Tampa Criminal Lawyer Blog

Published on: June 30, 2023

Felony Sexual Misconduct Conviction Reversed Based on Disputed Definition of the Word “Patient”

Florida law criminalizes a variety of sexual misconduct in addition to the general crimes discussed in the criminal code. Many sexual crimes are established or exacerbated by the specific relationship between the alleged perpetrator and the victim. When someone uses a position of trust or authority to encourage or coerce a vulnerable party into sexual activities, such behavior may be punished more severely under specific criminal statutes. The Florida Court of Appeal recently addressed an appeal filed on behalf of a man who was convicted of felony sex charges after he had sexual relations with an attendee of a substance abuse treatment center where he was employed.

According to the facts discussed in the recently published appellate opinion, the defendant worked at a substance abuse and mental health treatment center where the alleged victim had checked herself in for substance abuse treatment. The defendant allegedly coerced the victim into having sexual intercourse with him in exchange for a cigarette. After the victim left the treatment center and contacted the police, the defendant was arrested and charged with felony crimes under the Florida Mental Health Act, which criminalized sexual conduct between an employee and a patient who has been held or accepted for mental health treatment at a Florida medical facility. The criminal provisions under which the defendant was charged do not rely on the lack of consent for a valid conviction.

After a jury trial, the defendant was convicted of the charges against him and sentenced him to over five years in state prison. The defendant appealed his conviction, arguing that the statute under which he was charged defined the term “patient” in a way that was not consistent with the victim’s status at the time of the alleged misconduct. The appellant argued that a “patient,” as defined by the Mental Health Act, was a person admitted to a facility for a mental health condition. Because the alleged victim was admitted only for substance abuse treatment, the defendant argued that his conviction under the law was not valid.

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Published on: June 1, 2023

Florida Appeals Court Upholds Conviction in Child Pornography Case

By Mayberry Law Firm

In a recent case, the United States Court of Appeals for the Eleventh Circuit issued an opinion in an appeal involving a child pornography conviction. The defendant-appellant was charged and convicted of producing and possessing child pornography in violation of 18 U.S.C. §§ 2251(a) and 2252A(a)(5)(b). On appeal, the defendant challenged his conviction on three grounds. First, he contended that the government failed to present sufficient evidence to satisfy the interstate commerce element of 2251(a). Second, he argued that the district court erred in discharging an impaneled-but-not-yet sworn jury in his absence. And third, he claimed that the evidence was legally insufficient to establish production under 2251(a).

The defendant was originally indicted in the Northern District of Florida for the production and possession of child pornography. His trial was originally scheduled to begin in September 2020 in Pensacola, Florida. The judge and both parties agreed to impanel a jury but to hold off on swearing the jury in because of an imminent tropical storm that was set to make landfall. The storm grew in strength, and when it reached Pensacola, it was a Category 2 hurricane. As a result of the storm, there was significant flooding, and internet and phone service were disrupted. Following the passing of the storm, the judge scheduled a teleconference to discuss the next steps, which the defendant was unable to join due to the internet and telephone services not working in the jail. During the teleconference, the judge stated that he planned to continue the trial for three weeks and would ask the current jurors if they would be able to accommodate the new trial schedule. If any of them were unable to do so, he would dismiss the entire jury and impanel a new jury. The defendant’s attorney suggested only changing out the jurors that could not accommodate the new schedule, but the judge declined, ultimately impaneling a new jury despite the defendant moving for the judge to reconsider.

At trial, the alleged victim testified that the defendant was a family friend of her mother and that each summer, her family would visit the defendant and stay at his home in the Florida Panhandle. She further testified that during one of those trips when she was 15, the defendant asked her to undress and took photos of her using a flip phone on at least three occasions. She also testified that the defendant told her he had transferred the photos to his home computer. Several law enforcement officers testified that they had found explicit photos of the alleged victim on the defendant’s home computer. The defendant was convicted on both counts.

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Published on: May 31, 2023

Federal Appeals Court Broadly Interprets Child Pornography Statute

By Mayberry Law Firm

With the advent of high-speed internet, the distribution of photos and video recordings that depict child sex offenses has become an increasingly common issue for law enforcement and the public at large. For media that is shared on the internet, the federal government can assume jurisdiction of a child pornography case. Federal prosecutions for the possession and distribution of child pornography are more common than state prosecutions for such violations. Federal laws that prohibit the possession or distribution of child pornography are not always clear-cut, and individual courts often have the discretion to decide if alleged conduct meets the standard for prosecution under federal law. The Eleventh Circuit U.S. Court of Appeals recently issued a ruling that affirmed a conviction based on a seemingly broad definition of child pornography.

The defendant from the recently decided appeal was charged with the production and distribution of child pornography based on video footage that he live-streamed on a social media and video-sharing website. According to the facts discussed in the appellate opinion, the defendant produced a video of himself masturbating while in the vicinity of a fully-clothed 11-year-old girl. The video included the defendant panning the camera from his own erect penis to the 11-year-old, who was facing the other way. Based upon his broadcast, the defendant was arrested and charged with the production of child pornography.,

The defendant challenged the charges at trial, arguing that the video he shared did not include any images of children without clothes or engaged in any sort of sexual activity. Based upon the wording of the relevant statute, which prohibited videos that use a minor to produce a visual depiction of sexually explicit conduct, the charges were pursued, and the man was convicted of the crimes as charged. The defendant was sentenced to over 50 years in federal prison. The defendant appealed his conviction to the Eleventh Circuit, arguing that the trial court’s interpretation of the statute was not proper, as the defendant was only filming the child in a benign scenario, and the video of himself masturbating was distinct from the video of the fully-clothed child.

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Published on: May 10, 2023

U.S. District Court Rejects Government’s Attempted Application of Sentencing Enhancement in Child Pornography Case

By Mayberry Law Firm

The federal sentencing guidelines offer a framework for judges to utilize when determining the sentence of an individual convicted of a federal crime. Sentencing guidelines generally incorporate both aggravating and mitigating circumstances surrounding the defendant’s history or conduct in order to modify the sentencing judge’s discretion in accordance with congressional actions that have determined the guidelines.

In sexual offenses, especially those involving children, the range of sentences available can vary greatly based on the application of the aggravating and mitigating circumstances anticipated by the guidelines. A Florida man recently convicted of possession of child pornography successfully challenged the application of an aggravating factor that would have increased the minimum sentence for his crimes by 10 years.

The defendant in the recently decided case was charged and convicted in federal court with possession and distribution of child pornography based on files that were obtained from his computer. Before he was sentenced for the crimes, a presentence report was submitted, which proposed a sentencing enhancement based upon a prior Florida state conviction for traveling to engage in illegal sexual activity with a minor. The defendant objected to the application of the enhancement, arguing that the statute he was sentenced under for the proper offense was too broadly written to be included as an aggravating offense under the federal sentencing guidelines.

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Published on: April 11, 2023

How Federal Sentencing Enhancements Work in Florida Sex Crimes Cases

By Mayberry Law Firm

Both United States Federal Courts and Florida state courts consider many factors when issuing a sentence after a criminal conviction. Generally, courts will apply factors that relate to the charged crime specifically, as well as factors relating to the defendant’s criminal history, character, and ongoing risk to the public. Sentencing guidelines use a sentencing matrix that considers all of the aggravating and mitigating factors and produces a suggested sentencing range, which judges should generally follow. A Florida man convicted of possessing child pornography recently appealed his sentence for improperly applying aggravating factors at his sentencing.

The defendant in the recently decided case was arrested and charged with possession of child pornography and animal abuse after authorities found child pornography in an online storage folder attributed to the defendant. After obtaining a warrant and searching the defendant’s home, authorities found more child pornography, as well as animal sexual abuse videos. The defendant admitted the videos belonged to him and was charged in federal court with multiple sexual crimes.

The defendant pleaded guilty to the charges. During sentencing, the court applied the guideline factors to the defendant’s specific situation, and he was sentenced to over 21 years in federal prison. The defendant appealed the sentencing to the Eleventh Circuit U.S. Court of Appeals, arguing that an aggravating factor was improperly applied during his sentencing.

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Published on: March 21, 2023

Child Pornography Conviction Affirmed over “Double Counting” Objection.

By Mayberry Law Firm

Sentencing guidelines are used in the state of Florida to advise judges as to appropriate sentences for each crime. The sentencing guidelines often incorporate both aggravating and mitigating circumstances to increase or decrease the level of offense and suggested sentence. The sentencing guidelines for sexual offenses allow for a broad range of sentences for similar crimes. Repeat offenders and defendants convicted of sex crimes involving multiple victims are often subject to substantially increased sentences compared to first-time offenders. Certain aggravating factors that apply to Florida sex crimes sometimes overlap with each other and could result in a sentence being increased multiple times based on the same conduct. A man convicted of several child pornography-related offenses recently appealed his sentence to the Eleventh Circuit Court of Appeals, alleging that his sentence had been unjustly increased.

The defendant from the recently decided appeal was arrested and charged with several sex crimes related to the production, possession, and distribution of child pornography. After he was convicted of the charges, the man was sentenced to 300 months in federal prison for his crimes. The guidelines used to determine his sentence included two enhancements permitted under federal law. First, the sentence was increased because the charges demonstrated that the defendant had engaged in a “pattern of activity involving the sexual abuse of a minor.” The defendant’s sentence was separately enhanced because he engaged in “a pattern of activity involving prohibited sexual conduct.” Based on the similar language of these enhancements, the defendant appealed his sentence, arguing that the two enhancements should not be applied to the same charges, as they are substantially similar to one another and their concurrent application would be impermissible “double counting.”

The Appellate court heard the defendant’s appeal; however, the court was bound by the discretion of the trial court because the defendant did not object to the alleged “double counting” at trial. Based on their required standard of review, the appellate court found no error in the sentencing judge’s application of the two enhancements. Specifically, the court found that the enhancements, while containing similar language, were directed at two very different public and judicial interests. The court found that the first enhancement was designed to punish particularly egregious conduct, while the second enhancement was designed to increase the punishment of habitual offenders who demonstrate a high risk of recidivism. Based on the recent ruling, it appears the defendant will be required to serve his sentence in full.

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Published on: February 27, 2023

Florida Appeals Court Affirms Conviction for Sexual Battery in a Correctional Facility

By Mayberry Law Firm

Florida jails and prisons have historically experienced significant problems with rape and sexual assault among inmates. Additionally, the correctional staff is often involved in sexually assaulting inmates. In response to increasing public concern with the endemic prison rape problem nationwide, the United States Congress passed the Prison Rape Elimination Act (PREA) in 2003. The PREA mandates reporting requirements and the required responses to allegations or evidence of a sexual assault in a correctional facility. A man who was recently convicted of sexual battery for conduct that was reported to authorities based upon the PREA requirements has challenged his conviction in the Florida Court of Appeal.

The defendant in the recently decided appeal was convicted after being arrested for allegedly assaulting his cellmate while the two of them were inmates at a Florida correctional facility. According to the facts discussed in the appellate opinion, the defendant demanded that the victim perform sexual acts on him, physically assaulted the victim when he attempted to resist and threatened the victim with escalating attacks to be committed by others if the victim did not cooperate. The defendant was tried for sexual battery, which requires a threat of serious harm or pain to coerce sexual activity. A jury found that the defendant committed sexual battery based on the threats and physical injuries to the victim as reported under the PREA.

The defendant appealed his conviction to the Florida Court of Appeal, arguing that any assault committed or threatened by the defendant was not capable of causing serious injury or pain as the statute requires. Further, the defendant argued that any threats of violence were not authentic because the two men were detained in a secure facility, and no other inmates could reasonably be seen as a threat to the victim. The appellate court soundly rejected the defendant’s arguments. Noting that the victim had visible injuries and reportedly received escalating threats from the defendant, the court held that a reasonable jury could infer that the victim suffered serious pain, or the threat thereof. As a result of the appellate opinion, the defendant’s conviction will stand.

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Published on: January 21, 2023

Eleventh Circuit Affirms Federal Attempted Production of Child Pornography Conviction

By Mayberry Law Firm

The United States Congress and federal courts have developed a legal framework for prosecuting people suspected of engaging in the production of pornographic materials involving children. In order for federal child pornography charges to be applicable to an alleged crime, prosecutors must prove that the federal government has jurisdiction over the alleged crime. The Eleventh Circuit United States Court of Appeals recently released an opinion affirming a man’s federal child pornography conviction, which the court assumed jurisdiction over based on the Commerce Clause of the United States Constitution.

According to facts discussed in the recently published appellate opinion, the defendant was arrested and charged for attempting to produce child pornography in Florida after he allegedly sent disturbing messages to the users of a parenting website. The defendant, posting under an alias, appeared to have requested pornographic material from several different parents who had been discussing their children on the website. A concerned user reported the defendant to law enforcement, who obtained a warrant and searched his home. Images of child pornography and other sexually disturbing material involving children were found at the home. The defendant was then charged in federal court for attempting to entice parents to produce child pornography and send it to him over the internet. Based on his clear requests and other evidence of his sexual interest in children, a jury convicted him on the attempted production counts, and he was sentenced to decades in federal prison.

The defendant appealed his conviction to the 11th Circuit. The defendant argued primarily that his conduct was not a sincere attempt to obtain child pornography and was acting only as an “internet troll” who was being abrasive and offensive just to upset people for his own entertainment. The defendant argued that there was no real chance that any of these parents would follow his request and produce child pornography for him involving their children. The Appeals court was not persuaded by the defendant’s arguments. The court held that his desire to possess child pornography (demonstrated by his actual possession of such images at his home), coupled with his repeated, explicit requests for such material online, constituted sufficient evidence from which a jury could convict him. As a result of the appellate decision, the defendant will most likely be required to serve his federal prison term.

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Published on: January 8, 2023

Florida Court of Appeal Affirms 1988 Sexual Assault Conviction

By Mayberry Law Firm

Over the last several decades, the accelerated development of DNA testing and other forensic technologies has resulted in Florida prosecutors pursuing charges for many formerly “cold cases.” The statute of limitations in Florida for sex crimes can be extended indefinitely under certain circumstances. As a result of these laws, charges may be brought against alleged sexual offenders years or even decades after the offenses occurred. The Florida Court of Appeal recently affirmed the conviction of a man who was arrested in 2009 for a murder and sexual assault that he allegedly committed in 1988.

The victim from the recently decided case was found dead in a Florida field in 1988. She appeared to have been sexually assaulted before she died. Investigators found a suspect’s fingerprints at the scene of the crime, as well as biological evidence under the victim’s fingernails. Although evidence was collected after the 1988 murders, no suspect was identified, and the case went cold. In 2009, detectives investigating the cold case ran the fingerprints and DNA evidence from the 1988 crime scene through updated databases and found that the defendant’s DNA and fingerprints matched the evidence from the crime scene.

The defendant was arrested and charged with murder and sexual assault. The murder charges were dismissed because the statute of limitations had expired; however, Florida law extends the statute of limitations for sexual assault charges resulting in a death indefinitely, and the defendant was ultimately convicted of the sexual assault charge and sentenced to life behind bars. The DNA and fingerprint evidence were the only pieces of physical evidence offered against the defendant at trial.

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Published on: December 28, 2022

Former Gator Quarterback Arrested for Promotion and Possession of Child Pornography

By Mayberry Law Firm

Former Florida Gators backup quarterback Jalen Kitna (“Kitna”) was arrested in late November for two counts of promotion of child pornography and three counts of possession of child pornography, both violative of Florida Statute 827.01. While unfortunately it is not uncommon for young collegiate athletes to find trouble with the law, this is the first arrest that I am aware of, involving a non-hands on sex crime involving an athlete at a reputable football program. According to news outlets, likely basing their information on a press release from the Gainesville Police Department (“Gainesville PD”), Gainesville PD and an Internet Crimes Against Children (“ICAC”) task force served a search warrant on Kitna’s residence after Gainesville PD received a tip from the National Center for Missing and Exploited Children (“NCMEC”) indicating that a discord member account linked to Kitna had shared two images depicting child sexual abuse with another discord member.

Further investigation found that the images were likely shared from Kitna’s residential address, using a discord account likely belonging to him. Upon law enforcement interviewing Kitna, he is alleged to have admitted to sharing the images but thought they were legal because they were on the internet. Kitna indicated that he only realized his folly when the discord member he shared the imagery with reacted negatively to Kitna’s actions, ultimately then receiving notice that his discord account had been cancelled due to violating company policy. Kitna’s phone was seized during the time of the interview only to reveal three additional images depicting child sexual abuse, such images likely comprising the three possession charges.

Despite Kitna’s case being in the media due to his status as a University of Florida quarterback, the course of the investigation leading to present day is really very common in an allegation involving a sex crime involving child pornography. Our firm handles a considerable amount of child pornography allegations and it is not uncommon for an individual or internet service provider (“ISP”) who has either received child pornography or in the case of an ISP, to detect file names commonly affiliated with child pornography, to make a report to the NCMEC. NCMEC is an organization aimed and ceasing the exploitation of children and aiding in law enforcement’s prosecution of child pornography crimes. Once NCMEC verifies the tip, they generally pass the tip along to the special victim’s unit of the law enforcement agency with jurisdiction (In this case Gainesville PD because Kitna lived in Gainesville). Depending on internal policy and decision making, once the law enforcement agency receives the tip, they will either seek a collaboration with ICAC and get a search warrant or seek the warrant on their own. In this case, likely due to better resources, Gainesville PD collaborated with ICAC. ICAC is a network of 61 (as of the date of this blog) task forces comprising both Federal and State law enforcement agencies and their accompanying prosecutorial offices aimed at prosecuting internet crimes against children. Over the years as law enforcement has focused more on sex crimes and more specifically, sex crimes facilitating the internet, coalitions of law enforcement agencies specialized in combating this kind of crime have grown.

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