       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                             DANIEL LENZ,
                               Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D14-2268

                           [January 20, 2016]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Robert R. Makemson, Judge; L.T. Case No.
562013CF001569A.

   Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public
Defender, Assistant Public Defender, West Palm Beach, for appellant.

    Pamela Jo Bondi, Attorney General, Tallahassee, and Catherine Linton,
Assistant Attorney General, Assistant Attorney General, West Palm Beach,
for appellee.

GILLEN, JEFFREY DANA, Associate Judge.

   Daniel Lenz (hereinafter “Appellant”) appeals his conviction and
sentence for two counts of lewd and lascivious molestation of a victim
under the age of twelve. This appeal presents two issues for consideration:
whether the trial court abused its discretion in (1) overruling Appellant’s
relevance and unfair-prejudice objections to the State’s cross-examination
of him concerning whether the victim had motive to lie; and (2) allowing
the jury to hear recordings of Appellant’s telephone conversations with his
wife during which he discussed selection of potential defense counsel. For
the reasons set forth below, we reverse on both issues.

   In 2013, the then eleven-year-old victim confided in her mother that
Appellant, her step-grandfather, had touched her inappropriately when
she was younger, the touching having begun in 2007 when the victim
stayed with Appellant in his home after school. The victim’s mother went
to law enforcement leading to an investigation during which Appellant
admitted to tickling and squeezing the victim on her legs, and further
admitted he might, unintentionally, have “gotten a little high a couple of
times,” meaning around her vagina. During the investigation, Appellant
admitted touching the victim over her clothes only. Also during the
investigation, one of the officers told Appellant that they did not think the
victim was “a liar,” and Appellant agreed. While Appellant was in jail
awaiting trial, he conversed with his wife by telephone and the calls were
recorded. During those calls, Appellant told his wife that he would rather
not be represented by a public defender and expressed interest in hiring a
private lawyer whom Appellant opined knew “all the loopholes” as the
lawyer was a former prosecutor. During the trial, the trial court overruled
Appellant’s objections to the State’s questions of him on cross-examination
inquiring whether Appellant thought the victim had motive to lie. The trial
court also overruled Appellant’s objection to the State’s playing for the jury
the recordings of the jailhouse telephone conversations.

   The abuse of discretion standard is applicable for review of a trial
court’s decisions regarding the scope and control of cross-examination.
Carlisle v. State, 137 So. 3d 479, 484 (Fla. 4th DCA 2014).

    Here, the trial court incorrectly determined that Appellant had “opened
the door” concerning issues of the victim’s credibility. In his direct
testimony, Appellant repeatedly admitted that he touched the victim
several times near or on her vagina. He qualified that admission by saying,
in essence, that he never intended his touching to be pruriently or in any
way sexually motivated, thereby leaving for the jury only the question of
whether the touching constituted lewd and lascivious behavior.1
Furthermore, the record clearly demonstrates that on direct examination
Appellant did not attack or otherwise call into question the victim’s
credibility. “In order to open the door, the witness must offer misleading
testimony or make a specific factual assertion which the opposing party
has the right to correct so that the jury will not be misled.” Siegel v. State,
68 So. 3d 281, 288 (Fla. 4th DCA 2011) (citing Cullen v. State, 920 So. 2d
1155, 1156 (Fla. 4th DCA 2006)). It was the State’s questions of Appellant
during cross examination—not anything Appellant said during his
testimony on direct—which broached the subject of the victim’s credibility.
Thus, the trial court erred in finding that Appellant opened the door for
the State’s cross-examination questions which sought to elicit both
irrelevant and prejudicial responses concerning the victim’s credibility.2

   1   In other words, because Appellant did not dispute touching the victim’s
vaginal area over her clothes, Appellant was improperly prejudiced by having to
answer the question inquiring whether he felt the victim was “a liar.”
   2   While we are cognizant of the state’s argument that Appellant’s counsel’s
objection was not so contemporaneous nor specific as it could have been, we find

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   The trial court also erred by allowing the jury to hear audio recordings
of jailhouse telephone conversations between Appellant and his wife
during which they discussed his options regarding retaining counsel to
represent him in the criminal matter. See Johnston v. State, 863 So. 2d
271, 278 (Fla. 2003) (“A trial judge’s ruling on the admissibility of evidence
will not be disturbed absent an abuse of discretion.”).

    In Martinez v. State, 125 So. 3d 985, 989–90 (Fla. 4th DCA 2013), this
Court referred to the unyielding foundation the framers of our Constitution
laid protecting the selection of legal counsel in criminal proceedings. The
exchanges between Appellant and his wife concerning their potential
hiring of identified criminal defense lawyers was, unquestionably,
protected by the Sixth Amendment. This is true regardless of the fact that
Appellant, during one of the conversations, voiced his perception that one
of the lawyers “knew all of the loopholes.”3

   Reversed and remanded for a new trial.

WARNER and MAY, JJ., concur.

                              *          *          *

   Not final until disposition of timely filed motion for rehearing.


that it was sufficient to preserve the issue for review. Likewise, given all the
circumstances, we cannot find that the error here was harmless. Cf. Ramirez v.
State, 132 So. 3d 849, 852–53 (Fla. 4th DCA 2013).
    3   The state further argues that Appellant did not properly preserve this issue
for appellate review because he failed to request a pre-trial hearing to exclude
portions of the jailhouse calls and further failed to object at the time the State
moved to enter the recordings into evidence. See Aills v. Boemi, 29 So. 3d 1105,
1108 (Fla. 2010) (holding that proper preservation of error for appellate review
generally requires “a timely, contemporaneous objection at the time of the alleged
error”); see also Green v. State, 711 So. 2d 69, 70 (Fla. 4th DCA 1998) (holding
that the defendant’s “failure to object at trial to admission of contested evidence
waives the defendant’s right to claim on appeal the evidence was erroneously
admitted”). We have considered, and find no merit in, the state’s preservation
argument. While Appellant did not object to the admission of the recordings into
evidence, he did timely and contemporaneously object to their publication on the
basis that they contained inadmissible and prejudicial comments about his right
to counsel. That objection placed the trial court on notice of the error and
provided it with the opportunity to correct the error. See Harrell v. State, 894 So.
2d 935, 940-41 (Fla. 2005).


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