Scamardo v. State

2013 Ark. 163, 426 S.W.3d 900, 2013 WL 1694871, 2013 Ark. LEXIS 193
CourtSupreme Court of Arkansas
DecidedApril 18, 2013
DocketNo. CR 12-554
StatusPublished
Cited by22 cases

This text of 2013 Ark. 163 (Scamardo v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Scamardo v. State, 2013 Ark. 163, 426 S.W.3d 900, 2013 WL 1694871, 2013 Ark. LEXIS 193 (Ark. 2013).

Opinion

PAUL E. DANIELSON, Justice.

|!Appellant Joseph Anthony Scamardo, Jr., appeals an order of the Sebastian County Circuit Court finding him guilty of sexual assault in the second degree and sentencing him to 144 months’ imprisonment in the Arkansas Department of Correction. Scamardo raises two arguments on appeal: (1) that the circuit court erred by forbidding him from introducing extrinsic evidence of a prior inconsistent statement by the victim, and (2) that the circuit court erred in allowing the victim’s father to testify regarding what she had told him about the incident on a prior occasion. We reverse and remand Scamardo’s conviction and sentence.

Because Scamardo does not challenge the sufficiency of the evidence against him, only a brief recitation of the facts is necessary. See, e.g., Riley v. State, 2012 Ark. 462, 2012 WL 6218479. The charges against Scamardo stemmed from the victim’s allegations that in 2008, over Labor Day 2weekend, she was sexually assaulted by her now stepfather, appellant “Joey” Scamardo. The victim testified at trial about having spent the night at her “Nannie and Poppyf’s]” (Scamardo’s parents) home in Fort Smith, Arkansas, along with her mother, her two brothers, her stepsister, and Scamardo. She testified that she and her stepsister slept in “a little blow up bed” and that her brothers slept in another bed. The following colloquy took place during her testimony at trial:

Q. Do you remember what you had been wearing to sleep that night?
A. I wore a nightgown and panties.
Q. All right. Can you tell us or tell the jury if something happened that night that you remember?
A. Can you please repeat the question.
Q. Yes. Can you tell us if something happened that night when you were sleeping in there on that bed?
A. Joey, he left his room and he touched me on my private area.
Q. All right. Where were you laying when this happened?
A. I was laying on my bed.
Q. On the bed, okay. Do you know what side of the bed or the mattress that you were on?
A. No.
Q. You said that Joey touched you. Where would he have been when he touched you?
A. I don’t—
Q. Where was he in relation to where you were laying when he touched you?
| sA. Where my legs were.
Q. By where your legs were, is that what you said?
A. (Nods head).
Q. Npw, you said on your privates. Can you kind of explain to the jury. You said you had panties on , and you had a nightgown on. Was this over your panties or underneath your panties?
A. Underneath.
Q. Underneath your panties, okay. Now, can you kind of explain how that happened if you had your panties on?
A. Joey, he1 had pulled them down.
Q. And touched you on your privates, you said?
A. (Nods head).
Q. I am going to go back to what I asked you to mark earlier and can you point out on here exactly where he touched you? Can you do that for me?
A. (Indication).
Q. That is the place that you have marked private?
A. (Nods head).
Q. Now, what did he touch you with?
A. His finger.
Q. His finger, okay. Do you know how long he touched you there with his finger?
A. A minute or five seconds, I don’t know.
Q. You don’t know how long it went on, okay. Do you, did he do anything with his finger when he touched you?
14A. Huh uh (witness shakes head).
Q. He just touched you there with his finger?
A. (Nods head).
Q. Did he say anything to you?
A. No.
Q. Did you say anything to him?
A. No.
Q. Why not?
A. I didn’t want him to know I was awake.
Q. You were trying to act like you were asleep?
A. (Nods head).
Q. Can you explain what it felt like on there, what his finger felt like on there?
A. It felt kind of wet and uncomfortable.
Q. Can you tell us, you had gone down there to go to sleep; right?
A. Yes, ma’am.
Q. The other kids were there, two were in the other bed. Were there any lights on in the room or in the house?
A. Well, the kitchen light was on.
Q. The kitchen light. Where is the kitchen in relation to this room that you were sleeping in?
A. It was just like the room is here and there is like a wall here, but the kitchen is right here and you kind of see the light.
Q. Is there an entryway or a doorway to this room where you were sleeping?
IsA. There is just an open hole in the wall.
Q. That is how you got into that room?
A. (Nods head).
Q. Is the kitchen back behind that?
A. (Nods head).
Q. What happened after he touched you?
A. I don’t know, I just heard my mom call and Joey, he went in the room and that’s all.
Q. He went in what room?
A. He went in his room with mom.
Q. In the bedroom with mom, okay. "What did you do after that?
A. Can you repeat the question?
Q. Yes, I’m sorry. What did you do after Joey walked back to the bedroom?
A. I tried to wipe it off, but I couldn’t.

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Bluebook (online)
2013 Ark. 163, 426 S.W.3d 900, 2013 WL 1694871, 2013 Ark. LEXIS 193, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scamardo-v-state-ark-2013.