Ard v. State, 4 Div. 372

• Decision Date: 17 February 1976
• Docket Number: 4 Div. 372
• Citation: 57 Ala.App. 250,327 So.2d 745
• Parties: Robert ARD v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 745

327 So.2d 745

57 Ala.App. 250

Robert ARD v. STATE.

4 Div. 372.

Court of Criminal Appeals of Alabama.

Feb. 17, 1976.

J. Ronald Storey, Dothan, for appellant.

William J. Baxley, Atty. Gen., and Donald M. Phillips, Asst. Atty. Gen., for the State.

LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was found guilty of carnal knowledge of a girl under the age of twelve years, and his punishment was fixed by the jury at imprisonment in the penitentiary for thirty years. Defendant was approximately twenty-four years of age at the time of the alleged offense and the girl was nine.

There was positive identification of defendant by the girl. They lived in the same neighborhood. He lived with his father and mother. She said that after getting home from school about 4:00 and after having gone to play at some friends' house and was returning home, defendant came out in the road near the garage of defendant's father and 'grabbed me and took me into the garage and laid me on the side . . . and he pulled down my pants and put his you-know-what in it . . .' She said she screamed, that defendant's mother came out of her house and defendant let her go, and she ran home. She testified defendant hurt her and when asked where he hurt her, she pointed to between her legs and said that he hurt her down between her legs. She said defendant held her down (indicating) and had his knees on the ground, that he 'put his you-know-what in my thing, down between my legs.'

According to a stipulation agreed upon between the parties, the girl's older sister would have testified if she had been present that the girl had come home crying, her face was red, her hair was messed up and her clothes were kind of ruffled. The older sister then called the police and called their mother. Their mother, who was at work at the time, testified that she came home immediately and found that the girl was 'in a state of hysterics, she was crying so' and that the 'button was off of her jeans, her jeans were unzipped, the bottom three buttons on her blouse were unbuttoned.' She said there was hair on the girl's zipper and on the buttons of her blouse.

A police officer testified that upon receiving the call from the girl's sister he and another officer went to the girl's home where he found her 'very upset, crying, vomiting, trying to vomit, and the button on the front of her pants had been torn off and her pants were open.'

Two young girls in the neighborhood testified that they saw the girl running toward her home crying. One said she saw a man with 'long hair and different colored pants on' running from the garage. The other said she saw the girl and 'heard her scream when she came out of the garage.'

There was testimony by one of the officers that when they arrived at the Ard home, they noted that defendant was sitting down at the table but ran therefrom to another part of the house, that defendant's mother came to the door and stated that he was not at home, but upon their insistence that he was there, he came forth and was arrested.

Defendant stoutly denied his guilt from the time of his arrest and throughout the trial of the case, taking the stand, stating that he was away from the house and the neighborhood for two or three hours in the early part of the afternoon, but was there playing volleyball in the yard a great part of the time. He was substantially corroborated by his father, his mother, two brothers, a sister, a sister-in-law, a brother-in-law and an unrelated neighbor. There was testimony by most of them to the effect that the charge against him was inconsistent with their observation of and contacts with him during the afternoon. Some of their testimony indicated that the girl could have been sexually molested by a couple of fifteen or sixteen-year-old boys with whom she was playing near the garage. There was also some evidence of her having been 'messing' around in the garage on occasions before the afternoon of the alleged crime and that defendant's father had run her and others out of the garage.

Appell...