State v. Collins

• Decision Date: 24 May 1988
• Docket Number: No. 86-488-C,86-488-C
• Citation: 543 A.2d 641
• Parties: STATE v. David R. COLLINS. A.
• Court: Rhode Island Supreme Court

Page 641

543 A.2d 641

STATE v. David R. COLLINS.

No. 86-488-C.A.

Supreme Court of Rhode Island.

May 24, 1988.

James E. O'Neil, Atty. Gen., Thomas Dickinson, Annie Goldberg, Asst. Attys. Gen., for plaintiff.

Barbara Hurst, Janice M. Weisfeld, Asst. Public Defenders, for defendant.

OPINION

MURRAY, Justice.

This is an appeal by the defendant, David R. Collins, arising out of his conviction of kidnaping and two counts of child molestation. The defendant asserts that the trial justice committed reversible error.

He alleges as error, inter alia, that he is entitled to judgments of acquittal on both counts of first-degree child molestation because the victim was over the age at which the use of force need not be proved and the state failed to offer such proof; that the trial justice failed to properly charge the jury with respect to one or more of the elements of the crime of kidnaping; that the state failed to offer proof sufficient to sustain defendant's conviction of kidnaping; that the trial justice failed to suppress evidence and statements allegedly obtained in violation of the Fourth Amendment; and that the trial justice abused his discretion in failing to instruct the jury as to the proper manner of evaluation of the testimony of a child witness. The state filed a cross-appeal alleging as error a ruling by the trial justice excluding from evidence the contents of a suitcase. We affirm.

The facts are set forth below. Additional information is supplied when necessary in connection with the discussion of the various assignments of error raised by defendant. The defendant, a drifter who supported himself at least in part by welfare fraud through the use of phony identification, met an eleven-year-old boy, Bobby Smith (Bobby), in a liquor store where the boy sometimes played video games. The defendant, David R. Collins (Collins), an adult male, struck up a relationship with the boy. Collins gave Bobby money to play video games. He told the boy that if he ever had problems at home, Bobby could stay with him.

The defendant and Bobby offered sharply conflicting testimony as to whether Collins engaged in sexual activity with him. Bobby testified that the two repeatedly engaged in such activity throughout the relationship. The defendant denies all sexual activity with the boy. Collins naturally enough casts a wholly benign light upon the trek on which he took the boy, lasting some twenty-one months and three thousand miles. According to Collins, it was Bobby, at that time an eleven-year-old infant, who caused Collins to take him to Riverside, California, from Bobby's home in Long Beach, California, where they spent the night together.

In any event, for almost two years Collins and the boy moved from town to town and from state to state, using assumed names and counterfeit identification supplied by Collins. Each time legal authorities became aware of the two, Collins and the boy would hurriedly flee, often leaving belongings in their haste to escape the reach of the law. On at least one occasion the pair were joined by another wayward youth. Bobby testified that Collins encouraged him to bring boys into his apartment but became enraged when once a girl came to visit.

Eventually the pair landed in Rhode Island, again moving from apartment to apartment. Ironically, the police became aware of Collins when a juvenile smashed up a car belonging to Collins and died as a result thereof. The police became suspicious because Collins was exceedingly disinterested in claiming the car. The vehicle was registered under the name Robert L. Hickcox. At the time of his arrest defendant was living under the pseudonym Thomas Newman. The police determined that "Hickcox" had listed a fictitious address on his registration. They called a telephone number that they found on a piece of paper with the name Hickcox written next to it in the glove compartment of the wrecked car. "Hickcox" answered the telephone and supplied a fictitious address. The police called the number again later. This time it was answered by "Mr. Newman" who stated that he resided at the same fictitious address. He also stated that "Hickcox" had been at the apartment but had since departed. The police determined the correct address at which the telephone was located and went to investigate.

Two officers met defendant in the hallway of the building in which he and Bobby resided. One of the officers testified that when defendant saw them, he froze in his tracks "like a cat that just saw a junkyard dog." He identified himself as Thomas Newman. The police stated that they were looking for a man named Hickcox. A taxi arrived for defendant, but the police, their suspicions now thoroughly aroused by defendant's conduct, told him that they had some more questions. They dismissed the cab and instead offered to take defendant to his destination. The police asked to see defendant's apartment to determine whether Hickcox was present. After some initial hesitation defendant consented to take them in. It was then that the police first became aware of Bobby's presence. One of the officers asked defendant for identification and he produced a Massachusetts card containing the name Thomas Newman.

The police remained unsatisfied with defendant's answers and asked him to accompany them to the Lincoln State Police Barracks (Lincoln barracks or barracks) for further questioning. The defendant "was somewhat reluctant" but agreed to go. During the ride to the barracks the data on defendant's Massachusetts identification was run through the computerized data system in the National Crime Information Center (NCIC). It was determined that a person fitting defendant's description was wanted for perjury and obtaining false identification and defendant was placed under arrest.

A search of defendant pursuant to the arrest yielded an additional card in another name. A further check through the NCIC system revealed that defendant was wanted for kidnaping or child snatching in California. The victim fit the general description of the boy the police observed at defendant's apartment. The officers quickly returned to the apartment. The boy let them in and they took another quick look around the apartment because they were unsure if others were involved. The boy then acknowledged his true identity.

One of the officers, Corporal Richard H. Hurst, observed a gun and some Polaroid photographs, one of them of Bobby nude except for a Santa Claus hat. He picked them up and placed them in his pocket. Another officer, helping Bobby to locate his jacket in the bedroom, noticed an open suitcase with numerous photographs and identification cards in and around it. Some of the photographs were of other juveniles. The officer took the material with him when he left. An officer was dispatched to secure the area. A search warrant was obtained that afternoon and executed that evening.

The trial justice admitted the evidence seized from defendant's person upon his arrest. He likewise admitted the gun, which turned out to be a lifelike replica, and the pictures picked up by Corporal Hurst. He excluded the contents of the open suitcase over the objection of the state, and admitted the products of the later search pursuant to a warrant.

I

The defense moved for a judgment of acquittal or, in the alternative, a new trial. For the reasons set forth below the trial justice correctly denied both motions. State v. Wilshire, 509 A.2d 444 (R.I.1986); State v. Collazo, 446 A.2d 1006 (R.I.1982).

II

Both the state and defendant correctly urge that defendant's conviction on two counts of first-degree sexual molestation be vacated. The defendant was charged pursuant to G.L. 1956 (1981 Reenactment) § 11-37-8.1, as enacted by P.L. 1984, ch. 59, § 2. ¹ Under the terms of this provision the state need not offer proof that the act was committed against the wishes of the victim. The state is required merely to prove beyond a reasonable doubt that (1) the defendant in fact engaged in the sexual penetration of the victim and (2) the victim was thirteen years of age or under.

This court has previously been called upon to construe the meaning of the term "thirteen (13) years of age or under" as it appears in § 11-37-8.1. In State v. Jordan, 528 A.2d 731 (R.I.1987), we were constrained by our analysis of the statutory scheme enacted by the General Assembly to hold that said term applied to persons under thirteen years of age and to those who are exactly thirteen years old. Section 11-37-8.1 is inapplicable to persons after the thirteenth anniversary of birth, such as Bobby Smith. Otherwise, as a result of an anomaly in legislative draftsmanship, two statutes with radically different penalties would have proscribed the same activities, leaving the state with unfettered discretion to prosecute under either statute. 528 A.2d at 733. This court is by no means pleased that it is unable to apply § 11-37-8.1 to reach acts perpetrated upon infants who have passed their thirteenth birthdays. Unfortunately under our system of government the remedy lies with the Legislature, not with this court. We invite the Legislature to cure this anomalous situation, since we lack the power to do so ourselves.

The state concedes that the acts for which defendant was indicted occurred after the thirteenth anniversary of the birth of the victim, Bobby Smith. Because the state failed to offer proof that defendant accomplished penetration in Rhode Island when the victim was thirteen years of age or under, defendant's convictions for first-degree sexual assault are herewith vacated. ²

III

The defendant argues that the trial justice committed reversible error in failing to properly charge the jury with regard to each element of the crime of kidnaping, as set forth in G.L. 1956 (1981 Reenactment) § 11-26-1. ³ The defendant further alleges that the state failed to offer proof beyond a reasonable doubt sufficient to sustain a conviction. As will be seen, i...