State v. Bernier, 84-186-C

• Decision Date: 26 April 1985
• Docket Number: No. 84-186-C,84-186-C
• Citation: 491 A.2d 1000
• Court: Rhode Island Supreme Court
• Parties: STATE v. Roger L. BERNIER. A.

Page 1000

491 A.2d 1000

STATE v. Roger L. BERNIER.

No. 84-186-C.A.

Supreme Court of Rhode Island.

April 26, 1985.

Arlene Violet, Atty. Gen., Thomas Dickinson, Sp. Asst. Atty. Gen., for plaintiff.

Charles J. Rogers, Jr., Providence, for defendant.

OPINION

SHEA, Justice.

This is an appeal by Roger L. Bernier (Bernier) from his conviction in Kent County Superior Court of sexual offenses involving two minor females. Bernier was charged under two separate indictments and after trial was found guilty under indictment No. K2/82-265 of first-degree sexual assault in violation of G.L.1956 (1981 Reenactment) §§ 11-37-2 and -3, second-degree sexual assault in violation of §§ 11-37-4 and -5, and simple assault in violation of § 11-5-3. Under indictment No. K2/82-266, Bernier was found guilty of first-degree sexual assault, one count of second-degree sexual assault, and solicitation to commit a crime in violation of § 11-1-9.

Bernier was sentenced to fifteen years' imprisonment, five years suspended, for each first-degree sexual assault; three years' imprisonment for each second-degree sexual assault; three years' imprisonment for solicitation to sell a controlled substance; and six months' imprisonment on the assault charge, all sentences to run concurrently. We sustain the defendant's appeal and remand the case for a new trial.

On appeal, Bernier essentially raises three issues: (1) the trial justice erred in consolidating the two indictments for trial, (2) the trial justice erred in refusing to allow the introduction of evidence involving one of the victim's prior sexual activities with other persons, and (3) the trial justice erred in permitting evidence of other sexual contact between defendant and one of the victims not part of the present indictment into evidence while refusing to allow into evidence proof of acquittal on the prior charge.

I Consolidation

The evidence presented covered a series of sexual assaults. Indictment No. K2/82-265 charged Bernier with offenses involving a neighbor, Tammy. ¹ Her testimony established that in the summer of 1979, when she was twelve years old, she accompanied her parents to Bernier's home to help work in his yard. Bernier asked Tammy to come into the house to help him prepare some drinks to serve. Once inside, he lured her to the basement bathroom, showed her sexually explicit photographs, removed some of her clothing, and put his mouth to her vagina. He warned her not to tell anyone. She said that she was afraid to tell her parents.

A few days after the incident just described, Tammy testified, she visited the Bernier home to play with his daughter. He again lured her into the house, removed his pants, and forced her to put her hands on his penis. Shortly after this incident, Tammy told her parents about what had happened. Tammy's mother testified that the family had decided against filing charges in 1979 because they feared that the ordeal of testifying in court would be too much for twelve-year-old Tammy.

Tammy encountered Bernier again in February of 1982. At that time, she was working the neighborhood newspaper route and had stopped at the Bernier home to collect. Bernier, claiming to have only a $20 bill, invited her inside to wait while he looked for change. Once inside, he embraced her and pressed his chest to her breasts, but she struggled free and escaped.

The second indictment, No. K2/82-266, charged Bernier with offenses involving Carolyn, ² the daughter of a close friend of Bernier's wife. Carolyn testified that she had known the Bernier family all of her life. At one time Bernier had purchased a dress for her to wear to a prom. Later, when he told Carolyn that she "owed him" for the dress, she, misunderstanding his meaning, offered to babysit for his son. Bernier responded by grabbing her and touching her breasts. She said she was afraid of him but told her mother only that he'd "made a pass" at her and pleaded with her mother not to confront Bernier about the incident.

The next episode testified to by Carolyn took place on Halloween, October 31, 1981. She had arrived at Bernier's home to take his young son out trick-or-treating. Bernier sent the boy out with another girl and detained Carolyn. He then touched her breasts, grabbed her arms, and forced her to take his penis into her mouth. On a later occasion, when visiting his home, Bernier took Carolyn with him on an alleged errand to a local store. Instead, he took her to the Pawtuxet Yacht Club in Cranston Rhode Island, where he forced her to engage in sexual intercourse on his boat.

During the trial, Carolyn testified, over objection, about an earlier encounter that had occurred in October 1981, which was not part of the indictment in this case. That episode also took place at the yacht club. When they arrived at the yacht club, Bernier warned Carolyn that if she told anyone about what was about to happen, he would kill her. She testified that he struck her face, pushed her to her knees, and forced her to engage in oral sex with him. She was fifteen years old when this incident occurred. She testified that she was too frightened to report the incident to her mother at the time. The October 1981 activity at the yacht club formed the basis of a separate indictment and trial for sexual assault in Providence County Superior Court that resulted in a not-guilty verdict.

On another occasion, in December 1981, during a visit at his home, Carolyn testified, Bernier took her into a room, gave her a quantity of marijuana, and ordered her to sell it. He then grabbed her hand, forced her to her knees, and again forced her to engage in fellatio.

By February 1982 Carolyn was living at Caritas House, a residential facility rendering treatment to persons with emotional problems and problems involving alcohol. Carolyn explained that when her counselor began to discover her history of sexual assaults, Carolyn decided to run away because she was afraid that if she revealed too much to her counselors, Bernier would kill her. She left the facility and called Mrs. Bernier for a ride to her mother's house. When the car arrived, Carolyn discovered that it was Roger Bernier alone who had responded to her call. He again forced her to perform oral sex upon him in the car and threatened to kill her if she told anyone.

The consolidation of the above two indictments for trial forms the basis of Bernier's first challenge on appeal. His attack is premised on the contention that he was prejudiced because of inadequate notice that the two indictments would be tried together. Our examination of the record, however, persuades us that there was no real prejudice. While formal consolidation occurred just prior to trial, both cases, numbered consecutively on the calendar, had been called ready on six occasions, beginning months before the trial date and up to three days before the trial began. The joinder of the two indictments, on the state's motion, was well within the discretion of the trial justice. His decision in favor of joinder will not be disturbed on review absent clear abuse. State v. Young, R.I., 414 A.2d 185 (1980). In this case, both indictments involved sexual offenses of a similar character committed under similar circumstances. Joinder is permitted under Rules 8, 13, and 14 of the Superior Court Rules of Criminal Procedure. These rules act as safeguards against harassment of defendants and unfair prosecutorial advantage and also address such public-policy concerns as the avoidance of costly and repetitive trials and the principles of due process. State v. Ride, R.I., 444 A.2d 854 (1982); State v. Young, R.I., 414 A.2d 185 (1980).

It is not sufficient for a defendant to cite the potential for prejudice. In claiming that joinder of two or more charges for trial is an abuse of discretion, a defendant must demonstrate substantial prejudice resulting from the joinder. State v. Whitman, R.I., 431 A.2d 1229 (1981). Disadvantage alone is not sufficient. State v. Sharbuno, 120 R.I. 714, 390 A.2d 915 (1978).

Our examination of the record discloses that the trial justice heard extensive argument on the matter of consolidation and carefully considered the kinds and similarities of the various charges in the two indictments. We find no evidence of either abuse of discretion or actual prejudice to defendant, nor does defendant demonstrate any.

II Evidence of Prior Sexual Acts with Persons Other Than the Accused

Bernier next challenges the exclusion by the trial justice of evidence that Carolyn had engaged in sexual intercourse with an individual other than himself. Defense counsel offered this evidence to show that Carolyn was not the innocent girl she appeared to be and that this information would be relevant on the issue of consent. The trial justice excluded the evidence. In doing so, he was acting completely in accord with the provisions of § 11-37-13, commonly referred to as the "rape shield" statute, and with prior decisions of this court. "Evidence of a woman's prior specific sexual acts with persons other than the accused is so tenuously related to whether she consented to sex with the accused that it should be excluded as lacking in probative value and irrelevant to the issue of consent." State v. Gibbons, R.I., 418 A.2d 830, 836 (1980); State v. Fitzsimon, 18 R.I. 236, 240, 27 A. 446, 448 (1893); see also McLean v. United States, 377 A.2d 74, 78 (D.C.App.1977); Ordover, Admissibility Of Patterns Of Similar Sexual Conduct: The Unlamented Death Of Character For Chastity, 63 Cornell L.Rev. 90, 106 (1977); accord, State ex rel. Pope v. Superior Court, 113 Ariz. 22, 28, 545 P.2d 946, 952 (1976); People v. Whitfield, 58 Mich.App. 585, 591-92, 228 N.W.2d 475, 478 (1975).

III

Evidence of Prior Criminal Activity--Collateral Estoppel

A

Bernier's final argument is multifaceted. Initially he challenges the admission of evidence of another sexual assault not part of the case on trial. That testimony was given by Carolyn...