First Degree Child Molestation and Second Degree Sexual Assault
A man was accused of sexually assaulting his niece on two occasions. The niece alleged the first incident occurred when she was around age 10 and that the second incident occurred around age 15. There were no witnesses or independent evidence to corroborate either allegation or the young girl’s word. After a jury trial that extended for approximately two weeks, the man was found not guilty.
The Defendant in this case was born and raised in Colombia. He immigrated to the United States and became a naturalized U.S. Citizen. By the time of his niece’s accusations, the man had been in the United States for approximately 17 years. He was married, owned a home and had children. He had one teenage stepson, one biological teenage son and a 7 year-old son. He had absolutely no criminal record and had held the same job for 17 years. He was a respected member of his community, the company where he worked and church congregation to which he belonged.
The man came from a large 35-member Colombian family. His father had a total of 6 children. The man had 5 siblings: 4 brothers and 1 sister. All of his siblings were married with children. The family consisted of 14 adults, to include the man’s father, stepmother, siblings and in-laws. It also consisted of 21 children who were the man’s nieces and nephews that ranged in ages from toddler to teenager. One of the man’s nieces was his accuser of molestation and sexual assault.
The niece’s allegations were spontaneous. She first accused her uncle on Christmas Eve of assaulting her the night before on December 23. Her family had a pre-holiday celebration at their small apartment. In attendance were the niece, her two younger brothers and her parents. Her father was the accused’s brother. Also in attendance were the uncle of accused man, his wife and two sons. The party was uneventful by all witness accounts. No one saw or heard anything suspicious or out of the ordinary, especially with respect to the niece and uncle. On the morning of December 23, the niece’s mother (accused’s sister-in-law) woke her daughter up from sleeping and reminded her that it was time to get up and dressed because her uncle was picking her up to go shopping. This event was preplanned. The girl refused and told her mother she did not want to go shopping with her uncle. When the mother asked why, the girl alleged that her uncle touched her breast and tried to place his hand down her pants the night prior while visiting their apartment. She made no further allegations at that time.
The mother informed her husband (the accused’s brother) of their daughter’s allegation. The father reported what the daughter alleged to his brother who denied any wrongdoing. The accused then went to his brother’s apartment with his entire family to confront his niece about her allegation. Upon arriving, he went into his niece’s bedroom with his family and her mother. In everyone’s presence, he told his niece that her allegation was not true and advised her it was not good to tell lies. He also apologized to her for anything he may have said or done to offend her, but asked her not to embarrass him or the family with such false allegations. The niece laughed and giggled in response. From that point onward, the niece and her parents ceased communication with the remainder of the family. They did not make or file a report with authorities.
Approximately three months later, the niece made a half-hearted suicide attempt. She bunked school for the day, as she often did, and claimed to have overdosed on over-the-counter medication, which she regularly used and abused to get high. When her mother observed her condition, she rushed her daughter to the hospital. While there, upon questioning by healthcare providers, the girl cited a number of reasons for her suicide attempt. These reasons included depression, bullying and social problems at school, domestic violence at home, overall unhappiness with her life and a second allegation against here uncle whereby she claimed he digitally penetrated or placed his finger inside her vagina when she was about 10 years-old. This allegation triggered mandatory reporting requirements to law enforcement, the girl’s parents, Department of Children, Youth and Families and the RI Attorney General’s Office or state prosecutors. A full law enforcement investigation ensued. Child abuse advocates, social workers, law enforcement agencies, medical doctors and prosecutors subsequently interviewed the girl regarding her allegations against the uncle. Prosecutors presented the girl’s allegations to a grand jury, which ultimately returned an indictment against the uncle for First Degree Child Molestation and Second Degree Sexual Assault.
The uncle was arrested on a warrant following his indictment. Police officers visited his home without warning or announcement early one morning while the man was getting ready for work. Police took him into custody in the presence of his wife and children and transported him to Court for arraignment. The man’s sister immediately contacted Attorney John L. Calcagni III to represent her brother. The two had a prior friendship from Attorney Calcagni’s former representation of her friend years earlier. Attorney Calcagni received the call, immediately appeared for the man’s arraignment, aided him with pleading not guilty and requested a bail hearing. Under Rhode Island law, the man was initially held without bail pending the outcome of a hearing. This was due to the seriousness and nature of the charged offense in that First Degree Sexual Assault is a capitol crime punishable by the potential of life in prison.
The Court held a full bail hearing within two weeks following the man’s arrest and arraignment. The State called the victim and her mother to testify. Both witnesses were thoroughly cross-examined. Based on their testimony, the State asked that the man be held without bail. Attorney Calcagni argued for his client’s release on bail claiming that the girl’s allegations were riddled with inconsistencies. He also emphasized the man’s contacts to the local community such as ownership of a home; married with children; a large extensive family in the area to include siblings, in-laws, nieces and nephews, and parents; U.S. Citizenship; long-term employment history; and church membership. The man also had no criminal convictions, history or an arrest record. Notwithstanding these arguments, the Court ordered the man held without bail.
Bail hearings are presided over by a single judge. He or she is the sole fact finder at a bail hearing. In this case, the man’s bail hearing was assigned to a particular judge with little criminal law experience both as a former attorney and most recently since being appointed as a judge. The judge denied the man’s application for bail and in so doing, commented on the apparent credibility of complaining witness. Interestingly, Attorney Calcagni polled other courtroom personnel about the niece. This included multiple court officers or sheriffs, the judge’s clerk and a court stenographer. These individuals unanimously rejected the girl’s testimony by finding her to be not credible and inconsistent. Notwithstanding their opinions, the judge’s opinion and ruling were all that matter at a bail hearing, which explains why the man was held without bail.
The case ultimately proceeded to a jury trial. The man spent nearly 14 months in pretrial confinement awaiting trial. The trial lasted more than two weeks including jury selection and deliberations. The State called four witnesses to testify against the man: the police detective in charge of the investigation, the niece or complaining witness, her mother and her sister. The State presented no other witnesses or evidence.
The Defense had limited questions for the detective. On direct examination by the State, he simply outlined for the jury how he came to learn of the girl’s allegations, his limited investigative efforts and the man’s ultimate arrest. The detective admitted on cross-examination that he did not interview any witnesses in this case other than the girl. Though he acknowledged there were others who could have been interviewed, he failed to do so. He also confirmed that he discovered no evidence in this case to confirm or corroborate the girl’s allegations against her uncle. There were no independent witnesses to her allegations of sexual assault or physical evidence.
The State next called the girl who testified against her uncle. She provided another version of inconsistent testimony regarding her allegations. On cross-examination by Attorney Calcagni, the Defense established her history of drug use and abuse. She admitted to using marijuana on a daily basis, which began at age 13 or 14 and continued up to age 16 when she made the allegations against her uncle. She denied using and abusing narcotic prescription pain medications such as Percocet and Vicodin. However, she was impeached regarding this drug use based upon entries of their use and abuse contained in her medical records. The Defense also confronted her on her underage alcohol use and abuse, as well as her history of absenteeism and truancy from school. She regularly skipped classes at school and often entire school days. Despite being disciplined at home and school for this conduct, it continued to persist. She admittedly left or skipped school in order to get high on drugs. The girl was also notorious for sneaking out of her home in the middle of the night to hook-up with unknown boys and men and of course, to use and abuse drugs. Her parents took various measures to keep her in the house and to monitor her behavior such as nailing the windows shut to prevent her from escaping and even removing the door to her bedroom in order to keep a watchful eye on her. The girl was so committed and persistent in her efforts to sneak out of the house, on a nightly basis for over a year, that her parents ultimately began handcuffing or shackling her to the bedframe. The girl freely admitted all of this on cross-examination.
The girl also admitted the verbal and physical abuse that she experienced in the household. Her father was an alcoholic who became violently abusive when intoxicated. He had a history of beating the girl’s mother in her presence. He also abused his own daughter in various ways to include choking, pulling her hair, slapping her and striking her with a closed fist. He was also verbally abusive and was known to call her a “whore” or words to that effect due to her lifestyle. Police had arrested the girl on multiple occasions after they discovered her past curfew in neighborhood parks with strange men. This too was brought to the jury’s attention during trial.
The girl was also confronted on cross-examination with the many inconsistencies of her allegations against the uncle. She provided multiple statements about her allegations to difference law enforcement agencies. She also provided various forms of testimony to include before a grand jury, at a bail hearing and at trial. Her testimony varied each time. As for the first allegation, she claimed she was age 8, 9 10 and 11. Each time she told the story, her age changed. She also said that she was home alone, then changed her story to her being home alone with her brother and thereafter changed again to be that she was home alone with her brother and sister. Neither sibling corroborated her allegation. She also said her parents came home and discovered her alone with her uncle. However, even her parents could not corroborate this story. The specifics of the allegation itself changed. She also provided inconsistencies about the second allegation. These included how and where the alleged incident happened. All of these details were highlighted on cross-examination. The bottom line is that cross-examination established the incredibility and unbelievability of the girl and her allegations against her uncle.
The State called the mother to testify. The main focus of her direct testimony was that her daughter made the allegation on Christmas Eve against the uncle. Specifically, she told her mom that she did not want to go shopping with the uncle that day because he had sexually assaulted her the night before by touching her breasts and attempting to place his hand down her pants. The mother described her daughter’s demeanor during this report as appearing distressed. She also slipped in that she saw the uncle emerge from the daughter’s bedroom the night of the party and rush out of the apartment with his family. Lastly, she described an interaction later that evening when the uncle came to the apartment with his family to confront the daughter about her allegations. The mother tried to make it seem to the jury at trial that the uncle arrived to admit the alleged wrongdoing and render an apology. This could not have been further from the actual truth.
On cross-examination, Attorney Calcagni focused on and highlighted the mother’s bias and lies. She never saw the uncle emerge from her daughter’s room as she tried to state on direct examination. She also did not see any signs of distress with her daughter that evening. The mother also did not see or hear of anything out of the ordinary or inappropriate between her daughter and uncle that evening. The two appeared to interact and get along normally that evening. The mother confirmed that her daughter did not make any allegation against the uncle. In addition to setting this story straight, the mother was also impeached multiple times to show contradictions between her trial testimony and former testimony. She also confirmed on questioning that her brother in law called her daughter a liar the next day in response to learning of her sexual assault allegations against him. She admitted, though begrudgingly, that the uncle did not come there to apologize for any wrongdoing, but rather to deny the allegations while still attempting to keep the peace with his niece and among the family.
The last witness called by the State was the girl’s sister who was present at the time she made the allegation against their uncle. The sister was not present for the party at their apartment the night prior, and therefore, had no personal knowledge about the Christmas-time allegations. She also had no allegations about the older allegation that the girl claimed happened when she was home alone or with her siblings. As a result of her limited knowledge and information, the Defense had no questions for her.
After the State called its fourth and final witness, it rested its case. The Defense then called one witness, the accused’s stepson. He was close in age to the niece and present for both the holiday party on December 23 and again next day when his family confronted the niece about her allegations. He identified photos and a diagram of the girl’s apartment, which Attorney Calcagni obtained in preparation for trial through his investigation team. He also described the party, the people in attendance and their actions with respect to each other in the small apartment. The stepson specifically described going in and out of his cousin’s bedroom. He recalled that the door was missing or was removed. He also saw his stepfather go and in out of the room. He also saw his stepfather interact with the cousin. He never observed or suspected anything out of the ordinary between them. The family ordered pizza and all ate together in the kitchen. About 9 people were in attendance. The stepson described eating together at the same table including his stepfather and cousin. When it came time for the family to leave, they all hugged and said goodbye, as was their normal practice. He described his cousin as hugging and saying goodbye to this stepfather. Again, he observed nothing unusual or out of the ordinary between them. The next evening his family returned there after learning the niece accused her uncle of sexual abuse. The stepson described his stepfather’s demeanor as shocked and surprised by the niece’s allegation. He also described how his stepfather denied the allegations and called the niece a liar to which she replied in laughter. The stepson’s testimony ended on this note and the Defense rested its case.
Both the Defense and State provided closing arguments to the State. The Defense argued that the girl was troubled, had made some troubling allegations against her uncle and that it was time for the jury to set the record straight. Attorney Calcagni emphasized the lack of independent witnesses, physical evidence or otherwise to corroborate the girl’s allegations against her uncle. He also argued that her testimony could not be trusted. It was untimely, inconsistent, and filtered through alcohol and drug abuse, against the backdrop of mental illness, truancy, delinquency, abuse, and social and family difficulty, all of which formed multiple motives to fabricate. In closing, he argued that proof beyond a reasonable doubt could not possibly exist based on the word of this sole unreliable witness. The uncle summarized things for the jurors when he reacted to his niece’s allegations by calling her a liar. Despite the State’s response, the jury agreed with Calcagni. After a day and one half of deliberations, the jury returned a verdict in favor of the man of not guilty as to all charges.