A three-judge panel overturned Circuit Judge Elijah Smiley’s ruling to suppress images recovered from a cellphone connected to a lewd and lascivious case being heard by the court, despite a claim the evidence was obtained illegally.
Prosecutors said video and photographs on the cellphone show Kayla Nichole Fosmire, 23, and Nicholas Evans, 23, having sex with each other with a 2-year-old girl on the bed with them.
Fosmire’s defense attorney filed a motion to suppress, saying the images were discovered in an illegal search. However, the First District Court of Appeal ruled Fosmire could not object to the search of the phone because she claimed it was Evans’ and therefore she had no standing to contest the search.
Assistant State Attorney Jennifer Hawkins has 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 faces up to 95 years in prison. She is scheduled for a pretrial hearing May 23.