“What are they doing?”
At an April 17 hearing to sift through trial preparations, Assistant State Attorney Anthony DaFonseca told 12th Circuit Judge Diana L. Moreland he wants a jury to hear testimony about a 4-year-old saying those words last July after allegedly seeing “sex on the beach” in Bradenton Beach.
As a result of their actions July 20 at Cortez Beach, Jose Ben Caballero, 39, and Elissa M. Alvarez, 20, both of Bradenton, are facing trial on one count of lewd and lascivious exhibition in the presence of a child less than 16 years old.
Six witnesses, including the mother and great-grandmother of the child, filed complaints that day to the Bradenton Beach Police Department, which sent arresting officers to the beach, where they took affidavits.
One witness took a video that shows Alvarez straddling Caballero, allegedly engaging in a sexual act.
At trial, the child’s words are expected to come through the testimony of the girl’s mother and great-grandmother.
DaFonseca said the testimony is admissible as a reaction that prompted the mother to approach the defendants.
Objecting to the child’s testimony in any form, Caballero’s attorney, Ronald J. Kupiers II of Tampa, argued the court must first hold a hearing to determine the reliability and trustworthiness of the child’s statement.
“I believe any statement by the child is hearsay,” Kupiers added.
Moreland said she disagreed with Kupiers but would reserve her ruling until presented with case law.
Also at the hearing, defense attorneys withdrew their prior requests to separate the Caballero and Alvarez cases.
After the hearing, DaFonseca chalked up the withdrawal to a victory for “judicial economy.”
If convicted, Caballero will be sentenced to 15 years in state prison. The sentence is mandatory under Florida law due to Caballero’s criminal history, according to DaFonseca.
Caballero was released from state prison in February 2013 after serving eight years for cocaine trafficking in Sarasota County, according to Florida Department of Corrections.
Alvarez faces up to 15 years in prison.
The first day of their trial could be as early as April 27.