St. Petersburg Criminal Lawyer Blog

When sex crime and other criminal cases involve more than one defendant, it can be tough to establish who committed what crime. That’s often made more complicated by co-defendants who turn on one another and blame each other for committing the crimes. A recent case out of Florida’s Fourth District Court of Appeal makes clear that courts look at “innocent bystander” defenses with quite a bit of skepticism.Mr. Henry and another person where charged with robbing four teenagers at gunpoint and then forcing them to engage in multiple sex acts with each other. The teenagers – three boys and one girl – were smoking marijuana and playing cards in an abandoned house when Henry and his friend arrived and joined in. The other man pulled a gun, ordered the victims to put their stuff on a table, told the girl to take off her pants, and then used a pencil to penetrate her vagina, according to the court. Henry and the other man took turns holding the gun while directing the victims to perform various sex “scenes,” the court said. A third man eventually arrived at the house, confronted Henry and his friend and told the victims to leave.

Henry was convicted of four counts of false imprisonment, three counts of robbery and 17 counts of sexual battery with a firearm. He later appealed the sexual battery conviction, arguing that there wasn’t enough evidence to show that he performed a sex act, instructed any of the victims to perform a sex act or that he threatened or pointed a gun at any of the witnesses. He likened the situation to that in Lovette v. State, a 1994 cases in which the Florida Supreme Court scrapped sexual battery charges against a man involved in an armed robbery who was not in the room when his co-defendants committed sexual battery.

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Jury instructions are important in any criminal case. They’re particularly critical in cases in which a jury is tasked with deciding whether a person committed a felony or a related misdemeanor offense instead. A recent case out of Florida’s Supreme Court makes clear that judges don’t have the right to simply choose not to tell a jury that a person facing felony charges could instead be convicted of a misdemeanor.F.W. was charged with various crimes related to his alleged molestation of three boys over an 11-year period from 2000 to 2011. At trial, all three boys testified that F.W. touched their genitals, and one victim testified that F.W. put the victim’s penis in his mouth. At the close of trial, the judge instructed the jury on the various crimes with which F.W. had been charged. The judge did not, however, tell the jury about the crime of offense of unnatural and lascivious act, a second degree misdemeanor.

F.W. was eventually convicted of two counts of lewd or lascivious molestation against a victim less than twelve years old, three counts of lewd or lascivious molestation against a victim between twelve and sixteen years old, and one count of lewd or lascivious battery against a victim less than sixteen years old. He was sentenced to life in prison. The Second District Court of Appeal later affirmed the conviction, rejecting F.W.’s claim that the judge should have allowed the jury to consider convicting him of the lesser offense of unnatural and lascivious act.

The Florida Supreme Court sided with F.W. on further appeal. The court said F.W. was entitled to have the jury instructed on the lesser offense because it included all of the elements of the other crimes with which he was charged.

Electronic evidence like emails and text messages are often at the center of Florida sex crime cases. A recent federal case out of the Eleventh Circuit Court of Appeals is a good example of how that evidence often comes into play.

In 2015, an FBI agent responded to a Craigslist ad posted by the defendant. The ad allegedly used code words indicating that he was looking to have sex with young children. The agent posed as the father of a 10-year-old boy and 13-year-old girl. The defendant expressed an interest in having sex with the kids during a series of subsequent email exchanges, according to the court. He later confirmed that interest in a recorded phone call. He was arrested after driving to the place where he and the agent had agreed to meet.He consented to having his email and cellphone searched, along with his car. He also agreed to allow officers to assume his online identity. He admitted to posting several ads soliciting sex with children. He also acknowledged that he had agreed with the agent to meet for the purpose of having sex with a minor. A search of his cellphone turned up all of the emails with the FBI agent. He additionally told the cops that he had communicated with another person about having sex with the man’s 12-year-old child four years earlier. Those communications eventually ended when the man stopped responding, he told the police.

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Anyone charged with a crime in Florida has the right to have a fair and impartial jury of his or her peers determine guilt. The state’s Fourth District Court of Appeals recently explained in a sex crime case that jurors who make clear during the jury selection process that they can’t give the person charged a fair shake should be left off the jury.The defendant was charged with a variety of crimes, including sexual activity with a child, lewd or lascivious molestation of a child over the age of 12 but under the age of 16, lewd or lascivious molestation of a child under the age of 12, sexual performance by a child, and showing obscene material to a child. At trial, his lawyers planned to argue that the defendant gave a false confession to the crimes when he was interviewed by the police as a suspect. One lawyer asked prospective jurors during the jury selection process whether they believe people confess to crimes they didn’t commit. The trial judge allowed two jurors to serve, although they expressed skepticism about false confessions, and the defendant’s lawyer asked for them to be removed from the jury pool.

The first juror said he did not believe a person would make a false confession. Even someone who did falsely confess to a crime probably was involved in the crime somehow, the juror said. “I think your question was would they agree to admitting to a crime that they did not commit and my answer to that would be no,” he said. The second juror also said it was hard to believe that a person would confess to a crime that he or she did not commit. “Something of this nature would just be very unreasonable for someone to admit guilt to,” he said. The juror later said a person would have to be “crazy” to wrongly confess to the kind of sex crimes with which the defendant was charged. He was eventually convicted of the crimes following trial.

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The Armed Career Criminal Act is a federal law that imposes higher mandatory minimum punishments on defendants if they are convicted of certain crimes three or more times. As the U.S. Court of Appeals for the Eleventh Circuit recently pointed out, some Florida sex offenses may qualify for enhanced sentencing under the federal law. That’s yet another reason why anyone suspected of or charged with a sex offense in the Sunshine State is well advised to seek the counsel of an experienced criminal defense attorney.A defendant pleaded guilty to possession of firearm by a convicted felon, a federal crime, after police officers in Miami found him with a revolver. Prosecutors eventually argued that he was subject to a mandatory 15-year sentence behind bars under the ACA. That’s because he had previously been convicted of sexual battery, aggravated assault, attempted sexual battery, kidnapping, and resisting an officer with violence. A trial judge agreed, finding that the prior offenses qualified as violent crimes under the ACA. The defendant was sentenced to 15 years in prison.

The Eleventh Circuit affirmed the conviction on appeal. The court explained that the ACA imposes a mandatory 15 years behind bars for a person convicted of being a felon in possession of a firearm if the person has three or more convictions for violent felonies or serious drug offenses. The sexual battery conviction qualified as a violent felony, even though it’s not among the list of violent offenses included in the text of the ACA, according to the court.

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Evidence and procedural issues can make or break a Florida criminal case. One protection that anyone charged with a sex or other crime in Florida has is that the judge and jury in your case are generally not supposed to consider “other bad acts” when determining whether you have committed the crime with which you have been charged. There are a number of exceptions to this general rule, however, including some related to the sentencing phase of a trial. Florida’s First District Court of Appeal recently considered one of those exceptions in a child pornography case.A defendant was charged with 10 separate counts of possession of child pornography, a second-degree felony. He eventually pleaded “no contest” to the charges and was convicted. He was sentenced to 15 years in prison and another 30 years of sex offender probation. Although the sentence was within the bounds set by state law, he later appealed the decision. He argued that the trial judge improperly took into account unsubstantiated claims that he was interested in a sexual relationship with a child. Specifically, he said a police officer testified at trial that the defendant said in an online chat room that he would like to have sex with a 14-year-old boy. He argued that the judge wrongly held that evidence against him in sentencing him on the child pornography charges.

Affirming the decision on appeal, the court said the judge acted properly in imposing the sentence. “Although a sentence within statutory limits ‘is generally unassailable on appeal,’ there is an exception when a trial court bases its sentence on impermissible factors, like unsubstantiated allegations of other crimes,” the court explained. In this case, however, the court said there was no reason to believe that the judge based the sentence even partly on the defendant’s statements about wanting to have sex with a minor. The court said the defendant was not charged with any crime related to that comment and was convicted solely on the evidence showing that he had possessed child pornography.

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Victim and other witness testimony can mean the difference between a conviction and an acquittal or not guilty verdict in Florida sex crime cases. The state’s First District Court of Appeals recently took on a unique case that offers one example of the kinds of witness testimony issues that can come up.The defendant was charged with three sex crimes in Florida:  lewd or lascivious molestation, lewd or lascivious conduct, and lewd or lascivious exhibition. In the run up to the trial on those charges, a state prosecutor asked the judge for permission to have his eight-year-old alleged victim testify while seated directly in front of the jury. Instead of physically taking the witness stand in the courtroom, the prosecutor wanted to place two chairs in front of the jury box and have them facing the jury.

The defendant’s lawyer objected to the request. He said the victim should at least have to take the stand while being cross-examined by the attorney. The judge ultimately sided with the prosecutors but said the defendant’s lawyer could sit at his table while conducting the cross-examination. The defendant was eventually convicted on all three charges.

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Florida sex crime cases often come with questions about the mental stability and capacity of the person being charged. That’s why judges are regularly asked to determine whether a person charged with a sex crime is competent to stand trial. As the state’s Second District Court of Appeal recently explained, there are certain requirements for judges considering competency. They include holding a hearing and issuing a written order. If a judge doesn’t meet these requirements, a person convicted of a crime may have grounds for an appeal.A defendant was charged with sexual battery on a person less than 12 years old. Prior to his trial on the charge, his lawyer convinced the judge to appoint a panel of experts to determine his mental competency to stand trial. He was eventually evaluated by a psychiatrist and a psychologist, both of whom concluded that he was competent to go before the court on the sex crime charge. The judge held a very brief competency hearing after receiving the reports. He referenced the reports and set the case for trial. The defendant, through his lawyer, later negotiated a plea deal, as a result of which he pleaded guilty to the lesser crime of lewd or lascivious conduct.

The defendant later appealed his conviction, however. He argued that the trial judge should not have accepted his guilty plea without first holding a more extensive competency hearing. The Second District agreed.

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