State v. Bryant

• Decision Date: 31 January 1996
• Docket Number: No. 94-273-C,94-273-C
• Citation: 670 A.2d 776
• Parties: STATE v. Roger BRYANT. A.
• Court: Rhode Island Supreme Court

Page 776

670 A.2d 776

STATE v. Roger BRYANT.

No. 94-273-C.A.

Supreme Court of Rhode Island.

Jan. 31, 1996.

Annie Goldberg, Aaron Weisman, Asst. Attys. General, for Plaintiff.

Janice Weisfeld, Paula Rosin, Asst. Public Defenders, for Defendant.

OPINION

WEISBERGER, Chief Justice.

This case comes before us on the appeal of the defendant, Roger Bryant, from a judgment of conviction entered in the Superior Court on three counts of first-degree child-molestation sexual assault and one count of second-degree child-molestation sexual assault upon a five-year-old child to whom for purposes of this opinion we shall refer as Susan (not her true name). We sustain the appeal in part and deny it in part. The facts of the case insofar as pertinent to this appeal are as follows.

The defendant at the time of the incident in question was residing in the city of Pawtucket with his wife, Sharon, and her three children, Susan, Thomas, and John (not their true names). Susan and Thomas were born to Sharon in a former marriage. The defendant's adopted daughter, Jean, learned from Susan that defendant may have sexually molested her. She confronted him with this information, and ultimately he admitted to Jean that he had shown Susan the difference between a good and a bad touch.

At trial, the evidence in support of the indictment tended to show that defendant had at some time between October 1991 and January 20, 1992, persuaded Susan to penetrate her own vaginal area with her finger (count 1). The evidence also tended to show that defendant had digitally penetrated Susan's vaginal area between October 31, 1991, and January 20, 1992 (count 2). The evidence also tended to show that defendant engaged in sexual penetration, to wit, anal intercourse with Susan between October 31, 1991, and January 20, 1992 (count 3). The evidence further tended to show that defendant on the same dates engaged in sexual contact with Susan in violation of G.L.1956 (1981 Reenactment) § 11-37-8.3, as amended by P.L.1988, ch. 219, § 1 and § 11-37-8.4, as amended by P.L.1984, ch. 59, § 2, second-degree sexual assault (count 4).

Susan testified concerning these events, and the state also presented several witnesses, including Susan's mother, who authenticated a letter written by defendant to one Thomas Hill. The state presented Detective Michael Malloy of the Pawtucket police department who interrogated defendant at the police station to which he was transported from Rhode Island Hospital after defendant had attempted suicide by slashing his wrists in a motel room. Further facts will be supplied in respect to this interrogation in the discussion of evidence submitted on a motion to suppress.

In support of his appeal, defendant raises five issues. These issues will be considered in the order in which they were raised in defendant's principal brief and in a supplemental brief later filed. Further facts will be supplied as necessary to deal with these issues.

I Did Count 1 Allege A Violation of G.L.1956 (1981 Reenactment) § 11-37-8.1?

Count 1 of the indictment charged defendant with engaging in the digital penetration of Susan in violation of § 11-37-8.1, as amended by P.L.1988, ch. 219, § 1. The evidence in support of this count of the indictment, when considered in the light most favorable to the state, establishes that Susan at the suggestion of defendant inserted her own finger into her vaginal area. There was no evidence in support of this count that defendant digitally penetrated Susan's vaginal orifice. Consequently defendant contends that his motion for judgment of acquittal should have been granted by reason of the fact that no violation of the statute was proven.

Section 11-37-8.1 defines the crime of first-degree child-molestation sexual assault in the following terms: "A person is guilty of first degree child molestation sexual assault if he or she engages in sexual penetration with a person fourteen (14) years of age or under." In § 11-37-1(8), as amended by P.L.1986, ch. 191, § 1 sexual penetration is defined as follows:

" 'Sexual penetration'--sexual intercourse, cunnilingus, fellatio, and anal intercourse, or any other intrusion, however slight, by any part of a person's body or by any object into the genital or anal openings of another person's body, but emission of semen is not required." (Emphasis added.)

The defendant argues that the evidence submitted in support of this count clearly shows that Susan penetrated her own body and that defendant did not commit any penetration of her body incident to this episode. The only evidence of defendant's participation was to the effect that defendant told Susan to insert her finger into her vaginal orifice. This is an issue of first impression in our interpretation of this statute.

Our canons of construction of statutes have often been defined. Generally when a statute expresses a clear and unambiguous meaning, the task of interpretation is at an end and this court will apply the plain and ordinary meaning of the words set forth in the statute. See, e.g., Rhode Island Chamber of Commerce v. Hackett, 122 R.I. 686, 690, 411 A.2d 300, 303 (1980); State v. Healy, 122 R.I. 602, 607, 410 A.2d 432, 434 (1980); State v. Angell, 122 R.I. 160, 170, 405 A.2d 10, 15 (1979); and First Republic Corp. of America v. Norberg, 116 R.I. 414, 418, 358 A.2d 38, 41 (1976). It is also a canon of statutory construction that the Legislature is presumed to have intended each word or provision of a statute to express a significant meaning, and the court will give effect to every word, clause, or sentence, whenever possible. State v. Reis, 430 A.2d 749, 752 (R.I.1981); Flanagan v. Pierce Chevrolet, Inc., 122 R.I. 596, 601, 410 A.2d 428, 431 (1980). Additionally "penal statutes must be strictly construed in favor of the party upon whom a penalty is to be imposed." State v. Calise, 478 A.2d 198, 200 (R.I.1984); Eaton v. Sealol, Inc., 447 A.2d 1147, 1148 (R.I.1982).

Applying the foregoing canons of construction, we are of the opinion that the state did not prove a violation of the conduct prohibited by § 11-37-8.1 as defined in § 11-37-1. In that definition "sexual penetration" is clearly and unambiguously defined as "intrusion, however slight, by any part of a person's body or by any object into the genital or anal openings of another person's body * * *." Section 11-37-1(8). (Emphasis added.)

The trial justice in effect amended this definition by including therein an interpretation that defendant engaged in sexual penetration by directing the child to insert her own finger into her vaginal orifice. Unfortunately, neither the trial justice nor this court has any authority to supplement or to amend a statute enacted by the General Assembly. State v. Calise, 478 A.2d at 201. Statutes from numerous other states have been cited that make it a crime to cause another person to penetrate his or her own body. See, e.g., New Jersey Code of Criminal Justice §§ 2C:14-1(c), which defines sexual penetration as "vaginal intercourse, cunnilingus, fellatio or anal intercourse between persons or insertion of the hand, finger or object into the anus or vagina either by the actor or upon the actor's instruction." (Emphasis added.) N.J.Stat.Ann. § 2C:14-1(c) (West 1982 & Supp.1995). Similar provisions are found in the N.H.Rev.Stat.Ann. § 632-A:1 V (Supp.1994), Va.Code Ann. § 18.2-67.2A (Michie 1950 & Supp.1995), and Minn.Stat. § 609.341 Subd. 12(2)(ii) (1994). We respectfully recommend to the General Assembly its consideration of an amendment to the statute to include provisions similar to those which have been adopted by the foregoing jurisdictions.

Consequently cases from these jurisdictions that have upheld a conviction of sexual assault when a defendant causes another person to penetrate his or her own body are not applicable or persuasive in interpretation of the Rhode Island statute. Applying our familiar standards of interpretation as set forth above, we are constrained to conclude that the state did not present evidence in support of count 1 of the indictment and that, therefore, the trial justice erred in declining to grant a motion for judgment of acquittal in respect to that count.

II The Motion To Suppress

When defendant learned that criminal charges against him were imminent for child molestation, he went to a motel in Seekonk, Massachusetts, on the night of February 15, 1992. He testified in support of his motion to suppress that he drank a large quantity of vodka and slashed his wrists. Other evidence indicates that he wrote a farewell note to his family. He was transported by the Seekonk rescue personnel to Rhode Island Hospital where he was treated and his condition stabilized. Shortly after midnight on February 16, 1992, Officer James Forrestal of the Pawtucket police department came to the hospital and found defendant awake in bed with his wrists bandaged. At about 3:20 a.m., three Pawtucket officers including Forrestal transported defendant from the hospital to the Pawtucket police station. The defendant was not interrogated until 10 a.m. on the morning of February 16. Thus his interrogation began approximately fifteen hours after his consumption of vodka and his attempt at suicide.

The interrogation was tape-recorded and memorialized the fact that defendant had been given his Miranda admonitions and that he had executed a written waiver of his right to remain silent and his right to counsel. The defendant acknowledged on the tape that he had signed the written waiver. Police Detective Michael Malloy spoke on the tape, read the waiver provision, and asked defendant if he understood his rights as they were read to him. The defendant answered that he did. The defendant further agreed to speak to Detective Malloy. He acknowledged that he had been allowed to communicate with his wife by telephone. He also acknowledged that no threats or promises had been made to him by the Pawtucket police. The conduct of the police...