Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT JESSICA DAVIS, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D21-2987 __________________________ May 10, 2023 Appeal from the County Court for Pasco County; Joseph Poblick, Judge. Howard L. Dimmig, II, Public Defender, and Matthew J. Salvia, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee. VILLANTI, Judge. Jessica Davis challenges her judgment and sentence following her conviction in a jury trial for the offense of open house party, section 856.015, Florida Statutes (2018). Because fundamental error occurred when the State elicited testimony from a law enforcement officer that bolstered the testimony of a prosecution witness and demeaned the testimony of a defense witness, we reverse. Section 856.015 defines "open house party" as "a social gathering at a residence" and provides that [a] person having control of any residence may not allow an open house party to take place at the residence if any alcoholic beverage or drug is possessed or consumed at the residence by any minor where the person knows that an alcoholic beverage or drug is in the possession of or being consumed by a minor at the residence and where the person fails to take reasonable steps to prevent the possession or consumption of the alcoholic beverage or drug. § 856.015(1)(e), (2).1 In order to successfully prosecute under this section, the State must establish the following elements: (1) an adult in control of the premises knowingly allows a social gathering to take place there; (2) the possession or consumption of alcoholic beverages or controlled substances by one or more minors occurs during the gathering; (3) the adult in control has actual knowledge of the possession or consumption of alcoholic beverages or controlled substances by the minors; and (4) the adult in control: (a) allows the party to continue and (b) fails to take any reasonable steps to prevent the possession or consumption. In essence, the State has the heavy burden of proving beyond a reasonable doubt that the adult in charge stood by and did nothing in the face of the adult's actual knowledge of the minor's consumption or possession of alcohol or controlled substances. State v. Manfredonia, 649 So. 2d 1388, 1390-91 (Fla. 1995) (footnote omitted). "We imply one of two things by the phrase 'did nothing': (1) the 1 Prior to the creation of this statute in 1988, adults in similar circumstances were sometimes charged under various iterations of the "contributing to the delinquency of a minor" statute, with varying results. See, e.g., State v. Lynch, 378 So. 2d 829 (Fla. 2d DCA 1979) (holding that an officer responding to accident scene had probable cause to arrest defendant for contributing to the delinquency of a minor where the defendant, an adult male, and his companion, a minor female, appeared to be under the influence of alcohol and/or drugs, and marijuana and open beer cans were in plain view in the vehicle); Zediker v. State, 218 So. 2d 464 (Fla. 3d DCA 1969) (holding that parents were not guilty of contributing to the delinquency of a minor by allowing their daughter to host a party at which minor guests consumed alcohol). 2 adult in control took no steps whatsoever, or (2) the adult in control did nothing that could be fairly characterized as reasonable to prevent the continued consumption or possession of the alcohol or drugs." Id. at 1390 n.3. Considering a district court's conclusion that the statute's "reasonable steps" requirement "is too vague to be enforceable," id. at 1389 (quoting State v. Alves, 610 So. 2d 591, 593 (Fla. 5th DCA 1992)), the supreme court disagreed: [S]ection 856.015, while not a model of clarity, is not unconstitutionally vague. It prohibits an adult, who is in control of the premises, from having a party and knowingly permitting a minor to continue to consume or possess alcoholic beverages or drugs on the premises. That adult may avoid liability by terminating the party or taking some other reasonable action to prevent the consumption or possession after learning thereof. Manfredonia, 649 So. 2d at 1391 (emphasis added). At trial, the testimony of the witnesses was contradictory and hearsay was rampant. The testimony of State's witness S.B. conflicted with the testimony of defense witnesses as well as that of another State witness.2 Conflicting evidence was presented with respect to (1) whether Ms. Davis had purchased an alcoholic beverage for her own use or at the indirect or implied behest of a teenage boy, A.B., who was reportedly at the Davis residence at the time but who did not testify at trial; (2) whether Ms. Davis was aware that the youths visiting her home3 were 2 The detective also testified that S.B.'s statements to law enforcement were inconsistent, as was the timeline of events as described by various witnesses. 3 The evening began with a planned sleepover of two of Ms. Davis's daughter's friends. Later in the evening two or three boys showed up. We have not been asked to consider whether the evidence was sufficient to prove that an "open house party" occurred. 3 consuming alcohol in the house or if she was even awake during the pertinent period of time; (3) whether Ms. Davis was aware that the youths had found and consumed some of her prescription medication4 or had taken "reasonable steps" to prevent it; (4) the actual sequence of events over the course of the relevant three days; and (5) at what point in time Ms. Davis became aware that the youths had consumed alcohol and/or her prescription medicine and her subsequent actions. During trial, the prosecutor questioned the investigating detective as follows: Q: [D]id you interview S.B.? A: Yes. Q: Okay. Did you find her credible? A: Yes. Q: Do you deal with people every day? A: Yes. Q: Do people lie to you every day? A: Yes. Q: How do you judge a witness's credibility? A: I would say several different factors go into judging their credibility. This was a very lengthy investigation with a lot of different proponents [sic]. So considering [Deputy] Patrick had spoken with S.B. first to gather some very basic facts from her, when I interviewed her, those facts mirrored one another. And in my opinion, I felt that she was credible because people that lie generally can't keep up with their lies as time goes on, and S.B. was able to do so. Q: Okay. Did you ever interview K.M.? A: Yes. Q: Okay. And did you find her to be forthcoming? 4 There was no evidence that Ms. Davis was aware of this. 4 DEFENSE COUNSEL: Um -- never mind. Sorry. Withdrawn. A: K.M. was difficult. Generally in law enforcement, I hope and appreciate when people respect me the way that I respect them, and K.M. did not appear very respectful or understand how serious this investigation was. She - - DEFENSE COUNSEL: Judge, I think this is improper character evidence. PROSECUTOR: (Unintelligible). THE COURT: Counsel, approach please. (Bench conference.) DEFENSE COUNSEL: And I'm going to add in invading the product [sic] of the jury. I mean . . . we're asking the officer to testify regarding the witness's credibility. We brought witnesses to the jury and we instructed [them] on how they're supposed to judge their credibility, and being told . . . that an officer thinks one person's more credible than another or commenting on . . . whether she's cooperative . . . there's no law that they have to cooperate with the person. It's confusing . . . to suggest that . . . the minor needed to cooperate with them and to somehow suggest that she's lying. PROSECUTOR: Your Honor, I can move on, (unintelligible) questioning it. THE COURT: All right. Well, just so the record's clear, I'm going to sustain the defense's objection in regards to questions regarding credibility; the issue of whether she is cooperative or not, I think they could get into. (Emphasis added.) Following this exchange, Ms. Davis's counsel neither requested a curative instruction nor, more importantly, moved for a mistrial. Thus, despite the fact that the objection was sustained, the issue was not preserved. Cf. James v. State, 695 So. 2d 1229, 1234 (Fla. 1997) ("[A] defendant need not request a curative instruction in order to preserve an improper comment issue for appeal. The issue is preserved if the defendant makes a timely specific objection and moves for a mistrial." 5 (emphasis added) (quoting Spencer v. State, 645 So. 2d 377, 383 (Fla. 1994))); Rose v. State, 787 So. 2d 786, 797 (Fla. 2001) (holding that Rose's claim of error regarding the prosecutor's improper closing argument was barred because Rose's counsel failed to move for a mistrial after the trial court sustained his objection). Because the issue was not preserved, we review for fundamental error. See Braddy v. State, 111 So. 3d 810, 839 (Fla. 2012) (observing that if a defendant makes a contemporaneous objection that is sustained but fails to move for a mistrial, the reviewing court will review the unpreserved claim for fundamental error). Fundamental error occurs "when it goes to the foundation of the case or the merits of the cause of action and is equivalent to a denial of due process." F.B. v. State, 852 So. 2d 226, 229 (Fla. 2003) (quoting J.B. v. State, 705 So. 2d 1376, 1378 (Fla. 1998)). "It is elemental in our system of jurisprudence that the jury is the sole arbiter of the credibility of witnesses. Thus, it is an invasion of the jury's exclusive province for one witness to offer his personal view on the credibility of a fellow witness." Sierra v. State, 230 So. 3d 48, 51-52 (Fla. 2d DCA 2017) (citation omitted) (quoting Page v. State, 733 So. 2d 1079, 1081 (Fla. 4th DCA 1999)). Moreover, "[w]hen a police officer, who is generally regarded by the jury as disinterested and objective and therefore highly credible, is the corroborating witness, the danger of improperly influencing the jury becomes particularly grave." Martinez v. State, 761 So. 2d 1074, 1080 (Fla. 2000) (alteration in original) (quoting Rodriguez v. State, 609 So. 2d 493, 500 (Fla. 1992)); see also Tumblin v. State, 29 So. 3d 1093, 1101 (Fla. 2010) ("Police officers, by virtue of their positions, rightfully bring with their testimony an air of authority and legitimacy [and a] jury is inclined to give great weight to their opinions." 6 (quoting Bowles v. State, 381 So. 2d 326, 328 (Fla. 5th DCA 1980))). In addition, "[t]here is the danger that jurors will defer to what they perceive to be an officer's special training and access to background information not presented during trial." State v. Horwitz, 191 So. 3d 429, 444 (Fla. 2016) (alteration in original) (quoting Charles v. State, 79 So. 3d 233, 235 (Fla. 4th DCA 2012)). Thus, "[w]here a police officer's testimony is used to bolster the credibility of a victim, the error cannot be deemed harmless." Sierra, 230 So. 3d at 52 (citing Cavaliere v. State, 147 So. 3d 628, 629 (Fla. 2d DCA 2014)). Here, the prosecutor elicited testimony from the detective that bolstered S.B.'s testimony. Immediately following this, the prosecutor asked the detective whether K.M. was "forthcoming." In response, the detective testified that K.M. was "difficult," less than respectful, and did not take the investigation seriously. The trial court correctly labeled this behavior as "uncooperative," and while sustaining the objection as to credibility, it also held that the State could get into "the issue of whether [K.M. was] cooperative or not." That said, the timing and context of the prosecutor's questions placed S.B.'s statements in juxtaposition with those of K.M. Although there is no per se rule prohibiting an officer from testifying that a witness was uncooperative, under these circumstances, the State's direct examination of the officer elicited the improper opinion that S.B.'s testimony was credible and reliable, while conveying to the jury that K.M.'s testimony should not be given much weight. This was a clear invasion of the jury's exclusive province. See Fitzpatrick v. State, 900 So. 2d 495, 508 (Fla. 2005) ("[T]he weight of the evidence and the witnesses' credibility are questions solely for the jury."). 7 The fact that this case turned on the credibility of the witnesses exacerbated the error. See Johnson v. State, 177 So. 3d 1005, 1008 (Fla. 1st DCA 2015) ("Improper bolstering of a witness is especially troubling in a case that rests solely on competing witness accounts . . . ."). And without a curative instruction5 or a motion for a mistrial, "the jury was left with the impression that it could properly take into account the detective's opinion." Id. (quoting Cavaliere, 147 So. 3d at 629). While we are mindful of our supreme court's admonition that "[t]he doctrine of fundamental error should be applied only in the rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application," Smith v. State, 521 So. 2d 106, 108 (Fla. 1988), we conclude that the severity of the prosecutorial misconduct in this case compels the application of the fundamental error doctrine. We therefore reverse and remand for a new trial.6 Reversed and remanded. SILBERMAN and SLEET, JJ., Concur. Opinion subject to revision prior to official publication. 5 We doubt a curative instruction would have been sufficient. See Tumblin, 29 So. 3d at 1102 ("[T]here are some instances in which the prejudice is so great that it is impossible 'to unring the bell.' " (quoting Graham v. State, 479 So. 2d 824, 826 (Fla. 2d DCA 1985))). 6 In Issue II, Ms. Davis argues that the prosecutor improperly commented on the credibility of the witnesses during closing argument. This issue was also not preserved. Having found fundamental error as to Issue I, we decline to address the merits of Issue II. 8