Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT ARTHUR JORDAN THOMAS, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D22-749 June 23, 2023 Appeal from the County Court for Hillsborough County; Jeffrey M. Rich, Judge. Howard L. Dimmig, II, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Blain A. Goff, Assistant Attorney General, Tampa, for Appellee. CASANUEVA, Judge. Arthur Jordan Thomas appeals his judgment and sentence for one count of misdemeanor battery. Mr. Thomas argues that the trial court erred by permitting the State to present testimony from law enforcement identifying Mr. Thomas as the primary aggressor during a domestic dispute. Because we conclude that the testimony invaded the province of the jury as to Mr. Thomas' self-defense claim, we agree. And because we cannot say beyond a reasonable doubt that the error did not affect the verdict, we reverse and remand for a new trial. Background Mr. Thomas was charged with battery after an altercation with his ex-girlfriend, Ms. Bracero. At trial, Ms. Bracero testified that on the day of the incident she and her friend, Ms. Johnson, planned to help move Mr. Thomas out of her apartment and drive him to Orlando. After loading her vehicle with his belongings, Mr. Thomas arrived at her apartment and became aggressive, stating that he did not want to be in her vehicle. As Ms. Bracero was removing his items from her vehicle, Mr. Thomas ran up the stairs to her apartment and attempted to gain entry. Ms. Bracero and Ms. Johnson followed him up the stairs where Mr. Thomas grabbed Ms. Bracero's purse and keys from her hands and lifted her off the ground, injuring Ms. Bracero's finger in the process. Ms. Johnson testified to similar facts and stated that the only time she saw Ms. Bracero put her hands on Mr. Thomas was when she was trying to get Mr. Thomas to put her down. The responding officer testified that upon arriving at the scene, he observed the parking lot littered with belongings and smashed beer bottles. He conducted several interviews and observed injuries to both Ms. Bracero and Mr. Thomas. He arrested Mr. Thomas based on Ms. Bracero's injury and the witness's corroborating statements. The officer was later recalled by defense counsel, and during this direct examination, two pieces of body cam footage were admitted into evidence. In one of the videos, Mr. Thomas stated that when he reached for Ms. Bracero's purse, she dropped it. In the second video, an unidentified individual stated, "[S]he started, like, swinging at him and he was just 2 trying to defend himself and was, like, blocking himself, grabbed the purse." On cross-examination, the State questioned the officer on how he determined Mr. Thomas was the primary aggressor. Over objection, the officer—who was not present during the altercation—testified that he determined Mr. Thomas was the primary aggressor based on Ms. Bracero's injury and by speaking with the involved parties. Following closing arguments, jury instructions were provided on the justified use of nondeadly force. The jury seemingly rejected Mr. Thomas' self-defense claim and found him guilty as charged. He was sentenced to 180 days in county jail. This appeal followed. Analysis The trial court's ruling on the admissibility of evidence is reviewed for an abuse of discretion. Jackson v. State, 107 So. 3d 328, 339 (Fla. 2012) (first citing Williams v. State, 967 So. 2d 735, 747-48 (Fla. 2007); and then citing Johnston v. State, 863 So. 2d 271, 278 (Fla. 2003)). The trial court's discretion, however, is limited by the rules of evidence. Id. We conclude that when the State questioned the officer about his investigation and his determination that Mr. Thomas was the primary aggressor, it solicited an opinion about Mr. Thomas' self-defense claim. And the officer's response that Mr. Thomas was the primary aggressor created a suggestion of guilt which severely undermined the jury's ability to independently decide the question of self-defense and in effect, whether Mr. Thomas should be found guilty. See Zangroniz v. State, 358 So. 3d 827, 830 (Fla. 2d DCA 2023) ("[T]he questioning of the officers about who they viewed as the 'aggressor' improperly invaded the province of the jury by soliciting witnesses' opinions about the merits of [the defendant's] self-defense claim, and ultimately his guilt or innocence."); see also Hunt v. State, 284 So. 3d 1092, 1095 (Fla. 4th DCA 2019) ("A 3 police officer's testimony or comments suggesting a defendant's guilt invades the province of the jury to decide guilt or innocence." (quoting Lopiano v. State, 164 So. 3d 82, 84 (Fla. 4th DCA 2015))). The jurors should have been allowed to determine for themselves whether Mr. Thomas was the primary aggressor or whether he was justified in the use of nondeadly force. The elicited testimony improperly invaded the province of the jury, and the admission of such testimony was erroneous. Because we conclude that the trial court erred, we next consider whether the error was harmless. See Jackson, 107 So. 3d at 342. First, we note that in many cases, the erroneous admission of testimony which invades the exclusive role of the jury is not harmless error. Hunt, 284 So. 3d at 1096. We further note that it is especially harmful when the erroneous testimony is provided by law enforcement. This is because our judicial system recognizes that "officers, by virtue of their positions, rightfully bring with their testimony an air of authority and legitimacy. A jury is inclined to give great weight to their opinions . . . ." Tumblin v. State, 29 So. 3d 1093, 1101 (Fla. 2010) (quoting Bowles v. State, 381 So. 2d 326, 328 (Fla. 5th DCA 1980)); see also Martinez v. State, 761 So. 2d 1074, 1080 (Fla. 2000) ("[E]rror in admitting improper testimony may be exacerbated where the testimony comes from a police officer."). Last, we highlight that when an appellate court reviews for harmless error, [t]he test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the [S]tate. If the appellate court cannot say beyond a reasonable 4 doubt that the error did not affect the verdict, then the error is by definition harmful. State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986). Conclusion Because we cannot say beyond a reasonable doubt that the error did not affect the verdict, the State has not met its burden in proving that the error was harmless. We reverse and remand for a new trial. Reversed and remanded. MORRIS, C.J., and LUCAS, J., Concur. Opinion subject to revision prior to official publication. 5