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Felony charges dismissed against Tampa Prep swim coach
The former coach still faces misdemeanor charges and lawsuits.
By COLLEEN JENKINS, Times Staff Writer
Published November 16, 2007
Caitlin Carey, 21, one of the women who was videotaped, glances at her father, Tom Carey, as they sit in the courtroom awaiting the hearing.
[Carrie Pratt | Times]
Kimberly Brabson is accused of videotaping girls trying on swimming suits.
TAMPA -- A judge on Thursday dismissed all felony charges against Kimberly Brabson III, the ex-Tampa Prep swim coach accused of secretly videotaping dozens of school girls as they tried on bathing suits in his office.
Hillsborough Circuit Judge J. Rogers Padgett said the video images of girls undressing did not depict sexual conduct. Prosecutors can't prove the 19 felony counts of "promotion of a sexual performance by a child less than 18 years of age" without that element.
Without the felonies, Brabson can't be classified as a sexual offender or go to prison.
But he isn't off the hook yet.
Assistant State Attorney Rita Peters said she would appeal the ruling. And Brabson, 30, still faces multiple lawsuits and jail time if convicted of 11 misdemeanor video voyeurism charges.
Authorities arrested him in January on the misdemeanor charges after finding a camera and videotape in his office.
Those charges didn't sit well with victims' parents. Clearwater attorney Tom Carey, a parent of two victims, publicly demanded a harsher prosecution.
In February, the Hillsborough State Attorney's Office added the felonies.
Enter defense attorney Eddie Suarez. In a written motion, he asked Padgett to dismiss the felonies on the grounds that nudity alone of a minor in a photograph or film does not constitute sexual conduct.
He acknowledged that Brabson specifically asked a couple female students to remove their bras and panties while trying on swimsuits. But even that, Suarez said, did not amount to choreography or "anything other than everyday pictures of female juveniles dressing and undressing."
"Nudity is not a sexual performance," Suarez said. "The law is clear on that."
Peters, the prosecutor, argued that Brabson wasn't merely interested in making sure the bathing suits fit.
She said he strategically placed the camera to capture the girl's breasts and genitalia, coerced them to disrobe and surreptitiously videotaped them -- all evidence of his lewd intent.
"The nudity of these minors was his central focus," she said.
But the judge didn't agree that Brabson had taken as active a role as the prosecutor said. He wasn't present in the room directing the girls, Padgett said.
As for the images, "I didn't see any body parts," the judge said.
Carey and one of his daughters, 21-year-old Caitlin, attended Thursday's hearing. Afterward, they put their hope in the 2nd District Court of Appeal, which has the authority to overturn Padgett's decision.
"The way the statute's written, it's a close call," Tom Carey said. "Naturally, I agree with the state."
Caitlin Carey, who was 17 when she says Brabson videotaped her, gave the St. Petersburg Times permission to use her name. She said she wants him labeled as a sex offender so he can't work with children ever again.