Appeal for band director who had sex with student focuses on introduction of wife

Former Gulf Coast High School band director Robert Hamberg is led into Collier Circuit Judge Fred Hardt's courtroom on Friday, June 10, 2011, in Naples. Hamburg is appealing his 30-year conviction for eight counts of lewd and lascivious sexual battery of a minor under 16. Hardt denied bail Friday for the pending appeal. David Albers/ Staff

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Former Gulf Coast High School band director Robert Hamberg is led into Collier Circuit Judge Fred Hardt's courtroom on Friday, June 10, 2011, in Naples. Hamburg is appealing his 30-year conviction for eight counts of lewd and lascivious sexual battery of a minor under 16. Hardt denied bail Friday for the pending appeal. David Albers/ Staff

Oral arguments Tuesday in former Gulf Coast High School band teacher Robert Hamberg's appeal on sexual battery charges focused only on whether jurors should have heard details about how Hamberg met his wife in the 1980s.

Hamberg, 55, is seeking a new trial following his April 2011 conviction on eight counts of sexual battery for his relationship with a then-15-year-old Gulf Coast freshman. He's serving a 30-year prison sentence.

Michael Ufferman, Hamberg's appeals lawyer, told a three-judge panel that jurors never should have heard about Hamberg's wife, Diane, whom he met while he was a band teacher in Georgia and she was a high school student. Ufferman called testimony about Diane Hamberg "extremely prejudicial" with little to no impact on the case, particularly because no allegations were ever made that Robert and Diane Hamberg had sex before she was age 18.

"The prosecutor knew this was a very important factor, that when the jury heard it, Mr. Hamberg didn't have a chance," Ufferman said.

A Collier judge ruled before the trial that testimony related to Hamberg's wife was inadmissible. But at trial, Hamberg "opened the door" to testimony about Diane Hamberg when he testified, "I was naïve, and although I'd heard about teachers putting themselves in dangerous positions, I never thought it would happen to me…"

The phrase "opening the door" refers to allowing previously inadmissible testimony when a witness misleads a jury. Before the trial, Hamberg said he left Georgia in part because of whispers around town about his marriage to then-18-year-old Diane.

At trial, witnesses said Hamberg hosted students at his house, including the victim.

"He should know that if he takes a student to his house, there might be some allegation of improper conduct," assistant attorney general Marilyn Beccue said.

The three judges gave little indication about their thoughts on the case, mostly asking about details of past court hearings. No timetable is set for when a ruling will be made.

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