State v. Dipetrillo

• Decision Date: 17 May 2007
• Docket Number: No. 2005-88-C.A.,2005-88-C.A.
• Citation: 922 A.2d 124
• Parties: STATE v. Craig DiPETRILLO.
• Court: Rhode Island Supreme Court

922 A.2d 124

STATE v. Craig DiPETRILLO.

No. 2005-88-C.A.

Supreme Court of Rhode Island.

May 17, 2007.

Aaron L. Weisman, Esq., Providence, for Plaintiff.

John A. MacFadyen, III, Esq., Providence, for Defendant.

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

OPINION

Justice GOLDBERG, for the Court.

This case came before the Supreme Court on October 3, 2006, on appeal of the defendant, Craig DiPetrillo (DiPetrillo or defendant), from a Superior Court judgment of conviction of first-degree sexual assault, digital penetration, and second-degree sexual assault, breast contact. The defendant was found guilty on both counts in a jury-waived trial and was sentenced to twenty years at the Adult Correctional Institutions, with six years to serve, on the first-degree sexual assault charge and a concurrent term of ten years, with two years to serve, on the second-degree sexual assault charge. The defendant moved for a new trial based on newly discovered evidence. After an evidentiary hearing, the trial justice denied the new trial motion and this appeal ensued.

Before the Supreme Court, defendant assigns two errors of law: (1) the trial justice erroneously defined the elements of first-and second-degree sexual assault as it applied to the evidence adduced at trial; and (2) the trial justice erred in denying defendant's motion for a new trial. The defendant requests that the convictions be vacated and that the case be remanded to the Superior Court for a new trial. For the reasons stated in this opinion, we affirm in part and vacate in part and remand the case to the Superior Court for additional findings, based on the record, and the entry of a new judgment in accordance with this opinion.

Facts and Travel

The incident that gave rise to these convictions occurred in the early evening of March 20, 2002. The facts leading up to the alleged assault and the events of the evening in question largely are not in dispute.

The complainant, whom we shall refer to as Jane, was nineteen years old when she began working for DiPetrillo as a draftsperson at his North Providence business, Aeriel Designs. At that time, Jane was studying architectural building and engineering at the New England Institute of Technology (New England Tech). She was hired by DiPetrillo, then thirty years old, as a draftsperson to work on projects for both commercial and residential clientele.

On Wednesday, March 20, 2002, DiPetrillo asked Jane to work late, purportedly to assist in setting up a design library in the company's basement. Because other employees had stayed late to pitch in the week before, Jane felt obliged to forgo her evening class at New England Tech so that she could stay and help defendant. The work day ended at 4:30 p.m., but rather than begin work on the project immediately, DiPetrillo suggested that he and Jane run some "errands" first. DiPetrillo then drove the two of them to a Chinese restaurant to pick up takeout food, then to a liquor store to buy a twelve-pack of beer, and finally to his house, where defendant changed his clothes. The pair returned to the office at 5:30 p.m. and consumed the food, and two beers each, before commencing work around 6:15 p.m.

The defendant offered Jane another beer, which she consumed, and he then asked her to come into his office to sort magazines. DiPetrillo offered her a fourth beer, which she drank while defendant sat behind his desk. DiPetrillo then asked Jane to come over to his desk. When she did so, he grabbed her by the wrist, pulled her onto his lap, and began kissing her. According to Jane, she initially did not react and she kissed him back. But then she protested, telling DiPetrillo "we can't do this" and that he was her boss. According to Jane's testimony, DiPetrillo physically moved her from his lap onto the seat of the chair. With his hands placed on each of the chair's arms, he stood over her and continued kissing her; he also put his hand under her shirt and touched her breast.

At trial, Jane testified that at this point she was in fear, tried to avoid the kissing by moving her face away, and repeatedly told defendant to "stop it; he was my boss, we couldn't do this." She also tried to stop him from touching her breast by telling him several times "no, we ha[ve] to stop" and then pushing his hand away. This resistance was unavailing. DiPetrillo continued his assault by pulling Jane's pants and underwear down to her knees and then digitally penetrating her vagina with one of the fingers of his right hand for approximately a minute. Scared and in shock, Jane again told DiPetrillo "we have to stop;" she stood up, restored her clothing, and attempted to walk away. The defendant grabbed her around the waist, and forcibly held her there while he masturbated, spilling some of his ejaculation on her stomach. Although Jane tried to push him away, he would not release her until he had finished masturbating.

Jane then walked away, stopped in the bathroom to clean up, and then carried a box of magazines to the basement. According to Jane, "Mr. DiPetrillo [then] came downstairs to the basement [ ] to see what [I was] doing, and I told him I was done, I was going to get going, and he pushed me up against and he kissed me." The defendant then said, "we shouldn't tell anybody about what happened." At approximately 7:30 p.m., Jane left the building.

The next day, defendant had Jane bring him lunch and repeated that "[they] shouldn't tell anybody about what had happened." Later that day, in the context of expressing her discomfort about traveling with DiPetrillo on an upcoming business trip, Jane confided in a supervisor and disclosed the events of the previous evening.

Later that night, Jane also spoke to a former employer about the assault. She then spoke with a Woonsocket police officer, who put her in contact with North Providence police. The following Monday Jane called in sick and gave a statement to the North Providence police. She quit her job the next day. In due course, a grand jury returned a two-count indictment against defendant.

The defense was consent. DiPetrillo testified at trial and essentially recounted the same series of events, but insisted that he had also performed cunnilingus on Jane, who, he said, was a willing participant. Indeed, at the close of the evidence, the trial justice and defense counsel engaged in the following colloquy:

"The Court: The only issue is whether or not these alleged — well, not alleged, there were sexual encounters, as has been described, as has been indicated by the defendant himself on the stand. The only issue is whether or not [the s]tate can prevail on its claim that these sexual encounters occurred as a result of force and coercion?

"[Defense Counsel]: That is correct, Your Honor.

"The Court: As opposed to your claim, that is to say, your client's claim whatever sexual encounter occurred was consensual?

"[Defense Counsel]: Exactly."

Significantly, at no point did defendant challenge the sufficiency of the evidence, either during trial, or in posttrial motions. Nor did defendant request specific findings by the trial justice based on Rule 23(c) of the Superior Court Rules of Criminal Procedure.¹

On September 18, 2003, after a four-day trial, the trial justice issued a bench decision and found defendant guilty on both counts. He declared that "[h]aving considered all of the evidence presented, I am well satisfied beyond a reasonable doubt that the defendant is guilty as charged of both counts in the indictment, and a verdict of guilt shall be recorded as to those two charges." The trial justice noted that the sexual activity alleged in the charges against defendant was not contested; what was in dispute was whether the activity was "procured by force or coercion" or was consensual, as defendant claimed.

In light of the issues raised on appeal, we shall set forth that portion of the trial justice's decision that pertains to the elements of force or coercion. The trial justice held as follows:

"Generally speaking, force or coercion means overcoming the victim of sexual assault through the application of physical force or violence, against her will, and without her consent.

"It also includes compelling the victim to submit by threatening to use force or violence, and the victim reasonably believed that the defendant had the present ability to carry out such threats. The [s]tate need not prove that a defendant actually, or by words spoken, expressly threatened his victim, because a threat may be implied as well as express. In other words, the victim need not have actually heard any threatening words in order for her to have reasonably been in fear of her assailant.

"Force or coercion may also consist of the imposition of psychological pressure upon a person who, under all of the circumstances, is vulnerable and susceptible to such pressure.

"The law recognizes that a command by someone who has a position of authority and who is forcibly able to back up that authority, need not be accompanied by an explicit threat in order for such a command to be effectively and inherently coercive.

"One must also bear in mind that in the prosecution of criminal sex offenses the law expressly holds that the testimony of the victim need not be corroborated. In other words, the testimony of [Jane], if credible, is sufficient by itself to support a finding of guilt. No additional confirming or supplementary evidence is required.

"In this case, the defendant contends [Jane] consented to the sexual conduct and that it was not forced upon her. The defendant does not have the burden of proving the defense of consent. If, however, a defendant raises such a defense, it is the [s]tate's burden to negate it beyond a reasonable doubt. In other words, the [s]tate must prove that the sexual activity occurred, not as a result of [Jane's] consent, but as a result of the defendant's force or coercion."

The trial justice,...