         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D17-741
                 _____________________________

KELVIN D. MADISON,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Leon County.
Angela C. Dempsey, Judge.

                      November 30, 2018


PER CURIAM.

     Kelvin Madison was convicted of capital sexual battery, lewd
or lascivious molestation, attempted capital sexual battery, and
false imprisonment. On appeal, he argues that inadmissible
evidence—his refusal to submit a DNA sample at an interview
before he was arrested—was erroneously admitted. 1 We affirm
Madison’s convictions because the defense opened the door for the



    1 Madison also argues that the trial court erred in granting
his motion for judgment of acquittal as to the attempt charge and
that a new sentencing hearing was required. We affirm these
arguments without comment.
admission of      this   evidence     while   cross-examining   the
investigator. 2
                                 I.

     At trial, the victim’s mother testified that the victim was
having regular menstrual cycles when she was ten years old, but
missed them for three straight months. The mother had the
victim urinate in a cup and bought two pregnancy tests, both of
which returned positive. The mother asked the victim’s
godmother, who was in a relationship with Madison, to speak to
the victim. When the victim identified Madison, the three went to
the police station to file reports. One day soon after reporting the
incident, the victim woke up in intense pain and bleeding heavily,
and the mother brought her to the emergency room believing she
might have suffered a miscarriage. The doctors did not want to
put the young child through further examinations to determine if
she had ever had sex. The godmother also testified that the
victim identified Madison, adding that the two had spent a fair
amount of time alone together for various reasons.

     The victim testified that she considered Madison to be a
godfather and loved him, but something bad had happened. She
testified that she was in a bedroom at her godmother’s house one
day when Madison came in, took her clothes off, took his own
clothes off, touched his penis to her vagina, touched her breasts,
attempted to touch his penis with her mouth, and prevented her
from leaving the room, warning he would hurt her if she told
anyone what occurred.

     Dr. Sarmed Ashoo, the physician who saw the victim when
she was brought to the emergency room, could not tell if the
victim had been pregnant. The victim’s blood tested negative for
the HCG pregnancy hormone, which would likely be in the blood
of someone two months pregnant. However, Dr. Ashoo also
testified that the victim could have tested negative for HCG if she

    2  Our holding on this issue renders superfluous any
discussion as to whether the trial court’s initial exclusion—based
on Menna v. State, 846 So. 2d 502 (Fla. 2003), and Allen v. State,
192 So. 3d 554, 558 (Fla. 4th DCA 2016)—was correct.

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had just had a miscarriage, and admitted to never before having
a potentially pregnant eleven-year old as a patient.

     The State also presented the testimony of Paul Osborn, an
investigator in the special victims unit of the Tallahassee Police
Department, who observed the victim’s interview with the Child
Protection Team and contacted Madison for an interview. A
portion of the recorded interview was played where Madison
stated that he was shocked that the victim was pregnant and did
not know who was responsible. On cross-examination,
Investigator Osborn explained that, although he collected
evidence from the victim’s home, including the underwear she
wore on the night of the presumed miscarriage, none of the
evidence collected contained fetal tissue relevant for DNA testing.
Madison extensively questioned Investigator Osborn about his
failure to secure additional evidence, particularly DNA evidence,
additionally positing the following:

    • So really what we have here, you have an abso – you
      have no DNA evidence. You did the investigation,
      right?
    • So there’s no DNA evidence from anything. You don’t
      know whether the child or the person or the woman
      has had sex or not. So really what you have – the only
      thing you have is what the girl said.
    • Do you have any other evidence besides the child’s
      word that this guy raped her?

    At a subsequent sidebar conference, the State moved to
admit evidence that Madison refused to submit a DNA sample
during his interview with Investigator Osborn—evidence the trial
court ruled inadmissible prior to trial—arguing that Madison
opened the door to such evidence. The trial court agreed that
Madison opened the door and, over his objection, allowed the
State to introduce the rest of Investigator Osborn’s interview
where he told Madison that they would be able to determine the
father through a DNA comparison and Madison refused to
provide a DNA sample.




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                                II.

     We review a trial court’s ruling on evidentiary issues for
abuse of discretion. See Brunson v. State, 31 So. 3d 926, 928 (Fla.
1st DCA 2010). “Opening the door” is an evidentiary concept that
“allows the admission of otherwise inadmissible testimony to
‘qualify, explain, or limit’ testimony or evidence previously
admitted,” is premised on fairness, and may be used to “negate
the misleading impression given by defense counsel’s”
questioning. Rodriguez v. State, 753 So. 2d 29, 42 (Fla. 2000)
(quoting Tompkins v. State, 502 So. 2d 415, 419 (Fla. 1986)). This
concept applies “when one party’s evidence presents ‘an
incomplete picture’ and fairness demands the opposing party be
allowed” to complete it. Brunson, 31 So. 3d at 928 (quoting
Hudson v. State, 992 So. 2d 96, 110 (Fla. 2008)).

     We find that the questions related to Investigator Osborn’s
investigation opened the door to the evidence that Madison
refused to provide a sample of DNA. In Dennis v. State, 817 So.
2d 741, 751 (Fla. 2002), the police interviewed a witness who
stated that he lent the defendant the shotgun used in the
murders and threw out the gun when the defendant returned it
afterwards. Cross-examining the detective who conducted the
interview, the defense “focused on the failure of the police to
pursue” this individual, who the defense argues was the prime
suspect, attempting “to demonstrate that the police essentially
‘chose’ to believe” the witness. Id. at 751-52. The trial court
permitted the investigator to rely on hearsay testimony to
respond to this accusation. Id. at 752. The Florida Supreme Court
held that the cross-examination opened the door for the State to
rebut “the defense’s implication that the officers’ investigation
was less than thorough, relying solely on [the witness’s] word to
arrest the defendant.” Id. at 753.

     Similarly, Madison suggested that Investigator Osborn was
less than thorough (“You did the investigation, right?”) and the
arrest relied solely on the victim’s words (“So really what you
have – the only thing you have is what the girl said,” and “Do you
have any other evidence besides the child’s word that this guy
raped her?”). Madison’s refusal to submit a DNA sample, which
might easily rule him out as the individual who impregnated a

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ten-year old, could be considered suspicious and tending to
corroborate the victim’s allegations and identification of Madison
as the perpetrator. In this context, Madison’s cross-examination
asking whether Investigator Osborn had any evidence besides the
victim’s allegations, while knowing he was not permitted to
mention Madison’s own refusal to provide DNA, opened the door
for the State to admit the rest of the recorded interview. We find
no abuse of discretion in the trial court’s ruling.

    AFFIRMED.

B.L. THOMAS, C.J., and WINOKUR, J., and KETCHEL, TERRANCE R.,
ASSOCIATE JUDGE, 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.
               _____________________________


Michael Ufferman of Michael Ufferman Law Firm, P.A.,
Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Julian E. Markam,
Assistant Attorney General, Tallahassee, for Appellee.




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