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Noriega v. State

Florida Court of Appeals, Third District

August 16, 2017

Emiliano E. Noriega, Appellant,
v.
The State of Florida, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 16-2598 Miguel de la O, Judge.

          Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant Public Defender, for appellant.

          Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.

          Before SUAREZ, FERNANDEZ and LUCK, JJ.

          LUCK, J.

         Defendant 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.

         In the 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 home.

         Noriega 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.

         The 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.

         During 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 you're assessing.
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 ...

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