North FL’s Highest Court Finds Improper Burden Shifting NOT Basis For New Trial – Here’s Why

April 24, 2026 Don Pumphrey, Jr. Criminal Defense Social Share

Florida’s 1st District Court of Appeal AFFIRMED a defendant’s conviction for four counts of sexual battery and one count of lewd or lascivious molestation on a minor, as the prosecutor’s seemingly “improper” argument during closing arguments was not objected to.

CASE: Kimble v. State, 406 So.3d 1130 (Fla. 1st DCA 2025)

Charge(s): Capital Sexual Battery, Lewd or Lascivious Molestation

Outcome: Conviction AFFIRMED, as the defendant FAILED to contemporaneously OBJECT to improper “burden shifting” by the prosecutor during closing arguments.

Closing Arguments in FL Criminal Trials

Closing arguments are an essential aspect of Florida criminal trials. They serve as the “last word” the State and defense get before the jury is instructed on the law in the case (e.g. the elements of the charge(s)) and sent to deliberate.

Although closings CANNOT be considered as evidence by the jury, this does not change the fact that a closing argument can be very effective in persuading jurors to render a favorable verdict for the “arguing party.” This is because people tend to think in narratives – so a good closing can provide a “lens” through which the jury will view the evidence and testimony.

A good closing argument from an experienced and aggressive Florida criminal defense attorney will be made with the following goals:

• Making clear to the jury that REASONABLE DOUBT exists
• Drawing attention to any and all vulnerabilities in the State’s case that provide a basis for reasonable doubt

It is commonly thought that closing arguments involve the State speaking first, while the defense gets the last word. But this is not the case. At Florida criminal trials, closing arguments operate using a “sandwich” structure (Robbins v. State, 891 So.2d 1102 (Fla. 5th DCA 2004)):

• First, the State gives its initial closing
• Second, the defense gives its closing (which often will involve rebuttals of what the State said during its first argument)
• Finally, the State (e.g. prosecutor) gives a REBUTTAL CLOSING (which is the true “last word” before deliberations) to refute the defense’s closing statement

As the defense does not go first or last, the quality of its closing is especially important. Since the defense only gets one “bite at the apple,” a defense closing must be particularly effective in order to maximize the odds that the jury will view the defense favorably enough to (hopefully) render a not guilty verdict, rather than simply believing the “last thing they hear” (the State’s rebuttal).

Popular TV shows and movies tend to depict closing arguments as a knock-down, drag-out fight where anything and everything can be said. But this is NOT the case – as in reality, rules govern what can and cannot be said during closing arguments. 

However, this does not mean the rules are always honored! Lawyers are people, too. As a result, “inflammatory” comments may occur. In more serious cases, these may be grounds for a mistrial – or for the defendant’s conviction(s) to be REVERSED if no mistrial is granted. 

Some examples of objectionable tactics employed during closing arguments include (Rodriguez v. State, 210 So.3d 750 (Fla. 5th DCA 2017)):

• Impugning the character of opposing counsel by calling them a “liar” or “evil”
• Calling the defendant ugly names/insulting them
• Improper burden shifting (e.g. “The defense hasn’t proven the defendant is innocent, so find him guilty!”)
• Relying on facts not in evidence or misrepresenting the law
• Commenting on the defendant’s right to remain silent (e.g. “If he wasn’t guilty, he would have said XYZ…”)
• Saying the case is about getting “justice” for the victim (Cardona v. State, 185 So.3d 514, 521 (Fla. 2016))
• GOLDEN RULE arguments (e.g. “Put yourself in the victim’s shoes and think about how scared they were… now find the defendant guilty.”)(Jenkins v. State, 563 So.2d 791 (Fla. 1st DCA 1990))

Violating the rules of closing arguments is particularly dangerous for the State. In the event that the State does engage in one or more of the above tactics, a contemporaneous objection may lead to a MISTRIAL (which should always be asked for during an objectionable closing). 

If this request is denied and an appellate court believes the improper prosecutorial remark(s) may have led to the defendant being convicted (e.g. there was a reasonable possibility that the jury’s verdict was influenced), a defendant’s conviction is likely to be REVERSED. However, if there is no objection made, the “standard of review” changes:

• WITH AN OBJECTION: Courts apply a “harmless error” analysis (e.g. if there was NO reasonable possibility the jury’s verdict was impacted by the comments) – if the improper remarks were not harmless error, a conviction requires reversal (Petruschke v. State, 125 So.2d 274 (Fla. 4th DCA 2013))
• WITHOUT AN OBJECTION: The improper comments are reviewed for fundamental error, which is a far higher standard (e.g. whether improper comments were so unfairly prejudicial that it made the jury’s verdict inherently illegitimate, per Brinson v. State, 153 So.3d 972 (Fla. 5th DCA 2015))

A recent case heard by Florida’s 1st District Court of Appeal (Tallahassee and North FL’s highest court) demonstrates the importance of objecting to prosecutorial misconduct (e.g. the State’s use of improper tactics) during closing arguments.

In that case, the defendant was convicted of four counts of sexual battery and one count of lewd or lascivious molestation on a victim under 12. He was convicted on all counts and sentenced to life in prison.

During closing arguments, Kimble (through his attorney) claimed the alleged victim was lying – and that she was seeking attention by fabricating the encounters. The State, in its rebuttal, argued that there were few to no inconsistencies in the victim’s story. 

Moreover, the prosecutor claimed that there was no evidence presented at trial that the victim in the case was not telling the truth. Kimble did NOT object to this remark when it was made. The jury ultimately found him guilty.

On appeal to the 1st DCA, Kimble argued the prosecutor’s argument constituted fundamental error, requiring a new trial in his case. Kimble was forced to argue that the comments vitiated the proceedings (e.g. rendered the jury’s verdict automatically invalid) because of the failure to object at trial.

But the 1st DCA DISAGREED with Kimble and AFFIRMED his convictions. Let’s take a look at the case – Kimble v. State, 406 So.3d 1130 (Fla. 1st DCA 2025) – and discuss what it means for those in Florida concerned about violations of their right to a fair trial in sex crime cases.

KEY CASE: Kimble v. State, 406 So.3d 1130 (Fla. 1st DCA 2025)

In Kimble, the defendant (Kimble) was charged with four counts of sexual battery and one count of lewd or lascivious molestation. At trial, the following was revealed:

• The alleged victim (A.D.) accused Kimble of engaging in various sexual acts with her as she was visiting her cousins at her grandmother’s house
• She disclosed Kimble’s conduct to her mother the morning of the incident
• Kimble was arrested and charged
• A.D. was interviewed by a Child Protection Team (CPT) interviewer and DNA swabs were taken
• At trial, A.D. testified regarding the abuse and DNA evidence was introduced
• During closing arguments, the defense highlighted apparent inconsistencies in the alleged victim’s testimony
• As part of rebuttal, the prosecutor claimed the inconsistencies were not enough to cause reasonable doubt – and that no evidence A.D. was lying had been introduced into the record
• The defense did NOT object to this at the time
• Kimble was found guilty as charged
• He moved for a new trial, arguing the State’s improper closing required his convictions to be set aside, but this was DENIED

On appeal, Kimble renewed his claim to the 1st DCA, arguing that the prosecutor’s “improper burden shifting” was FUNDAMENTAL ERROR that required reversal of his convictions and a new trial, even in the absence of an objection. 

However, the 1st DCA DISAGREED and AFFIRMED Kimble’s convictions. Concluding that the prosecutor’s arguments were “not erroneous” AT ALL, the 1st DCA wrote:

“We note that Kimble failed to object to these comments at the time the prosecutor made them. Generally, a court will not grant a motion for new trial based on improper prosecutorial comments to which the defendant did not contemporaneously object. … However, Kimble urges us to consider the comments for fundamental error, even if we find that the argument is unpreserved. We find that the comments were not erroneous at all, much less that they rose to the level of fundamental error. When read in context, the State’s rebuttal comments were an invited response to Kimble’s assertions that the victim was a liar and was seeking attention by claiming that Kimble sexually battered her. Such invited responses are not improper. See Scott v. State, 66 So. 3d 923, 930 (Fla. 2011) (“A prosecutor’s comments are not improper where they fall into the category of an ‘invited response’ by the preceding argument of defense counsel concerning the same subject.’”)”

Moreover, the 1st DCA found that even if the prosecutor’s remarks weren’t an “invited response” to the defense’s closing, they still would not have been fundamental error:

“Still, even if the prosecutor’s comments were not an invited response, the comments did not shift the State’s burden to the defense. In stating that no evidence was presented to the jury that the victim was a liar or an attention seeker, the State was commenting on the jury’s duty to analyze what the evidence did or did not show and to reach the only logical conclusion it believed it should reach based on that evidence. Such comments are, again, not improper. See Bell v. State, 108 So. 3d 639, 648 (Fla. 2013) … Any slight implication that Kimble somehow bore the burden of producing evidence did not rise to the level of fundamental error.”

In sum, Kimble v. State, 406 So.3d 1130 (Fla. 1st DCA 2025) marks a significant development in Florida’s corpus of case law surrounding improper closing arguments in sexual battery cases. The 1st DCA (Tallahassee and North FL’s highest court) held that:

• The prosecutor’s comments appeared to be an “invited response” by the defense, given the theme of the closing argument was that the alleged victim was lying
• However, even if this constituted improper burden shifting, it was not FUNDAMENTAL ERROR (the standard of review because Kimble did not contemporaneously object)
• This required that Kimble’s convictions be AFFIRMED

Florida’s criminal defense community should take note of Kimble v. State, 406 So.3d 1130 (Fla. 1st DCA 2025), as it makes clear that controversial closing argument tactics will not always lead to reversal of a defendant’s conviction(s) – especially in the absence of an immediate objection.

If someone is concerned about being charged with sexual battery or a related offense, it is crucial to find experienced and aggressive legal representation as soon as possible. This vital decision could make the difference in whether or not a person is subject to a lengthy prison term and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting criminal charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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