Was Justice Served?

By: Hannah Wallace

In the fall of 2008, 22-year-old Charles McKenzie III was a bright star in Sarasota’s glittering theater firmament. Handsome, charming and talented, he’d performed standout roles with virtually every local theater group, including professional roles at the Golden Apple Dinner Theatre and Asolo Rep. Just back from New York City for his first audition, he […]


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Mugshot: Charles McKenzie IIIIn the fall of 2008, 22-year-old Charles McKenzie III was a bright star in Sarasota’s glittering theater firmament. Handsome, charming and talented, he’d performed standout roles with virtually every local theater group, including professional roles at the Golden Apple Dinner Theatre and Asolo Rep. Just back from New York City for his first audition, he was dreaming of Broadway stardom. His theater peers and proud parents agreed he seemed destined for a brilliant future. But just a few months later, that bright future vanished.

Charles was arrested for having a yearlong, consensual, sexual relationship with a girl who was 14 when the relationship began. After being convicted on three counts of lewd and lascivious battery, he was sentenced to 30 years in prison. He is scheduled to be released Jan. 23, 2040. He will be 53 years old.

His family and friends were shocked and distraught at the length of the sentence. His mentors were outraged. The Sarasota Herald-Tribune ran editorials protesting the sentencing, and many people in the community agreed that this was a disproportionate punishment. He’d made an egregious error in judgment, they said, but how could a promising young man from a devout and respected African-American family, so well liked by peers and arts leaders alike, be given such a harsh and hopeless sentence?

The answers—those that can be found—lie in the letter of the law. But this is a case of straightforward laws applied, as they almost always are, to a decidedly more complicated story.

Charles in the Golden Apple’s Joseph and the Amazing Technicolor Dreamcoat (above left and at right) and Venice Theatre’s Forbidden Broadway, center. (PHOTO BY COSTARS)

As a child growing up in Sarasota and Bradenton, Charles showed talents for oratory at an early age and envisioned a career in politics. His father, the Rev. Charles McKenzie Jr., worked with human advocacy campaigns like the Rainbow PUSH Coalition, and unsuccessfully campaigned for the District 13 U.S. Congressional seat in 2002. The Rev. McKenzie often took Charles and his younger sister, Delores, to his speaking engagements at human rights rallies, where they met luminaries such as Jesse Jackson and Bill Clinton. In the car, they listened to tapes of Martin Luther King Jr. Charles and Delores would recite whole passages of famous King speeches, noting every enunciated syllable and subtle inflection.

Young Charles sang and traveled with the chorus at the Westcoast School for Human Development and dedicated much of his after-school time to the Sarasota Opera’s youth program. “He took the younger kids under his wing,” remembers Sarasota Opera maestro Victor DeRenzi. “When someone was new, Charles would treat them like they’d been there the whole time.” He began working in community theater productions while he was still in high school.

His mother, Rosa, encouraged her children’s love of theater, shuttling them to and from their rehearsals and performances. And she kept a strict watch on their behavior as well. “She is really tied to what you might consider very classic, traditional American values,” says the Rev. McKenzie.

Charles incorporated those values at an early age. At 13, “I told myself that I wanted to wait until marriage to have sex. I also didn’t want to drink or do drugs,” he says. When he was 16, Roberta MacDonald, co-owner of the Golden Apple Dinner Theatre, sought Charles for a role in The Best Little Whorehouse in Texas. He politely declined. “My momma won’t let me,” he said. She disapproved of the title.

When Charles was a senior in high school, his parents divorced. He and Delores lived with their mother in a Gillespie Park duplex, while the Rev. McKenzie moved to St. Petersburg. “I wasn’t connected with him on a daily basis,” the senior McKenzie admits. “We didn’t communicate that much.” Charles enrolled in Manatee Community College to study theater but never finished. Still, his successes in community theater led to professional gigs at the Golden Apple and then Asolo Rep and American Stage in St. Petersburg. He helped support himself with a job at a Westfield Sarasota mall clothing store, but he continued living with his mother.

Everybody loved Charles. “He was a joy to be with,” says MacDonald. His smile and charisma turned heads when he entered a room. Often the only black person in his social circle, he relied on a natural gregariousness to fit in. “I’ve always been a bit flirtatious,” he admits. (Charles’ comments in this story come from a 16-page letter he wrote from prison in response to our questions.) And because he was a young, handsome heterosexual in the theater, girls and women alike reveled in his charms. “He was irresistible,” says MacDonald.

In the summer of 2007, just before Charles’ 21st birthday, the first sign of trouble arose. A man told police he’d discovered evidence that Charles had had sex with the man’s 14-year-old niece. Charles was arrested, but a change in the girl’s testimony led to the charges being dropped. Charles later would move to have the arrest expunged from his record.

His brush with the law didn’t slow him down. Over the next two years, his theatrical career flourished. He won raves for his roles in a number of local productions, from Rent at Venice Theatre to Damn Yankees at the Manatee Players. As soon as he got home from his New York audition, he was cast in Forbidden Broadway at Venice, then turned in an award-winning performance as Leo Bloom in The Producers. Those productions “put me in the VIP box for Sarasota theater,” he says. He was even dreaming of moving to New York.

But on June 5, 2009, six months after having his first arrest expunged, Charles was arrested again. The mother of a 15-year-old girl had discovered hundreds of text messages and phone calls to and from Charles on her daughter’s cell phone. When confronted, the girl, who is white, admitted she had been sneaking out of her house several nights a week over the past year and having sex with Charles.

This time, the allegations would play out to the bitter end.

Newspaper Editorial Clip: Inconsistent Sentencing

From the get-go, Charles faced an uphill legal battle—not least because of a Florida law that leaves no room for nuance.

It is illegal in Florida to have sex with anyone who is under 16. “Two 15-year-olds can be prosecuted in juvenile court for having sex with each other,” Charles’ attorney, Mark Zimmerman, says. “It gets a little absurd.”

Florida law is in line with other states; in the United States, the age of consent varies from 16 to 18. In reality, teenagers who are having consensual sex are not likely to report themselves to police, and concerned parents are quickly advised that, if both partners are between the ages of 12 and 15, then both partners can be prosecuted. “Obviously that crime is occurring a lot,” says Zimmerman. But parents “are probably going to opt for [prosecuting] neither [child].”

An adult who has sex with a child age 12 to 15 automatically faces a second-degree felony charge.

A separate charge is levied for each type of sexual contact. In Charles’ case, the victim estimated that over the course of the year, she and Charles had intercourse around 50 times, oral sex about half that time, and anal sex once. As a result, Charles was charged with three counts of lewd and lascivious battery—one count for each type of sexual contact, and each count carrying a maximum sentence of 15 years.

The case was assigned to Judge Donna Berlin, who was elected to the bench in 2007 after spending the bulk of her career prosecuting sexual molestation cases. “I like Judge Berlin,” says Zimmerman. “She’s an extremely nice person. She’s an extremely intelligent person. But her entire career was as a prosecutor. She never represented a client. This is not the judge I would have chosen.”

In a 2009 judicial evaluation survey of local attorneys, Berlin’s performance was ranked 10th out of 11 Sarasota judges. “Legal ability/knowledge” was among her lowest scores. (Berlin’s office declined to comment for this story, citing judicial ethics.)

Many cases like this don’t even go to trial—the prosecution and defense negotiate a plea deal. But Zimmerman and prosecutor Jason Miller “just couldn’t reach an agreement,” says Miller.

“I had a client who didn’t believe he should be incarcerated for what he did,” Zimmerman explains. Charles now regrets that his fear of prison may have put undue pressures on the plea negotiations. “One year to me then was as scary as 10,” he says.

He chose instead to plead not guilty. The prosecution would simply have to show, beyond a reasonable doubt, that Charles did have sexual contact with the victim. During the trial, Charles maintained that they had just been friends.

Prospective jurors were informed of how the law applies to victims under the age of 16: “Neither the victim’s lack of chastity nor the victim’s consent is a defense to the crime charged.”

“That [law] troubles a large amount of the jury pool,” says Zimmerman. If a prospective juror admitted that it would be difficult to vote guilty if the victim had consented to sex, then he or she was dismissed.

In addition to the victim’s testimony, prosecutor Miller employed a state legal standard called the “Williams Rule,” or “Similar Fact Evidence,” to introduce other alleged victims as witnesses. After Charles’ arrests in both 2007 and 2009, a number of girls had come forward—often at the insistence of their parents—alleging encounters with him that ranged from flirtation to rape. Charles was never convicted of, or even charged for, any of these additional allegations.

Miller presented the judge with five potential Williams Rule witnesses. Judge Berlin concluded that only one girl’s story sufficiently resembled the case in question, and that girl would be allowed to testify. That witness (who is now 18 but spoke with us on condition of anonymity) testified that she, too, had a sexual relationship with Charles when she was 14—and that she introduced him to the victim.

The jury returned a guilty verdict on July 30, 2010. Charles was to be sentenced on Sept. 23.

 

 

“My point at the trial,” says Miller, “is really just to show the elements of the charge. And the elements of the charge is, did he have sex with these [two] girls, and what was their age.”

Still, many people take issue with a law insisting all 13-, 14- and 15-year-olds are “little girls,” as Miller repeatedly described them. “Most people would agree that 14- and 15-year-old girls in today’s society are not the same as they were 20 years ago when the laws were written,” says Sarasota attorney Derek Byrd, who was not involved in this case. “Sex is more prevalent.” A relationship between a 22-year-old and a 15-year-old doesn’t seem “that absurd,” Byrd adds. “I don’t think it offends common decency.”

And, in a society in which shows like MTV’s Teen Mom have made stars of sexually active high school freshmen, how many people realize that having sex with a willing teen under 16 could end up sending you to prison?

Some of Charles’ supporters argue that the long hours and close working environment of his theater social circle blurred age boundaries in a group that often ranged from middle school students to 20somethings. Certainly, the age difference between Charles and the younger girls he flirted with “didn’t seem to matter to him,” says the Golden Apple’s MacDonald.

As the case evolved and tensions flared, everyone’s innocence seemed to disintegrate. Some of Charles’ friends pointed fingers at the victims. “[The girls] hung on him and teased him,” one local actress says.

“Charles hits on everyone,” the Williams Rule witness said in her sworn deposition. “Everyone hits on everyone. It’s the theater community.”

But Charles’ flirtatious manner hid intense insecurities. In high school, he says, he never had a real girlfriend, and despite his seeming popularity in the all-white theater circle, white parents didn’t want their daughters dating a black person. Indeed, one of his closest white friends told him that she would never date anyone black. “I have never seen myself as attractive and I have always had low self-esteem,” he says. “In a nutshell: I’m lonely.”

According to the Williams Rule witness, she had just turned 14 when she began a relationship with Charles, who was 19 at the time. The two knew each other from local productions and theatrical summer camps. She had recently lost her virginity to a 20-year-old man. “I was actually being pursued by a bunch of people,” she says. “When someone’s enthusiastic about you and you’re 13, you’re like, ‘OK, I’ll play along with this.’”

This girl and the victim, who was not involved in local theater, were best friends, and the two spent time with Charles together. Then the victim began contacting Charles over social networking site MySpace. Charles was still under scrutiny from his 2007 arrest, and the Williams Rule witness says she believed that contact was putting Charles at risk for more trouble with the law. “He was the reason our friendship ended,” she says.

The victim and Charles began texting and calling each other. When she and her friends went to the mall, she made sure to swing by the clothing store to see if he was working.

“Her father passed away and her mom and brother don’t understand her,” Charles says. “She says that she’s ugly and that she has no friends and that she will never be anything. I’m telling her that she’s beautiful and that she will be whatever she wants to be. And she is telling me the same stuff, and I really start to like her.”

Late one summer night, Charles called the girl and asked her to sneak out of her house. He drove to her neighborhood and met her around midnight. They drove around for a while and talked. Then he parked the car, climbed into the passenger seat with her and kissed her neck. On the third such meeting, kissing progressed into sex.

“I didn’t think it was a big deal,” the victim later said in her deposition. But Charles often spoke to her about keeping the relationship a secret. “He basically said, ‘Don’t tell anyone. This could mess up my life,’” she says. He continued meeting in secret with her at the same time he worked to have his first arrest expunged.

“I loved her,” Charles says. But that didn’t prevent him from beginning yet another relationship. In early 2009, he met an 18-year-old woman on MySpace and had a brief affair that resulted in her becoming pregnant. “I was a bit of a player,” he admits, “but my feelings [for the victim] were genuine.”

Eventually, Charles confessed to the victim about the affair and resulting pregnancy. That “broke her heart,” he says. Upset, she told an adult friend about the relationship for the first time. The friend told the victim’s mother, who then discovered the records of texts and phone calls on her daughter’s phone. She contacted police, and Charles was soon arrested.

Charles’ son, Emmett, was born Sept. 29, 2009, while he awaited trial.

Charles and his son, Emmett, now two; with Alyssa Brewbaker, a friend from the theater. Opposite page: an editorial in the Herald-Tribune questioning Charles’ sentence.

According to a statewide study by the Florida Office of Economic and Demographic Research, in 2004 the average prison sentence for lewd and lascivious battery, victim 12-15, was 6.7 years—a figure that had been trending downward.

On Sept. 23, 2010, Judge Berlin read the sentence for Charles: 30 years prison time, plus 15 years probation as a registered sex offender. “It was like telling a heart attack victim that they have high cholesterol,” Charles says today. “The heart attack has already happened. The sentence hit me hard, but I was numb from the guilty verdict.”

His parents watched helplessly as he was led away to prison.

“Had she sentenced him to half the amount, I would have been incensed,” says Zimmerman. “And it would have been, quite frankly, a smarter move. It wouldn’t have drawn so much criticism. It still would have been an outrageously harsh sentence.”

The extent to which any aspects of Charles’ story did—or should—factor into his fate remains painfully unclear, no matter whose side you’re on. Legal expert Byrd estimated 15 years as a typical sentence for these three combined lewd and lascivious charges. But he upped his estimate to 20 or more years when informed of the multiple accusers, “which would suggest some sort of a pattern, which would suggest that you’re a danger to the community,” he says.

“That’s not the law in Florida,” Zimmerman argues. “The judge is to sentence him on what the jury convicted him on, not on a pattern of behavior.”

At the sentencing hearing, the victim’s mother tearfully testified that her daughter and their family had been irreparably damaged. The victim (who, along with the Williams Rule witness, maintained in her deposition that Charles was still “a good person”) was not present at that hearing.

“Judges are human beings,” Byrd says. “They hear these sorts of things, and it has to play a role in how they sentence someone.”

Within a week of the sentence, emails to the judge called her decision “way out of line” and insisted “Charles McKenzie’s life is not a life that should be thrown away.” The Rev. McKenzie distributed fliers titled “Where is the justice?” that compared his son’s ordeal to the case of former Tampa middle school teacher Debra Lafave. In 2004, Lafave, at the age of 23, was charged with two counts of lewd and lascivious battery for her sexual relationship with a 14-year-old student.

But after pleading guilty, Lafave, who is white, was sentenced to house arrest and probation.

But unlike Lafave, says Miller, Charles “denied it up until the end. And then at sentencing he admits it. That has to get in any judge’s gut.”

Zimmerman says that Charles eventually “expressed remorse” to the judge. “But what do you add on to a sentence for that? A year? Two years? It jumps from what number to 30 for that?” Zimmerman asks. “These cases are commonplace; people don’t get 30-year sentences.”

 

The victim in this case is now 17, and we may never know to what extent the relationship and the trial affected her wellbeing.

The Williams Rule witness, now 18, is attending college in New England. “I don’t feel traumatized,” she says now of her relationship with Charles. “I know I was affected by it. But I handled it. I feel I’m a stronger person than maybe other people.” But, she says, “I grew out of playing dress-up. Now I tell people, ‘Don’t let your kids do theater.’”

DeRenzi of the Sarasota Opera takes issue with that view.

“Thousands of children are involved with the arts in Sarasota. It is part of our community,” he says. “It’s like saying, ‘I never want my child to go to a school because it’s unsafe.’”

 

One year into his sentence at Gulf Correctional Institution near Panama City, Fla., Charles says he is “in survival mode every day.”

His parents visit when they can, but the seven-hour drive is a hardship. Charles has not seen his son, now two years old, since his first birthday.

“This is a battle zone,” Charles says. Fights and confrontations break out constantly, and sometimes, he says, “There is no walking away.” Nevertheless, he says, “I am doing my best to stay out of problems.”

He spends his free time reading, studying his case, learning Spanish, working out, writing, singing and praying. He told his father, “I can’t relate to any of the guys in here. They sit around and talk about girls they’ve had, money they’ve had, drugs they’ve had.”

Because of his family’s limited finances, Charles’ appeal is now being handled by an attorney for the public defender. If the appellate court finds certain judicial decisions—evidence admitted, for instance—that contradict legal guidelines, then Charles could receive a new trial. Or if the sentence were somehow miscalculated, then he might receive a new sentencing procedure.

But that’s a long shot, says Zimmerman: “The sentence is legal.”

More hopeful, perhaps, is Charles’ option to file a “motion to reduce sentence” after a decision on the appeal is made. This motion would argue that the court did not have an opportunity to evaluate the impact of the crime on the victim (because she didn’t appear at the sentencing hearing), that the sentence is disproportionate to similar cases, and that the sentence represents cruel and unusual punishment.

Despite the formidable obstacles, Charles says he clings to the hope that he may end up serving only three years. There’s no real basis for believing that; in truth, it’s impossible to predict his fate. But three years may be a length of time that Charles can mentally cope with—“I made it a year without an issue,” he says, “so I know I can do it”—while the idea of three decades, locked away from his friends, his family and the theater world he loves, remains unfathomable.

“I hope to be forgiven and accepted, but I understand if I never am,” he says. “This is not something I would wish on my worst enemy.”