### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

DALLAS SEYMOUR
, Appellant,

v.

STATE OF FLORIDA
, Appellee

.

No. 4D 14

- 2815

[March 16, 2016 ]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County ; David A. Haimes , Judge; L.T. Case No. 13009529CF10A

.

Carey Haughwout, Public Defender, and Mara C. Herbert, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, W est Palm Beach, for appellee.

F ORST

, J

.

Appellant Dallas Seymou r was char ged with manslaughter and

p ossession of firearm by a convicte d felon following an incident which resulted in the death of a tenant in Appellant’s home. Appellant pled no

contest t o the possession of a firearm but took the manslaughter count to trial, where he was found guilty. Appellant now appeals the admission of certain pieces of evidence at his trial. Because we agree with Appellant that the trial court erred in admitting t es timony that had been limited in pretrial proceedings , we reverse and remand for a new trial on the manslaughter charge.

Background

Appellant rented out several rooms in his home and had several tenant s living with him. On the night of the incident in question, some of the tenants, including the victim, were watching television with Appellant in the garage. According to the testimony at trial, Appellant picked up a gun and began to play with it. At so me point, Appellant pointed the gun “up in the air” and it discharged, striking the victim in the left temple.2

After shooting the victim, Appellant fled the home and was spotted by

a witness at a l aundromat roughly a block away. The witness, who had

hea rd the gunshot, stated that Appellant appeared to be holding something under his shirt as he ran down the road. The witness add ed this object “looked like a pistol

, ” but was ultimately unsure.

Officers from the Broward Sheriff’s Office investigated the crime. As part of this investigation, they obtained surveillance footage from a nearby business that showed Appellant running down the street with something

held under his shirt. The officers searched a storm drain approximately twenty feet from where th e Appellant left the view of the surveillance footage and recovered a handgun. This gun was loaded, but officers were unable to recover any DNA or fingerprints from the weapon.

Prior to trial, the State and Appellant agreed to a motion in limine that

wi tnesses would not describe the object that was being carried under the Appellant’s shirt as a firearm. However, when the State played the

surveillance recording for the jury, one of the officers testified that the video showed Appellant “running with a fi rearm that was being concealed under his shirt.” Appellant’s objection to this statement was overruled.

Appellant was convicted of manslaughter and sentenced to twenty years in prison, followed by five years of probation.

Analysis

Appellant argues the trial court erred by : (1) allowing the officer to testify that Appellant was holding a gun in the video ; (2) admitting hospital photos of the victim; and (3) admitting the gun found by police into

evidence. We reverse on the first issue and affirm wi thout discussion on

the other two issues.

A trial court’s ruling on the admissibility of evidence is reviewed for abuse of discretion, limited by the rules of evidence. Alvarez v. State , 147 So. 3d 537, 542 (Fla. 4th DCA 2014).

Lay opinion testimony about what the witness perceived is limited to those opinions or inferences that meet two criteria.

(1) T he witness cannot readily

, and w ith equal accuracy and adequac y , communicate what [ the witness ] has perceived

. . . without testifying in terms of inferences or opinion s and the

witness’s use of inferences or opinion s will not mislead the3 trier of fact to the prejudice of the adverse party ; and (2 ) T he opinion s and inference s do not require a special knowledge, skill, experience or training.

§ 90.70 1, Fla. Stat. (2013). “However, ‘ [w]hen factual determinations are

within the realm of an ordinary juror’ s knowledge and experience, such

determinations and the conclusions to be drawn therefrom must be made by the jury. ’ ” Alvarez v. State , 147 So. 3d 53 7, 542 (Fla. 4th DCA 2014) (alteration in original) (quoting Ruffin v. State , 549 So. 2d 250, 251 (Fla. 5th DCA 1989)).

In Alvarez , the State introduced a video showing the commission of the alleged crime. Id . at 539. The video, however, “ did not give a clear or otherwise meaningful view of the skin color of either of the perpetrators .”

Id . Despite these shortcomings, an officer was asked if he could identify any of the persons in a video and responded that he could after rewatching

the video “dozens , endlessly . . . probably fifty to seventy

- five [times]

. ” Id

. at 540 . We held this testimony was impermissible, as “ no record evidence exists which indicates that the detective was in a better position than the jurors to view the highly inconclusive an d indiscernible surveillance video and enlarged stills and thereby determine the skin color and races of the
perpetrators. ” Id. at 543; a ccord Charles v. State , 79 So. 3d 233, 235 (Fla. 4th DCA 2012); Proctor v. State , 97 So. 3d 313, 315 (Fla. 5th DCA 2012); Ruffin , 549 So. 2d at 251.

In this case, it is impossible to definitively identify what Appellant is holding in the video played for the jury

. The officer’s observations were limited to what was captured on vide o

— the same video that was available for the jury to watch. There was no record evidence that indicated the

officer was in a better position than the jury to view the video and determine whether the objec t was a firearm. The officer was not qualified

as a certified forensic technician or a witness that was proficient in the acquisition, production

, and presentation of video evidence in court. He did not testify to any specialized training in video identification. As such,

the officer’s testimony consti tuted impermissible lay opinion that invaded the province of the jury to interpret the video.

Thus, the trial court erred in allowing the introduction of this

statement. The error is particularly egregious, as all parties had agreed,

before the trial, that there would not be “any interpretation [at trial] from the police officers of what they believe the video shows.” Alt hough the State argues that the officer’s comment was acceptable because the officer was asked why the police searched the area where the firearm was found, it was not necessary to make not e of what could only be speculation (that4

it was a firearm concealed under the shirt)

. I n fact, another officer responded to a similar question that the area was searched because the police had recov ered video surveillance that showed Appellant running

down the street ( toward where the gun was discovered ) shortly after the

victim was shot.

Conclusion

The trial court erred by allowing the officer , over objection and in violation of the court’s granting the motion in limine

, to testify regarding

his guess as to what (if anything) Appellant was seen in the video carrying

under his shirt

, when this determination was best left to the jury

. This

error cannot be said to be harmless and, therefore, we reverse Appellant’s manslaughter conviction and remand for a new trial on this count.

Reversed and remanded for new trial

.

M AY
, J., and S CHER

, R OSEMARIE , Associate Judge, concur.

* * *

Not final until disposition of timely filed motion for rehearing.