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Court Returns Swim Coach Voyeur Case To Hillsborough Circuit

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By TOM BRENNAN | The Tampa Tribune

Published: December 24, 2008

TAMPA - A state appeals panel ruled today that a Hillsborough County Circuit Court judge was wrong in dismissing 19 felony charges against former Tampa Preparatory School swim coach Kimberly Brabson III and that the case can be tried.

A three-judge panel of the 3rd Circuit Court of Appeal ruled a jury should have decided whether secretly filming female swimmers changing clothes was promoting a sexual performance by a child – not Judge J. Rogers Padgett, who dismissed the charges in November 2007.

"The determinations on whether a particular performance constitutes "actual lewd exhibition of the genitals" creates a factual inquiry for a jury and not a legal question for the court, the appeals judges said in an opinion released today.

Prosecutors and defense attorneys could not be reached for comment.

Padgett ruled that in charging someone with promoting a sexual performance, the evidence must show sexual conduct.

The 3rd Circuit panel said the conduct could be implied by the way Babson positioned the camera to focus on the area below the girls' waists.

"The very nature of the filming with a focus on the genitalia demonstrates lewdness," the opinion states.

Prosecutors had appealed Padgett's dismissals.

The appeals court panel reversed Padgett's ruling and returned the case to Hillsborough County Circuit Court. Padgett is retiring in January, having reached the mandatory retirement age of 70.

The 3rd Circuit in Miami heard the case after the 2nd Circuit Court of Appeal, which normally hears appeals from Hillsborough County, removed itself because of potential conflicts of interest.

The 3rd Circuit panel said Padgett did not have to find prosecutor's evidence sufficient to convict -- only "the barest" legal case.

The opinion states that Brabson approached numerous members of the girls swim team and asked them to try on swimsuits in his office under the pretext of placing orders for team wear.

The girls never knew, the court says, that Brabson had set up a video camera to record them as they changed clothing.

The videotape Brabson created, the court says, had three parts. Judges said the first showed the girls from below the shoulders to above the knees. Girls' faces could be visible based on whether the subject bent down.

The judges said Brabson clearly is seen setting up the camera and positioning the bathing suits.

In the second segment, the court says, the camera position was altered to be closer to the girls as they undressed, clearly focusing on the genital region when they faced the cameral.

A female student complained about Brabson in 2005, and he was told only female coaches could size suits. The next year another girl complained about Brabson asking her to try on a suit. He was suspended and told to seek counseling. School officials called police, who discovered the videotape in his office.

Brabson also faces 11 misdemeanor counts of voyeurism.

Reporter Tom Brennan can be reached at (813) 259-7698 or tbrennan@tampatrib.com.

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