Articles Posted in Domestic Violence

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Criminal prosecutions in Florida often rely upon the testimony of law enforcement officers to convince the jury of a defendant’s guilt in cases where the other evidence isn’t very strong. Many jurors have a belief that police officers are inherently more credible than other witnesses, and this may result in jurors affording inappropriate weight to the testimony of a law enforcement officer. In reality, law enforcement officers work closely with prosecutors, and their testimony can be less reliable than an unbiased witness. A Florida appellate court recently reversed a man’s domestic violence conviction after finding that inappropriate testimony of a police officer was admitted at trial, which may have tainted the jury’s guilty verdict.

The defendant from the recently decided case was arrested and charged with domestic violence battery against his ex-girlfriend after the two had an altercation near her apartment while the defendant was moving his belongings. According to the facts discussed in the appellate opinion, the police were called to the scene after the two were reported to be fighting in the parking area of the apartment complex where the alleged victim lived. The police officer who responded to the scene noticed injuries on both the defendant and the alleged victim and interviewed witnesses about what happened. In the incident report, the officer noted the defendant as the primary aggressor, and prosecutors later pursued the charges against him.

At trial, the defendant claimed self-defense. Under Florida law, a person is justified in using nondeadly force to address a threat if they were not the primary aggressor during the incident. The prosecutors called the responding police officer as a witness at trial, and he was asked who was the primary aggressor. Against a defense objection, the officer was permitted to testify that based on the victim’s injuries and the eyewitness accounts that the defendant was the primary aggressor. The jury rejected the defendant’s self-defense claim, and he was found guilty as charged.

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Ah, the wonderful world of divorce and the precipitating domestic violence allegations that often accompany it. While not an uncommon crime, allegations occurring 6,834 times in Pinellas County last year and 6,387 times in Hillsborough County according to the Florida Department of Law Enforcement Crime Report statistics, what is rare is to have an incident on video. This is just such an example for Pinellas County resident Corinne Novak who stands accused of domestic battery against her unnamed husband for allegedly grabbing his crotch during a time-sharing exchange of their two children. On video, a hand alleged to be Ms. Novak’s is seen blasting into view and appearing to intrude in her unnamed husband’s genital region, against his will as indicated by his reaction, also caught on video. While this fact alone presents a considerable issue for even the most seasoned criminal attorney, her statement immediately after the alleged grabbing of her husband to “call the police” and that she’s “going to tell them that you (her husband) just assaulted me (Ms. Novak)” could circumstantially throw away any legitimate argument she had.

While not yet formally charged through information of any crime, Ms. Novak is accused of domestic battery and in some capacity violating the conditions of her initial pretrial release. Domestic battery in Florida is nothing more than an allegation of battery against a family or household member. A battery in this case would be proven if the State Attorney can show beyond a reasonable doubt that Ms. Novak intentionally touched or struck the unnamed husband against his will or alternatively if it can be shown beyond a reasonable doubt that Ms. Novak intentionally caused bodily harm to the unnamed husband. Ms. Novak, while still technically married to the unnamed husband, is a spouse and thus considered a family or household member thereby satisfying the domestic enhancement in this charge. So what difference does it make if a battery case is considered domestic in nature?

When a simple battery is ramped up to a domestic battery, the direct and collateral penalties/consequences become more severe. Initially, if your battery is considered domestic in nature, you will not receive a schedule bond and must see a Judge at a first appearance/advisory in order to have pretrial release conditions considered. As a general rule, if one stands accused of a domestic battery and the alleged victim desires for the case to move forward, there is a strong likelihood that the accused will have a no contact order placed against him or her and will not be able to contact the alleged victim, often their children if the circumstances are relevant for this, and will not be able to return to the shared residence. Under Florida Statute 741.283 if the accused is convicted and there is a showing that bodily harm was inflicted upon the victim, a five-day minimum mandatory jail sentence will be imposed. Even if a plea is entered and a withhold of adjudication is imposed, because the domestic battery is an act of domestic violence as described in Florida Statute 741.28, the record will never be permitted to be sealed or expunged. Under Florida Statute 790.06 if one pleas to a domestic battery or domestic violence related charge, that person’s concealed carry license will be revoked and the individual must go three years from the time is completed before he or she will be considered for a new concealed carry permit.

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Oscar Pistorius, renowned Paralympic sprinter was sentenced yesterday to five years in a South African prison for the shooting and killing of his then girlfriend, Reeva Steenkamp. Mr. Pistorius was found not guilty of a more serious murder charge he stood trial for earlier this year but was convicted of culpable homicide for shooting Ms. Steenkamp several times in the middle of the night in what Mr. Pistorius claims was self defense out of fear that one had intruded into his home. South African prosecutors argued for a minimum of 10 years as a prison sentence for Mr. Pistorius but were unsuccessful in their bid for the heavy handed punishment. Conversely, Mr. Pistorius’ defense team argued for community service hours and house arrest. Judge Thokozile Masipa seemingly split the difference the two sides were arguing for by imposing a five-year prison sentence of which only 10 months are expected to be served in the Kgosi Mampuru prison with the balance of his time to be served as a house arrest sentence, assuming the requisite negotiation with prison officials is successful.

All in all, despite how one may feel about the outcome of the Pistorius case, his lawyers appear to have done a fine job in their representation of Mr. Pistorius. As a threshold charge, Mr. Pistorius was charged with premeditated murder, a comparable charge to first-degree murder in Florida. As a general rule, a generic first degree murder charge requires proving the same elements as Florida’s first degree murder statute in that someone is dead, that death was caused by the actions of another, and those actions were premeditated. Premeditation means killing after a conscious decision to do so. The decision must be present in the mind at the time of the killing, however in Florida the law does not detail an exact period of time that must pass between the formation of the premeditated intent to kill and the actual killing. All that is needed is that time period be long enough to allow reflection by the killer and that the premeditated intent to kill is formed before the killing. The premeditation is almost always where first-degree murder charge fails, and based upon the facts of the Pistorius case, it is easy to see how there would be reasonable doubt of premeditation versus gross negligence or recklessness, both mindsets insufficient for a first-degree murder charge.
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Jeffersonville, Indiana man, Joseph A. Oberhansley, 33, is accused of murdering his girlfriend and ultimately eating portions of her corpse. Oberhansley was arrested last Thursday after police came to his girlfriend, Tammy Blanton’s home looking for her as she failed to show up for work. According to news sources, Oberhansley began acting suspicious when police questioned him as to Blanton’s whereabouts. Police observed a fresh cut across Oberhansley’s knuckles during their contact and then patted down Oberhansley for weapons, finding a knife in the accused’s back pocket full of hair and what appeared to be blood. Officers then combed Blanton’s home calling her name only to find her corpse under a vinyl camping tent in her bathtub. Her skull had been crushed from multiple sharp force trauma to her head, neck, and torso. As if things weren’t ugly enough, after an autopsy was performed it is noted that part of Ms. Blanton’s heart, lungs, and brain were missing. Bad for Mr. Oberhansley, the missing body parts will no doubt be used by Prosecutors to correlate with a dinner plate found in the home with what appeared to be skull and bone resting on it and a pair of cooking tongs with blood all over them. That said, it won’t help Mr. Oberhansley’s case that he admitted to police that he removed several of Blanton’s organs and ate them, both cooked and raw.

Ouch. Hard to say much more about this. Unless there is a golden nugget of information regarding this situation unknown at the time of this blog, this Tampa criminal attorney is of the opinion that Mr. Oberhansley is in a bit of trouble. As it stands, he will very likely be charged with Indiana’s first degree murder statute for a premeditated killing of Ms. Blanton. I can’t speak for Indiana but if this case were in Florida, the State would need to prove the following: 1) Ms. Blanton is dead. 2) The death was caused by the criminal act of Mr. Oberhansley, and 3) There was a premeditated killing of Ms. Blanton.

Though this is tragic, the strangest (and grossest) issue is the evidence of cannibalization of his girlfriend. Though Indiana doesn’t appear to have a statute on the books specifically dealing with cannibalism (neither does Florida though he would get charged with abuse of a dead human body against FS 872.06) he will be charged with abuse of a corpse. Again, were this in Florida the State would have to prove that Mr. Oberhansley mutilated, committed sexual abuse upon, or otherwise grossly abused the corpse of Ms. Blanton.
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Tampa man John Andrew Welden, 26, is facing a Federal charge in the middle district of Florida for allegedly tricking his girlfriend into ingesting the abortion pill cytotec. Welden, whose father is an OB/GYN doctor was arrested May 15th and is specifically alleged to have forged a prescription form and disguised the cytotec as Amoxicillin. Welden’s girlfriend and alleged victim, Remee Jo Lee had no health insurance at the time she found out she was pregnant and sought the care of Welden’s father for a sonogram. John Andrew Welden is alleged to have lied to Lee and told her his father diagnosed her with an infection and administered the cytotec disguised as Amoxicillin to combat the alleged infection without her knowledge and consent. Welden is further alleged to have held himself out as being a medical doctor and counseled Lee when the cytotec reacted to Lee’s body, causing heavy cramping and bleeding. It was only when Lee took the remaining pills to a pharmacist when she learned that what she was ingesting was not Amoxicillin at all.

Welden was indicted on Federal criminal charges via a two count indictment, true bill returned May 14, 2013 alleging that he violated 18 USC 1365(a) by tampering with consumer products resulting in serious bodily injury to an individual and 18 USC 1841 and 1111(a) for causing death to an unborn child the same as murder. For purposes of figuring out what Welden is looking at with respect to a criminal sentence, we have to strip down the allegations. Simply put, Welden is accused of murder, as per 18 USC 1841(a)(C) his punishment shall be guided by 18 USC 1111, the Federal murder statute. Because murder is the most serious allegation and the charges will be “grouped” as they arose out of the same incident, it will govern the sentence possibilities. 18 USC 1111(a) calls for death or life imprisonment if a defendant is found guilty of first-degree murder. First Degree Murder, as it applies to this case, is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing…. Because 18 USC 1841 specifically interjects a murder punishment for the death of an unborn child if the conduct is applicable, an unborn child under this situation, and per this statutory scheme, is considered a human being. No doubt the United States Attorney’s Office will seek a first degree murder conviction against Welden and they may well get it if they can show that the cytotec can be considered “poison” or that his actions were willful, deliberate, malicious, and premeditated. If the United States Attorney’s Office can put together the paper trail against Welden and maintain the alleged victim’s credibility, Welden’s Federal criminal lawyer may have his or her work cut out for them.
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Hillsborough County woman, Laquavia Sharelle Wallace, 28, was arrested on April 16, 2013 in Manatee County for domestic battery after allegedly travelling to her ex-boyfriend’s house to pick up their child and demanding to reinstate their relationship. Upon her arrival and levying of demands, Antonio Williams informed Ms. Wallace that he was uninterested in reigniting their love light, clearly to his detriment. In what can only be imagined to be the scenario of “if I can’t have you, no one can,” Wallace proceeded to grab the penis of Mr. Williams, yanking it violently thereby causing him extreme pain. Luckily for Mr. Williams he was able to overcome the assault by grabbing Ms. Wallace’s arms and fending her off. Ultimately Ms. Wallace was arrested in Manatee County and charged with misdemeanor domestic battery. Not necessarily surprisingly for a domestic violence type of case, Mr. Williams has asked the State Attorney’s Office not to prosecute the case.

Domestic Violence in Florida is governed by Florida Statute 741.28 and defines “domestic violence” for purposes of this particular set of facts as any battery resulting in physical injury to a family member. “Family Member” as applicable to this pair of combatants would apply because they have a common child together. Lastly, Florida Statute 784.03 describes a battery as an actual or intentional touching or striking of another person against their will; or intentionally causing bodily harm to another person. According to the facts of this incident, should the State Attorney decide to move forward on the charges they could potentially prove the case. If the State has adequate testimony from the victim, preferably an independent witness, or pictures of injury they would have a shot at proving this domestic battery beyond a reasonable doubt. As with any battery case, without injury or independent witnesses, a savvy Tampa criminal lawyer could assert a he said/she said defense and cite the fact that the State can’t meet their burden of proving that there is no other reasonable explanation for the allegations but for the notion that a battery has occurred. That’s not easy to do.
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A Louisiana man and woman recently stripped of their parental rights are thought to have kidnapped their own children from the children’s maternal Grandmother early Wednesday. Joshua Michael Hakken and his wife, Sharyn Patricia Hakken are alleged to have broken into the Tampa residence of Patricia Hauser, tied her up, and kidnapped their biological children. Within the past few months the children were sent to live with Hauser after the Hakkens lost their parental rights over the children. Hillsborough County Sheriff’s investigators say Joshua Michael Hakken entered Hauser’s home at 6:30AM Wednesday, proceeded to tie up the children’s’ Grandmother and then fled in Grandma’s 2009 Toyota Camry.

The Tampa criminal attorney that gets this case might as well open up the criminal statute book and proceed to dump it out on his desk. There really doesn’t seem to be much Pops hasn’t done wrong in his kid caper. Burglary? Check. Kidnapping? Check. Grand Theft? Yes sir, we have that too! False Imprisonment shouldn’t be left out and really neither should battery. Again, lets dump this statute book out right here on the desk of Hakken’s selected Tampa criminal lawyer. So how does it all work and fit together? Grab a seat, this may take a while.
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Erik Brown, 36, is alleged to have committed a misdemeanor battery upon his brother in law in Port St. Lucie, Florida with, of all things, a Taco Bell burrito. The Burrito Battery occurred after a verbal altercation between the victim and his mother overheated. Brown, feeling the argument was disrespectful to his mother in law and the victim’s mother, launched the victim’s burrito at his face after the victim asked his mother to bring it to him, according to a police report. When interviewed by police Brown explained that the alleged victim was being disrespectful to the mother in law and had cursed at her. It was at that point Brown delivered the burrito to the victim. Upon police electing to arrest Brown, Brown proceeded to inform the victim that he would be promptly knocked out when Brown returned home. Brown was taken into custody and transported to the St. Lucie County Jail without further incident. He will be charged with battery per Florida Statute 784.03.

Regardless of the fact that Brown used his burrito as a weapon in his battery of his brother in law, he could only legitimately be charged with a Florida misdemeanor. Because any Tampa criminal attorney would be able to successfully argue that a burrito is not a deadly weapon, the prospect of a felony charge just isn’t there. For the State to prove that Brown is guilty of a misdemeanor battery they would have to show that Brown actually or intentionally touched or struck his brother in law against his brother in law’s will or that Brown intentionally caused bodily harm to his brother in law. Where things could get rather sticky for Brown is if this is charged as a domestic battery under 741.28. In this case if the State Attorney can show that Brown and his brother in law are related by marriage which clearly they are or that they either live or have lived together, they may elect to charge this battery as domestic in nature.
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A threesome didn’t quite go as planned for one unlucky participant when his request to switch sexual positions with another man resulted in him being chased and ultimately stabbed with a butcher knife. This tale of lusty lovers began in prison when Ashley Hunter, 33, and Orlando Dewitt, 37 became friends. Upon their release they were lucky enough to finally party with real women when one misplaced request to move to the back sent Ashley Hunter into a knife wielding rage. According to the news report, Orlando Dewitt and a lady friend got friendly on a couch and soon shucked their pants. One thing led to another with Dewitt and his lady friend ultimately engaging in a sexual encounter only to be interrupted by Hunter. Hunter, who was watching from a nearby bedroom, began kissing the unknown woman’s breasts and ultimately she engaged him in oral sex. When Hunter grew tired of his position, he requested a Chinese fire drill of sorts and things got sticky in a hurry. Words were exchanged between the two jail mates until Hunter produced a large butcher knife from a couch. When the blade was brandished Dewitt and the lucky lady retreated to the bathroom as Hunter waived his swords from the living room. Ultimately Dewitt made a break for the front door but was caught from behind by Hunter and stabbed in the arm.

Hunter was later arrested and charged with aggravated assault and is currently being held in a North Dakota jail on a $5,000 bond. I believe most Tampa criminal lawyers would agree that this is a relatively low bond for such a crime. Were Hunter’s deeds performed in Florida, he would be facing at minimum an aggravated battery with a deadly weapon under Florida Statute 784.045. In Florida one is guilty of an aggravated battery if it can be proven that a person committed a battery and in doing so causes great bodily harm, permanent injury, permanent disfigurement or uses a deadly weapon in the commission of the battery. In a case similar to Mr. Hunter it seems a Tampa criminal attorney may have some difficulty in forming a defense to this allegation unless other facts are presented that contradict this news story.
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A Jacksonville Beach, Florida mother pled guilty in Duval County Circuit Court on January 30th to four counts of Child Neglect. Dalina Nicholas, 36, is accused of repeatedly selling sex with her 6-year-old daughter to drug abusing and homeless men in exchange for drugs and money to support her own drug habit. Nicholas, originally facing a sexual battery charge has agreed to testify against those men alleged to have sexually abused her daughter in exchange for that sexual battery charge being dropped. Sexual battery under Florida Statute 794.011 as alleged against the other defendants and likely as initially alleged against Nicholas is a Capital Felony with the requirement to register as a Sexual Predator. Generally Capital felonies are punishable by death. However, in Capital cases for rape of a woman or child not involving death, execution has been ruled to be unconstitutional by the United States Supreme Court through their decisions in Coker v. Georgia, 433 U.S. 584 (1977) and Kennedy v. Louisiana, 554 U.S. 407 (2008). As you can imagine, despite the terrible allegations against her, Nicholas has dodged a certain life sentence in her agreement to cooperate with the State. In all candor I believe this is a deal any Tampa criminal lawyer would advise his client to enter into should the implicating facts be overwhelming.
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