TYBREEL LEVONTE BENTLEY

v.

STATE OF FLORIDA

VILLANTI, Judge. Tybreel 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

- 2 - found to have committed a delinquent act,1 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.

On 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. Shortly 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 1See § 790.23(1)(b), Fla. Stat. (2017).

- 3 - show Bentley in possession of a firearm on several additional dates. Based on these photographs, the State filed additional charges against Bentley.² 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); 2The State originally charged Bentley with fourteen counts of possession of a firearm by a person under age 24 who had previously been found to have committed a delinquent act.

However, before trial, the State dismissed all but two of the charges. One of the charges that remained was the one arising from the pawn shop incident.

- 4 - 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 appearance).

However, 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 identification).

- 5 - Here, 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.

In this 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 opinion that Bentley was the man in the video was not tethered to a necessity to assist the jury in its independent analysis of the video but instead served merely to assist the jury in better believing the State's position.

Moreover, the record also shows that the testimony from Officer Joens about his familiarity with Bentley was improper. "[W]hen a police officer identifies a

- 6 - defendant at trial based on past contact, the officer's testimony creates a prejudicial inference that the defendant has been involved in prior criminal conduct," which generally will constitute harmful error that requires reversal for a new trial. Spike v. State, 251 So. 3d 1017, 1023 (Fla. 2d DCA 2018) (Sleet, J., dissenting) (citing Day, 105 So. 3d at 1288 (concluding that the officer's testimony that she knew Day "from when she had worked in [her] neighborhood as a community police officer" made it "inconceivable that the jury would not have concluded that Day had been involved in prior criminal conduct"); Alcantar v. State, 987 So. 2d 822, 825 (Fla. 2d DCA 2008) ("[T]he trial court's decision[ ] to admit into evidence the irrelevant and prejudicial testimony that the second officer knew Mr. Alcantar from his long experience in law enforcement . . . [was] in contravention to the rules of evidence and an abuse of discretion."); State v. Price, 701 So. 2d 1204, 1206-07 (Fla. 3d DCA 1997) (concluding that a new trial was required when a police officer testified that he knew Price from his previous work in the community); Willis v. State, 669 So. 2d 1090, 1093 (Fla. 3d DCA 1996) (holding that the defendant "was unduly prejudiced by the police officer's gratuitous testimony that Willis had previous contacts with the police in other 'incidents' ")).

Here, Officer Joens testified not only that he knew Bentley from the community but also that he had known Bentley since 2015 "when I believe we had our first call with him." This testimony goes far beyond creating a prejudicial inference—it actually informed the jury in no uncertain terms that Bentley had his first criminal interaction with the police in 2015. This testimony was patently improper, and the State

- 7 - may not use this improper testimony to justify the admission of Officer Joens' opinion concerning whether Bentley was the person depicted in the video. The State also contends that Officer Joens' testimony was properly admitted because Bentley had changed his appearance after the crime and before trial.

However, the record shows that the only change to Bentley's appearance was his hair color.

Moreover, the State admitted numerous photographs of Bentley obtained from his cell phone that show him with both dyed hair and natural hair. Given the plethora of photographs introduced by the State, its argument about the change in Bentley's hair color between the time of his arrest and the trial was simply a red herring. The change in Bentley's hair color was not outside the ability of the jurors to comprehend, and it was not significant enough, particularly in light of the other evidence before the jury, to establish that Officer Joens was in a better position than the jurors to make an identification of the person in the surveillance video.

Accordingly, we hold that Officer Joens' testimony identifying Bentley as the man depicted in the surveillance video was improperly admitted over Bentley's objection. And because the State has not established that the admission of this identification testimony was harmless, we must reverse Bentley's convictions and remand for a new trial.

Reversed and remanded for a new trial. KHOUZAM, C.J., and SLEET, J., Concur.