DECLINE TO: File FROM: Christine Adier Assistant State Attomey Sex Crimes/Child Abuse Unit DATE: 7-20-17 RE: Stale of Florida v. MICHAEL IRVIN i Case No. NIC DATE OF INCIDENT \ March 22, 2017 I VICTIM: CRIMINAL VIOLATIONS: Sexual Battery 794.011 FACTS/ POSSIBLE DEFENSES: This case was presented to our office as a Not In Custody forreview from FLPD on 5/31/17. The alieged incident occured on 3/22/17. I conducted Pre-filing Interviews of the victim on 6/14/17 and on 6/28/17 with Supervising ASA Stacey Honowitz, Detective Tisch and Victim Advocate Suzy Brown were also present, was property sworn, She said she has known the defendant for about é or 7 years. She had dated one of his friends a few years ago but is no longer in a relationship with him. She never had a sexual relationship with the defendant. She has gone out socially with him and his friends in the past. She said the last time she saw the defendant was ‘about two years ago when his mother passed away. She had recently sent out a text message to him and his forily just to say hi, He sent her a message that he would be in the orea in a couple of weeks and he would call her. (On the day of the incident the defendant was staying at the W Hotel in For Lauderdale. He sent text message to tell her he was in Fort Lauderdale. She said she wos working and could meet him at the Tiki Bar at the Ocean Manor Resort around 10:30pm. She scid she had two glasses of wine at the Tiki bar and was there with a friend. The defendant was with his fiend Vince, the owner of the resort, and the owner's gitlfrienc. After spending time at the Tiki Bar was going to go home but Mr. Irvin convinced her to go with him to another bar in Fort Lauderdale. She believed it was around 2am when they arfived at the bar. She had two more drinks at that location. They stayed until around 3am and then she went with him and his friend fo his hotel. The victim stated that she remembered going to his car and walking to his hotel room with him and his friend. She sct on the couch and put her head on the arm rest and told him she felt sick and just needed to rest, She said this was unusual for her since she usually drinks more alcohol and does not get sick. She said she did not take any drugs that nightand believes something was put in her drink. jemembers trying to call her friends to tell them she wasn't feeling well. She said her phone shows if was around 4am. She thinks his friend had already leff the room. She then remembers waking up fo the defendant poking her to wake her up. He came over times and he was trying to get on top of her on the couch. She said “No” and pushed him off of her. She said she remembers feeling his penis in her vagina. She pushed him off and he tried to do it again, She does not know if he used a condom. The next thing she remembers is him rushing around packing his things. She was on the couch in the living room and said, "Where are you going?" He then left the room and she walked out without her shoes. She asked him "Where are my shoes?” He fold her they were in the room. She rushed back in the room and could not find her shoes. followed Mr. Irvin out of the room and into the elevator. When he got fo the lobby she again asked for her shoes and tried to grab the bag he was holding. He gave her the room key and toid her to go back to the room fo rest. He sent her a fext of the room number. She did not go back to the room, Sne called Uber and got a ride home. When she amived at her home her fiend noticec was distraught, told her what happened and her friend called 911. When police did not respond right away her friend took her to Holy Cross Hospital. Police responded to the hospital at 6:44am. After the hospital she went to SATC at 10am where blood and urine samples were collected. She fold staff at SATC that the assault happened around 4:30 am. What she told her friend two hours after the event occuméd is hearsay and would not be admissible at trial. The video surveillance at Ocean Manor Resort shows _siffing at a table ot the Tiki Bar drinking with a group of people including the defendant. They are seen at the bor from 12am to 2am when they leave in an SUV driven by the defendant's friend Vince. is walking on her own fo the SUV. She initially believed they went to Rock Bar but viewing ‘the grainy video from Rock Bar of that night fails to show anyone resembling them. The next video is of them pulling up to the W Hotel around 3:24 am, The defendant's friend is ativing anc axits the left passenger door. She runs over to the right passenger area. The defendant comes out and they walk to the hotel. Although’ appears fo sway a litle she is walking in front of both men at first and then runs inside the hotel ahead of them. The defendant is walking next to his friend carrying a large glass half full with a red color fiquia The video surveillance at the W Hotel captures them in the lobby area going to the elevators. nas her arm around the defendant's waist and he is leaning his arm on her shoulder when they walk to the elevator. The next set of elevators: show the defendant's fiend entering the elevator and holding the door open at 3:27am. The defendant is seen talking to some hotel workers. takes the drink from him and starts dancing and gyrating her hips around in the hallway by the elevators. She then walks to where the defendant is talking to the workers and she does the same thing. The defendant stops her and directs her to the elevator which they both enter. Af 4:02 am Vince is seen exiting the elevator alone and he leaves the hotel. The next video from the W Hotel shows the elevators to the lobby open at 6:05am and pauses and looks both right and left and exits in the same clothing but without ony shoes, She walks out and the defendant is behind her with a small roling suitcase, She does not appear to be upset. They then come down in the second set of elevators to the lobby and exit. She walks out first and the defendant is rolling the suitcase with | |another small bag on top. He started to walk a few steps anc is saying something io him and she grabs at the bag on top of his suitcase. They appear to be arguing and she walks toward the side door He continues walking to a different hall to the parking ‘area and stops and appears fo be telling her something as he points to ihe elevators. She continues to walk outside while looking at her phone. According to the police reporis one bed in the two- bedroom suite appeared to have been slept in, Three pillows were on the bed, The top sheet and duvet were pulled back ‘and another pillow was on the floor. A box of unopened condoms was located on the floor by the left nightstand. By the right side of the bed a towel was located partially covering a pair of gold shoes. Altemative Light Source was used fo examine the bedding and it was negative for the presence of semen. Strands of Black hair were located on the sheet. On the coffee table in the living room was a large drink glass half full of aed fiquid. The living room area also contained a sectional couch with a chaise on the left portion of the couch. On the chaise area was a bive and white blanket, Two black hairs were located onthe blanket, The blanket was negative for the presence of semen. Four throw pillows were on the couch. The comer of the sea! cushion from the right portion of the couch had a positive reaction for trace evidence of semen with the aifernate light source. This could be from someone else who previously occupied the room or if it was from the defendant, it still would not be evidence to prove a sexual battery since he was the one who rented the hotel room two days before the incideni. The area where this seat cushion was locaied was the opposite side from where stated she was laying. On 7/12/17 Vincent Parish gave a sworn staement to police. He advised that he was with Mike at the Ocean Manor Resort on the night of 3/21/17. They were with a group of other people when the girl came up and started talking to Mike. He had never met her before but it appeared that Mike knew her. They had a few rinks at that location and Mike decided he wanted to go to a bar closer fo his hotel. She decided to go with them fo the bar. He said she was dancing and jumping around everywhere at the bar that ot one point the barlender had to tell her to get down. They decided to go back to the hotel because Mike had a fight out that moming. They each had one drink at Rock Bar that he owner gave them. didn't drink hers and took it with her back to the hotel. While they were at the hotel they were talking about an upcoming trip Mike had planned to Hawai did not appear fired and was jumping around on the furniture. When he was talking to Mike she got between them to get his attention. He did not see her ‘coming onto Mike and there was no talk about sex at all. Mike fold them bath that they could stay over or he could get them an Uber, Vincent decided to get on Uber since he had a meeting the later that day. She decided to stay. When he was leaving he warned Mike and soid, "Watch it, | don’t trust her.” Mike said, “Oh we're friends." "We cool." Vincent said she was fine when he left and was standing in the kitchen area, They were all together in the hotel for about 30-40minutes before he left the room. They did not drink in the room while he was there. This case is based primarily upon testimonial evidence. The defendant denies that ony sexual activity occurred. rifially told police that she could not remember many of the details of what happened and told them the defendant “ried” fo put his penis in her. “/think it went in maybe once or twice." “I pushed him off with all my strength." She did not have any injuries which could be attributed to this incident,There is no DNA evidence fo establish that a sexual battery occured. The vaginal swabs taken from the victim at SATC do not contain any DNA other than Although the victim was visibly intoxicated when she entered the hotel, she was walking around and even dancing in front of the defendant and other hotel employees. The toxicology report shows that there were drugs and alcohol in her system but we cannot prove that the defendant provided any of those drugs. There is no evidence that she was passed out or unconscious. The toxicology reporl came back showing the presence of Amphetamine (she takes Adderall for ADD), MDMA, MDA, Cocaine, and Alcohol in her blood and urine and Diphenhydramine (an antihistamine like Benadryl) in her urine. Her blood Alcohol was at .10 g/dl when it was tested several hours later, She admits to taking a small amount of Xanax and Ecstasy [MDMA] sometime from Sunday (3/19/17) into early Monday morning (3/20/17) when she was alone in her apartment and cocaine sometime during the weekend, She insists that she did not take any drugs other than her Aciderall on the doy she went out with the defendant. | spoke with a toxicologist from the M.E.'s Ofice about the likelihood that the drugs found in the victim’s blood and urine could be present for over 48 hours after she claims to have faken them. | was informed that if would be extremely unlikely to still show up in her blood and urine since the drugs are metabolized within several hours and Cocaine is aimost immediately metabolized. The drugs would have to have been consumed at a more recent time period. Alter a thorough review of all the evidence submitted by the police which includes; police reports, video surveillance evidence, conirolled phone calls, sworn statements, a Toxicology Report and Crime Lab Analysis Report, it is clear that there is not enough evidence to establish that a crime wos committed. The viclim's inability to recall details, the inconsistent statements, her alcohol and drug use, coupied with the video evidence showing her voluntarily entering the hotet with the defendant and two and a half hours later exifing the hotel elevator with the defendant while not appearing upset, make this a case where there is not a reasonable fikelihood of conviction. Without additional evidence to comoborate the victim's account of what occurred, we would not be able to prove beyond a reasonable doubt that a seyutioattery occured. There Is no reasonable Iikellhood of conviction. | redommend ining the case. CHRISTINE ADLER, ESQ Assistant State Attomey sistawtState Attomey In Charge