19 A.3d 51 (R.I. 2011), 2007-81-C.A., State v. Lynch

Docket Nº:2007-81-C.A.
Citation:19 A.3d 51
Opinion Judge:Justice GOLDBERG, for the Court.
Party Name:STATE v. Gerald LYNCH.
Attorney:Christopher R. Bush, Department of Attorney General, for State. Paula Rosin, Office of the Public Defender, for Defendant.
Case Date:May 06, 2011
Court:Supreme Court of Rhode Island

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19 A.3d 51 (R.I. 2011)



Gerald LYNCH.

No. 2007-81-C.A.

Supreme Court of Rhode Island.

May 6, 2011

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[Copyrighted Material Omitted]

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Christopher R. Bush, Department of Attorney General, for State.

Paula Rosin, Office of the Public Defender, for Defendant.



Justice GOLDBERG, for the Court.

The defendant, Gerald Lynch (Lynch or defendant), is before the Supreme Court on appeal from a conviction of four counts of first-degree sexual assault, for which he was sentenced to twenty years at the Adult Correctional Institutions (ACI), ten years to serve, on each count, all sentences to run concurrently. The defendant alleges that the trial justice erred in denying his motion for judgment of acquittal and, in the alternative, his motion for a new trial. He also asserts that the trial justice committed an error of law when he allowed certain evidence before the jury and in his instructions to the jury. For the reasons set forth in this opinion, we affirm the judgment of conviction.

Facts and Travel

Although the crimes giving rise to these convictions occurred over twenty years ago, the incidents were not disclosed to anyone until the complainant, M.G. (complainant or M.G.),1 appeared at the Pawtucket Police Department in January 2004 and reported having been sexually assaulted by defendant almost twenty years earlier.2 During the 1980s, M.G. worked at Blease Florist Shop, which was owned and operated by defendant. M.G. reported to the police that defendant had sexually assaulted him during a three-year period, from 1982 to 1985, when he was between twelve and fifteen years of age.3 As part of the police investigation, M.G. telephoned Lynch and confronted him about the sexual assaults. Lynch did not deny that a sexual relationship occurred between them; however, he insisted— in the initial telephone conversation and then at trial—

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that the sexual activity was consensual.4

In April 2004, a grand jury returned an indictment charging defendant with nine counts of first-degree sexual assault, in violation of G.L.1956 § 11-37-2; that statute provides in pertinent part that a person is guilty of first-degree sexual assault when he or she " engages in sexual penetration with another person, and * * * [t]he accused uses force or coercion." In October 2006, the case was tried to a jury. M.G. testified about the nature of his employment at Blease Florist, describing his duties as working in the greenhouse, cleaning the property and performing basic manual labor. The complainant testified that the first time defendant touched him sexually was in the summer of 1982, when he was twelve years old.5 He explained that he and Lynch were in Lynch's car, returning from a job planting flowers in South County, when Lynch stopped to buy some beer. After consuming some beer in his parked truck, and offering some to M.G., Lynch placed his hand inside M.G.'s bathing suit and " fondled [M.G.'s] penis and scrotum for what seemed to be three to five seconds." 6 M.G. testified that he did not do anything in response because he was afraid of Lynch, explaining that defendant " was a father figure, basically the same age as my dad, and he was bigger than me; and I have never had anything like that happen to me before, and I was embarrassed about it."

M.G. then testified about the nine incidents of first-degree sexual assault set forth in the indictment; eight of which consisted of Lynch performing oral sex on M.G. and a single instance when M.G. was forced to perform oral sex on Lynch. According to complainant, the sexual assaults followed a general pattern: each encounter took place during the afternoon in the shop's unfinished basement, in or near the shop's makeshift bathroom— an area that consisted of a toilet mounted on a platform, enclosed by a shower curtain— and often after M.G. used the toilet. According to M.G., with the exception of Marion Blease, the previous owner, no one was in the shop. Mrs. Blease never came downstairs, M.G. testified, because Lynch would tell her to remain in the shop to watch for customers and to answer the phone. The complainant testified that most of these assaults occurred after one or both of them had been drinking alcohol or smoking marijuana. M.G. also testified that on other occasions, while in the shop, Lynch would slap his buttocks and punch him.

Of the eight instances in which Lynch engaged in fellatio, M.G. testified that defendant either unbuttoned or removed M.G.'s pants and then performed oral sex on him. M.G. testified that in all but two instances— which took place during M.G.'s freshman year of high school— Lynch held him on the toilet's platform with " both of his hands[.]" The witness demonstrated to the jury how Lynch physically held him by the arms, stating that there " was a pressure that you couldn't move. He held

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me there and there was no way I was going anywhere." M.G. testified that he did not try to physically resist the assaults because defendant was much bigger than he and because he was afraid. However, with respect to two of the incidents that occurred during his freshman year, M.G. could not recall whether or how much force Lynch used to accomplish the act. The state dismissed those counts at the close of evidence.

The complainant also described an incident that occurred when he was in the tenth grade, during which Lynch forced M.G. to perform oral sex on him. M.G. testified that " [i]t was one of the times where he had me masturbating him. I was behind him and he turned and physically forced me on my knees and inserted his penis into my mouth and made me perform oral sex on him, and he ejaculated into my mouth." M.G. stated that he did not attempt to resist defendant's force because he was " unable to[; ]" but he did state that he was crying during this episode.

M.G. testified that he was unable to physically resist defendant because of defendant's size and strength and because he was afraid. He testified that he told Lynch several times that he did not want to engage in sexual activities with him, although he could not recall specifically when he did so. During his sophomore year of high school, M.G. testified, he " couldn't take it anymore" and, after Lynch punched him, he struck Lynch. M.G. testified that he " tackled [Lynch] and got him into a headlock on the floor in the flower shop, and [Lynch] grabbed me by my testicles and squeezed, and I had to let go." At that point, M.G. testified, the sexual assaults stopped.

Additionally, the state elicited testimony from M.G. about the impact that these sexual assaults had on his life, stating that he would " self-medicate with drinking, using different drugs, [and] marijuana[,]" and that he " had a hard time holding a job, staying focused, [and had] periods of depression." M.G. also testified that he was unable to have a " normal sex life [.]" This testimony was stricken from the record, and Lynch moved to pass the case on the ground of a discovery violation, arguing that the state had violated Rule 16 of the Superior Court Rules of Criminal Procedure because defendant had not been notified that M.G. was going to testify " about his opinion or about his personal sexual life following 1992" The trial justice denied the motion to pass.

Although defendant did not testify, his defense at trial was that this was a consensual relationship which did not commence until M.G. was older and that complainant was mistaken about when he worked for Lynch and how old he was at the time. Lynch presented testimony from two former employees and his daughter, who collectively testified that they did not remember seeing M.G. in the summers of 1982 or 1983, but that they remembered that M.G. worked there regularly as a driver in 1985.

After the close of the evidence, the state dismissed two counts of the indictment, and defendant moved for a judgment of acquittal on the remaining counts. The trial justice reserved decision until after the jury's verdict. 7 The jury found defendant...

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