State v. Guerrero

• Decision Date: 28 May 2010
• Docket Number: No. 2009-111-C.A.,2009-111-C.A.
• Citation: 996 A.2d 86
• Parties: STATEv.Maximo GUERRERO.
• Court: Rhode Island Supreme Court

996 A.2d 86

STATEv.Maximo GUERRERO.

No. 2009-111-C.A.

Supreme Court of Rhode Island.

May 28, 2010.

Virginia M. McGinn, Department of Attorney General, for Plaintiff.

Janice M. Weisfeld, Office of the Public Defender, for Defendant.

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

OPINION

Justice FLAHERTY, for the Court.

The single issue before this Court in this appeal is whether the trial justice erred when she denied the defendant's motion for a new trial after a jury convicted him of four counts of second-degree child molestation and one count of first-degree child molestation. Because we hold that the trial justice did not err, we affirm the judgment of conviction.

IFacts and Travel

The complaining witness, Katherine,¹ was born on September 20, 1993. In July 2006, Katherine lived on Star Street in Pawtucket with her mother, Lourdes Colon, her younger sister, Cindy, and the defendant, Maximo Guerrero, who was her stepfather. Katherine's older brother, Derrick, no longer lived with them; Guerrero had ordered him to leave the family home.² Sometime in July (the exact date is not clear from the record), Guerrero and Ms. Colon became embroiled in a heated argument, after which Guerrero left the home. Shortly thereafter, Katherine revealed to her mother that Guerrero had sexually assaulted her on several occasions. Subsequently, Ms. Colon, Katherine, and Cindy left the Star Street residence and sought refuge in a battered-women's shelter. On or about July 12, 2006, Katherine reported to the police that her stepfather repeatedly had sexually assaulted her over the course of several years.³

On November 21, 2006, a grand jury returned a six-count indictment against Guerrero. Three counts alleged first-degree child molestation sexual assault in violation of G.L.1956 § 11-37-8.1.⁴ The remaining three counts alleged that Guerrero committed second-degree child molestation sexual assault in violation of § 11-37-8.3.⁵

At trial, which commenced on October 17, 2008, the prosecution offered the testimony of Katherine, Ms. Colon, and Christine Barron, M.D., a supervisor of the child protection program at Hasbro Children's Hospital, where Katherine had been examined for signs of sexual assault. There is no question that the principal witness for the prosecution was Katherine; she testified to six specific incidents in which Guerrero allegedly committed a sexual assault upon her.

According to Katherine, the first incident (count 1 of the indictment) occurred in 2003 while Katherine, her mother, her sister, her brother, and Guerrero were living on Miller Avenue in Providence. On an unspecified date, and while the young girl's mother was in the shower, a naked Guerrero awakened Katherine. After leading her into the living room, Guerrero sat in his desk chair while Katherine sat on the adjacent couch. Guerrero then directed Katherine to masturbate him, and she did.⁶

The family moved again, this time to Douglas Avenue in Providence. Katherine testified that three incidents (counts 2, 3, and 4 of the indictment) occurred while the family lived at that location. The first incident (count 2) took place while Ms. Colon and Cindy were out shopping. Katherine said that she was in her room when Guerrero came in, grabbed her, made her bend over, and then placed his penis on, but not into, her buttocks.

The second incident (count 4) occurred when Katherine was either eleven or twelve years old. Katherine said she was sitting on the couch in the living room and watching television when Guerrero came into the living room, pulled her shirt up and proceeded to kiss her breasts. According to Katherine, her mother and sister were shopping when this incident took place.

The third incident (count 3) also occurred at the Douglas Avenue residence, probably on a Saturday morning, before Katherine, her mother, and sister went to church. Katherine testified that while Ms. Colon and Cindy waited outside for her, she was in the kitchen after having washed the dishes when Guerrero grabbed her by the arm. Katherine testified that Guerrero then unbuttoned and removed her pants, lifted her onto a table, and inserted his fingers into her vagina.⁷

The last two incidents (counts 5 and 6, respectively) occurred at the residence on Star Street in Pawtucket. Katherine said that Guerrero was in the living room and asked her to come over to him; Katherine's mother was in the kitchen at that time and her sister was in her bedroom. When she complied, Guerrero pulled down her pants and inserted his fingers into her vagina. On another occasion, again in the living room, Katherine testified that Guerrero pulled her pants down. Guerrero then brushed his penis against Katherine's buttocks. Katherine testified that her mother and sister were not in the home during this incident. Although Katherine was not able to provide specific dates for these incidents, the record indicates that they probably occurred in spring of 2006.

When asked to explain why she did not report the incidents of sexual assault earlier, Katherine testified that she was afraid of what Guerrero might do to her and to her mother. On cross-examination, defendant suggested that Katherine merely was trying to get back at him for his disciplining her, for forcing Katherine's brother to leave the house, and for the fallout between Guerrero and Katherine's mother. Although Katherine admitted that Guerrero did discipline her and her sister, she said she did not come forward with the allegations for any reason other than that he had sexually assaulted her.

At the close of the prosecution's case, Guerrero made a motion for a judgment of acquittal on two counts pursuant to Rule 29 of the Superior Court Rules of Criminal Procedure. The trial justice granted the motion on one count of first-degree child molestation sexual assault for one of the incidents at Star Street in Pawtucket because the indictment alleged a digital anal penetration, but Katherine testified only about a digital vaginal penetration. The trial justice also reduced one count of first-degree child molestation sexual assault to the lesser included offense of second-degree child molestation sexual assault because Katherine testified as to only penile-anal contact, not to any anal penetration. The defendant then rested his case, the parties made their closing arguments, and the case was submitted to the jury.

On October 21, 2008, the jury returned a verdict of guilty on all remaining counts. Thereafter, defendant moved for a new trial under Rule 33 of the Superior Court Rules of Criminal Procedure. After hearing the arguments of the parties, the trial justice denied the motion. The trial justice sentenced defendant on counts 1, 2, 4, and 6, all for second-degree child molestation sexual assault, to twenty-five years, with fifteen years to serve and a ten-year suspended sentence with ten years of probation, all to run concurrently. On count 3, first-degree child molestation sexual assault, the trial justice sentenced defendant to thirty years, with twenty years to serve and ten years suspended with ten years of probation, to run concurrently with all other counts.

The defendant timely appealed to this Court. The sole argument on appeal is that the trial justice erred when she denied defendant's motion for a new trial. Specifically, defendant argues that the trial justice abused her discretion because “the verdict was against the fair preponderance of the evidence and failed to do substantial justice between the parties.”

IIStandard of Review

We repeatedly have held that when a trial justice considers a motion for a new trial after a jury trial, “the trial justice acts as a thirteenth juror.” State v. Reyes, 984 A.2d 606, 618 (R.I.2009) (quoting State v. Texieira, 944 A.2d 132, 140 (R.I.2008)). Under these circumstances “the trial justice must (1) consider the evidence in light of the jury charge, (2) independently assess the credibility of the witnesses and the weight of the evidence, and then (3) determine whether he or she would have reached a result different from that reached by the jury.” Id. “If the trial justice agrees with the verdict, the inquiry is at an end.” State v. Stansell, 909 A.2d 505, 511 (R.I.2006) (citing State v. Banach, 648 A.2d 1363, 1367 (R.I.1994)). “In cases in which the trial justice disagrees with the verdict, he or she must then determine whether the evidence is such that reasonable minds could differ.” Id. (citing Banach, 648 A.2d at 1367 n. 1). If the trial justice communicates a sufficient justification for denying a defendant's motion for a new trial, the decision is entitled to significant deference. State v. Barry, 982 A.2d 1050, 1051 (R.I.2009) (mem.).

IIIDiscussion

On appeal, defendant argues, as he did in his motion for a new trial, that Katherine's testimony was not credible to such an extent that the jury's finding of guilt should be set aside and a new trial should be granted. The defendant contends that Katherine was “evasive” in her testimony. He also maintains that Katherine's testimony was not credible because she was unable to recall details at trial that she had testified to at his bail hearing and, conversely, she testified at trial to facts that she never testified about in her prior...