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Ex-Coach Won't Face 19 Felony Charges

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By THOMAS W. KRAUSE, The Tampa Tribune

Published: November 16, 2007

TAMPA - Surreptitiously videotaping underage girls changing into their swimsuits is not a felony under Florida law, a judge ruled Thursday.

Under the ruling, 19 felony charges of promoting sexual performance by a child were dropped for a former Tampa Preparatory School swim coach who is accused by prosecutors of setting up a video camera in his office and asking girls to change clothes in there.

Prosecutors have appealed the judge's ruling. The 2nd District Court of Appeal could take months or even a year to review the case.

Regardless of the appellate court's decision, Kimberly Brabson III still faces 11 misdemeanor charges of voyeurism.

The felony charges carry a maximum punishment of 15 years in prison per count and require anyone convicted to register as a sex offender. The misdemeanor charges are punishable by up to one year in jail and do not include sex offender status.

Circuit Judge J. Rogers Padgett told a prosecutor Thursday that, by law, to charge someone with promoting sexual performance by a child, the videotape must show sexual conduct.

Nudity Isn't Sexual Conduct
When legislators wrote the law, Padgett said, they specifically pointed out that sexual conduct is necessary to file the felony. Nudity alone is not sexual conduct, the judge said.
Assistant State Attorney Rita Peters said Brabson did more than just videotape girls who happened to be naked. He instructed them to go into his office, where he alone knew they were being taped.

"Brabson told those girls what to do," Peters said. "On some occasions, he actually told the girls to strip down to fully nude."

The intent of the video was to record images of underage nude girls, she said. That constitutes a sexual nature to the tape, she argued.

Eddie Suarez, Brabson's lawyer, said the judge made the only possible ruling under the law.

"Nudity is not a sexual performance," Suarez said. "Not under Florida law."

Brabson and Tampa Prep are also defendants in civil lawsuits filed by at least 11 of the girls prosecutors say are shown on the videotape. One of the lawyers representing the girls is Tom Carey, the father of two alleged victims.

Carey said he was upset with the judge's ruling but is looking forward to the appellate court's review.

"I think the way the statute is written, it's a close call," he said.

1 Girl Decides To Speak Out

The Tampa Tribune has withheld the names of the girls because of the nature of the charges. One of Carey's daughters, however, has decided to go public.

"I'm really disappointed," said Caitlin Carey, 21, who was 17 at the time police say she was taped. "I want to make sure this guy is labeled by this case so he doesn't do this to anyone else."

She said she cannot talk about what Brabson did to her and the violation of trust.

"It's just too upsetting," she said.

According to court documents, a female student complained in 2005 after Brabson, she said, asked her to try on a swimsuit in his office while he waited outside. School officials told Brabson that all changing of clothes had to take place in the locker room. He apologized to the girl.

In November 2006, another female student said Brabson had asked her to try on a suit. Brabson was suspended and told to seek counseling. School officials called police, who found a videotape in his office that included nude images of about 50 girls.

Brabson, 30, is free on $95,000 bail pending trial.

Reporter Thomas W. Krause can be reached at (813) 259-7698 or tkrause@tampatrib.com.

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