Vito Ceraulo v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: November 1, 2024
• Docket: 2023-CA-0625
• Status: Unpublished

Opinion

RENDERED: NOVEMBER 1, 2024; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0625-MR

VITO CERAULO APPELLANT

APPEAL FROM MCCREARY CIRCUIT COURT v. HONORABLE DANIEL BALLOU, JUDGE ACTION NO. 22-CR-00040

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION REVERSING AND REMANDING

** ** ** ** **

BEFORE: EASTON, ECKERLE, AND LAMBERT, JUDGES.

LAMBERT, JUDGE: Vito Ceraulo appeals from a judgment sentencing him to

seven years’ imprisonment pursuant to a jury verdict finding him guilty of sexual

abuse in the first degree. We reverse and remand.

Ceraulo and Jennifer, his then-wife, traveled from their home in New

York to attend a large gathering of Jennifer’s family in McCreary County,

Kentucky in July 2019. Amy, Jennifer’s then-eleven-year-old niece, was also present at the gathering.1 In 2021, Amy told counselors at a church camp that

Ceraulo had sexually abused her at the 2019 gathering. After the authorities were

informed, Ceraulo was indicted on one count of sexual abuse in the first degree. A

three-day jury trial was held in January 2023.

Steven Scaramuzzino, an investigator with the New York State Police

who had interviewed Ceraulo, was the first witness. Scaramuzzino testified that

Ceraulo had denied the abuse allegations and referred to the matter as a “stupid girl

situation” or words to that effect. On cross-examination, Scaramuzzino agreed that

children may falsely report being abused for a variety of reasons, such as seeking

attention or being involved in a contentious custody dispute.

Amy was the next witness. She testified that Ceraulo had placed his

hands down the back of her pants and the front of her shirt in the summers of 2017

and 2018, but she did not report that behavior because she had naively believed

that type of touching was normal. According to Amy, during the family event in

July 2019, Ceraulo got her to go to his car which was parked away from where

people were swimming and visiting. Amy stated that Ceraulo placed her in his

car’s trunk, removed her bikini bottoms, and touched her “aggressively.” Amy

1 “Amy is a pseudonym employed by the Court to protect the privacy of the child. We also refrain from naming Amy’s . . . mother[] or the members of the family . . . .” Stephens v. Commonwealth, 680 S.W.3d 887, 892 n.1 (Ky. 2023).

-2- described the color of the interior of Ceraulo’s trunk and the shirt he was wearing.

On cross-examination, Amy stated that she did not remember why she had gone to

Ceraulo’s car or whether he had digitally penetrated her. She also testified that she

had experienced dreams of being abused by random people.

Next, the Commonwealth called Jonathan, Amy’s uncle by marriage.

Jonathan testified that the 2019 family event was the first time he had met Ceraulo.

Jonathan stated that Ceraulo seemed to prefer the company of children. Jonathan

stated that he told his wife, Sheena, that Ceraulo should not be left alone with

Amy. However, on cross-examination, Jonathan testified that he had not seen

Ceraulo isolate, or act inappropriately towards, Amy. Sheena, who testified next,

largely confirmed Jonathan’s testimony. She also testified that she had never seen

Ceraulo inappropriately touch anyone, but she had warned Amy at the 2019

gathering not to be alone with Ceraulo.

The Commonwealth then called workers from the church camp Amy

had attended in 2021. Those witnesses generally described how Amy had

disclosed the alleged abuse to them.

Amy’s mother was the next witness. Mother testified that Amy had

disclosed that Ceraulo had touched her in her bathing suit area. Mother testified

that she had never seen inappropriate touching by Ceraulo, though she did find on

-3- Facebook a photo of Ceraulo in a shirt matching the description given by Amy of

the shirt Ceraulo had worn when he allegedly abused her.

Amy’s father then forthrightly described a phone call where he

threatened Ceraulo’s life if he returned to Kentucky. Father testified that Ceraulo

did not deny it when Father called him a pedophile. But, like the other witnesses,

Father testified that he had not witnessed Ceraulo behaving inappropriately.

Ceraulo’s ex-wife, Jennifer, was the final witness called by the

Commonwealth. Jennifer testified that she had divorced Ceraulo after learning of

the allegations and had sole custody of their children. She was present when

Father called Ceraulo a pedophile and agreed Ceraulo had not denied the

allegation.

Jennifer testified that she had once seen Ceraulo rubbing Amy’s upper

thigh while she sat on his lap. She told Ceraulo he could not do that, and he

responded that he did not know it was inappropriate and would not do it again.

Jennifer also recounted an instance where she had observed Ceraulo slap the “butt”

of another eleven-year-old niece during a camping trip.

On cross-examination, Jennifer testified that she did not fear that

Ceraulo would inappropriately touch their children. When asked if any children in

New York had made accusations of inappropriate touching by Ceraulo, Jennifer

stated that a niece had done so. On re-direct, Jennifer said the niece had reported

-4- that Ceraulo tickled her near her vaginal area, but Jennifer had not reported that

allegation to the authorities.

Ceraulo testified in his own defense. Ceraulo stated he had not

denied Father’s pedophile allegation because Father would not let him (Ceraulo)

talk. Ceraulo denied having been alone with Amy, having lured Amy to his car,

having placed her in the trunk and having touched her intimate areas.

Before we address the crux of this appeal, which revolves around the

Commonwealth’s cross-examination of Ceraulo, we must first note that it has been

improper under Kentucky precedent for nearly a century to ask a witness if another

witness lied during his or her testimony. Howard v. Commonwealth, 227 Ky. 142,

12 S.W.2d 324, 329 (1928). More recently, in Moss v. Commonwealth, 949

S.W.2d 579, 583 (Ky. 1997), our Supreme Court held that “[a] witness should not

be required to characterize the testimony of another witness, particularly a well-

respected police officer, as lying” because “[s]uch a characterization places the

witness in such an unflattering light as to potentially undermine his entire

testimony. Counsel should be sufficiently articulate to show the jury where the

testimony of the witnesses differ without resort to blunt force.” For convenience’s

-5- sake, we shall refer to questions about whether other witnesses had lied, or had a

reason to lie, as a “Moss violation.”2

The Commonwealth mentioned some version of lying about twenty-

six times during its cross-examination of Ceraulo. The Commonwealth asked

Ceraulo if Scaramuzzino, Amy, or Jennifer had lied. The Commonwealth asked

Ceraulo what motivation Scaramuzzino, Amy, Sheena, Mother, or Father had to

lie. The Commonwealth remarked that it was keeping a list of the people Ceraulo

said were lying as it wrote names on a dry erase board. Nonetheless, Ceraulo’s

counsel did not object, nor did the trial court take any actions sua sponte.3 Despite

the Commonwealth’s repeated efforts to get Ceraulo to describe other witnesses as

liars, the soft-spoken Ceraulo did not become combative or belligerent.

The jury found Ceraulo guilty and recommended a sentence of seven

years’ imprisonment. The trial court sentenced Ceraulo in accordance with the

jury’s recommendation, after which he filed this appeal.

2 Asking a witness what motivation another witness had to lie is, essentially, a type of Moss violation. Barrett v. Commonwealth, 677 S.W.3d 326, 341 (Ky. 2023). 3 We are empathetic to the dilemma faced by a trial judge here, since Ceraulo’s counsel – for whatever reason – did not object. However, as a majority of our Supreme Court has stated, “[t]he main obligation of a trial judge is to protect the integrity of the court proceedings over which he or she is the designated gate keeper.” Brown v. Commonwealth, 226 S.W.3d 74, 86 (Ky. 2007) (Cunningham, J., concurring, joined by three other justices). Thus, a trial judge in similar circumstances should take necessary remedial steps sua sponte to ensure the trial remains fundamentally fair. For example, since witness credibility determinations are the sole province of the jury, Taylor v. Commonwealth, 671 S.W.3d 36, 44 (Ky. 2023), a judge may orally inform the jurors that only they may determine which witnesses to believe.

-6- Ceraulo raises two issues, both of which he admits were not preserved

for appellate review.4 First, he argues the repeated Moss violations were reversible

prosecutorial misconduct. Indeed, “[a]n unpreserved Moss violation is sometimes

reviewed not as a trial court error but as a form of alleged prosecutorial misconduct

. . . .” Ordway v. Commonwealth, 391 S.W.3d 762, 789 n.16 (Ky. 2013). Second,

he contends the trial court erroneously allowed the Commonwealth to elicit victim

impact evidence during the guilt phase.

We begin our analysis by reciting the standards governing our review.

Because Ceraulo did not preserve either issue, he is entitled to relief only if we

discern the existence of palpable errors resulting in manifest injustice. Kentucky

Rules of Criminal Procedure (RCr) 10.26. A manifest injustice occurs upon a

showing of a “probability of a different result or error so fundamental as to

threaten a defendant’s entitlement to due process of law.” Martin v.

Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). To be palpable, an error must be

“shocking or jurisprudentially intolerable.” Id. at 4. Although many cases

involving palpable error review have focused on whether the error altered the

result of the proceeding, a manifest injustice also exists when an error “seriously

4 “We have considered the parties’ extensive arguments and citations to authority but will discuss only the arguments and cited authorities we deem most pertinent, the remainder being without merit, irrelevant, or redundant.” Schell v. Young, 640 S.W.3d 24, 29 n.1 (Ky. App. 2021).

-7- affected the fairness, integrity, or public reputation of the proceeding.” McGuire v.

Commonwealth, 368 S.W.3d 100, 112 (Ky. 2012) (internal quotation marks and

citation omitted).

The standards governing our review of alleged prosecutorial

misconduct are similar. “[P]rosecutorial misconduct can assume many forms,

including improper questioning and improper closing argument . . . . Where there

was no objection, we will reverse only where the misconduct was flagrant and was

such as to render the trial fundamentally unfair.” Duncan v. Commonwealth, 322

S.W.3d 81, 87 (Ky. 2010). We use a four-pronged test to determine if

prosecutorial misconduct is flagrant: “(1) whether the remarks tended to mislead

the jury or to prejudice the accused; (2) whether they were isolated or extensive;

(3) whether they were deliberately or accidentally placed before the jury; and (4)

the strength of the evidence against the accused.” Bowling v. Commonwealth, 553

S.W.3d 231, 243 (Ky. 2018) (internal quotation marks and citation omitted).

But we must first determine whether there even was any misconduct

because the Commonwealth surprisingly asserts there were no Moss violations

during Ceraulo’s trial. After all, non-existent misconduct cannot entitle an

appellant to relief.

Simply put, the Commonwealth’s argument is completely without

merit. To show why, we need to relate only a few representative examples of the

-8- numerous Moss violations. The Commonwealth asked Ceraulo: “So he’s

[Scaramuzzino] lying?” Video Record (VR), 1/20/23 at 12:26:43. That question is

a Moss violation. Another time, the Commonwealth asked Ceraulo: “So they’re

all lying?” Id. at 12:39:02. That question is a Moss violation. The

Commonwealth stated that Father had described Ceraulo as a pedophile and asked

Ceraulo: “He’s wrong about that too then, right, he’s lying?” Id. at 12:40:39.

That question is a Moss violation. Finally, the Commonwealth asked Ceraulo:

“Amy must be lying too then, right?” Id. at 12:44:10. That question, which goes

to the very heart of the largely he said/she said nature of the criminal charge, is a

Moss violation.

Turning to the prosecutorial misconduct flagrancy factors, the Moss

violations clearly were deliberate and extensive. Ceraulo has not clearly shown

that the Moss violations misled the jury. As to the strength of the evidence prong,

obviously that factor is rarely going to favor a criminal defendant since there had

to be evidence sufficient to convince a jury to unanimously find the defendant

guilty beyond a reasonable doubt. Here, Amy testified that Ceraulo vigorously

touched the area normally concealed by her bikini bottoms. Jennifer testified as to

other alleged instances of improper touching of young female relatives by Ceraulo.

However, we cannot characterize the evidence as overwhelming since there were

no additional eyewitnesses to the alleged abuse or even to Ceraulo being alone

-9- with Amy near his vehicle. Moreover, Ceraulo adamantly denied the allegations.

On balance, this factor, at most, slightly favors the Commonwealth given the

combination of Amy and Jennifer’s damning testimony.

In sum, there is a state of relative equipoise regarding the four

flagrancy factors. However, we conclude the trial was rendered fundamentally

unfair by the Commonwealth’s repeated Moss violations. As our Supreme Court

has held, “[i]n the end, our review must center on the essential fairness of the trial

as a whole, with reversal being justified only if the prosecutor’s misconduct was so

improper, prejudicial, and egregious as to have undermined the overall fairness of

the proceedings.” Dickerson v. Commonwealth, 485 S.W.3d 310, 329 (Ky. 2016)

(internal quotation marks and citations omitted).

A bedrock principle of the American legal system is that “[t]he

decisions of courts, until overruled, must be respected and obeyed by trial counsel.

This standard applies, a fortiori, to those men and women who represent the

Commonwealth in criminal prosecutions.” Moore v. Commonwealth, 634 S.W.2d

426, 438 (Ky. 1982). Indeed, the Commonwealth bears a special responsibility to

ensure that a trial is fundamentally fair. “Unlike other attorneys, [a] prosecutor has

the responsibility of a minister of justice and not simply that of an advocate. The

sovereign, represented in a criminal trial by the prosecutor, has an interest not that

it shall win a case, but that justice shall be done.” Caudill v. Commonwealth, 374

-10- S.W.3d 301, 309 (Ky. 2012) (brackets original to Caudill) (internal quotation

marks and citations omitted).

Nonetheless, the Commonwealth disobeyed the plain holding of Moss

repeatedly during its cross-examination of Ceraulo. The Commonwealth even

created a Moss-violating visual aid by telling the jury that it (the Commonwealth)

was writing a list on a dry erase board of all the people Ceraulo wanted the jury to

believe were lying. The Commonwealth’s persistent disregard for Moss was

designed to harm Ceraulo in the jury’s eyes and rendered this trial fundamentally

unfair.

Finally, we disagree with the Commonwealth that palpable error relief

is unavailable for Moss violations. We acknowledge that neither we nor our

Supreme Court have previously granted palpable error relief based on Moss

violations. Barrett, 677 S.W.3d at 341 (“This Court has not yet found such a Moss

violation to rise to palpable error under RCr 10.26.”). But we stress that every case

cited by the Commonwealth is materially distinguishable because none involve as

many Moss violations as does the case at hand. There is a quantitative and

qualitative difference between a few inappropriate stray remarks and dozens of

violations of binding precedent. Therefore, in the interests of judicial economy, we

shall only discuss two of the cases upon which the Commonwealth primarily relies.

-11- Luna v. Commonwealth, 460 S.W.3d 851 (Ky. 2015), is materially

distinguishable. In Luna, the Commonwealth asked Luna improper questions like

the ones at hand, such as: “Is everybody lying but you?” Id. at 879. Our Supreme

Court affirmed because “Luna was a combative witness” and “where a defendant

places himself in an unflattering light with an overall combative tone, the impact of

such questioning by the Commonwealth is somewhat mitigated. It becomes

difficult to say with any reliability whether the Commonwealth’s questioning or

the defendant’s own recalcitrance contributed to the jury’s verdict.” Id. at 880.

But Ceraulo’s demeanor was mainly soft-spoken – he did not display a “combative

tone” or demeanor.

Similarly, we reject the Commonwealth’s argument that we must

affirm based on Newman v. Commonwealth, 366 S.W.3d 435 (Ky. 2012). In

Newman, our Supreme Court held that a few Moss violations by the

Commonwealth did not rise to the level of palpable error because the defendant’s

theory was the victims “were lying, not, for example, that they were mistaken,

coerced, or that their memories were the product of suggestion. Therefore, the

accusation was, in a sense, already before the jury.” Id. at 442. Here, Ceraulo did

not classify Amy as a liar. Instead, he relied upon potential memory issues she

may have experienced and his general lack of opportunity to commit the offense at

-12- a crowded gathering. Newman does not foreclose Ceraulo from receiving palpable

error relief.

We now turn to Ceraulo’s argument that the trial court allowed victim

impact evidence to be admitted during the guilt phase. Given our conclusion that

the Moss violations require reversing Ceraulo’s conviction, we shall only briefly

discuss the issue to provide guidance on remand.

The Commonwealth asked Amy how the abuse had changed her. The

Commonwealth asked similar questions of multiple other witnesses.

The Commonwealth is permitted to provide “background evidence” of

the victim in order to allow the jury to “understand[] the nature of the crime

committed[,]” but is not permitted to introduce victim impact evidence in the guilt

phase. Roe v. Commonwealth, 493 S.W.3d 814, 823 (Ky. 2015). It is not always

easy to discern the difference between the two. Id. at 824. “One way to determine

the difference between victim impact evidence and victim background evidence is

whether the evidence is aimed primarily at appealing to the jurors’ sympathies or

providing an understanding of the nature of the crime[.]” Alderson v.

Commonwealth, 670 S.W.3d 884, 893 (Ky. 2023) (brackets original to Alderson)

-13- The challenged questions and answers here are remarkably similar to

those deemed improper by our Supreme Court in Alderson. Specifically, the Court

held that the victim’s testimony:

provided a great deal of information about how her life had changed for the worse after the crime was committed and had a long-term impact on her life. When it is evaluated for whether it constituted victim impact testimony or victim background information, by its very nature it constitutes victim impact testimony because it established the terrible consequences of the defendant’s actions on her life going forward and was likely to arouse the jurors’ sympathy. . . . K.M. testified that after the assault she had to go to therapy, take sleeping pills to combat recent night terrors, feared male family members, had flashbacks and went to the counselor’s office to recuperate, once people found out they treated her differently, she could not visit A.A.’s house because it was the crime scene, and she is scared all of the time. K.M.’s testimony was devoted to her own recitation of her emotional state and how she had suffered since reporting the assault. As such, this testimony had little relevancy as to whether the crime had in fact occurred and at least some of what she described could be the result of the criminal process itself or other people learning about the assault. Admitting such evidence at this stage of the trial had little relevance and even if relevant was clearly more prejudicial than probative and could mislead the jury as to what were appropriate bases for finding guilt.

Alderson, 670 S.W.3d at 893-95 (emphasis original) (paragraph breaks omitted).

Accord Stephens, 680 S.W.3d at, 904-05 (testimony about a victim’s night terrors

and inability to sleep after being raped was inadmissible in guilt phase because

“[i]n a case in which the resolution depends upon whether the victim or the

-14- defendant should be believed and other evidence is lacking, the perception of the

child as a victim who suffered would arouse the jurors’ sympathy and could result

in a verdict rooted in that sympathy rather than based on the evidence properly

admitted”) (internal quotation marks and citations omitted).

Consequently, we agree with Ceraulo that the trial court erred by

permitting the Commonwealth to elicit victim impact evidence in the guilt phase.

However, we need not determine whether Ceraulo is entitled to palpable error

relief because we have reversed his conviction on other grounds.

For the foregoing reasons, the judgment of the McCreary Circuit

Court finding Vito Ceraulo guilty of sexual abuse in the first degree and sentencing

him to seven years’ imprisonment is reversed, and the case is remanded for further

proceedings consistent with this Opinion.

EASTON, JUDGE, CONCURS.

ECKERLE, JUDGE, CONCURS IN RESULT ONLY.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Jennifer Wade Russell Coleman Frankfort, Kentucky Attorney General of Kentucky

Melissa A. Pile Assistant Attorney General Frankfort, Kentucky

-15-