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IN THE CIRCUIT COURT OF THE

FOURTH JUDICIAL CIRCUIT, IN
AND FOR CLAY COUNTY, FLORIDA.

CASE NO:

2015-DR-1646

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CARYN KELLY,
Petitioner,
-vsCHRISTOPHER PROHASKA,
Respondent.

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STATE OF FLORIDA )

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COUNTY OF CLAY

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Audio Recording before the Honorable Donald

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Lester, Judge of the Circuit Court, as cause in this

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matter was recorded on the 9th of September, 2015.

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OFFICIAL REPORTERS, INC.

421 WEST CHURCH STREET, SUITE 430
JACKSONVILLE, FL 32202
(904) 358-2090

APPEARANCES:

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JESSE DREICER, Esquire,

Appearing on behalf of the Respondent.

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P R O C E E D I N G S
THE COURT:

matter.

please?

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This is the Kelly against Prohaska

Could you state your name for the record,

MS. KELLY:

Caryn -- (Unintelligible) --

Kelly.
MR. DREICER:

Good afternoon, Your Honor.

name is Jessie Dreicer.

standing next to my left.

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THE COURT:

My

I represent Mr. Prohaska

And, Ms. Kelly, the Court was made

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aware that based on the nature of the allegations

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and also the length of time that --

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(Unintelligible) -- hearing is to have what is

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called a special set hearing for September 25th

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which is a couple of weeks from now at 9:00 o'clock

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to have a full hearing.

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MS. KELLY:

I would prefer to do this today.

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I have taken off multiple days of work last week in

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order to file and -- (Unintelligible) -- requested

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of me.

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requesting to just do this today.

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I can't keep taking off work so I am

THE COURT:

Okay.

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time we have.

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(Unintelligible).

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MR. DREICER:

We will see what kind of

I am not sure we have time -Take a seat.

Thank you, Your Honor.

(Recess.)

THE COURT:

matter.

are Caryn Kelly?

Okay.

Take up the Kelly, Prohaska

We will confirm again for the record you

MS. KELLY:

MR. DREICER:

Yes.
Good afternoon, Your Honor,

Jessie Dreicer.

THE COURT:

MR. PROHASKA:

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THE COURT:

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MR. DREICER:

And you are Mr. Prohaska?

Yes, sir.

All right, sir.

Before we get started with any

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testimony I would like to make a brief Motion to

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Dismiss based off just the four corners of the

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documents if the Court would entertain that.

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THE COURT:

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MR. DREICER:

All right.
Your Honor, we have looked

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within the allegations just -- (Unintelligible) --

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takes all of those allegations at face value with

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all reference to the petitioner, there is no acts

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of violence.

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come to the gym after a break up.

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it's not an act of violence.

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even an act of stalking.

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It would be allegations such as would

Again that's --

In fact, it's not

Would get angry if he did not get enough sex.

Again it's a gripe in a relationship.

Certainly

not followed by any physical or emotional violence,

followed by -- (Unintelligible) -- allegation.

of the allegations was infidelity found again.

It's a relationship issue.

of violence.

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One

It's not an allegation

If you look at the July 5th or 6th Key West

allegations --

THE COURT:

MR. DREICER:

That's what I am looking at.

Yes, sir.

It would appear as

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though they had consensual sex.

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was not consensual.

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the room.

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am not going to what the evidence would show but

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given that fact it doesn't say where the blood came

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from or it was an act of violence toward her,

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punching, slapping, hitting.

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there was blood in the room, and certainly, Your

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Honor, there is many reasons why blood could be

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there other than violence.

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It doesn't say it

There was a -- blood found in

However, it does not mention -- I know I

THE COURT:

It just says that

Respondent --

Allegation that he told her that

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if she takes something from him he would take

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something from her, and she asked if that was a

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threat and he said, yes, and she asked if he would

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kill her and he said, yes.

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MR. DREICER:

Sure.

Well, the United States

Supreme Court has recently just heard that almost

exact argument, and what the finding in United

States V. Nelson was that conditional threat is

actually not a threat, so if you say to somebody if

you take this from me then I will kill you actually

it goes all the way back to the -- (Unintelligible)

-- Eisenhower presidency days that says if I am

drafted I will shoot the president and they were

arrested for threat, and in another United States

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Supreme Court case because he was never drafted it

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was a conditional threat which they found not to be

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a threat.

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MS. KELLY:

How about the one --

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THE COURT:

Ma'am, hold on a second.

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MR. DREICER:

And given all light most

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favorable to the plaintiff in that allegation it's

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a conditional threat, and again if you look at all

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the other allegations there is no allegation, so

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you take that one and say when did he hit her, when

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did he stalk her, when he did push her and they

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just don't exist in the petition.

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She says that he punched his dog.

If you look

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at the strict language of 741.30 it actually says

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violence toward a family pet.

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together.

They never lived

They didn't dwell together.

This is a

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dating.
So in the light most favorable to her though,

it sounds terrible, it's not what these injunctions

are intended to do, and the sex tape allegation

that he said that he had made a sex tape that would

be a civil matter.

THE COURT:

MR. DREICER:

I understand.
And again not violence.

So --

and the other issue if you take the Key West matter

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and say I would want to know more, that would only

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be one act of violence with a conditional threat

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and it would not survive the two acts of violence

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in a dating relationship.

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THE COURT:

All right.

I am going to deny the

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motion and give her an opportunity to testify to

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violence or threatened violence.

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plenty of opportunity to cross examine her.

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MR. DREICER:

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THE COURT:

I will give you

Yes, sir.
All right.

So, Ms. Kelly, now

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that you have under oath I am going to give you the

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opportunity as I am sure you gleaned from counsel's

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argument this is dating violence, okay?

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made tapes of you and threatens to publish them, if

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he sent you text messages that you think are

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inappropriate that's not what we are here for

If he's

today, okay?

going to allow you to tell me now that you are

under oath all acts of violence or threatened

violence that he made against you.

This is dating violence, so I am

MS. KELLY:

The threat at the car at the gym

regarding if you take something from me and I will

take something from you and I said are you going to

kill me and he said point blank straight right in

the eye, and then he had threatened to push me out

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of the car while we were riding from Miami and I

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was like but the car is moving.

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would go ahead and roll with it because I was

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annoying him because I was asking him questions and

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he didn't tell me he didn't want to answer.

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I just assumed that he didn't want to answer.

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THE COURT:

He is like you

I mean

So you are riding back from Miami.

He is driving and you are in the passenger seat.

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MS. KELLY:

Passenger in his truck, yeah.

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THE COURT:

And he threatened to push you out

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of the car.

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MS. KELLY:

Uh-huh, yeah.

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THE COURT:

All right.

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MS. KELLY:

In regards to the hotel room, yes,

What else?

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it's consensual sex in the beginning, and I don't

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remember what happened and I have text messages

where a week later I was bleeding profusely.

couldn't get to the doctor because I didn't have

health insurance, starting a new position.

didn't know my provider, so I massaged him because

at that time we were broken up and I am like what

did he do, and he was telling me how he used his

fist on me and I am like something is not right.

It's not just a regular period.

bleed like this.

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THE COURT:

Like you wouldn't

So explain to me more.

He said he

used his fist on you?

MS. KELLY:

His fist, his whole fist vaginally

on me.

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THE COURT:

I am sorry.

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MS. KELLY:

And there was so much blood on the

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bed the next morning I turned the duvet over and I

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just didn't even -- I just went to the store and

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got some tampons -- (Unintelligible) -- about a

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week and-a-half later and I went through a whole

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box in two days.

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cramping.

That's not normal, and I was

I couldn't go to --

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THE COURT:

Did you ever have a medical exam?

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MS. KELLY:

By the time I went to go it was

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ten days after and they said that they couldn't do

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anything at that point to be able to --

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(Unintelligible) -- damage or not, and I didn't

have insurance at the time but the problem was I

started a new position.

yes.

So that -- that instance,

THE COURT:

Tell me about any other violence.

MS. KELLY:

I am sorry?

THE COURT:

Tell me about any other violence

or threats of violence.

MS. KELLY:

Just that -- those three right

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there.

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pet but it is a service animal.

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service animals.

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of dog.

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And I understand the dog is not a shared

THE COURT:

MR. DREICER:

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I mean they are a different kind

All right.

Mr. Dreicer, you can

cross exam.

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You cannot punch

Yes.

CROSS EXAMINATION
BY MR. DREICER:
Q

In regards to the dog, you first started

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dating you told Mr. Prohaska you had to put your dog

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down, correct?

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Yes.

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And his response to you that dogs were like

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family members and he was so sympathetic as to what you

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were going through and offered to go with you to put

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the dog down, correct?

He did.

And he owns his dog, correct?

Yeah.

And he loves his dog?

I would say that, yes.

He deploys to go oversees regularly?

Just from what he told me.

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I am not sure all

that has occurred.

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He keeps a full time relative to stay in the

house to care for his dog, correct?

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Well, he did.

He doesn't now.

He kicked her

out -- (Unintelligible).

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But that's what he had done in the past?

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Yeah.

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And those reasons had nothing to do with you,

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they were personal issues with some -- (Unintelligible)

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-- in the house, correct?

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No.

She didn't pick up his steroids as fast

as he wanted from the mail.

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That's what you think, right?

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No.

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That's what his niece told me.

MR. DREICER:

I object to hearsay and move to

strike.
THE WITNESS:

I have that in text messages,

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Your Honor.

THE COURT:

MR. DREICER:

She is saying what the niece

THE WITNESS:

The niece told me --

THE COURT:

told.

says.

BY MR. DREICER:

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She saying what he said?

You can't tell me what the niece

He runs with his dog and exercises with his

dog regularly?

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Yes.

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He has texted you dozens of times about what

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he is doing with his dog, taking him to the park and

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whatnot?

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Yeah.

I don't deny that he doesn't love his

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dog.

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where the dog could not run three or four days, and

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even the veterinarian has made notation on that.

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That's not what I said.

THE COURT:

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(Unintelligible).

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MR. DREICER:

He punched to the dog

I think what we are focusing on --

Your Honor, if I may use

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language freely at this point?

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messages are going to be adult language.

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THE COURT:
BY MR. DREICER:

Okay.

Some of the text

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Ma'am, you and Mr. Prohaska had sexy --

healthy sex relationship, right?

Yeah.

Okay.

You guys had lots of different kinds

of sex?

Yeah.

(Unintelligible) -- his wants more so.

Okay.

You would have sex when you were on

your period?

Uh-huh.

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You in fact admitted that you liked to have

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sex when you are on your period?

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Yeah.

Sometimes, yeah.

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Okay.

Now what you didn't tell the Judge

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today is that about two weeks after the Key West

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incident you took a pregnancy test, right?

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Right, because after the bleeding which we

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thought was a period and it really wasn't a period, so

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after two weeks I did take a pregnancy test because for

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almost six weeks I didn't have a period at all.

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So when you took a pregnancy test you told

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him as it turns out I probably was on my period in Key

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West?

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Possibly.

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So when there was blood in the hotel room

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from the sex that you guys were having it could have

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just been that you were on your period?

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No.

That was not period blood.

MR. DREICER:

One moment, Your Honor.

THE WITNESS:

A period does not last two or

three weeks.

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MR. DREICER:

THE COURT:

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May I approach?

Wait until he asks you a question.

Yes.

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Your Honor, I ask her to be

responsive to my question.

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(Unintelligible) -- that way.

THE WITNESS:

What is this?

BY MR. DREICER:
Q

Ma'am, if you would look through that.

Is

that -- if you would turn to page 185.

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What are the dates on these?

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If you look, ma'am, from -- (Unintelligible)

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-- 185 that would be 7/27.

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would be on there.

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it says I took a test this morning, it was negative,

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and that's you referring to a pregnancy test?

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need dates.

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toward --

If you look 184 the date

Do you remember saying in the text,

You know, I don't have dates on these.

There was a time when we were heading down

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Ma'am, you gave the prior --

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Excuse me.

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I am trying to answer your

question so I can clarify.

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Unfortunately this is my examination of you

and I didn't ask you a question.

would you turn to the prior page 184 you will see the

dates.

message that was ever sent between you --

With all due respect

They are printed out there, every single text

I don't see dates.

Are you on the prior dates?

I am trying to tell you there are no dates.

Are you on the prior date?

Would you look in

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the middle of the page where it says Monday, July 27th,

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and -- (Unintelligible)?

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MR. DREICER:

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May I approach the witness, Your

Honor?

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There's no dates written.

THE COURT:

Please.

Because I don't see them

either.
BY MR. DREICER:
Q

Okay.

The copy is so light.

I have the

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original so when they made copies you will see how

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light it is.

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THE COURT:

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Okay.

Just ask her to assume

that's the date.

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It has every single date and time.

MR. DREICER:

I can approach and show it to

her.
THE COURT:

Okay.

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BY MR. DREICER:
Q

And, ma'am, this conversation -- and you have

acknowledged that you sent the text messages saying --

it was right after two weeks after the Key West trip.

So if it was 7/27 that would be roughly about two weeks

after you got back?

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THE COURT:

THE WITNESS:

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Probably closer to three weeks

after our Key West trip.

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The question is 7/27 roughly two

weeks after your Key West trip.

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Right, and it also says here --

THE COURT:

Fine.

Ask your next question.

BY MR. DREICER:
Q

And after you told the negative, that you

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remember a conversation where he told you that's good

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and your response, fuck, yeah.

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after the hotel sex.

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earlier.

Maybe I started early

I don't know.

That was ten days

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I -- that's what I said, yes, but --

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Now throughout your relationship there were

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dozens of other texts where you would ask him to have

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sex with you while you were on your period and

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bleeding, correct?

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Okay.

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You don't deny that?

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No.

My point is when you --

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I don't understand your point.

THE COURT:

You make that point to me.

Just

ask your next question.

BY MR. DREICER:
Q

Ma'am, the -- so you are not denying that on

regular occasions you would be having sex while there

was blood, right?

Yes.

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One of your allegations that you made of

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violence was that while you were in the Keys he

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threatened you, is that correct?

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He didn't threaten me in the Keys.

He

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threatened me on the way back saying he would push me

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out of the motor vehicle.

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When you got back from the Keys you and he

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did not communicate, in fact you started communicating

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with him first?

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Because I wanted my yoga mat back from him.

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He was at the gym and I said, hey, by chance can I get

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my yoga mat.

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the phone and he wanted to take me to dinner that

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night.

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If you would --

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But a woman's period doesn't last three

He said sure.

We talked that morning on

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weeks.

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THE COURT:

There is no question pending.

BY MR. DREICER:
Q

You got back from the Keys roughly July 14th,

is that correct, July 14th, 15th and 16th, that's when

you guys started communicating again?

I don't have a calendar in front of me.

Will you look at page 150 and see if the

dates are clear on that page?

If not I can show you.

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Starting on page 150 going to 152 there is a series of

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text messages from you to Prohaska and not the other

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way around, correct?

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(Unintelligible).

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You were telling him that you were sorry?

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(No response.)

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Ma'am, you have to answer outloud.

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Yes.

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You were telling him that you feel bad about

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how things -- your previous allegations and you want to

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get back together with him if he is willing to get back

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together with you?

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Can I elaborate on what that was?

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Ma'am, why don't you answer my question?

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This is you asking to get back together with

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Mr. Prohaska, correct?

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Yes.

Okay.

This is you telling him that you are

sorry, correct?

Yeah.

You look at the next page, ma'am, page 152

there is another text from you that says I miss how

happy I was with you, correct?

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(Unintelligible) -- here but you are not

letting me tell you the context in which I sent them.

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THE COURT:

Ma'am, you will have an

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opportunity -- after he finishes your questioning

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you have an opportunity to explain to me whatever

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you want to explain.

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BY MR. DREICER:

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You don't deny that you sent that text?

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I told you, no.

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And you don't deny that you sent that text

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right when you got back from Key West which is the two

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acts of alleged conditional threat of violence that you

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made towards Mr. Prohaska, correct, to establish a

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timeframe, Tuesday, July 14th, 2015 --

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THE COURT:

What I want to know is the text we

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were just referring to on pages 150 to 152 were

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those after you got back from Key West?

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THE WITNESS:

I believe so.

I don't have

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dates on this.

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THE COURT:
BY MR. DREICER:
Q

Since the time that you got back from Key

West you and Mr. Prohaska got back together, correct?

Yes.

Okay.

Ask your next question.

You told him that you loved him and he

told you that he loved you?

I did love him.

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There is dozens of times where that happened?

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Because I did love him, yes.

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Sure.

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And you guys were intimate after the

Key West trip?

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Yes.

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And Mr. Prohaska never hit you?

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No, he never put his hands on me like that,

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never, and I didn't accuse him of that either.

Q

Sure.

So when you got back from the Keys

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with these two threats and the other allegations, there

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is no other allegation that you have that Mr. Prohaska

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did anything physical toward you or even threatened you

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in any way.

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He threatened me in the parking lot at his

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gym that he would kill me if I did anything, if I

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contacted the police department in Key West that he

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would kill me after taking a -- (Unintelligible).

Q

I am asking you after that, after what you

have told the Court now, you and Mr. Prohaska have

gotten back together at that point in time.

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Yeah.

He never did anything after that, and

I thought -- I thought we were doing fine.

And he never threatened you after that?

No.

And everything was going perfect when you

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guys had your gym dates, right?

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Yeah.

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Your weekend dates, right?

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Yeah.

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Your sex life resumed, correct?

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(No response.)

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Up until you guys broke up in August you had

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a perfectly loving relationship with Mr. Prohaska?

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Yes.

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In fact, you asked him to arrange a vacation

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for the two of you in December for your birthday,

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correct?

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Yeah.

He wanted to go on a cruise and I told

him -- (Unintelligible) -- the weekend of my birthday.

Q

And that was planned after you got back from

this Key West trip that he allegedly threatened you?

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Yes.

And you also asked him to set up a trip to go

to Fernandina with you where you guys would meet some

of your friends from north, you guys were going to meet

in the middle, correct?

Yes, but my girlfriend cancelled because what

he had said as far as threatening me.

to meet him because of that.

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She did not want

That's not what your girlfriend wanted, what

you wanted was to go on a trip with him?

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I wanted him to meet my best friend.

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And the third trip Mr. Prohaska was going on

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is a cruise in which he had someone bail on him and

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your response was why don't you reschedule so we can go

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together, correct?

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Yeah, but that was when he asked his

ex-girlfriend to go.
Q

And of course when you found out that he was

going without you you got really upset, correct?

A

Yeah.

Who goes on a cruise by themselves and

stays -- (Unintelligible) -- another girl?

Q

And when you got upset, Ms. Kelly, you sent

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Mr. Prohaska a series of text messages and

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communications where you initially wanted to work it

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out and you apologized for -- for getting in his

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business, correct?
A

Because I caught him cheating.

He has online

profile up and he got caught cheating, and all I did

was send a picture and a lot of people came to me and

said his profile was live, and I asked him that and

that's when he shut me down and we no longer talked.

And all of these things which we don't need

to go into are not a violent nature, it's just a normal

relationship breakup, correct?

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The injunction I was told, sir, to file --

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MR. DREICER:

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THE COURT:

Object.
There is a question pending,

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ma'am.

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connection with the breakup of the relationship?

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THE WITNESS:

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No, other than him trying to

blackmail me with a sex tape.

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Was there any violence that occurred in

THE COURT:

That's not what this is about.

There are other remedies for that.

BY MR. DREICER:
Q

And of course when you were breaking up for

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various reasons they were not of a violent nature,

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correct?

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communicate with you, is that correct?

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Mr. Prohaska simply didn't want to

I guess.
MR. DREICER:

May I have one moment, Your

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Honor?

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THE WITNESS:

People just go around

threatening your life and --

MR. DREICER:

I am going to ask --

(Unintelligible) -- the witness to be responsive

and not to narrate to the Court.

goes to the nature of the one allegation in the

case and you don't want to hear this any more just

tell me to move on.

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Only because it

BY MR. DREICER:
Q

Ma'am, I asked you if you had a healthy

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relationship in the bedroom but in fact some of the

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things that you liked to do were more than just -- you

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would ask him to spank you, to tease you, to pull your

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nipple?

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I did not ask him to ever spank me.

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You don't recall that?

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No.

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THE COURT:

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THE WITNESS:

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We don't need to go into that.

I mean I know he said you were

going to draw my personal stuff out.

THE COURT:
questioning.

Well, I just cut off the

Is there anything else?

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MR. DREICER:

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THE COURT:

Nothing, Your Honor.

Ma'am, are there any other

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witnesses that you want me to hear from?

MS. KELLY:

No.

THE COURT:

Okay.

MR. DREICER:

Mr. Dreicer, any evidence?

I have four witnesses in the

hallway and my client but I would renew my motion

at this point after hearing from the petitioner and

cross examination.

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The allegations contained in the petition I

don't think rise to the level of an injunction, and

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I ask the Court to make a direct ruling before I

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have to put on --

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MS. KELLY:

And we have --

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THE COURT:

The motion is going to be granted.

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The injunction is dismissed.

Have a seat.

(The proceedings were concluded.)

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C E R T I F I C A T E

STATE OF FLORIDA )

COUNTY OF DUVAL

I, Melanie D. Simpkins, Certified Realtime

Reporter and Registered Professional Reporter, certify

that I was authorized to and did transcribe the

foregoing proceedings and that the transcript is a true

and complete record to the best of my ability of the

recording.

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DATED this 4th day of October, 2015.

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/s/ Melanie Simpkins

MELANIE D. SIMPKINS
Certified Realtime Reporter
Registered Professional Reporter