Text Messages of Husband’s Affair Leads to Child Abuse Charges

January 11, 2023 Don Pumphrey, Jr. Criminal Defense, News & Announcements, Violent Crimes Social Share

When an individual is accused of inappropriately touching a child, there are several different charges they may face in Florida. One of those includes lewd and lascivious charges. In one recent Florida case, a couple has been arrested for incriminating text messages discussing the sexual abuse of a toddler.

This article will provide details from the recent case, along with information on relevant charges in the state of Florida.

What was the Case?

Volusia Sheriff’s Office arrested Jason Zeak, 35, and his girlfriend, Andrea Shearin, 31, after the couple was accused of molesting a 2-year-old child while in their care. According to the report, Zeak’s spouse found text messages on Zeak’s phone between him and Shearin.

The two were having a secret affair, which Zeak’s spouse found along with “hundreds of text messages that included evidence of the abuse.”

Investigators believe the abuse took place sometime in October 2022, however, they are unsure of the actual date. Zeak’s spouse reported the texts to the Volusia County Child Exploitation Unit after finding the messages.

The detectives obtained the messages that detailed the abuse, along with messages alluding to future plans to abuse the 2-year-old toddler. Volusia County Sheriff’s Office arrested Zeak and Shearin on January 4^th, 2023.

To protect the victim’s identity, Volusia County Sheriff’s Office announced they would not be releasing the relationship between the child and Zeak.

The couple has been charged with one count of lewd and lascivious molestation, one count of lewd and lascivious exhibition, and one count of child abuse. Zeak remains in the custody of the Volusia County Branch Jail. Shearin was released Thursday night on a $152,500 bond.

Lewd and Lascivious Charges

Florida Statute section 800.04 defines the rules and penalties for lewd or lascivious offenses committed upon or in the presence of a person younger than 16 years. In this section, “sexual activity” is defined as the oral, anal, or female genital penetration by, or in union with, the sexual organ of another or from the penetration of any object.

A person accused of lewd or lascivious offenses can be charged with lewd and lascivious exhibition, conduct, molestation, or battery. The penalties vary for each offense, depending on the specific details of the offense.

Exhibition

An individual can be charged with lewd and lascivious exhibition for any of the following activities:

• Intentionally masturbates in front of a victim younger than 16;
• Intentionally exposes their genitals in a lewd or lascivious manner; or
• Intentionally commits any other sexual act that does not involve physical or sexual contact with the victim. Including, but not limited to:
  • Sadomasochistic abuse
  • Sexual bestiality
  • Simulation of any sexual activity in the presence of a victim younger than 16.

The penalties for lewd and lascivious exhibitions vary depending on the age of the accused person.

If the defendant was younger than 18-year-old when accused of lewd and lascivious exhibition, it could result in a third-degree felony charge. The penalties for a third-degree felony in Florida include up to a $5,000 fine and up to five years in prison.

If the defendant was 18-years-old or older when accused of lewd and lascivious exhibition, it could result in a second-degree felony charge. The penalties for a second-degree felony in Florida include up to a $10,000 fine and up to 15 years in prison.

Molestation

An individual can be charged with lewd and lascivious molestation if they have been accused of intentionally touching a person under the age of 16 in a lewd or lascivious manner, or forcing the victim under 16 to touch the defendant in the following areas:

• Breasts
• Genitals
• Genital area
• Buttocks
• Clothing covering the genital area

The penalties for lewd and lascivious molestation vary depending on the details of the offense.

If the defendant was younger than 18-years-old when accused of lewd and lascivious molestation and the victim was between the ages of 12-15, it could result in a third-degree felony charge. The penalties for a third-degree felony include up to a $5,000 fine and up to five years in prison.

If the defendant was 18 years or older when accused of lewd and lascivious molestation and the victim was between the ages of 12-15, it could result in a second-degree felony charge. The penalties for a second-degree felony include up to a $10,000 fine and up to fifteen years in prison.

If the defendant was younger than 18-years-old when accused of lewd and lascivious molestation and the victim was under the age of 12, it could also result in a second-degree felony charge.

If the defendant was 18 years or older when accused of lewd and lascivious molestation and the victim was under the age of 12, it could result in a life felony. The penalty for a life felony includes up to life in prison.

Text Messages as Admissible Evidence

Similar to letters and emails, text messages can be admissible as evidence in a criminal case. However, the text messages must first be authenticated and must also be relevant to the case at hand. Even if one of the senders believed the text messages would remain private, the texts can still be used as evidence.

One important thing to note is that the State must obtain a warrant to seize a person’s cell phone. For this to happen, the authorities must establish probable cause. Once a judge signs off on the warrant, law enforcement can request access to the accused person’s cell phone and text messages from the cellphone provider or may confiscate them directly from the accused.

Authenticating the Text Messages as Evidence

Florida Statute section 90.901 titled, “Requirement of authentication or identification” explains that the identification or authentication of evidence is required as a condition precedent to its admissibility. The requirements of this section are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

As a general rule, text messages can be used as evidence in a criminal case once they’ve been authenticated. According to the Florida Rules of Evidence, as long as the person admitting the evidence meets the qualifications for admission, text messages are admissible in court.

During a court proceeding, one evidentiary issue is the authenticity of the evidence. In other words, the person looking to introduce the evidence must prove that the presented evidence is relevant, incriminating, and also authentic.

In the Florida case Walker v. Harley Anderson, the court had to address the issue of authenticating some text messages.

Walker v. Harley Anderson

Walker v. Harley-Anderson, 301 So. 3d 299 (Fla. 4th DCA 2020) was an appeal case regarding the admissibility of text messages and injunction to prevent stalking. The details of the case involved the victim reporting that she received multiple threatening text messages from the accused person.

The defendant told authorities she had never sent the text messages—and didn’t recognize the phone number that the threats came from. In the appeal from September 2020, the court found that testimony that a person received a text or email from another was not sufficient by itself to authenticate the identity of the sender.

The petitioner for the protective order did not produce direct evidence showing that the messages had been sent by the accused and none of the numbers matched the respondent’s number. The trial court erroneously placed the burden of disproving the authenticity of the messages on the accused.

Therefore, the court found that the text messages in the case were not sufficiently authenticated, and shouldn’t have been considered by the trial court. The Fourth District Court reversed the appeal. You can read the full case here.

When dealing with a criminal case with potentially incriminating text messages, we strongly advise seeking out a defense attorney in your area.

Finding a Defense Attorney in Tallahassee, Florida

Criminal cases involving child victims are prosecuted harshly in the state of Florida. Child abuse and lewd and lascivious convictions come with extensive prison sentences, expensive fines, and filing with the Florida Sex Offender Registry. On top of that, a conviction holds the stigma of abusing children, which could have life-altering consequences for your career, your relationships, and your future.

If you or someone you love has been accused of a crime in the state of Florida, contact Pumphrey Law Firm. Don Pumphrey and his team have years of experience in criminal law and have represented clients from all walks of life. Call us today at (850) 681-7777 or leave an online message today for a free consultation.

Written by Karissa Key

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