        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                 FOURTH DISTRICT

                            WAYNE DWIGHT FARR,
                                 Appellant,

                                         v.

                             STATE OF FLORIDA,
                                  Appellee.

                                 No. 4D16-3814

                               [November 8, 2017]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Robert E. Belanger, Judge; L.T. Case No. 2015CF001932A.

  Carey Haughwout, Public Defender, and Richard B. Greene, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey,
Assistant Attorney General, West Palm Beach, for appellee.

LEVINE, J.

    The issue presented for our review is whether the trial court erred in
allowing the state to bring out the nature of appellant’s prior convictions
in cross-examination after appellant testified to the year in which he was
charged for those crimes. We find that the trial court erred and as a result
we reverse. 1

   Appellant was charged with possession of cocaine and drug
paraphernalia. Police officers conducted a traffic stop on appellant’s
vehicle. After appellant refused consent to search the vehicle, the officers
called for a K-9 unit. Subsequently, the dog alerted to the rear passenger
side of the vehicle. The officers discovered a glue tube with thirty-three
crack cocaine rocks on the floorboard behind the driver’s seat within arm’s
reach of appellant. After receiving his Miranda warnings, appellant denied
owning the vehicle.


1Appellant also claims that the evidence presented at trial was legally insufficient.
We find this issue to be without merit.
   Appellant testified in his defense. The parties agreed appellant had
been previously convicted of a felony or crime of dishonesty four times.
Before appellant testified, the trial court instructed appellant that when
asked how many times he had been convicted of a felony or crime of
dishonesty, appellant was to answer “four.” He was told that if he
answered differently, he would open the door to allowing the state to put
the prior convictions in.

 The following exchange ensued when appellant testified:

         Q Okay. And you’ve had four, uh, felony crimes or crimes
         of dishonesty?

         A Yes sir, in 2010.

         Q Okay. Well -

         [THE STATE]: Uh, Your Honor, may we approach?

         THE COURT: Yeah.

         (Bench conference}

         [THE STATE]: He got out of DOC in 2013.

         THE COURT: Now he’s opened the door.

         [THE STATE]: Thank you.

         {End of bench conference)

         THE COURT: Any more questions?

         [DEFENSE COUNSEL]: One moment, Judge. (Pause)

         BY [DEFENSE COUNSEL]:

         Q Okay Mr. Farr, I know we asked you some questions
         about your past. That case originated in 2010?

         A Yes sir.

         Q Okay. And there’s two separate cases?


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         A Yes sir.

         Q Okay. And they each had two separate felonies each?

         A Yes sir.

         Q Or crimes of dishonesty?

         A Yes sir.

         Q For a total of four?

         A Yes sir.

         Q And those two cases were in 2010, that’s when they
         started, correct?

         A Yeah.

         [THE STATE]: Judge, objection, leading.

         THE COURT: Uh, sustained.

         BY [DEFENSE COUNSEL]:

         Q What year were those cases initiated?

         A Uh, one was in - well, they both was in 2010.

(emphasis added).

    During cross-examination, the state elicited testimony as to the nature
of appellant’s prior convictions:

         Q Uh, 2010, I want to refresh your recollection.

         A Yes ma’am.

         Q Actually it’s 2013 – I’m showing you what’s –these are
         what’s called judgment and sentences, they’re certified
         copies, if you can see at the bottom. Do you know what
         that means?

         A No, I’m not a lawyer.

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         Q That’s okay, I’m gonna explain it to you.

         A Okay.

         Q These certified copies of judgment and sentences show
         that your convictions are in 2013.

         A Okay. I - I know I caught my charges in 2010, I was done
         with my sentence in 2013.

         Q And what were those charges for?

         A Uh, one was –

         [DEFENSE COUNSEL]: Judge, objection.           Asked and
         answered. Direct - direct did not open the door that far.

         THE COURT: I’ll overrule the objection.

         BY [THE STATE]:

         Q What were those convictions for?

         A Uh, I had burglary of a dwelling unoccupied, I had, uh,
         grand theft, and I had a - no, I had two burglaries of a grand
         - of an unoccupied dwelling and I had two grand thefts.

         Q In 2013?

         A I was done with my sentence in 2013.

(emphasis added).

    The jury ultimately found appellant guilty as charged. Appellant moved
for a new trial, asserting that the trial court erred in allowing the state to
inquire into the nature of his prior convictions because he did not mislead
the jury when testifying about his prior crimes. The trial court denied the
motion and adjudicated appellant guilty. This appeal follows.

   We review evidentiary rulings concerning a defendant’s prior
convictions for abuse of discretion. Tilus v. State, 121 So. 3d 1145, 1149
(Fla. 4th DCA 2013).


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    Generally, impeachment by prior convictions “is restricted to
determining if the witness has previously been convicted of a crime, and if
so, how many times.” Ross v. State, 913 So. 2d 1184, 1186 (Fla. 4th DCA
2005); see also § 90.610, Fla. Stat. (2016). The prosecutor is generally
“not allowed to delve into the nature of a defendant’s prior convictions or
the circumstances surrounding them.” Ross, 913 So. 2d at 1186. “An
exception exists, however, when the defendant attempts to mislead the
jury about the prior convictions by, for example, trying to minimize them.
In such a case, the state is entitled to inquire further regarding the
convictions to dispel any false impression given.” Id. at 1187. See also
Baker v. State, 102 So. 3d 756, 759 (Fla. 4th DCA 2012) (“When a
defendant tries to characterize his or her prior convictions in a favorable
light at trial, the defendant is considered to have ‘opened the door’ and the
state is ‘entitled to inquire further regarding the convictions to attempt to
dispel any misleading impression.’”) (quoting Rogers v. State, 964 So. 2d
221, 223 (Fla. 4th DCA 2007)).

    Baker is instructive. In that case, the defendant testified that he did
not stop when the officer activated his lights because he had prior bad
experiences with the police based on what he perceived to be “profiling.”
Id. at 758-59. Finding that the defendant opened the door, the trial court
allowed the state to elicit testimony that the defendant had been previously
arrested for possession of marijuana. Id. at 759. This court found that
the defendant opened the door only to the fact that he had been previously
arrested, not the nature of the arrests. Id. We explained: “Because [the
defendant] suggested that his prior experiences with the police motivated
his conduct in this case, the state was entitled to explore the details of the
prior contacts in cross examination to test the veracity of his story.” Id.
However, the defendant’s “testimony did not give the state latitude to delve
deeper into the specific nature of [the defendant’s] prior arrests” because
that “had nothing to do with how the police treated him during these
encounters, experiences which he claimed as motivation for his actions in
this case.” Id. at 760.

   Further, in Ross, the defendant testified he had prior felony convictions
and that he pled guilty to those felonies because he was guilty of the
charges. 913 So. 2d at 1186. Over objection, the trial court allowed the
prosecutor to elicit testimony that the defendant had been previously
charged with possession of cocaine, robbery, and theft, and that he
received favorable plea offers by pleading to those charges. Id. This court
found the trial court erred in admitting evidence concerning the nature of
the defendant’s prior convictions. Id. at 1187-88. The defendant’s
testimony “amounted to nothing more than an implied assertion of
innocence on his current charges.” Id. at 1188. Any relevance that his

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plea to prior offenses was motivated by a favorable plea offer, as opposed
to a sense of guilt, was outweighed by potential prejudice, particularly
when the prior charge was similar to the current charge. Id. at 1187-88.

     As in Baker, although appellant’s testimony opened the door, it did
not open it so far as to admit the nature of the prior convictions. Appellant
testified that he had four prior felonies or crimes of dishonesty “in 2010.”
Assuming this testimony was misleading, it was misleading only insofar
as it created the false impression that appellant had not been in trouble
with the law in six years. Opening the door is not an all-or-nothing
concept. Rather, a court must consider “how wide” the defendant opens
the door. Id. at 1187. By testifying as to the date of the offenses, appellant
opened the door only as to the dates of convictions in the prior offenses.
Eliciting testimony as to the nature of the crimes, that being two counts
each of burglary and grand theft, did nothing to dispel the misleading
impression created on direct examination as to the timing of those
offenses. Simply put, the nature of appellant’s prior convictions was not
necessary to negate or dispel any false or misleading impression.

   Having established error, the next issue is whether the error is
harmless. Under the harmless error test, “the state, as the beneficiary of
the error, [must] prove beyond a reasonable doubt that the error
complained of did not contribute to the verdict or, alternatively stated, that
there is no reasonable possibility that the error contributed to the
conviction.” State v. DiGuilio, 491 So. 2d 1129, 1135, 1138 (Fla. 1986).
“The erroneous admission of collateral crimes evidence is presumptively
harmful.” Ross, 913 So. 2d at 1188. “Evidence that suggests a defendant
has committed other crimes or bad acts can have a powerful effect on the
results at trial.” Bozeman v. State, 698 So. 2d 629, 631 (Fla. 4th DCA
1997). This is particularly true here where, after finding appellant opened
the door, the court permitted evidence of appellant’s convictions for grand
theft and burglary of a dwelling. Such evidence was an impermissible
attack on appellant’s credibility. See Ross, 913 So. 2d at 1186; § 90.610,
Fla. Stat.

   Additionally, the issue in this case basically boiled down to the
credibility of appellant’s defense that he did not know the drugs were in
the car. Where a case turns on the defendant’s credibility, it cannot be
said that the error is harmless. Bain v. State, 422 So. 2d 962, 962 (Fla.
4th DCA 1982); Livingston v. State, 682 So. 2d 591, 592 (Fla. 2d DCA
1996); Foster v. State, 182 So. 3d 3, 5 (Fla. 2d DCA 2015). As such, we
reverse and remand.

   Reversed and remanded.

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GERBER, C.J., and MAY, J., concur.

                          *          *     *

   Not final until disposition of timely filed motion for rehearing.




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