Ruling clears way for trial of East Naples man jailed since '06 in child's death

Abigail Boran

Abigail Boran

Todd Allen Akers

Todd Allen Akers

— A state appeal court has ruled the omission of a defendant's name in one count of a two-count murder indictment couldn't have misled him because he was the only one charged in the 2-year-old's abuse and killing.

The 2nd District Court of Appeal in Lakeland noted that the 2006 indictment named only Todd Allen Akers of East Naples, now 31, in the slaying of Abigail Rose Boran.

Akers, who has been jailed since May 2006, has admitted repeatedly hitting, throwing and dropping her, arrest reports say.

"The omission of Akers' name in the second count would not have misled Akers to believe that the charge was for another defendant," the three-judge panel ruled in a four-page opinion handed down last week.

The ruling clears the way for Akers to face a trial.

Legal experts had questioned whether the alleged defect in the indictment could affect cases statewide or in Southwest Florida because that's the style of writing indictments. Those that could have been in jeopardy included a capital murder case against Mesac Damas, 36, of Naples, who confessed to killing his wife and four children.

"If it would have gone the other way, it potentially could have affected all our indictments," said Assistant State Attorney Dave Scuderi, who is prosecuting the Akers case with Assistant State Attorney Steve Maresca.

Scuderi said the State Attorney's Office hasn't changed the way it writes indictments.

Akers' trial came to an abrupt halt March 1, 2011, when Collier Circuit Judge Fred Hardt dismissed the second count in the indictment, aggravated child-abuse, weakening the prosecution's case.

Judge Fred Hardt listens to arguments in a case in 2011. Greg Kahn/Staff

Photo by Greg Kahn

Judge Fred Hardt listens to arguments in a case in 2011. Greg Kahn/Staff

Hardt had spotted the omission of Aker's name. Court-appointed defense attorney Kevin Shirley of Punta Gorda jumped on it, arguing Akers wasn't charged with aggravated child abuse. Maresca and Scuderi contended adding his name in that count wasn't necessary because he was named in the indictment's caption and introduction.

They also cited state law, prior court decisions and stated that Florida's Rules of Criminal Procedure say no indictment should be dismissed due to a defect, unless a judge rules it is so "vague, indistinct, and indefinite as to mislead the accused and embarrass him" in the preparation of a defense.

Akers was Nicole Napier's fiancé and lived with her and her child, Abigail, at the Enclave in East Naples. Akers called 911 on May 5, 2006, to say Abigail fell out of her bed and hit her head.

In addition to hemorrhages and skull fractures, an autopsy showed bruises on her scalp, chest, thighs, lower leg, stomach, back, upper arm and wrist.

Maresca said prosecutors are hopeful the case, which was on hold during the appeal, can head to trial by summer. It likely would be before a different circuit judge; Hardt now handles civil cases.

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