Lewd Or Lascivious Battery and Sexual Performance by a Child

My friend has been charged with Lewd Or Lascivious Battery and Sexual Performance by a child.. The cop has a cell phone video with the said victim giving oral sex to a unknown male.. (His face is not shown) The detectives came for an interview with him.. he noticed 1 of the cops going in his pocket trying to be sneaky and record the interview.. At that point my friend asked the cop if he was recording and the cop said yes.. He then stated to the officers that he has been advised by his attorney not to talk to the police without talking to him first.. the cops proceeded with the interview and when things didn't go there way and he didn't confess or admit any wrong doing the cop said "I have enough of ur lies" and arrested him.. They never read him his rights before the interview they never read them after.. The place where the "act" was suppose to have occurred was at my friends business.. he didn't allow them to take pictures of the inside of the building but once he read the arrest report and saw what it said, he was shocked that he was arrested due to the fact the said victim cannot even identify the color of the business.. the color of the walls in the business all she could say was that the carpet was green (which are) and that there was junk inside the building (not true) but the cop stated he seen a room with junk it in which was a parts room... The girl said it was her idea to give the oral sex and this girl has a history of this type behavior and her mother who is the 1 who accused my friend is on probation for child abuse and false imprisonment against the girl.. We are thinking because the girls mom saw the call records and seen that her kid called my friend alot thats the reason why she suspects him but Is all this enough to convict someone of theses charges? My question is what kind of evidence is needed to convict someone with both theses charges? and If i could get a copy of the arrest report would I be allowed to post it here after editing the names and other relvent information so that we could get others opinions?

Seems like you got your answers here

I didnt get the answers to the new stuff i just mentioned..

Miranda is not an issue since he gave Police no incriminating evidence

What will the defense require to convict my friend? They will need the girl to testify correct? If she doesnt I assume the case will be dismissed due to lack of evidense? Im just trying to understand how the state can prove this happened.. Cause this case is all built on hear say.. Which I thought was not allowable in court.... excuse the typos thank you in advance.

Without knowing all the details of the case no one here can say

A good point has been brought to my attention.. Since all theses false allegations have been brought upon my friend could he bring "Sex by Fruad" charges against the girl as a possible defense? We are trying to see whats the best path to take in fighting this case. But i think that would imcriminate him.. Would it?

Good luck with that. That is a question for the Attorney handling the defense in this case

What do you think a "sex by fraud" charge is, and how do you think it will help his defense if he makes accusations against her that necessarily require that he confess to the crimes he is charged with committing?

Panther According to Miranda vs Arizona, police MUST read a defendant his rights before they question him... Which they did not do in my friends questioning.

aron i was just throwing that out there.. thats what I thought.. hes not willing to admit to something he did not do.. so that was just an idea..

If he did not say anything incriminating it does not matter. Miranda would protect your friend from any confession if given but since he made no such statement then Miranda in this case means nothing

What about any incrminating information he may of said that he isnt aware of? Point is could we get the recording thrown out if it acts as some type of tool in the states case?

If he made any incriminating statements without being read his Miranda rights those statements could be thrown out of court. Until you know what if anything was said this is just speculation

Its my understanding that they need to inform you of your rights before they start the questioning.. So what happeneds if your not made aware of your rights prior to the questioning? I thought after your rights have been read to you anything u said from that point on can be used against you.... not before...

Did you not read what I said! If anything was said incriminating and Miranda rights were not advised its likely those statements would not be allowed in court

Sorry i read what you said before you edited it.. Thank you for your prompt responces there alot of help!

Quote:

---

Quoting thugkill3r

---

Panther According to Miranda vs Arizona, police MUST read a defendant his rights before they question him... Which they did not do in my friends questioning.

---

Miranda applies within the context of custodial interrogation. (More on Miranda Rights.)

Quote:

---

Quoting panther10758

---

If he made any incriminating statements without being read his Miranda rights those statements could be thrown out of court.

---

That's assuming the statements were made in the context of a custodial interrogation. It's not clear that there was a custodial interrogation in this case.

Case #: 2007-CF-XXXXX-O Current Judge: 12 - XXXX, XXXX
Case Type: FELONY Case Status: ARREST
Filing Date: 07/31/2007 Status Date: 07/31/2007



He was arrested 08/27/2007 Charges where filed before he was questioned ;) therefore they needed to read him his rights before questioning him.

Did somebody say, "Miranda applies if somebody has been criminally charged"? Do you understand the difference between being charged and being in custody?

No.. Wuts the differnce...

When you are charged with a crime, you are simply that - facing criminal charges. You don't have to be in custody to be facing charges. You may never actually be arrested, for example, or you may be out on bond.

When you are in police custody, well... you are in police custody, such that a reasonable person would not believe he was free to leave.

Ok so your talking about being "formally charged" meaning you get a court date and such.. My friend is out on bond.. his bail amount was $2500 and $150 thats all.. i was shocked it was so low..

Anyone...?

Anyone what?

The undersigned has probable cause to believe the above-named defendant on 31 or July 2007 at 3:00 AM at “Address of defendants parents dealer” in “His County” did commit the offense of Lewd and Lascivious Battery by penetrating the mouth of the victim with his penis. Commit the offense of Sexual Performance of A Child by video taping the fifteen year old victim performing oral sex on him. On August 9, 2007, (Mother) made a report to the “County Sheriffs” in reference to a Lewd and Lascivious battery. (Mother) said that she was looking through her daughter’s, “victims name” cellular phone and saw two movie clips of “victim” giving an unknown male oral sex. “Victim” is fifteen years old. “Mother” said that the movie clips were dated July 31, 2007 at 0406 hours and July 31, 2007 at 4010 hours. “Mother” said that she questioned “victim” about this and “victim” said that the male in the movies was “Defendant”, who is twenty-two years old. Victim told Mother that the incident occurred at defendant’s parent’s shop, which is located at “address”. Mother gave the Sheriffs the cellular phone, which was turned into evidence. On August 14, 2007, Mother and Victim came to the sheriff’s office. I conducted a sworn audio-recorded interview with victim. Victim said that she met defendant through his brother, Victim and defendant became friends and she snuck out of her house on two occasions in the middle of the night to see defendant. The first time that victim snuck out of her house, victim and defendant hung out in the area of her house and talked. The second time that victim snuck out of her house, defendant took her to his parents shop. Victim and defendant began kissing and then victim then began to give defendant oral sex. Defendant then took victim back to her house. I then spoke to mother who provided me with the telephone records for victims cellular phone which show victim called defendant on July 31st 2007 several times before the incident, the last one at 0321 hours, and then again at 0455 hours. Mother also provided chats she printed out from victim’s myspace account in which she told defendant that her mother found the videos and he denied that it was he in the videos. On August 15, 2007 I called defendant and asked if he was willing to come to my office to speak to me about the allegations against him. Defendant said the he had no way to get to my office because he did not drive. I asked defendant if he had a friend who could bring him and he said that he did not have any friends. I told defendant I would contact him at a later time to arrange to meet him. I contacted mother and asked her if victim knew who’s car defendant was driving when he picked her up and she said that she did not know. Mother said that when she previously met defendant at her residence, he was driving a maroon car. On August 23, 2007 I contacted mother and asked her how she came up with the location that defendant took victim to. Mother said she searched the Internet for the defendants last name and found the parents dealership. I drove by the address to look at the building; the building is a small yellow building and a car lot. I took photographs of the outside of the building to show victim to see if she could identify it. I then met with victim at her residence; located at “address” to get a description of the business that defendant took her. Victim said that is was a small building at a car lot but could not say what color it was because it was dark. Victim said they went in thru a backdoor, which defendant had a key to, and there was a lot of junk laying around. Victim said that they then went into an office that had a desk, chairs, and a lot of certificates on the wall. Victim said there were green carpet and the walls where white. Victim said that they did not turn the lights on. I showed Kendra the photograph of the business and she could not identify it. Victim said that when they went to the business, they parked in a store next to the business and walked over. On august 28, 2007, Detective 2 and I went to “address” in an attempt to get consent to take photographs of the inside of the business. I made contact with a seventeen year old male who identified himself as defendant’s brother. The male called his father, “Fathers name” who owns the business and “father of defendant” said that he was on his way to the office and would speak to me when he got there. “Defendants father” arrived at the business and advised that he would not let me photograph the business without court order. I explained the case to “defendants father” and asked if defendant was at the business and if I could speak to him. Defendant then came out from a room in the back of the business. Defendant agreed to speak with me with his father present. Defendant, Defendants father, Detective 2 and I went into a back office. Defendant denied ever meeting victim or her mother. Defendant denied that he ever spoke to me on the telephone. Defendant also denied that he ever owned a vehicle until I told him that his father told me about his car. Defendant later admitted to talking to someone on the phone but he thought it was a joke. Defendant did say the he spoke to victim on the telephone and computer. The inside of the business had dark green carpet and light green walls. There was a room in the back of the business that had a lot of junk, auto parts and other items, on the floor. Defendant was placed under arrest and transported to the county jail.

Anyone who can please comment on how strong you think this case is.. That above is the arrest report. We dont think this case if strong..

Lying repeatedly to the police, then getting caught in repeated lies? Lying about the car? Lying about his contact with the victim? It's not a confession, but it won't impress a jury one bit. Add to that the testimony that he was the perp, and it's a compelling case.

Uhh.. What lies are you talking about... The car was not driveable.. it was never in his name or registered... Was bought for resale he has no drivers licence.. When he got the phone call from what turned out to be infact a detective the guy on the phone was very disordered and didnt identify himself fully.. my friend thought it was a joke or the mother of the victim getting a guy to scare him.. And lieing about meeting the victim? He has never met her.. he has only talked to her over the internet and over the phone when SHE called.. now you just sound like a detective.. this guy is not guilty of theses charges.. Hes targeted just because the mother has no one else to point the finger at.. there only going by cell phone logs which means nothing.. cause if shes calling him then that means hes not with her does it.. This girl cannot identify a bright Mcdonalds yellow building.... cant even get the color of the walls correct and also cant even say what kind of car or color car she was in??? To add more to this stupid case the mother is on felony probation for false imprisonment and had a child abuse charge on her against this "aledged" victim.. Im thinkin that mom is telling the girl what to say. Oh and the brother doesnt even know the girl never even met her.....

I doubt this is your "friend". I say that because you seem to know much more than a "friend" might. I also say this because no matter what your told you argue and deny it. Look if its your friend or you we told you what we could you or your friend hire an Attorney and argue with them they at least get paid for it!

Just trying to get others opinons on this.. Thats all.. Why Im being accused as being the person being charged with this is beyond me.. If you cannot help ur bestfriend without getting accused of being the defendant which is erelvent to anything anyway.. Then this forum is useless Id say.. To many judges here and not enough people willing to help. I am very much involved in my friends case cause I dont want him to lose his life for something so stupid.. hes a kid himself! 22 is young.. just starting life!

You were given the best advice over and over "seek a criminal defense Attorney" Quit trying your case here.

Quote:

---

Quoting thugkill3r

---

Just trying to get others opinons on this.. Thats all.. Why Im being accused as being the person being charged with this is beyond me.. If you cannot help ur bestfriend without getting accused of being the defendant which is erelvent to anything anyway.. Then this forum is useless Id say.. To many judges here and not enough people willing to help. I am very much involved in my friends case cause I dont want him to lose his life for something so stupid.. hes a kid himself! 22 is young.. just starting life!

---

You came here asking opinions and based on the information YOU provided we gave you our opinion. If you don't like it go hire an attorney to listen to your blather.

Alright.. Is all this forum up for is to promote "lawyer up" which 99% of people know to do already but cant afford it so come here to ask questions and get answers from people like u...

If your friend is charged with this sex crime, your friend needs a lawyer. Don't you find that to be obvious? If not, perhaps you should stop complaining about why people are stating the obvious, as it's something you need to hear (and pass along to your friend).

Quote:

---

Quoting thugkill3r

---

Alright.. Is all this forum up for is to promote "lawyer up" which 99% of people know to do already but cant afford it so come here to ask questions and get answers from people like u...

---

Which were given...You then were insulting because we don't believe, based on the posts YOU made, that your buddy is innocent.

This statement

"Information provided in the forum is not intended to substitute for professional advice, including but not limited to professional legal advice. If you submit a question or comment it is assumed that you are interested in soliciting, receiving or giving general information and not legal advice. Laws vary by state, and the laws described in this forum may be different in your state or may have been changed since the information was posted. The legal help offered in this forum comes from volunteers who may not have any formal legal training or knowledge, and all information should be confirmed with a qualified legal professional. All information is made available on an "as is" basis. You should accept legal advice only from a licensed legal professional with whom you have an attorney-client relationship. Use of this forum is subject to the ExpertLaw terms of use."

is at the bottom of sites home page. As you can see we are not substitutes for Attorneys. Many come here and think we are going to try their case for them or give them advice their Attorney hasnt. that isnt the case some here are Attorneys some are not. Those who are may not work in field your question is about. We use "google" to find laws and in some cases site our own personal expereinces to help. We are not substitutes for an actual Attorney you may hire. We will find the law help you understand it and in some cases tell what has happened to ourselves or others in similar cases. If you want real good qualified legal advice then you need to consult with an Attorney

Quote:

---

Quoting thugkill3r

---

I asked defendant if he had a friend who could bring him and he said that he did not have any friends.

---

No friends. How sad. :(

Quote:

---

Quoting thugkill3r

---

Mother said that when she previously met defendant at her residence, he was driving a maroon car.

---

Let me guess - coincidentally the car he owns that doesn't work is maroon.

Quote:

---

Quoting thugkill3r

---

Defendant also denied that he ever owned a vehicle until I told him that his father told me about his car.

---

Dad forgot to mention that it doesn't work?

Quote:

---

Quoting thugkill3r

---

Defendant later admitted to talking to someone on the phone but he thought it was a joke.

---

He didn't think it was a joke. Have you forgotten that you told us about that conversation?

Quote:

---

Quoting thugkill3r

---

Its very hard for people who do not have money to retain a lawyer.. If the officer wanted to see him that bad.. He would of came ASAP.. but the detective said he would like to interview him 4-5 days later.. he said if he could make it to the office.. my friend said There is no way for him to come.. he doesnt drive or have a licence.. which is also relavent cause this girl lives almost 20 miles away from my Friends house.. how in hell would he goto her with no car no licence at like 2-3 in the morning.. I mean this is utter bullshit.. there is no case..

---

Quote:

---

Quoting thugkill3r

---

The inside of the business had dark green carpet and light green walls.

---

Green carpet. Maroon car.

Quote:

---

Quoting thugkill3r

---

Uhh.. What lies are you talking about... The car was not driveable.. it was never in his name or registered... Was bought for resale he has no drivers licence..

---

And yet the girl's mother was able to identify it.

Quote:

---

Quoting thugkill3r

---

When he got the phone call from what turned out to be infact a detective the guy on the phone was very disordered and didnt identify himself fully.. my friend thought it was a joke or the mother of the victim getting a guy to scare him..

---

Again, no he didn't. You were posting here about the police contact, whether he should do the interview or lawyer up, and even told us about the "I have no transportation" excuse for not coming in for an interview.

Quote:

---

Quoting thugkill3r

---

And lieing about meeting the victim? He has never met her.. he has only talked to her over the internet and over the phone when SHE called..

---

And now we have a commonly encountered problem faced by criminal defendants, where the police have to decide, "Is everybody else lying, or is the suspect lying." It's possible that everybody else is lying; it's much more probable that the suspect is lying. Again, how did the girl's mother know the color of his car?

Quote:

---

Quoting thugkill3r

---

now you just sound like a detective..

---

That's probably fair. Detectives are very good at picking out inconsistencies in somebody's story, and anybody who has worked criminal defense is going to lay things out for a defendant as a detective (and a prosecutor, and a judge, and probably a jury) is going to see it. If you want hand-holding and reassurance that everything is going to be fine, sorry - your friend needs to know the weaknesses of his case.

Quote:

---

Quoting thugkill3r

---

there only going by cell phone logs which means nothing.. cause if shes calling him then that means hes not with her does it..

---

If the phone records help him, I'm sure he won't be arguing that they "mean nothing".

Quote:

---

Quoting thugkill3r

---

This girl cannot identify a bright Mcdonalds yellow building.... cant even get the color of the walls correct and also cant even say what kind of car or color car she was in???

---

We've already discussed color acuity in the dark. I am still of the impression that she did identify the car and its color, with his defense being first, "I don't have a car", and second, "Well, I have one, but it doesn't work."

Quote:

---

I asked defendant if he had a friend who could bring him and he said that he did not have any friends.

---

He said he doesn't have any friends? Then who are you?;)

Mr. Knowitall :

The car was bright Red no where near the color she decribed.. It also was a hatchback.. you cannot confuse a hatchback with any other car.. and for 1 the maker doesnt make that model car in the color mentioned.. So the mother can claim he was in a black rolls royce does that mean he was.... And as for the not having friends part... The detective left out the rest of what was said.. my friend said I dont have any friends WHO CAN DRIVE ME to your office... Im sure they left that part out to make people think what you all are now thinking. All this stuff that are being said is all he said she said.. where is the proof?? The detecive told him we have the face of the guy on the video my friend replied.. well great then you know its not me...detective then said we also have DNA.. he also replied great then you know its not me... without DNA without video proof how can theses charges hold up....

I appreciate your abandoning your claim that your friend thought the initial call from the officer was a joke - but in doing so you are confirming that he lied to the officer. How do you think his lies or claims of "contradiction" are going to sound to a jury?

Sure, the police bluff, but they have an eyewitness to his picking up the girl, the girl's testimony, the MySpace contacts, the video, and his lies. It's a case they can win, even without DNA.

"She said you picked her up in a maroon car."
"I don't have a car."
"Your father says you have a car."
"Oh... that car? It doesn't work. And it's not maroon."
"What color is it?"
"Red."

"She didn't know what the room looked like. She said the room had green carpet and white walls."
"The carpet was green."
"Yes, but the walls were light green."
"She also described the clutter on the floor."
"But she said the walls were light green!"

This is how cases are built - the lies and contradictions stack up. If the girl made or received any cell phone calls while she was (allegedly) with your friend on either evening, the police will probably be able to get cell phone records indicating which antenna picked up her signal - that will give them a pretty good idea of where she was.

In some cases they may be able to get records of her cell phone communicating with the nearest antenna, even without any incoming or outgoing calls or messages.