State v. Anderson

• Decision Date: 08 June 2000
• Docket Number: No. 99-106-C.A.,99-106-C.A.
• Citation: 752 A.2d 946
• Parties: State v. Randy J. Anderson.
• Court: Rhode Island Supreme Court

752 A.2d 946

State v. Randy J. Anderson.

No. 99-106-C.A.

Supreme Court of Rhode Island.

June 8, 2000.

Present WEISBERGER, C.J., and LEDERBERG, BOURCIER, FLANDERS and GOLDBERG, JJ.

Virginia M. McGinn, Aaron L. Weisman, Providence, for plaintiff.

George J. West, Providence, for defendant.

OPINION

BOURCIER, Justice.

The defendant appeals to this Court following his conviction by a Superior Court trial jury on one count of first-degree child molestation. He asserts on appeal prosecutorial misconduct relating to the complaining victim's trial testimony, and that the trial justice committed error, both in denying his motion for a new trial and in the course of instructing the trial jury. For the reasons set forth below, we reject his appeal and affirm his conviction.

I Case Facts and Travel

The defendant, Randy J. Anderson (Anderson), married the mother of the complaining victim in August 1994. The victim, Laura,¹ was then thirteen years of age. In early 1995, Anderson began making inappropriate and lewd comments directed at Laura and engaged in suggestive sexually oriented conduct toward her that made her feel extremely uncomfortable in his presence. Anderson's behavior toward Laura soon became a subject of serious concern for her family, culminating in a family meeting in which it was decided that Anderson should not be allowed to be alone with Laura.

Nevertheless, Anderson did find opportunities to be alone with Laura, despite the familial concerns and cautions. On March 9, 1995, Laura, accompanied by her boyfriend, went to her mother's apartment after having been told by Anderson, who was at the apartment, that her mother also would be present. However, when she arrived at the apartment with her boyfriend, she found only Anderson present and was informed by him that her mother was still at work. At some point later in the afternoon, Anderson convinced Laura's boyfriend to leave, claiming that his presence would upset Laura's mother when she arrived home. After the boyfriend left, Anderson forced Laura to sit on the couch next to him and proceeded to rub her thigh while telling her how beautiful he thought she was. Without warning, Anderson grabbed Laura's hand and forced it down his pants and in contact with his genitals. She attempted to resist, whereupon Anderson held her down and proceeded to force her to perform fellatio upon him, telling her that "I love you a lot, and your mother doesn't do this for me." This fellatio-assault incident was followed by another molestation incident three days later, on March 12th, when Laura claimed that Anderson forcibly kissed her and digitally penetrated her during the course of a car ride after a family party.

In early April 1995, Laura told her father that she had been molested by Anderson, and she subsequently relayed those allegations to a social worker from the Department of Children, Youth and Families. Upon the resulting police investigation, Anderson was charged with two counts of first-degree child molestation. Following a Superior Court jury trial in October 1998, Anderson was convicted on count 1 of an indictment charging the March 9, 1995 fellatio-assault incident and acquitted on count 2 for the March 12, 1995 incident. Anderson moved for a new trial on his count 1 conviction, which was denied on October 30, 1998, and thereafter he was sentenced to fifty years, thirty years to be served, with the remaining twenty years being suspended. He was also adjudicated to be an habitual offender, pursuant to G.L. 1956 § 12-19-21 and sentenced as such to serve an additional term of ten years.

Anderson has timely appealed to this Court. On appeal, he asserts (1) that the state's prosecutor engaged in prosecutorial misconduct in that he failed to correct certain allegedly false testimony given by Laura, in violation of his Fourteenth Amendment due process rights, (2) that the trial justice was clearly wrong in denying his motion for a new trial because the trial evidence was insufficient to support guilt beyond a reasonable doubt, and (3) that the trial justice erred in instructing the jury as to the state's required burden of proof because the charge given reasonably could have been interpreted to require less than the constitutionally mandated proof beyond a reasonable doubt.

II Prosecutorial Misconduct

Anderson first asserts that certain allegedly false testimony given by Laura went uncorrected by the state's prosecutor, even though the prosecutor was aware of its falsity, thereby allowing Laura to commit perjury, and that the prosecutor compounded his misconduct by referring to this suspect testimony in his closing argument. He claims that at trial, Laura denied having conversations relating to a tattoo on Anderson's penis, while in previous sworn testimony at Anderson's violation hearing, she testified that she was aware of the tattoo on his penis through conversations prior to the fellatio-assault, both with Anderson and her mother. We conclude that his contention is without merit.

"According to our well-settled `raise or waive' rule, issues that present themselves at trial and that are not preserved by a specific objection at trial, `sufficiently focused so as to call the trial justice's attention to the basis for said objection, may not be considered on appeal.'" State v. Morris, 744 A.2d 850, 858-59 (R.I.2000) (quoting State v. Bettencourt, 723 A.2d 1101, 1107 (R.I.1999)). "Consequently, allegations of error committed at trial are considered waived if they were not effectively raised at trial, despite their articulation at the appellate level." Id. at 859 (quoting Bettencourt, 723 A.2d at 1107-08).

We note from the record before us that defense counsel, despite having had all the pertinent transcripts from the violation hearing available to him during Anderson's trial, simply did not challenge, in any meaningful manner, the controverted testimony at any point in the proceedings, nor did he avail himself of the opportunity to cross-examine Laura concerning her testimony given at Anderson's previous violation hearing relating to her knowledge of the tattoo.

Because Anderson failed to properly object during trial or otherwise challenge Laura's trial testimony regarding her knowledge of the tattoo on Anderson's penis, his assignment of error concerning this issue has not been preserved for appellate review. Even assuming, however, that the issue of Laura's testimony had been properly preserved for our review, we are of the opinion that his argument lacks substantive merit.

The record reveals that at the violation hearing, Laura testified:

"Q: * * * [W]ere you aware that the defendant had a tattoo on his penis?

"A: Um. Yes. I was up at the prison visiting Randy, and he mentioned he had a tattoo on his penis, but he never described it, and my mother just sat up and said, `I don't think we need to discuss this right now.'"

At trial, on direct examination, Laura testified:

"Q: Had there ever been any conversation between you, the defendant, and your mother during the meeting about a tattoo on the defendant's penis?

"THE COURT: Yes, or no.

"A: Yes.

* * *

"Q: And who, during that conversation of the three of you, brought up the topic of the tattoo on his penis?

"A: We had just only — the way it was brought up he came out and said, `I have a tattoo on my —' my mother stopped him and said, `We don't need to talk about this right now.'"

It is axiomatic that while there may exist inconsistencies in testimony given by a witness during trial, the mere presence of those inconsistencies does not, standing alone, constitute perjury per se. See Dowell v. Moran, 702 A.2d 1173, 1173-74 (R.I.1997)

. Based on our review of the trial record, we believe that Laura's testimony cannot, by any stretch of the imagination, be considered perjurious. Indeed, we are reluctant even to describe her testimony as inconsistent in any significant manner. Simply put, nowhere in the record is there any indication that Laura denied having knowledge of the existence and whereabouts of Anderson's tattoo, as claimed by Anderson. We reiterate that any supposed inconsistency alleged by Anderson as to Laura's knowledge of the location or specific design of the tattoo in question or conversations concerning that tattoo between Laura's violation hearing testimony and her trial testimony was an appropriate subject for defense cross-examination, a trial strategy that Anderson's counsel chose to forgo. Anderson's claim of prosecutorial misconduct is meritless.

III Motion for New Trial

Anderson next asserts that the trial justice erred in denying his motion...