County Criminal Court: CRIMINAL LAW – Evidence – Trial court did not abuse its discretion in refusing to allow certain cross-examination testimony of victim to be heard by the jury; trial court has wide discretion in making determinations regarding the admissibility of evidence.  Judgment and sentence affirmed.  Mazzola v. State, No. CRC10-00011APANO (Fla. 6th Cir. App. Ct. September 10, 2010).

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

 

DARREN JOHN MAZZOLA

 

            Appellant,

 

v.                                                                                                                   Appeal No. CRC 10-00011 APANO

                                                                        UCN522009MM025099XXXXNO

                                                                                       522010AP000011XXXXCR

STATE OF FLORIDA

            Appellee.

__________________________________/

 

 

Opinion filed _____________________.

 

Appeal from a judgment and sentence

entered by the Pinellas County Court

County Judge Robert G. Dittmer

 

Thomas Matthew McLaughlin, Esquire

Attorney for Appellant

 

Joseph T. Murray, III, Esquire

Attorney for Appellee

 

 

ORDER AND OPINION

 

            PETERS, Judge.

THIS MATTER is before the Court on Appellant, Darren John Mazzola’s, appeal from a conviction, after jury trial, of Violation of Injunction for Protection Against Dating Violence, a first degree misdemeanor, in violation of § 784.047 Fla. Stat. (1995).  After review of the record and the briefs, this Court affirms the judgment and sentence.

Factual Background and Trial Court Proceedings

            On March 5, 2009 a Final Judgment of Injunction for Protection Against Dating Violence was entered after notice to Mr. Mazzola, the Respondent in that proceeding.  The injunction was personally served on and explained to the Appellant on March 16, 2009 by a detective from the Pinellas County Sheriff’s Office.  That injunction provided the following in bold print:

            This injunction shall be in full force and effect until … March 5, 2010.  This injunction is valid and enforceable throughout all counties in the State of Florida.  The terms of this injunction may not be changed by either party alone or by both parties together.  Only the Court may modify the terms of this injunction.  Either party may ask the Court to change or end this injunction.

 

            Willful violation of the terms of this injunction, such as refusing to vacate the dwelling which the parties share, going to Petitioner’s residence, place of employment, school, or other place prohibited in this injunction, telephoning, contacting or communicating with Petitioner, if prohibited by this injunction, or committing an act of dating violence against Petitioner constitutes a misdemeanor of the first degree punishable by up to one year in jail, as provided by sections 775.082 and 775.083, Florida Statutes.  (Emphasis added).

 

On November 13, 2009, a Misdemeanor Information was filed charging the Appellant with violating the injunction by telephoning, contacting, or otherwise communicating with the victim on August 28, 2009.  Mr. Mazzola allegedly telephoned the victim ten to fifteen times over a period of a “couple of hours” and in the process made several insulting and vulgar comments.  The victim did not answer all of the calls and two voice mail messages were left by Mr. Mazzola.  The caller ID on the victim’s telephone indicated all of the calls came from a “restricted” number.  A Sheriff’s Deputy answered one of the calls.  In January 2010, a jury trial was conducted.  During the trial, Mr. Mazzola’s trial counsel sought to cross-examine the victim concerning a prior contact she had initiated with Mr. Mazzola.  In a proffer, the victim testified; that sometime in August she saw Mr. Mazzola walking in the parking lot of Big Lots, she stopped her car to talk to him, he did not get in her car, she did not invite him to call, she did not tell him the injunction was not in place, she did tell him she would consider dropping the injunction, and she did not invite him to say any of the things that he said to her over the phone on August 28, 2009.  After the presentation of the proffer and argument of counsel the trail court refused to allow the cross-examination.  The jury found the Appellant guilty.

Issue

            The issue presented in this appeal is the propriety of the trail court’s refusal to allow the disputed cross-examination.

Standard of Review

A trial court has wide discretion concerning the admissibility of evidence, and, in the absence of an abuse of discretion, a ruling regarding admissibility will not be disturbed. Jent v. State, 408 So.2d 1024, 1029 (Fla. 1981); See Williams v. State, 967 So.2d 735, 747-48 (Fla.2007), cert. denied, 552 U.S. 1283, 128 S.Ct. 1709, 170 L.Ed.2d 519 (2008); Johnston v. State, 863 So.2d 271, 278 (Fla.2003). That discretion, however, is limited by the rules of evidence. Johnston, 863 So.2d at 278.  A trial judge's rulings on the admission or exclusion of evidence are reviewed under the abuse of discretion standard.  LaMarca v. State, 785 So.2d 1209, 1212 (Fla.2001).   Under the abuse of discretion standard, ‘[d]iscretion is abused only ‘when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable [person] would take the view adopted by the trial court.’  Trease v. State, 768 So.2d 1050, 1053 n. 2 (Fla.2000) (quoting Huff v. State, 569 So.2d 1247, 1249 (Fla.1990)).”  Frances v. State, 970 So.2d 806, 813 (Fla. 2007).

The  Disputed Cross-Examination

The Appellant’s argument, simply stated, is the State had to prove Mr. Mazzola willfully violated the injunction and by not allowing the disputed cross-examination testimony the Appellant was prevented from showing his violation of the injunction was not willful.  Specifically, that Mr. Mazzola could have reasonably believed that contact was permitted because the victim had initiated prior contact with him.

The difficulty with this argument is that it ignores the express language of the injunction. That final injunction, the principal point of which was to prohibit any contact with the victim, could only be modified by the Court.  The injunction was personally served on and explained to Mr. Mazzola.  His notice of the injunction is not an issue.  See Suggs v. State, 795 So2d 1028, 1030 (Fla. 2nd DCA 2001).  Mr. Mazzola’s argument that, under the circumstances of the present case, he could have reasonably believed that victim contact was permitted, would require this court to approve his professed ignorance of the clear requirements of the final injunction as a defense.  We decline to do so.

Even if it is assumed the disputed cross-examination testimony is relevant, the trial court would still have to decide if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues or misleading the jury.  § 90.403, Fla. Stat. (1976).  In making that determination a trial court has wide discretion.  Given the facts of the present case, a trial judge could reasonably decide not to allow the disputed cross-examination.  The decision of the trial court in the present case was not an abuse of discretion.  It was lawful and appropriate.   There was no error.

Conclusion

            For the reasons set forth above, this court concludes that the issue raised by the Appellant is without merit.  The judgment and sentence of the trial court were lawfully entered and should be affirmed.

IT IS THEREFORE ORDERED that the judgment and sentence of the trial court is affirmed.

            ORDERED at Clearwater, Pinellas County, Florida this ____ day of August September, 2010.

 

Original order entered on September 10, 2010 by Circuit Judges Michael F. Andrews, Raymond O. Gross, and R. Timothy Peters.

 

 

 

 

           

cc:       Honorable Robert G. Dittmer

            Thomas Matthew McLaughlin, Esquire

Office of the State Attorney