RAYON PAYNE, INDIVIDUALLY AND O/B/O C.P., A CHILD

v.

SANDRA KOCH

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

RAYON PAYNE, INDIVIDUALLY AND

O/B/O C.P., A CHILD, Appellant, v. Case No. 5D21-2420 LT Case No. 2021-DR-3154 SANDRA KOCH, Appellee. ________________________________/ Opinion filed January 28, 2022 Appeal from the Circuit Court for Seminole County, Susan Stacy, Judge. Rayon Payne, Orlando, pro se. No Appearance for Appellee.

PER CURIAM.

Rayon Payne appeals the trial court’s order dismissing his petition for injunction for protection against domestic violence, which found that the evidence presented was insufficient to warrant an injunction. He argues that

2 the trial court erred by excluding body-cam footage from a police officer present at the alleged incident giving rise to his petition. We reverse. The incident at issue concerned an altercation between Payne and the mother of his child, Sandra Koch. At the hearing, the trial court sustained Koch’s objection to the body-cam footage based on her claim that she had not received the video prior to the hearing. Payne had filed an affidavit of authenticity, which indicated that he had sent her a copy of the evidence via United States Postal Service two days before the hearing. The trial court excluded the evidence on the basis of surprise, noting it was “possible” that Koch did not receive the video prior to the hearing. This was error. Koch did not argue that she would be prejudiced by the admission of the video, nor did the trial court make any such finding. See Montero v. Corzo, 320 So. 3d 976, 980 (Fla. 3d DCA 2021) (noting that “in exercising its discretion in determining whether to permit [] untimely disclosed [evidence], the trial court should be guided largely by whether the [evidence] will prejudice the objecting party” (footnote omitted) (citing Binger v. King Pest Control, 401 So. 2d 1310, 1314 (Fla. 1981))). The trial court’s failure to address prejudice before exercising its discretion to exclude such evidence “will result in reversal.” Id. (citations omitted).

3 The trial court’s decision to exclude the video, which presumably would have been the strongest evidence to help determine the necessity of an injunction, left the court to decide the case based solely upon “he said/she said” testimony. While that is what trial courts routinely do in ruling on domestic violence injunctions, it was likely avoidable in this case. Absent an established claim of prejudice, Koch’s objection should have been overruled and the evidence admitted.¹ COHEN, WALLIS and HARRIS, JJ., concur.¹ Koch raised no other evidentiary or procedural objections.