FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D16-5213

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ANTHONY LAMAR SIMMONS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Duval County.

Angela M. Cox, Judge.

October 15, 2018

B.L. THOMAS, C.J. 

Appellant was convicted and sentenced on two counts of 

attempted second-degree murder and four counts of attempted 

armed robbery. Appellant challenges evidentiary rulings allowing 

deposition testimony to be admitted at a pretrial similar-fact 

hearing and admitting related evidence at trial. Appellant 

argues that these two rulings, together with improper 

prosecutorial comments, require reversal and a new trial. 
2

Facts and Trial Proceedings

Six people went out to a restaurant to sing karaoke and 

celebrate a birthday. After the restaurant closed, they remained 

outside for an hour or longer, talking and laughing about the 

weekend. 

Appellant, identified in court by four witnesses, approached 

the restaurant and checked the door to see if the business was 

closed. Appellant then walked a few feet toward the group, told 

them his car was out of gas, and asked for money to help. One 

member of the group immediately offered to take care of the car 

for Appellant. Declining that assistance, Appellant accepted 

$2.00 from another person and walked away a few feet, but then 

turned to the group again, his hand fumbling in his pocket, and 

irately asked why the victims had given him so little money. 

Appellant pulled out a handgun and told the group he would 

shoot anyone who attempted to leave, and demanded their 

wallets and money. 

One member of the group stood up and stepped toward 

Appellant, and Appellant immediately shot the victim in the 

chest. The bullet entered the victim’s lower torso, exited, and 

then entered the second victim’s face. The first victim testified 

that he tried to run after Appellant but found that he couldn’t 

breathe, and looked at his chest to find a hole in his body. The 

second victim testified that his face started shaking and his body 

“slumped” to the left, and he could not move. The bullet lodged 

permanently in that victim’s neck. 

Appellant’s girlfriend testified that Appellant, whom she met 

on Facebook, was known as “Amp.” When a local televised news

report posted pictures of the suspect from restaurant surveillance 

video, Appellant admitted to her that the picture depicted him.

The State introduced a photograph of Appellant with a 

handgun, which was posted to Facebook near the date of the 

crimes and matched the victims’ descriptions of the perpetrator.

The State noted that the gun in the photograph was consistent 

with the .40-caliber Smith & Wesson semi-automatic pistol seized 

from the apartment Appellant shared with his girlfriend. The 
3

State presented evidence that Appellant’s DNA was found on the 

magazine of that firearm. 

After law enforcement obtained sufficient evidence to secure 

an arrest warrant, several officers attempted to arrest Appellant 

as he arrived at his girlfriend’s apartment. The officers used 

three cars to attempt to block the egress route of the car in which 

Appellant arrived. Appellant jumped into the driver’s seat and 

drove into a parked car and then directly into an officer’s car, and 

continued until he reached a dead end. Appellant then drove into 

a dumpster, and one officer rammed his car. Appellant leapt out 

of the car and was hit by another vehicle, but quickly jumped up 

and attempted to run away. Appellant was then tackled by 

several officers and arrested. 

The State presented the similar-fact testimony of a witness 

who was robbed by Appellant two nights earlier, at a restaurant 

less than a mile away from the location of the charged crimes. 

The trial court informed the jury of the limited purpose of the 

evidence, noting that “the defendant cannot be convicted for a 

crime, wrong or act that is not included in the Information.” 

The similar-fact witness testified that she and friends 

arrived at the restaurant near 2:45 a.m. She did not know 

Appellant, who was standing outside the restaurant, but she 

asked him to use her phone to take a picture of her and two 

friends. The witness and her friends then went into the 

restaurant. When the witness left the restaurant alone 

15 minutes later, Appellant approached her and asked for a 

cigarette lighter. She went to her car and looked for a lighter, 

then turned to tell Appellant she did not have one, and saw that 

Appellant was pointing a handgun at her. Appellant demanded 

her clothing, which contained her wallet and cell phone, and then

returned her driver’s license after wiping it off with his shirt. 

The witness testified that she drove home in her undergarments. 

The witness further testified that Appellant had on a white tanktop, which was a similar shirt to the one described by the 

witnesses to the charged crime. The witness also testified that 

Appellant was in a car similar to the car shown in the 

surveillance video on the televised news report. Shortly after the 
4

robbery, the witness identified Appellant from a photographic 

line-up, and she positively identified him at trial.

Appellant testified in his own defense, stating that on the 

night of the charged crimes he told the victims he needed money 

for gas, and they gave him money in exchange for marijuana. 

After noticing he had been short-changed, he returned to them, 

when the first shooting victim pulled a knife and threatened 

Appellant, and then chased him. Appellant testified that he fell 

and got back up, but his pants were baggy and needed to be 

pulled up; while he was pulling up his pants, his gun went off 

accidently. He further testified that he fled the attempted arrest 

because he thought he was being assaulted, as the officers were 

in unmarked cars. Appellant denied any involvement in the prior 

robbery. 

After the defense rested, the State called the victims of the 

charged case, who testified on rebuttal that they never bought 

drugs from Appellant and no one attacked Appellant with a knife. 

The State also called the arresting officer, who testified that

Appellant, after being read his rights, told police he did not own a 

gun and he was never at the restaurant that night. 

During closing argument, the State told the jury that 

Appellant’s story about being attacked by the victim was “made 

up – made up for the first time three years and one month later.” 

Defense counsel objected, which was overruled. The State made 

several similar remarks attacking Appellant’s credibility and 

veracity. Defense counsel did not object to these statements. The 

State also argued that the discharge of the firearm “doesn’t have 

to be accidental, it doesn’t have to be intentional, it’s the fact that 

[Appellant] was the person with the firearm, he is the one that 

discharged it.” 

Appellant was found guilty on all counts. At sentencing, the 

victim who had been shot in the face testified to the pain and 

suffering he continued to endure, urging the court to sentence 

Appellant to life imprisonment. Another victim testified to the 

extreme mental anguish she experienced after the crime. The 

court sentenced Appellant to forty years in prison on one count of 

attempted second-degree murder and twenty-five concurrent 
5

years in prison on all other counts, based on a jury finding that 

Appellant discharged a firearm during the offenses causing great 

bodily harm. 

Analysis

I. Use of Deposition Testimony at 

Similar-Fact Pretrial Hearing

Appellant argues that the trial court committed reversible 

error in allowing the State to proffer deposition transcripts from 

the charged offense in the pretrial similar-fact hearing. 

Appellant argues that the deposition testimony used at the 

pretrial hearing was hearsay, and therefore this Court should 

reverse and remand for a new trial. 

The relevant statutory law requires no proffer of the 

evidence of the charged crimes during a pretrial review of 

similar-fact evidence:

Similar fact evidence of other crimes, wrongs, or acts is 

admissible when relevant to prove a material fact in 

issue, including, but not limited to, proof of motive, 

opportunity, intent, preparation, plan, knowledge, 

identity, or absence of mistake or accident, but it is 

inadmissible when the evidence is relevant solely to 

prove bad character or propensity. 

§ 90.404(2)(a), Fla. Stat. (2016). 

Before introducing evidence of collateral crimes, the State 

“shall furnish to the defendant . . . a written statement of the acts

or offenses it intends to offer, describing them with the 

particularity required of an indictment or information . . . .” 

§ 90.404(2)(d)1, Fla. Stat. (2016). The supreme court has held 

that, “before even considering whether to allow evidence of prior 

acts to be presented to the jury, the trial court must find that the 

prior acts were proved by clear and convincing evidence.”

McLean v. State, 934 So. 2d 1248, 1262 (Fla. 2006) (emphasis 

added); Barber v. State, 781 So. 2d 425, 428-29 (Fla. 5th DCA 

2001) (“[t]he State is only required to give notice of its intent to 
6

rely on Williams[*] rule evidence pursuant to section 90.404(2)(b), 

Florida Statutes (1997).”). 

After considering arguments and case law during the 

pretrial hearing, the trial court here ruled that the State could 

use the depositions of the witnesses to the charged offense at the 

pretrial hearing to serve as a comparison to the similar-fact 

evidence. In pretrial hearings, hearsay evidence is generally 

admissible. See, e.g., Bauer v. State, 528 So. 2d 6, 10 (Fla. 2d 

DCA 1988) (“hearsay evidence is admissible at such a pretrial 

hearing”); Lara v. State, 464 So. 2d 1173, 1177 (Fla. 1985) 

(finding that hearsay evidence “was properly admitted at the 

suppression hearing, even though [a witness] was unavailable for 

cross-examination”). In addition, the State’s notice of its intent to 

use similar-fact evidence was specific and adequate, referring to 

both the case number of the similar-fact robbery and the name of 

that robbery victim. 

After the depositions from the charged crime were entered

into evidence, the State called a deputy sheriff and the victim of 

the similar-fact robbery. Defense counsel cross examined these 

witnesses. The trial court then heard arguments as to whether 

the collateral crime was similar enough to the charged offense (as 

described in the depositions) to be admissible at trial. The trial 

court found that the evidence of the collateral robbery was 

admissible. Thus, because the State gave sufficient notice of the 

similar-fact evidence, and the hearsay evidence was admissible in 

the pretrial Williams rule hearing, and testimony from the 

similar-fact witness was subject to cross examination, the trial 

court did not err in allowing the State to use the deposition 

testimony at the hearing. See Barber, 781 So. 2d at 427. 

Were we to hold otherwise, each victim in the charged 

offenses would be required to appear and testify three times –

once at a pretrial deposition, again at the pretrial similar-fact 

hearing, and finally at trial. Such is not required under either 

the statute or the relevant case law. The collateral-crime 

witnesses testified at the pretrial hearing and were cross

 * Williams v. State, 110 So. 2d 654 (Fla. 1959).
7

examined by defense counsel on how these incidents compared to 

what was known of the charged offenses. Furthermore, the 

witnesses to the charged offense were cross examined at their 

depositions and at trial. In addition, the trial court continued to 

assess the admissibility of the similar-fact evidence at trial, 

asking if defense counsel had “any rebuttal as it relates to that 

argument about additional crimes.” Thus, Appellant was not 

prejudiced by the trial court’s decision to allow the use of 

deposition testimony during the pretrial hearing. 

II. Admission of Similar-Fact Evidence at Trial

A trial court’s decision to admit similar-fact evidence is 

reviewed for abuse of discretion. Black v. State, 630 So. 2d 609, 

618 (Fla. 1st DCA 1993). “[C]ollateral crime evidence is not 

required to be so unique that no other perpetrator could have 

committed both offenses. Rather, the two crimes must share 

some unique features suggesting the same perpetrator.” Id. at 

617-18. In Black, this Court found that the following facts were 

sufficiently similar as to render the Williams rule evidence 

admissible: 

All robberies occurred at the end of weekend business; 

at gunpoint, the robber ordered all store employees into 

a confined area, and they were told not to come out for 

ten minutes; the robber disabled the store phones in 

each instance; the robber carried a large, dark, 

semiautomatic handgun in each instance; and in each 

instance, the perpetrator was a tall, bulky black man 

wearing a plaid flannel shirt, a dark ski mask and 

gloves. 

Id. at 617. 

Appellant argues that the collateral armed robbery was not 

sufficiently similar to the charged crime as to render the evidence 

admissible. The trial court found that both robberies occurred on 

103rd Street in Jacksonville; both crimes happened outside of 

chain restaurants; both crimes were committed in the earlymorning hours, within two days of each other; both crimes were 

committed by similarly described lone gunmen wearing white 
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tank tops; and both crimes were committed against strangers. 

The trial court then explained that the “signature feature” shared 

by each instance was that the perpetrator struck up a friendly 

conversation with strangers and made innocent requests, then 

returned with a gun to make demands. The trial court found it 

“unusual in robberies for there to be an innocent encounter and a 

request for something seemingly innocent prior to a robbery.” 

We agree with the trial court that there were sufficient 

similarities and “significant feature[s]” between the collateral 

and the charged robberies. Although there may have been 

insignificant differences between the robberies, “[d]issimilarities 

are not fatal when they ‘seem to be a result of differences in the 

opportunities with which [the defendant] was presented, rather 

than differences in modus operandi.’” Durousseau v. State, 55 

So. 3d 543, 553 (Fla. 2010) (quoting Gore v. State, 599 So. 2d 978, 

984 (Fla. 1992)). Thus, while it is correct that a trial court must 

evaluate both similarities and differences, it is the entire picture 

of the criminal episodes which a court must view, not simply 

differences in isolation. By definition, no two criminal episodes 

are identical. 

Based on the similarities and unusual modus operandi noted 

by the trial court, plus other similarities, the trial court did not 

abuse its discretion in admitting the similar-fact evidence. See

State v. Norris, 168 So. 2d 541, 543 (Fla. 1964). As in Black, 

where similar modus operandi, clothing, description, and location 

established a logical connection, here the State showed 

“similarity and an unusual nature of the factual circumstances.” 

630 So. 2d at 617. We therefore reject Appellant’s arguments on 

this issue. 

III. Improper Prosecutorial Arguments

If a defendant does not contemporaneously object to an 

improper comment made in closing argument, he waives the 

claim on appeal. Randolph v. State, 853 So. 2d 1051, 1068 (Fla. 

2003); see also Wasko v. State, 505 So. 2d 1314, 1317 (Fla. 1987) 

(finding that a trial court’s ruling on such an objection is 

reviewed for abuse of discretion). Likewise, if a defendant does

object to an improper comment, but does not move for mistrial 
9

before the jury retires for deliberation, he waives the claim on 

appeal. State v. Cumbie, 380 So. 2d 1031, 1033 (Fla. 1980). 

When a criminal defendant fails to object to an allegedly 

improper prosecutorial argument, an appellate court may not 

reverse a conviction on that basis, unless the prosecutorial 

comment constitutes fundamental error, although the reviewing 

court may find the cumulative effect of improper comments to be 

so prejudicial as to deprive a defendant of a fair trial, requiring 

reversal. See Lukehart v. State, 70 So. 3d 503, 524 (Fla. 2011). 

Of course, where all individual claims of prosecutorial misconduct 

are meritless, a cumulative error claim necessarily fails. Id.

Here, Appellant alleges that the State: 1) improperly argued 

that Appellant lied on the stand; 2) misstated the law by telling 

the jury it could convict if Appellant accidentally discharged his 

firearm; 3) improperly shifted the burden of proof for self-defense; 

and 4) improperly commented on Appellant’s right to remain 

silent. Appellant asserts that the cumulative effect of these

comments warrants reversal. 

It is improper for a prosecutor to opine that a defendant lied 

on the stand, unless the comments were “made in fair reference 

to the evidence.” Blackwood v. State, 946 So. 2d 960, 970 (Fla. 

2006); see also Lugo v. State, 845 So. 2d 74, 107-08 (Fla. 2003) 

(holding that where the evidence substantially proved the 

defendant was deceitful, remarks challenging the veracity of the 

defendant were proper comments on the evidence). “It is only 

when, viewed in the totality of the case, the prosecutor’s 

comments drift far afield from the evidence adduced at trial that 

they may constitute fundamental error.” Zack v. State, 911 

So. 2d 1190, 1205 (Fla. 2005). Appellant cannot prevail in his 

argument for reversal, unless the combined remarks were so 

prejudicial as to deny him a fair trial. See Lukehart, 70 So. 3d at 

524; Cumbie, 380 So. 2d at 1033. 

We hold that the State’s comments were a fair reference to 

the evidence, and were not so far afield from the evidence 

adduced at trial as to constitute fundamental error. The State 

introduced evidence tending to show that Appellant gave a false 

statement to police by claiming that he was never at the scene 

and did not own a firearm. The State also presented evidence 
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that Appellant committed the collateral robbery, including the 

collateral-crime victim’s identification of Appellant. The 

collateral-crime evidence showed that Appellant had a modus 

operandi for robberies, contradicting his testimony that he was 

an innocent victim ambushed by the victims of the charged 

offenses. Likewise, Appellant’s statements to police discredited 

his trial testimony. 

Appellant also argues that, during closing argument, the 

State misstated the law by incorrectly informing the jury that 

Appellant could be convicted even if the jury believed the 

discharge of the firearm was an accident. Where a prosecutor 

misstates the law during closing argument, and the defendant 

does not object or move for mistrial, the issue is not preserved for 

appellate review unless the comment rises to fundamental error, 

such that a conviction could not have been obtained without the 

error. See, e.g., Evans v. State, 177 So. 3d 1219, 1234 (Fla. 2015); 

State v. Fountain, 930 So. 2d 865, 866 (Fla. 2d DCA 2006). 

During closing arguments, the State told the jury that the 

discharge of the firearm “doesn’t have to be intentional, it’s the 

fact that [Appellant] was the person with the firearm, he is the 

one that discharged it.” Appellant neither objected nor moved for 

mistrial; thus, absent fundamental error, the issue is waived. 

Evans, 177 So. 3d at 1234. Regardless, we do not view the State’s 

comment as a misstatement of law, let alone fundamental error. 

The State argued that intent was not required for the 

aggravating factor of discharging a firearm. The State had 

already explained how to find second-degree murder, and 

prefaced the challenged comment with “So, if you find [Appellant

attempted to] commit[] murder in the second degree . . . .”

(Emphasis added.) Thus, no fundamental error occurred.

Next, Appellant claims that the State improperly shifted the 

burden of proof on his self-defense claim. When a defendant 

raises a self-defense claim, he must produce enough evidence to 

establish a prima facie case of justifiable use of force. Fields v. 

State, 988 So. 2d 1185, 1188 (Fla. 5th DCA 2008). Once a 

defendant makes this showing, the State has the burden to prove 

beyond a reasonable doubt that the defendant did not act in selfdefense. Id. Where a defendant does not object to a comment 
11

that shifts the burden of proof, the claim is waived on appeal.

Morrison v. State, 818 So. 2d 432, 445 (Fla. 2002). 

Here, the State told the jury that “in order to find a 

justifiable attempted homicide, you all would have to believe 

unanimously that [Appellant] was the one being attacked by [the 

victim] with that pocketknife in order to find that [Appellant’s] 

actions, the firing of the gun, was justifiable.” As Appellant did 

not object or move for mistrial, this claim is not preserved for 

appeal. See id. Moreover, this comment did not shift the burden 

of proof. See Fields, 988 So. 2d at 1188. Shortly after making the 

comment, the State told the jury that if, “in your consideration of 

the issue of self-defense, you have reasonable doubt on the 

question of whether [Appellant] was justified in the use of deadly 

force, you should find [Appellant] not guilty.” (Emphasis added.)

Thus, Appellant fails to show any fundamental error. 

Appellant next argues that “[a] prosecutor’s comments on a 

defendant’s failure to offer an exculpatory statement prior to trial 

amounts to a comment upon the defendant’s right to remain 

silent.” Munroe v. State, 983 So. 2d 637, 641 (Fla. 4th DCA 2008) 

(citing State v. Hoggins, 718 So. 2d 761, 772 (Fla. 1998)). A 

comment on a defendant’s right to remain silent is not 

fundamental error, and a contemporaneous objection is required 

to preserve for appeal any claim asserting that the State violated 

the defendant’s constitutional right to remain silent. Clark v. 

State, 363 So. 2d 331, 333 (Fla. 1978), overruled in part on other 

grounds, State v. DiGuilio, 491 So. 2d 1129, 1137 n.14 (Fla. 1986).

Appellant waived this argument by not objecting to the 

comments at trial. Clark, 363 So. 2d at 333. In addition, the 

record shows that, after being read his rights, Appellant 

voluntarily gave a statement to law enforcement indicating that 

he was never at the crime scene and did not own a firearm. After 

Appellant testified at trial that he was at the scene and did shoot 

a firearm in self-defense, the State called the arresting officer on 

rebuttal and asked, “at any point in time did [Appellant] tell you 

that he shot in the direction of [the two shooting victims] in selfdefense?” The officer answered, “No, ma’am, he said he wasn’t 

even there.” In closing, the State argued that Appellant’s trial 

testimony was inconsistent with the statement he gave to police. 
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Because Appellant did offer an exculpatory statement prior 

to trial, the State did not comment on his silence. Appellant’s 

reliance on Munroe is misplaced, as that case does not stand for 

the proposition that the Fifth Amendment allows defendants to 

testify at trial and change their previous explanations with no 

risk of impeachment. See Munroe, 983 So. 2d at 641. Thus we 

hold that none of the prosecutorial arguments entitle Appellant 

to a new trial. 

AFFIRMED. 

OSTERHAUS and BILBREY, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Andy Thomas, Public Defender, Victor D. Holder, Assistant 

Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Sharon S. Traxler, Assistant 

Attorney General, Tallahassee, for Appellee.