State v. Gomes
| Decision Date | 18 February 1997 |
| Docket Number | No. 95-565-C,95-565-C |
| Citation | 690 A.2d 310 |
| Parties | STATE v. Ernest GOMES. A. |
| Court | Rhode Island Supreme Court |
This case came before us on the appeal of the defendant, Ernest Gomes (Gomes or defendant), from a judgment of conviction entered in the Superior Court for the County of Providence upon a jury verdict finding him guilty of two counts of first-degree child-molestation sexual assault in violation of G.L. 1956 § 11-37-8.1 and one count of second-degree child-molestation sexual assault in violation of G.L. 1956 § 11-37-8.3. The trial justice sentenced the defendant to twenty years' imprisonment on each count, to be served concurrently. In support of his appeal the defendant raises five issues. In respect to each issue raised by the defendant we are of the opinion that the trial justice has not committed error. We therefore deny the defendant's appeal and affirm the convictions below. The facts of this case insofar as they are pertinent to this appeal are as follows. Additional facts will be supplied as needed to discuss the issues raised on appeal.
In June of 1993, the victim, whom we shall call Fran Doe, was seventeen years old. She went to the Providence police department and filed a complaint, alleging that she had been sexually molested by her maternal grandfather over a period extending from the time when she was five years of age to when she was eleven. Her grandfather, defendant Ernest Gomes, was sixty-seven at the time the allegations of child molestation were made.
Charges were presented to a grand jury, which returned true bills on all five counts of child-molestation sexual assault. Prior to trial the state dismissed one of these counts under Rule 48(a) of the Superior Court Rules of Criminal Procedure because of a statute-of-limitations problem. Trial went forward on the four remaining counts, which related to molestation that had occurred when the victim was eleven years old. Trial occurred before a jury on November 3 to 15, 1994.
By way of background Fran testified that when she was five years old, she was very close to her grandfather. She and her mother lived in Providence, and she would visit her grandparents often since they lived nearby. She testified that defendant was always very affectionate toward her; he would hug and kiss her and pet her all over. He also gave her a special nickname, "Mikey," because like the child in the now-classic Life cereal commercial she liked to eat everything. She testified that the nickname and the affection he showed her made her feel special, as did her perception that he gave her more attention than he did her cousin who was about Fran's age and lived with her grandparents at the time.
The victim testified that this relationship took a more sinister turn, however, when her grandfather began to have her watch pornographic movies with him. She reported that this activity occurred in the den of Gomes's house late at night when everyone else was asleep and when Fran had stayed over because her mother was working late. At first defendant would have her dance around clothed, then later unclothed, imitating the actors in the pornographic movies. When Fran was seven defendant started to have her manually stimulate him and perform fellatio on him, once again telling her to imitate the actors in the pornographic movies.
Gomes then separated from his wife, Fran's grandmother, and moved in with his daughter, Fran's mother, whom we shall call Carol Doe. Fran, her brother Brian (who was eleven years older than the victim), and Brian's friend, Robert (who was nine years older), lived at this same house. Fran testified that the sexual molestation continued at this new location, with incidents occurring regularly over the year that they lived there. When Fran was in the fourth grade, that is, about nine years of age, her family, including defendant, moved to a new house in Providence. Soon thereafter a family friend, Helene Page, also moved into the household. The defendant lived in an upstairs apartment at this new home. The two events for which defendant was convicted both occurred at this final location.
One incident occurred when defendant was sitting on a rocking chair watching television in his apartment. Fran was sitting on the floor between his legs, defendant pushing her head towards his genitals. Knowing what he wanted from past incidents, she performed oral sex upon him. The other counts were based on an act of intercourse.
During this second incident defendant called downstairs for Fran to bring up some popcorn. When she brought it upstairs, he was sitting in a rocking chair, watching a basketball game. He motioned for her to sit on his lap. When he got up to go to the bathroom, she sat in his rocking chair. When defendant returned, he smelled of gin. Fran got up and sat on his bed in order to allow him to sit down in the chair. The defendant then came to her and, leaning over her, began to kiss her neck. He then knocked her back onto the bed and had penile intercourse with her. She testified that this hurt and that she bled onto the mattress. The defendant then got up and told her to clean off the mattress.
Fran testified that two weeks later defendant again attempted to molest her. He stopped when Fran's brother returned home. Shortly after this last incident defendant had a serious fight with Fran's mother during which he physically attacked her, only stopping when Fran's brother intervened. The defendant left his daughter's house and subsequently reconciled with and moved back with his wife. Because of the animosity created by this fight, Fran had no subsequent contact with her grandfather.
When she was approximately fourteen years old Fran transferred from a religiously sponsored high school, where she had been a good student, to Classical High School. Shortly thereafter she began having problems with her mother. After one particularly serious incident she was removed from her mother's home and placed in a thirty-day residential treatment program run by the Department of Children, Youth and Families (DCYF) and designed to provide counseling to children at risk.
After having been placed in this program, she contacted the social worker assigned to her and revealed the incidents of molestation perpetrated by her grandfather. She then informed her mother.
After the state rested, the trial justice dismissed one count of the indictment, which had alleged digital penetration, for lack of evidence.
At trial Gomes presented a number of witnesses in an attempt to establish two contentions. Through these witnesses he first claimed that he had had no opportunity to commit the crimes. Second, he suggested that Fran had fabricated the charges to put herself back into the good graces of her mother after having been removed from the house. He alleged that she was then persuaded to bring the criminal charges by her mother. Under the defense theory, it was contended that having made the charges, she was now forced to go forward with them. The defendant did not testify.
The defense also contended that Fran had rarely, if ever, been left alone with defendant. Fran's mother, Carol Doe, was portrayed as a very protective person who had always ensured that Fran was carefully watched even though Carol worked long hours at her job. Testimony suggested that Fran was never left home alone with defendant because he drank excessively. On the second contention, testimony showed that the family was seriously divided and that Carol, as well as others in the family, had volatile tempers. Carol would get angry and not talk to family members. Testimony also suggested that Carol had more than ample reason to be angry with defendant.
After the jury returned guilty verdicts on the remaining counts, the trial justice denied a motion for new trial. He noted in this respect:
The defendant's issues on appeal are addressed in the order of presentation in defendant's brief.
The defendant first argues that each prospective juror should have been individually examined outside the presence of other jurors in respect to his or her personal experiences with sexual abuse or molestation. He contends that only the trial justice, both parties' attorneys, and a stenographer should have been present during this questioning. He claims that the highly personal and sensitive nature of child molestation, when combined with the stigma attached to such events, made it difficult for...
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