source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Gary Fontaine BELL, Petitioner, v. STATE of Florida, Respondent.
    No. SC10-916.
    Supreme Court of Florida.
    Feb. 7, 2013.

      Michael Ryan Rollo of Michael Ryan Rollo, P.A., Pensacola, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, Criminal Appeals Division, and Giselle Denise Lylen and Christine Ann Guard, Assistant Attorneys General, Tallahassee, FL, for Respondent.
   PER CURIAM.

In this case, we consider whether certain comments made by a prosecutor were impermissible. Gary Fontaine Bell seeks review of Bell v. State, 33 So.3d 724 (Fla. 1st DCA 2010), in which the First District Court of Appeal affirmed Bell’s convictions and sentences for lewd and lascivious molestation on a victim under twelve years of age by an offender eighteen years of age or older and for failure to appear. The First District addressed, inter alia, the following statement made by the prosecutor during closing argument in regard to the victim’s age, an element of the molestation charge: “[S]o without any evidence contradicting [the State’s evidence,] the State has proven to you beyond a reasonable doubt the first element of the charge.” Bell, 33 So.3d at 726 (emphasis omitted). The First District held that because the victim’s age “was not an issue which only [Bell] was capable of refuting, [the prosecutor’s] comment could not be construed as a comment on [Bell’s] right to remain silent.” Id. at 727.

The First District’s decision expressly and directly conflicts with Shelton v. State, 654 So.2d 1295, 1296 (Fla. 4th DCA 1995), in which the Fourth District addressed a similar prosecutorial comment on the lack of evidence contradicting an element of the crime of sale of cocaine: “But is there anything showing that [the defendant] didn’t make that sale? He was there.” The Fourth District held that the comment was improper because “it could have been interpreted by the jury as a comment on the defendant’s failure to testify.” Id. at 1297. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

We agree with the First District that the prosecutor’s comment did not constitute an improper comment on Bell’s right to remain silent. The statement concerned an issue that witnesses other than Bell could have refuted. We determine, however, that the First District erred in holding that a second comment — which implicitly referenced Bell’s failure to testify — likewise did not constitute an improper comment on Bell’s right to remain silent. Moreover, we determine that two additional comments challenged by Bell in the First District, but not expressly addressed by that court, constitute improper burden shifting. We nonetheless conclude that objections to the improper comments were not preserved and that the comments did not constitute fundamental error and thus do not require reversal. We also reject an unpreserved argument with respect to the prosecutor’s voir dire questions. Accordingly, we approve the result of the First District’s decision affirming Bell’s convictions and sentences.

I. BACKGROUND

Bell was charged by amended information with one count of lewd and lascivious molestation on a victim under twelve years of age by an offender eighteen years of age or older and one count of failing to appear at a hearing held on August 27, 2007. Bell pleaded not guilty to both charges and moved to have the charges severed. The trial court denied Bell’s motion, and the case proceeded to a jury trial. The jury convicted Bell of both counts as charged. The trial court sentenced Bell to ten years in prison for the molestation charge and to a concurrent five-year sentence for his failure to appear, followed by five years’ probation. The trial court also designated Bell as a sexual predator.

During voir dire, the prosecutor asked the jury panel the following questions: “Now, would anyone just right off the bat tell me that if all I have is a[sic] word of a child to evaluate as the evidence, that that’s not enough; I would need more?”; “Without hearing any other thing about the case, could you tell me right now that the testimony of a child alone would be insufficient for you?”; and “[I]f you heard the testimony of a child telling what happened and there were no other eyewitnesses, would that not be enough for you under any circumstances?”

Bell objected to these questions at the close of the State’s voir dire and moved for a new panel, arguing that the prosecutor’s questions were simply “a backhanded way” of asking prospective jurors to “promise to come back with a guilty verdict if we have a child saying he did it.” The trial court denied Bell’s request, but told Bell to “[fjeel free to rehabilitate as you see fit.” Although Bell stated on the morning of the trial that he “continued to renew [his] objections to the Court’s denial of the various pretrial motions that [he] filed,” Bell failed to renew his specific objection to the State’s voir dire.

During trial, the State presented evidence regarding the molestation charge through the testimony of both the victim and the victim’s mother. In addition, the State presented portions of a videotaped interview of the victim conducted by a case coordinator from the Gulf Coast Kids House, a child advocacy center composed of representatives from various agencies involved in the investigation and prosecution of child abuse cases. The testimony of the victim’s mother and the taped interview of the victim — taken shortly after the ■victim first reported the abuse to her mother — corroborated the essential facts of the victim’s testimony that: while Bell was married to the victim’s mother several years earlier, he had molested the victim on multiple occasions while her mother was at work and the victim’s sister was playing outside; and on at least one occasion, Bell had placed a ring on the victim’s finger prior to molesting her and told the victim that she was now his wife.

Regarding the charge of failure to appear, the State presented the testimony of the Escambia County Clerk of Court, a deputy with the Escambia County Sheriffs Office, and a prisoner transport officer for U.S. Transport to establish that Bell was not present at multiple court dates between August and December 2007 — including the August 27 hearing — and that Bell was discovered in Las Vegas, Nevada, in December 2007. Bell did not testify in his own defense, but he presented the testimony of his mother and sister in an attempt to discredit the testimony of the victim and her mother.

During initial closing argument, the prosecutor made several statements that Bell challenged on appeal. Specifically, on appeal Bell challenged the following comments, emphasizing the underlined statements.

As to count 1 the State must prove 2 elements beyond and to the exclusion of every reasonable doubt in order for you to convict the defendant. The first element is that [the victim] was under the age of 12. The evidence that we presented that was the testimony of her mother who testified as to her date of birth and importantly the testimony of [the victim] who you obviously could tell she was a young girl and told [you] her date of birth was 6/11/97[] so without any evidence contradicting that the State has proven to you beyond a reasonable doubt the first element of the charge.
The second element is that Gary Bell intentionally touched in a lewd or lascivious manner the genitals, genital area or clothing covering the genitals or clothing covering the genital area of [the victim]. Now the evidence we have presented to prove that is of course the testimony of [the victim].
In cases like this, it is always a one-person’s word against another. In these particular cases—

Bell’s counsel objected at this point, arguing that the prosecutor should be “talking about this case, not talking about all the cases.” The trial court sustained the objection, and the State continued:

In this particular case it is the word of [the victim] against the plea of not guilty that Gary Bell has entered. Let’s talk about [the victim]. When you are evaluating whether someone is telling the truth you take a step back from their words. You saw [the victim]. You heard what she said. You saw her demeanor. You saw how she communicated. You could tell a little bit about the emotion she was feeling. You could hear her voice. You saw the looks on her face. That’s some information....
What were the circumstances when [the victim] first told this information? Well the circumstances were she was living with her mom and her siblings and her new stepdad. That she felt safe. That it was a happy home environment and that she told her mom.
Take a step back from that. Why would she be saying this today? Is there any reason why she would be making it up? Does she have any motivation to want to get Gary Bell in trouble or to unjustly accuse him? What’s going on today, what was going on a year and 4 months ago? Whatever was going on had nothing to do with him. He was out of the picture. He wasn’t—had no part in her life. He wasn’t a player. There was nothing going on with her mom and him. She moved on, married another man, had another baby. They moved on with their life.
So if you are looking for a reason to not believe [the victim] there isn’t one. Because there is no evidence that she would have made this up at this particular time under these particular circumstances. And that’s the consideration you should make in deciding whether or not her testimony is credible.

The State concluded its argument by stating:

This is a very important day for the defendant no doubt.
This is also a very important day for [the victim], her family and the people of the State of Florida who I represent. And we are asking you if you feel the evidence has proved the charges beyond and to exclusion of a reasonable doubt that you follow the law and you hold the defendant responsible for the crimes he committed and you reflect so in your verdict of guilty as charged.

After the State’s initial closing argument, Bell moved for a mistrial, arguing that comments 3 and 4 were an attempt to lessen the State’s burden of proof and improperly referred to Bell’s right to remain silent. Bell argued that the appropriate standard is “whether or not [the victim’s] testimony is believable beyond a reasonable doubt. It’s not which one do you believe.” The trial court denied Bell’s motion, and the defense presented its closing argument.

Regarding the failure to appear charge, in the closing argument the defense contended that Bell had unintentionally missed his August 27, 2007, court date and that Bell thereafter fled town “out of fear upon realizing that he had missed court.” The defense claimed that Bell had therefore not left town based on his “consciousness of guilt” — as argued by the State— but rather had fled “because he was scared to death” after missing his August 27 court date.

The State presented rebuttal closing argument. On appeal, Bell challenged the following portions thereof and again emphasized the underlined comments.

Now, remember, we are in a court of law. We make decisions and findings of fact based on evidence. What the attorneys say standing up before you is not evidence. It may be argument of what the evidence showed. It may be trying to point out things that were important. It may be discussing credibility of a witness. We are not allowed [to] testify.
For example, I can’t stand up here and say the reason that Gary Bell wasn’t in court is because he knowingly and intentionally didn’t want to be here, he was scared and he ran off. I can’t say that because I am not a witness and that’s not evidence. Well, by the same token the defense attorney can’t stand up here and tell you the reason Gary Bell wasn’t in court is because he was scared and he took off after he missed court because he was scared because he missed court. Really? Well, did you hear any testimony, any evidence that supports that statement? Because if you didn’t, that’s not evidence and it should not be considered by you. Because that’s why we are here for you to evaluate evidence.

The prosecutor then stated:

Unlike television this wasn’t very glamorous and it didn’t take that long, but it is exceedingly important because this is our community and you are sitting as a jury of the defendant’s peers. And not only is the defendant depending on you but so are the people of the State of Florida. I know you have been very patient in listening to the evidence today and I know that you have been very attentive in listening to me now and I have every confidence that you will listen to the Court and will follow the law.

Bell’s counsel objected, arguing that “[the prosecutor’s] confidence is not appropriate. I object. She is not testifying.” The trial court sustained Bell’s objection and the prosecutor concluded her closing argument.

On appeal to the First District, in addition to arguing that the trial court erred in failing to grant a mistrial based on the prosecutor’s impermissible comments during closing argument, Bell argued that the trial court abused its discretion in failing to grant a new jury panel based on the prosecutor’s comments during voir dire and erred in failing to sever the failure to appear charge. The First District rejected without discussion Bell’s voir dire argument and held that the trial court did not err in denying Bell’s motion to sever the charges. Bell, 33 So.3d at 725-26.

Regarding the closing argument comments, Bell contended that comments 1 through 7 were not only fairly susceptible of being interpreted as comments on Bell’s right to remain silent but also impermissi-bly shifted the State’s burden of proof to Bell. The First District specifically addressed Bell’s challenge to only two of the comments — comments 1 and 3. The First District determined that because both comments concerned issues that witnesses other than Bell were capable of refuting, neither comment could be construed as a comment on Bell’s right to remain silent. Id. at 726-27. Without discussing the additional closing argument comments or Bell’s alternative burden-shifting argument, the First District affirmed Bell’s convictions and sentences.

In the analysis that follows, we resolve the conflict between Bell and Shelton by concluding that the First District did not err in holding that because comment 1 concerned an issue that the witnesses other than Bell could have refuted, comment 1 was not susceptible of being construed as a comment on Bell’s right to remain silent. We then explain why the First District erred in holding that comment B was likewise not improper. We further explain why comments 2 and 4 — not expressly discussed by the First District in its opinion — were improper under the alternative burden-shifting argument raised by Bell. We conclude, however, that no objections to the improper comments were properly preserved and that the improper comments did not result in fundamental error. Finally, we address and reject Bell’s voir dire challenge.,

II. ANALYSIS

A. Closing Argument Comments

A defendant has the constitutional right to decline to testify against himself in a criminal proceeding. See U.S. Const, amend. V; art. I, § 9, Fla. Const. In furtherance of this right, we have consistently held that “any comment on, or which is fairly susceptible of being interpreted as referring to, a defendant’s failure to testify is error and is strongly discouraged.” Rodriguez v. State, 753 So.2d 29, 37 (Fla.2000) (quoting State v. Marshall, 476 So.2d 150, 153 (Fla.1985)); see also Fla. R.Crim. P. 3.250 (prohibiting prosecuting attorneys from commenting before the jury or court on defendant’s failure to testify on his or her own behalf). “[Wjhere the evidence is uncontradieted on a point that only the defendant can contradict, a comment on the failure to contradict the evidence becomes an impermissible comment on the failure of the defendant to testify.” Rodriguez, 753 So.2d at 38.

Similarly, “the State may not comment on a defendant’s failure to mount a defense because doing so could lead the jury to erroneously conclude that the defendant has the burden of doing so.” Id. (citing Jackson v. State, 575 So.2d 181, 188 (Fla.1991)). Such comments run afoul of due process, which “requires the state to prove every element of a crime beyond a reasonable doubt” and establishes “that a defendant has no obligation to present witnesses.” Jackson, 575 So.2d at 188.

In this case, the First District expressly considered two comments challenged by Bell and determined that neither comment was fairly susceptible to being interpreted as a comment on Bell’s right to remain silent. The first of the comments — comment 1 — concerned the general lack of evidence presented by the defense regarding the victim’s age, an element of the molestation charge. The prosecutor argued that “without any evidence contradicting [the State’s evidence,] the State has proven to you beyond a reasonable doubt the first element of the charge.” Bell, 33 So.3d at 726 (emphasis omitted). The First District held that because the victim’s age “was not an issue which only [Bell] was capable of refuting, this comment could not be construed as a comment on [Bell’s] right to remain silent.” Id. at 727. We agree.

Bell’s testimony was not the exclusive means by which the defense could have challenged the State’s evidence regarding the victim’s age. Because the prosecutor’s comment highlighted the lack of contradictory evidence regarding an element of one of the charges, as opposed to the absence of Bell’s individual testimony specifically, we conclude that the comment was not fairly susceptible of being interpreted as a comment on Bell’s right to remain silent. See Rodriguez, 753 So.2d at 38. We, accordingly, disapprove Shelton to the extent that it conflicts with our holding. Where the evidence is uncontra-dicted on a point that witnesses other than the defendant can contradict, a comment on the failure to contradict the evidence is not an impermissible comment on the failure of the defendant to testify.

Nor does comment 1 constitute improper burden shifting. The prosecutor specifically stated that the State carried the burden of proving the victim’s age beyond a reasonable doubt. “[A] prosecuting attorney may comment on the jury’s duty to analyze and evaluate the evidence and state his or her contention relative to what conclusions may be drawn from the evidence.” Evans v. State, 838 So.2d 1090, 1094 (Fla.2002). When considered in context, the prosecutor’s comment is properly understood as a statement on the jury’s duty to analyze the evidence presented at trial followed by the prosecutor’s argument regarding what conclusion the jury should reach from the evidence. We therefore conclude that comment 1 was not improper.

The First District also expressly addressed comment 3, that “[i]n this particular case it is the word of [the victim] against the plea of not guilty that [Bell] entered.” Bell, 33 So.3d at 726 (emphasis omitted). The First District determined that when considered in context, the challenged comment was part of an argument “that no evidence had been offered to suggest the victim had a motive to lie.” Id. at 727. The First District held that because “[witnesses other than [Bell] could have been called to testify regarding the victim’s alleged motive to he, ... the prosecutor’s comment is not fairly susceptible to being interpreted as an erroneous comment on [Bell’s] right to remain silent.” Id. We disagree.

By asserting that Bell’s not guilty plea constituted the sum of the evidence in support of his innocence, the prosecutor impermissibly highlighted the fact that Bell did not testify on his own behalf. See Smith v. State, 358 So.2d 1137, 1137-38 (Fla. 3d DCA 1978) (holding that prosecutor’s comment stating that the “basic issue” in the case was whether the jury believed the State’s witness or the defendant constituted improper comment on the defendant’s failure to testify in his own behalf). The prosecutor’s comment was fairly susceptible of being interpreted as a comment on Bell’s right to remain silent and was therefore error. See id.; see also Rodriguez, 753 So.2d at 37.

Comment 2—that “[i]n cases like this, it is always a one-person’s word against another”—was also improper. As in comment 3, comment 2 highlights the fact that while the victim testified, Bell did not. We therefore determine that comment 2 was fairly susceptible of being interpreted as a comment on Bell’s right to remain silent. See Smith, 358 So.2d at 1137-38; see also Rodriguez, 753 So.2d at 37.

We also find error in comment 4 that “if you are looking for a reason to not believe [the victim] there isn’t one. Because there is no evidence that she would have made this up at this particular time under these particular circumstances.” Although this comment does not directly implicate Bell’s failure to testify, it is nonetheless improper. By stating that “there is no evidence” to contradict the victim’s testimony, the prosecutor highlighted Bell’s failure to present any evidence impeaching the State’s witness. The prosecutor’s comment thereby implied that Bell had a burden of proof regarding the witness’s credibility, and unlike in comment 1, the prosecutor did not correct any false impression by reminding the jury that the State at all times retains the burden of proof. Because comment 4 could have led the jury to erroneously believe that Bell had the burden of presenting such evidence, it was improper. See Rodriguez, 753 So.2d at 38; see also Jackson, 575 So.2d at 188.

We determine that none of the remaining comments during closing argument were improper. In comment 5, the prosecutor exhorted the jury: “[I]f you feel the evidence has proved the charges beyond and to exclusion of a reasonable doubt[, then] follow the law and ... hold the defendant responsible for the crimes he committed and ... reflect so in your verdict of guilty as charged.” A prosecutor’s comment “is not erroneous because the prosecutor was simply advising the jury to follow the law.” Rodriguez v. State, 919 So.2d 1252, 1283 (Fla.2005). For the same reason, comment 7 — in which the prosecutor told the jury, “I know you have been very attentive in listening to me now and I have every confidence that you will listen to the Court and will follow the law” — was not improper. See id.

Additionally, although comment 6 — relating to Bell’s absconding — specifically implicates Bell’s failure to produce certain evidence at trial, it was not improper. Our case law recognizes an exception to the “fairly susceptible” test for comments that constitute an “invited response” to a theory argued by the defense. Rodriguez, 753 So.2d at 39. We have held, for example, that

the prosecutor’s statement to the jury that “[y]ou haven’t ... heard any evidence that [the defendant] had any legal papers in the cell with him” was a proper rebuttal to the defense attorney’s statement in closing that an adverse witness could have had access to and based his testimony on the defendant’s “legal papers.”

Id. (alterations in original) (quoting Dufour v. State, 495 So.2d 154, 160 (Fla.1986)); see also Poole v. State, 997 So.2d 382, 390 (Fla.2008) (holding that a prosecutor’s statement “that there was no evidence ... that someone else inflicted the injuries on the victims” was invited response to defense counsel’s argument that the defendant “acknowledged that he committed the crimes of sexual battery, robbery, and burglary but denied that he was the person who inflicted the injuries on” the victims).

Here, defense counsel argued during closing argument that Bell did not have the requisite intent to support a conviction for failure to appear at the August 27 hearing. The defense claimed that Bell had unintentionally missed the August 27 hearing and had thereafter left town “out of fear upon realizing that he had missed court.” During rebuttal closing argument, the prosecutor responded that

the defense attorney can’t stand up here and tell you the reason Gary Bell wasn’t in court is because he was scared and he took off after he missed court because he was scared because he missed court. Really? Well, did you hear any testimony, any evidence that supports that statement? Because if you didn’t, that’s not evidence and it should not be considered by you.

Because the prosecutor’s comment was a direct rebuttal to the defense attorney’s argument, it falls within the “invited response” exception to the fairly susceptible test and was therefore not improper.

Having considered the totality of the prosecutor’s closing argument, we now examine whether the improper comments — comments 2, 3, and 4 — require reversal. Because Bell failed to preserve an objection to any of the comments and the comments do not cumulatively constitute fundamental error, Bell is not entitled to relief.

Bell’s contemporaneous objection to comment 2 was presented on a legal basis other than that which he now argues on appeal. His objection therefore failed to preserve the issue for appeal. See Aills v. Boemi, 29 So.3d 1105, 1108 (Fla.2010) (“In order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection ... below.”) (quoting Harrell v. State, 894 So.2d 935, 940 (Fla.2005)). Moreover, although Bell moved for a mistrial on the basis of comments 3 and 4, Bell failed to raise a contemporaneous objection to either comment and thus failed to preserve a challenge to either comment for appeal. Scott v. State, 66 So.3d 923, 929 (Fla.2011) (holding that a motion for mistrial raised after the prosecutor’s closing argument is insufficient to preserve the issue of improper prosecutorial argument for appeal where the defendant did not also contemporaneously object to the alleged error). Accordingly, we review the challenged comments for fundamental error. See id.; see also Aills, 29 So.3d at 1109.

Fundamental error is that which “reaches down into the validity of the trial such that a guilty verdict ... could not have been obtained without the assistance of the alleged error.” Wade v. State, 41 So.3d 857, 868 (Fla.2010). We determine that the cumulative effect of the improper closing argument comments did not deprive Bell of a fair trial. See Card v. State, 803 So.2d 613, 622 (Fla.2001) (“[T]he Court examines the totality of the errors in the closing argument and determines whether the cumulative effect of the numerous improprieties deprived the defendant of a fair [trial].”). The victim’s testimony at trial was corroborated in detail by the victim’s mother, who testified regarding what the victim had told her nearly two years before. The victim’s testimony was further corroborated by the videotaped interview taken of the victim by an independent child abuse case worker shortly after the victim first revealed the molestation. Moreover, both the trial court and the prosecutor properly told the jury that the attorney’s arguments at closing were not to be considered as evidence, and the jury was properly instructed regarding the legal standard that the State must meet to achieve a conviction. Based on the record, we determine that the prosecutor’s improper comments did not affect Bell’s trial such that a guilty verdict could not have been obtained in their absence. See Wade, 41 So.3d at 868.

B. Voir Dire Comments

Bell also argues that the First District erred in rejecting his argument that the prosecutor’s questions during voir dire were used to “pre-condition” the jury to return a guilty verdict and impermissibly referred to his right to remain silent. Specifically, Bell challenges the prosecutor’s line of questioning asking: “[W]ould anyone just right off the bat tell me that if all I have is a [sic] word of a child to evaluate as the evidence, that that’s not enough; I would need more?”; “Without hearing any other thing about the case, could you tell me right now that the testimony of a child alone would be insufficient for you?”; and “[I]f you heard the testimony of a child telling what happened and there were no other eyewitnesses, would that not be enough for you under any circumstances?”

Bell’s challenge to the prosecutor’s voir dire was not preserved for appeal. Although Bell objected to the prosecutor’s voir dire, he failed to renew his objection prior to the jury being sworn. See Joiner v. State, 618 So.2d 174, 176 (Fla.1993) (holding that to preserve a contemporaneous objection to voir dire, a defendant must renew the objection prior to the jury being sworn or accept the jury subject to the specific prior objection in order to “apprise[] the trial judge that [the defendant] still believed reversible error had occurred”); Barnette v. State, 768 So.2d 1246, 1247 (Fla. 5th DCA 2000) (“[T]he appellant did not properly preserve this issue for appellate review because he failed to renew his objection and motion for mistrial before the jury was sworn.”). We therefore review the challenged questions for fundamental error. Mendoza v. State, 964 So.2d 121, 131 (Fla.2007) (unpre-served challenge to voir dire comments is reviewed for fundamental error). We conclude that the voir dire questions do not constitute error, much less fundamental error.

To the extent Bell argues that the prosecutor’s questions impermissibly referred to his right to remain silent, we reject Bell’s claim. We have previously concluded that a prosecutor’s voir dire questions exploring prospective jurors’ predisposition against a certain kind of witness did not constitute an impermissible comment on the defendant’s right to testify. See Pope v. State, 679 So.2d 710 (Fla.1996). In Pope, the prosecutor asked the jury panel:

[Assuming someone takes the stand and they’re testifying and they admit to using alcohol and maybe using a lot of alcohol, or there’s testimony about someone having used alcohol, would you just sort of automatically become prejudiced towards that person to the point that you would form an opinion about their truthfulness or their guilt or anything of that nature?

Id. at 715. We concluded that “the state’s comment was not susceptible to being construed as a comment on Pope’s right to testify” because the question did “not focus on this defendant,” but instead “related to any witness who might take the stand and admit to the consumption of alcohol and whether the juror would find that witness believable.” Id. Similarly, a prosecutor’s voir dire inquiry into whether any prospective juror “couldn’t find the defendant guilty ... unless there was an eyewitness, other than the victim” is not an impermissible comment on the defendant’s right to remain silent. Barnette, 768 So.2d at 1246-47.

The voir dire comments at issue here are similar to those upheld in Pope and Barnette. The prosecutor’s comments were designed to ascertain whether any potential juror might be inclined to discount the testimony of a witness simply because the witness was a child. Because the panel had previously been informed of the charges against Bell, the State’s comments were most reasonably understood as referring to the victim’s testimony. The prosecutor neither implicitly nor explicitly referred to any potential evidence to be presented by the defense. Given this context, the prosecutor’s comments were not fairly susceptible of being interpreted as referring to Bell’s failure to testify. See Pope, 679 So.2d at 715; Barnette, 768 So.2d at 1246-47.

Additionally, to the extent Bell argues that the prosecutor’s voir dire comments preconditioned the jurors to convict Bell, we reject his argument. Although a prosecutor may not interrogate a prospective juror “as to his attitude toward a particular witness who is expected to testify in the case, ... especially when [the juror] knows in advance that the prosecution has only the one primary witness to prove its case,” this prohibition extends only to “question[s of] prospective jurors as to the kind of verdict they would render under any given state of facts or circumstances.” Smith v. State, 253 So.2d 465, 470-71 (Fla. 1st DCA 1971) (holding that a prosecutor’s voir dire question asking whether jurors “[w]ould convict on the testimony of a person who has been granted immunity if the State [p]roves this case beyond a reasonable doubt” was improper) (emphasis omitted); see also Dicks v. State, 83 Fla. 717, 93 So. 137, 138 (1922) (holding that the trial court properly sustained an objection to hypothetical voir dire questions “containing what purported] to be the testimony subsequently to be introduced and eliciting ... a reply as to whether [a juror] would acquit or convict on such testimony”); Renney v. State, 543 So.2d 420, 421 (Fla. 5th DCA 1989) (holding that prosecutor’s request that jury commit to finding of guilt “if we prove every element of the crime, but don’t prove one particular fact” was improper).

Here, the prosecutor did not ask prospective jurors to commit to a specific vote. Instead, the prosecutor asked whether any juror would be unable to evaluate the testimony of a child witness without bias or prejudice based on the witness’s age. Rather than seeking to discover how potential jurors would vote based on specific testimony, the prosecutor sought to ascertain whether any prospective juror carried an underlying distrust of child witnesses. The prosecutor’s questions were therefore within the State’s right “to ascertain latent or concealed prejudgments by prospective jurors.” Stano v. State, 473 So.2d 1282, 1285 (Fla.1985) (“The test for determining a juror’s competency is whether that juror can lay aside any prejudice or bias and decide the case solely on the evidence presented and the instructions given.”). Accordingly, we reject Bell’s challenge to the prosecutor’s voir dire questions.

III. CONCLUSION

Bell failed to properly preserve an objection to any of the challenged comments made by the prosecutor. And the improper comments made by the prosecutor during closing argument did not constitute fundamental error. Accordingly, we approve the First District’s affirmance of Bell’s convictions and sentences.

It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur.

      . The prosecutor’s summary of the evidence on this fact is incorrect. Both the victim and her mother testified that the victim was born on June 20, 1997.

      . The First District’s declaration that comment 3 was "objected to contemporaneously, and thus, the issue was properly preserved,” Bell, 33 So.3d at 726, is not supported by the record.


text:
    Gregory Alan KOKAL, Appellant, v. STATE of Florida, Appellee.
    No. SC12-1785.
    Supreme Court of Florida.
    Feb. 7, 2013.

      Linda McDermott of McClain & McDer-mott, P.A., Estero, FL, for Appellant.
    Pamela Jo Bondi, Attorney General and Stephen Richard White, Assistant Attorney General, Tallahassee, FL, for Appel-lee.
   PER CURIAM.

Affirmed. See Walton v. State, 77 So.3d 639 (Fla.2011).

It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur.


text:
    Debra BUTTRICK, Appellant, v. BY THE SEA RESORTS, INC. and Summit Claims Management/Claims Center, Appellees.
    No. 1D12-3384.
    District Court of Appeal of Florida, First District.
    Feb. 5, 2013.

      Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
    Kimberly J. Fernandes of Kelley, Kro-nenberg, Gilmartin, Fichtel, Wander, Bam-das, Eskalyo & Dunbrack, P.A., Tallahassee, for Appellees.
   PER CURIAM.

Debra Buttrick, Claimant, appeals for a second time the Judge of Compensation Claims’ (JCC’s) denial of her claim for permanent total disability (PTD) benefits, as well as penalties, interest, costs, and attorney’s fees. In Buttrick v. By The Sea Resorts, 84 So.3d 476 (Fla. 1st DCA 2012), we reversed and remanded this matter “[b]ecause the JCC failed to make a finding as to whether Claimant achieved maximum medical improvement (MMI), [making] meaningful appellate review ... impossible.” Because the JCC once again failed to clarify Claimant’s MMI status, we again reverse and remand for further proceedings.

In the order under review, the JCC found “with respect based on the DCA’s directive to provide clarification, I specifically and expressly find that the Claimant reached statutory MMI on November 6, 2009, based on the stipulation of the parties as announced on and supported by the record.” (emphasis added). The only relevance of the November 6 date is that on that date Claimant exhausted her entitlement to temporary benefits.

The date of MMI is defined as “the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability.” § 440.02(10), Fla. Stat. (2007). Whether MMI has been reached is a medical question that “should ordinarily be based upon a clear, explicit expression of that fact set forth in medical records or medical opinion testimony.” Kilbourne & Sons v. Kilbourne, 677 So.2d 855, 859 (Fla. 1st DCA 1995). The JCC’s reference to “statutory MMI” has no place in a determination of whether a claimant is entitled to PTD benefits. Indeed, in Matrix Employee Leasing v. Hadley, 78 So.3d 621, 626 n. 6 (Fla. 1st DCA 2011) (en banc), this court made it clear that “statutory MMI,” which presumably refers to the date a claimant exhausts his or her right to temporary benefits, “has nothing to do with the employee’s ultimate medical condition or prognosis.”

A JCC is not bound by the parties’ stipulation regarding MMI if it is not supported by the record. See Fla. Power Corp. v. Hamilton, 657 So.2d 1260, 1264 (Fla. 1st DCA 1995) (“A [JCC] ought not accept a stipulation as to a date of [MMI], if the evidence is at variance with the stipulation....”). “[I]t is the obligation of the [JCC], as trier of fact, to determine the date of [MMI].” Wright v. Golf Drive Residence, Inc., 412 So.2d 884, 888 (Fla. 1st DCA 1982).

The record contains no medical evidence that Claimant reached MMI on November 6, 2009. On remand, the JCC is directed once again to clarify Claimant’s MMI status based on expert medical testimony. If she determines that Claimant has reached MMI, she should first determine whether Claimant has one of the statutorily enumerated conditions that presumptively qualify her for PTD disability benefits. See § 440.15(1)(b)1.-5., Fla. Stat. (2007). If Claimant does not have a statutorily enumerated condition, the JCC should then determine whether Claimant has established entitlement to PTD benefits based on the three alternative methods set out in Blake v. Merck & Co., 43 So.3d 882, 888 (Fla. 1st DCA 2010) (explaining alternative methods of proving entitlement to PTD benefits where claimant does not have statutorily listed injury). If, on the other hand, the JCC finds Claimant has not reached MMI, but because she has exhausted her entitlement to temporary benefits, the JCC should determine whether Claimant will be PTD when she does reach MMI. See Hadley, 78 So.3d at 624-25.

Claimant also challenges the JCC’s finding that she failed to conduct a good faith job search. Analysis of this issue is premature because no date for MMI has been ascertained. It is an employee’s permanent limitations and restrictions at the time MMI is reached that factor into whether he or she is “able to engage in at least sedentary employment, within a 50-mile radius of the employee’s residence.” § 440.15(1), Fla. Stat. (2007). See also Hernandez v. Geo Group, Inc., 46 So.3d 1123, 1125 (Fla. 1st DCA 2010) (modifying and quashing denial of future PTD benefits where injured employee had not reached MMI and permanent work restrictions could “not be accurately ascertained until MMI”).

Accordingly, this matter is REVERSED and REMANDED for further proceedings consistent with this opinion.

VAN NORTWICK, ROWE, and MAKAR, JJ., concur.


author: COHEN, J.

text:
    Mary F. DAVIS, Appellant, v. Steven H. DAVIS, Appellee.
    No. 5D11-1634.
    District Court of Appeal of Florida, Fifth District.
    Feb. 8, 2013.

      Sean P. Sheppard of J. Scott Gunn, P.A., Ft. Lauderdale, for Appellant.
    Steven H. Davis, Rotonda West, pro se.
   COHEN, J.

Mary F. Davis (“Former Wife”) appeals from the trial court’s final judgment dissolving her twenty-one-year marriage to Steven H. Davis (“Former Husband”), awarding him majority time-sharing of their minor child, and equitably dividing the marital assets. Former Wife chai-lenges the admission of evidence at trial relating to various Department of Children and Families (“DCF”) investigations of the family, the disposition of certain real property in the equitable distribution scheme, and the denial of her request for attorney’s fees.

Due to Former Husband’s military career, the family moved frequently before settling in Florida in 2008. In Florida, DCF investigated the family nine times over a period of three years. At trial, the court admitted into evidence thirty pages of DCF investigative summaries during Former Husband’s testimony. The documents were comprised of numerous hearsay statements of various DCF investigators based on their observations and interpretations of statements given by the parties, the child, and third parties. Former Wife timely objected on hearsay, authentication and foundation grounds, but was overruled. In the final judgment, the trial court referenced the DCF summaries to explain that it was struck by the continuing theme that Former Wife’s allegations underlying the investigations were not supported by the evidence. The trial court further noted that a DCF investigator had observed in a report that Former Wife was hindering Former Husband’s attempts to rebuild a relationship with the child. Based on these and other findings, the trial court awarded Former Husband majority time-sharing after considering the factors set forth in section 61.13(3), Florida Statutes (2010).

On review, we agree the trial court erred in admitting the investigative summaries. Former Husband failed to call the authors of the reports to testify, or to otherwise establish any predicate for their admission. Cf. Reichenberg v. Davis, 846 So.2d 1233, 1234 (Fla. 5th DCA 2003) (reviewing admissibility of DCF reports). Nevertheless, the trial court’s error does not require reversal. See Forester v. Norman Roger Jewell & Brooks Int’l, Inc., 610 So.2d 1369, 1372 (Fla. 1st DCA 1992) (“Only when it appears that such errors injuriously affect the substantial rights of the complaining party will a judgment be reversed.”); see also C.A. v. Dep’t of Children & Families, 958 So.2d 554, 557 (Fla. 4th DCA 2007) (explaining error is harmless where there is no reasonable possibility error contributed to the verdict). There was ample evidence to support the trial court’s findings, including Former Husband’s testimony. Accordingly, the investigative summaries were merely cumulative, and any error in their admission was harmless. Cf. C.J. v. Dep’t of Children & Families, 756 So.2d 1108, 1110 (Fla. 3d DCA 2000) (holding trial court’s error in making findings based upon inadmissible hearsay report and deposition was harmless because report was cumulative and critical elements of deposition were testified to by another witness).

The trial court reversibly erred, however, in awarding Former Husband a one-half interest in a condominium located in Virginia. There was no dispute that Former Wife inherited the condominium during the marriage, that it was titled in her mother’s name with Former Wife having a right of survivorship, and that the title was never changed. No marital funds were used to purchase the property and, thus, it constituted a nonmarital asset. See § 61.075(6)(b)2., Fla. Stat. (2010); cf. Pfrengle v. Pfrengle, 976 So.2d 1134, 1136 (Fla. 2d DCA 2008) (finding properties acquired during marriage by former husband’s solely owned companies were marital assets because commingled funds were used to acquire properties).

While Former Husband testified that he contributed to the value of the condominium through repairs and services and that marital funds were used at times to pay the mortgage, the trial court failed to make factual findings to support an enhancement in value award on the non-marital asset. See Martin v. Martin, 923 So.2d 1236, 1239 (Fla. 1st DCA 2006). Further, Former Husband failed to support his testimony with evidence from which the trial court could have extrapolated the requisite findings, other than a few pages of bank records indicating mortgage payments and condominium fees were paid from marital funds. See Robertson v. Robertson, 78 So.3d 76, 77 (Fla. 5th DCA 2012) (stating party seeking entitlement to enhancement in value of nonmarital asset has burden of proof). As Former Husband failed to prove he was entitled to an enhancement award, the nonmarital asset should be removed from the equitable distribution scheme. See Pereboom v. Pereboom, 959 So.2d 1205, 1206 (Fla. 4th DCA 2007) (reversing award in nonmarital asset because party failed to prove an increase in value of the asset).

Lastly, Former Wife retained five attorneys during the course of the litigation. She argues the trial court erred in denying her request for $24,689.26 in attorney’s fees—all related to the fifth attorney’s representation of her in three months’ time—because of the substantial disparity between the incomes of the parties. In evaluating the request for fees, the trial court appears to have based its decision on Former Wife’s ability to draw from her nonmarital bank stocks and on speculation that the parties would be on near-equal footing, as Former Husband was expected to retire a few months after trial.

Instead, the lower court should have evaluated Former Wife’s request for fees based on the parties’ financial resources as of the time of the final judgment. See Derrevere v. Derrevere, 899 So.2d 1152, 1153 (Fla. 4th DCA 2005); Emmel v. Emmel, 671 So.2d 282, 285 (Fla. 5th DCA 1996). While it can be an abuse of discretion to fail to award attorney’s fees where there is a substantial disparity between the parties’ income, the court must consider the “overall relative financial positions and resources of the parties, and not just an isolated factor such as income or earning capacity.” Arena v. Arena, 103 So.3d 1044, 1046 (Fla. 2d DCA 2013) (quotation omitted). On remand, the trial court should reconsider Former Wife’s request for attorney’s fees in light of this Court’s ruling and the applicable factors, articulate the basis for its conclusion, and, if awarded, make the requisite findings as to the reasonableness of the attorney’s fees. See id. at 1046-47; see also Canakaris v. Canakaris, 382 So.2d 1197, 1205 (Fla.1980) (explaining purpose of section 61.16, Florida Statutes, is “to ensure that both parties will have similar ability to secure competent legal counsel.”). The trial court can certainly consider the reasonableness of the fees in the context of Former Wife’s repeated changes of counsel, which no doubt contributed to the accumulation of fees.

Finding no merit to the remaining issue raised, we affirm the final judgment as to the parenting plan, reverse the interest in the condominium awarded to Former Husband, and reverse the denial of Former Wife’s attorney’s fees. We remand Former Wife’s motion for attorney’s fees for reconsideration.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

SAWAYA and LAWSON, JJ., concur.

      . Former Husband’s testimony was corroborated by other evidence, including a report from a Navy investigation, eyewitness testimony, and the trial court’s factual findings based on the testimony of a DCF agent given at a prior hearing involving the same parties. By failing to object, Former Wife waived any argument as to the process by which the trial court effectively took judicial notice of its own records. See Achurra v. Achurra, 80 So.3d 1080, 1082 (Fla. 1st DCA 2012) (finding judicial notice issue unpreserved because counsel failed to object).

      . As of trial. Former Husband earned over $10,000 monthly and Former Wife was unemployed.


author: WOLF, J.

text:
    Kerick VAN TEAMER, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-3491.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2013.

      Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   ON MOTION FOR REHEARING

WOLF, J.

Appellee’s motion for rehearing filed on January 9, 2013, is denied. The court’s opinion filed December 21, 2012, is withdrawn, and the following opinion is substituted for clarification.

Appellant, Kerick Van Teamer, seeks review of the trial court’s denial of his motion to suppress and his subsequent judgment and sentence for felony drug trafficking. We reverse the trial court’s denial of appellant’s motion to suppress and certify conflict with the Fourth District’s opinion Aders v. State, 67 So.3d 368 (Fla. 4th DCA 2011). Because we reverse, it is unnecessary to reach appellant’s other issues raised on appeal.

On June 22, 2010, at about 3:00 p.m., an Escambia County Deputy Sheriff observed appellant driving a bright green Chevy. The deputy “ran” the license plate tag number through the Department of Highway Safety and Motor Vehicles (DHSMV). Upon learning that the plate number was registered to a blue Chevy, the deputy pulled the vehicle over based only on the color inconsistency. Upon interviewing the occupants, the deputy learned that the vehicle had recently been painted, thus explaining the inconsistency. During the stop, however, the deputy smelled marijuana emanating from the car and conducted a search of appellant, his passenger, and the vehicle. Marijuana and crack cocaine were recovered from the vehicle, and about $1,100 in cash was recovered from appellant. Appellant was charged with trafficking in cocaine (between 28-200 grams), possession of marijuana (less than 20 grams), and possession of drug paraphernalia, scales.

Appellant filed a dispositive motion to suppress the results of the stop as an unconstitutional search, arguing that the color inconsistency alone was an insufficient basis to justify an investigatory stop. During the hearing on the motion, the deputy explained that the color inconsistency piqued his interest. He acknowledged that, in his training and experience, he encountered individuals who would switch vehicle plates, and he could not confirm whether the vehicle identification number matched the plates without pulling over the vehicle.

On cross examination, the deputy agreed that the only thing that was out of the ordinary was the inconsistency of the vehicle color from the registration. He acknowledged he observed no other traffic violation, suspicious or furtive behavior, nor was he aware of any reports of stolen vehicles or swapped plates in the area.

The trial court denied the motion and in a later statement of proceedings explained that “because the registration was not consistent with the color of the vehicle,” the officer made an investigatory stop. The court determined that the officer “had a legal right to conduct an investigatory stop when a registration search of the automobile license tag reflected a different color than the observed color of the vehicle.”

Appellant was subsequently tried before a jury, convicted of the three counts, and sentenced to six years’ imprisonment for the trafficking count and time served for the other misdemeanor counts.

On appeal, appellant argues the mere fact that the color of a vehicle does not match the color indicated on motor vehicle registration records does not establish a reasonable, articulable suspicion of criminal activity to support an investigatory stop of a vehicle. He further argues this is particularly true in Florida where there is no legal requirement that a vehicle owner inform the DHSMV of a change in the color of the vehicle. The State argues the color inconsistency, despite being the result of innocent activity, represents the potential illegal activity of making a false application on vehicle registration, a violation of sections 820.06 and 320.061, Florida Statutes. Thus, the State argues this is a sufficient basis for an investigatory stop, as determined by the Fourth District in Aders v. State, 67 So.3d 868 (Fla. 4th DCA 2011).

The appropriate standard of review is summarized in State v. Gandy, 766 So.2d 1234, 1235-36 (Fla. 1st DCA 2000):

A trial court’s ruling on a motion to suppress comes to us clothed with a presumption of correctness, and we must interpret the evidence and reasonable inferences and deductions in a manner most favorable to sustaining that ruling. Johnson v. State, 608 So.2d 4, 9 (Fla.1992), cert. denied, 508 U.S. 919, 113 S.Ct. 2366, 124 L.Ed.2d 273 (1993). In this case, the facts are undisputed and supported by competent substantial evidence. See Caso v. State, 524 So.2d 422 (Fla.), cert. denied, 488 U.S. 870, 109 S.Ct. 178, 102 L.Ed.2d 147 (1988). Accordingly, our review of the trial court’s application of the law to the facts is de novo. See United States v. Harris, 928 F.2d 1113, 1115-16 (11th Cir.1991). In addition, we are constitutionally required to interpret search and seizure issues in conformity with the Fourth Amendment of the United States as interpreted by the United States Supreme Court. See Fla. Const. art. I, § 12; Perez v. State, 620 So.2d 1256 (Fla.1993); Bernie v. State, 524 So.2d 988 (Fla.1988).

The Fourth DCA summarized the law on traffic stops as follows:

The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. “Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ within the meaning of this provision.” Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (citations omitted). Accordingly, the stop must be reasonable for it to comport with the Fourth Amendment. Id. at 810 [116 S.Ct. 1769].
“[T]he decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Id. (citing Delaware v. Prouse, 440 U.S. 648, 659, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977)). “Probable cause exists where the totality of the facts known to the officer at the time would cause a reasonable person to believe that an offense has been committed.” State v. Hebert, 8 So.3d 393, 395 (Fla. 4th DCA 2009) (citing State v. Walker, 991 So.2d 928, 931 (Fla. 2d DCA 2008)). At the very least, an officer must have an articulable and reasonable suspicion that the driver violated, is violating, or is about to violate a traffic law. See United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002); Prouse, 440 U.S. at 654 & n. 11, 661, 663, 99 S.Ct. 1391.

Aders, 67 So.3d at 370 (Fla. 4th DCA 2011). In making a reasonable suspicion inquiry, “ ‘the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.’” U.S. v. Sokolow, 490 U.S. 1, 10, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quoting Illinois v. Gates, 462 U.S. 213, at 243-244, n. 13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). However, an investigatory stop must be predicated on something more than an “inchoate and unparticularized suspicion or ‘hunch.’ ” Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

As a preliminary matter, we acknowledge that any discrepancy between a vehicle’s plates and the registration may legitimately raise a concern that the vehicle is stolen or the plates were swapped from another vehicle. We must, however, weigh that level of concern against a citizen’s right under the Fourth Amendment to travel on the roads free from governmental intrusions. See State v. Diaz, 850 So.2d 435, 439 (Fla.2003) (“The real test is one of reasonableness, which involves balancing the interests of the State with those of the motorist.”). The question before this court, therefore, is whether an inconsistency in color alone is a sufficient basis to support an officer’s articulable and reasonable suspicion that a particular person is committing a crime in the absence of any other suspicious behavior or circumstances to allow a temporary seizure of a person for an investigatory stop.

Changing the color of a vehicle is not illegal, and the State does not require an owner to report the change in color to the DHSMV. See Aders, 67 So.3d at 371. The question then is what degree of suspicion attaches to this particular noncriminal act? In Aders and the cases cited therein, a few courts have concluded that the color inconsistency alone created enough suspicion to justify an investigatory stop.

In Aders, the officer testified that after running the tags and discovering a color discrepancy, he decided to stop the vehicle. The circuit court concluded that the officer was justified in the stop because:

[i]t is reasonable for a law enforcement officer to conclude that a registration plate affixed to a vehicle which differs in color from the vehicle described on the registration information from the Florida Department of Highway Safety, Motor Vehicles Division, even if the make and Model are the same or similar, warrants further investigation.

Id. at 371. The Fourth District affirmed the circuit court on the basis of Smith v. State, 713 N.E.2d 338, 341 (Ind.Ct.App.1999) and Andrews v. State, 289 Ga.App. 679, 658 S.E.2d 126, 127-28 (2008), both cases which found that a color discrepancy in the registration was enough to create an articulable reasonable suspicion that the license plate may have been switched from another vehicle. In Smith, however, the vehicle matched the description of another vehicle known to be involved in gang activity. Smith, 713 N.E.2d at 341 n. 3. The Smith court also failed to acknowledge that Indiana law also does not require an owner to report a change in vehicle color. See U.S. v. Uribe, No. 2:10-cr-17-JMS-CMM, 2011 WL 5088646, at *3 n. 4 (S.D.Ind. Oct. 25, 2011) (declining to follow Smith based on this point). It also appears that no other court besides Aders has relied on either Smith or Andrews for the cited proposition.

In one unpublished opinion from Iowa, a court found that a registration color discrepancy was sufficient to stop a motorcycle because Iowa vehicle registration law does require an accurate description of the vehicle. State v. Thiel, Nos. 01-0029, 1-486, 2001 WL 1448490 (Ct.App.Iowa Nov. 16, 2001).

Typically, where registration color discrepancy is at issue, it is one of several factors that support a reasonable suspicion. See U.S. v. Clarke, 881 F.Supp. 115 (D.Del.1995) (color discrepancy, out-of-state plates, presence in a high crime area, and inconsistency of driver gender combined with the officer’s knowledge that the model was commonly stolen were enough to support an articulable and reasonable suspicion that the driver was in violation of the law); U.S. v. Cooper, 431 Fed.Appx. 399, 402 (6th Cir.2011) (officers had a reasonable suspicion that a vehicle may have been stolen based on registration color discrepancy, the vehicle’s location in an area known for car theft, and officer’s testimony that thieves will purposely put a plate of the same make and model on a stolen vehicle); State v. Paggett, 684 So.2d 1072 (La.Ct.App.1996) (speeding and color discrepancy sufficient for reasonable suspicion of traffic regulation violation); State v. Gonzalez, No. A05-2151, 2007 WL 46029 (Minn.Ct.App. Jan. 9, 2007) (in light of officer’s training and experience, color discrepancy, condition of truck’s interior, deceptive responses, and absence of owner together gave officer reasonable suspicion of drug transportation). In U.S. v. Caro, the court disapproved of the extent of the officer’s VIN search into the passenger compartment after stopping the vehicle for a window tint violation, but acknowledged that the registration color discrepancy in addition to the driver’s inability to recall the owner’s last name was sufficient for the officer to take appropriate steps to ascertain the legal status of the vehicle. 248 F.3d 1240, 1246 (10th Cir.2001). In U.S. v. Rodgers, while reversing the district court’s denial of a suppression motion on other grounds, the court noted that a color discrepancy coupled with a high-crime location provided a “thin basis” for a reasonable suspicion that the car was stolen, in light of the fact that local laws did not require registration to be updated with color changes. 656 F.3d 1023, 1027 (9th Cir.2011).

Other than Aders, Thiel, and Andrews, our review of state and federal caselaw reveals few other cases where the courts considered color discrepancy as the sole factor to support a reasonable suspicion. In Uribe, a federal district court granted a motion to suppress when the evidence on record revealed that the officer had stopped the vehicle solely for a color discrepancy. Given the “totality of the circumstances,” i.e., just one circumstance, there was nothing that would reasonably lead an officer to suspect the particular vehicle may be stolen, and state law did not require an owner to update the registration with a color change. 2011 WL 4538407 at *4. The Uribe court noted a decision from New Hampshire that found it could “not sanction traffic stops for those citizens who simply decide to paint their cars without some particularized suspicion of criminal wrongdoing such as, for example, the theft and subsequent repainting of a vehicle.” Id., quoting State v. O’Neill, 2007 WL 2227131 (N.H.Super.Ct.2007).

In Commonwealth v. Mason, a Virginia circuit court determined that because color disparity alone was not unlawful, “ ‘without some additional indicia of legal wrongdoing’” the facts did not provide a reasonable articulable suspicion that the vehicle or plate may be stolen. 78 Va. Cir. 474, *2 (Cir.Ct.2009) (quoting Moore v. Commonwealth, 49 Va.App. 294, 640 S.E.2d 531, 537 (2007) (Reinstated by 276 Va. 747, 668 S.E.2d 150 (2008))). That court concluded that “Upholding a stop on these facts would permit law enforcement to make a random, suspicionless stop of any car with a color disparity on its registration. The Fourth Amendment does not afford the police such unbridled discretion.” Id. The Virginia Court of Appeals agreed with the circuit court that the officer’s belief that color discrepancies sometimes indicate a stolen vehicle was no more than a hunch in the absence of other circumstances. Commonwealth v. Mason, No. 1956-09-2, 2010 WL 768721 (Va.Ct.App. Mar. 9, 2010).

The somewhat analogous cases involving investigations of “temporary tags” provide us some guidance as to the reasonableness of this particular stop. Several cases have reviewed instances where officers stopped vehicles solely because the vehicle had a temporary license plate tag. While an officer may be aware that people driving with an apparently legal temporary tag may be violating the law by driving on an expired permit or even driving a stolen vehicle, the officer is required to have a “particularized and objective basis for suspecting the particular person stopped of criminal activity.” U.S. v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Otherwise the officer has only a mere inclination or hunch that a tag may be expired or a car stolen. See Bius v. State, 254 Ga.App. 634, 563 S.E.2d 527 (2002) (stopping a car with a temporary tag solely to ascertain whether the driver is complying with vehicle registration laws is not authorized); Berry v. State, 248 Ga.App. 874, 547 S.E.2d 664 (2001) (officer had a mere inclination or hunch that any car with a temporary tag might be stolen); People v. Hernandez, 45 Cal.4th 295, 86 Cal.Rptr.3d 105, 196 P.3d 806 (2008) (An officer who sees a vehicle displaying a temporary tag may not stop the vehicle simply because he believes that such permits are often forged or otherwise invalid; to support a stop the officer must have a reasonable suspicion that the particular permit is invalid) (citing U.S. v. Wilson, 205 F.3d 720 (4th Cir.2000); State v. Childs, 242 Neb. 426, 495 N.W.2d 475 (1993); State v. Aguilar, 141 N.M. 364, 155 P.3d 769 (2007); State v. Chatton, 11 Ohio St.3d 59, 463 N.E.2d 1237 (1984); State v. Butler, 343 S.C. 198, 539 S.E.2d 414 (2000); and State v. Lord, 297 Wis.2d 592, 723 N.W.2d 425 (2006)).

We acknowledge there is a lack of guidance for police officers in this state’s case-law concerning the stopping of a vehicle for innocent behavior on the part of the driver. In State v. Diaz, a case involving a vehicle stop based on an officer’s inability to read the state-issued handwritten expiration date of a temporary tag although the tag appeared to be legally displayed, three justices would have ruled the initial stop illegal and the author of the majority opinion expressed doubt as to the legitimacy of the stop. 850 So.2d 435, 437, 440 (Fla.2003) (“[Djespite the fact that the driver had no control over the legibility of the expiration date, we assume for the purposes of this case that the initial stop by the deputy sheriff was legitimate, albeit based upon a barely justifiable purpose.”).

In Florida, it is legal to repaint a vehicle without reporting the change, creating an inconsistency between the vehicle registration and the vehicle. See Aders, 67 So.3d at 371. While an officer may suspect that people driving a vehicle of an inconsistent color may be violating the law by driving with a swapped tag or even driving a stolen vehicle, the officer is still required to have a “particularized and objective basis for suspecting the particular person stopped of criminal activity.” Cortez, 449 U.S. at 417-18, 101 S.Ct. 690. If we accept the State’s argument, every person who changes the color of their vehicle is continually subject to an investigatory stop so long as the color inconsistency persists, regardless of any other circumstances. The record does not contain any data regarding the prevalence of repainted vehicles registered in the State, but we are hesitant to license an investigatory stop of every person driving a vehicle with an inconsistent color. In the absence of other suspicious behaviors or circumstances, the decision of which inconsistent vehicles to stop would be left wholly to the discretion of the officer. Persons driving on public roads have a right to not have “their travel and privacy interfered with at the unbridled discretion of police officers.” Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1891, 59 L.Ed.2d 660 (1979).

We cannot agree with the Aders court that a color discrepancy alone warrants an investigatory stop and, therefore, certify conflict with the Fourth District’s opinion in Aders v. State, 67 So.3d 368 (Fla. 4th DCA 2011). The final judgment and sentence are reversed, and we remand to the trial court for appellant to be discharged.

REVERSED and REMANDED.

THOMAS and CLARK, JJ„ concur.

      . It is for the Legislature to determine whether inconsistent vehicle colors are sufficiently problematic so as to require owners to report a change in vehicle color.

      . We also reject the State’s post hoc rationalization that color inconsistency may indicate the owner made a false application on the vehicle registration in violation of sections 320.06 and 320.061, Florida Statutes. There is nothing in the record to explain why an owner would make such a false application, particularly given the more probable innocent explanation.


author: KHOUZAM, Judge.

text:
    Jon Robert MUSSER, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-1648.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 2013.

      Howard L. Dimmig, II, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, Judge.

Jon Robert Musser timely appeals the order revoking his probation. We affirm the revocation. But we reverse and remand for entry of a corrected order because the existing order does not conform to the trial court’s oral pronouncement.

The affidavit of violation of probation, as amended, alleged violations of four conditions: condition (5), prohibiting new law violations; condition (6), prohibiting the possession of firearms; condition (16), requiring active participation and successful completion of sex offender treatment; and condition (20), prohibiting the viewing of pornographic material relevant to Mus-ser’s deviant behavior pattern. With respect to condition (5), the affidavit alleged that Musser committed a new law violation by possessing a firearm as a convicted felon. Therefore, two of the four conditions alleged to have been violated were related to the possession of firearms.

At the revocation hearing, the State provided evidence addressing all four conditions. After argument, the trial judge revoked Musser’s probation. In orally pronouncing his findings, the trial judge noted that the revocation was based upon the testimony of Musser’s sex therapist, who described Musser’s poor participation in sex therapy and his admission to watching pornography after being placed on probation. In revoking Musser’s probation, the judge did not address the firearm conditions, but the order of revocation indicates that Musser violated his probation “as outlined in the affidavits of violation of probation.”

It is evident from the record that the trial court did not err in revoking Musser’s probation based on the violations of conditions (16) and (20) as described by Musser’s sex therapist. Accordingly, we affirm the revocation. But because the order of revocation suggests that Musser committed violations which were not addressed in the court’s factual findings, we reverse and remand for the entry of an order consistent with the court’s oral pronouncement. See Henley v. State, — So.3d -(Fla. 3d DCA 2012) (reversing portion of revocation order which incorporated by reference violations in conflict with oral pronouncement).

Affirmed in part, reversed in part, and remanded with instructions.

DAVIS and CRENSHAW, JJ., Concur.


author: SILBERMAN, Chief Judge.

text:
    Carol R. KEMMERER, Appellant, v. KLASS ASSOCIATES, INC., Appellee.
    No. 2D12-2589.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 2013.
    Ashley Drew Graham of Zacur, Graham & Costis, P.A., St. Petersburg, for Appellant.
    William L. Yanger of Yanger Law Group, P.A., Tampa, for Appellee.
   SILBERMAN, Chief Judge.

Carol R. Kemmerer seeks review of the order denying her motion to quash service of process in this action for civil theft, breach of fiduciary duty, and conversion. Kemmerer argues that Klass Associates, Inc., failed to meet its burden of proving that it made substitute service at her usual place of abode. We agree and reverse.

Klass Associates filed its complaint against Kemmerer in December 2011, and a summons for service of process was issued the same day. The process server’s attempts to serve Kemmerer at her Red-ington Beach, Florida, condominium were unsuccessful, and the process server filed a return of non-service that stated as follows:

BUILDING AT GIVEN ADDRESS HAS A DIFFERENT ELEVATOR FOR THE DIFFERENT UNITS. UNIT 300 HAS A CALL BOX FOR ELEVATOR 1. THE LAST NAME IS LISTED ON THE DIRECTORY. THERE HAVE BEEN NUMEROUS ATTEMPTS, NO ANSWER AT THE CALL BOX ON ANY ATTEMPT. I LEFT TWO MESSAGES, NO ONE HAS CALLED ME BACK. UNABLE TO ACCESS THE BUILDING. PER ANOTHER TENANT, THE ONLY WAY TO ACCESS THE UNIT IS IF THE SAME TENANT FROM THE UNIT GIVES U.S. A CODE TO OPEN THE DOOR NEXT TO THE CALL BOX WHICH LEADS TO AN ELEVATOR THAT GOES STRAIGHT INTO THE UNIT. UNABLE TO MAKE CONTACT WITH ANYONE AT UNIT 300.

Klass Associates thereafter sent an alias summons to a process server in Maricopa County, Arizona. That process server filed an affidavit of service of process stating, “I served the above documents on Carol R. Kemmerer on 02/04/2012 at 2:45 PM by serving her boyfriend, Bill Farnsler. Personally at her home address located at 2622 E Kings Ave Phoenix, AZ 85032.”

Kemmerer filed a motion to quash service of process asserting that her home address was the Redington Beach condominium and that substitute service in Phoenix was therefore defective. Kem-merer filed two affidavits in support of her motion. In the first affidavit, Kemmerer stated that, at the time of substitute service, she was living at the Redington Beach address. She stated that she was not living at the Phoenix address on the date of service, that she did not presently live at that address, and that her domicile was in Florida. She further asserted that her home address for the past six years was the Redington Beach address. Kem-merer attached to her affidavit copies of her Florida driver’s license, property appraiser records, and a Pinellas County property tax bill. In the second affidavit, Farnsler stated that the Phoenix address was his address, that Kemmerer was not living at the Phoenix address at the time of substitute service, and that the Phoenix address was not Kemmerer’s current address. He also denied being personally served at that address.

The question on appeal is whether the trial court erred in denying Kemmerer’s motion to quash service of process. This is a question of law that we review de novo. Baker v. Stearns Bank, N.A., 84 So.3d 1122, 1125 (Fla. 2d DCA 2012).

Section 48.031(1)(a), Florida Statutes (2011), allows for substitute service of process on a defendant by leaving copies of the appropriate documents “at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents.” The element of this statute that Kemmerer contested in her motion to quash service of process was that the documents were left at “her usual place of abode.” “ ‘Usual place of abode’ means ‘the place where the defendant is actually living at the time of service.’ ” Cordova v. Jolcover, 942 So.2d 1045, 1046 (Fla. 2d DCA 2006) (quoting Shurman v. Atl. Mortg. & Inv. Corp., 795 So.2d 952, 954 (Fla.2001)). “One has but one usual place of abode.” Id.

In the face of Kemmerer’s motion to quash, Klass Associates had the initial burden of establishing the validity of service as the party invoking the court’s jurisdiction. Baker, 84 So.3d at 1126. Klass Associates relied on a return of service that is undisputedly regular on its face. Therefore, it met its initial burden. See id.

At that point, the burden shifted to Kemmerer to make a prima facie showing by clear and convincing evidence that the substitute service was, in fact, invalid. See id. Kemmerer submitted two affidavits in which she and Farnsler asserted that she was not living at the Arizona address where the documents were purportedly left with Farnsler. By submitting these affidavits, Kemmerer rebutted the return of service and showed that substitute service was not made at her usual place of abode. As a result, she met her burden of proving that service was defective. See Baker, 84 So.3d at 1126; Cordova, 942 So.2d at 1047.

At that point, the burden shifted back to Klass Associates to prove that there was a proper basis for the court to exercise personal jurisdiction over Kemmerer, that is, to prove that the substitute service was valid. See Baker, 84 So.3d at 1126-27. This court has described this burden as requiring further evidence “such as an affidavit or testimony” establishing the usual place of abode. Id. at 1127. In this case, Klass Associates did not file any additional sworn proof or offer testimony at the hearing on the motion to quash. This failure to offer such additional sworn facts requires reversal of the order denying the motion to quash service of process. See id.; Haueter-Herranz v. Romero, 975 So.2d 511, 518 (Fla. 2d DCA 2008); Portfolio Recovery Assocs., LLC v. Gonzalez, 951 So.2d 1037, 1038 (Fla. 3d DCA 2007).

Klass Associates argues that this court should affirm the order denying Kemmerer’s motion to quash because Kemmerer had been residing with Farnsler at the Arizona address for at least six weeks prior to the time of substitute service. Klass Associates asserts that when substitute service was made, Kemmerer was hiding in the residence and refused to come to the door. However, this argument carries no weight because nothing in the limited record provided to this court supports these assertions.

Klass Associates alternatively argues that the affidavit of service filed by the Arizona process server provides sufficient competing evidence. However, the process server’s affidavit does not contain any facts that refute the affidavit evidence submitted by Kemmerer and Farnsler that Kemmerer’s residence was in Florida, not Arizona, and that Kemmerer. was not living at the Arizona address at the time of service. The only relevant reference in the process server’s affidavit is the process server’s conclusory statement that he served Kemmerer by serving Farnsler “at her home address.” But even if the Arizona address was a location where Kem-merer would stay, in the face of her and Farnsler’s affidavits, Klass Associates had to establish that Kemmerer was actually living at the Arizona address at the time of service as her usual place of abode. See Cordova, 942 So.2d at 1046 (“[A]n address is not synonymous with usual place of abode.”).

Klass Associates’ reliance on the Third District’s decision in Robles-Martinez v. Diaz, Reus & Targ, LLP, 88 So. 3d 177 (Fla. 3d DCA 2011), is similarly misplaced. In Robles-Martinez, the plaintiff actually presented testimony that contradicted the defendants’ assertions in their affidavits contesting jurisdiction. Id. at 178-79. The defendant also presented evidence, and the trial court made credibility determinations regarding this competing evidence and ruled in the plaintiffs favor. Id. at 178-79,182.

Unlike the plaintiff in Robles-Martinez, Klass Associates did not submit competing evidence for the trial court to weigh. Rather, Kemmerer’s affidavit stating that her usual place of abode was in Florida was left unchallenged. Because there were no conflicts regarding the issue of Kemmerer’s usual place of abode, we reverse the trial court’s denial of Kemmerer’s motion to quash and remand for entry of an order quashing service of process.

Reversed and remanded.

WALLACE and BLACK, JJ., Concur.

      . The parties have not provided to this court a transcript of the hearing on the motion to quash. However, based on the arguments contained in the briefs, it appears that no testimony or other evidence was presented at the hearing.

      . We note that this court has certified conflict with Robles-Martinez on a separate, unrelated issue. See Koster v. Sullivan, 103 So.3d 882, 885-86 (Fla. 2d DCA 2012).