Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT VICTOR MANUEL ) ALVARADO-CONTRERAS, ) ) Appellant, ) ) v. ) Case No. 2D18-3383 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed December 2, 2020. Appeal from the Circuit Court for Hillsborough County; Thomas P. Barber, Judge. Howard L. Dimmig, II, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee. ATKINSON, Judge. Victor Manuel Alvarado-Contreras appeals his conviction and sentence for sexual battery. See § 794.011(5)(b), Fla. Stat. (2016). He argues that the trial court erred in denying his request to impeach the victim with evidence of the victim's bias. We reverse his conviction and sentence and remand for a new trial. At the time of the alleged crime, Alvarado-Contreras and the victim lived in a house with several other people, including the victim's boyfriend and the victim's sister, with whom Alvarado-Contreras was romantically involved. At trial, the victim gave testimony supporting the jury's verdict that Alvarado-Contreras had committed sexual battery against her. At the time of the crime, both individuals' romantic partners (Alvarado-Contreras's girlfriend, who was the victim's sister, and the victim's boyfriend) were absent from the residence, but another roommate and that roommate's child were present in another room. Alvarado-Contreras sought to introduce the testimony of the victim's sister, his girlfriend. Alvarado-Contreras argued that the victim's sister would have provided testimony that was relevant to show the victim's testimony against him was motivated by bias towards her. The victim's sister would have testified that her daughter had caused the victim’s former husband to be jailed and deported after accusing him of sexual battery, and she would have testified that the victim considered the accusation against her former husband to have been false. The trial court rejected Alvarado-Contreras's request to present the testimony, concluding that such evidence was inadmissible as a specific instance of misconduct. The trial court did allow the victim's sister to testify as to the victim's reputation in the community, which she described as untruthful and dishonest. After the jury found him guilty as charged, Alvarado-Contreras filed a motion for new trial arguing -2- in part that the trial court abused its discretion in ruling that evidence of the victim's bias against his girlfriend was inadmissible. The trial court denied the motion. A trial court's ruling on the admissibility of evidence is reviewed for an abuse of discretion, but such discretion is limited by the rules of evidence. See Hudson v. State, 992 So. 2d 96, 107 (Fla. 2008). A trial court's "erroneous interpretation" of the rules of evidence is reviewed de novo. Pantoja v. State, 59 So. 3d 1092, 1095 (Fla. 2011) (quoting McCray v. State, 919 So. 2d 647, 649 (Fla. 1st DCA 2006)). Section 90.608(2), Florida Statutes (2016), allows a party to attack the credibility of a witness by showing that the witness is biased. "Matters that demonstrate bias include prejudice, an interest in the outcome of a case, and any motivation for a witness to testify untruthfully." Williams v. State, 912 So. 2d 66, 68 (Fla. 4th DCA 2005). The trial court erroneously excluded the testimony of the victim's sister on the basis that it was a specific act of misconduct. This is not a scenario in which a party seeks to introduce a witness's prior bad act in order to impeach her credibility. Cf. Pantoja v. State, 990 So. 2d 626, 628 (Fla. 1st DCA 2008) (recognizing "the well-settled rule that a witness' credibility may not be attacked by proof that she committed specific acts of misconduct that did not end in a criminal conviction"), approved, 59 So. 3d 1092 (Fla. 2011). Rather, Alvarado-Contreras sought to introduce evidence intended to prove the victim had a reason to be biased against her sister and, by proxy, against him—in other words, the admission of otherwise extraneous facts suggesting a motive to testify falsely as opposed to the admission of specific acts committed by the witness suggesting that she lacks credibility. "Extrinsic evidence is admissible for collateral impeachment as 'evidence which would discredit a witness by pointing out the witness’s -3- bias, corruption or lack of competency.' " Smith v. State, 98 So. 3d 632, 637 (Fla. 4th DCA 2012) (quoting Correia v. State, 654 So. 2d 952, 954 (Fla. 4th DCA 1995)). However, "[e]vidence of bias may be inadmissible if it unfairly prejudices the trier of fact against the witness or misleads the trier of fact." Mardis v. State, 122 So. 3d 950, 954 (Fla. 4th DCA 2013) (quoting Breedlove v. State, 580 So. 2d 605, 609 (Fla. 1991)); see also Tobin v. Leland, 804 So. 2d 390, 393 (Fla. 4th DCA 2001) ("Evidence of bias is subject to balancing under the provisions of section 90.403[, Florida Statutes] . . . ."). "Therefore, inquiry into collateral matters, if such matters will not promote the ends of justice, should not be permitted if it is unjust to the witness and uncalled for by the circumstances." Nelson v. State, 704 So. 2d 752, 754 (Fla. 5th DCA 1998) (quoting Breedlove, 580 So. 2d at 609)). Alvarado-Contreras argues that the trial court erred by failing to admit the testimony that the victim was disgruntled about what she perceived to be her niece's false accusations of sexual abuse against her former husband which resulted in his incarceration and deportation. Such testimony would have been relevant to show the victim had a potential motive, bias, or interest in falsely accusing Alvarado-Contreras of sexual battery as revenge against her sister, Alvarado-Contreras's girlfriend. The State argues that the testimony of the victim's sister was not relevant and did not demonstrate that the victim was biased against Alvarado-Contreras, characterizing the testimony as highly speculative. Even if the proffered testimony had some remote relevance, the State argues, the danger of confusion and unfair prejudice outweighed any probative value. -4- Contrary to the State's assertion, the testimony of the victim's sister was relevant to prove the victim's potential interest in falsely accusing Alvarado-Contreras— that the victim's bias against her sister could have motivated her to provide false testimony against her sister's boyfriend, Alvarado-Contreras. "Florida courts have recognized that a criminal defendant's dealings with or relationship to a third party could bias a witness' testimony against him." Martin v. State, 797 So. 2d 6, 8 (Fla. 4th DCA 2001) (quoting Jones v. State, 678 So. 2d 890, 892 (Fla. 4th DCA 1996)). "It makes no difference that the bias or prejudice stems from an incident involving the state witness and a family member of the accused rather than the accused himself, as long as the evidence tends to establish that the witness is appearing for any reason other than to tell the truth." Hannah v. State, 432 So. 2d 631, 631–32 (Fla. 3d DCA 1983) (reversing the trial court's exclusion of evidence that the defendant’s cousin had once accused the eyewitness of stealing because the testimony could have suggested the eyewitness had a vengeful motive for his identification of the defendant); see also Davis v. State, 527 So. 2d 962, 963 (Fla. 5th DCA 1988) (holding the trial court erred by limiting cross- examination of the defendant's daughter about a burglary complaint filed by the defendant against the daughter's boyfriend because the accusation could have served as the daughter's motivation to retaliate against the defendant by leveling a sexual assault charge against him). The State's contention that the testimony of the victim's sister would have been too speculative to be admissible is not persuasive. Objective certitude cannot logically be required for a jury to perceive an accuser's potential bias as cause for reasonable doubt. Cf. The Florida Bar v. Marable, 645 So. 2d 438, 443 (Fla. 1994) -5- ("Circumstantial evidence is often used to prove intent and is often the only available evidence of a person's mental state."). And "[c]onsiderable latitude should be accorded a defendant in attempting to establish bias, including allowing inquiries that might at first blush appear to be lacking any basis at all thus far in the trial, so long as counsel states a basis tending to ultimately show such bias." Purcell v. State, 735 So. 2d 579, 581 (Fla. 4th DCA 1999). "If there is any doubt that the witness may have a bias capable of crafting a scenario out of thin air, then the defendant should have a right to explore that bias before the jury." Mitchell v. State, 862 So. 2d 908, 912 (Fla. 4th DCA 2003); see Williams, 912 So. 2d at 68 ("Because liberty is at risk in a criminal case, a defendant is afforded wide latitude to develop the motive behind a witness's testimony."). The State does not elaborate on its assertion that any probative value of the victim's potential bias would have been outweighed by danger of confusion or unfair prejudice, and the record does not support that the testimony would have posed such a risk. This situation is not one posing a danger that jurors would be confused about how the evidence fits into a narrative established by other facts. See, e.g., Love v. State, 971 So. 2d 280, 286 (Fla. 4th DCA 2008) (reversing exclusion of testimony showing bias because it "was not a case where the bias was 'too remote in time from the incident in question' or without any connection to the case" (quoting Lee v. State, 422 So. 2d 928, 931 (Fla. 3d DCA 1982))). To the contrary, reasonable jurors could readily understand the theory of competing sex crime allegations and would be free to accept or reject Alvarado-Contreras's argument that the victim was attempting to visit upon her sister what she had suffered as a result of the perceived fabrication against her husband by her niece. -6- Nor can it be said that the evidence would have been unduly prejudicial. Although arguably sensational in subject matter, the impeachment evidence would not have been a deleterious distraction or an undue impediment to the State's ability to make its case. And the testimony would not have cast the witness herself in such a bad light as to cause prejudice that outweighed the defendant's right to admit relevant evidence. Cf. Fajardo v. State, 193 So. 3d 1019, 1025 (Fla. 4th DCA 2016) (finding exclusion of cross-examination regarding a matter that would expose bias or a motive to be untruthful erroneous because a "defendant's right of confrontation is paramount to the state's interest in protecting a witness from prejudice"); see also Shaw v. State, 831 So. 2d 772, 774 (Fla. 4th DCA 2002) ("As used in this context, 'unfairly prejudice' does not mean that the proposed testimony will cause the trier of fact to reject the opponent's evidence. Rather, it means that the proposed evidence would be invidious as regards the subject at issue."). The testimony was not unfairly prejudicial, and it was probative of a State witness's potential bias or possible interest in testing falsely. As such, the trial court erred by excluding it. The State argues that even if the trial court erred in precluding evidence of the victim's alleged bias, the error was harmless. The State makes passing reference to what it summarily describes as overwhelming evidence of Alvarado-Contreras's guilt in the form of DNA evidence, text messages between Alvarado-Contreras and the victim, and Alvarado-Contreras's statements during a controlled phone call. In so doing, it did not meet its burden "to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable -7- possibility that the error contributed to the conviction." State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla. 1986). At trial, the State presented evidence of a text-message discussion between Alvarado-Contreras and the victim, which was alleged to have occurred shortly after the crime. The discussion seemed to indicate that both individuals acknowledged they had interacted that morning. During the discussion, Alvarado-Contreras acknowledges that he had "fooled around" with the victim but tells her that she had also "fooled around" with him, which he attributes as the reason he had "crossed the line" that day.1 He swore that it would not happen again. The exchange regarding the nature of the events of that day was continued during a controlled phone call with a detective listening in. It was during that call that the victim first indicated that the encounter was nonconsensual. However, the phone discussion did not include an admission by Alvarado-Contreras that he had had sex with the victim or that anything he had done was without her consent. And while the presence of his sperm cell DNA was certainly inculpatory, in the context of the other evidence presented at trial it cannot be considered overwhelming proof that the nature of the interaction that occurred between Alvarado-Contreras and the victim was nonconsensual. The record does not reflect that there is "no reasonable possibility" that failure to allow evidence of the victim's bias could have contributed to the jury's 1There was some discussion during trial as to whether the Spanish term appearing in the text messages could best be described in English as "joking around" or "fooling around," but the victim seemed to indicate that the latter might foster a better understanding of the meaning intended by the parties to the conversation. -8- conclusion that she had been truthful when she recounted her version of the encounter with Alvarado-Contreras. See id. at 1135; see also Smith v. State, 679 So. 2d 30, 31 (Fla. 4th DCA 1996) (holding that error of excluding testimony concerning bias of two key witnesses was not harmless because it "went to possible motive the witnesses may have had to exaggerate or even completely fabricate their testimony"); Davis, 527 So. 2d at 963 ("[C]onsidering the critical importance of the daughter's credibility in this case, we cannot conclude, beyond a reasonable doubt, that this error was harmless."); see also Jones v. State, 678 So. 2d 890, 892 (Fla. 4th DCA 1996) ("The ability to expose an improper impetus for a witness' testimony is an essential component of the right to a jury trial."). Accordingly, we must reverse Alvarado-Contreras's conviction and sentence and remand for a new trial. Reversed and remanded for a new trial. KHOUZAM, C.J., and SLEET, J., Concur. -9-