Claris Law Legal Blogging Community

Editor: Tampa Criminal Attorneys
Profession: Tampa Defense Attorneys

Category: Criminal Law

A recent jury trial reaffirms the confidence we should all have in our jury system. We represented a client charged with Lewd and Lascivious Battery and Lewd and Lascivious Molestation x2. Both of these molestation charges are second degree felonies that are punishable by 15 years in Florida State Prison. However, because lewd and lascivious battery involves more egregious sexual contact, it carries more points on a guidelines score sheet than lewd and lascivious molestation. Lewd and lascivious battery is defined by the age of the victim and the acts: A person who engages in sexual activity with a person 12 years of age or older but less than 16 years of age.

This definition in turn begs the question what is "sexual activity". "Sexual activity" means the oral, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual activity does not include an act done for a bone fide medical purpose.

The less serious offense of lewd and lascivious molestation requires much less in the way of sexual contact:

A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator, commits lewd or lascivious molestation.

The victim alleged that he engaged in a sexual relationship with our client over a two year period. It ended when he revealed the relationship to his father. When law enforcement arrived they interviewed the victim. The victim told the police that he had a sexual encounter with our client the night before. This prompted the detective to instruct the victim to submit to a sexual assault examination. A swab from the victim and a swab from the inside of the client's mouth were eventually sent to the FDLE (Florida Department of Law Enforcement) for a DNA comparison.

These DNA samples that are transported and analyzed for comparison are very vulnerable to cross-contamination. This vulnerability has led to stringent procedures that must be followed when handling DNA samples. There are numerous ways in which a DNA sample can become contaminated. For example, cross-contamination can occur whenever swabs from separate DNA samples contact each other. Cross-contamination can also occur when one swab is placed in the same area as the other during testing. Cross-contamination will usually lead law enforcement to conclude someone's DNA is present when it is actually absent. According to the FDLE our client's DNA was found in an area that confirmed our client had penetrated the victim, and the likelihood it was someone else's DNA was 1 and 39 quadrillion. For obvious reasons, the power of this evidence is hard to overstate.

We challenged the DNA by claiming cross-contamination. A number of facts arose that made this argument plausible. During trial the lead Detective claimed that he transported both DNA samples (the victim's and the defendant's) to FDLE. The FDLE lab technicians testified that the DNA samples were received from a different member of the Hillsborough County Sheriff's Department. This conflict in the evidence caused concerns about the handling of the samples and their exposure to cross-contamination. As a consequence, during deliberations the jury asked the judge to answer the following question:

How does the law define penetration?

Many would surmise, based on the verdict that the jurors were questioning the validity of the DNA results in light of the contamination argument. The State disputed the idea that the DNA results were the result of cross-contamination of the two swabs. However, there were questions about the State's DNA evidence that went unanswered. The jury refused to accept the argument that there was only a 1 and 39 quadrillion chance that the defendant didn't commit the offense of lewd and lascivious battery where there was a question of cross-contamination.

Most trial attorneys shy away from making predictions on a verdict based on questions from a jury to the Court. Unfortunately, it's impossible to stop your mind from speculating when you're waiting on the verdict. Our concern was the strong emotions that are usually associated with sex cases and how those emotionis can cause some jurors to ignore the law and/or the facts when deliberating over charges like these. As a defense attorney, the last thing you want to hear is a juror say that they found someone guilty based on a "gut feeling". No juror has been convinced of the defendant's guilt beyond all reasonable doubt when the decision is made on a "gut feeling". Getting rid of jurors with this mentality during jury selection (especially in a sex case) is obviously very important. Fortunately, the jurors selected in this case applied the law to the facts. Instead of clinging to the 1 and 39 quadrillion argument and finding our client guilty as charged they followed the law without the emotion usually associated with these charges.

To find out more about this case please link to tampa criminal attorney or call us at 813-228-7095.