Opinion
Nos. 3D18-939 & 3D18-936
04-15-2020
David YEHEZKEL and Erik Yehezkel, Appellants, v. Yigit ARAL, Appellee.
Scott W. Sakin, P.A., and Scott W. Sakin (Fort Lauderdale), for appellants. Yigit Aral, in proper person.
Scott W. Sakin, P.A., and Scott W. Sakin (Fort Lauderdale), for appellants.
Yigit Aral, in proper person.
Before LINDSEY, MILLER and LOBREE, JJ.
LOBREE, J.
In this consolidated case, Erik and David Yehezkel (the "brothers" or "Yehezkels") appeal the issuance of permanent injunctions for protection against repeat violence against them, contending that the record failed to demonstrate that either of them committed two incidents of violence against Yigit Aral ("Aral"), as required under section 748.046, Florida Statutes (2018). We disagree and affirm.
The statute provides, in pertinent part:
(1) As used in this section, the term:
(a) "Violence" means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against any other person.
(b) "Repeat violence" means two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner's immediate family member.
§ 784.046, Fla. Stat.
The Petitions
Aral filed a separate petition for injunctive relief against each brother based on the same set of allegations. His petitions alleged that initially Aral and the Yehezkels were friends, but their relationship soured. On January 20, 2018, the Yehezkels sent Aral pictures of his intoxicated ex-girlfriend on their boat, which Aral believed was designed to provoke him into a physical altercation. After Aral forwarded the pictures to the Yehezkels’ girlfriends, the brothers began threatening him via text messages, videos, and phone calls, and also went to look for him to the gym where he used to exercise. The petitions alleged that on January 25, 2018, Aral was "accosted" by the Yehezkels at the gym while exercising, and he had to flee from them through the back door of the gym. The petitions further alleged that on March 18, 2018, the Yehezkels attacked Aral inside a club in Miami Beach, and, when he tried to leave the club after the fight was interrupted by a bouncer, they followed him outside and assaulted him again in a courtyard. Later that night, he allegedly received a phone call from the Yehezkels, threatening him to mark their words that he was "f**** dead." The following day, Aral filed a police report. He also sought medical attention for injuries that he sustained as result of the attacks. Aral finally asserted that the Yehezkels’ repeated threats and aggression caused him to be in fear for his safety. Based on the allegations, the trial court issued temporary injunctions for protection against repeat violence against the Yehezkels and later conducted a joint adversarial hearing.
Hearing
At the outset of the hearing, Aral confirmed under oath the veracity of his allegations in the petitions as to each brother. Testimony and evidence adduced established that on January 20th, the Yehezkels and several others, including Aral's ex-girlfriend and the Yehezkels’ friends who testified on their behalves, spent their day hanging out on the Yehezkels’ boat. While on the boat, the Yehezkels sent Aral a picture of his ex-girlfriend lying in bed with them from David's phone. The brothers and Aral's ex-girlfriend also made and sent Aral a short, sexually provocative video, which was introduced and played for the court.
Aral became angry and started sending the Yehezkels threating text messages, telling them, among other things, that "[they] really crossed [the line]," and that he was going to "f*** all of [them] up." He went to the Miami Beach marina to wait for the Yehezkels’ boat to return, so he could talk to them. Aral denied that he also went there to fight them. In contrast, the Yehezkels’ friends testified that upon their return to the marina, Aral began threatening the brothers and wanted to fight them, so security had to escort the Yehezkels off the premises. Aral further asserted that five days after the marina incident, the Yehezkels and three friends came to his gym to "accost" him. However, at the hearing Aral provided no detail as to what happened there.
Aral attempted to introduce a police report about what he alleged occurred at the gym, but the report was not admitted in evidence following a hearsay objection.
Aral next encountered the Yehezkels on March 18th, at Wall ("W"), a Miami Beach night club. Aral claimed that he tried to distance himself from the Yehezkels, but David would not leave him alone and threw ice at him. After being struck with ice in his head and face three or four times, Aral approached the table where the Yehezkels and their friends were sitting and said that he would be outside if they wanted to talk. The Yehezkels and their friends agreed. On the way outside, however, they all got into a fight. While in his petitions, Aral asserted that this fight was eventually broken up by a bouncer, at the hearing, he testified that two friends helped him to separate it. By contrast, none of the Yehezkels’ three friends saw David throw ice at Aral. Instead, they all testified that Aral approached David as they were leaving the club, struck him with a bottle above his right eye, and jumped on him while he was bleeding. They testified that Aral left the club after security stopped the fight and called the police.
Aral testified differently. He explained that after the fight inside was broken up, the brothers were asked to leave the hotel, and he waited an hour before he left. Then, the brothers and their friends attacked him again in the courtyard outside. Aral testified that David attacked him first, and then Erik started hitting him. Aral also said that he was kicked in the face and back of his head. Aral related that thereafter, he called the police and waited for them to arrive for about an hour, but they never did. Photos were introduced that were taken the next day at Mount Sinai Medical Center of Aral's bloody eyes, bruises, and what he described as a shoe print.
Two of the Yehezkels’ friends partially corroborated Aral's account, by discussing the fight that began in the courtyard, within ten to twenty minutes.
Aral further testified that after the fights at W, he decided to go to One Hotel, another club located nearby. Aral testified that the Yehezkels and their friends followed him and attacked him again at One Hotel, which the friends all denied. While this testimony might constitute another act of violence due to the temporal and geographic separation of the incidents, this evidence cannot support the issuance of the injunctions at issue. The brothers objected to consideration of such because nothing that occurred at One Hotel was alleged in the petitions, and Aral did not seek leave to amend his allegations. See Fuccio v. Durso, 48 So. 3d 1013, 1014-15 (Fla. 5th DCA 2010) (evidence that may have supported issuance of injunction for repeat violence did not support issuance of injunction for domestic violence, where petitioner was not given notice of alternate claim and issue was not tried by consent); Shocki v. Aresty, 994 So. 2d 1131, 1134 (Fla. 3d DCA 2008) (respondent was entitled to fair notice of charges and allegations and opportunity to present his own case regarding them).
Finally, Aral played a threatening phone message that he said he received from David's phone at 3:26 a.m. after the fights, in which David said, "Hey buddy, mark my words, you are f****** dead." At the conclusion of the hearing, the trial court entered permanent injunctions against repeat violence against both Yehezkels for two years. The court found that the testimony of the Yehezkels’ friends was not credible and believed that they were just covering for the brothers.
Analysis
The Yehezkels correctly maintain that an injunction against repeat violence must be based upon two separate incidents of violence. See § 784.046(1)(b), Fla. Stat. "A finding of only one incident of violence does not constitute ‘repeat violence’ under section 784.046." Gasilovsky v. Ben-Shimol, 979 So. 2d 1179, 1180 (Fla. 3d DCA 2008). We review an order granting an injunction against repeat violence "to determine whether each alleged act of violence is founded upon competent, substantial evidence." Shocki, 994 So. 2d at 1132 ; see also Smith v. Melcher, 975 So. 2d 500, 502 (Fla. 2d DCA 2007) ("To support an injunction against repeat violence, each incident of violence must be proven by competent, substantial evidence.").
Here, contrary to the Yehezkels’ contentions, Aral's allegations in the petitions and testimony at the adversarial hearing were sufficient to establish two separate incidents of violence as required by section 784.046(1)(b). As the Yehezkels concede, the March 18th incident concerning the fight at W constituted a qualifying incident of violence under the statute. However, a careful review of the record revealed that the evidence was sufficient to establish that more than one fight occurred between Aral and the Yehezkels that night, which were separated by both time and location.
Generally, multiple acts stemming from a single violent incident do not qualify as "repeat violence" under the statute if they are not separated by time or distance. See Levy v. Jacobs, 69 So. 3d 403, 405 (Fla. 4th DCA 2011). Rather, such acts constitute only "a single continuous incident of violence." Id. at 405-06. By contrast, where the two acts are sufficiently separated by time or distance, they may constitute separate incidents of violence supporting an injunction for protection against repeat violence. See id. at 406 (holding that respondent's attacks on petitioner were two separate incidents of violence, where first incident occurred outside lobby, second incident occurred inside lobby, and temporal break between incidents was five minutes). Thus, Aral's testimony that the Yehezkels attacked him both inside the club, and again outside in the courtyard some ten to sixty minutes later, was competent, substantial evidence to support the trial court's finding that the Yehezkels committed two incidents of violence directed at Aral within six months of the filing of the petition. Accordingly, the trial court's judgments are affirmed.
As such, we need not reach the Yehezkels’ alternative arguments regarding whether the additional text and telephonic threats and incident at the gym were sufficient to establish assaults or other incidents of violence.
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