Musca Law Blog


Almost a year after college student reported assault, Naples spa owner arrested

When a 21-year-old woman bought a Groupon last year for a massage at Enta Thai Spa on Tamiami Trail in Naples, she expected to leave relaxed and pain-free.

Instead, the college student, who was home for summer break, said she felt “disgusted,” “taken advantage of,” and “violated.”

Bovaphanh Phomphakdy, the woman’s masseur who also owns the spa, was arrested Tuesday on a charge of sexual battery without serious injury. He is accused of penetrating the woman. Phomphakdy, also known by his nickname Enta, was released Wednesday on a $25,000 bond.

The Naples Daily News does not identify sexual assault victims.

“It was one of the worst experiences of my entire life,” she explained. “I felt like I was just a piece of meat.”

Her frustrations didn’t end with the assault. Though she immediately reported the incident to the Collier County Sheriff’s Office and underwent rape testing the same day, an arrest wasn’t made until Tuesday — nearly a full year after the assault occurred.

It took the Florida Department of Law Enforcement nearly seven months to determine the presence of male DNA inside the victim and send the report to the sheriff’s office. Once the report was received by the sheriff’s office, another two months passed before a warrant to obtain Phomphakdy’s DNA was sought. It then took at least five more weeks before those results were returned to the sheriff’s office.

According to police reports, the woman told deputies Phomphakdy inched his hands into her underwear before she felt something penetrate her.

“At one point while she was on her side and the male was standing behind her, she felt something warm enter her vagina more than an inch,” the police report states. “She immediately told the male to stop and ended the massage.”

“I’d never had a Thai massage before so I didn’t know,” she explained in an interview. “I thought he just needed to get lower on my back. I thought he knew what he was doing, so I trusted him.”

She was unsure whether he used his fingers or genitalia, according to the report.

“It really upset me how he denied it immediately. He’s an absolute scumbag,” she said. “I never thought that could happen to me.”

Phomphakdy, who co-owns the spa with his wife, denied the allegations when deputies interviewed him, saying it’s possible the woman felt a bottle of oil he carries on his belt enter her, according to the report.

“There’s no way that Bovaphanh Phomphakdy, who worked so very hard to establish this successful massage parlor, would jeopardize that business for a solitary fleeting moment of gratification,” said John Musca, Phomphakdy’s attorney. “He’s an intelligent man. There’s no way.”

Phomphakdy’s wife, Vanina Phomphakdy, agreed. She said in an interview that her husband’s DNA could have been found in the woman if she touched herself after he massaged her hands.

When the young victim received a call from Collier Sheriff’s Detective Scott Peterson notifying her of Phomphakdy’s arrest on Tuesday, she broke down.

“I just burst into tears. I was a mess, but a happy mess,” she said.

She hadn’t heard from Peterson or anyone else working on the case since August. “I was absolutely shocked. I didn’t even know other DNA had been found.”

Part of the delay was the result of ongoing problems at FDLE.

“Our turnaround times are a result of an extensive loss of trained analysts and a huge influx of sexual assault kits that had previously been unsubmitted,” said Steve Arthur, an agency spokesman.

Peterson also cited a heavy workload as a reason for the delay in seeking a warrant. “It took around two months because we’re always in backlog,” he said. “That’s just how it works.”

The warrant was issued on the same day Peterson completed it, according to the arrest report.

It typically takes four-to-six months for rape kits to be processed, according to Project Help, a nonprofit in Collier County that provides counseling for victims of sexual assault and administered the victim’s rape kit. However, starting July 1, all kits must be tested within 120 days of their submission.

“Seven months is a long time to wait, there’s no excuse for it,” said Eileen Wesley, the Executive Director of Project Help, referring to the length of time it took for the victim’s kit to be processed. “Hopefully this new law will give victims less stress in the process going forward.”

By Annika Hammerschlag of the Naples Daily News


Charges dropped in 2010 Collier child porn case

COLLIER COUNTY, FL – A Collier County man accused of a sickening crime is free tonight.

Deputies arrested 40-year-old Robert Hinote in 2010 after they found disturbing child porn images on his computer in East Naples. But in court Friday, the state announced it will not charge Hinote for the crime.

The hearing only lasted a few minutes. The prosecutor told the judge they did not have enough evidence to move forward with the case — meaning Hinote will walk away from these charges. Close to 200 child porn charges were dropped.

Hinote was not in the courtroom, but his attorney gave us a statement.

“It means a big sigh of relief. It means Mr. Hinote can start putting his life together again, and get on with his life,” said defense attorney Marquin Rinard.

In 2010, investigators found hundreds of child porn videos and pictures inside Hinote’s home. The videos and photos showed children as young as four years old having sex.

But the defense argued investigators searched Hinote’s home without a warrant. Therefore, a judge ruled the evidence could not be used in court.

“It’s always surprising when we lose a motion to suppress. But we respect the appellate court, and we will move forward,” said assistant State Attorney Deborah Cunningham.

We went back to Leawood Circle where deputies arrested Hinote in 2010. A neighbor told us he was there when the arrest happened, and lived across the street from Hinote.

“He was a good guy. He played with my kids. He was outside all the time playing — nothing wrong,” said neighbor Luis Velez.

A new family now lives in that home. Neighbors say Hinote moved to Miami a few year ago. Now that he’s off the hook, they say all they can do is hope he’s learned his lesson.

Maybe he got conscience of what he did, and maybe now he will do something different,” said Velez.
Investigators say Hinote was sharing Internet with a neighbor when they linked them to the child porn four years ago. They investigated him for a month before making the arrest. Authorities thought they had a major child porn suspect off the streets.

Posted: Nov 21, 2014

Prosecutors plan to drop charges against confessed child porn hoarder

NAPLES, Fla. – On Robert Hinote’s computer, detectives found hundreds of child pornography files.

When they talked to Hinote, he confessed to hoarding the images and videos of children as young as 4 engaged in sex acts.

If a jury convicted him on all 275 child porn possession charges, he faced a mandatory minimum sentence of about 70 years in prison.

Yet in the coming days, possibly as soon as a Friday court hearing, Hinote, 41, formerly of East Naples, will be cleared, with all charges against him dropped.

Prosecutors said this week they’re planning to dismiss the case against Hinote, the result of Collier sheriff’s deputies illegally entering his home in 2010. Investigators said they had a strong case against Hinote, who has since moved to South Florida, but his prosecution fell apart when a judge tossed all the computer evidence because deputies failed to obtain a proper search warrant.

“There are certain guidelines set out in the laws and Constitution to protect the rights of citizens, and right to be secure in their house and property is one of the most sacred rights we have,” Hinote’s lawyer, Marquin Rinard, said this week.

The decision to throw out the evidence hinged on a unique set of circumstances.

In March 2010, deputies identified an Internet Protocol address used by Hinote’s neighbor as trafficking in child pornography. Deputies obtained a search warrant for the neighbor’s house, finding a wireless router that the neighbor said Hinote had installed and they shared.

When deputies discovered no child pornography at the neighbor’s home, their attention turned to Hinote. Two deputies, Sgt. Ken Becker and Detective Scott Rapisarda, knocked on Hinote’s front door and spoke with him on a front porch.

Deputies offered Hinote two options as they got a new search warrant: He could leave the house as it’s locked up, or he could go back into his home and a deputy would follow him in. Hinote, who’d been smoking marijuana with a female friend, let the deputies in, saying he had nothing to hide.

The deputies did not, however, tell Hinote he could tell them to go away until they had a new search warrant. Their concern, Rapisarda later said at a deposition, was they wanted to ensure “that there’s no evidence that’s going to be destroyed.”

Although Hinote invited the deputies in, he testified at a September 2013 hearing that he felt he had no other choice.

“They explained to me that they were going to come into my house had I said ‘yes,’ `no,’ maybe,’ any which way,” Hinote testified.

Prosecutors argued Hinote legally consented to the search.

Maresca, the assistant state attorney, noted Hinote asked, “Don’t you guys need a warrant?” when Becker and Rapisarda spoke with him on the front porch, an acknowledgement that he knew his rights. Hinote wasn’t pressured by deputies, Maresca said, and volunteered to cooperate throughout the search.

“The police were very professional to the defendant,” Maresca argued in September 2013. “They weren’t threatening him in any way.”

Ultimately, Shenko sided with Hinote, finding their lack of search warrant and front porch conversation constituted an illegal search.

Prosecutors appealed Shenko’s ruling to the Second District Court of Appeals, which affirmed Shenko’s decision without comment in early October.

Asked about the prospect of a confessed child pornography downloader avoiding prosecution, Maresca said “my personal opinion is not relevant.”

“We litigated the issue, we appealed the issue, the Second DCA ruled, and that’s why we have appellate courts for,” Maresca said.

Speaking in generalities, and not specifically about Hinote, Rinard said violations of state and federal laws by well-intended police occasionally lead to guilty defendants being set free.

“For the freedom we enjoy as Americans, that’s part of the price we pay,” Rinard said. “I’m not saying that applies in this case, though.”

Posted: Nov 6, 2014
Source: Naples Daily News

Naples man with child porn charges could be off the hook

COLLIER COUNTY, Fla.- A big blow for law enforcement. WINK News confirms a major child porn case in Collier County could be thrown out.

Attorneys for 40-year-old Robert Hinote say they expect hundreds of charges to be dropped against their client.

They say Collier County Deputies illegally searched his home back in 2010. Hinote’s attorneys say an appeals court agreed with a local judge to throw out all the evidence taken from Hinote’s home.

The State Attorney’s Office can’t confirm to WINK News if and when they may drop the charges. The Collier County Sheriff’s office did not want to comment on this case.

Deputies say they initially searched a home in 2010 where they thought child porn files were being shared online, but they didn’t find anything.

Deputies say they were then led next door to Hinote’s home. Deputies say he gave them permission to search his computer.

But WINK News has obtained brand new documents that show a judge granted a motion to suppress all the evidence taken from Hinote’s house, including the graphic images on his computer.

Hinote’s attorney, John Musca, claims deputies did not have a search warrant for the defendant’s home.

The State Attorney’s Office appealed the judges ruling, but WINK News just learned, the 2nd district court of appeals upheld that decision, meaning the evidence cannot be used.

Posted: Nov 6, 2014


Criminal Defense for Your Teen or Young Adult

Sometimes adults are not the only ones that have to deal with a criminal or even federal offense. Teens and young adults are prone to making poor decisions and which can lead them to run-ins with the law. Just as must attention needs to taken if not more in cases that deal with young adults, because the law applies much differently.

Some young adult criminal charges may include:

  • Underage DUI
  • Fighting in public places
  • Vandalism
  • Theft
  • Concealed weapons
  • Narcotics
  • “Talking back” to police officers

Whatever the matter may be, many young adults are held accountable for “stupid” things they did without thoroughly thinking through, and the now consequences can be grave if not handled with care and attention.

Teen Criminal Charges and Effects on Career & Education

Without the proper steps taken from the very beginning, your teen’s education and career can be at stake. There are devastating effects from underage misdemeanors and charges like DUI. Future college applications and requests for financial aid can be denied if previously convicted of such crimes. Also, with-holding such information can lead to expulsion from campus or even charges of perjury. Hiring a lawyer from day-one can help prevent these occurrences in the near future.

Hiring a Lawyer to Expunge Teen Crime History

Each state has its own policies in regards to teenage criminal defense. After reaching the age of 18, anyone is granted the possibility of expunging, or sealing, their criminal records. Usually, a time period of five years must have passed since the crime was committed. Taking these aspects into consideration, attempting to expunge a case is a great way to greatly improve the current and future situation of any young teen with a criminal record.

One of the most important things here is good advice and instruction from a mentor figure. With the occasional reminder pointing to the fact that many of the things that happen in the late night or early morning hours, can result in decisions, or mistakes, that can affect one’s entire future and change their life forever.

If unfortunately, your teen or young adult is caught and convicted of a criminal defense, take the time to choose the right layer that can give them a solid chance at having a normal and privileged future they most likely deserve.

Search our Florida Lawyer Directory now to locate an experienced Florida attorney in your area by visiting


What To Do When You’re Underage and Charged with a DUI

Being charged with a DUI can be a life changing experience and there are many things to be taken into consideration when starting to defend your DUI case. Yet many people are unaware of what happens when a person under the legal drinking age of 21 is convicted of a DUI.

Firstly an officer will pull over a vehicle that he/she suspects is being maneuvered by someone under the influence of alcohol. Then, the officer has the right to request a BAC (blood alcohol level) test. If the driver has a BAC level that is over 0.02%, (the legal limit) the officer has the right to detain the driver regardless of age. If the underage driver refuses to “blow”, their license will be immediately suspended for one year, and if this is a second occasion, it will be revoked for 18 months.

After being detained, the driver has ten days to petition for a hearing. This is the ideal time to hire a lawyer because the hearing is what will determine the near future of the defendant’s driving capabilities. Driving under the influence while under the legal drinking age is neither a traffic violation nor criminal offense, unless the BAC is higher than 0.08% (which then it is automatically a criminal defense regardless of age,) and requires unique attention compared to traditional DUI cases.

Administrative Suspensions and Temporary Permits for Underage DUI

Underage drivers convicted of DUI will be granted a temporary driving permit, which is only valid for 10 days. Attaining a temporary permit is only possible by filing for an administrative review hearing. For the hearing, it is very important to have a lawyer represent you because the hearing will bring up evidence against you and only an experienced attorney can rightly defend you and the specifics of your case. Having a lawyer may also increase your chances of attaining a permit with a longer driving period.

Contact Musca Law and search our database of experienced lawyers to represent you in your Florida County.


Musca Law Launches Campaign Urging Those Arrested For DUI to Learn How To Beat It

(Naples, FL) With society and the legal system toughening its stance on DUI crimes, it’s not surprising when arresting officers assume any erratic behavior on the part of a person pulled over means they’re intoxicated. Even when the accused is not over the legal limit, the common assumption by most arresting officers is that the responses to the DUI tests indicate intoxication. However, according to John Musca, attorney with Musca Law, these assumptions are all too often false.

Says Musca, “So many people assume if they’ve been charged with a DUI, there is no defense, but that’s simply not the case. There are a number of successful defenses a person charged can utilize with the help of their experienced attorney. Sometimes, it’s a case of poor police officer training or the inexperienced vision of the officer. Other times, a person may be on prescription medications or have balance issues causing them to perform poorly in a sobriety test. It’s not uncommon to be charged with DUI regardless of your blood alcohol level.”

For this reason, says Musca, it’s more important than ever to partner with a defense attorney from the very beginning. Musca elaborates, saying, “Whether you yourself have been arrested for DUI or you are helping a loved one or friend, it is imperative to access as much helpful legal information as possible. Fully understanding all of your legal rights and how to successfully defend against a DUI is extremely important. For example, it’s important to have an attorney on your side who is familiar with the common lapses that take place in arrest procedures as well as breath and chemical testing errors.”

Facing the legal system without an attorney is not advisable says Musca. “When you go through the process without an attorney, you are basically giving up opportunities to dispute the false charges as soon as possible. With a qualified and experienced lawyer, you can sometimes avoid a trial all together, or gain an acquittal by showing the ways your stop was illegal or medical issues played a role in how you acted at the time.”

Musca cautions, “The review of this material on the website, via emails and/or in the downloadable PDF version should not be construed as offering or giving legal advice. You should speak to a licensed Florida DUI lawyer as the circumstances and factors in your case may be unique.”

Musca concludes, stating, “It may seem easier to give in to the charges being held against you for DUI, but your freedom and reputation are worth the fight. Just because you’re arrested for drunk driving, doesn’t mean that you are guilty.”


About Musca Law:

With over 100 years of combined experience, Musca Law provides an aggressive, practical approach to client representation throughout the entire State of Florida. The law firm prides themselves on their experience, knowledge, and creative strategies to handle a wide range of cases, including, DUI, Theft, Drug and Juvenile offenses. Musca Law attorneys provide a team approach, building upon their combined strengths to expose cracks in the prosecution’s case.


What to Ask Your DUI Lawyer

If you are charged with a DUI, you should first find a lawyer who specializes in DUI cases. If you are in the Miami or Tampa area, Musca Law is an experienced and respected law group that specializes in DUI cases. Below are some important questions that you need to clear with your lawyer before your case.

Communicating for Success

The first question you should ask your lawyer is about experience. You might ask, “How much experience do you have with DUI cases like mine?” Your next questions should be about the process. Make sure your lawyer makes you as much of an expert on the process as he or she is. Ensure that your lawyer will be available to you if you have any additional questions. You may need to clear up some confusion before your trial, and your lawyer should be able to help you whenever you need it. Lastly, talk to your lawyer about his or her outcome record. You have a right to know if your lawyer is successful with cases like yours.


When to Consult Your Lawyer

People often go to their lawyers when times are difficult, but that isn’t always the case. There are plenty of circumstances that call for a consultation with your lawyer that you may not know about.

Safe Rather than Sorry

If you have just been charged with a crime in the state of Florida, you should call your lawyer. Same as if you have been arrested, you should call your lawyer. These are the obvious times when everyone knows they should seek help. Other, subtler situations require consultations with a professional who has expertise in Florida laws. If you think you are a suspect in a crime, you should contact your attorney. The general rule of thumb is that you would rather be safe than sorry. Talking to your lawyer can give you clarity in a tough situation, and you can get valuable advice. Whether it’s a criminal or DUI case, talk to a reputable Florida lawyer about your legal problem. He or she will know what action to take, if any.


Life after a DUI: Job Hunting

You were convicted of a DUI, but life goes on. When you apply for a job after getting a DUI in the state of Florida, you are probably worrying that your potential employer won’t be impressed with your criminal record. The first thing to remember is to be open and honest. Writing down your record shows you are an honest person who is willing to come forward about your mistakes, and some employers will respect that.

The Job Search

It helps to apply to as many jobs as possible. Be prepared to answer questions about your DUI conviction by planning thoughtful responses. Show how you have learned from your mistakes. Do you volunteer now? Do you care more about your health by exercising? These positive steps show evidence of a person who has grown. If you should ever find yourself with another DUI charge, contact a trusted and experienced Miami area DUI lawyer who can help with your case.


Florida Felony Info

A felony conviction in the state of Florida is characterized by jail time of a year or more, depending on your record and the circumstances of your charges. According to the official site of the Florida state legislature, if you are charged with arson, robbery, kidnapping, aggravated assault, aggravated stalking, armed burglary, or other similarly serious crimes, you could be convicted of a felony. Your case’s individual characteristics make a big difference in your sentence, so talk to a Florida criminal lawyer about the potential outcome of your case.

Finding a Criminal Lawyer

It’s a good idea to find a lawyer as soon as you are charged with a crime. If you have multiple DUI charges, you will especially need a lawyer with experience. Find a team with a great track record, and make sure they specialize in Florida criminal law. For the best results, find someone who frequently handles cases like yours.


Wrongly Charged with DUI?

If you believe you were wrongly charged with a Florida DUI, you should contact an experienced DUI lawyer, immediately. An experienced lawyer can help you figure out how to handle your case and what your likely outcome will be.

Getting Professional Guidance

The state of Florida set up strict DUI laws, to prevent people from drinking and driving, and hurting themselves or others. If you believe you were wrongly charged with a DUI, or you refused a Breathalyzer for health reasons, you need to get professional help. Read about Florida DUI law and familiarize yourself with the consequences that could apply to you. Also, you could read testimonials from people who were in similar situations. It’s not a certainty that you will be convicted, but you will fare better during a trial if you have help from a DUI expert who has seen cases like yours.

Over 100 combined years of experience Call (800) 687-2252 for a free consultation