Articles Posted in Sex Crimes

REARRESTED 30 DAYS AFTER PLEADING TO SEX CASE IN COLUMBIA COUNTY

Former Gainesville and Lake City music teacher David O’Neill was labelled a sex offender under Florida law on December 19, 2016.  According to police and court records, O’Neill, who actually has a doctorate degree in music, education  or music education from the University of Florida, awarded in 2013, was rearrested right at 30 days(January 19, 2017) from his December 2016 sentence of five years probation in a Columbia County sex case.  This is according to a report out of Gainesville, Florida, http://www.gainesville.com/news/20170120/gpd-sex-offender-violates-registration-in-online-ads, 

Columbia County Sex Case

The two charges Dr. O’Neill was arrested  on in Columbia County Florida, back on February 15, 2016,  were originally a result of his actions communicating with a minor online in an attempt to have sex with that minor and the transmitting of material harmful to minors.  He entered a plea to the one count of the transmission of harmful materials to a minor and was placed upon 5 years of felony probation by the judge in Columbia County or Lake City, Florida.  Apparently O’Neill taught music in the Columbia County School system at one time.  He has also taught in the Alachua County school system prior to these arrests. At the time of this writing, it appears that the Judge in Columbia County originally sentenced Dr. O’Neill to five years of sex offender probation but then court records show that his probation was corrected to be five years of standard felony probation.  The difference between the two categories of felony probation are very significant.  Although any felony probation is something to contend with, sex offender probation under Florida law, carries the following additional conditions, restrictions and requirements:

  1. mandatory curfew from 10 p.m. to 8 a.m.
  2. cannot reside within 1000 feet of a place where children regularly congregate( some counties such as Duval expand this to 2500 feet)
  3. active participation and successful completion of a sex offender treatment program
  4. no contact with the victim unless approved by the victim, the sentencing judge and the professional treating the sex offender
  5. if the victim was under 18, no contact with minors unless, same conditions as #4 above and the offender must be in sex therapy or have completed it
  6. if the victim was under 18, the offender cannot work for pay or volunteer at any place where children regularly congregate
  7. a prohibition on viewing, accessing owning or possessing obscene, pornographic or sexually stimulating material
  8. must submit a DNA sample (that is not just on sex cases anymore)
  9. restitution to the victim for all medical and psychiatric or psychological treatment related to the crime
  10. submission to a warrantless search by the probation officer of the person’s residence, person or vehicle (that’s not exclusive to sex cases)
  11. A polygraph exam, at least annually, by an examiner certified as a postconviction sex offender polygrapher
  12. must keep a driving log
  13. cannot keep a post office box without approval of probation officer
  14. if the charges allege sexual contact, probationer must undergo an HIV test and results provided to victim and/or victim’s parents or guardian
  15. electronic monitoring by GPS
  16. cannot access the internet until a risk assessment is completed and a safety plan implemented by the treating professional
  17. for offenders with victims under 18, the offender cannot hand out Halloween candy, dress as Santa Claus or the Easter Bunny

 

The Alachua County Arrest

Dr. O’Neill was arrested on January 19, 2017,  on three new charges.  As stated earlier it appears the sentencing judge in Coumbia County had placed him on a standard felony probation as opposed to the above described sex offender probation.  Although not on sex offender probation, the doctor was still labelled a Florida sex offender with the Florida Department of Law Enforcement and had requirements placed upon him with that designation. The narrative portion of his arrest report states that the doctor had been observed standing on a street corner in Gainesville advertising his business by holding a sign.  His business was apparently teaching piano lessons.  The sign contained a web address. When the officer went to the web address the site contained, according to the officer, a link to the doctor’s email and his cell number.  Further investigation by the officer revealed a Craigslist ad listing the doctor’s services.  Quoted from the arrest report, “The Craigslist ad, the website selling his services, and the contact e-mail are all NOT listed as internet identifiers on the DEF’s sex offender registration form, yet they facilitate communication through the internet, a violation of his conditions. ”  The officer arrested Dr. O’Neill for the three charges in violation of FS 943.0435(2)(4)(D).  Continue reading

WHAT ALL OF THESE PROGRAMS HAVE IN COMMON, STARTING WITH PRETRIAL SERVICES

The three different programs mentioned above have one major factor in common.  Any defendant that is offered programs such as these probably has a pretty minimal record. Secondly, the charges are not going to be serious charges along the lines of violence or concerning victims that need to be protected.  That’s because these offerings are about 95% within the discretion of the state attorney’s office whether to afford a criminal defendant the chance at one of these programs.  Outside of the state attorney’s office, Pretrial Services in Duval County affords the recently arrested a chance to be released from jail on a cheaper bond or an ROR, release on one’s on recognizance.  The decision to place a person on Pretrial services in Duval County is up to a few select correctional officers who are assigned to the first appearance courtroom at the jail.  These officers first read the arrest dockets looking at the nature of the charges across the board for individuals in the session of first appearance or “bond setting” court.  Many defendants will not even be considered for Pretrial Services, again, due to the nature of their charges.  Once the officer has his stack of individuals whom he thinks might qualify for Pretrial Services release, he pulls their local criminal history as a minimum and nationwide history if he or she has time.  The corrections officer then makes a recommendation to the first appearance court judge for the defendant to be placed into the program.  The defendant then signs an agreement to adhere to the conditions of the program.  Most judges set very reasonable bonds or ROR defendants once a Sheriff’s representative (the corrections officer) makes the recommendation.  Some of the common conditions of Pretrial Services are: weekly drug screening by urinalysis, the wearing of a drug patch, reporting in once a week to a Sheriff’s office location, community service hours, some type of classes trying to help the defendant with identified problems and, if there is a victim, no victim contact or no violent victim contact.  Some particular judges add that no guns or ammunition may be possessed and that the person remain “crime free.”  This writer has had plenty of experience with the program and the assigned officers running this program at the Duval County Pretrial Detention Facility.  This is a program that works.  If offered the opportunity to enter this program, every defendant should take advantage of it.

PRETRIAL INTERVENTION, BOTH MISDEMEANOR AND FELONY

Once a criminal defendant’s case leaves first appearance court, a prosecutor will be assigned to the case.  An exception to that would be if a person was arrested on a warrant which means a prosecutor, as well as a judge has already looked at the case and followed through with a warrant.  The space in time between first appearance court and arraignment is when individual prosecutors are reviewing their respective newly assigned cases and considering options or “filing decisions” setting the case on a path to a just disposition(at least in their mind).  Factors considered in  a filing decision that would result in a Pretrial Intervention, or PTI, offer would be a person’s criminal history, the nature of the immediate crime, any mitigation supplied by the defense attorneys, input from any victims and any possible repayment or restitution keeping the victim whole when a property crime is involved.  In North Florida, a person offered felony PTI will have a meeting set up at the Florida Department of Corrections, Probation and Parole Office.  This makes it seem very much like the person is on probation and many times those on felony PTI refer to their handler as their “P.O.” or their probation officer.  Their handler is actually a probation officer but is working in a “court services” position.  At the initial meeting the defendant will sign a PTI contract spelling out the terms.  The terms do come very close to what this writer labels as “probation in advance.”  The defendant is under the control of the state correctional officer at this point.  The defendant is usually restricted from leaving Duval, Nassau or Clay counties, must notify his or her handler within 24-48 hours or changing addresses, may or may not have a GPS ankle monitor, must report in every week, is subject to random drug testing, may have to make restitution payments, attend classes or rehabilitation programs, and, very similar to probation, his court services officer can go visit him at work or at home.  Overall, Pretrial Intervention at the felony level is one hell of a break for most defendants.  Once the conditions are met and/or the time period has passed with no problems, the department of corrections notifies the state attorney office that the defendant accomplished everything, the felony case is dropped, ie, not prosecuted by the state.  This programs works well also.  Thousands of folks arrested in North Florida have successfully avoided lifetime stigmas of a felony record by taking advantage of a PTI offer, commonly called “diversion” offered at the discretion of the prosecutor assigned to the case.  The flip side is one turns into a “PTI reject”(just what it means), and can’t complete the conditions, the state attorney simply, about 95 -99% of the time, simply files the original felony bringing lifelong implications to the defendant.  Misdemeanor PTI is an internal program run completely within the state attorney’s office.  Obviously, it’s a much easier program since the charges are misdemeanors.  Requirements are similar, classes, community service hours, maybe payments to some specified victim’s fund. There is no reporting, however.  The person just provides proof after 75-90 days that all is complete and, again, the charges are dropped.  The two most common misdemeanor charges PTI’ed in our area are marijuana charges and petty thefts. Continue reading

Students Arrested Were 17, 18 and 19 Years of Age, Dodged a Sex Crime

According to a report, three male students at Terry Parker High School in Jacksonville were arrested in April for having sex with a female student on school grounds.  The four students met up at a athletic field house on the high school campus.  One of the male students filmed portions of the sexual activity that occurred.  It appears the allegations came forth from the victim when she was being questioned about being late for class or asking for a “late” pass. Two of the young men went to the police station and were arrested.  Another young man was arrested days later.  They were all charged with Lewd or Lascivious Battery and also Lewd Battery with enticement of a person less than 16 years old to engage in any type of sexual activity.  A conviction of either charge would have devastated these young men with incarceration and the lifelong requirement of sex offender registration.  For several reasons, the State Attorney’s  office exercised discretion and reduced these charges to misdemeanors with probationary sentences.

Victim Originally Stated She Was Forced Into Sex Only to Admit Later it Was Consensual

As is common in many sex cases a person who the arresting officers and detectives determine to be a victim later recants his or her story.  In the above case, the female victim later stated the sex was consensual.  One of the young men had recorded the acts on his cell phone. That defendant also had an additional felony charge of “making/printing or publishing computer pornography” which under Florida Law is a third degree felony.  The young girl in this case was not of age to give or not give consent under Florida law; however, a supervisory prosecutor, after viewing the video contained on one defendant’s cellphone, determined that the young girl was not being forced into any participation by the three young men.  As the case unfolded, the video, the recording of which was an felony charge, seems to have helped all of the young men with the prosecutor’s decision to not bring the felony sex charges.

Sex Charges Can Surface Years Later

Under Florida law a person can be arrested for allegations of sexual misconduct years, even decades after the alledged behavior.  Most readers should be familiar with the multiple allegations against the popular comedian Bill Cosby.  Several women have brought up incidents from years past and at least once case is reportedly going to trial.  It is commonplace in Florida for a person with no criminal history to be arrested for sex crimes which supposedly occurred fifteen or twenty years prior.  The worst situation is Capital Sexual Battery, meaning, at the time of the incident, the victim was less than 12 years of age with the accused being over 18 years of age.  A person arrested on this charge is not entitled to a bond under Florida Law and is facing mandatory life imprisonment if convicted.  This writer has seen victims come forward with very old  allegations numerous times.  The motivation of the victim coming forward years later varies. It can be for “closure” as directed by their counselor or psychologist, the taking away of a 13 year old’s cell phone, refusing to let a rebellious 14 yr. old date the 16 yr. old who has his license and a car, the backing out of a promise to buy a child a car or truck when they turn 16, or mom is finally divorcing the stepdad.  Many times, other family members are aware of the allegations and families will try to just handle the matter internally without it getting out to law enforcement. Continue reading

Florida Legislators  Vote 122-5 To Repeal Law Passed In  1868

Florida lawmakers have apparently taken a small step to enter the modern day world by sending a bill to Governor Rick Scott.  The bill would eliminate Florida Statutes 798.01 and 798.02 which have been in effect since 1868, or essentially 148 years.  The two laws had their origins shortly after the end of the Civil War and the prevention of race mixing was probably a large part of the legislative intent.  Until Governor Scott signs the bill repealing the draconian law, under S798.01, it remains a second degree misdemeanor in Florida to “live in an open state of adultery” and both parties would be subject to a maximum of 60 days in jail and a maximum fine of $500. Got the wayward married folks covered there.  Under S798.02 non-married and married florida residents who have sex, or as described by the statute, “if any man and woman, not being married to each other, lewdly and lasciviously associate and cohabit together, or if any man or woman, married or unmarried, engages in open and gross lewdness and lascivious behavior, they shall be guilty of a misdemeanor of the second degree.”  One would think these laws would be rarely enforced but according to an article in Police State USA, between 2007 and 2011, nearly 700 Florida residents were charged with misdemeanors for living together.  Additionally, these statutes don’t punish same sex couples for living together.  If  almost 700 Florida residents were in fact charged with crimes under these two statutes between 2007 to 2011, when that number is compared to the hundreds of thousands of Floridians living together as unmarried couples, the arrest and any prosecution is extremely rare. Any arrest and prosecution would also have to be very arbitrary.  This writer has handled thousands of criminal cases and works in about eight different counties without ever seeing anyone charged with violating these two laws.  What this writer does find noteworthy is the five elected lawmakers casting dissenting votes about overturning a seldom enforced law, regulating sex between consenting adults, from 1868, still consider this law necessary.  Can’t be too careful sometimes.

Regulation of Marriage

The second degree misdemeanors mentioned in the above paragraph are part of a regulatory attempt by government despite containing references to sexual activity that were incorporated as elements of the crime.  In our county alone, law enforcement’s number one or two arrests  by pure numbers on a daily basis (Duval County runs 35-40%) is for folks driving without a license.  The above law in the first paragraph is akin to having sex without being in a government licensed marriage, ie, an unlicensed marriage.  Locally our courthouse and the State of Florida just recently decided if gay couples could even be granted a marriage license.  The State of Florida now grants same sex couples the right to apply for and receive a marriage license, the right to marry and the right to divorce.  Our Duval County Courthouse had performed marriages for years up until the law changed granting gay couples marriage licenses.  Once the law changed and gays could marry, our Clerk of Court, Ronnie Fussell, decided that his courthouse and his court personnel would perform no weddings going forward. That was the only way he could avoid his people performing the ceremony for a gay couple.  The move was very coincidental with Mr. Fussell  simply stating it was a shortage of resources issue causing him to cease marriage operations 100% across the board, straight and gay alike.  Certain Judges and lawyers do, however,  perform marriages in the courthouse without the assistance of the clerk’s office. Continue reading

Reports say beat girlfriend’s 3 year old with a belt

A registered sex offender was recently arrested and booked into the Duval County Pretrial Detention Facility on a first degree felony charge of aggravated child abuse.  The allegations are that the defendant beat the three year old boy with a belt because the child kept falling asleep in the bathtub.  A first degree felony, under Florida law, carries a maximum sentence of 30 years.  The defendant was released from the Florida Department of Corrections in June of 2013.  Records show that he went to prison twice on a 2007 case for lewd battery, victim between 12 to 15 years.  He originally served 15 months, was released on probation, violated probation and was subsequently sentenced to what was a total of 6 years.  He left prison as a designated sexual offender subject to lifetime registration. His residence will always be available by checking online with the Florida Department of Law Enforcement, FDLE for short.  If this defendant pleas or is convicted here, he will “score” prison under the Florida Criminal Punishment Code.  The state attorney assigned to the case, in addition to the offender’s  defense attorney, will quickly be able to calculate his minimum prison sentence exposure. Unless there are statutory departure qualifiers here, the judge assigned to this case, must give what is called a “guideline sentence” as a minimum.   Factored into his score will be his criminal record to date since Florida law uses the cumulative history of an individual much like a potential lendor views a loan applicant’s history of payments or non payments which helps formulate a credit score. As people with a checkered credit history pay more to borrow money, offenders with serious criminal histories pay more in terms of incarceration for their instant offenses.  The present offense will also be scored and that score may include extra points for the level of injuries to the 3 yr. old.

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Jacksonville Beach photographer, already in jail, receives additional charges

Currently jailed Jacksonville Beach photographer Mario Peralta was just given “add-ons” in jail speak. Add-ons are additional charges placed on a defendant already in custody on other charges. These are additional charges resulting from two search warrants generated following his initial arrest.  Peralta was initially arrested back in May, 2015, per the police report, after the father of a young female client of his photography and video studio discovered a tiny camera planted in a digital clock.  The clock was in the changing room.  The police report states the father removed the SD card from the clock, put it in his pocket and later reviewed the contents of the SD card once he got home to his own computer. The report states that the father notified law enforcement after seeing the video images of naked young girls stored on the SM card. Mr. Peralta has retained legal counsel and is presumed innocent until he either enters a plea or the state attorney proves the case beyond a reasonable doubt at trial.

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$20 Million Annual Contract to Hold 650 Men

Florida has a facility tucked away in the small, nondescript town of Arcadia.  Under Florida law, an inmate with a sexually violent past or a history of sexually motivated offenses will be scrutinized just before his release from jail or prison.  If deemed a threat to reoffend, he will be “Ryced Out” and sent to the Florida Civil Commitment Center in Arcadia.  The Jimmy Ryce Act regarding civil commitment is named after a  nine year old, Samuel James Ryce, who was raped, decapitated and dismembered by Juan Carlos Chavez.  Chavez was executed in February of 2014.  The Jimmy Ryce act allows the State of Florida to hold designated sex offenders essentially for life.  This form of risk management by the state can keep a man behind the razor wire(but it is  not to be called prison) because he might offend in the future.  He is held because he might commit future sex crimes.  He can be coming out of prison on a totally non-violent, non-sex charge for which he has served his sentence.  If he has a sexually motivated offense in his past, the “Thought Police” of the combined bureaucracies of the Department of Corrections, the Department of Children and Families and the State Attorney’s Office can send him to Arcadia for the rest of his life without his recently completed sentence having anything to do with sex.  He will be held indefinitely without any new crime being committed.  Florida subcontracts out this Guantanamo style of incarceration(no crime required, years between court dates, fear of future offenses) to the GEO corporation after previously jobbing out the facility to Liberty Healthcare for seven years.

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Arrested in Volusia County

Law enforcement in Volusia County, Florida conducted a sex crime sting operation and arrested a former Jacksonville Sheriff’s Officer, Brian McCree.  McCree, already retired from JSO at age 51, reportedly used a computer to entice or solicit a minor for sex.  The allegations are that McCree packed well for his trip to meet the supposed minor.  Reports state that he took a gun, a bottle of liquor and 100 images of child pornography to his arranged meeting with whom he thought was a minor.  The child sex sting netted 14 arrests with McCree being the oldest arrested.  McCree during his police career probably took hundreds of suspects “to the ground” as part of an arrest.  There is a video of McCree being taking to the gound himself on  News4Jax.com.

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Florida Statute S794.05, Unlawful Intercourse With a Minor of Previous Chaste Character

Under the above statute, a 24 year old who engages in sexual activity with a person 16 or 17 years of age commits a second degree felony, punishable by up to 15 years in prison.  The former school security officer in the instant case, according to Jacksonville.Com, Douglas Tilley, was arrested in January of this year for having sex with a 17 year old 12th grader he knew from the school he was assigned to guard.  Tilley’s arrest paperwork shows him as 25 years old.  Tilley’s attorneys were skilled enough to have the prosecution reduce the sex case down to a 3rd degree felony of Child Neglect, to which Tilley entered  a guilty plea.  Tilley received a withhold of adjudication meaning he was not convicted of the felony.  He entered a plea to a felony and will go on three years of felony probation but most importantly, he is not a convicted felon.  Should he come back to court for a violation of probation  during the next three years he would be facing possible jail or prison time and the withhold of adjudication would probably be converted to an adjudication of guilt, i.e., conviction.  Under Florida Law a probationer who violates probation is not entitled to a bond, even if on misdemeanor probation.  The setting or not setting of a monetary bond  on a warrant or capias for a violation of probation is purely at the discretion of the supervising  judge.

Rule Number One: Avoid the Sexual Offender or Sexual Predator Designation

The above defendant avoided a sex charge that would have had him registering with the State of Florida, or any state he moved to, for the remainder of his life.  On balance, many times a prosecutor will make a very fair offer to the defendant regarding any jail or prison time but still insist on the defendant getting the designation and strict monitoring as a sex offender.  Sex cases “score” in Florida.  This means that a person with no criminal history, once scored under the Florida Sentencing Guidelines Worksheet, is usually facing prison.  The prosecutor on the case has tremendous discretion and power as to just how the case is filed.  If the prosecutor files a case where the defendant “scores”, and the defendant either pleas or is convicted, the judge must sentence the defendant to at least the bottom amount of time on the sentencing worksheet. Defense attorneys can file a departure memorandum and motion prior to a sentencing hearing but the motion must clearly designate what are statutorily listed reasons for departure.  The court then has a two part test. First,the court has to determine if a departure is allowed. Secondly, the court determines is a departure should be allowed.  Many sex crimes carry minimum mandatory sentences up to an including a mandatory life sentence.  On mandatory life, if the defendant rolls the dice and exercises his or her constitutional right to a trial, and loses, they are going to die in prison. The judge is required to give a life sentence by law.  In many sex crimes there is no forensic evidence.  Often, the defendant is arrested and charged on allegations, 100% verbal statements of a victim only, that can come forward years later. The accused either negotiates a sentence that allows him to be released after 10 plus years into society as a sex offender, or, takes his chances at trial.  At trial, the defendant has to prove a negative which is a pretty hard task.  Usually the defense strategy focuses on the motivation and inconsistent statements of the victim.

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Los Angeles Clippers Owner Says of Magic Johnson, “He Has the Aids”

In a television interview this week on CNN, host Anderson Cooper was interviewing the recently embattled owner of the Los Angeles Clippers, Donald Sterling, regarding his potential loss of his team, his lifetime ban from the NBA and his thoughts and feelings on retired NBA great, Magic Johnson.  Johnson is widely known for announcing that he had HIV on November 7, 1991.  The virus was discovered during a team physical during the 1991-1992 season.   Johnson retired after the announcement, came back later for a handful of games, then fully retired.  He has since become enormously successful in business and philanthropic efforts.  CNN’s Cooper, while conducting the interview of Sterling, interjected and corrected Sterling that Johnson did not have aids or full blown aids, but has HIV instead.

In Florida You Must Tell Potential Sex Partner of HIV Diagnosis

Florida Statute 384.24 reads:  “It is unlawful for any person who has human immunodeficiency virus infection, when such person knows he or she is infected with this disease and when such person has been informed that he or she may communicate this disease to another person through sexual intercourse, to have sexual intercourse with any other person, unless such other person has been informed of the presence of the sexually transmissible disease and has consented to the sexual intercourse.”  Violation of this statute is a third degree felony under Florida law carrying a maximum sentence of five years in prison.  Defendants who have repeatedly violated this statute can be charged with a first degree felony and face up to thirty years imprisonment.  The sex partner of the infected defendant does not have to show any diagnosis of the virus.  The defendant in these cases will usually raise an affirmative defense that the victim knew of the condition and consented to sex anyway.  Many cases of this sort involve married couples with one partner not knowing of the other’s condition until many years of marriage. The outcome is that one partner goes to prison, and judges typically sentence toward the maximum on these cases, and the other partner may or may not have HIV as their live goes forward. Continue reading