Florida’s Second District Court of Appeal: A Witness’s Having ‘Sensed’ Something Did Not Constitute Proof of a Crime

When one reads about someone in this state charged with indecent exposure or some other lewdness crime (Florida Statutes Chapter 800,) it may be easy simply to laugh it off with a “Florida man” joke. The flip side, however, is that a wrongful conviction on one or more of these crimes can have devastating consequences across numerous areas of your life. That’s why, if it happens to you, treat it with the seriousness it deserves. That includes promptly retaining a skilled Tampa Bay criminal defense lawyer.

A wrongful accusation was the circumstance that a Pasco County man faced in 2018. One fall afternoon, the man entered a New Port Richey parking lot in his pickup truck. He remained parked in his truck for two minutes, then left. According to A.D., he had pulled off to respond to a text message he received from his girlfriend.

A 12-year-old boy who spotted A.D. and his truck while walking nearby told police a different story. The boy said that he spotted A.D. engaging in a solo sex act inside his truck.

The state charged the man with a violation of Florida Statutes Section 800.04(7), which is lewd and lascivious exhibition in the presence of a victim who is less than 16 years of age. This is a felony crime and requires a person convicted to register as a sex offender. If you’re found guilty, the court can sentence you to as much as 15 years behind bars, 15 years on the sex offender registry, and a $10,000 fine.

Even if you avoid jail time and/or a heavy fine, Florida’s sex offender registry is no joke. Being on the registry may restrict where you can live, what jobs you can hold, or even whether or not you can have custody of your kids.

You need a legal team that can advocate for you effectively. In A.D.’s case, the investigating detective testified at trial that A.D. told him he was texting his girlfriend while stopped in the parking lot. The detective also testified that he never checked A.D.’s iPhone and never questioned A.D.’s girlfriend because “I didn’t find his statement that he was texting his girlfriend to be credible in any way.”

A highly skilled defense attorney would recognize this statement as highly inappropriate and would have objected. It was “blatantly improper” because witnesses, including police detectives, are strictly barred from “offering opinions as to the truthfulness of a witness or a defendant.” The Pasco detective’s testimony “nullified” A.D.’s defense in front of the jury. That alone was enough for a mistrial.

A.D.’s trial counsel did not object and did not request a mistrial.

A Witness’s ‘Sixth Sense’ is Nothing More than a Hunch or Intuition

Fortunately for A.D., his appellate representation was stronger. The man’s appellate case persuaded the appeals court that the prosecution’s case rested upon a child’s “a momentary glance at a man sitting in the driver’s seat of a parked truck twenty-eight feet or more away, from the passenger side of the vehicle,” with bushes and a tree in between the boy and the truck. The prosecutor asserted that the boy “sensed” that the man was touching himself inappropriately but, as the appeals court noted, that’s only admissible testimony if that sensation derived from one of the five senses. Anything based on one’s “sixth sense” is just a hunch or intuition, and isn’t proof of a crime.

A lewdness or indecent exposure charge may sound like the stuff of a comedy routine but, in Florida, it’s no joke. It can lead to consequences that can damage you personally and professionally for a long time. To protect yourself and your future, get in touch with the experienced Tampa Bay criminal defense attorneys at Blake & Dorsten P.A., where we’re dedicated to providing all of our clients with the strongest defense representation possible. Call us today at (727) 286-6141 to schedule your FREE initial consultation.

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