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No Naked Exam,|Court Tells Kidnapper

ATLANTA (CN) - An IHOP employee who kidnapped and threatened to kill his boss cannot have the boss examined naked despite his claim that they had sex, the Georgia Court of Appeals ruled.

Moustapha Bayo worked for an IHOP restaurant in Cobb County until May 2010, when he was fired for stealing money from work. Bayo had been hired as a server in 2003 and worked his way up to general manager of the South Cobb IHOP, one of 10 restaurants owned by franchisee Joe Scripture in the metro Atlanta area. After Bayo admitted to his supervisor that he was using restaurant money to pay his rent, the supervisor alerted Scripture and the police, leading to Bayo's termination, according to the court of appeals' Oct. 29 ruling.

A few days after he lost his job, an agitated Bayo entered Scripture's office with his hand inside a brown bag, and told his former boss, "This is no joke. You're dead, motherfucker. I'm here to kill you," according to the 8-page ruling.

Scripture, who believed Bayo had a gun inside the bag, let Bayo lead him into the parking lot outside his office.

On Bayo's orders, Scripture got into his truck and drove away, with Bayo in the back seat. Bayo ordered Scripture to call his wife and ask her to bring $250,000 within one hour or "Scripture would be a dead man," the ruling states.

Fearing for his life, Scripture assured Bayo he would not call the police, and told him he was willing to talk about giving Bayo his job back. Bayo then threw the brown bag out of the window on the side of a highway, and joined Scripture in the front seat. He showed Scripture a machete and nylon rope, saying he had planned to tie him up and kill him.

After Bayo complained that he had no food for his family, Scripture, who had previously loaned him money, gave him about $250. Bayo allowed Scripture to return to his office, where he got in his own car and drove away, according to the ruling.

Scripture called police, who found Bayo's fingerprints inside Scripture's truck and recovered a brown bag with a car jack from the side of the highway where Bayo had thrown it. Officers who arrested Bayo the next day found the white rope inside Bayo's car, and noticed his car jack was missing. Bayo was convicted of aggravated assault and kidnapping.

Claiming that he had been sexually involved with his former boss, Bayo asked the trial court to order an examination and photographs of Scripture's naked body. The court denied the request, finding that the alleged exculpatory evidence Bayo sought was irrelevant.

Bayo testified at trial that he had had sex with Scripture for money. He claimed that when he went to Scripture's office in May 2010 to explain the missing deposits, Scripture performed oral sex on him and asked him for more sex to let him keep his job. When Bayo refused, Scripture got angry and threatened him, the former employee claimed.

Scripture denied he ever had a sexual or personal relationship with Bayo.

Bayo claimed he was entitled to a new trial because his defense attorney's failure to push for a naked examination had prejudiced his defense.

The appeals court disagreed, noting that the law does not support the involuntary examination of a victim.

"Here, Bayo was not entitled to force Scripture, a crime victim, to disrobe for examination and trial counsel cannot be considered deficient in failing to renew a futile motion," Judge Yvette Miller wrote for the three-judge panel.

Additionally, the defense attorney testified that he did not think the naked exam would help, as there was no other evidence to verify the alleged sexual relationship, according to the opinion.

The attorney adequately represented Bayo by subjecting Scripture to a lengthy cross-examination, the panel concluded.

Moreover, given the evidence of Bayo's guilt, a different trial strategy would not have guaranteed a different outcome.

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