LUIS RIVERA

v.

THE STATE OF FLORIDA

Before BARBARA ARECES, MARIA ELENA VERDE, and ROBERT J. LUCK, J]. PER CURIAM: Luis Rivera was convicted by a jury of driving under the influence after he was stopped in his car with an open can of beer and told police officers to “just take me in, I am really drunk.” His appeal of the DUI conviction raises two issues: (I) did the trial court err in overruling Rivera’s objection to the state’s argument in rebuttal closing that Rivera “knew that if he blew h d ied ou that evidence”; and [in the Breathalyzer] he would have been over .08. So instead, e en y [*2] (2) and if so, whether that error was harmless. Because we conclude the state’s comment was harmless under the facts of this case, we affirm. Rivera contends that the state’s “he denied you” comment in the rebuttal closing improperly shifted the burden ofproof from the state to him. We assume (Without deciding) that it did. E Concha v. State, 972 So. 2d 996 (Fla. 4th DCA 2008) (reversing DUI conviction where state argued in rebuttal closing, “I’m not going to let the jury see that. No, no, no, the jury is not going to see how I’m going to perform on the video.”); Hurtado v. State, 20 Fla. L. Weekly Supp. 763a (Fla. llth Jud. Cir. 2013) (reversing DUI conviction Where the state -argued in rebuttal closing, “the Defendant had a chance to prove her innocence -- When she was offered a breath and refused”). That, however, does not end our analysis. We must also ask whether the “burden shifting argument . . . was harmless beyond a reasonable doubt.” Torres-Matmoros v. State, 34 So. 3d 83, 85 (Fla. 3d DCA 2010) (“We further find no reversible error with respect to the prosecutor’s comments during closing argument. The sole statement made by the prosecutor regarding reasonable doubt, even if viewed as a burden shifting argument, was irmnediately corrected by the prosecutor, and, when viewed in context, was harmless beyond a reasonable doubt”); E all Stires v. State, 824 So. 2d 943, 946 (Fla. 5th DCA 2002) (“[T]he prosecutor’s poor choice of words still suggests that the jury has to find the defendant innocent of any wrongdoing in order to acquit. That is not the standard. They need only have a reasonable doubt about his guilt to acquit. Therefore, the prosecutor erred. The state, however, correctly argues that this type of error is subject to harmless error analysis”); , 20 Fla. L. Weekly Supp. at 763a (“We find that the trial court erred when it tailed to sustain the objection to this burden-shifting comment. Upon a finding of error, the harmless error test must be applied”). [*3] The harmless error test requires the state to “prove beyond a reasonable doubt that the error complained of did not contribute to the verdict, or, stated alternatively, that there is no reasonable possibility that the error contributed to the conviction. E, 824 So. 2d at 946. “Application of the rule ‘requires an examination of the entire record by the appellate court including a close examination of the permissible evidence on which the jury could have legitimately relied . . . .”’ Li. (quoting State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla.l986)). Here, an examination of the permissible evidence shows that the state’s comment did not contribute to the conviction: The arresting police officer observed Rivera run a stop sign, and driving over the speed limit, at two thirty in the morning. Rivera did not stop even after the officer activated his emergency lights. The first thing Rivera said when the officer approached his car was, “just take me in I am really drunk.” At the time of the stop, Rivera’s eyes were red and glossy — bloodshot and Watery — his speech was slurred, and his breathe smelled of alcohol. Rivera had in his cup holder an open, half-full sixteen ounce can of Miller High Life. (Pictures of the can inside Rivera’s car were introduced at the trial.) When asked questions, Rivera mumbled. On the Horizontal Gaze Nystagmus test, Rivera had all six indicators for impairment, and all other non-impairment causes of the nystagmus were ruled out. On the one leg stand test, Rivera swayed back and forth and had to put his other leg down twice. [*4] I On the walk—and-turn exercise, Rivera lost his balance four times as the instructions were being explained to him. (In other words, Rivera could not stand still.) As he was walking, he had to stop to regain his balance and failed to touch his heel-to-toe. For the Rhomberg time estimation exercise, Rivera got the time wrong by half, and swayed from side to side. In the tinger~to-nose exercise, Rivera missed the tip of his nose with his hand multiple times. Rivera told the officers that: “you guys rescued me. I drink every day”; and he used a customer’s deposit as drinking money. Rivera’s inattentive driving, multiple confessions, half-digested beer, mumbled, slurred speech, stench of alcohol, blood-shot eyes, involuntary eye movements, inability to follow simple instructions, and poor balance made for a strong case for the state and lead to the conclusion that the state’s comment could not possibly have contributed to the verdict. The court also looks to jury instructions as part of the harmless error analysis. g Saints J, 972 So. 2d 941, 944 (Fla. 5th DCA 2007) (“[O]ur review of that issue is to determine whether the instructional error constitutes reversible error. This implicates harmless error analysis which requires us to consider the totality of the circumstances including the evidence, the instructions in their entirety, the verdict of the jury, with the ultimate determination concerning whether there exists a reasonable possibility that the error contributed to the conviction.” (emphasis added)). Here, during voir dire, the trial court instructed the jury: All right next thing you have to do is that you have to apply the constitution law that says the state has the burden of proving to you that the crime charged was committed and this defendant is the one who committed the crime. The State, the government, the assistant state attorneys they are all sitting here they have the burden exclusively on the State. Only the State has to prove anything to you. The [*5] State has to prove to you that the DUI crime charged was committed and the defendant is the one who committed it. They don’t have to do anything they meaning the defense. They don’t have to prove . . . anything to you. . . . Only the State has . . . the burden of proof . . ., the job of proving to you that rest solely and exclusively on the prosecution . . . . . . . The constitution says also not only does the State have to prove it to you, but they have to prove to you every element of the charge every part of the charge. . . . So the law says if the State fails to prove to you beyond and to the exclusion of a reasonable doubt that the crime of DUI was committed and the defendant is the one who committed the crime you have to find the defendant not guilty. After the jury was selected and sworn, the trial court reiterated that it was their “solemn resp[onsibility] to determine if the State has proved it[s] accusation beyond a reasonable doubt against Luis Alberto Rivera.” And immediately after the state completed it rebuttal closing argument, the trial court underscored to the jury: “The constitution requires the State to prove it[s] accusation against the defendant. It is not necessary for the defendant to disprove anything. Nor is the defendant required to prove his innocence. It is up to the State to prove the defendant’s guilt by evidence.” We presume, as we must, that jurors follow the trial court’s instructions. E Sutton v. State, 718 So. 2d 215, 216 n.1 (Fla. lst DCA 1998) (“The law presumes that the jury followed the trial judgc’s instructions in the absence of evidence to the contrary.”). Here, the jury was instructed once, twice, three times that the state had the burden of proof. The last time was very soon after the state made its “he denied you” comment. The entire trial, voir dire to sentencing, lasted eight horns — the instructions at the beginning and end of the trial were not lost, therefore, in weeks of testimony, delays, and breaks. The number of times the burden~of-proof instruction was repeated, the short length of the trial, the fact that the instruction was given shortly after the rebuttal close, all indicate that the state’s comment had no reasonable possibility of contributing to the verdict. [*6] The appellate courts, fmally, look to the jury’s deliberation questions as part of the harmless error analysis. E Nelson v. State, 362 So. 2d I017, 1020 (Fla. 3d DCA 1978) (considering jury questions as part of harmless error analysis); Wimberly v. State, 697 So. 2d 1272, 1273 (Fla. 4th DCA 1997) (same). Here, shortly after the jury began its deliberations, the jury asked a single question about Rivera’s prior driving record, DUIs, and license suspensions. The one question from the jury did not indicate any confusion about the state’s burden of proof. And it did not ask about Rivera’s refusal. In sum, given the totality of the non-refusal evidence, the trial cou1t’s jury instructions, and the jury’s deliberation question, we conclude that the state’s comment in its rebuttal closing argument did not contribute to the verdict. Even if trial court erred in overruling the objection, therefore, the error was harmless. Rivera’s DUI conviction and sentence are affirmed. --""" I .' i _,_,,,,5,“.,¢.e@»=w,=.@a¢.w-=-vsiq<==»a==.sm¢..,w,s=a1=..

BARBARAARECES

M

MARIA ELENA VERDE

CIRCUIT JUDGE, ../*“/‘ '''''I' /;;%'”

* * * * *

CIRCUIT JUDGE

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