Third District Court of Appeal State of Florida
Opinion filed October 16, 2024. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D22-1622 Lower Tribunal No. F17-14314C ________________
Bahram Azin, Appellant,
vs.
The State of Florida, Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Mavel Ruiz, Judge.
Black Srebnick, P.A., and Benjamin S. Waxman, for appellant.
Ashley Moody, Attorney General, and Ivy R. Ginsberg, Assistant Attorney General, for appellee.
Before EMAS, GORDO and LOBREE, JJ.
EMAS, J. INTRODUCTION
Bahram Azin appeals his convictions and sentences for armed
kidnapping (two counts), aggravated battery with a firearm (two counts), and
simple battery (two counts, as lesser-included offenses of the original
charges of armed robbery).
On appeal, Azin asserts (1) the evidence was legally insufficient to
establish that Azin committed armed kidnapping or aggravated battery with
a firearm, because the State failed to prove the item allegedly used by Azin
met the legal definition of a firearm under section 790.001(9); and (2) the trial
court abused its discretion in denying Azin’s motion for new trial based on
improper closing argument. For the reasons that follow, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Azin, together with co-defendants Ronnie Valle-Figueroa and Dimitri
Moise, was charged by Information. His case was severed and proceeded
to trial only as to Azin. The testimony and evidence, in a light most favorable
to the jury’s verdict, is as follows:
The two victims (Marvin Osavas and Carlos Garcia) were hired on May
16, 2017, to perform construction and renovation work at Azin’s home. Azin
hired the men, gave them a key to the house, and the men began their work.
A few days later, several large appliances were discovered missing from
2 Azin’s home. Azin came to believe Osavas and Garcia stole the appliances.
However, Osavas and Garcia denied this, and continued working at the job
site for several more days.
On May 26, 2017, Garcia was working alone in the house for a period
of time. He was up on a ladder when Azin walked into the house, holding a
small black gun. Azin pulled Garcia down off the ladder and onto the ground
and hit Garcia in the face with the gun. A second man (later identified as co-
defendant Valle-Figueroa) came into the house, and Azin and Valle-Figueroa
began hitting Garcia with a baseball bat and a wooden two-by-four. Azin
then put the gun in Garcia’s mouth and accused Garcia of stealing his
appliances. The men handcuffed Garcia, bound his legs and mouth with duct
tape, took his wallet and cell phone, and continued beating Garcia on his
legs, back and head. They then put Garcia in a closet. Garcia was not sure
how long he remained in the closet, because he lost consciousness after
being hit in the head.
At some point (while Garcia remained tied up in the closet) the second
victim Osavas arrived at the house. Though Garcia could not see what was
happening, he heard the screams of Osavas as he was being beaten.
Osavas testified that when he came into the house, it was dark. He
was looking for his tool belt when co-defendant Dimitri Moise came up from
3 behind and hit Osavas with a baseball bat, knocking Osavas to the ground.
Azin and Valle-Figueroa were also present. Azin picked Osavas up from
the floor and hit him in the face with a pistol, causing Osavas’ eye to instantly
swell shut. Osavas fell to the floor again, and the three men held him down
and bound his legs and hands with duct tape. They took his cellphone, wallet
and car keys, and then dragged Osavas to another room, where the three
men kicked, punched and beat him while accusing him of stealing the
appliances from the house. Osavas sustained significant injuries, including
a fractured knee.
The three men then put Osavas in a closet (a different closet than
where Garcia was being kept) and Azin and the other two men returned to
the closet several times to demand Osavas tell them where the stolen items
were. Osavas denied stealing anything.
Azin then called the police. Garcia and Osavas were still tied up when
the police arrived. The police initially arrested Garcia and Osavas for the
alleged theft. Later, Azin and his two co-defendants were arrested. Azin
was charged with two counts each of armed kidnapping, aggravated battery,
and armed robbery.
After the State rested its case, Azin moved for a judgment of acquittal,
which was denied. The defense presented no witnesses or other evidence,
4 and after resting, made its second motion for judgment of acquittal, which
was also denied. Following closing arguments and jury instructions, the jury
returned its verdict, finding Azin guilty of armed kidnapping of Garcia and of
Osavas, aggravated battery with a firearm upon Garcia and upon Osavas,
and simple battery upon Garcia and upon Osavas, as lesser-included
offenses of armed robbery. Relevant to this appeal, Azin was sentenced, as
described below on the four felony counts. 1
Kidnapping of Marvin Osavas (Count 7 of the Information):
The jury expressly found by its verdict that, during the commission of
the offense, Azin 1) did carry, display, use, threaten to use or attempt to use
a weapon; and 2) did personally possess a firearm. The first finding
reclassified the kidnapping from a first-degree felony punishable by life to a
life felony pursuant to section 775.087(1)(a), Florida Statutes.2 The second
1 Much of this opinion addresses the sufficiency of the evidence to support the jury’s finding that defendant possessed a firearm or weapon, and the resulting reclassification and enhanced sentencing consequences. This discussion does not affect the two simple battery convictions, which are each first-degree misdemeanors, for which the trial court sentenced defendant to time already served in the county jail. 2 Section 775.087(1)(a), Florida Statutes (2017) provides in pertinent part:
Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens to
5 finding required imposition of a mandatory-minimum ten-year sentence
under the 10/20/Life statute, section 775.087(2)(a)1., Florida Statutes
(2017). 3 The trial court imposed a ten-year mandatory-minimum sentence
under the 10/20/Life statute, followed by five years’ probation.
Kidnapping of Carlos Garcia (Count 8 of the Information):
Like Count 7, the jury expressly found by its verdict that, during the
commission of the crime, Azin 1) did carry, display, use, threaten to use or
attempt to use a weapon; and 2) did personally possess a firearm. The first
finding reclassified the kidnapping from a first-degree felony punishable by
life to a life felony pursuant to section 775.087(1)(a), Florida Statutes (2017).
The second finding required imposition of a mandatory-minimum ten-year
sentence under the 10/20/Life statute, section 775.087(2)(a)1., Florida
use, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows: (a) In the case of a felony of the first degree, to a life felony. 3 Section 775.087(2)(a) 1., Florida Statutes (2017) provides in pertinent part:
Any person who is convicted of a felony or an attempt to commit a felony, regardless of whether the use of a weapon is an element of the felony, and the conviction was for. . . kidnapping and. . . during the commission of the offense, such person actually possessed a “firearm” or “destructive device” as those terms are defined in s. 790.001, shall be sentenced to a minimum term of imprisonment of 10 years.
6 Statutes (2017). The trial court imposed a ten-year, mandatory minimum
sentence under the 10/20/Life statute, followed by five years’ probation, to
run concurrent with Count 7.
Aggravated Battery with Deadly Weapon upon Marvin Osavas Causing Great Bodily Harm (Count 11 of the Information):
The jury expressly found by its verdict that, during the commission of
the offense, Azin did personally possess a firearm. The jury also found that
defendant caused great bodily harm to Marvin Osavas. Because aggravated
battery is one of the enumerated felonies under the 10/20/Life statute, the
jury finding of personal possession of a firearm in the commission of this
offense required imposition of a mandatory-minimum ten-year sentence
under the 10/20/Life statute “regardless of whether the use of a weapon is
an element of the felony.” § 775.087(2)(a)1., Fla. Stat. (2017). Nevertheless,
a review of the sentence establishes that the trial court imposed a
concurrent, ten-year sentence that was not imposed as a mandatory
minimum under section 775.087(2)(a)1. This sentence was ordered to run
concurrently with the sentences imposed in Counts 7 and 8.
Aggravated Battery with a Deadly Weapon upon Carlos Garcia (Count 12 of the Information):
The jury expressly found by its verdict that, during the commission of
the offense, Azin did personally possess a firearm. Because aggravated
7 battery is one of the enumerated felonies under the 10/20/Life statute, the
jury finding of personal possession of a firearm in the commission of this
offense required imposition of a mandatory-minimum ten-year sentence
under the 10/20/Life statute “regardless of whether the use of a weapon is
an element of the felony.” § 775.087(2)(a)1., Fla. Stat. (2017).
Nevertheless, a review of the sentence establishes that the trial court
imposed a concurrent, ten-year sentence that was not imposed as a
mandatory minimum under section 775.087(2)(a)1. This sentence was
ordered to run concurrently with the sentences imposed in Counts 7, 8 and
11.
On appeal, Azin asserts, inter alia: 1) the evidence was legally
insufficient to establish Azin committed armed kidnapping or aggravated
battery with a firearm, because no firearm was ever recovered and (Azin
contends), there was no evidence that the gun described by the victims met
the legal definition of a firearm under section 790.001(9), 4 Florida Statutes
4 Section 790.001(9) Florida Statutes (2017) provides in pertinent part:
“Firearm” means any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive. . . .
8 (2017); and 2) the trial court abused its discretion in denying the motion for
new trial based on prosecutorial misconduct during closing argument.
STANDARDS OF REVIEW
Denial of the Motions for Judgment of Acquittal
“The denial of a motion for judgment of acquittal is reviewed de novo.”
Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002). “A defendant, in moving for
a judgment of acquittal, admits not only the facts stated in the evidence
adduced, but also admits every conclusion favorable to the adverse party
that a jury might fairly and reasonably infer from the evidence.” Lynch v.
State, 293 So. 2d 44, 45 (Fla. 1974). “The conviction is supported by
sufficient evidence where a rational trier of fact could find the existence of
the elements of the crime beyond a reasonable doubt after viewing the
evidence in the light most favorable to the State.” Knight v. State, 186 So. 3d
1005, 1012 (Fla. 2016).
Denial of the Motion for New Trial Based on Improper Closing Argument
Generally, the court reviews the propriety of comments made during
closing argument (and new trial motion based upon such comments) for an
abuse of discretion. Salazar v. State, 991 So. 2d 364, 377 (Fla. 2008). If the
trial court erred in allowing the prosecutor to engage in improper argument,
the burden is upon the State, as the beneficiary of such error, to establish
9 there is no reasonable probability that the improper comments affected the
verdict, rendering any such error harmless. Hitchcock v. State, 755 So. 2d
638, 643 (Fla. 2000).
As for those comments which are not objected to at trial or otherwise
not properly preserved, “failing to raise a contemporaneous objection when
improper closing argument comments are made waives any claim
concerning such comments for appellate review. The sole exception to the
general rule is where the unobjected-to comments rise to the level of
fundamental error, which has been defined as error that ‘reaches down into
the validity of the trial itself to the extent that a verdict of guilty could not have
been obtained without the assistance of the alleged error.” Simpson v. State,
3 So. 3d 1135, 1146 (Fla. 2009) (quoting Brooks v. State, 762 So. 2d 879,
899 (Fla. 2000)).
ANALYSIS AND DISCUSSION
Azin argues the evidence at trial was insufficient to support the finding
that he personally possessed a “firearm” in the commission of these crimes,
because the State failed to prove that the item used by Azin was a “weapon
. . . which will, is designed to, or may readily be converted to expel a projectile
by the action of an explosive. . . .” § 790.001(9), Fla. Stat. (2017). We reject
Azin’s argument for three separate reasons.
10 First, Azin never made this argument to the trial court, either in his
motions for judgment of acquittal or in his motion for new trial. It is raised
here for the first time and is thus unpreserved.5
In his first motion for judgment of acquittal, 6 Azin argued generally (as
to all counts) that the State failed to establish a prima facie case. Such
boilerplate motions are of course legally insufficient. See, e.g., Rodriguez v.
State, 335 So. 3d 168, 172 (Fla. 3d DCA 2021) (“To preserve his sufficiency
issue for appellate review, Rodriguez was required, in moving for judgment
of acquittal below, to identify the element(s) of second-degree murder for
which he contended the evidence was lacking. A boilerplate objection would
not suffice.”) (citations omitted).
5 In fact, during defense closing, counsel did not even raise the question of whether the gun the victims testified Azin used was a “firearm”; rather, he argued in closing that Azin never used or possessed any gun, firearm or other weapon during the incident. 6 The defense argued its two motions for judgment of acquittal back-to-back. The defense moved for its first judgment of acquittal after the State rested its case. The standard of proof at that point required the State to establish a prima facie case of guilt. See Jenkins v. State, 1 So. 3d 317, 320-21 (Fla. 3d DCA 2009). After the trial court denied this first motion, the defense advised the court it would not be presenting any witnesses or evidence, and thereafter argued its second motion for judgment of acquittal. The standard at that point was whether “viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt.” If so, “sufficient evidence exists to sustain a conviction.” Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002).
11 The defense also argued at length that much of the testimony was in
conflict, some of it favorable to the defense, and that the defense has shown
“a severe lack of credibility from the State’s witnesses. . . .” Such arguments
go to the weight, rather than the legal sufficiency, of the evidence. In
reviewing the sufficiency of the evidence presented at trial, “the concern on
appeal must be whether, after all conflicts in the evidence and all reasonable
inferences therefrom have been resolved in favor of the verdict on appeal,
there is substantial, competent evidence to support the verdict and judgment.
Legal sufficiency alone, as opposed to evidentiary weight, is the appropriate
concern of an appellate tribunal.” Tibbs v. State, 397 So. 2d 1120, 1123 (Fla.
1981).
As to the kidnapping counts, the defense argued additionally that “at a
bare minimum [there] is a 50/50 amount of evidence as to whether [Azin] had
a lawful authority” to kidnap the victims. As to both the aggravated battery
counts and kidnapping counts, the defense also contended that Azin’s
actions were merely an attempt to defend himself and his property, having
caught Garcia and Osavas actively burglarizing his home. While this was a
theory of defense, there was no evidence presented to support this theory
and, even if there was, it did not serve as a valid basis for entry of a judgment
of acquittal.
12 The only firearm-related argument made by the defense during its two
motions for judgment of acquittal was a credibility-based argument: that the
victims did not initially tell police that Azin had a firearm, instead advising
police of this hours later. As with the other arguments, this attack focuses
on the weight, rather than the legal sufficiency, of the evidence presented by
the State.
By failing to preserve in the trial court the argument now raised on
appeal, Azin has waived this alleged error. See Fla. R. Crim. P. 3.380(b)
(“The motion [for judgment of acquittal] must fully set forth the grounds on
which it is based.”); Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982)
(“Except in cases of fundamental error, an appellate court will not consider
an issue unless it was presented to the lower court. Furthermore, in order for
an argument to be cognizable on appeal, it must be the specific contention
asserted as legal ground for the objection, exception, or motion below.”)
(citations omitted). See also Morales v. State, 170 So. 3d 63, 66 (Fla. 1st
DCA 2015) (“Appellate courts have repeatedly declined to review the denial
of a motion for judgment of acquittal where the motion failed to make the
specific argument raised on appeal.”)
Second, we reject Azin’s alternative position that this alleged failure of
proof is fundamental error warranting reversal. See e.g., F.B. v. State, 852
13 So. 2d 226, 229-30 (Fla. 2003) (“[R]arely will an error be deemed
fundamental, and the more general rule requiring a contemporaneous
objection to preserve an issue for appellate review will usually apply. We find
that the interests of justice are better served by applying this general rule to
challenges to the sufficiency of the evidence. Any technical deficiency in
proof may be readily addressed by timely objection or motion, thus allowing
the State to correct the error, if indeed it is correctable, before the trial
concludes.”); State v. Smith, 241 So. 3d 53, 56 (Fla. 2018) (reaffirming that
“[e]ven failure to prove an element of an offense . . . is not fundamental error
in most cases” and noting that the Court has “recognize[d] only two
circumstances in which a defendant is not required to preserve an objection
to the sufficiency of the State's case: ‘The first exception is based on the
longstanding appellate rule under which, in death penalty cases, this Court
is required to review the sufficiency of the evidence to support the conviction,’
and the second exception applies where the State fails to prove that ‘a crime
was committed at all.’”) (quoting F.B., 852 So. 2d at 230).
Third, and on the merits, while Azin is correct that no firearm was
recovered, we conclude that the State nevertheless presented sufficient
evidence, together with the reasonable inferences therefrom, for a jury to
properly conclude that Azin possessed and used a firearm in the commission
14 of the kidnapping and aggravated battery offenses, thus supporting the
reclassification 7 of these offenses and the imposition of a ten-year
mandatory-minimum sentence. Pagan, 830 So. 2d at 803 (“A defendant, in
moving for a judgment of acquittal, admits not only the facts stated in the
evidence adduced, but also admits every conclusion favorable to the
adverse party that a jury might fairly and reasonably infer from the
evidence.”)
The evidence supporting this conclusion includes the following
testimony by the victims:
Marvin Osavas testified:
● Moise hit Osavas with a bat, and Osavas fell to the ground. “[Azin]
kind of tried to pick me up. When I faced him, he slapped me in my
face with a pistol. Instantly this eye just closed.”
7 We note parenthetically that, even if the evidence supported only a finding that Azin carried, displayed or used a weapon or deadly weapon (as opposed to a firearm), the offenses would still be reclassified to a higher degree felony under section 775.087(1)(a) (“Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified. . . .”), though a finding of actual possession of a firearm is required to impose the mandatory-minimum ten- year sentence under 775.087(2)(a)1.
15 ● The firearm that Azin hit Osavas in the face with “was a black
handgun.”
● “At some point, Bahram [Azin] got really upset. He grabbed me by
the hair and he-- he pointed a gun in my forehead, and told me if I
wouldn’t give him his stuff, he was going to kill me.” (Emphasis
added.)
● Azin “slapped me with a pistol on my face.”
In addition, Osavas answered “yes” to defense counsel’s question on
cross examination: “You testified on direct examination that you were hit by
a firearm or a handgun?”
Carlos Garcia testified:
● When Garcia was attacked, Azin came in the house with a “hand gun
in his hand,” a “black gun that fitted in his hand, small” and knocked Garcia
to the ground.
● Azin “put the gun inside my mouth.”
● Azin hit Garcia in the face with a gun.
● The gun used by Azin was a “small gun” that looks like the ones cops
use.
This above-described testimony by the two victims—and especially
Osavas’ testimony that Azin “pointed a gun in my forehead, and told me if I
16 wouldn’t give him his stuff, he was going to kill me”—provided direct and
circumstantial evidence from which a jury could reasonably conclude that,
during the commission of the kidnapping and aggravated battery offenses,
Azin “carrie[d], display[ed], use[d], threaten[ed] to use, or attempt[ed] to use”
a firearm (satisfying the reclassification provision of section 775.087(1)(a))
and “actually possessed a ‘firearm’” (satisfying the ten-year mandatory-
minimum provision under section 775.087(2)(a)1.). See, e.g., T.T. v. State,
459 So. 2d 471, 472 (Fla. 1st DCA 1984) (“Both victims testified that
appellant held an object which appeared to be a gun. When [defendant]
accosted the first victim, he threatened, ‘Give me the money or I'll blow your
brains out.’ While being pursued by the second victim, [defendant] stopped,
turned, pointed the object toward the victim and shouted, ‘Stop or I'll
shoot.’… This additional evidence proves more than a subjective belief by
the victims that the object was a firearm.”) See also O’Brien v. State, 546 So.
2d 32, 33 (Fla. 3d DCA 1989) (affirming the trial court’s order denying motion
for postconviction relief from conviction for armed robbery with a firearm,
where the only evidence that defendant was armed with a firearm was the
victim’s testimony that, during the robbery, defendant “lifted his shirt thereby
revealing the handle of a gun protruding from his waistband. On cross-
examination the witness indicated that she had only seen guns in movies.”);
17 Akins v. State, 838 So. 2d 637, 639 (Fla. 5th DCA 2003) (holding that “the
victim’s testimony that she thought the weapon was a sawed-off shotgun,
coupled with Akins's nonverbal implication that he would use it against the
victim, sufficed to support a finding that Akins possessed a firearm during the
robbery.”); Flowers v. State, 738 So. 2d 412, 413 (Fla. 5th DCA 1999)
(finding evidence sufficient for jury to reasonably conclude that what
defendant possessed during the commission of the crimes was a firearm:
“Although no weapons were recovered, the victim testified that he was
certain that the appellant and the appellant's accomplice both had guns. The
victim, moreover, testified that the appellant walked within five feet of him,
pointed the gun in his direction, and ordered him on the floor. Even without
the introduction of the weapon into evidence, or of any evidence of gunfire,
there was sufficient evidence presented to sustain appellant's convictions.”);
Crump v. State, 629 So. 2d 231, 232-34 (Fla. 5th DCA 1993) (finding direct
and circumstantial evidence sufficient to support conviction for robbery with
a firearm, where victim testified defendant had a “silver gun”; co-defendant
testified defendant carried a small silver automatic gun; and co-defendant
called out to defendant to shoot the victim after the victim shot at him).
18 Motion for New Trial for Improper Closing Argument
As to the second issue, the comments complained of by Azin include
statements by the prosecutor that the victims “told the truth” when testifying.
We reject Azin’s contention that this was improper vouching or bolstering. In
context, these statements do not reflect that the prosecutor was vouching for
the victims or expressing a personal belief in the victims’ credibility. As our
courts have recognized, “improper vouching or bolstering occurs when the
State ‘places the prestige of the government behind the witness or indicates
that information not presented to the jury supports the witness's testimony.’”
Jackson v. State, 147 So. 3d 469, 486 (Fla. 2014) (quoting Wade v. State,
41 So. 3d 857, 869 (Fla. 2010)).
In the instant case, by contrast, the prosecutor was responding to
defense counsel’s theory of defense, which focused on attacking the victims’
credibility and motives. During cross-examination of one of the victims, the
defense directly suggested one of the victims was lying to the jury. The
prosecution was certainly permitted to anticipate the defense would continue
to advance this theory in its closing argument, and to counter it during its
closing argument. Gonzalez v. State, 136 So. 3d 1125, 1141 (Fla. 2014)
(prosecutor’s statements in opening statement in anticipation of the
defense’s theory of the case that the State’s witnesses were not worthy of
19 belief was not error). Braddy v. State, 111 So. 3d 810, 839 (Fla. 2012)
(holding State’s comments were not improper because they were in “fair
rebuttal” and “a legitimate inference based in the evidence produced at
trial.”); Williams v. State, 225 So. 3d 349 (Fla. 3d DCA 2017); Johnson v.
State, 917 So. 2d 226 (Fla. 3d DCA 2005).
Further, the prosecutor was not merely asserting that the jury should
believe the victims’ testimony; the prosecutor was explaining why the jury
should believe the victims’ testimony. As an example of these allegedly
improper arguments, Azin points to the prosecutor’s statement that the victim
Marvin Osavas “swore under oath to tell the truth, and that’s what he did.”
But read in context with the discussion that preceded it, this was not improper
vouching. The State was discussing the evidence presented and why that
evidence should lead the jury to conclude that Osavas was worthy of belief.
This falls squarely within the scope of permissible closing argument,
as an attorney is certainly allowed to discuss the factors to be considered by
the jury in assessing witness credibility and offer his or her argument, based
on those factors, that the witnesses were truthful in their testimony. See,
e.g., Std. J. Inst. (Crim.) 3.9 (Weighing the Evidence) (instructing jury on
factors it should consider in assessing witness credibility). See also
Williamson v. State, 994 So. 2d 1000, 1013 (Fla. 2008) (noting that “while
20 the prosecutor suggested [the State witness’] testimony was credible, this
was a fair reply to the defense's closing argument that [the witness’]
testimony was not believable. Immediately after this statement, the
prosecutor asked the jury to think about [the witness’] demeanor and how he
answered the questions, encouraging the jurors to rely on their own
impressions as to the witness's credibility.”)
Azin points to other, similar statements by the prosecutor during
closing, but each is similarly permissible in context, or was not preserved by
a proper or contemporaneous objection, and as such is waived. Simpson, 3
So. 3d at 1146 (noting generally that “failing to raise a contemporaneous
objection when improper closing argument comments are made waives any
claim concerning such comments for appellate review.”) We further find that
the unpreserved comments, considered cumulatively, do not constitute
fundamental error.
In addition, Azin argues that the prosecutor committed prejudicial error
in its rebuttal by suggesting that Azin retaliated against two illegal immigrants
who would be too scared to come forward:
[B]ahram Azin did kidnap Carlos Garcia and Marvin Osavas. He did tie them up, take them, and put them away in a closet and in a laundry room, and continuously beat them, torturing them for what felt like years, but it was hours. He did take their wallets, take their phones and he did beat them senseless causing them very serious injuries that you saw on those photos, that you heard from that stand. And at the
21 beginning of this trial, I stood up here and I told you that on May 26, 2017, Bahram Azin thought that he was above the law. He looked at Carlos and Marvin just like they’ve been saying as two immigrants who would be too scared to come forward.
(Emphasis added).
The defense objected and the court sustained the objection and
directed the State to “move on.” However, the defense did not move for a
mistrial, either following the court’s ruling or at the end of the State’s rebuttal
closing, thereby waiving the issue for appeal unless the comment constitutes
fundamental error. State v. Cumbie, 380 So. 2d 1031 (Fla. 1980) (holding
defendant who objects to prosecutor’s comment in final argument must make
a motion for mistrial at some point during closing argument or, at the latest,
at the conclusion of the prosecutor’s argument); cf. Roundtree v. State, 362
So. 2d 1347, 1348 (Fla. 1978) (where defense counsel objected and asked
that improper comment be stricken from the record and court sustained
objection and granted his request, “the trial court gave [the defendant]
exactly what he requested, and he is not now in a position to complain. . . .
By allowing the trial to proceed, he waived his right to raise this issue on
appeal.”) As with the other unpreserved claims, even when considered
together, Azin has failed to show that such errors “rise to the level of
fundamental error, which has been defined as error that ‘reaches down into
the validity of the trial itself to the extent that a verdict of guilty could not have
22 been obtained without the assistance of the alleged error.’” Brooks, 762 So.
2d at 899 (citations omitted). 8
Affirmed.
8 We find no merit in the remaining arguments raised by Azin.