A former local police officer recently entered into a guilty plea to one charge of child abuse, no great bodily harm. The case stemmed from allegations that the ex-cop would fondle young girls during traffic stops. The defendant was originally charged with two counts of lewd and lascivious battery on a minor, but entered a guilty plea to the reduced charge negotiated by his Miami criminal attorney. According to court records, multiple other victims came forward on the case, but they were only to be used as witnesses. The prosecution intended on bolstering their case by presenting what is typically called Rule 404 evidence. Under the Florida Rules of Evidence, Section 90.404(2)(a), the prosecution can use similar fact evidence of other crimes, wrongs, or acts when relevant to prove a material fact in issue. The fact evidence sought to be used includes proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. However, the evidence may not be used for the sole purpose of establishing the bad character or criminal propensity of the defendant.
Rule of Evidence, Section 404(2)(b), applies specifically to child molestation cases. In a criminal case, involving a child sex offense, the prosecution can admit evidence of the defendant's commission of other crimes of child sexual abuse. If the prosecution intends on seeking to admit Rule 404 type of evidence, they must inform the defense lawyer and the client no fewer than 10 days before the trail commences. The prosecution must provide a written statement to the defense containing the offenses they seek to admit with as much specificity as required in an information or indictment. If a jury is allowed to hear the Rule 404 evidence, they will be specifically instructed as to the limited use of the evidence.
The case against the defendant broke down when one of the victim's alleged in a charged offense admitted that she had made up allegations of sexual abuse in a separate unrelated case. With the victim's credibility in question, the state dropped that count of lewd and lascivious conduct and pled the case out to a lesser charge with probation. According to the state, the case became very weak without that charge, which in turn led to the plea offer. The defendant entered a guilty plea and received a withhold of adjudication and 5 years reporting probation and was also required to surrender his police officer certification papers. The defendant is also required to complete a treatment program for sexual offenders as part of his probation. At the conclusion of his probationary period, the defendant will not be able to seal his record as aggravated child abuse is not a sealable offense under the Florida Statutes.
The question remains whether the defendant will be categorized as a sexual offender. While aggravated child abuse is not an offense that can cause a person to become labeled a sexual offender, the final word will be left up to the Florida Department of Law Enforcement (FDLE). Experienced defense lawyers know that a charge reduction to a non-sexual offense does not mean that a defendant will not be labeled a sexual offender. FDLE reviews arrest affidavits and not necessarily the charges when making that decision. They will consider the facts surrounding the case in making that determination. If a defendant is deemed to be a sexual offender by FDLE, many onerous restrictions will be put in place, including, but not limited to, where a defendant may live, being posted on the internet, and quarterly reporting requirements.
Former Miami-Dade Cop Takes Plea in Fondling Case, Miami Herald.com, December 29, 2011.