However, we do find merit in appellant’s second argument; accordingly, appellant’s convictions and sentences are reversed and this case is remanded for a new trial. In light of our decision to reverse and remand for a new trial, appellant’s third argument is rendered moot and we decline to address the merits of that issue. Regarding appellant’s second argument, Officer Gajewski’s testimony is “fairly susceptible” of being understood by the jury as a comment on appellant’s right to remain silent. See State v. Kinchen, 490 So.2d 21 (Fla.1985) (upholding the “fairly susceptible” test adopted in David v. State, 369 So.2d 943 (Fla.1979)). Moreover, Officer Gajewski’s testimony served to improperly shift the burden of proof onto appellant. Jackson v. State, 575 So.2d 181, 188 (Fla.1991) (<HOLDING>). Because the state has failed to prove beyond
recognizing the right of a defendant to comment upon the failure of the state to produce evidence holding that it was permissible for prosecutor to comment on the general failure of the defense to produce any evidence holding the prosecutors statements were not an inappropriate comment on the defendants failure to testify but rather a comment on the defendants failure to present convincing evidence to support his defense holding the state cannot comment on a defendants failure to produce evidence to refute an element of the crime because doing so could erroneously lead the jury to believe that the defendant had the burden of introducing evidence holding that comment by prosecutor in closing argument that defense counsel did not produce evidence of the defendants innocence was not a comment on the defendants failure to testify