State v. Forbes

• Citation: 925 A.2d 929
• Decision Date: 15 June 2007
• Docket Number: No. 2006-247-C.A.,2006-247-C.A.
• Parties: STATE v. Darcy W. FORBES.
• Court: United States State Supreme Court of Rhode Island

925 A.2d 929

STATE v. Darcy W. FORBES.

No. 2006-247-C.A.

Supreme Court of Rhode Island.

June 15, 2007.

Christopher R. Bush, Esq., for Plaintiff.

Catherine A. Gibran, Esq., Providence, for Defendant.

Present: WILLIAMS, C.J., and GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.

OPINION

Justice SUTTELL, for the Court.

The defendant, Darcy W. Forbes, appeals from a judgment of conviction adjudging him in violation of probation and sentencing him to serve a previously suspended thirty-three month sentence. On appeal, the defendant contends that the hearing justice's findings of fact are insufficient to support his conclusion that the defendant failed to keep the peace or remain on good behavior.

This case came before the Supreme Court for oral argument pursuant to an order directing the parties to show cause why the issues raised in this appeal should not summarily be decided. After reviewing the record and considering the parties' written and oral submissions, we conclude that the appeal may be decided at this time without the necessity of further briefing or argument. For the reasons set forth below, we vacate the judgment of conviction and remand the case to Superior Court for further proceedings.

Facts and Procedural History

Mr. Forbes pled nolo contendere on May 24, 2005, to one count of felony domestic assault and one count of felony assault. For each charge, defendant received a three-year sentence—ninety days to serve and thirty-three months suspended, with probation—to be served concurrently. Shortly thereafter, in September 2005, defendant was presented as a violator, in accordance with Rule 32(f) of the Superior Court Rules of Criminal Procedure, based upon a criminal complaint alleging that he had committed first-degree sexual assault.

A combined probation violation and bail hearing was held over three days in January 2006, at which the following evidence was adduced. The complaining witness, Darchell Gomes, testified that defendant was the father of her son and that the two had dated previously, but their relationship had ended when she learned that defendant also was dating her cousin. On September 18, 2005, she was spending the night at the home of her friend, Dawanna Crudup. Ms. Gomes said that she and some other people had been "hanging out" at the Crudup house. She said that defendant had also been at the house earlier that day, but left after only fifteen minutes.

According to Ms. Gomes, defendant returned to the Crudup house at about 11:30 p.m. and approached Ms. Gomes as she sat on the front porch engaged in a telephone conversation. When he realized she was speaking with another male, defendant took her cell phone and refused to give it back. Although she believed that defendant was only "playing around" at the time, she nevertheless went into the house to enlist the aid of Dawanna's sister to get her cell phone back. The sister, Dashonna Crudup, went out to the porch to retrieve the telephone, but returned without it, followed by defendant. Once inside the house, defendant positioned himself next to Ms. Gomes on the couch in the living room and began hugging her and telling her that he wanted the two of them to get back together. After rejecting defendant's continued advances for approximately ten minutes, she left the couch and went into Dashonna's bedroom. According to Ms. Gomes, defendant followed her into the bedroom, pushed her onto the bed, and attempted to take off her clothes. At that point, Ms. Gomes testified, Dashonna walked into the room and the activity ceased. Ms. Gomes candidly stated that she did not feel threatened by Mr. Forbes at this time, and that she "didn't take him serious because Darcy's just that kind of person."

Upon leaving Dashonna's room, Ms. Gomes and defendant returned to the living room couch, where defendant resumed his efforts to hug and kiss her. Ms. Gomes testified that when she attempted to leave the couch, defendant pulled her back by grabbing the waist of her pants. After a few minutes, defendant became angry as she resisted his advances, and he pushed her away. She went into her friend Dawanna's room, where Dawanna and Ms. Gomes's son were sleeping, and defendant followed. He closed the door and leaned against it, blocking the exit. According to Ms. Gomes, he then pulled a knife out of his pocket, held it against her stomach, and told her that if she made any noise he would kill her. Ms. Gomes testified that defendant tried to remove her pants with one hand while he held the knife in the other, but discontinued his efforts when Dashonna attempted to enter the room. He then returned the knife to his pocket and left the room. Ms. Gomes testified that she was still not scared or concerned about Mr. Forbes, and that she thought he was just "joking around."

After the incident in Dawanna's bedroom, Ms. Gomes once again returned to the living room couch, where defendant continued his sexual advances. Ms. Gomes testified that she tried to push him off of her, but defendant became more aggressive; he grabbed her hair and told her that if she did not "give it" to him, he would "take it." As she resisted, defendant unbuttoned her pants and withdrew his knife, telling her if she screamed or continued to resist he would kill her. The defendant then pulled down her pants, unzipped his own, and penetrated her; she later testified that she was not sure whether he ejaculated.

Ms. Gomes testified that defendant then pulled up his pants, told her to "stop crying you bitch" and left the house by the back door. Ms Gomes then went into Dashonna's room and told her that defendant had just raped her. Dashonna told her sister Dawanna, who told their older brother; the brother then confronted defendant, who was still in the backyard at the time. Ms. Gomes subsequently left the Crudup home and drove with a friend to the police station. After giving her statement to the police, she went to Women and Infants Hospital for a rape examination.

In recounting the events of the evening, Ms. Gomes testified that up until the time defendant allegedly raped her, she had not been threatened by his earlier actions. Rather, she believed defendant was joking around for much of the evening. Explaining why she never woke anyone up when defendant first pulled a knife on her, she said: "I didn't think he was serious" and that "when it comes to stuff like that I think he's all talk." She went on to say that "[h]e plays like that all the time" and admitted that she had not been scared or concerned.

Dashonna Crudup and Dawanna Crudup also testified for the state at defendant's probation-revocation hearing. Dashonna's recollection of the evening's events, however, conflicted in many instances with Ms. Gomes's account. In particular, Dashonna testified that she never saw defendant in any one of the bedrooms the entire night, and was never prevented from entering her sister's bedroom, as Ms. Gomes had testified. Dashonna also recalled that defendant and Ms. Gomes had been flirting all night, and testified that at one point she witnessed Ms. Gomes lying on the couch with her head in defendant's lap as defendant played with her hair. Ten minutes after she witnessed this scene between Ms. Gomes and defendant, Dashonna said, Ms. Gomes reported to her that she had been raped. Dawanna Crudup, who had been asleep on the night in question, also testified that Ms. Gomes woke her up and told her that she had been raped by defendant. She testified that she went outside to confront defendant, but did not "stick around for an answer."

Also testifying for the state was Officer Jonathan Kantorski of the Providence Police Department. Officer Kantorski testified that he received a radio broadcast at 12:30 a.m. on September 19, 2005, indicating that defendant was wanted for first-degree sexual assault. Responding to the call, he went to defendant's residence and found defendant sitting in the passenger seat of a vehicle. He said that as he approached the vehicle the windows were rolled down but after he asked defendant to step out of the car, defendant "proceeded to roll up the windows and lock the doors." The defendant then allegedly yelled through the window "she's lying. I didn't touch her." Officer Kantorski responded by telling the driver that he would smash the windows if he did not roll them down; defendant then unlocked the doors and stepped out.

The officer placed defendant under arrest and conducted a search of his person for weapons. He recalled that he found a small folding knife in defendant's shorts pocket. Ms. Gomes later identified the knife as the one that defendant used on the night she was assaulted. On cross-examination, however, the officer retracted his statement that defendant rolled up his window after the officer told him to step out of the vehicle. Rather, he remembered that defendant rolled up the windows and locked the door as the officer approached the vehicle, but that he had not yet asked defendant to step out of the car.

The only witness that the defense presented was Dennissa "Mookie" Porter, who identified defendant as her ex-boyfriend and Ms. Gomes as her cousin. She testified that she started dating defendant in October 2004, and recalled that when Ms. Gomes discovered their relationship, she would call Ms. Porter "all the time." According to Ms. Porter, Ms. Gomes was upset that defendant was denying paternity of her son, and told Ms. Porter that she would "find some way to get back at him." Specifically, Ms. Porter recalled that Ms. Gomes told her that she would "get him locked up." On cross-examination, Ms. Porter also testified that she had told Ms. Gomes of a previous incident with defendant in which he had pulled a knife on Ms. Porter, and she said that Ms. Gomes knew that defendant had gotten into trouble for that incident.

After listening to witness testimony and arguments from counsel, the hearing justice determined that defendant failed to keep the...