State v. Gaspar
| Decision Date | 30 October 2009 |
| Docket Number | No. 2007-44-C.A.,2007-44-C.A. |
| Citation | 982 A.2d 140 |
| Parties | STATE v. Shane M. GASPAR. |
| Court | Rhode Island Supreme Court |
Lauren S. Zurier, Department of Attorney General, for Plaintiff.
John A. MacFadyen, Esq., Providence, for Defendant.
Present: GOLDBERG, Acting C.J., FLAHERTY, SUTTELL, ROBINSON, JJ., and WILLIAMS, C.J. (ret.).
Justice SUTTELL, for the Court.
The evidence adduced at the trial of this criminal case included testimony concerning a multitude of unconventional sexual practices but ultimately presented only one question for the jury's determination: did the events of the night in question constitute a mutually consensual sexual encounter between two adults or a brutal sexual assault?
The defendant, Shane M. Gaspar, appeals from a Superior Court judgment of conviction on five counts of first-degree sexual assault resulting from events that unfolded on November 8, 2003. On appeal, defendant argues for reversal of his conviction on three grounds. He contends that the trial justice committed prejudicial error by (1) permitting the state to introduce under Rule 404(b) of the Rhode Island Rules of Evidence the testimony of another woman who previously had a consensual sexual relationship with defendant, (2) allowing the state to introduce the complaining witness's hearsay statements contained in a report prepared by an emergency room physician, and (3) permitting the state's medical expert to offer an opinion about the approximate age of the complaining witness's bruising without providing any foundation for her opinion. For the reasons stated in this opinion, we vacate the judgment of the Superior Court.
Generally, the facts leading up to the night in question are not in dispute. In early 2003, both defendant and the complaining witness, Sally Smith,1 frequented a local Providence chat room on the internet. At some point, using an internet "screen name" of "IrishFriend," Ms. Smith struck up an instant message (IM)2 conversation with defendant, who was using the screen name "OCEANBENZ1," asking if he drove a Mercedes Benz. They began conversing on a regular basis over the internet, finally agreeing to meet in person.
Before the night of the alleged sexual assault, defendant and Ms. Smith had maintained regular contact over the internet for a period of many months, and they previously had met each other on three separate occasions. Before they ever met in person, Ms. Smith learned from chatting with OCEANBENZ1 that his real name was Shane Gaspar, that he was originally from Warwick, and that he owned a restaurant in Fall River. They initially met in the spring of 2003 at the Mudville Pub in Newport around 9 p.m. on a Sunday night. On that occasion, they each had one beer and talked for about an hour before taking a walk in a park under the Newport bridge. They met a second time in July 2003, when defendant brought coffee to Ms. Smith at her apartment before she left for work. That morning they had a casual conversation, and defendant stayed less than an hour. Both individuals testified that no physical contact or discussions of a sexual nature occurred during these first encounters. Ms. Smith testified that defendant came across as "very nice," "quiet," and "kind of reserved."
They met again in September 2003, at Ms. Smith's apartment, when defendant again brought over coffee in the morning. This time, however, a "pleasant" conversation led to consensual coitus. Ms. Smith described their sexual encounter as "normal," a "quickie," and she testified that they used a condom. It is at this juncture that the parties' accounts of what happened between them begin to diverge. The defendant testified that he saw bruising on Ms. Smith's body, particularly her buttocks, and asked her about it. According to defendant, she told him that she "had been a bad bad girl" and had started experimenting with sadomasochism and bondage during a recent trip to California. The defendant said that, although they had never discussed the topic of "rough sex" before, there had been some indication of this interest on her part in previous instant messages that she sent him. Ms. Smith testified that they may have discussed her recent trip to California but denied ever seeking or being involved in a "rough sex" relationship.
Five or six weeks passed after their September encounter without Ms. Smith hearing from defendant. They met again, however, on November 8, 2003, an encounter both parties agreed was precipitated by instant messaging. Ms. Smith testified that defendant instant messaged her around 3 p.m., telling her he missed her and missed having sex with her. When defendant asked if he could come over to her apartment that night, she agreed. She testified that she may have told him she "like[d] to be spanked." She described their exchange as being "just kind of like the other conversations," though they had never before "said anything about spanking." She told the grand jury, however, that their conversation was very flirtatious and that they talked about "rough sex." In a written statement Ms Smith gave to police, she wrote, "[w]e talked about sexual fantasy and rough sex online." She maintained at trial, however, that their internet conversation on November 8, 2003, did not include an agreement to engage in "rough sex" later that evening.
In any event, they agreed to meet that night, and defendant arrived at Ms. Smith's apartment around 9 p.m. Ms. Smith testified that, during what amounted to at least an hour-long conversation on the living room couch, defendant told her that, in the five or six weeks that they had not communicated, he had moved in with a woman but subsequently left because she proved to be a sex addict. The defendant testified that Ms. Smith again told him about her travels to California and her experimentation with a sadomasochistic lifestyle. He told the jury that he saw marks and bruises on her arms and legs, although Ms. Smith testified that she was wearing full-length pants and a sweater that evening. The defendant stated that he was not interested in that lifestyle, although he "wasn't judgmental about her at all." Eventually, they repaired to the bedroom. From there, the parties have wildly divergent—though equally graphic—accounts of what transpired. Ms. Smith described a brutally violent sexual assault that came as a complete surprise to her, whereas defendant recounted an evening of unorthodox, but consensual, sexual activity. We relate only the essential aspects of their contradictory testimony so as to omit its more lurid details.
Ms. Smith testified to a horrific series of events that began when defendant slapped her across the face, grabbed her hair, and put his fingers down her throat, causing her to gag. She said that she asked him to stop; and, when she told him she was going to vomit, he said, "I like puke, bitch." She then testified that defendant started to choke her, spit into her mouth and face, forced her to perform fellatio three times, once while she was sitting on the bathroom toilet, had vaginal intercourse with her twice and anal intercourse once, performed cunnilingus on her, and penetrated her with his fist on two occasions, causing her intense and excruciating pain. She further testified that throughout this ordeal defendant was controlling her by pulling her roughly by the hair, all the while slapping and biting her breasts, and uttering crude and degrading epithets.
Ms. Smith testified that, in the time since they had originally entered the bedroom, at least an hour and a half passed. She stated that she fought him as much as she could for at least an hour. She said they then lay on the bed while she devised a strategy to get him to leave her apartment. She suggested that she go with him to his restaurant and give him oral sex in the car. The defendant agreed to leave, but he told her he did not want her to accompany him. She testified that he then got up, dressed, and left the apartment; she locked the door behind him.
The defendant recounted a very different version of what transpired in Ms. Smith's apartment that night. He testified that when they were talking on the couch, she told him she wanted to teach him about her new lifestyle and made "all sorts of S & M sort of related comments." According to Mr. Gaspar, when they undressed, he saw fresh injuries already on her buttocks, breasts, shoulders, and legs. Although he testified that "S & M has never been anything I was interested in," he nonetheless complied with her requests. He said that, at her insistence, he called her names, bit her, and slapped her. He said that he was not able to bite her as hard as she desired because of four false front teeth, causing her to call him a wimp. He testified that they engaged in consensual foreplay, fellatio, and coitus. The foreplay included digital stimulation and non-aggressive spitting as a form of lubrication, but he denied penetrating her vaginally with his fist.3 The act of fellatio in the bathroom, he said, was a sexual fantasy of Ms. Smith's, and she was insistent that they do it. He said that the only time he held her hair was when she asked him to do so and that he never pulled or dragged her forcefully by her hair. Ms. Smith neither screamed nor cried, he said, nor told him "no." He told the jury that he did not force her into any sexual act and that their activities that night were entirely consensual.
The defendant agreed with Ms. Smith that their activities lasted approximately an hour and a half and that he left her apartment to return to his restaurant that night. He said, however, that they spent some time lying on the bed and opened a window to "look[] up at the stars." When he told her that he needed to leave, she offered to go with him so he could come back and stay the night, even offering him oral sex as an incentive. He said that he turned down her offer because he wanted to avoid driving from West Warwick to Fall...
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