State v. Caba

• Citation: 887 A.2d 370
• Decision Date: 21 December 2005
• Docket Number: No. 2004-337-C.A.,2004-337-C.A.
• Parties: STATE v. Norberto CABA.
• Court: Rhode Island Supreme Court

Page 370

887 A.2d 370

STATE v. Norberto CABA.

No. 2004-337-C.A.

Supreme Court of Rhode Island.

December 21, 2005.

Diane B. Daigle, for Plaintiff.

Marie T. Roebuck, Providence, for Defendant.

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

OPINION

Justice SUTTELL, for the Court.

A jury found the defendant, Norberto Caba, guilty on one count of assault with a dangerous weapon. On November 7, 2003, the trial justice sentenced him to ten years at the Adult Correctional Institutions (ACI), with five years to serve, five years suspended, and five years probation, concurrent with a seventy-eight-month sentence he then was serving at the ACI as a probation violator. Mr. Caba timely appealed, arguing that the trial justice erred in denying the motion for judgment of acquittal that he made after the close of the state's case and later renewed at the close of evidence. This case came before the Supreme Court for oral argument, pursuant to an order directing the parties to show cause why the issues raised in this appeal should not be decided summarily. After considering the written and oral submissions of the parties and examining the record, we discern no such cause and shall proceed to decide this case without further briefing or argument. For the reasons set forth herein, we vacate the judgment of conviction.

Facts and Procedural History

In July 2002, defendant brought his 1988 Mercedes Benz to mechanic Anel Perez at Sunset Motors, an automobile repair shop in Providence, for repairs to the vehicle's brakes, electronic dashboard displays, and air-conditioning ventilation system. At first, Mr. Perez informed defendant that the repairs would take about two days. Upon inspection, however, Mr. Perez realized that certain parts were broken and would have to be replaced. Accordingly, Mr. Perez had to either wait for the delivery of new, more expensive parts from a dealer, or take an entire day off from work and drive to a junkyard in Leominster, Massachusetts, that had the necessary used parts. At trial, Mr. Perez testified that defendant "wasn't happy" about the delay "because he wanted the car as soon as possible." To make matters worse, another Sunset Motors mechanic accidentally cracked the windshield on defendant's automobile, which Mr. Perez offered to replace free of charge.

According to Mr. Perez, Mr. Caba visited Sunset Motors "two or three days, couple times a day" to check on the status of the repairs. On July 17, 2002, Mr. Caba appeared at the repair shop approximately three times. Mr. Perez testified that defendant first arrived at around noon, and became "a little upset" when Mr. Perez explained that he needed two or three more days to finish the repairs. The defendant returned four hours later to inquire which parts Mr. Perez needed. Mr. Perez described the necessary parts and added that the automotive shop would replace the windshield last to prevent a similar accident from happening to a new windshield during repairs. The defendant became visibly "upset," demanding that Mr. Perez finish the repairs by the next morning or the mechanic would "be in big trouble."

Sometime after 6 p.m., defendant again returned to the automotive shop in a pickup truck. Mr. Perez approached the half-opened passenger window of the truck. According to Mr. Perez, defendant, from the driver's seat, asked whether the mechanic was going to fix the car "in his way or [defendant's] way." Mr. Perez testified that defendant was "very, very upset." Mr. Perez further testified that defendant then used his left hand to lift up his shirt, and with his right hand "pulled his gun" or "something like a gun" from his waistband. As he did so, defendant said, "if my car not ready for tomorrow morning 8:00 o'clock, this will be for you." Mr. Perez raised his hands and slowly walked away from the vehicle. Thereafter, defendant placed the object alleged to be a gun back into his waistband, pulled down his shirt, and drove away. Mr. Perez immediately notified the police, who apprehended defendant shortly thereafter at his place of employment. A search of defendant's person and the pickup truck, however, did not produce a gun.

Mr. Caba was charged by criminal information with assault with a dangerous weapon (count 1), and assault with a device manufactured or designed to be substantially similar in appearance to a firearm (count 2). At trial, the only witness to testify for the prosecution was Anel Perez. At the close of the state's case, defendant moved that the court enter judgment of acquittal on the count of assault with a dangerous weapon pursuant to Rule 29(a) of the Superior Court Rules of Criminal Procedure. The defendant argued that the state had failed to prove either that the object was a gun or that the object, if indeed a gun, was operable. The trial justice denied defendant's motion, stating:

"[T]here is more than sufficient evidence, if believed by the jury, to convict the defendant of this first charge. And, if they find that there is not with regard to the first charge, the Court is prepared to and will charge on the second offense which is use of a device designed to simulate a firearm. I certainly will not convict him of both because that is impossible and it has to be one or the other."

The defendant later renewed his motion for judgment of acquittal on count 1 at the close of all the evidence. Relying on the court's earlier reasoning, the trial justice also denied the renewed motion. After deliberation, the jury convicted defendant on count 1 of the information. In accordance with a jury instruction given by the trial justice, the jury did not address count 2 because it had returned a guilty verdict on count 1. Subsequently, the trial justice denied defendant's motion for a new trial. On November 7, 2003, Mr. Caba was sentenced to ten years, with five years to serve, to run concurrently with a sentence he was serving as a probation violator. Mr. Caba timely appealed, asserting that the trial justice erred in denying his motion for judgment of acquittal.

Standard of Review

Whenever this Court reviews the denial of a motion for judgment of acquittal, we apply the same standard as that applied by the trial justice; namely, we "must view the evidence in the light most favorable to the state, * * * giving full credibility to the state's witnesses, and draw therefrom all reasonable inferences consistent with guilt." State v. Higham, 865 A.2d 1040, 1048 (R.I.2004) (quoting State v. Otero, 788 A.2d 469, 475 (R.I.2002)). The trial justice is required to view "only that evidence that the prosecution claims is capable of supporting proof of guilt beyond a reasonable doubt." State v. Andrades, 725 A.2d 262, 263 (R.I.1999). If that examination does not reveal sufficient evidence to warrant a jury verdict of guilt beyond a reasonable doubt, the trial justice must grant the motion. State v. Stierhoff, 879 A.2d 425, 432 (R.I.2005).

Discussion

The first count of the criminal information charged defendant with assault with a dangerous weapon in violation of G.L.1956 § 11-5-2. To succeed on such a charge, the state must prove three conjunctive elements: "[1] any unlawful offer to do corporal injury to another[,] [2] under such circumstances as may create a reasonable apprehension of immediate injury unless the person so threatened takes action or inaction to avoid it, coupled with [3] a present ability to carry the offer into effect." State v. Jeremiah, 546 A.2d 183, 186-87 (R.I.1988). On appeal, defendant argues that the state failed to prove that the object in his waistband was a gun and, if it were a gun, that the gun was operable. As both such contentions relate to the third prong of the Jeremiah analysis, we narrow our discussion to a review of the sufficiency of the evidence from which the jury could have inferred "present ability."

In denying defendant's motion for judgment of acquittal at the close of the state's case, the trial justice predicated his ruling upon three cases: State v. Jackson, 752 A.2d 5 (R.I.2000); State v. Andrade, 657 A.2d 538 (R.I.1995); and McLaughlin v. United States, 476 U.S. 16, 106 S.Ct. 1677, 90 L.Ed.2d 15 (1986). In Andrade, 657 A.2d at 542, the defendant argued that the trial justice committed error by not granting his motion for judgment of acquittal of assault with a dangerous weapon and first-degree robbery "because there was no evidence the gun allegedly used was a dangerous weapon." A gun had neither been introduced into evidence, nor apparently ever recovered. Id. We held, however, that "[a]lthough the state did not introduce the weapon into evidence, the jury could nevertheless infer that defendant had wielded an operative pistol on the basis of his actions and statements." Id. at 543. The evidence in Andrade included the testimony of one Sharro Perron, who described being accosted in her apartment building by an armed intruder, whom she later identified as Andrade. Ms. Perron said that the intruder "pointed a silver gun at her chest five to six inches away" and took her into the basement telling her not to scream and not to call the police after he left. She testified that the episode lasted about fifteen minutes. Id. at 539. Another witness, Craig Duffin, also testified against Andrade, and identified Andrade as the man who had pointed "a steel-gray firearm" at his face and had told him to lie down on the bed as he rifled through Duffin's bureaus and closets looking for drugs or cash. According to Mr. Duffin, the intruder said, "Today's your lucky day. I'm going to let you live." Id. at 540.

In Jackson, 752 A.2d at 9, we repeated with approbation the Jeremiah definition of the crime of assault with a dangerous weapon. The defendant in Jackson was convicted of the murder of a park ranger in Roger Williams Park, assault with intent to murder a Providence police officer, and assault with a dangerous weapon on a second Providence police officer. Id. at 7-8. On...