On March 8, Jose David Zayas an 18-year-old resident of 23 Smith Trail in Palm Coast, was arrested on three second-degree felony charges of lewd and lascivious molestation on a 13-year-old girl. He spent less than three hours at the Flagler County jail before posting bond.
He was facing a maximum of 15 years in prison on the one charge of molestation the State Attorney filed three days later. But those few hours at the county jail may be all the jail or prison time Zayas will serve if he abides by the plea agreement and guilty plea he tendered before Circuit Judge Terence Perkins in circuit court this morning.
Zayas pleaded guilty to a reduced charge of child abuse, a third-degree felony, and was sentenced to 60 months (or five years) on sex-offender probation, with a long list of restrictions. But if Zayas abides by the probation terms, he will manage not to serve time nor be branded a sexual offender for the rest of his life, though he will be a felon: Perkins did not withhold adjudication.
According to his plea agreement, Zayas must successfully complete sex-offender treatment with a provider approved by the Department of Corrections. He must submit to an annual polygraph, or lie-detector test as part of his sex treatment. He is prohibited from having any unsupervised contact with any minors, and may neither work nor volunteer where children congregate. He is prohibited from possessing pornography or accessing the Internet. There is an exception to the Internet rule for work or educational purposes only. But he may not have social media accounts. Nor is he allowed to have a post office box, participate in Halloween, or visit parks, schools or day care centers without prior approval from his probation officer.
He may not have contact with the victim or a “similar fact witness,” the plea agreement states, “unless and until victim and similar fact witness therapist and sex treatment therapist think is in best interest of victim and similar fact witness for contact.”
The plea agreement is the first written documentation of the existence of an apparent second victim, termed a “similar fact witness” because the state did not have enough evidence to pursue charges in that instance.
The case against Zayas stems from a Flagler County Sheriff’s investigation that revealed that a 13-year-old child was molested by “a male family member,” meaning Zayas, “as far back as she can remember and as recently as 11/29/18.” Zayas spoke voluntarily with Sheriff’s detective Annie Conrad and confirmed the information provided by the girl as accurate, his arrest report states. “David estimated the number of times he sexually touched the child victim to be in the hundreds,” before he turned 18, but with at least one instance after he turned 18, by which time the girl had turned 13.
Zayas was initially arrested concurrently with Bryan Thomas Lemus, also 18 and a close friend of Zayas’s who used to spend nights at the Zayas home, sneak into the victim’s room and allegedly proceed to molest her, becoming bolder over time. Lemus was cooperative with investigators as well, telling them, as Zayas had, that he was interested in seeking help. Lemus originally faced two second-degree felony charges. One has been dropped. He is scheduled for a pre-trial hearing next week.
The same molestation charge can have wildly different applications once the case wends itself through court despite confessions. The difference usually has to do with the offender’s history and what deals victims and their families are willing to agree to more than the act or acts themselves. Since Zayas’s case involved the same family for both victim and perpetrator, plus his cooperation from the start, leniency was in the cards. But his case contrasts sharply with that of James Taylor two years ago, when the 39-year-old man was sentenced to life in prison after being found guilty of the same charge Zayas originally faced, but for molesting his 11-year-old daughter once, “for a couple of seconds,” in the victim’s own words, on the upper area of her chest and over her clothes. But he had already been a convicted felon at the time and was on parole at the time of the offense.
On the other hand, there was the case of Maria Howell last year, a 20-year-old who’d spent time with a 14-year-old runaway, and who was willing to plead to 10 years on probation on the same reduced charge that Zayas pleaded to: child abuse. The judge refused, wanting prison time, then agreed to a more lenient sentence on that charge of 18 months in prison. By then the victim’s mother had agreed to leniency. Howell served eight months and was released last October, on probation. Last month, a man facing 50 years in prison for molesting an autistic child was sentenced to 10 years of probation, no prison time.