LOT v. State

13 So. 3d 1121, 2009 Fla. App. LEXIS 9987, 2009 WL 2168705
CourtDistrict Court of Appeal of Florida
DecidedJuly 22, 2009
Docket3D08-1878
StatusPublished
Cited by4 cases

This text of 13 So. 3d 1121 (LOT v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
LOT v. State, 13 So. 3d 1121, 2009 Fla. App. LEXIS 9987, 2009 WL 2168705 (Fla. Ct. App. 2009).

Opinion

ROTHENBERG, J.

Mario Lot (“the defendant”) appeals his conviction and sentence for grand theft. We affirm.

The victim, Cole Mayer (“Cole”), is the beneficiary of a substantial trust established by his biological father, who was a part owner of Sloppy Joe’s Bar/Restaurant in Key West, Florida. Cole’s biological father died when Cole was two years old. When Cole was approximately six years old, the defendant and Cole’s mother became romantically involved, and the defendant helped Cole’s mother with household finances and bill-paying. Cole and the defendant enjoyed a father-son relationship.

Upon his eighteenth birthday (late in 2006), Cole sought and obtained the defendant’s advice on obtaining access to the trust. In January 2007, the defendant asked Cole for a $5,000 loan to pay a gambling debt the defendant had incurred. Cole wrote the defendant a check, and specifically noted on the memo line, “Loan Dad.” Cole testified that he told the defendant that this was a one-time thing, and that he would never again finance the defendant’s gambling. Although Cole was aware that the defendant was a gambler, he testified that when he loaned the defendant $5,000, he was unaware the defendant had a gambling problem.

Cole subsequently provided the defendant with a number of signed, blank checks, expecting the defendant to use the checks to pay some of Cole’s attorney and home improvement expenses. However, the defendant used the blank.checks to repay additional gambling debts, totaling over $100,000. Thereafter, Cole, his mother, and a family friend held an intervention, where they confronted the defendant with his gambling, and offered to assist him with getting help. The defendant admitted to having a gambling problem, vowed to repay Cole in full, and attempted to settle the matter without the authorities getting involved, however, Cole ultimately reported the theft to the police.

The defendant hired Joseph Spataro, who represented the defendant as defense counsel for five months, until Spataro accepted a position with the State Attorney’s Office in Key West. Before trial, the defendant moved to disqualify the entire Monroe County State Attorney’s Office. At the hearing, Spataro testified that after terminating his representation of the defendant and becoming employed by the Monroe County State Attorney’s Office, he was fully screened from the defendant’s prosecution, and he did not discuss the case with any of his colleagues or supervisors. The trial court denied the defendant’s motion to disqualify, and the case proceeded to trial.

During defense counsel’s cross-examination of Cole, the State objected to defense counsel’s attempt to highlight Cole’s gambling habits, contending that the questions were irrelevant to the true issue in the case — whether Cole had consented to the defendant’s use of the blank checks to finance his gambling. Defense counsel responded that he wanted to delve into Cole’s gambling to refute his testimony that he was unaware that the defendant had a gambling problem. The trial court sustained the objection, finding that the testimony sought was irrelevant evidence seeking only to establish bad character.

*1123 At the conclusion of the trial, on rebuttal closing argument, the prosecutor explained to the jury that people with addictions involving drugs, alcohol, or gambling, often do “evil things” in furtherance of their addiction — even to those they love — and those acts are not always performed in a sophisticated manner. Defense counsel objected and moved for a mistrial, arguing that the State had impermissibly suggested that the defendant was an alcoholic or a drug addict. The trial court denied the motion, the jury found the defendant guilty of grand theft, and this appeal followed.

The defendant contends that reversal is necessary because: (1) the trial court im-permissibly limited the cross-examination of Cole; (2) the trial court erred in denying the defendant’s motion for mistrial based upon the prosecutor’s statements during rebuttal closing argument; and (3) the entire Monroe County State Attorney’s Office should have been disqualified.

The Cross-Examination of Cole

The trial court limited defense counsel’s cross-examination of Cole by sustaining the State’s objection to a line of questioning regarding Cole’s gambling with his friends, where the defendant did not participate. The trial court found that these questions were irrelevant, and tended only to establish Cole’s bad character. On appeal, we review the trial court’s limitation of defense counsel’s cross-examination for an abuse of discretion. Moore v. State, 701 So.2d 545, 549 (Fla.1997) (“Limitation of cross-examination is subject to an abuse of discretion standard.”); accord Diaz v. State, 747 So.2d 1021, 1023 (Fla. 3d DCA 1999).

The defendant argues that the trial court abused its discretion by limiting his cross-examination of Cole and not allowing him to develop his main defense — that Cole was aware of the defendant’s gambling debts, that he willingly loaned the money to the defendant, and that he was aware that the money was going to be used to pay off the defendant’s gambling debts. We do not find that the limitation of defense counsel’s cross-examination was ' error. The record conclusively establishes that the defendant had a full opportunity to present testimony related to his defense, including testimony that Cole played poker with the defendant, and Cole was aware that the defendant gambled. The trial court’s limitation of defense counsel’s cross-examination of Cole pertained only to Cole’s own gambling habits in the absence of the defendant, which we agree was irrelevant and was properly excluded.

The State’s Rebuttal Closing Argument

During its rebuttal closing argument, the prosecutor made the following comments to the jury:

[T]he defense is somehow asking you to speculate that, oh, why would the defendant steal from this young man who he loves so much. Well, it’s an unfortunate thing, but addiction is evil. It’s an evil thing.
People who are addicted to drugs steal from their families. People who are addicted and who are alcoholics do some pretty evil things, too. People, they drive drunk, things that you wouldn’t expect them to do in order to get their alcohol. People who need their drugs do lots of things in order to get their drugs. Gambling is just as bad. This defendant had a gambling problem and was in such hot water with his bookies that he had to go and steal money from somebody. Where’s he going to get the money from? Well, the deepest well that he knows that he’s got some power over belongs to his stepson. Where else is he going to get the mon *1124 ey? Is it smart? No.... It doesn’t mean he didn’t do it.

The trial court denied the defendant’s contemporaneous objection and subsequent motion for a mistrial, finding that the testimony did reflect that the defendant had a gambling problem, which could be fairly characterized as an addiction, and that to suggest that people with addictions are often driven to out-of-character acts is “within the ambit of logic and common sense.”

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Cite This Page — Counsel Stack

Bluebook (online)
13 So. 3d 1121, 2009 Fla. App. LEXIS 9987, 2009 WL 2168705, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lot-v-state-fladistctapp-2009.