38 A.3d 18 (R.I. 2012), 2009-380-C.A., State v. Vieira

Docket Nº:2009-380-C.A.
Citation:38 A.3d 18
Opinion Judge:FLAHERTY, Justice
Party Name:STATE v. Jose VIEIRA.
Attorney:Virginia M. McGinn, Department of Attorney General, for State. Janice M. Weisfeld, Office of the Public Defender, for Defendant.
Case Date:March 07, 2012
Court:Supreme Court of Rhode Island

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38 A.3d 18 (R.I. 2012)




No. 2009-380-C.A.

Supreme Court of Rhode Island.

March 7, 2012

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Virginia M. McGinn, Department of Attorney General, for State.

Janice M. Weisfeld, Office of the Public Defender, for Defendant.




In August 2009, a jury found the defendant, Jose Vieira, guilty on five counts of second-degree child molestation, for which he was sentenced to concurrent terms of

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twenty-five years on each count, with twelve and a half years to serve and twelve and a half years suspended, with probation. On appeal to this Court, the defendant argues that the trial justice committed reversible error when she (1) denied his motion to pass the case because of the prosecutor's remarks during final argument and (2) admitted hearsay testimony of the complainant's mother about statements the complainant made to her. For the reasons set forth in this opinion, we deny the appeal and affirm the judgment of conviction.

Facts and Travel

It was not uncommon for eight-year-old Sherry 1 to be left in the care of her Aunt Karen and her aunt's boyfriend, defendant, while Sherry's mother worked. Sherry sometimes spent the night at Karen's apartment, and from time to time she was left alone with defendant. Karen and defendant had two daughters of their own, aged four and one, at the time of the incidents set forth in the indictment. Sherry said that she always had a good relationship with defendant, but that things changed after he began to touch her inappropriately.

Sherry complained that she had been sexually molested by defendant on five separate occasions at the apartment defendant shared with Karen. On each of those occasions, Sherry said, defendant approached her, reached underneath her clothing, and used his fingers to touch her on the inside of her vagina. Sherry said that the incidents lasted for a couple of minutes, after which defendant would say nothing and leave the room. She testified that on one occasion, after defendant touched her in the bathroom, he said " [d]on't tell anybody."

Sherry explained that she did not tell anyone about what was occurring because she was scared and thought something might happen to her and her mother if she revealed that she was being abused. But, after the fourth incident of molestation, Sherry revealed to a friend what had been happening. That friend encouraged Sherry to tell her aunt Karen, and she did. Soon thereafter, Karen confronted Sherry and defendant, at which time defendant denied the allegations. At trial, Sherry testified that after the confrontation, defendant approached her, asked why she told Karen, and said to her " you could have told me and I would have stopped." 2

After Sherry told her mother, Lynn, that she no longer wished to go to defendant's home, a concerned Lynn met with Karen, who then disclosed Sherry's allegations to her. Lynn then asked Sherry what had been occurring at Karen's home, and Sherry told her mother that defendant had been touching her inappropriately. Lynn immediately called Sherry's godmother, a social worker. After consulting with Sherry's godmother, Lynn contacted the Rhode Island Department of Children, Youth and Families, and the Bristol police.

The police officer who spoke to Lynn testified that he did not take any statements from Sherry, but asked her generally if she had been " touched in inappropriate places" by defendant and that she said " [y]es." The officer further explained that according to department protocol, because Sherry answered in the affirmative, he stopped the conversation and brought in a female law enforcement advocate. Later,

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Sherry was brought to the Child Advocacy Center, where young children involved in child molestation cases are interviewed.

On July 7, 2006, defendant was charged with five counts of first-degree child molestation involving the digital penetration of Sherry. At the conclusion of the trial, a jury found defendant guilty of five counts of second-degree child molestation.

Standard of Review

" It is well settled that a decision to pass a case and declare a mistrial are matters left to the sound discretion of the trial justice." State v. Lynch, 19 A.3d 51, 60 (R.I.2011) (quoting State v. Barkmeyer, 949 A.2d 984, 1007 (R.I.2008)). It is the trial justice who " is in the best position to evaluate the effects of any prejudice on the jury, by virtue of [her] having a ‘ front row seat’ at the jury trial." Id. Therefore, " this Court will reverse the trial justice's ruling only if it was clearly wrong." State v. Nelson, 982 A.2d 602, 607 (R.I.2009) (citing State v. Mendoza, 889 A.2d 153, 158 (R.I.2005)). " [D]etermining the admissibility of evidence is squarely within the purview of the trial justice." State v. Johnson, 13 A.3d 1064, 1065-66 (R.I.2011). When we review the admission of evidence under the deferential standard of abuse of discretion, the " trial justice's ruling will be upheld unless abuse of discretion that prejudices the complaining party is shown." State v. Brown, 9 A.3d 1240, 1247 (R.I.2010) (citing State v. Flori, 963 A.2d 932, 941 (R.I.2009)).

However, this Court strictly " adheres to the ‘ raise or waive’ rule, which requires parties to raise an issue first in the trial court before raising it on appeal." State v. Figuereo, 31 A.3d 1283, 1289 (R.I.2011); see DeMarco v. Travelers Insurance Co., 26 A.3d 585, 628 (R.I.2011); State v. McManus, 990 A.2d 1229, 1237 (R.I.2010) (" According to our well settled ‘ raise or waive’ rule, if an issue was not preserved by specific objection at trial, then it may not be considered on appeal." ) (citing State v. Pacheco, 763 A.2d 971, 976 (R.I.2001)). Also, we consistently have " held that if ‘ the introduction of evidence is objected to for a specific reason, other grounds for objection are waived and may not be raised for the first time on appeal.’ " In re Jazlyn P., 31 A.3d 1273, 1280-81 (R.I.2011) (quoting State v. Ucero, 450 A.2d 809, 815 (R.I.1982)); see State v. Hallenbeck, 878 A.2d 992, 1017-18 (R.I.2005).


A. Closing Argument

The defendant argues that the trial justice erred when she refused to grant defendant's motion to pass the case after the prosecutor made " wholly improper remarks" to the jury during closing argument. He contends that no cautionary instruction could dispel the prejudice resulting from those inappropriate comments and that the only suitable remedy was to declare a mistrial.

Before trial, the trial justice had ruled on a number of pretrial motions, including defendant's motion in limine that sought to prevent Lynn from testifying about certain changes in Sherry's behavior and demeanor during the time of the alleged molestation. The trial justice ruled that Lynn would be allowed to " testify to any changes of [Sherry's] behavior * * * she's entitled to talk about physical changes she observed or other changes she observed with her daughter's behavior." However, the court explicitly precluded Sherry's mother from " draw[ing] any conclusions or mak[ing] any statements as a result of that." The court then also ruled sua sponte that the prosecutor would be prohibited from drawing " any conclusions during her argument."

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At trial, evidence was adduced that during the time that the state alleged Sherry was being abused, she was reluctant to visit defendant's home, experienced nightmares, had trouble sleeping, and began bedwetting. When she made her closing argument, the prosecutor addressed that evidence, saying:

" Next was the testimony of her mother, [Lynn]. She told you about the way that [Sherry] was behaving during the six month period when we now know she was being molested by the defendant, that over that six-month period [Sherry] grew more and more reluctant about going over to the defendant's house, calling to come home, not wanting to go. She started to become withdrawn, angry and started wetting her bed. These are all signs of a troubled child. We know now why she was troubled. We know now what was going on. The defendant was molesting her. And that's why she was acting that way."

The defendant made a timely objection, and moved to pass the case. The trial justice agreed that the prosecutor had " cross[ed] the line" and went too far by using the word " troubled." 3 Nonetheless, when she responded, the trial justice denied the motion to pass, observing that although she " would have preferred her to use different language," she was unable to say it was " not accurate or correct." The trial justice noted that bedwetting was not normal behavior for an eight-year-old child, and that it was indeed a sign of trouble. Significantly, the trial justice ruled that the prosecutor's language was not so inflammatory that it could not be corrected, and she indicated that she would address the issue through a jury instruction because she " certainly [did] not think it [was] so prejudicial and damaging to this case that the matter is passed." When she instructed the jury on the role of closing arguments, the trial justice said:

" Let me tell you before I go any further what is not evidence in the case. * * * [T]he statements of counsel that I spoke to you [about]...

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