ROTHENBERG, Judge.
Larry Diaz ("Diaz") appeals a judgment of conviction for armed robbery, claiming that reversal is mandated as: (1) the State impermissibly commented on his right to remain silent, (2) the trial court committed reversible error in the curative instruction it gave after Diaz violated an order in limine, and (3) the motion for judgment of acquittal should have been granted as the State did not rebut his reasonable hypothesis of innocence. After carefully reviewing the entire record, we affirm.
The issue at trial was whether Diaz was involved in an armed robbery of a Westar gas station. Diaz claimed that he was unaware that the co-defendant, Juan Carlos Fernandez ("Fernandez"), intended to commit the robbery; that he was not involved in the robbery; and that he was forced by Fernandez, at gunpoint, to drive him away from the scene of the robbery.
The evidence at trial established that Fernandez robbed a cashier at a Westar gas station at gunpoint while wearing a mask. Additionally, a witness saw Fernandez leaving the station still wearing the mask and carrying the gun, and then observed him getting into Diaz's vehicle, which was opened for him from the inside. When law enforcement stopped the vehicle, Diaz was driving and Fernandez was seated in the front passenger seat. After the stop, law enforcement observed in plain view a black bag, with money sticking out of it, on the floor behind the driver's seat. A search of the vehicle, which Diaz consented to, revealed that the bag contained $160.00 and a .45 caliber semi-automatic gun. A pair of black gloves was located on the driver's seat floor mat, a white grocery bag containing more money was located in between the driver and the passenger seats, and a .38 caliber revolver and mask were found under the front passenger seat.
Diaz testified at trial that, on the day of the robbery, Fernandez called him and said that he wanted to "hang out" with him. Diaz picked Fernandez up, they went out to breakfast, and they drove to a shooting range. Diaz testified that he kept two firearms in a black bag in the trunk of his car. After driving to the shooting range, however, Diaz claimed that he realized he only had $15.00 with him, and therefore, decided to drive to an ATM machine to obtain additional funds. Diaz testified that on the way to the ATM machine, he stopped at a Hess station to buy some gas. He claimed he left Fernandez in the car and went inside the Hess station to prepay for the gas, but when he returned, Fernandez was no longer in the car. After waiting for a minute or so, he claimed he saw Fernandez walking quickly from the Westar gas station across the street with a white bag in his hands, and drove over to pick him up. He denied seeing Fernandez carrying a gun or seeing a ski mask. Diaz testified that when Fernandez got into the car, he pulled a gun out from under his shirt, pointed it at Diaz's head, ordered him to drive, and threatened to kill him if he did not. Diaz testified that he drove the car at gunpoint until he saw a police officer, at which point he drove towards the officer and was stopped by the police. He explained that upon being stopped by the police, he exited the car and told the officer that he had nothing to do with the robbery. Additionally, he testified in direct examination that while being transferred to the police station, Fernandez threatened to kill him if he talked to the police:
Q. What happened after you got close to the cop?
A. I told them, they told me from a distance to stop the car and I did so and put the hand on, I put my hand on the wheel. And Officer Bello I believe was the one that testified yesterday asked me to turn off the car. I did, to exit the car. I did. I put my hands on top of the car and I explained that I have nothing to do with that and of course at that time Juan is like trying to hide the money and, you know, and throw things around and whatever and I am outside and he is on the other side and then they handcuffed us together and took us to the Hialeah police station.
Q. Well, what happened when they handcuffed you together?
A. Okay. That is very interesting. They put us in the same car together in the back of [sic] car and the first thing that he said is, "man, if you talk you are dead. If you talk against me, you are dead."
Q. That is what Juan said?
A.
That is what he said to me that if I said anything against him that I was dead and I kept quiet.
(Emphasis added).
On cross-examination, the State elicited testimony from Diaz over defense objection, that while he told the police that he was not involved, he did not tell the police that Fernandez had forced him to drive at gunpoint.
Q. And when you were pulled over by the police, you know, you said something very interesting on direct, you said that you told Sergeant Bello that you didn't have anything to do with this; is that correct?
A. Absolutely, yes.
Q. You didn't tell Sergeant Bello that he is making me do this, that he had a gun to my head and he told you to drive away did you?
A. No, I didn't say that.
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
Q. You didn't tell him that he has a gun and he was pointing it at me the whole time, I was afraid, did you?
A. No.
Q. In fact, you didn't tell any of those police officers that, did you?
A. No, I was in shock.
During closing arguments, the State reminded the jury that, while Diaz testified that he was forced to drive at gunpoint, he did not tell this to the police when they stopped him. The defense timely objected, the objections were overruled, and Diaz's motion for mistrial was denied, as was his motion for a new trial.
The first issue on appeal is whether the State committed reversible error by commenting upon the defendant's right to remain silent. A review of the record demonstrates that the State did not commit reversible error.
Under Florida constitutional law, a prosecutor is prohibited from commenting upon, or attempting to impeach a defendant with, the defendant's silence at the time of his arrest prior to the receipt of his Miranda warnings. Art. I, § 9, Fla. Const, (prohibiting a defendant from being compelled to be a witness against himself); State v. Hoggins, 718 So.2d 761 (Fla. 1998); Robbins v. State, 891 So.2d 1102 (Fla. 5th DCA 2004). This prohibition applies to all comments that are fairly susceptible of being interpreted by the jury as a comment upon silence. Hoggins, 718 So.2d at 769; State v. Smith, 573 So.2d 306, 317 (Fla. 1990). Given the statements documented in this opinion, we normally would have concluded that, when the State asked Diaz if he had told the police when they pulled him over that Fernandez was forcing him to drive at gunpoint, it constituted an impermissible comment on Diaz's right to remain silent. Consequently, we would have found that the trial court erred in overruling Diaz's objection. Based upon a review of the record, however, we find no error, as Diaz put his failure to tell the police that he was forced to drive at gun-point at issue during his direct examination testimony, which the State properly inquired about in cross-examination.
It is undisputed that Diaz offered unsolicited exculpatory statements to the police when he was stopped. Diaz, himself, testified on direct examination that when he was stopped by the police, he told them he had nothing to do with the robbery. More importantly, in direct examination, prior to any inquiry by the State, Diaz specifically offered an explanation as to why, after telling the police he had nothing to do with the robbery, he did not tell them that Fernandez was holding a gun to his head or that he had forced him to drive. Specifically, Diaz testified in direct examination that he did not provide this information to the police because Fernandez threatened to kill him if he did. As Diaz provided an explanation to the jury regarding why he did not provide this information to the police during direct examination, we conclude that the State's questioning of Diaz in cross-examination amounted to a mere clarification of what Diaz had himself already told the jury. We, therefore, find no error in the State's cross-examination or closing argument.
The dissent relies on Hoggins, Smith, Robbins and Hosper v. State, 513 So.2d 234, 235-37 (Fla. 3d DCA 1987), in concluding that the inquiry by the State resulted in a comment upon Diaz's right to remain silent. However, in none of the cases relied upon, does the defendant, himself, provide an explanation of why he did not provide additional information to law enforcement prior to the State's questioning of the defendant, as occurred in the instant case. In Smith, the testimony was actually elicited by the State as substantive evidence to establish the defendant's guilt in its case-in-chief, through its own witness. At no time did the defendant open the door to the testimony. Thus, the evidence was neither invited by the defendant nor cumulative of his own testimony to the jury.
While we find no error based upon the fact that Diaz, himself, offered the objected-to evidence, prior to any questioning by the State, even if we were to find that the State's cross-examination of Diaz and the argument to the jury were error, we would conclude that it was harmless beyond a reasonable doubt. The Florida Supreme Court and this court have held that comments a jury may interpret as a comment upon the defendant's silence are subject to the harmless error doctrine. State v. DiGuilio, 491 So.2d 1129 (Fla. 1986); Robbins, 891 So.2d at 1107; Hosper, 513 So.2d at 236 (Fla. 3d DCA 1987). "The harmless error test . . . places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction." DiGuilio, 491 So.2d at 1135. We find this test was met in the instant case.
Our finding that the error was harmless beyond a reasonable doubt is supported by the evidence. Diaz claimed he did not have any knowledge or involvement in the robbery prior to Fernandez entering his car, pulling out a gun, and ordering him to drive. An independent witness testified at trial, however, that he saw Fernandez exiting the store with a gun in his hand and a mask on, and saw him get into Diaz's car after Diaz opened the door from inside of the vehicle for Fernandez. Diaz testified that he kept his black bag with two guns in it in the trunk of his car. The bag was, however, found in the backseat with one gun, and the other gun was found under the front passenger seat along with the mask. A pair of black gloves was found on the driver's floorboard. Diaz claimed that they went to breakfast, stopped for gas, and were going to get some money at an ATM because he only had $15.00. However, when the police searched the vehicle, they found money in a plastic bag between the driver's seat and passenger seat, plus $160.00 and a gun in Diaz's black bag behind the driver's seat. Thus, money taken in the robbery somehow ended up in Diaz's black bag in the backseat behind Diaz, even though, according to Diaz, Fernandez, who was seated in the front passenger seat, never put down the gun that he was supposedly pointing at Diaz. Diaz claimed he saw no gun or mask, while a witness saw Fernandez exiting the store with these items clearly visible, and getting into Diaz's awaiting vehicle. These items were found under the passenger seat, not concealed on Fernandez's person. Diaz claimed Fernandez was forcing him to drive at gunpoint, yet the officer saw no evidence of that when he stopped them, and if Fernandez was controlling Diaz with the gun, it is not reasonable that he would have allowed Diaz to intentionally drive towards the police. Therefore, based upon the evidence presented and Diaz's unsolicited explanation of why he did not tell the police he was forced to drive at gunpoint, the comments made by the State in cross-examination and closing argument would, if error, constitute harmless error.
The second claim argued on appeal is that the trial court erred in giving the curative instruction it gave when Diaz intentionally violated the trial court's order in limine precluding him from testifying that he had never been arrested before. We agree.
During his testimony, Diaz stated, "I was totally shocked. . . . I am a 44 year old man, never been arrested." The State objected to this statement. The trial court sustained the objection and gave the following curative instruction:
Okay. Ladies and gentlemen, Mr. Diaz's comment that he has never committed a crime before is something that you are not to consider in any way, shape or form. He stands here accused of the crime of armed robbery. If in fact, he did commit this crime, robbers have to start somewhere. That is why the fact that he has no priors, if that is in fact true, is completely meaningless. Because when somebody commits a crime it is their first crime, whether it is a murder or a robbery or a theft or a burglary or anything else. There is always a first crime. You are to evaluate the evidence to determine whether or not the evidence proves that he committed this crime. There is no value at all to a suggestion that it is the first crime so therefore he should walk or he should be acquitted. He should be acquitted if the evidence didn't prove that he is guilty. If the evidence convinces you that he is guilty, then it is his first crime. That is why it is completely meritless and you should disregard it, okay. Thank you.
Diaz asserts that this statement tended to express the judge's view as to his credibility and guilt and destroyed the impartiality of the trial judge. Before addressing the merits of this argument, we feel compelled to address the testimony that gave rise to the complained-of curative instruction. Prior to trial, the State moved in limine to preclude Diaz from testifying regarding his lack of a prior criminal record. The motion was granted and Diaz's attorney specifically informed him of the court's ruling and instructed Diaz not to testify that he had never been arrested before. Despite the trial court's ruling and his lawyer's admonition, Diaz told the jury, totally unsolicited:
"That is what he said to me that if I said anything against him that I was dead and I kept quiet. And I was totally shocked. I mean, I am a 44 year old man, never been arrested."
We find that this statement, which violated the motion in limine, the trial court's order, and his own lawyer's instructions, was not inadvertent and resulted in the curative instruction given by the trial court. The complained-of instruction would not have been given had Diaz simply complied with the trial court's order and his lawyer's instructions.
In addressing the merits of Diaz's argument, we agree that the trial court's curative instruction went too far and was improper. We do not, however, conclude that the instruction, when viewed in its entirety, either expressed the judge's view as to the credibility and the guilt of the defendant or destroyed the impartiality of the trial judge. The instruction, as a whole, makes it clear that the trial court was not commenting on the evidence, did not infer Diaz's guilt, and cautioned the jury that it should find Diaz not guilty if the evidence did not prove that he committed the crime. The trial court instructed the jury, in part, as follows:
He stands here accused of the crime of armed robbery.
. . .
You are to evaluate the evidence to determine whether or not the evidence proves he committed the crime. . . .
. . .
He should be acquitted if the evidence didn't prove he is guilty. Since the objectionable comments were given within the context of a larger instruction, which explained to the jury that whether Diaz had been previously arrested was not relevant, and emphasized that he should be found not guilty if the evidence did not prove he committed the crime, we find that there is no reasonable possibility that the error contributed to Diaz's conviction. See State v. DiGuilio, 491 So.2d at 1135.
The final argument raised on appeal is that the trial court erred in denying Diaz's motions for judgment of acquittal as the conviction was wholly based upon circumstantial evidence and the State failed to present sufficient evidence to exclude Diaz's reasonable hypothesis of innocence. Our review of Diaz's motion for judgment of acquittal is de novo, see Boyd v. State, 910 So.2d 167, 180 (Fla. 2005); Tibbs v. State, 397 So.2d 1120 (Fla. 1981), viewing the evidence in the light most favorable to the State. Boyd, 910 So.2d at 180; Banks v. State, 732 So.2d 1065 (Fla. 1999). When, as here, the State's evidence is wholly circumstantial, there must not only be sufficient evidence establishing each element of the offense, but there must also be sufficient competent evidence to exclude every reasonable hypothesis of innocence. See Orme v. State, 677 So.2d 258 (Fla. 1996). The State, however, is not required to conclusively rebut Diaz's claims. It need only introduce evidence which is inconsistent with Diaz's theory of events. See Toole v. State, 472 So.2d 1174 (Fla. 1985). It then becomes the jury's task to determine if the evidence presented is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt. State v. Law, 559 So.2d 187, 188-89 (Fla. 1989).
Based upon the evidence presented (and briefly mentioned earlier in this opinion), we conclude that the State clearly met its burden and that in viewing the evidence in the light most favorable to the State, there was sufficient competent evidence presented from which the jury could exclude every reasonable hypothesis of innocence beyond a reasonable doubt.
Affirmed.
SHEPHERD, J., concurs in result.