Ciervo v. State

• Decision Date: 05 October 1976
• Docket Number: 3 Div. 519
• Citation: 342 So.2d 394
• Parties: Joseph CIERVO v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 394

342 So.2d 394

Joseph CIERVO v. STATE.

3 Div. 519.

Court of Criminal Appeals of Alabama.

Oct. 5, 1976.

Rehearing Denied Nov. 16, 1976.

L. H. Walden, Montgomery, for appellant.

William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.

DeCARLO, Judge.

Child molestation; two years.

The indictment charged that Joseph Ciervo:

'. . . did take or attempt to take immoral, improper, or indecent liberties with . . . a female child under 16 years of age, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires, either of the said JOSEPH CIERVO or of such child, or of both the said JOSEPH CIERVO and such child by kissing her on the cheek and fondling her private parts, or did commit, or attempt to commit a lewd or lascivious act upon or with the body, or a part or member of the body of such child, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires, either of the said JOSEPH CIERVO or of such child, or both the said JOSEPH CIERVO and such child by kissing her on the cheek and fondling her private parts, . . ..'

The appellant pled not guilty and not guilty by reason of insanity, and on November 22, 1974, he was tried and convicted. A motion for a new trial was denied on January 8, 1976, and defendant's request for probation was subsequently denied on February 9, 1976.

The prosecutrix, in this case, was a twelve-year-old female child in the seventh grade of George Washington Junior High School, and the defendant was her 'stepuncle by marriage.'

The prosecutrix's parents were divorced and she lived with her mother. On a Friday night in March of 1974, she went to her uncle's to spend the night. When she and her four-year-old sister arrived, the defendant, his wife Juanita, and her cousins, Susan and Kenneth Wade Bowden, were present.

About 6:30 that evening, the defendant and the prosecutrix's aunt went to a baseball game and she went to Kenneth's room to watch television while her little sister watched the television in the den with Susan. The prosecutrix stated that the door to Kenneth's room was closed while they watched the television and that she and Kenneth laid in bed and kissed and hugged.

About 12:30 A.M., the defendant and his wife came into the house through the back door. At that point, the prosecutrix left Kenneth's room and went to the den and picked up her little sister. She carried her to Susan's bedroom and placed her in bed. It was about ten minutes later when the defendant came to the doorway and said he was going to kiss her goodnight and prosecutrix responded, 'Okay.' At that point he came over, kissed her on the cheek, and then reached down and raised her night gown to her waist. He then put his hand down into her panties and touched her private parts. She explained that her 'private parts' were: '. . . in between--it's in between my legs and my skin.' The prosecutrix moved his hand and said, "What do you think you're doing?' At that point the appellant laughed and left the room.

In about five minutes appellant returned and gave the prosecutrix a dollar and told her to buy something for her little sister and herself the next day. The prosecutrix said that after the appellant left she went in and told Kenneth what had happened. Even though prosecutrix saw her mother on Saturday, she did not tell her what happened until Sunday. She said she did not tell her mother or aunt because she was afraid, and that the next day after breakfast she went to her grandmother's.

During cross-examination the prosecutrix stated that she was dressed during the time she was in Kenneth Bowden's room and denied engaging in sexual intercourse with him. She explained:

'When y'all said intercourse, I thought it just meant hugging and kissing and stuff like that.'

Further she denied calling defendant's house the next day and inquiring about spending Saturday night.

The State concluded its case at the end of the prosecutrix's testimony and the defense made a motion to exclude the State's evidence. Counsel alleged that the State had failed to prove the charges in the indictment and requested that a directed verdict be given in the defendant's favor. He argued that the testimony presented merely showed an assault and battery and there was no evidence of any intent of arousing or gratifying sexual desires.

Kenneth Wade Bowden was fifteen years old and the stepson of the defendant. He testified that his mother and step-father had been married for about a year and a half and that they lived at 6 Kiwanis Street, Montgomery, Alabama. He recalled the incident when the prosecutrix claimed that she was molested by his step-father, but did not recall the exact time when his mother and step-father left for the game. Bowden stated it was about 10;30 P.M. when the prosecutrix came to his room to watch television. The door to his room was closed during that time and the prosecutrix took off her clothes. Bowden did not state what transpired from the time the prosecutrix came into his room until the time they heard his parents come in the back door. He recalled that she stayed just long enough to dress and then went into Susan's room.

According to Bowden, the prosecutrix's sister was already in bed when he and prosecutrix went into Susan's bedroom. He then went through Susan's room into the kitchen where his mother and step-father were. At that time he saw the defendant go to the bathroom and not to the room where the prosecutrix was sleeping. Further, after twenty or twenty-five seconds, appellant left the bathroom, and prosecutrix came to Bowden's room. She got in bed with him and told him that Ciervo had given her a dollar. Bowden testified that she did not make any statement to him about appellant bothering or molesting her and he denied making the statement that it: '. . . was just like Joe to do something like that.' Bowden said that on her second visit to his room the prosecutrix stayed until the television went off at 1:30 A.M. and recalled that she telephoned his home on Saturday afternoon.

During cross-examination Bowden denied telling anyone that the prosecutrix came to his room and said that appellant had put his hand between her legs and on her private parts.

Susan Bowden was the twenty-year-old retarded stepdaughter of the defendant. She recalled that her mother and step-father had gone to a baseball game about 6 o'clock on the night in question. According to Susan the prosecutrix's sister was asleep in her room and Kenneth Bowden and the prosecutrix were with her in the living room. Later Kenneth and the prosecutrix went into his room and closed the door. When Susan's step-father and mother returned, she was watching television in the living room. The prosecutrix was still in Kenneth's room when she went to bed at 12:30 A.M. About five minutes later, the prosecutrix came into Susan's room and went to bed. She was wearing a gown and did not go right to sleep.

According to Susan, the prosecutrix became angry at appellant because he would not allow her to spend Saturday night at the house with Kenneth. During cross-examination, Susan admitted that she had talked to her mother about the incident but denied going over what she was to say.

Joseph Ciervo testified that he was a truck driver and lived with his wife, Juanita and children at 6 Kiwanis Street in Montgomery. About 6:00 P.M. on the night in question, he and his wife went to a baseball game and returned about midnight. He saw Susan in the living room but did not see Kenneth or the prosecutrix. After Ciervo walked through the house he returned to the kitchen where he drank some coffee with his wife. He recalled they remained in the kitchen for fifteen or twenty minutes before his wife went to their bedroom and he went to the bathroom.

Appellant explained that to get to the bathroom, one had to go through Susan's room. He recalled that when he went through her room, he did not see the prosecutrix but when he returned from the bathroom, she was there in bed.

Ciervo stated that about the time he stepped into the bedroom, prosecutrix said: "Are you going to kiss me goodnight?" and he responded: "Yes." At that point he went over to the prosecutrix, kissed her on the cheek and after grabbing her stomach said: 'Okay Fatty.' Appellant said he then returned to his bedroom and went to bed.

Ciervo denied putting his hands down into prosecutrix's panties but admitted giving her a dollar and telling her: '. . . to buy a Coke for her and some candy for her and Diane (her sister) and Susie.' (Bracketed material added.) He also admitted that on the night in question he and his wife stopped at the Elk's Club and drank some beer. Appellant stated that the prosecutrix left the next day at 10:30 or 11:00 A.M Lena N. Taylor was called as a rebuttal witness by the State. She testified that she was prosecutrix's grandmother and that the defendant was her son-in-law. According to Taylor, immediately after the preliminary hearing her grandson, Kenneth Wade Bowden, talked to her about the case.

At the completion of Mrs. Taylor's testimony both sides rested.

I.

It is contended that the trial court committed reversible error in permitting the victim to testify regarding the substance of her complaint to Kenneth Bowden.

Generally, the fact that a complaint was made is admissible in a prosecution for a sexual offense, but details of the complaint cannot be shown. Oakley v. State, 135 Ala. 15, 33 So. 23.

An exception exists to this rule where the complaint is part of the res gestae. Daniell v. State, 37 Ala.App. 559, 73 So.2d 370; White v. State, 237 Ala. 610, 188 So. 388; Lang v. State, 40 Ala.App. 705, 122 So.2d 526. In order for the complaint to come within the res gestae, it is not necessary that it be contemporaneous in point of time with the sexual offense. If it springs from the sexual offense, is voluntary and spontaneous, and is made at a time so...