Emiliano E. Noriega, Appellant,
The State of Florida, Appellee.
final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Lower
Tribunal No. 16-2598 Miguel de la O, Judge.
J. Martinez, Public Defender, and Natasha Baker-Bradley,
Assistant Public Defender, for appellant.
Jo Bondi, Attorney General, and Michael W. Mervine, Assistant
Attorney General, for appellee.
SUAREZ, FERNANDEZ and LUCK, JJ.
Emiliano E. Noriega, after trial, was convicted of
trespassing in the backyard of Mr. and Mrs. Eduardo
Godoy's home. Noriega contends on appeal that his
conviction should be reversed because two statements made by
the state during its closing argument shifted and misstated
the burden of proof. Even though he did not object to either
statement, Noriega claims that together they resulted in
fundamental error. After review of the record and briefs, we
find no error, and affirm.
early morning hours of February 8, 2016, Eduardo Godoy, a
retired security officer, was awoken by the barking of his
neighbor's dog. Looking through the window of his
bedroom, he saw Noriega walking around his backyard and
called 911. As Godoy spoke with the 911 dispatcher, Noriega
started walking toward the front of the house. The dispatcher
told Godoy not to leave his home, but Godoy decided to stop
the man, who he believed to be a burglar. Godoy armed himself
and encountered Noriega in the front driveway holding a bag,
which Godoy recognized as belonging to his daughter and had
been stored in an open utility room in the backyard. At gun
point, Godoy ordered Noriega to put his hands up and get
down. Noriega dropped the bag, containing batteries and
flashlights, said "I'm going home, " and ran
off. Godoy initially pursued but retreated when he saw
Noriega stopped by police about three houses down from his
was arrested and charged with burglary of an occupied
dwelling and petit theft. At his trial, Godoy, his wife and
daughter, and the arresting officer testified. Godoy's
wife and daughter corroborated Godoy's testimony. The
arresting officer testified that Noriega was out of breath
from running when he was stopped, but was otherwise calm and
obeyed the officer's instructions in all respects.
Noriega was not wearing gloves, a mask, or a hoodie and
carried no weapons, burglary tools, or a bag.
theory of defense at trial, which was relayed to the jury
beginning with opening statement, was that Noriega had been
out late at a Super Bowl party, had exited a bus near
Godoy's home, and on the way home felt the need to
urinate. Noriega decided to go into the bushes in front of
Godoy's home where he was later confronted by the armed
Godoy. The defense denied Noriega was in the backyard or that
he took any bag.
the state's closing argument, the state first reviewed
the evidence supporting the elements of the crimes charged
and then, without objection, argued:
But you should know. You can only use the evidence presented
to you. And the arguments by the attorneys in either opening
and closing by the State or by the defense is not evidence.
In fact, even the questions by the attorneys either the State
or the defense to the witnesses are not evidence. The
evidence before you is what the witnesses say, that is what
So I would like you to note that there is zero evidence of
the defendant urinating. There is zero evidence of any bus
drop off. There is zero evidence any party go. Now,
there's no evidence of that ...