Voyeurism case dropped due to poor wording of law - public places are not protected, but perp sentenced on disorderly conduct charge anyway

(Original Post 5-11-08)
Brian Presken, 32, of Pensacola, is filing a motion to get his misdemeanor voyeurism conviction overturned because of the legal argument that people do not have a reasonable expectation of privacy in public places. The former teacher allegedly placed a mirror under a woman's skirt at a Barnes and Noble Bookstore in Pensacola last summer.

Presken is suspected of looking under the woman's skirt July 8 at Barnes & Nobles Booksellers on Airport Boulevard in Pensacola.

Here is what, according to a police report, happened:

The woman was slightly bent forward browsing bookshelves when she noticed a flash of light. She said she thought Presken had taken a picture of her. The Pensacola woman said she noticed another flash of light, and when she turned around, Presken's hand was beneath the opening of her skirt, and there was something in his hand.

The woman screamed, and Presken retreated. The woman caught up to Presken, confronted him and called police.Someone in the store found a mirror on a shelf and gave it to police.
Presken, who passed out while being questioned by police, told police he kept a mirror with him to check his appearance. The 26-year-old victim wouldn't comment on the motion.

Victim's advocates acknowledge that depending on how the laws are written, voyeurism charges can be overturned based of poor wording, and that laws need to be clear and concise.

"I guess what would really matters is the way the law in Florida is written," said Ilse Knecht, deputy director of public policy at the National Center for Victims of Crime in Washington, D.C. "It seems ridiculous, but we have to really, really be clear in laws about things like that because every single word gets evaluated, and it makes a difference."

In the motion, defense attorney Katheryne Snowden points out that the statute her client is charged under — 810.14 — doesn't define the phrase "reasonable expectation of privacy."
An analysis of the bill that eventually became law also noted that the phrase was not defined.
According to the motion, "No Florida court has addressed section 810.14 ... or the reasonable expectation of privacy therein." Snowden didn't return messages left at her office.

Since the phrase "resonable expectation of privacy" is undefined, that gives plenty of wiggle room for defendants and their lawyers to fight voyeurism charges. The Florida statute criminalizing video voyeurism gives places where a reasonable expectation of privacy can be found as anyplace where a person can disrobe. Laws in other states have been overtured, and then re-written because defendants have sucessfully used the privacy argument.

In Washington, two men convicted in separate voyeurism cases used the privacy argument when they appealed their cases to their state's supreme court. In 2002, the court overturned the men's convictions, and state lawmakers ended up amending the state's law.

One of the men was accused of taking pictures under the skirts of two female employees at a mall. The other was suspected of videotaping under the skirts and dresses of women and girls at an event in Seattle.

The court said both men had engaged in reprehensible behavior, but the law they were charged under didn't apply to public places.

"They found that the way the law was written wasn't clear that a person should have an expectation of privacy under their clothes in public, which is ridiculous," Knecht said. "But (lawmakers) changed the law to be clear to give people that expectation of privacy."

Many states passed the laws in effort to combat "upskirting" and "downblousing" or the practice of secretly videotaping and taking photographs underneath women's skirts and dresses and down their blouses. The crimes have become more prevalent as cell phones have gotten smaller and more are equipped with cameras.

"It's kind of high-tech Peeping Tom," Knecht said.

Candy Carlisle, a spokeswoman at Cordova Mall, said the mall tries to safeguard customers against crimes like "upskirting" and "downblousing" by making sure security officers are as visible as possible.

She said the more security officers are seen throughout the mall, perhaps people will be less inclined to secretly photograph and videotape women.

Some pictures and videos taken under women's skirts and dresses end up on the Internet. A Google search of the terms upskirting and downblousing reveals thousands of Web sites.

"I think it's really disrespectful," said Heysi Barrientos, 20, who lives in Ensley. "Knowing people do that makes you think about wearing different kinds of clothes."

A victim of voyeurism tells how her life charged after the incident.

Sarah Spivey, 53, of Foley, Ala., was shopping at Books-A-Million in Pensacola last year when a man was accused of taking pictures under her dress. Faith Wilson, 43, of Pensacola, pleaded no contest in the case. Spivey said she had no idea the pictures had been taken until a store employee told her and she talked with police.

"My dress (reached) all the way down to my ankles," she said. "He had to do some contorting to get them."

Spivey said the incident has caused her to be more aware of her surroundings when she's in public.

"I was mortified," she said. "I thought I was safe in the bookstore."

Some victims of voyeurism refer to themselves as sexual assault victims, and some say they experience a feeling of always being watched, Knecht said.

"It's not just a kind of creepy thing," she said. "It actually has a real ramification for victims."

(Update 7-30-08) Presken's appeal of the voyeurism charge was allowed to go ahead, and on May 16, that charge was dropped, though the judge said it was reprehensible.

"As of this moment ... there is no clear prohibition of this reprehensible conduct anywhere in the laws of Florida, especially in the section under which the defendant was charged," Roark said in a May 16 order granting the motion.charge was dismissed as such.

However, prosecutors filed a disorderly conduct charge involving the same incident and charges on May 13. Defense attorney, Katheryne Snowden asked to have the latest charge dropped, which didn't happen.

Assistant State Attorney Adrienne Emerson asked for the maximum sentence for Presken - 60 days in jail, which the victim, a 26 year old woman, concurred with.

"I would have loved to have seen him get 60 days," she said.

However, Judge Roark sentenced Presken to 60 days of electronic monitoring and 6 months probation after he pleaded no contest to the disorderly conduct charge. Roark barred Presken from contact with the victim and her her family or with the bookstore, and banned him from entering Escambia County without permission.

"There is no answer to this situation. It's a very difficult situation for everyone involved, including the court," Judge roark said in closing.

Female employee of halfway house gets off due to technicality

A woman had charges dismissed for having sex with a resident in a halfway house because the sexual misconduct occurred outside the detention facility, and the law said that the sex had to occur within the facility. US District Judge Dale Kimball said that the requirement of sex within the facility made in impossible for charges to stick against Ashley Ford, a hall monitor at a federal halfway house.

Ford allegedly had sex with a work release inmate from the Cornell Community Corrections Center in South Salt Lake in her apartment while she was off duty. She met the resident at a party in October 2006, a month before she was hired as a hall monitor at the facility. Sexual contact, which always occurred at Ford’s apartment, occurred twice, and led to a pregnancy.

Arguing against the dismissal, prosecutor Trina Higgins said the resident was allowed to bring alcohol into Cornell and hold parties there on Saturday nights during his relationship with Ford.

In addition, the resident tried to force Ford to have an abortion and claimed she wrote bogus disciplinary reports about him because she was jealous of his relationships with other women, Higgins said. A federal grand jury indicted Ford last September on a count of sexual misconduct with a ward in a federal institution.

In a motion to dismiss, defense attorney Edward Montgomery argued that Ford had the same status as any other citizen when she was off duty and did not have any custodial authority over the resident. In addition, he said the sex occurred outside the facility, which provides monitoring of pre-trial defendants and helps those who are finishing their sentences prepare to go back into society.

Melodie Rydalch, a spokeswoman for the U.S. Attorney's Office, said the office is reviewing Kimball's ruling.

The resident was sentenced to 46 months in prison for weapons charges. In other states, cases regarding teachers and students have withstood appeal, despite arguments that the teacher/student relationship ended when school ended.

Boston lawyer acquitted on two rape charges; third rape charge dropped by prosecutors in Miami

A Boston lawyer, named in 2001 on People magazine’s list of America’s "Most Eligible Bachelors," and even trying out for ABC's show "The Bachelor," is facing charges for grooming young women he "dated" for rape.

Zerola overcame a poor childhood, where he was shifted from foster home to foster home until finally being adopted by a suburban Boston lawyer. He attended Suffolk University, where he graduated with a law degree and public comminications degree.

Trial of Hub's Most Eligible Bachelor on Rape Charges to Start Tomorrow, from the Boston Herald, has more.

"He was bright and articulate," said John E. Fenton Jr., one of Zerola’s law professors. "I don’t remember what he spoke about, but I can tell you he gave an excellent speech."
He worked as a state prosecutor on child abuse and domestic violence cases and became
well-known in philanthropic circles as an advocate for foster children. He started a volunteer group that raised money to buy clothing and gifts for foster kids. He was regularly mentioned in newspaper gossip columns and fetched an $800 bid in a charity dating auction. In 2001, at age 29, Zerola was named one of People’s 50 most eligible bachelors.

In 2000, Zerola opened his own practice, where his clients included drug dealers, and ironically, rape defendants - something he is currently.

In court, he was known for his well-tailored suits, flashy style and the frequent compliments he paid female court employees.

"It’s a rare instance that you see a kid who has been through as many foster family situations as Gary who was able to rise above all of that, not to get into trouble as a kid, not to turn to substance abuse, but to go to college and then to go on and become a lawyer," said Michael Natola, a Boston defense attorney who is a close friend.

Zerola's MO, according to prosecutoirs, is to meet women in bars, charm them, get them back into his apartment or hotel room, then rape them. He stands trail for raping 2 19 year old Massachusetts women back in 2004 and 2006 tomorrow, and then he is scheduled to face charges in Florida for a 3rd sexual assault.

In the 2006 case, he allegedly took the woman shopping at Neiman Marcus, where he bought her a $700 dress and $250 shoes before trying to rape her in his Boston apartment. "He spent some time grooming these girls," prosecutor Suzanne Kontz said during a hearing in November. Zerola is free on $100,000 bail. He and his attorney, Janice Bassil, did not return calls seeking comment.

In the 2004 case, Zerola stands accused of repeatedly raping a woman in his apartment.
In 2006, a woman told police that after the two went out on their first date, she went back to his apartment to use the bathroom. She said that after she turned down Zerola’s sexual advances, he ripped off her dress and underwear, slammed her head against the wall and refused to let her leave. The woman dialed 911 on her cell phone and police tracked the call to Zerola’s apartment using a GPS system.

He violated bail by watching the New England Patriots defeat the Miami Dolphins in person down in Miami. Then according to Florida officials, he went hunting for a 3rd victim, 18, at a Miain Beach club.

A 3rd woman told police she had several drinks with Zerola at a club, then went to his hotel room, where Zerola stuffed pills down her throat. The woman, who told police she was a virgin, said she awoke naked and bleeding in bed beside Zerola. Zerola told police, "I never had sex with her." He would not submit to a DNA test, prosecutors said.

Zerola, whose law license has been suspended, has a website where he announces he's no longer practicing law at this time.

(Update 3-19-08) Zerola, acquitted in the rape of a 19 year old woman in January, is on trial for the rape of a second 19 year old Massachusetts woman. Opening statements were held in Suffolk Superior Court today.

(Update 3-27-08) It's zero for Zerola's prosecutors as he's acquitted of charges in the second of three cases against him. He still faces a Florida trial for an incident after a Dolphins game.

A Suffolk Superior Court jury deliberated 2 hours before returning not guilty verdicts on multiple charges of rape and supplying liquor to a minor. Zerola’s alleged victim and her family clutched each other, wracked with sobs.

The People magazine hunk-turned-hunted told the Herald he was looking forward to “spending time with my family,” but the respite could be short-lived. Zerola, 36, is scheduled to go on trial for sexual battery of a third teen in Miami Beach in late May.

(Update 6-12-08) All charges against Zerola have been dropped. Miami police give credibility issues and lies about drug use and differing versions of events as reasons the Miami charges were dropped.

ALL RAPE CHARGES AGAINST POLICE OFFICER DROPPED

(Original post 4-22-08)

A Parachute, CO cop is being held in a Pitkin county jail on suspicion of sexual assault even though the incident allegedly occured in Garfield County. Kristopher Duncan, 25 faces an indeterminate sentence of 4 years to life for sexual assault as a Class 4 felony.

"Why he is in the Pitkin County Jail, that’s a question for someone else to answer. I suspect it’s for security reasons. Police officers are not the friend of other inmates and they can be treated harshly,” said 9th Judicial District Attorney Martin Beeson. Garfield County Sheriff Lou Vallario, whose agency handled the arrest, did not return phone messages seeking comment.

Jailers in Aspen said Duncan was on a “courtesy hold” but referred questions about the matter to Garfield County. He remained in Pitkin County Jail on a $7,500 bond Monday night. He is charged with class-four felony sexual assault, which carries a possible sentence range of two years to life in prison.

Parachute Town Administrator Robert Knight confirmed Duncan’s arrest and said the officer’s employment was terminated Friday “for violation of code of conduct and this incident (the sexual assault allegation) was related to it.” Knight said that Duncan was hired in February and was an officer in training. He declined to answer further questions.Knight also said that he and other high-level officials in Parachute were unaware that Duncan was being held in Aspen.

Prosecutor Gail Nichols gave only a sketchy detail of the assault, including the fact that the victim was a woman, not a girl, and that the attack took place April 18. More specific details were not forthcoming as of this time, and a heavily redacted arrest affadavit will be available for public inspection.

Duncan will make his next court appearence April 30 in Garfield County District Court. He is ordered to stay away from the victim in case he makes bond.

(Update 5-1-08)

Prosecutors have appointed a special prosecutor to avoid conflicts of interest when prosecuting a former law-enforcement oficer in the same county during yesterday's court appearence. Duncan was released on $7500 bond last week.

The alleged victim and a group of people including Parachute police officer Prince Whiting were at Duncan’s apartment playing video games late at night. Duncan is accused of making repeated unwanted advances and raping the woman after she was trying to sleep around 3 a.m., according to an arrest affidavit. The woman was afraid and didn’t try to fight him off because he was a police officer and a “really strong” ex-Marine, the affidavit says.The affidavit contains no information about statements from Duncan. It says a nurse conducted a rape examination and found no signs of trauma and was unable to determine whether the woman recently had sex.

The Grand River Medical Center reported treating a patient who reported being sexually assaulted by a police officer, and Duncan's preliminary hearing is scheduled for June 4.

(Update 6-5-08)

All charges against Kristopher Duncan have been dropped by the special prosecutor after she concluded that instead of rape, the April 17 incident was simply bad sex.

Tammy Eret, the chief Mesa County deputy district attorney who was brought in to handle the case, said she questions the credibility of the alleged victim. In a motion to dismiss the case, she outlined 22 concerns about the alleged victim’s credibility, and suggested the woman might have had consensual sex with the man, then regretted it.

Magistrate Lain Leoniak on Wednesday agreed to dismiss the case.Duncan hopes to return to law enforcement, and his attorney Greg Greer, of Glenwood Springs, is researching whether the City of Parachute can be sued.“I think the biggest thing was the embarrassment that I would even be accused of something like that, but I knew I didn’t do anything wrong.” The woman said she didn’t fight off Duncan because of his strength and his position as a police officer. She sent a text message to a friend saying she might have been raped, and reported the alleged incident to police. A hospital rape exam showed no sign of trauma.

Eret noted that the “victim” was 5’ 5 and 140 lbs while Duncan was 5’ 6” and 160 pounds, so there wasn’t much size difference.

“I knew it wasn’t true,” said friend Caryn Sigmon, of Rifle, who was at the apartment that night. She said she was “very shocked” when she learned the woman had accused Duncan of rape, and when Garfield County sheriff’s investigators never asked her for her account, she came forward. She accompanied Duncan at the hearing. Eret said that accounts which picture the woman flirting with Duncan and asking him to perform oral sex suggest that no sexual assault occurred.

“Simply saying ‘no,’ but then requesting oral sex” would suggest she consented, Eret wrote. Witnesses told investigators that the two were “flirting with each other, laughing, tickling and having a good time.”

Instead of leaving, they said, the woman went to sleep in Duncan’s bed and never called for help, even though Duncan’s roommate is also a police officer. Afterwards, they said, she slept in the same bed, wore Duncan’s sweatpants and sat in his lap. That would be unusual for a rape victim, Eret noted.“The interaction between the two … supports two people comfortable with each other and the acts that just occurred,” Eret wrote.

In a controlled call between the woman and Duncan, Duncan said the woman claimed to be playing “hard to get,” and that he would have stopped if she said no, but she never did. Eret also said that a rape victim would not have chosen to end up in the bed that the perp was sleeping.

“It would not matter how exhausted one may be — if they were just raped, the last place they would go would be to the bed where the crime occurred and the place where that person was sleeping.”

Credibility problems also occurred when the woman blamed a black guy for the rape even though Duncan was white.

The woman also apparently sent a text message to her boyfriend saying she had been raped by “a black guy,” although Duncan is white. That also cast doubts about her credibility, Eret said. Greer praised Eret’s decision to drop the case. “Our challenge now is just to restore his good reputation,” Greer said.