State v. Howard
| Decision Date | 11 June 1975 |
| Docket Number | No. 74-191-C,74-191-C |
| Citation | 339 A.2d 259,114 R.I. 731 |
| Parties | STATE v. Steven J. HOWARD. A. |
| Court | Rhode Island Supreme Court |
Julius C. Michaelson, Atty. Gen., William G. Brody, Sp. Asst. Atty. Gen., for plaintiff.
Strauss, Factor, Chernick & Hillman, P.C., Stephen B. Lang, Providence, for defendant.
This is an indictment charging the defendant, Steven J. Howard, with the commission of rape in violation of G.L. 1956 (1969 Reenactment) § 11-37-1. Trial was held to a Superior Court justice sitting with a jury. The jury returned a verdict of guilty against the defendant. The defendant's motion for a new trial was denied, and he was sentenced to a term of 10 years at the Adult Correctional Institutions. On defendant's motion to reduce sentence, he was sentenced to the Adult Correctional Institutions for a term of 5 years and in addition thereto was sentenced to said Adult Correctional Institutions for an additional term of 5 years; the latter sentence was suspended, and the defendant was placed on probation for a period of 5 years to commence upon his release from the Adult Correctional Institutions on the original 5-year sentence. The case is before us on the defendant's appeal from the judgment of conviction.
The record indicates that the prosecutrix, Joyce B, was unmarried and 16 years of age on April 13, 1971, the date of the alleged incident. She was residing with her mother and a 19-year-old brother in the city of Cranston.
Joyce testified that at about 12:30 p.m. on April 13, she and a girl friend, Marianne, were driven to Fall River, Massachusetts, by Marianne's father. At approximately 1:30 p.m., while standing outside a laundry in Fall River, they saw a car in which there were four men. The men were Kenneth Blais, Roger LaPointe, a man known as Carlton, and defendant Howard. Joyce stated that she had met defendant and Blais on an earlier occasion. The men invited the girls to go for a ride with them. Marianne refused, but Joyce accepted and seated herself in the back seat between defendant and LaPointe. After driving for about 20 minutes, during which time the men were drinking beer, it was decided to go to LaPointe's summer cottage in Tiverton, Rhode Island. When the group arrived at the cottage, they gained entry by opening a screened window with a knife. Once inside, the men proceeded to drink more beer; defendant and LaPointe then left to replenish the beer supply. The prosecutrix testified that during the absence of defendant and LaPointe, Blais and Carlton made some fresh remarks to her which she ignored, and that after about 30 minutes defendant and LaPointe returned with a supply of beer.
Joyce stated that she then requested LaPointe to drive her back to Fall River, but he refused. She also asked defendant to drive her, but instead he led her into the bedroom and made advances to her. She stated that she pushed away from defendant and attempted to leave the bedroom, but the other three men came in, backed her into a corner, and threatened to beat her with canes, which they were holding, if she did not cooperate with them. She testified that at that time she was fearful the men would kill her if she resisted them.
The men then proceeded to take off her clothing, all the while continuing to threaten her with the canes. The prosecutrix testified that the four men including defendant then forced sexual intercourse upon her, in addition to other sexual activities. She further testified that by this time she was hysterical. They all departed from the cottage around 6 p.m., and the men let her out of the car in Fall River at approximately 6:30 p.m. Within 5 minutes she told Marianne what had happened, and they in turn spoke by telephone to Joyce's mother; the police were then notified.
The defendant, Howard, testified that he had met Joyce on a previous occasion and that he was in the car with the other men when Joyce accepted the invitation to join them on April 13, 1971, but that after driving around for a short time he was dropped off around 3 p.m. He then went to the Drug Center in Fall River, and the last time he saw Joyce that day she was driving off in the car with the other men.
The defendant first argues that the trial justice erred in denying his motion for judgment of acquittal. The defendant moved for judgment of acquittal at the close of the state's case and again at the close of his own case.
The rule is well established that no exception lies to the denial of a motion for judgment of acquittal made at the close of the prosecution's case. State v. Franklin, 103 R.I. 715, 241 A.2d 219 (1968). We consider, then, only defendant's appeal from the denial of his motion made at the close of his case. In considering a motion for judgment of acquittal, the trial justice must view the evidence in a light most favorable to the prosecution, give full credibility to the prosecution's witnesses, and draw from the evidence every reasonable inference consistent with guilt. State v. Moretti, 113 R.I. 213, 319 A.2d 342 (1974); State v. Rose, 112 R.I. 402, 311 A.2d 281 (1973); State v. Riffkin, 112 R.I. 308, 309 A.2d 15 (1973). The defendant concedes that this is the standard applicable in deciding motions for judgment of acquittal, and it was the standard applied by the trial justice in ruling on the motion.
The defendant bases his claim of error on the alleged failure of the trial justice to review the evidence pertaining to rape. As indicated above, the trial justice followed the rule and stated:
The defendant points out that in order to constitute rape, the carnal act must have been committed against the resistance of the woman. He argues that there is no evidence that the victim resisted or even attempted to resist, and therefore the trial justice erred in not granting defendant's motion for judgment of acquittal. It is true that the trial justice commented only briefly on the evidence pertaining to rape.
We have recently said that although force is an essential element of the crime of rape, the application of force is not necessary if there is a threat of force potentially sufficient to cause death or serious bodily harm. Where there is evidence of force or a threat of force, the question of resistance on the part of the female must be considered. The degree of resistance which will exclude the conclusion or inference that the female gave her consent is only that resistance to the force of the defendant as seems reasonable to offer under the circumstances, including the relative strength of the parties, the age and condition of the female, the uselessness of resistance, and the degree of force manifested. State v. Verdone, R.I.337 A.2d 804 (1975), citing 1 Wharton, Criminal Law & Procedure §§ 307, 308 (1957).
The transcript indicates that the prosecutrix testified that she had been raped by four men, including defendant. Testimony was also elicited from other witnesses in relation to commission of rape. There was no evidence denying the commission of rape.
The trial justice, viewing all the evidence in the light most favorable to the state and drawing all reasonable conclusions therefrom, properly denied defendant's motion for judgment of acquittal and submitted to the jury the question of whether rape had been committed. State v. DeGregory, 113 R.I. 434, 322 A.2d 52, 56 (1974); State v. Amado, 109 R.I. 53, 56, 280 A.2d 324, 326 (1971).
The defendant contends that the trial justice committed reversible error when he denied defendant's motion for a mistrial based on a question asked by the prosecutor. During redirect examination, the prosecutor asked the following question:
'Now, Joyce, after your conversation with Mr. Needham (defendant's attorney) in my presence, did he indicate whether or not he believed your story?'
The defendant's motion for a mistrial was based on his contention that the question created prejudice as it left the clear impression that defendant's attorney told the prosecutrix that he believed her story. In the absence of the jury, the trial justice, after hearing arguments from both sides as to whether the question was prejudicial, concluded that there was no prejudice and denied defendant's motion. The issue of whether a mistrial should be granted is directed to the sound discretion of the trial justice. We are not persuaded that the question objected to by defendant created prejudice sufficient to deprive defendant of a fair trial, and therefore find that the trial justice did not abuse his discretion in denying defendant's motion for a mistrial.
The defendant further contends that the trial justice erred in denying defendant's motion for a new trial, arguing that the trial justice clearly misconceived the evidence as it related to which of the men threatened the prosecutrix with canes. In order to prevail in such a situation, defendant must show that the trial justice was clearly wrong or that in reviewing the evidence, he...
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