Attorneys arguing to juries often frame their cases as straight-forward. Key elements in the case against Kwentell Moultrie are. Moultrie’s trial on a first-degree felony charge of raping a 16-year-old girl when he was 20 three years ago began today in Circuit Court at the Flagler County courthouse.
Moultrie’s DNA was found in the girl when a sexual assault kit was completed hours after the alleged assault. His age (he’s now 23) and the girl’s age are not in dispute. Even if they were, not knowing that a girl is a minor isn’t a defense under Florida law. It’s still rape, if so proven. (Age is relevant if the sex is consensual: a 16 year old is able to consent to sex under the law, as long as the other individual is younger than 24. Past that threshold, it’s unlawful sex regardless.)
The girl was drunk. It’s not relevant regarding her role, and it’s not even an aggravating factor in the charges, but it’s relevant to the extent that Moultrie would have taken advantage of a girl not in full control of her capacities. It’s the sort of detail prosecutors pick apart, knowing that it can influence juries even more than hard evidence.
There are complications. The alleged victim, who now lives in the Northeast, is not likely to testify. That makes it more difficult for the prosecution, but not by much. Assistant State Attorney Melissa Clark will be relying on what the defense considers hearsay evidence: what the victim’s friends or acquaintances heard that night, what the victim told law enforcement and the Child Protection Team, or CPT, in an interview that is likely to be shown to the jury.
The defense–Moultrie is represented by Assistant Public Defender Regina Nunnally–filed a pre-trial motion arguing that Moultrie had a right to face his accuser, and that the defense had no opportunity to cross-examine the accuser before trial (the girl did not appear at two scheduled depositions). The defense argued that the girl “made at least three inconsistent accounts to three separate people (her cousin, CPT and law enforcement) which would make her statement unreliable.” Nunnally wanted hearsay statements excluded. Circuit Judge Terence Perkins ruled against the motion in most regards.
The truism that a defendant has the right to face his accuser resonates with any juror. But the truism isn’t a given: in murder trials, the principal accuser is dead. That’s why the state represents the victim. The victim doesn’t have to be dead to opt out of testifying. Similarly, a defendant has the right not to testify. Neither decision reflects on the veracity of claims by the victim or on the innocence or guilt of the accused.
Another complication, though it has little to do with this trial (it may have something to do at sentencing, should it gets that far), nor will the jury hear of it: Moultrie is also up on a charge of second degree murder in the killing of Zaire Roberts at the end of December in Palm Coast’s R-Section. Moultrie didn’t fire the bullet that killed Roberts. Danial Marashi did. But since Moultrie, Roberts and Taylor Manjarres were allegedly in the act of robbing Marashi at his home, the killing of Roberts was charged to the alleged perpetrators of the robbery.
Moultrie had been out on bond on the rape charge when he was involved in the R-Section incident. He was jailed without bond after the R-Section killing.
Before the killing, Moultrie had been offered a plea deal on the rape charge: the state was willing to reduce the first degree felony rape charge with a maximum penalty of 30 years, plus a lifetime designation as a sex offender, to mere child abuse, a third degree felony, to which he would have sentenced to no prison time, just five years’ probation–but with “sex offender type conditions,” in Clark’s words. But he would not have been designated a sex offender beyond the probation’s duration.
That part of the case’s background emerged when Perkins asked Moultrie himself if he’d been offered a deal. Perkins asked him what the sentence would have been, had he accepted the child abuse plea.
“I really don’t know,” Moultrie said. “Only question I asked when they offered me the child abuse,” Moultrie said, “was whether I’d be allowed to be around my daughters, and I guess that was a no, I couldn’t be around them, so that’s why I denied the offer.”
Put another way: Moultrie was willing to risk up to 30 years in prison, away from his daughters for the duration, rather than accept a no-prison deal with severe restrictions, but restrictions that he could have petitioned the court at any point in his probation to loosen, at least regarding his own children–as even designated sex offenders do. He could have also petitioned the court to end his probation early.
Instead, by going to trial–with the prosecution having almost insurmountable DNA evidence against him–Moultrie is looking at a minimum mandatory sentence of 95 months, or eight years, in prison, and up to 30 years, and he would be a registered sex offender.
Nunnally did not intercede with Moultrie at any point. Perkins seemed surprised. “Have you talked to Moultrie about that?” the judge asked the assistant public defender.
“No,” Nunnally said. “In essence, when I spoke to Ms. Clark, she expressed to me that the only offer she was going to give was a sex offense. So as to the terms, I don’t recall. I don’t remember the term very specifically.”
Nunnally was referring to an earlier offer: five years in prison and 10 years on probation, plus the designation as a sex offender. After Moultrie rejected it, he was offered the plea on the more lenient charge.
But the state took the more lenient offer off the table after the December shooting and Moultrie’s return to jail on the second-degree murder charge (a potential life felony). In sum, and despite the fact that the December incident will not directly figure into this week’s trial, Moultrie not only complicated his alleged rape case by several orders of magnitude with the shooting, since he lost what would have been a very lenient deal, but he now faces two successive cases that each could result in his incarceration for at least the next 30 years.
Today, Moultrie sat between his two attorneys–Nunnally and Assistant Public Defender Alexis Nava-Martinez–wearing a mask and civilian clothes, as is his right at trial: dark pants, a collared short emblazoned with letters of the alphabet that did not seem to add up to a particular message, and a rosary he wore outside his shirt.
The facts of the case are for the most part straight forward. (For narrative clarity, the actual names except for Moultrie’s have all been changed to first names chosen at random from the top 20 girls’ names of the year 2000.)
The night of June 20, 2019, Emily, the alleged victim, was hanging out with her friend Olivia. They were going to stay the night at Olivia’s sister Destiny’s house in Palm Coast’s P Section. After Destiny and her boyfriend went to sleep, Emily and Olivia started a drinking game, and invited Olivia’s friend, Rachel, who lived next door. Rachel invited two additional friends, Julie and Tasha, who drove over. All five then drove to Walmart, then to Steak ‘n Shake.
Most, or all, were drunk. Rachel called Moultrie, her ex-boyfriend, and invited him to Steak ‘n Shake. He showed up there with a friend, Ellis. By then the girls were making a mess of Steak ‘n Shake, including throwing up on the restaurant’s floor. Since “things were getting out of hand” (as the language in a later warrant described it), they opted to return to the P-Section house. Moultrie and Ellis followed them.
Since Olivia and Emily were not feeling well, they decided–after throwing up in the bathroom–to ask everyone to leave. Emily saw everyone leave, or thought she did. She and Olivia then crashed on a bed (after Olivia threw up again, in the room). At some point, according to Emily’s account to authorities, Emily noticed a male getting in between her and Olivia, then felt another male lying on top of her, sliding her underwear to the side (she had taken off her pants earlier, when getting into bed), and penetrating her. She told the man to stop, tried pushing him off, and eventually yelled at him to stop, ending the alleged assault.
Olivia, who had not been facing in the direction of her friend, “did not observe what had occurred,” according to a search warrant. But she kicked both men out of the house, turned on the lights and saw Emily crying. They fell asleep and woke up an hour later. Emily’s underwear was soaked, her vagina was in pain, she wasn’t sure what had happened but she feared she’d been raped. They went back to sleep. By then it was June 21. The day went by. A little after midnight, Emily’s cousin took her to AdventHealth Palm Coast, where a sexual assault examination was conducted and a Flagler County Sheriff’s detective responded, starting the investigation.
Moultrie, complying with a search warrant, submitted to a swab for DNA. The DNA was analyzed and was matched to the DNA found in Emily–a one in a 700 billion chance that it was not Moultrie’s.
The two sides’ lawyers spent the day selecting jurors out of a pool of 40 people, one of them was quickly dismissed after the discovery that the juror was a convicted felon who had not petitioned to regain civil rights, such as the right to serve on a jury. The original pool was made up of 38 whites and two blacks. The chosen jury consists of three men and four women, including one alternate–a bookkeeper, a sales representative, a homemaker, an employee at a manufacturing plant, retired military shipbuilder, a retired medical assistant, and an employee at a Realtor’s office. It’s an all-white jury. (Moultrie is Black.)