FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for DeSoto County; Don T. Hall, Judge.
L. Dimmig, II, Public Defender, and Kevin Briggs, Assistant
Public Defender, Bartow, for Appellant.
Moody, Attorney General, Tallahassee, and Laurie Benoit-Knox,
Assistant Attorney General, Tampa, for Appellee.
Levonte Bentley II appeals his convictions and sentences for
two counts of possession of a firearm by a person under age
24 who previously had been found to have committed a
delinquent act,  raising two issues for review. We reject
Bentley's argument concerning the admission of certain
photographs without further comment. However, because the
trial court erred by allowing the State to present law
enforcement testimony identifying Bentley as the person in a
surveillance video, we reverse Bentley's convictions and
sentences and remand for a new trial.
January 12, 2017, a black male with dyed red hair entered the
Arcadia Pawn Shop and asked about having repair work done on
a firearm that he had with him. After briefly discussing the
repairs, the man gave the firearm to one of the pawn shop
employees, who made minor repairs to the magazine and then
returned the firearm to the man. The man then left the shop
with the firearm and without incident. None of the pawn shop
employees recalled seeing the man before, and none of them
could identify him.
thereafter, law enforcement received a tip from an informant
that Bentley was in possession of a firearm. Investigation
led law enforcement officers to the Arcadia Pawn Shop, where
Officer Joens watched a surveillance video of the transaction
with the man with the dyed red hair. Based on the contents of
the surveillance video and further investigation, officers
ultimately arrested Bentley on a charge of possession of a
firearm by a person under age 24 who had previously been
found to have committed a delinquent act. In connection with
that arrest, officers obtained Bentley's cell phone,
which was found to contain photographs that appeared to show
Bentley in possession of a firearm on several additional
dates. Based on these photographs, the State filed additional
charges against Bentley.
trial, none of the pawn shop employees could identify Bentley
as having been the person who brought the firearm into the
shop for repair. Hence, the State introduced into evidence
the surveillance video from the pawn shop that showed the man
with the dyed red hair bringing the firearm into the shop.
The State argued at trial that the man shown in the
surveillance video was Bentley, and it contended that
Bentley's possession of the gun was contrary to the law.
satisfied, however, with simply introducing the surveillance
video and allowing the jury to determine whether the man was
Bentley, the State also introduced, over Bentley's
objection, Officer Joens' testimony that Bentley was the
man depicted in the video. Bentley contends in this appeal,
as he did in the trial court, that the introduction of this
testimony was error. And on the record before us, we are
compelled to agree and reverse.
general, a witness may testify as to the identification of
persons depicted in photographs or on video when the witness
is in a better position than the jurors to make that
identification. See, e.g., Day v. State,
105 So.3d 1284, 1286-87 (Fla. 2d DCA 2013) (noting that the
State may introduce testimony identifying individuals
depicted in a video when the video does not provide clear
images or when necessary to support other identification
evidence that might be subject to challenge); State v.
Cordia, 564 So.2d 601, 601-02 (Fla. 2d DCA 1990)
(holding that officers' identification of defendant's
voice on a recording was admissible when the officers were
familiar with the defendant's voice from working with him
in the past); Johnson v. State, 93 So.3d 1066, 1069
(Fla. 4th DCA 2012) (holding that there was no error in
admitting a detective's identification of the defendant
as the individual in a surveillance video when there was
evidence that the defendant had changed his appearance by
bleaching his skin after the event recorded in the video and
that the detective had a personal encounter with the
defendant shortly after the event and before he changed his
when the evidence is such that the witness is in no better
position than the jurors to make an identification, the
witness's opinion is inadmissible because it invades the
province of the jury. See, e.g., Alvarez v.
State, 147 So.3d 537, 542 (Fla. 4th DCA 2014) (reversing
for a new trial when the State was permitted to ask a
detective to identify skin color and race in a video but when
there was no evidence that the detective was in any better
position than jurors to do so); Proctor v. State, 97
So.3d 313, 315 (Fla. 5th DCA 2012) (finding court erred in
allowing officer to identify defendant as the person in a
surveillance video when the officer was in no better position
than the jury to make that determination); Ruffin v.
State, 549 So.2d 250, 251 (Fla. 5th DCA 1989) (finding
the court erred in allowing three officers to identify
defendant as the man depicted in a videotape when the
officers were not eyewitnesses to the crime, did not have
familiarity with Ruffin, and were not qualified as experts in
there is nothing in the record to show that Officer Joens was
in a better position than the jurors to determine whether
Bentley was the individual shown in the surveillance video.
Bentley was in the courtroom, and the State introduced
numerous photos of Bentley in various outfits and with
various hair colors. The State also admitted Bentley's
booking photo, which established how he looked at the time of
his arrest shortly after the crime. Therefore, the jurors
clearly knew what Bentley looked like, both in court and at
the time he was arrested, and they were fully capable of
comparing Bentley to the man in the surveillance video to
determine whether they were, in fact, the same person.
appeal, the State contends that Bentley's objection was
properly overruled because Officer Joens had known Bentley
for two years prior to this incident and had a special
familiarity with him and so was, in fact, in a better
position than the jurors to determine whether the man in the
surveillance video was Bentley. However, nothing in the
record indicates that there was any need for someone with a
special familiarity with the man in the video to identify
him. Nothing in the record establishes that the surveillance
video was grainy or choppy or otherwise indecipherable.
Nothing in the record establishes that there was anything
sufficiently unique about Bentley or the man in the
surveillance video that would require the State to assist the
jury in making the comparison. Hence, the officer's