NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

NELSON RIVERA, ) ) Appellant, ) ) v. ) Case No. 2D13-5639 ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________ ) Opinion filed December 11, 2015. Appeal from the Circuit Court for Lee County; J. Frank Porter, Judge. Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr. and Brooke Elvington, Assistant Public Defenders, Bartow, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellee.

SILBERMAN, Judge. Nelson Rivera appeals his convictions and sentences for eight drug offenses that he committed after a confidential informant (CI) befriended him. An initial brief was filed pursuant to Anders v. California, 386 U.S. 738 (1967), and this court subsequently ordered merits briefing on two issues. The State has failed to establish- 2 - that the error in prohibiting defense evidence of lack of a pri or criminal record to support Rivera's subjective entrapment defense was harmless; therefore, we reverse and remand for a new trial. Our dis position on the first issue ren ders moot the second issue, regarding the denial of a defense motion for continuance, and t hus we do not address the second issue further. Rivera contended that he was entrapped by the CI and raised a defense of subjective entrapment at trial. An undercover officer testi fied to four purchases of cocaine she made from Rivera i n the presence of the CI. The sa les occurred on June 20 and 22, 2012, and July 11, 2012. The CI did not testify at trial. Everything the officers knew about Rivera came from information received from the CI. Rivera testified to the CI's repeated efforts to convince him t o make cocaine sales at a time when Rivera was unable to pay his bills and provide for his wife and children. Rivera had worked as a site manager for Waste Ma nagement for ten years. He had earned $65,000 per year as a manager for the las t three years of his employment there. In August of 2011 he was laid off based on t he economy and lost his house and his car. Although Rivera did testify regarding his work history, the tr ial court denied defense counsel's request that Riv era be permitted to testify t hat he had no prior criminal record. Defense counsel made this request repeatedly. On one occasion counsel argued that Rivera was allowed to introduce evidence re garding his lack of criminal record because lack of predisposition is an element of the entrapment defense. And counsel was correct that i t went to "the heart of" Rivera's subjective entrapment- 3 - defense–Rivera's sole defense. Contrary to the State's asserti on, we conclude that Rivera sufficiently preserved this issue for review. The defense of subjective entrapment is codified in section 77 7.201, Florida Statutes (2013). See Munoz v. State, 629 So. 2d 90, 99 (Fla. 1993). To establish this defense, the defendant has the burden to first p rove by a preponderance of the evidence that a government agent induced him to commit t he charged offense. Id.; State v. Henderson, 955 So. 2d 1193, 1195 (Fla. 4th DCA 20 07). Second, the defendant must produce evidence of l ack of predisposition to co mmit the crimes. Munoz, 629 So. 2d at 99. Once the defendant produces this evid ence, the burden shifts to the State to rebut the evidence beyond a reasonable doubt. Id. If the first two elements are met, then the third consideration is whether the e ntrapment defense should be submitted to the jury. Id. at 100; Henderson, 955 So . 2d at 1195. Inducement is defined as including "persuasion, fraudulent representations, threats, coercive tactics, harassment, promise s of reward, or pleas based on need, sympathy or friendship." Henderson, 955 So. 2d at 1195 (quoting Farley v. State, 848 So. 2d 393, 395 (Fla. 4th DCA 2003)). Whe n a government agent simply provides the defendant "with the opportunity to commit a crime, the entrapment defense is of little use because the ready commission of the cr iminal act amply demonstrates the defendant's predi sposition." State v. Bennett , 710 So. 2d 661, 662 (Fla. 2d DCA 1998) (quoting Jacobson v. United States, 503 U.S. 540, 550 (1992)). Here, Rivera testified that the CI was aware that Rivera was "h urting" financially and that the CI called him repeatedly and acted aggressively to con vince Rivera to- 4 - participate. Rivera also testified that the CI provided Rivera with the supplier to obtain the cocaine. With respect to predisposition, the lack of a prior criminal r ecord is relevant, and evidence of lack of a criminal record is admissib le to support an entrapment defense. See Oyler v. State, 162 So. 3d 200, 201 (F la. 5th DCA 2015); Sykes v. State, 739 So. 2d 641, 642 (Fla. 1st DCA 1999). In Sy kes, the court determined that the error was prejudicial and reversed and rema nded for a new trial when the trial court prohibited the defendant from introducing evidence of lack of a criminal record to support his entrapment defense. 739 So. 2d at 642. And in LeBron v. State, 127 So. 3d 597, 604 (Fla. 4th DCA 2012), the Fourth Dist rict determined that it was error to exclude testimony regarding the defendant's work h istory because steady employment was relevant to the defendant's lack of predispositi on. The Fourth District determined that the error was not harmless when entrapment was the defendant's main theory of defense. Id. Here, the State contends that the error is harmless. But the lack of predisposition went to the heart of Rivera's sole defense. He was prevented from showing that he lacked predisposition before the CI allegedly p ersuaded him to sell the cocaine. We cannot say that the exclusion of the evidence of R ivera's lack of a prior record was harmless. The State, as beneficiary of the error, h as the burden to prove harmless error. McDuffie v. State, 970 So. 2d 312, 328 (Fla. 2 007). Harmless error occurs when no reasonable possibility exists that the error con tributed to the defendant's conviction. Id. "It is well-established that the harmless error test 'is not a sufficiency-of-the-evidence, a correct result, a not clearly wr ong, a substantial evidence,- 5 - a more probable than not, a clear and convincing, or even an ov erwhelming evidence test' but the 'focus is on the effect of the error on the trier -of-fact.' " Id. (quoting State v. DiGuillio, 491 So. 2d 1129, 1139 (Fla. 1986)); see also Ortiz v . State, 654 So. 2d 1002, 1003 (Fla. 4th DCA 1995) (determining that, despite the defenda nt's "past connection to the drug world, the jury still could have believed that [the de fendant] was not predisposed to commit this particular crime" and stating that i t could not say beyond a reasonable doubt that the exclusion of corroborating testimony of inducement did not contribute to the jury's decis ion). Further, the harmless erro r test does not allow the appellate court to weigh the evi dence and substitute itself for the jury. DiGuillio, 491 So. 2d at 1139. Because we cannot say beyond a reasonable doubt that the exclu sion of evidence regarding Rivera's lack of a prior criminal record did not contribute to his convictions, the State did not m eet its burden to show that the error was harmless. Therefore, we reverse his conv ictions and sentences and remand for a new trial at which Rivera may present evidenc e that he has no prior criminal record. Reversed and remanded for new trial.

NORTHCUTT and SALARI O, JJ., Concur.