The First District Court of Appeal cleared the way Tuesday for prosecutors to use video and photographs from a cell phone in a lewd and lascivious case in Bay County.
The three-judge panel overturned Circuit Judge Elijah Smiley’s ruling suppressing images recovered from a cell phone showing Kayla Nichole Fosmire and Nicholas Evans, both 23 of 3518 Eagle Lane, having sex with each other with a 2-year-old girl on the bed with them.
Police discovered images on Evans’ cell phone and a tablet when Fosmire called them to her residence complaining of being battered by Evans. She gave police permission to search the residence for items she claimed Evans had stolen, and to search the electronic devices for pictures related to those items.
Assistant State Attorney Jennifer Hawkins charged Fosmire with two counts of lewd or lascivious exhibition, four counts of sexual performance by a child and one count of child abuse.
Fosmire’s defense attorney filed a motion to suppress, saying the images were discovered in an illegal search despite a note signed by Fosmire specifically saying she had given officers permission to search. The phone wasn't’t searched until officers secured a warrant.
Smiley granted the motion to suppress over the state’s objection. The appeals court sided with the state that Fosmire couldn't’t object to the search of the phone because she claimed it was Evans’ and therefore she had no standing to contest the search. Fosmire, who faces up to 95 years in prison, is scheduled for a pretrial hearing May 23.
Information provided by the State Attorney's Office