State v. Barry

• Decision Date: 16 November 2009
• Docket Number: No. 2008-191-C.A.,2008-191-C.A.
• Parties: STATE v. Wendy BARRY.
• Court: Rhode Island Supreme Court

982 A.2d 1050

STATE v. Wendy BARRY.

No. 2008-191-C.A.

Supreme Court of Rhode Island.

November 16, 2009.

Virginia M. McGinn, Department of Attorney General.

C. Daniel Schrock, Esq.

ORDER

This case came before the Supreme Court on October 28, 2009, pursuant to an order directing the parties to appear and show cause as to why the issues raised in this appeal should not summarily be decided. The defendant, Wendy Barry, appeals from a jury verdict finding her guilty of two counts of first-degree child molestation and one count of third-degree sexual assault. The defendant was sentenced to twenty years in the Adult Correctional Institutions, with eight years to serve, twelve years suspended with probation for the first two counts, and five years suspended for count three, all sentences to run concurrently. After reviewing the memoranda submitted by the parties and hearing counsel's arguments, we are satisfied that cause has not been shown and, thus, the appeal may be decided at this time.

The facts in this case are disturbing. In 1998, twelve-year-old Jonathan¹ and his younger sister Britney visited their father, Mark, almost every weekend; the siblings' parents were divorced, and Mark lived with defendant and her infant son, Justin. Jonathan testified that one night in September 1998, after he fell asleep on the couch in the parlor,² he was awakened by defendant performing oral sex on him. Although he testified that he wanted to go home, Jonathan said nothing about the incident to defendant or his father the next morning, and waited to be picked up by his mother that afternoon. A few weekends later, Jonathan, then thirteen, came back to the house for the first time since the initial incident occurred. He testified that nothing happened that first weekend back, but during the second weekend back he again awoke in the middle of the night to find defendant performing oral sex on him and then proceeding to engage in sexual intercourse.³ He testified that he was "scared" and "didn't know what to do;" however, he never told anyone — not his teachers, coaches, parents,⁴ or best friend, Danny. Danny testified that he knew nothing about what happened,⁵ even though, according to Jonathan, similar events occurred almost every weekend for the next two years.

Jonathan kept his secret until 2005, when he was nineteen and engaged to his girlfriend (now wife), Tiffany, who is defendant's niece. In January 2005, Tiffany confronted Jonathan with a disturbing rumor. She testified that she remembered that, a few years earlier, when defendant was pregnant with another child, Brian, defendant verbally speculated about whether Brian's father was Mark or Jonathan. Although "[Jonathan] was in tears * * * and nervous," he told Tiffany about the prior sexual abuse. Tiffany alluded that he should tell the police.

After a jury trial in Superior Court, defendant was found guilty of two counts of first-degree child molestation and one count of third-degree sexual assault. On December 11, 2007, the trial justice denied defendant's motion for a new trial; defendant then appealed to this Court arguing that the trial justice clearly erred when he denied the motion for a new trial. The defendant contends that it was "incredible" that Jonathan would allow this to occur for two years and not tell his father, his best friend, or an adult—a lesson he should have learned in sexual education classes. The defendant also contends that it was illogical that defendant would perform the first lewd act in the middle of the parlor— an open area in the home.

It is well settled that this Court will not disturb a trial justice's decision denying a motion for a new trial unless the trial justice overlooked or misconceived material evidence relating to a critical issue in the case or was otherwise clearly wrong. State v. Stansell, 909 A.2d 505, 511 (R.I. 2006); see also State v. Schloesser, 940 A.2d 637, 639 (R.I.2007); State v. Morales, 895 A.2d 114, 122 (R.I.2006). When a trial justice decides a motion for a new trial, he or she "acts as a thirteenth juror and exercises independent judgment on the credibility of witnesses and on the weight of the evidence." Stansell, 909 A.2d at 511 (quoting State v. Davis, 877 A.2d 642, 646 (R.I.2005)); see also Schloesser, 940 A.2d at 639 (explaining that the trial justice must: "(1) consider the evidence in light of the jury charge, (2) independently assess the credibility of the witnesses and the weight of the evidence, and then (3) determine whether he or she would have reached a different result") (quoting...