State v. Bergevine

• Decision Date: 14 March 2008
• Docket Number: No. 2007-13-C.A.,2007-13-C.A.
• Citation: 942 A.2d 974
• Parties: STATE v. John BERGEVINE.
• Court: Rhode Island Supreme Court

942 A.2d 974

STATE v. John BERGEVINE.

No. 2007-13-C.A.

Supreme Court of Rhode Island.

March 14, 2008.

Craig Montecalvo, Esq., Smithfield, for State.

Mark Smith, Esq., North Smithfield, for Defendant.

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

OPINION

Justice SUTTELL, for the Court.

A father unexpectedly returned home to discover his neighbor performing depraved and loathsome acts upon his seventeen-month-old daughter. Exercising remarkable restraint in light of his expertise in the martial arts, the father resisted any impulse to do physical harm and called 911 instead. The neighbor, John Bergevine (defendant), now appeals from his conviction by a jury of one count of first-degree child molestation for which he received a sentence of life imprisonment. For the reasons set forth in this opinion, we affirm the judgment of conviction.

I Facts and Procedural History

Dale Matheson lived with his wife and seventeen-month-old daughter, in North Kingstown, Rhode Island, in the first-floor apartment of a three-story house. The defendant lived on the third floor of the same house. The defendant was friendly with the Mathesons and would join them for dinner and holidays. Occasionally, defendant would watch the child while Mr. and Mrs. Matheson were at work.

At trial, Mr. Matheson testified that on January 7, 2004, he left for work while his daughter and defendant were watching cartoons on television. Mr. Matheson expected defendant to baby-sit the child for about two hours until Mrs. Matheson returned from her employment. As Mr. Matheson, the head mechanic at an automobile dealership, made his way to work, he realized he had left a dealer's license plate at his home that he needed to retrieve. When Mr. Matheson returned to his apartment, he found the door locked even though he had left the door unlocked a few minutes earlier. Mr. Matheson returned to his truck, grabbed his keys, and unlocked the front door of his apartment. Mr. Matheson entered his apartment and walked into the living room, where he had left the dealer's license plate. Mr. Matheson then made his way to the bathroom and opened the door, striking defendant's leg with the door as he did so.

Next, Mr. Matheson testified, he looked around the door and saw defendant rubbing his erect penis on his daughter's vagina. She was lying on a rug with her shirt pulled up, her sweatpants taken off one leg and pulled down to the ankle on the other, and her diaper removed. According to Mr. Matheson, defendant's sweat pants were pulled down to his ankles, and one of his legs was draped over the toddler so their genitals could touch.

Mr. Matheson said that he made eye contact with defendant, then ran into the living room, picked up the telephone, and dialed 911. He told the 911 operator what he had just observed and requested that the police come to his apartment immediately. Mr. Matheson, who is a third-degree black belt, testified that he was concerned that he might seriously injure or kill defendant if the police did not arrive shortly. While Mr. Matheson was on the telephone with the 911 operator, defendant approached Mr. Matheson and began begging Mr. Matheson to hang up the telephone. The defendant told Mr. Matheson that he would "do anything" including moving away if Mr. Matheson would just hang up the telephone and forget he was there. Mr. Matheson replied, "[y]ou're lucky I don't kill you, you son of a bitch."

Mr. Matheson testified that his daughter, who was unable to dress herself, was now fully clothed and had walked out of the bathroom, through the kitchen, and into the living room toward her father. The defendant rushed toward Mr. Matheson with his fists clenched and tried to escape from the apartment. Mr. Matheson, while still on the telephone with the 911 operator, grabbed a sword and pointed it at defendant, telling defendant to "Back off!" The defendant opened up the living room window and jumped through the screen, escaping the apartment. Mr. Matheson later stated that he did not engage defendant in a physical altercation because of the child's close proximity to both men.

Mr. Matheson said that defendant then ran up the stairs to his apartment on the third floor of the building. Shortly thereafter, defendant came back down the stairs to the porch on the first floor. Mr. Matheson was also standing on the porch while still speaking on the telephone with the 911 operator. The defendant once again begged Mr. Matheson to stop speaking with the 911 operator. As the police pulled up to Mr. Matheson's apartment, defendant jumped over the porch balcony and ran away from the house. The first responding officer started a pursuit of defendant.

Detective Paul J. Barry responded to the call and arrived at Mr. Matheson's home. Detective Barry testified that he found Mr. Matheson in his apartment in an "[e]motionally traumatized" state, looking as though he had been crying. Detective Barry described Mr. Matheson as "breathing quickly. He was repeating the same words over and over again[.]" Detective Barry asked Mr. Matheson to describe what he saw happen to his daughter. While Mr. Matheson tried to tell Det. Barry what he had witnessed, his body was moving from side to side and his arms were flailing. Mr. Matheson described to Det. Barry what he had observed, employing explicitly crude anatomical references to defendant's and his daughter's genitalia.

Mr. Matheson, his daughter, and Det. Barry then traveled to Hasbro Children's Hospital, where the child first was examined by a nurse and later examined by Carole Jenny, M.D., at the Child Safe Clinic. During Dr. Jenny's examination of the child, she found an acute abrasion inside the vaginal opening. Doctor Jenny testified that this type of abrasion usually heals within twenty-four hours, meaning the injury must have occurred within the last day. Doctor Jenny further testified that the child's injury is typically seen when people attempt vulvar coitus, which she explained as occurring when a penis is rubbed in a prepubertal child's genitals.

During the trial, the state introduced into evidence, over defendant's objection, a tape recording of the 911 telephone call, as well as Mr. Matheson's statements to Det. Barry. Additionally, various photographs of the screen that defendant allegedly jumped through to leave Mr. Matheson's apartment were entered into evidence. The state also presented several expert witnesses, including Dr. Jenny, who offered her expert testimony at trial about her examination of the child at the Child Safe Clinic.

At the end of the trial, the jury found defendant guilty of first-degree child molestation. The defendant filed a motion for new trial, which was heard and denied on April 18, 2006. The trial justice imposed a life sentence on May 23, 2006, and defendant timely appealed.

II Discussion

The defendant raises three issues on appeal. He contends that the trial justice erred (1) by allowing the recording of Mr. Matheson's call to 911 to be entered into evidence, (2) by allowing Mr. Matheson's statements to Det. Barry to be entered into evidence, and (3) by denying defendant's motion for a new trial. We will address each of the issues below.

A. Admission of the Tape Recording of the 911 Telephone Call

The defendant argues that the trial justice erred by allowing a tape recording of Mr. Matheson's telephone call to the 911 operator into evidence because the statements contained therein constituted hearsay evidence. The defendant makes the same argument about the statements Mr. Matheson made to Det. Barry. The defendant maintains that both sets of statements were hearsay¹ not falling within any exception to the rule against hearsay. Rule 802 of the Rhode Island Rules of Evidence. In the alternative, defendant asserts that the trial justice abused his discretion by allowing the statements into evidence because the evidence was needlessly cumulative and unfairly prejudicial under Rule 403 of the Rhode Island Rules of Evidence² in light of Mr. Matheson's testimony in court.

It is well established that "[t]he admission of a statement under an exception to the hearsay rule is within the sound discretion of the trial justice and shall not be overturned unless clearly erroneous." State v. Ruffner, 911 A.2d 680, 689 (R.I. 2006) (quoting State v. Lynch, 854 A.2d 1022, 1038 (R.I.2004)). See State v. Torres, 787 A.2d 1214, 1222 (R.I.2002) (admissibility of an excited utterance is clearly within the trial justice's discretion and will not be overturned unless there is an abuse of discretion); Estate of Sweeney v. Charpentier, 675 A.2d 824, 827 (R.I.1996) (admissibility of the residual exception to the hearsay rule is clearly within the discretion of the trial justice and will not be overturned unless there was an abuse of discretion resulting in prejudice).

Two exceptions to the rule against hearsay are the excited utterance exception and the present sense impression exception. Rule 803(1) of the Rhode Island Rules of Evidence provides that a present sense impression is "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter[,]" and Rule 803(2) describes an excited utterance as a statement "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition."

The rationale for exceptions to the rule against hearsay is that some statements, notwithstanding their nature as hearsay, possess "sufficient circumstantial guarantees of trustworthiness so as to justify admission of the statement even though the declarant is available and could be called to testify." Rule 803 Advisory Committee's Notes. An excited utterance contains such guarantees of trustworthiness because "a startling event may produce an effect that temporarily stills the declarant's capacity of reflection and produces statements free...