An attorney representing a Fullerton man's appeal of his misdemeanor conviction for putting semen in a co-worker's water bottle told a panel of judges today that while the act was disgusting it wasn't criminal.
Orange County Superior Court judges Ron Bauer, Clay Smith and Craig Griffin heard oral arguments on the appeal of Michael Kevin Lallana, who was convicted Feb. 24, 2011, of two misdemeanor counts of battery. Because Lallana was convicted of misdemeanors the appeal was heard in Orange County Superior Court.
Bauer started off the proceeding praising attorney E. Thomas Dunn Jr.'s legal brief filed in the appeal as "elegant."
"It was good and solid and still recognized this was not a good thing to do," Bauer said.
"I believe very strongly that for every wrong there needs to be a remedy," Dunn told the judges. "And if there doesn't appear to be one, we reach for one, and I think that's what happened in this case."
Dunn argued that for Lallana to be guilty of battery he would have had to take some direct action that indicated force against the victim.
"There has to be an action verb in there. There has to be force," Dunn said.
Smith questioned whether Lallana's actions still constituted force.
The legal definition of force, "has come to mean 'against the will of the victim,' " Smith said. "A touching, and a rude touching, even if there's no violence, is that not battery?"
Dunn replied that putting something in a co-worker's bottle and leaving it for her would not rise to the level of direct force.
Dunn encouraged the judges to let the Fourth District Court of Appeal take up the case so that any ruling would make statewide precedence, instead of just applying in Orange County.
After the hearing, Dunn said, "There really isn't any law covering just leaving something in a bottle."
Dunn added he did not think Lallana did it for his own sexual gratification, another element that needed to be proven in the case.
Dunn noted an expert testified during the trial that Lallana suffered from a narcissistic personality disorder, but did not do it for sexual gratification.
"I'm not trying to excuse what he did morally. It's disgusting," Dunn said. "But it's really a legislative problem. That's where this problem really ought to be solved -- in Sacramento."
Deputy District Attorney Anna Chinowth did not make any oral arguments, relying on her legal briefs.
Chinowth said after the hearing argued that, "Force doesn't need to be severe or violent. It can be a slight touching -- anything that's harmful or offensive can be force."
Force can be a direct or indirect action, Chinowth said.
The prosecutor cited a case involving prisoners leaving excrement where prison workers would come in contact with it.
Chinowth noted that Lallana was convicted of taking the water bottle out of his co-worker's office, ejaculating in it, and then returning it to her desk.
"He was basically laying a trap for her to drink it," Chinowth said.
Whether or not state lawmakers even imagined such an incident, the battery statute should cover what happened, Chinowth said.
"They don't have to anticipate every possible scenario when passing every law," Chinowth said.
"If you put acid in a water bottle where she would pick up the water bottle, I don't think there'd be any question it's a battery," Chinowth said.
Lallana was sentenced in April 2011 to 180 days in jail and three years probation for twice secretly ejaculating into the co-worker's water bottle, from which she later drank. That sentence, however, was put on hold until the appeal was heard.
Lallana was also ordered in August 2011 to pay $27,410.87 in restitution to his victim to cover her loss of income and other expenses such as therapy.
Lallana and the victim started working together at Northwestern Mutual Financial Network in Newport Beach, but both were transferred to the company's office in Orange in 2010.
The victim testified that while she was working in Newport Beach she left her water bottle at work on a Friday in January 2010 and when she returned on Monday, she noticed a foul taste that seemed like semen when she drank from the bottle.
After moving to the new office in Orange, she again tasted semen in her water on April 6, 2010. She took the bottle to a laboratory to have it tested, because Orange police told her they could not open an investigation on speculation of a crime, and her superiors at work did not know what to do about it, she said.
When the test showed there was semen in the water, Orange detectives started questioning the company's employees.
Lallana told detectives in an interview that he put his semen in the water bottle because "her lips had touched it," according to a recording of the interview played for jurors during the trial.
The judges have 90 days to issue a ruling, but Dunn expected a decision in a couple of weeks.
-City News Service