Opinion
Case No. 3D99-3189.
Opinion filed March 27, 2002.
An Appeal from the Circuit Court for Dade County, Marc Schumacher, Judge. Lower Tribunal No. 97-21521.
Cain Snihur and May L. Cain, for appellant.
Robert A. Butterworth, Attorney General, and Jill K. Traina, Assistant Attorney General, for appellee.
Before SCHWARTZ, C.J., JORGENSON, J., and NESBITT, Senior Judge.
Hector Manuel Alvarez appeals from judgments of conviction for numerous counts of sexual battery on a minor. For the reasons that follow, we reverse and remand for a new trial.
The trial court abused its discretion in excluding the statement of Anachaka Perez, a friend of the victim's. In the jury's absence, the defense proffered Perez' testimony. According to Perez, the victim had stated in a telephone conversation that "her [the victim's] father was paying her off to say Hector [defendant] was molesting her." The statement was not hearsay, as it was not offered to prove the truth of its contents. See Kearney v. State, 689 So.2d 1310 (Fla. 5th DCA 1997);see also section 90.801(1)(c), Florida Statutes (1997). See generally Ehrhardt, Florida Evidence § 801.2 (2000 Edition).
"If an out-of-court statement is offered for a purpose other than proving the truth of its contents, the statement is admissible only when the purpose for which the statement is being offered is a material issue in the action." Ehrhardt, Id. In this case, the credibility of the defendant and his accuser were central to the case. Any evidence of the victim's motive to lie was relevant and admissible, and the exclusion of such evidence cannot be deemed harmless. Kearney, 689 So.2d 1310, 1311. "`[B]ecause liberty is at risk in a criminal case, a defendant is afforded wide latitude to develop the motive behind a witness' testimony.'" Barows v. State, 805 So.2d 120, 122 (Fla. 4th DCA 2002) (citing Auchmuty v. State, 594 So.2d 859, 860 (Fla. 4th DCA 1992)).
It is not necessary to elicit such testimony only through cross-examination; "when cross-examination alone is not sufficient to expose the possibility of improper motives in a witness, a defendant may present other impeachment testimony to demonstrate bias." Hair v. State, 428 So.2d 760, 762 (Fla. 3d DCA 1983).
We find no merit in defendant's remaining points on appeal.
REVERSED AND REMANDED.