Articles Posted in Sex Crimes

During a trial, there are many decisions that a defendant and their counsel need to make. One of the most important decisions in many trials is whether or not the defendant should take the stand and testify on their own behalf. Many of the aspects of a trial, such as legal strategy and specific arguments to make, are generally the decision of the attorney. However, defendants have an absolute right to take the stand on their own behalf, whether or not their lawyer thinks this is a good plan. If an attorney does not allow the defendant to act as a witness on their own behalf, and the defendant is convicted, under some circumstances, the conviction may be thrown out due to ineffective assistance of counsel. If you are charged with a sex crime in St. Petersburg or the surrounding areas, it is important that you contact a skilled St. Petersburg sex crime attorney as soon as possible to help you craft your legal strategy.Ineffective Assistance of Counsel

In this case, the defendant was charged with lewd or lascivious molestation, unlawful sexual activity with a minor, and capital sexual battery. During the trial, the state presented a witness who had also accused the defendant of sexual abuse. A Florida law called the “Williams” rule allows the trial court to permit evidence leading to the conclusion that the defendant had committed similar crimes in the past. Since there was no physical evidence in the case that was being tried, the testimony of the alleged victim of a similar crime by the defendant was a large part of the state’s case. The victim of the crime with which the defendant was charged testified, but due to his mental disabilities, the other witness’ testimony was considered especially illuminating.

During the trial, the defendant stated that he knew he had a right to testify but chose not to testify. The defendant was later arguing that he had ineffective assistance of counsel because he was not allowed to testify. The trial court denied the post-conviction motion. Here, the Second Circuit Court of Appeals in Florida held that the appropriate rule was two-pronged. The first part was whether the defendant was able to testify if they wanted. The appeals court held that the affirmations made by the defendant during the trial were sufficient to conclude that he was aware of his right to testify and chose not to use it. However, the court here also looked at the second part of the test, which allows a claim for ineffective assistance to go forward if it was unreasonable for the attorney to not let the defendant testify.

Taped phone conversations can go a long way in proving a state prosecutors’ case, but the discussions they reveal are often out of context, confusing and difficult to follow. That’s not to mention that they regularly include information that’s not relevant to the case and could even be prejudicial to the person charged with a crime. Florida’s First District Court of Appeal recently explained how judges way the value of such evidence against its possible prejudicial effect.

Defendant was charged with conspiracy to tamper with a victim, stemming from a recorded jail cell phone call between Defendant and his girlfriend. He was in jail at the time facing charges of molestation against a minor. During the phone call, Defendant asked his girlfriend to “get a hold of” the victim and “talk to her” and to “get a hold of” the victim’s mother “and let her know.” He also asked her to “let them know that somebody stole my phone” and to “call the investigator’s office tomorrow and find out who brought you that phone because you could go press charges on them.”

Prosecutors sought to enter a seven-minute clip of the 17-minute conversation as evidence at trial. They agreed, however, not to mention in court that Defendant was believed to have tampered in a molestation case. But Defendant’s attorney argued that entering the part of the conversation about the supposed stolen phone and in which he asked his girlfriend to contact investigators was irrelevant and prejudicial. He said it would allow the jury to speculate about the underlying charges in which he was charged with tampering.

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Probation is an alternative to prison time that in some cases allows a person convicted of a crime to spend less or no time behind bars. In Florida sex crime cases, judges generally have the power to impose various restrictions on people convicted of sex crimes. A recent case out of Florida’s Second District Court of Appeal explains some limits on how those restrictions are imposed.

Defendant entered into a plea agreement after being charged with various sex crimes stemming from undisclosed allegations. He pled guilty to traveling to seduce, solicit or entice a child to commit a sex act and to transmission of material harmful to minors. A judge sentenced Defendant to more than two years in prison. Defendant was also designated as a sex offender, based on the traveling to seduce offense, and got sentenced to an additional six years of probation. As a condition of that probation, he was restricted from having contact with or being in proximity to children.

Defendant appealed the sentence, arguing that he shouldn’t have been given sex offender probation based on the circumstances. He pointed out that the plea agreement made clear that the victim was not a child. While the case was on appeal, the First District Court of Appeal held in a separate decision that a judge must orally pronounce the specific terms and conditions of sex offender probation. Those that the judge doesn’t pronounce are not enforceable, the First District said. But the Fourth District Court of Appeal disagreed with that ruling in a separate case of its own. The appeals court said a judge that orders a person to serve sex offender probation “need not individually specify each item contained within the umbrella of sex offender probation conditions.”

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A person who is charged with a Florida sex crime generally has the right to have his or her guilt decided by a jury. When these cases go to trial in Florida, closing arguments are an essential part of the process because they are the last chance for lawyers on both sides to make their cases to the people tasked with making a decision. Florida’s Fourth District Court of Appeal recently explained that prosecutors have some leeway as to how they make those arguments.Defendant was charged with lewd or lascivious molestation of a child under the age of twelve. He allegedly molested his step-daughter’s friends while they were sleeping over at his home. One of the girls testified that Defendant touched her inappropriately while she was pretending to be asleep on one occasion and placed her hand on his penis on another occasion. The two other girls—called as witnesses to establish that Defendant had a penchant for this behavior—said they were similarly molested.

A state prosecutor addressed the jury in closing statements at the end of trial. The prosecutor told the jury that he’d recently been watching a documentary on lions, who attack their prey in the dark, and that it reminded him of Defendant. That is exactly what the defendant did, the prosecutor said. “He came in when they were supposed to be sleeping and he … did what he wanted to do to them, touching them” in an inappropriate way. The defendant was eventually convicted of the charges.

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The mental stability of the person charged with a crime is often at the center of Florida sex crime cases. Generally, a court may determine that a defendant doesn’t have the mental capacity to adequately understand the charges against him. In these situations, a judge may postpone or scrap criminal proceedings against the person. But the judge also has the authority to order that the defendant be committed to a secure facility in the meantime. A recent case out of Florida’s First District Court of Appeal is a good example of some of the legal issues that can come up in these types of cases.Defendant was charged in 1996 with committing two counts of lewd and lascivious acts in the presence of a child. A court eventually deemed him incompetent to stand trial on those charges because of an intellectual disability. The charges were later dropped when Defendant was civilly committed to a secure residential facility. Defendant eventually went back to court, asking to be released from the facility. He argued that the court no longer had jurisdiction over the case because the maximum penalty he could face for the charges was 15 years and he had spent more than that time in the facility. The trial court disagreed.

Affirming the decision on appeal, the First District agreed with Defendant that he couldn’t be forced to spend more time in the facility than the maximum possible penalty for the crimes with which he was charged. But it also agreed with the trial judge that Defendant could get up to 15 years for each offense. At the time the state legislature passed a law limiting secure facility detention, the court said there was already a separate statute in place allowing judges to sentence criminal defendants to consecutive (running one after the other) instead of concurrent (running at the same time) jail stretches for each offense.

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Probation is often an attractive alternative to prison time for anyone convicted of a Florida sex crime. A recent case out of Florida’s Supreme Court, however, makes clear that probation sentences can come with some fairly restrictive terms and conditions.Defendant was arrested in 2009 and charged with lewd computer solicitation of a child and traveling to meet a minor for unlawful sexual activity. He pleaded guilty to both charges. He also asked the judge for sex offender probation and house arrest instead of prison time. The judge rejected that request, sentencing Defendant to four years behind bars, followed by 11 years of sex offender probation.

The judge also made clear as a term of Defendant’s probation that he was barred from accessing the internet, possessing a computer or smartphone that has internet access, and having an email address. Defendant went back to court after serving his prison time. He appealed the probation portion of the sentence, arguing that the judge imposed additional terms on the probation, including a mandatory curfew, a ban on living within 1,000 feet of a school, child care facility, park, playground, or other place where children regularly congregate, and the completion of a sex offender treatment program. Defendant said the court couldn’t impose those restrictions because the judge didn’t announce them orally at the original sentencing hearing.

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A federal appeals court recently took up a case in which a trial court sought to effectively put a man convicted of various child pornography offenses in Florida behind bars for life. The appeals court said that sentence might have been overly harsh, given the unique circumstances of the case. It also shed some light on search and seizure issues in Florida sex crime cases.

Defendant was charged with various crimes related to the possession and distribution of child pornography, stemming from his use of a smartphone application messaging board called Kik. He allegedly used false names to send nude photos of girls to young boys and asked them to send nude photos of themselves in return. At least some of the boys responded by providing the photos of themselves, according to the court. When some tried to end the conversations with Defendant, he allegedly threatened to post the photos on Instagram and other social media platforms unless they sent more photos. Defendant also allegedly traded the photos with another online user in exchange for various child pornography photos and videos.The FBI began monitoring Defendant’s Kik account after receiving complaints. FBI agents eventually traced the account to the home where Defendant lived with his parents and sister. They determined that he was the most likely user of the account in the house. They interviewed Defendant, who eventually admitted to using the account to trade the nude photos. He also agreed to allow the agents to search his electronic devices. When he was later charged with various federal crimes, Defendant asked a judge to keep out from trial his confession to the agents and all of the evidence obtained during the searches. Defendant argued that the agents intimidated Defendant and his family in a way that made him feel he had no choice but to admit that he was using the account and consent to the search. A trial judge disagreed. He was convicted and sentenced to 139 years in prison.

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The Florida Supreme Court in 2015 clarified its position on when a person can be charged with soliciting sex and traveling after soliciting sex without running afoul of the rule against double jeopardy, which bans multiple convictions for the same crime. In a recent case, Florida’s First District offered some important insight into how appeals courts are interpreting that ruling. Essentially, multiple text or other messages can be considered different solicitations under Florida sex crime laws.

A defendant was charged with two crimes after exchanging sexually explicit text messages with an undercover police officer who he thought was a 14-year-old girl and then traveling to Tallahassee to meet the person for sex. He was convicted of traveling for sex with a child after using a computer to solicit a child for sex and using a computer to solicit a child for sex. He argued on appeal that the convictions violated the rule against double jeopardy by punishing him twice for the same crime.The First District initially rejected the double jeopardy argument but decided to take another look at the case after the Florida Supreme Court ruled in a case called State v. Shelley. The high court in that case said solicitation and traveling after solicitation cannot be treated as separate crimes if they are “based upon the same conduct.” But the First District said that ruling didn’t change the outcome of this defendant’s case.

“After Shelley, the law is clear that a single solicitation cannot support a conviction for solicitation and a separate conviction for traveling after solicitation,” the court explained. It also said the burden was on the defendant to prove that the convictions violated the double jeopardy rule, which the court concluded he failed to do.

To search your phone for evidence of a crime, police officers generally need to get a warrant from a judge or show that they have probable cause to believe that there’s evidence of a crime on the device. Even in cases in which a judge grants a warrant, any evidence obtained from the search is likely to be excluded at trial if the warrant wasn’t issued based on probable cause. As a federal court in Pensacola recently pointed out, however, judges get a lot of leeway in deciding whether to issue a warrant.A defendant was charged in February with one count of knowingly possessing and accessing child pornography. The charge came after he went to a local MetroPCS store in Pensacola, looking for some assistance with his cell phone. The MetroPCS employee assisting him observed a large amount of pornographic material stored on the phone. The employee also said she saw a folder marked “underage,” which she didn’t open. The employee contacted a tip line at the National Center for Missing and Exploited Children.

The defendant, who was already a registered sex offender, was arrested by state police on a separate charge for failing to tell authorities that he had moved. State police took the cell phone and turned it over to the FBI, which obtained a warrant from a judge authorizing law enforcement officers to search the phone. They allegedly found some 40 images of child pornography. The defendant sought to have that evidence kept out of the trial against him. He argued that the affidavit the FBI filed in court to get the warrant wasn’t based on probable cause. The district court disagreed.

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The rule against hearsay generally bans one person from testifying in court about what another person, like a witness or victim, said outside of court, if it’s being used to prove a fact. In other words, a witness generally can’t testify in court that the victim told him who committed the crime. Florida’s Third District Court of Appeal recently pointed out one of many important limits on this rule: It can’t stop other evidence proving the same fact to be entered into the record.Mr. Jefferson was charged with attempted armed sexual assault and armed false imprisonment, stemming from an incident near the Aventura Mall in South Florida. An 18-year-old woman was walking home from her job at the mall when Jefferson asked her repeatedly if she needed a ride and told her to get in. The woman obliged because it was raining heavily. She later said that Jefferson drove in the wrong direction and then offered her money to have sex with him. Jefferson grabbed her and pulled out a gun when she refused, she said. The woman managed to escape – without her cell phone and one shoe – when Jefferson pulled in to a nearby park. A local homeowner called 911 when the woman began screaming when she was caught on a fence attempting to escape Jefferson, according to the court.

Jefferson admitted at trial that he had picked up the woman and offered to pay her for sex. He also said she refused and ran away once the car was parked. Prosecutors introduced the 911 tape – which included the victim and the homeowner speaking with an emergency operator – among other evidence at trial. They also introduced testimony from a local police officer about what the homeowner told him the day after the incident. According to the officer, the homeowner said he heard woman screaming, went out to check, found the victim stuck on a fence, and saw a man walking to a black car nearby.

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