          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                         No. 1D17-4925
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CARLOS MANUEL RUSSELL,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Bay County.
Michael C. Overstreet, Judge.

                          April 16, 2019


PER CURIAM.

     In this direct appeal from Appellant’s conviction and sentence
for aggravated stalking, we affirm in all respects and write only to
explain why the trial court did not abuse its discretion by
admitting Appellant’s text messages to the victim as impeachment
evidence.

    At the beginning of trial, the parties discussed the
admissibility of various text communications between Appellant
and his wife, the victim in this case. The court ruled that the text
messages could not be admitted during the State’s case-in-chief
because the State failed to file a timely notice to admit the text
messages as collateral crime evidence. However, the court further
ruled that this would not prohibit the defense from offering the
text messages as impeachment evidence or the State from offering
them as evidence during rebuttal.

     During its case-in-chief, the State presented testimony that
after the victim separated from Appellant and obtained an
injunction against him for protection against domestic violence,
Appellant threatened the victim and her family with death or great
bodily harm, showed up unannounced at the victim’s workplace,
made over 100 phone calls to the victim’s office in a single
afternoon, and attacked the victim in a pharmacy parking lot.

     During the defense’s case, Appellant took the stand and
testified that the victim called him from work every day and
invited him to visit her at work without her boss’s knowledge. He
further testified that he and the victim went back and forth in their
relationship and that the victim never stopped texting and calling
him the entire time the injunction was in place. Although he
acknowledged calling the victim at work repeatedly, he claimed he
was desperate to get her on the phone to calm her down because
she was upset about his involvement with other women.

     On cross-examination, the State was allowed to introduce,
over defense objection, text messages sent by Appellant to the
victim as impeachment evidence. In those messages, Appellant
demanded to know why the victim would not answer the phone at
work when he called and threatened to call her office nonstop
regardless of any restraining order, come over to her office, and
beat her like she was a man. Defense counsel subsequently moved
for a mistrial on the ground that those text messages were sent
prior to the entry of the injunction. The trial court denied the
motion on the ground that the text messages were proper
impeachment evidence.

     “A witness may open the door during the direct testimony to
impeachment concerning matters that would not otherwise be
permissible.” Charles W. Ehrhardt, Florida Evidence § 608.1 (2018
ed.). “Under this concept, the adverse party may be able to
introduce extrinsic evidence to contradict a specific factual
assertion made during the testimony of the witness, even if it
pertains to an otherwise collateral matter.” Id. Thus, “a testifying
defendant may open the door to impeachment with otherwise
inadmissible collateral crime evidence by ‘inaccurately testifying
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to material facts.’” Brookins v. State, 228 So. 3d 31, 37 (Fla. 2017).
To do so, “the defense must first offer misleading testimony or
make a specific factual assertion which the state has the right to
correct so that the jury will not be misled.” Robertson v. State, 829
So. 2d 901, 913 (Fla. 2002) (quoting Bozeman v. State, 698 So. 2d
629, 630 (Fla. 4th DCA 1997)). “The standard of review of a
determination of whether a party has opened the door is abuse of
discretion as limited by the rules of evidence.” Maharaj v. State, 78
So. 3d 63, 66 (Fla. 4th DCA 2012).

     Here, Appellant claims that the trial court abused its
discretion by admitting Appellant’s text messages to the victim as
impeachment evidence because those messages did not contradict
his testimony and were sent before the entry of the injunction. The
State correctly responds that Appellant opened the door to cross-
examination about those text messages because they contradicted
Appellant’s testimony that the victim repeatedly initiated contact
with him because she wanted them to get back together. The texts
showed it was Appellant who insisted on communicating with the
victim despite her efforts to avoid any further contact with him.
The trial court did not abuse its discretion by allowing the State to
introduce this evidence to correct Appellant’s inaccurate and
misleading testimony regarding the nature of his relationship with
the victim.

    AFFIRMED.

WOLF, WINOKUR, and JAY, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Andy Thomas, Public Defender, and Megan Long, Assistant Public
Defender, Tallahassee, for Appellant.




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Ashley Moody, Attorney General, and Jennifer J. Moore, Assistant
Attorney General, Tallahassee, for Appellee.




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