DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

RAYMOND C. GLEASON,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D14-678

[March 9, 2016]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. 

Lucie County; Robert R. Makemson, Judge; L.T. Case No. 

562013CF000865A.

Carey Haughwout, Public Defender, and Jeffrey L. Anderson, 

Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine 

Germanowicz, Assistant Attorney General, West Palm Beach, for 

appellee.

CIKLIN, C.J.

Raymond Gleason appeals his convictions of burglary of a dwelling 

and dealing in stolen property. He raises three issues, two of which we 

find have no merit. However, we agree with Gleason that his conviction 

should be reversed based on improper closing argument by the 

prosecutor.

Evidence at trial showed that, while the victim was at work, someone 

entered both her home and a shed located in the backyard. That person 

took a wood chipper from the shed. A neighbor saw a man carrying a 

large object as he left the victim’s property. The neighbor questioned the 

man, who told him he “was gonna go do a job,” and that he was selling 

the wood chipper for somebody. The man sported tattoos on his arms 

and neck. The neighbor was eighty percent certain that Gleason was the 

man he saw that day. A law enforcement officer testified that soon after 

the neighbor saw the man leaving the victim’s property, Gleason 

appeared at a taxi cab station near the victim’s home with the wood 
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chipper in his possession, and that Gleason left the taxi cab station after 

being confronted. The officer also testified that Gleason had tattoos on 

his arms and neck. In the time leading up to trial, the officer learned 

that Gleason did not have a neck tattoo. He speculated that what he 

thought was a neck tattoo could have been dirt. Photos entered into 

evidence showed that Gleason had tattoos on his arms but not on his 

neck. Gleason was interviewed by law enforcement officers during an 

unrelated criminal investigation. During the taped interview, he made 

statements placing him with the wood chipper at the taxi cab station. 

However, he did not admit to being the person who stole the wood

chipper. 

During closing argument, the prosecutor stated as follows:

[Y]ou’ll get another instruction that possession of recently 

stolen property, unless satisfactorily explained, gives rise to 

an inference that the person knew or should [have] known 

that the property had been stolen. Very similar to the last 

instruction on burglary about possession of stolen property, 

it’s very similar. Because again, the legislature, they 

understand that people who steal the items have the items. 

So possession of the items shows, it’s good evidence to show 

that he committed the crime. And again, this is not a case 

where, you know, it’s months, days, weeks later, this is right 

after the burglary, right after. And there has been no 

satisfactory explanation as to why or how he had this 

property, this stolen property. There’s been no evidence at 

trial to explain satisfactorily why he had this other than he 

committed the burglary, other than he committed the dealing 

in stolen property. That’s the only reasonable explanation. 

So you shouldn’t go back there and say, well, maybe, maybe 

he just found it. There’s no evidence of that. He didn’t just 

find this on the street, he stole it and that’s why he lied 

about his name and that’s why he ran.

Defense counsel objected, arguing that the prosecutor had shifted the 

burden of proof to Gleason and commented on his silence. The trial 

court overruled the objection, agreeing with the prosecutor that the 

argument was related to the jury instruction and thus proper.

Presumably emboldened by the trial court’s evidentiary ruling, the 

prosecutor then continued: “As I said, there has been no evidence to –

satisfactorily to explain why this Defendant had that stolen chipper, 

mulcher, unless if he just stole it.”
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The trial court instructed the jury on the presumption provided for in 

section 812.022(2), Florida Statutes (2013), namely that “[p]roof of 

possession of recently stolen property, unless satisfactorily explained, 

gives rise to an inference that the person in possession of the property

knew or should have known that the property had been stolen.”1 The 

court also instructed the jury on the following common law presumption: 

“Proof of possession by an accused of property recently stolen by means 

of a burglary, unless satisfactorily explained, may justify a conviction of 

burglary if the circumstances of the burglary and of the possession of the 

stolen property convince you beyond a reasonable doubt that the 

defendant committed the burglary.”2

We begin with the well-settled premise that the trial court has 

“discretion to control the comments made to a jury.” Salazar v. State, 

991 So. 2d 364, 377 (Fla. 2008) (quoting Ford v. State, 802 So. 2d 1121, 

1132 (Fla. 2001)). 

Improper prosecutorial comments give rise to error justifying 

mistrial when they are “so prejudicial that [they] vitiate the 

entire trial.” In determining whether reversal is warranted 

for an improper remark made by a prosecutor during the 

closing argument, the court must determine whether the 

effect of the comment was to prejudice the jury and impair 

the fairness of the proceeding. 

Mannarino v. State, 869 So. 2d 650, 652 (Fla. 4th DCA 2004) (alteration 

in original) (quoting Taylor v. State, 640 So. 2d 1127, 1133 (Fla. 1st DCA 

1994)). In keeping with a defendant’s constitutional right to choose not 

to testify at trial, “[a]ny 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.” State v. Marshall, 476 So. 2d 150, 153 

(Fla. 1985). This “‘fairly susceptible’ test is a ‘very liberal rule.’”

Rodriguez v. State, 753 So. 2d 29, 37 (Fla. 2000) (quoting State v. 

DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986)). See also Fla. R. Crim. P. 

3.250 (providing, in pertinent part, that “no accused person shall be 

compelled to give testimony against himself or herself, nor shall any 

prosecuting attorney be permitted before the jury or court to comment on 

the failure of the accused to testify in his or her own behalf”). 

We note there is a distinction between impermissible comments on 

silence and permissible comments on the evidence in a case. “A 

1 See Fla. Std. Jury Instr. (Crim.) 14.2.

2 See Fla. Std. Jury Instr. (Crim.) 13.1.
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constitutional violation occurs . . . if either the defendant alone has the 

information to contradict the government evidence referred to or the jury 

naturally and necessarily would interpret the summation as a comment 

on the failure to testify.” Rodriguez, 753 So. 2d at 38 (alteration in 

original) (citation and internal quotation marks omitted). Stated another 

way, “where the evidence is uncontradicted 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.” Id. 

Additionally, “[w]hen arguing to the jury, the State may not make 

comments that mislead the jury as to the burden of proof.” Paul v. State, 

980 So. 2d 1282, 1283 (Fla. 4th DCA 2008). Comments on silence may 

also equate to burden-shifting comments: “[T]he 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.” Rodriguez, 753 So. 2d at 38.

Here, the state contends the prosecutor’s arguments were proper 

comments related to the presumption of knowledge. A previous opinion 

of this court leads us to conclude that reversal is required here. In 

Mannarino, 869 So. 2d 650, the defendant was charged with uttering a 

forgery and petit theft, arising from his possession of stolen credit cards. 

His girlfriend testified that she stole the credit cards and that the 

defendant unknowingly came into possession of the stolen goods when 

she asked him to pay for their meal at a restaurant with her credit card, 

and he took the credit card out of her purse. Id. at 651. During closing 

argument, the prosecutor argued as follows:

The judge will instruct you the mere fact that the defendant 

had that card on him, the mere fact that he had it in his 

possession, presumption of guilt, and he stole those items, 

unless he can explain them away. And Ms. Bereda’s 

explanation does not explain that away.

Id. (emphasis omitted). The trial court denied defense counsel’s motion 

for mistrial, reasoning that the comment was not inconsistent with the 

jury instruction.3 On appeal, the state argued that the comment 

3 Although the opinion does not quote the instruction that was given, it is clear 

that it was the presumption provided for in Florida Standard Jury Instruction 

(Criminal) 14.2 and section 812.022(2), Florida Statutes. Mannarino was 

charged with theft, and the opinion reflects that the trial court referenced the 

“theft instruction.” Id. at 652.
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mirrored the jury instruction. We rejected the argument, noting that the 

prosecutor “added the word ‘he,’ which obviously refers to appellant and 

suggests that he was required to, but did not, explain his possession of 

the stolen credit cards.” Id. at 653. This court also reasoned that “even 

if her comment were a correct statement of the law as it is given in the 

standard jury instruction, in the context in which the comment was 

made, it was an inappropriate comment on appellant’s right to remain 

silent.” Id. We found the error was not harmless “because appellant was 

the only person besides [his girlfriend] who could have explained why he 

had the credit cards,” and the girlfriend’s testimony was impeached by 

her prior statement to police that the defendant stole the purse. Id. 

Here, the prosecutor crossed the line when he said: “And there has 

been no satisfactory explanation as to why or how he had this property, 

this stolen property. There’s been no evidence at trial to explain 

satisfactorily why he had this other than he committed the burglary, 

other than he committed the dealing in stolen property. . . . As I said, 

there has been no evidence to—satisfactorily to explain why this 

Defendant had that stolen chipper, mulcher, unless if he just stole it.” 

The prosecutor did not directly reference Gleason’s failure to testify, 

but his reference to a lack of evidence to explain Gleason’s possession 

highlighted his failure to testify, and in doing so, shifted the burden to 

Gleason to prove his innocence. Although the state is permitted to have 

the jury instructed on the presumptions that arise when a defendant is 

found in possession of recently stolen property, it is not permitted to 

invite the jury to convict based on a defendant’s failure to attempt to 

rebut the presumptions. The state’s closing argument did not direct the 

jury to consider the evidence that was presented; instead, the comments 

directed the jury to consider Gleason’s failure to present an explanation 

for his possession of the property. Additionally, Gleason was the only 

person who could provide the reasonable explanation to overcome the 

presumption. 

We point out that the state, through the testimony of the victim’s 

neighbor, presented evidence of an explanation offered by Gleason. If the 

prosecutor had focused his comments on whether that explanation was 

satisfactory, the comment would have been permissible. Instead, the 

prosecutor made comments that were fairly susceptible of being 

interpreted as comments on Gleason’s silence. The Fifth Amendment 

prohibits that type of oratory. 

The error was not harmless. This was a case built largely on 

circumstantial evidence. The neighbor was not certain in his 
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identification of Gleason, and there were discrepancies in the description 

of the man carrying the wood chipper away from the victim’s house. On 

this record, it cannot be said beyond a reasonable doubt that the error 

had no effect on the verdict. See DiGuilio, 491 So. 2d at 1139. 

Reversed and remanded for new trial.

CONNER and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.