              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED


                                          IN THE DISTRICT COURT OF APPEAL
                                          OF FLORIDA
                                          SECOND DISTRICT



CURTIS EDWARD FOSTER,            )
                                 )
           Appellant,            )
                                 )
v.                               )                  Case No.    2D14-1350
                                 )
STATE OF FLORIDA,                )
                                 )
           Appellee.             )
________________________________ )

Opinion filed September 30, 2015.

Appeal from the Circuit Court for
Highlands County; William D. Sites,
Judge.

Howard L. Dimmig, II, Public Defender,
and Maura J. Kiefer, Special Assistant
Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Susan M. Shanahan,
Assistant Attorney General, Tampa,
for Appellee.



KELLY, Judge.


             Curtis Edward Foster appeals from his judgment and sentences for

burglary of a conveyance, petit theft, and loitering or prowling. Because we agree with
Foster that the trial court erred by admitting as impeachment evidence certified copies

of his prior convictions, we reverse and remand for a new trial.

              The charges against Foster arose after an officer saw him behaving in a

suspicious manner near a parked vehicle at approximately 2:00 a.m. The officer

stopped his marked patrol car and asked Foster what he was doing. Foster told the

officer his sister lived nearby. He walked over to a house and knocked on the door but

when the porch light turned on, Foster started to walk away. The officer got out of his

car and made contact with Foster. During the encounter, the officer asked to conduct a

search of Foster, which included reaching into his pockets. Foster consented to the

search. Among the items found was a wallet containing a social security card that

belonged to an individual who had reported it stolen. Foster told the officer he found the

wallet.

              At trial, the officer described Foster's arrest and his statement that he

found the wallet. During cross-examination, the officer went on to testify that Foster had

told him he found the wallet inside of a garbage can and that he was going to turn it in to

police as found property. At this point, the State argued at the bench that because the

defense introduced exculpatory statements during the officer's cross-examination, the

State was entitled to introduce into evidence certified copies of Foster’s eleven prior

convictions. The State maintained that by cross-examining the officer about Foster's

statements, the defense had opened the door to Foster's credibility in the same way as

if Foster had testified. Defense counsel argued that because the State elicited part of

Foster's conversation with police on its direct examination of the officer, that Foster was

entitled to cross-examine the officer about other relevant statements made during the




                                            -2-
conversation. The trial court agreed with the State and, over defense objection,

admitted the certified copies of Foster's convictions into evidence under section

90.806(1), Florida Statutes (2013), which allows for the introduction of a defendant's

prior convictions when he elicits his own exculpatory, hearsay statement through

another witness during trial.

              Generally, a defendant's out-of-court self-serving exculpatory statements

are inadmissible hearsay. Lott v. State, 695 So. 2d 1239, 1243 (Fla. 1997). "[H]owever,

where the state has 'opened the door' by eliciting testimony as to part of the

conversation, [the] defendant is entitled to cross-examine the witness about other

relevant statements made during the conversation." Guerrero v. State, 532 So. 2d 75,

76 (Fla. 3d DCA 1988). "The 'opening the door' concept is based on considerations of

fairness and the truth-seeking function of a trial, where cross-examination reveals the

whole story of a transaction only partly explained in direct examination." Bozeman v.

State, 698 So. 2d 629, 631 (Fla. 4th DCA 1997).

              Here, the record shows that it was the State that first elicited testimony

from the officer that Foster said he found the wallet. Once the State presented a portion

of Foster's statement, Foster was entitled to have the jury hear the remainder of his

statement without fear of placing his credibility in issue. See id. Thus, the trial court

erred in finding that defense counsel's cross-examination of the officer opened the door

to Foster's impeachment by prior convictions.

              We reject the State's argument that any error was harmless because the

nature of Foster's prior convictions were not disclosed to the jury and the trial court gave

a limiting instruction that the convictions were relevant only to Foster's credibility. The




                                            -3-
harmless error test places the burden on the State to prove beyond a reasonable doubt

that there is no reasonable possibility that the error contributed to the conviction. State

v. DiGuilio, 491 So. 2d 1129, 1134 (Fla. 1986). Here, the State asked the jury to find

that Foster stole the wallet because it was found on his person after a voluntary search.

Because this case turned on Foster's credibility and whether the jury believed he found

the wallet, we cannot say beyond a reasonable doubt that allowing the jury to learn of

his prior criminal record did not contribute to the verdict. See id. Therefore, we reverse

and remand for a new trial.

              Reversed and remanded.




CRENSHAW and BLACK, JJ., Concur.




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