A panel of Orange County Superior Court judges affirmed the misdemeanor battery conviction of a Fullerton man who put his semen into an unsuspecting female co-worker's water bottle on two occasions, a prosecutor said today.
The ruling by judges Ron Bauer, Clay Smith and Craig Griffin, upholding Michael Kevin Lallana's conviction on two battery counts was dated Tuesday, said Deputy District Attorney Anna Chinowth, who received it today.
"We're obviously pleased the conviction is affirmed," Chinowth said.
A message left with Lallana's attorney, Tom Dunn Jr., was not immediately returned.
Appeals of misdemeanor convictions are first heard by a panel of Orange County Superior Court judges. If Lallana wants to continue his appeal, his attorney must first ask the panel to send another appeal to the Fourth District Court of Appeal in Santa Ana, and if that is denied, then he can appeal directly to the higher court.
Dunn argued that Lallana would have had to take some direct action that indicated force against the victim to justify the battery convictions.
"There has to be an action verb in there. There has to be force," Dunn said in his oral argument to the judges last month.
The judges disagreed, saying in the ruling, "The essence of the crime is an unconsented, offensive, physical contact. In addition, that offensive contact between the aggressor and the victim need not be direct, but rather 'Can be done indirectly by causing an object to touch the other person."'
Chinowth noted the judges relied on a similar case in Missouri in which the victim unknowingly drank semen that was put in her mug.
In the ruling, the judges said "placing semen in another person's water bottle from which that person later drank constitutes physical contact and amounts to the 'use of force or violence' as contemplated by (the law)."
The judges also ruled there was enough evidence that the battery was done for Lallana's sexual gratification, as they mostly relied on his statements to police, Chinowth said.
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 his trial.
Dunn argued in his appeal that an expert testified that Lallana suffered from a narcissistic personality disorder, but did not do it for sexual gratification.
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.
-City News Service