State v. Brown, 91-533-C
| Decision Date | 22 June 1993 |
| Docket Number | No. 91-533-C,91-533-C |
| Citation | 626 A.2d 228 |
| Parties | STATE v. Gerald BROWN. A. |
| Court | Rhode Island Supreme Court |
The State of Rhode Island indicted the defendant, Gerald Brown, with four counts of sexual assault and child molestation. Count 1 charged the defendant with violating G.L.1956 (1981 Reenactment) §§ 11-37-8.1 and 11-37-8.2, P.L.1984, ch. 59, § 2, by digitally penetrating his daughter, Karen, 1 a person under the age of thirteen. Count 2 charged the defendant with violating the same statutory provisions by engaging in vaginal intercourse with his daughter, Karen. Count 3 charged the defendant with violating § 11-37-4, P.L.1986, ch. 191, § 1, and § 11-37-5 by engaging in sexual contact with his stepdaughter, Monique. Count 4 charged the defendant with violating §§ 11-37-8.3 and 11-37-8.4, P.L.1984, ch. 59, § 2, by engaging in sexual contact with his son, Steven, a person under the age of thirteen. The state dismissed the fourth count of the indictment pursuant to Rule 48(a) of the Superior Court Rules of Criminal Procedure.
After deliberation a jury convicted defendant on the first three counts of the indictment. The trial justice denied defendant's motion for a new trial and sentenced defendant to serve thirty years at the Adult Correctional Institutions. The defendant appeals.
The testimony at trial disclosed the following facts. Doctor Maureen Ryall of Rhode Island Hospital and Women and Infants Hospital testified that she had examined defendant's daughter for signs of physical or sexual abuse. Karen was eight years old at the time of trial. Doctor Ryall testified that Karen had scarring of the perineum, which is the skin in the area around the vaginal opening and the anus. Doctor Ryall stated that the piece of tissue partly covering Karen's vagina, the hymen, was scarred and "stretched * * * [to] at least a centimeter in diameter," twice the size that the doctor would have expected in a child Karen's age. Doctor Ryall also testified that she had performed a rectal exam of Karen and had found a "reflexed relaxation of the anal sphincter," which indicated to the doctor that "there's been some sort of pressure or fixture against the area on numerous occasions." Doctor Ryall concluded that her examination of Karen revealed findings that were "consistent with sexual abuse."
Following Dr. Ryall's testimony, Karen testified concerning the sexual abuse. Karen said that defendant would ask her if she wanted to play a game and then defendant would "put his private into my private." Karen also testified that defendant would "be taking his fingers and pushing it into me, my private." Karen said that this activity continued for about two years. Although Karen stated that she did not know how many times defendant abused her, she testified that it happened a lot. Karen also testified that defendant warned her, "Don't tell anybody or I'll hurt you real bad."
The defendant's stepdaughter, Monique, testified concerning the count-3 charge that defendant had engaged in sexual contact with her. Monique said that at some point between January and June of 1986, when she was twelve or thirteen years old, she stayed home from school because she was sick. Monique stated that defendant told her on that day that he had heard that there was a virus "going around" and that he needed to examine Monique's body. Monique testified that defendant had her lie on her bed, felt her upper body, including her breasts, and then felt and opened her vagina.
The defendant took the stand and denied these charges. The defendant denied ever having sexually assaulted Karen. Concerning the incident with Monique, defendant stated that the nurse at Monique's school had told him that there was an outbreak of measles and chicken pox and that the nurse had instructed defendant to check for red blotches under Monique's arms, on her chest, and behind her knees. The defendant denied ever having touched Monique's vagina.
In defense, counsel questioned defendant and Sandra Furlong (Furlong), the ex-wife of defendant and the mother of Karen, Steven, and Monique, concerning their stormy marital relationship. The defendant testified that he and Furlong had filed for divorce on three separate occasions. The defendant also said that although a Family Court justice had granted defendant supervised visitation rights pertaining to Karen and Steven, Furlong refused to allow him to see his children. The defendant stated that Furlong told him that he would never see his children again.
Furlong also testified concerning these matters. She stated that she was extremely upset on November 4, 1988, the date that a Family Court justice granted defendant the right to visit with Karen and Steven in a supervised environment because "my children were scared to see [defendant]." Furlong stated that it was not until the day after the Family Court justice granted defendant visitation rights that Karen told her that defendant had been abusing her sexually.
Defense counsel used this evidence in closing argument and argued to the jury that defendant had been falsely accused. Defense counsel asserted that Furlong had manipulated Karen and Monique into falsely accusing defendant after Furlong learned that defendant would have the right to visit with the children. Notwithstanding this argument and the other points raised by defense counsel in closing argument, the jury convicted defendant on three counts of sexual assault and child molestation.
On this appeal, defendant raises three points of error: (1) that the trial justice erred in allowing Dr. Ryall to testify concerning the rectal examination the doctor had performed of Karen because this evidence went beyond the bill of particulars, was irrelevant, and was prejudicial, (2) that the trial justice erred in refusing to grant defendant's motion for judgment of acquittal on the second-degree-sexual-assault charge involving defendant's stepdaughter Monique, and (3) that the trial justice erred in refusing to allow defendant to present rebuttal testimony. We address each of these arguments in turn.
Prior to trial, defense counsel moved for a bill of particulars pursuant to Rule 7(f) of the Superior Court Rules of Criminal Procedure, requesting that the state identify Karen's precise genital and/or anal openings into which the state alleged that defendant had intruded. In addition defense counsel requested the state to identify the part of the body or the object with which the state alleged defendant had intruded into Karen's body. Viewing the indictment and the state's response to the motion for the bill of particulars together, the state indicated that pertaining to count 1 of the indictment, the state alleged digital penetration of the vagina and pertaining to count 2 of the indictment, the state alleged penile penetration of the vagina.
As noted earlier in this opinion, Dr. Maureen Ryall testified at trial concerning her rectal examination of Karen and her finding of evidence of rectal penetration. Defense counsel objected to the admission of this evidence, asserting that this evidence regarded rectal penetration, that the bill of particulars limited the state's proof to the issue of vaginal penetration, and that in light of Rhode Island law regarding the effect of a bill of particulars, this evidence was inadmissible. In addition defense counsel asserted that because this evidence was outside the scope of the bill of particulars, it was irrelevant and prejudicial to defendant and therefore inadmissible.
We agree with defendant that the trial justice should have either excluded this evidence or admitted the evidence with a limiting instruction. However, upon review of the entire record, and in light of the independent evidence suggesting vaginal penetration, we conclude that the trial justice's decision to admit Dr. Ryall's testimony concerning her rectal examination of Karen without a limiting instruction was harmless beyond a reasonable doubt.
We begin by analyzing defendant's assertion that Dr. Ryall's testimony regarding the rectal examination was inadmissible pursuant to Rhode Island law regarding bills of particulars. We have written that the primary purpose of a bill of particulars "is to supply the defendant with such particulars as are necessary in order that judicial surprise is avoided at trial." State v. Collins, 543 A.2d 641, 654 (R.I.1988) (citing LaFave & Israel, Criminal Procedure, § 19.2(f) at 717-18 (1985)).
We also have held that a jury may not convict a defendant of acts not charged in the indictment or the bill of particulars. State v. Brown, 574 A.2d 745, 748-49 (R.I.1990). In Brown the state charged the defendant with various sex crimes and the defendant requested a bill of particulars identifying, among other information, the instrumentalities of penetration. The state responded, identifying the defendant's fingers, his penis, and a banana as the instrumentalities of penetration. Id. at 748. At trial the trial justice admitted evidence that the defendant had penetrated the victim with a rubber penis. In addition the trial justice instructed the jury that it could convict the defendant if the jury found sexual penetration "by any object." Id. at 747.
We held in Brown that the trial justice committed error in two respects. First, we stated that the bill of particulars restricted the state to the allegations set forth in the bill and that the trial justice's admission of evidence that went beyond the bill was error. Id. at 748. Second, we held that the trial justice erred in instructing the members of the jury in a manner that allowed them to convict the defendant of an uncharged act, the...
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