The case of a 27 year old Miami woman who was raped at the Pleasure Emporium in Miami Gardens, while working the midnight shift, is one of the more terrifying my recent memory as a Miami crime victim attorney.The store utilized cameras, both inside and outside, extensive lighting, a locked front door which required customers to be buzzed in, and a panic button.

According to the court file, Jose McCray, armed with a pistol, ordered L.B. to give him all the store’s money and lie on the floor. He then raped her and left. L.B. hit the panic button and called 911 on her cellphone.

Clearly, the security measures were not adequate to protect L.B. and she sued the store for negligent security.

The store has previously had four armed robberies during the overnight shift, with the last one taking place only two months before L.B. was raped. L.B. claimed she had never seen Mr. McCray before, but a co-worker testified that he had been in the store three days before the attack asking for L.B. This became a crucial piece of evidence in the case, as experts testified that the rape was “victim targeted” and not a result of inadequate security.

In proving and defending negligent security cases in Florid, both the victim and defendants utilize security experts to opine as to whether or not the store, mall, apartment, condo, and/or school provided adequate or reasonable security. They are permitted, assuming they have the qualifications, to testify and render opinions on security matters and procedures, but not on the assailants motives for choosing the victim as a target. Victims of crime have to prove that the crime was not specifically directed at them but was rather a random act of violence as a result of inadequate security.

In this case, the defense wanted to have the jury hear the co-worker testify that three days before the rape, the assailant had come in to the store asking for L.B., to prove that this was a victim specific crime. L.B. wanted to keep the statement out, as it is considered to be hearsay (an out of court statement).

Ultimately, the Judge let the jury hear the statement by way of the store’s security expert, Gregg McCray, who claimed that he relied on the hearsay statement in concluding that the crime was “victim targeted.”

The jury returned a verdict for the defense and L.B. appealed to Florida’s Third District Court of Appeal.

The appellate court reversed the trial court and held that the expert could not be allowed to testify on those things that are beyond the scope of his expertise, namely, the motive of the assailant for raping L.B. Yet, the court held that the co-worker’s statement should be relayed to the jury as, while technically hearsay, it can help prove the foreseeability of the crime and prove why the assailant returned to the store.

I do not agree that the statement should be provided to the jury unless the witness is live in the court room or had a sworn deposition. I am pleased, however, that the victim of this senseless crime will have another chance at justice. I hope that this will encourage all Florida business owners to take every reasonable precaution to provide a safe place for both their customers and employees. It is inexcusable to me that, after four armed robberies, the Pleasure Emporium did not do more to protect L.B., like hiring an off duty police officer, security guard, a bulletproof security booth inside the store and an earlier closing time. Obviously, not every Florida rape or crime can be prevented, but businesses have an obligation to do everything reasonable to prevent foreseeable acts of violence.