By Julie Manganis
SALEM — A little girl's description of being touched "down there" wasn't specific enough to prove that she was molested by a former family friend, a Salem District Court judge ruled yesterday.
And with that finding, Judge Dunbar Livingston granted a defense motion for a required verdict of not guilty in the case against Thomas Elliott, a former Salem man charged last year with indecent assault and battery on a 6-year-old girl. The judge's decision took the case away from a jury that had already started hearing evidence in the case, including the little girl's testimony.
The ruling angered the girl's mother, who was visibly distraught and crying as she left the courthouse. As the girl's mother cried outside court, the girl reached up to put her hand on her mother's back.
The Salem News is not identifying the girl or her mother because the newspaper has a policy not to use the names of sexual abuse victims.
Moments later, Elliott, 37, formerly of 10 Prince St., Salem, walked out of the courthouse, free for the first time since his arrest in December. He avoided eye contact with the girl and her family and rushed across the street.
Police first learned of the incident in November, after the girl, now 7, told a counselor that one night last summer "Tom" had come into the living room where she slept and reached under the covers, then reached into her shorts.
During an interview with police, Elliott allegedly told Detective William Jennings that he sometimes sleepwalks.
Police arrested and charged Elliott.
The girl took the stand yesterday and in a soft voice described how she was watching cartoons and drifting off to sleep when Elliott came in and stood next to the sofa where she slept.
Prosecutor Elizabeth Satelmajer asked the girl to describe what happened and where Elliott touched her.
"Down there," the girl said.
Satelmajer tried repeatedly to get the girl to be more specific, asking, "Do you remember what part of your body Tom touched?"
"No," said the girl.
Livingston denied a request by Satelmajer to let the prosecutor use "leading" questions to clarify the girl's testimony, something courts have allowed in cases where a child is testifying. The judge said he would consider the request on a question-by-question basis.
Defense lawyer Jesse Dole briefly questioned the girl about possible confusion between his client and another man named Tom who was a friend of the family.
After the judge found that the girl's testimony had been insufficient to prove that an indecent assault had occurred, he barred the counselor from testifying about what she was told and ruled that Jennings would not be allowed to testify about Elliott's interview with police.
Livingston said he believed he had no choice but to grant Dole's motion for a required verdict of not guilty and then sent the jury home.
Prosecutors plan to file new charges against Elliott for simple assault and battery. Because of a quirk in the law, assault and battery cannot be considered as a "lesser included offense" to indecent assault and battery on a child. Had the case been indecent assault and battery on a person 14 or older, jurors would have been able to consider the lesser charge.
