tribunal No. F17-14314C ________________

Bahram Azin, Appellant,

vs.

The State of Florida, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Mavel Ruiz, Judge.

Black Srebnick, P.A., and Benjamin S. Waxman, for appellant.

Ashley Moody, Attorney General, and Ivy R. Ginsberg, Assistant Attorney General, for appellee.

Before EMAS, GORDO and LOBREE, JJ.

EMAS, J.

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INTRODUCTION

Bahram Azin appeals his convictions and sentences for armed kidnapping (two counts), aggravated battery with a firearm (two counts), and simple battery (two counts, as lesser-included offenses of the original charges of armed robbery). On appeal, Azin asserts (1) the evidence was legally insufficient to establish that Azin committed armed kidnapping or aggravated battery with a firearm, because the State failed to prove the item allegedly used by Azin met the legal definition of a firearm under section 790.001(9); and (2) the trial court abused its discretion in denying Azin’s motion for new trial based on improper closing argument. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Azin, together with co-defendants Ronnie Valle-Figueroa and Dimitri Moise, was charged by Information. His case was severed and proceeded to trial only as to Azin. The testimony and evidence, in a light most favorable to the jury’s verdict, is as follows: The two victims (Marvin Osavas and Carlos Garcia) were hired on May¹⁶, 2017, to perform construction and renovation work at Azin’s home. Azin hired the men, gave them a key to the house, and the men began their work. A few days later, several large appliances were discovered missing from

3 Azin’s home. Azin came to believe Osavas and Garcia stole the appliances. However, Osavas and Garcia denied this, and continued working at the job site for several more days. On May 26, 2017, Garcia was working alone in the house for a period of time. He was up on a ladder when Azin walked into the house, holding a small black gun. Azin pulled Garcia down off the ladder and onto the ground and hit Garcia in the face with the gun. A second man (later identified as codefendant Valle-Figueroa) came into the house, and Azin and Valle-Figueroa began hitting Garcia with a baseball bat and a wooden two-by-four. Azin then put the gun in Garcia’s mouth and accused Garcia of stealing his appliances. The men handcuffed Garcia, bound his legs and mouth with duct tape, took his wallet and cell phone, and continued beating Garcia on his legs, back and head. They then put Garcia in a closet. Garcia was not sure how long he remained in the closet, because he lost consciousness after being hit in the head. At some point (while Garcia remained tied up in the closet) the second victim Osavas arrived at the house. Though Garcia could not see what was happening, he heard the screams of Osavas as he was being beaten. Osavas testified that when he came into the house, it was dark. He was looking for his tool belt when co-defendant Dimitri Moise came up from

1 Much of this opinion addresses the sufficiency of the evidence to support the jury’s finding that defendant possessed a firearm or weapon, and the resulting reclassification and enhanced sentencing consequences. This discussion does not affect the two simple battery convictions, which are each first-degree misdemeanors, for which the trial court sentenced defendant to time already served in the county jail.

2 Section 775.087(1)(a), Florida Statutes (2017) provides in pertinent part:

Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens to

use, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows: (a) In the case of a felony of the first degree, to a life felony.

3 Section 775.087(2)(a) 1., Florida Statutes (2017) provides in pertinent part:

Any person who is convicted of a felony or an attempt to commit a felony, regardless of whether the use of a weapon is an element of the felony, and the conviction was for. . . kidnapping and. . . during the commission of the offense, such person actually possessed a “firearm” or “destructive device” as those terms are defined in s. 790.001, shall be sentenced to a minimum term of imprisonment of 10 years.

The jury expressly found by its verdict that, during the commission of the offense, Azin did personally possess a firearm. The jury also found that defendant caused great bodily harm to Marvin Osavas. Because aggravated battery is one of the enumerated felonies under the 10/20/Life statute, the jury finding of personal possession of a firearm in the commission of this offense required imposition of a mandatory-minimum ten-year sentence under the 10/20/Life statute “regardless of whether the use of a weapon is an element of the felony.” § 775.087(2)(a)1., Fla. Stat. (2017). Nevertheless, a review of the sentence establishes that the trial court imposed a concurrent, ten-year sentence that was not imposed as a mandatory minimum under section 775.087(2)(a)1. This sentence was ordered to run concurrently with the sentences imposed in Counts⁷ and 8. Aggravated Battery with a Deadly Weapon upon Carlos Garcia (Count¹² of the Information):

The jury expressly found by its verdict that, during the commission of the offense, Azin did personally possess a firearm. Because aggravated

11.

On appeal, Azin asserts, inter alia: 1) the evidence was legally insufficient to establish Azin committed armed kidnapping or aggravated battery with a firearm, because no firearm was ever recovered and (Azin contends), there was no evidence that the gun described by the victims met the legal definition of a firearm under section 790.001(9),4 Florida Statutes

4 Section 790.001(9) Florida Statutes (2017) provides in pertinent part:

“Firearm” means any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive. . . .

STANDARDS OF REVIEW

Denial of the Motions for Judgment of Acquittal “The denial of a motion for judgment of acquittal is reviewed de novo.” Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002). “A defendant, in moving for a judgment of acquittal, admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence.” Lynch v. State, 293 So. 2d 44, 45 (Fla. 1974). “The conviction is supported by sufficient evidence where a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt after viewing the evidence in the light most favorable to the State.” Knight v. State, 186 So. 3d 1005, 1012 (Fla. 2016). Denial of the Motion for New Trial Based on Improper Closing Argument

Generally, the court reviews the propriety of comments made during closing argument (and new trial motion based upon such comments) for an abuse of discretion. Salazar v. State, 991 So. 2d 364, 377 (Fla. 2008). If the trial court erred in allowing the prosecutor to engage in improper argument, the burden is upon the State, as the beneficiary of such error, to establish

ANALYSIS AND DISCUSSION

Azin argues the evidence at trial was insufficient to support the finding that he personally possessed a “firearm” in the commission of these crimes, because the State failed to prove that the item used by Azin was a “weapon . . . which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive. . . .” § 790.001(9), Fla. Stat. (2017). We reject Azin’s argument for three separate reasons.

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First, Azin never made this argument to the trial court, either in his motions for judgment of acquittal or in his motion for new trial. It is raised here for the first time and is thus unpreserved.⁵ In his first motion for judgment of acquittal,⁶ Azin argued generally (as to all counts) that the State failed to establish a prima facie case. Such boilerplate motions are of course legally insufficient. See, e.g., Rodriguez v. State, 335 So. 3d 168, 172 (Fla. 3d DCA 2021) (“To preserve his sufficiency issue for appellate review, Rodriguez was required, in moving for judgment of acquittal below, to identify the element(s) of second-degree murder for which he contended the evidence was lacking. A boilerplate objection would not suffice.”) (citations omitted).

5 In fact, during defense closing, counsel did not even raise the question of whether the gun the victims testified Azin used was a “firearm”; rather, he argued in closing that Azin never used or possessed any gun, firearm or other weapon during the incident.

6 The defense argued its two motions for judgment of acquittal back-to-back. The defense moved for its first judgment of acquittal after the State rested its case. The standard of proof at that point required the State to establish a prima facie case of guilt. See Jenkins v. State, 1 So. 3d 317, 320-21 (Fla. 3d DCA 2009). After the trial court denied this first motion, the defense advised the court it would not be presenting any witnesses or evidence, and thereafter argued its second motion for judgment of acquittal. The standard at that point was whether “viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt.” If so, “sufficient evidence exists to sustain a conviction.” Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002).

7 We note parenthetically that, even if the evidence supported only a finding that Azin carried, displayed or used a weapon or deadly weapon (as opposed to a firearm), the offenses would still be reclassified to a higher degree felony under section 775.087(1)(a) (“Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified. . . .”), though a finding of actual possession of a firearm is required to impose the mandatory-minimum tenyear sentence under 775.087(2)(a)1.

(Emphasis added). The defense objected and the court sustained the objection and directed the State to “move on.” However, the defense did not move for a mistrial, either following the court’s ruling or at the end of the State’s rebuttal closing, thereby waiving the issue for appeal unless the comment constitutes fundamental error. State v. Cumbie, 380 So. 2d 1031 (Fla. 1980) (holding defendant who objects to prosecutor’s comment in final argument must make a motion for mistrial at some point during closing argument or, at the latest, at the conclusion of the prosecutor’s argument); cf. Roundtree v. State, 362 So. 2d 1347, 1348 (Fla. 1978) (where defense counsel objected and asked that improper comment be stricken from the record and court sustained objection and granted his request, “the trial court gave [the defendant] exactly what he requested, and he is not now in a position to complain. . . . By allowing the trial to proceed, he waived his right to raise this issue on appeal.”) As with the other unpreserved claims, even when considered together, Azin has failed to show that such errors “rise to the level of fundamental error, which has been defined as error that ‘reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have

8 We find no merit in the remaining arguments raised by Azin.