Last Updated: 5:54 p.m.
Circuit Judge Terence Perkins sentenced former Palm Coast resident 56-year-old Philip Martin to 25 years in prison for rubbing, caressing and massaging various body parts of a girl who’d been in his trust when she was 9, 10 and 11.
The sentence was the minimum Perkins could lawfully impose under Florida’s minimum-mandatory law for that office.
A jury in February found Martin guilty of a first-degree felony charge of molesting a girl younger than 12. The charge carried a maximum penalty of life in prison. He was also found guilty on two second-degree felony counts of attempted molestation. Perkins sentenced him to life sex offender probation when Martin is released. He is not eligible for early release, so he will be around 80 years old by then.
But even the judge acknowledged that the sentence was too harsh. “If it was not required I would have imposed probably a different sentence,” Perkins said. “There’s really nothing I can do unless the state agrees to do something with that 25 year minimum mandatory, and obviously they are seeking it.”
Martin never touched the girl’s private parts, and there was a dispute over whether he had touched her butt. Whether he had or not was the only element in play in the first, more serious count. The victim herself said on the stand that he had not touched her that way (nor did she say he’d done so in a deposition, nor had she said he’d done so in an interview with the Child Protection Team. An earlier version of this article incorrectly stated that she had said otherwise in a deposition. In fact, the prosecution said that her statement on the stand in that regard “was consistent with her deposition.”)
Martin’s first-degree felony conviction is based entirely on that disputed element. It led Martin’s attorney, Assistant Public Defender Bill Bookhammer, to make a strong case for a judgment of acquittal on that charge, or at least for a new trial.
The victim “in her cross examination directly stated, without any hesitancy, that Mr. Martin had never rubbed her rear end, never rubbed her buttocks, never massaged, flat out denial,” Bookhammer argued before the court. The victim in her testimony had been direct, poised and clearly knowing, her intelligence never in doubt. “She didn’t say that it might have happened, or it could have happened, or maybe. She didn’t equivocate at all. She was firm in her denial, and Mr. Martin did not do the act that he was convicted on.”
For the jury to convict on the most serious count, it would have had to find beyond reasonable doubt that Martin had touched the girl that way–to dismiss the girl’s denials, and to go with an admission Martin himself made, and later recanted. That the jury did so anyway suggests either a misunderstanding of “reasonable doubt” or something equally untenable in its approach: it chose to disbelieve the victim only in that regard and believe the defendant only in that regard, believing her and disbelieving him in other regards.
Defense attorneys often file motions for new trials or judgments of acquittals. They rarely have a case as strong as Bookhammer had today, at least on the first count. He did not have much of a case on the next two. But the dichotomy was as sharp as the likely reason why the jury voted to convict on the first count, despite the weak evidence. It had strong grounds to convict on the two attempted molestation counts. So it appeared to have figured that, if Martin was capable of attempting to molest her, then surely he did, and so it convicted on the first count. But it did so based not on evidence, but on speculation–on a deductive approach rather than an empirical one.
That’s not justice, as lawyers from both sides told potential jurors during jury selection. It’s jurors misinterpreting the law and their role.
Yet Perkins denied the motions either for a new trial or an acquittal on the first count. Those would have been the only ways to mitigate the harshness of the sentence. So he was left to imposing the minimum mandatory.
There was one other avenue: Perkins said Assistant State Attorney Melissa Clark would have had to waive the minimum mandatory requirement and get the family’s permission to do that, which did not happen. “So it’s completely within the state’s purview to seek a lawful sentence,” the judge said.
Several members of the girl’s family, though not the girl herself, were in the courtroom. One of them after the hearing said that, having known Martin for some 15 years and seen court documents such as the pre-sentencing investigation, he was aware of previous cases when Martin had been investigated–but not convicted–for similar allegations. The family member considered the sentence lenient, not harsh, in light of Martin’s history, and that Martin had convinced himself of his own lies. But even if that was the case, there’s no such thing as retributive justice for elements not introduced at trial.
“I’m just kind of baffled at everything here, I’ve maintained my innocence from the very first time we met,” Martin told the judge. “I regret making [the victim] feel uncomfortable in any way, that was not my intention, and I never touched her in any sexual manner, I never touched any of her body parts. I sit here convicted of all of the above. I’m speechless.”
He pleaded unsuccessfully to the judge to reconsider the denial for a new trial “just because of the fact that I do maintain my innocence, and [the girl] actually stated my innocence as well. I feel the jury was unable to weigh the evidence.”
That was a stretch: the girl had not at any point maintained his innocence. She testified for the prosecution, and made it clear that there never were doubts that he had acted creepily, inappropriately and foolishly, despite above-average intelligence that suggested to the jury that he knew precisely what he was doing with every move, or should have quickly picked up on the fact that he was making her feel uncomfortable.
It is also indisputable that he was sentenced to a punishment out of proportion with the crime, especially when compared to similar sentences for far more lurid crimes where the acts were never in question, and the violations clearly more egregious. But the minimum mandatory law, Martin’s attorney said, reflects the legislature’s “one size fits all approach” with sex crimes.
Martin had been dating the girl’s mother and at one point lived with her and her children as a family. The mother died. Subsequently, Martin would spend time with the girl and her brother, at their grandmother’s house. The girl would sit on his lap and play with her phone, or sit on the couch near him, watch tv and play games.
Martin did not denying touching the girl inappropriately, if never with direct sexual contact, but that would have resulted in a conviction only on the two lesser charges of attempted molestation, not the first degree felony charge of actual molestation.
The girl “flat out said he never massaged her butt,” Bookhammer argued, essentially saying that the jury got it wrong, and appealing to Perkins as what may legally be referred to as “the seventh juror.”
“She was firm in her denial that Mr. Martin did not do the act that he was convicted on,” Bookhammer continued, so the only evidence that he did so were his statements to law enforcement. But that left the court having to weigh what Martin did say, and having to weigh an expert witness for the defense claiming that Martin only told the police he touched her butt because he was telling them what they wanted to hear. That was never convincing at trial. It was not convincing today. But it did not diminish the validity of the defense’s argument about the doubt surrounding the heinousness of the act–a doubt Clark was compelled to acknowledge and address. She did so only to the extent that it was indicative of the girl’s confusion as to what was happening, if with a degree of sophistry unusual for a usually straight-forward prosecutor.
“I would argue judge in our culture, for better or worse, touching of a buttocks is not as icky as touching of the genital area, touching of the breast area,” Clark said. “We see it in sports, little boys when they make a touchdown, their teammates and their coaches are slapping them on the buttocks. It’s acceptable in our culture. So I would argue judge in this situation, we have a little girl that’s feeling icky when this man is touching her, and the focus is going to be in the icky areas, which is the breast area and the genital area. So I don’t think it’s unreasonable that she may not have remember that the defendant touched her buttocks. That’s just the way our culture is.”
“I don’t think it’s a big surprise that there are inconsistencies and statements by a number of the witnesses including the victim  and Mr. Martin,” the judge said, explaining his decisions. But in one of his statements to police, Martin was the one initiating the statement about touching the girl’s butt, giving it “extra trustworthiness.”
Perkins said there “absolutely” were discrepancies that he found “troubling,” but not inexplicable. “I don’t find that to be unusual. Certainly I don’t find that sufficient to throw out the statement.”
“I had indicated to both sides that–I don’t know the exact words–I said something to the effect that I’m not sure I’m comfortable with a 25-year minimum mandatory, but I will follow the law,” Perkins said.
It’s rare that judges express themselves to that extent on the appropriateness of a sentence. But why was he uncomfortable with the mandatory sentence, if not because of the gray-hazed extrapolations that led to a verdict out of proportion with the offense?
A despondent Bookhammer echoed him: “Our hands are bound,” he said. Whether Martin was more or less grim from the outcome of the sentence could not be gauged. He had looked grim from the first day of trial, never changing expression. It did not help him, though by then he’d already spent some 900 days in jail. He looked no different today.
The case will be appealed.