State v. LaChapelle, 92-648-C

• Decision Date: 09 March 1994
• Docket Number: No. 92-648-C,92-648-C
• Citation: 638 A.2d 525
• Parties: STATE v. Richard A. LaCHAPELLE. A..
• Court: Rhode Island Supreme Court

Page 525

638 A.2d 525

STATE v. Richard A. LaCHAPELLE.

No. 92-648-C.A..

Supreme Court of Rhode Island.

March 9, 1994.

Andrew Berg, Sp. Asst. Atty. Gen. and Aaron Weisman, Asst. Atty. Gen., for plaintiff.

Paula Rosin, Asst. Public Defender, Barbara Hurst, Chief Appellate Atty. and Richard M. Casparian, Public Defender, Providence, for defendant.

OPINION

WEISBERGER, Justice.

This case comes before the court on the appeal of the defendant, Richard A. LaChapelle (defendant), from a judgment of conviction of three counts of second-degree sexual assault of a minor. The defendant raises two issues on appeal. First, the defendant challenges the jury instructions, claiming that the trial justice failed adequately to instruct the jurors regarding their consideration of evidence not set forth in the bill of particulars. Second, the defendant challenges the denial of his motion for mistrial, claiming that the state's failure to disclose pursuant to discovery requests a certain statement allegedly made by the defendant warranted granting a mistrial. We affirm the judgment of conviction. The facts relevant to the defendant's appeal are as follows.

The defendant was an assistant Scout master for a Boy Scout troop in Andover, Massachusetts. Eleven-year-old Dennis, ¹ a member of the Scout troop, had known defendant for at least three years when defendant invited Dennis to accompany him on a weekend trip to New Shoreham, Rhode Island (Block Island). With the consent of his parents, Dennis accompanied defendant to Block Island on July 11, 1986. Upon their arrival defendant and Dennis checked into a hotel. Later that evening defendant showed Dennis a deck of UNO cards and asked if he would like to play strip UNO. After Dennis agreed, defendant then added a rule that the winner was entitled to tickle the loser once he was naked. After losing several hands, Dennis was completely naked and defendant proceeded to tickle Dennis according to game rules. In the course of the tickling, defendant fondled Dennis's genitals. The defendant proceeded to lose the next several hands and when he was naked, at defendant's request, Dennis tickled defendant and fondled defendant's genitals. Dennis and defendant played several more rounds of strip UNO followed by tickling before the two went to sleep that evening.

The next evening defendant and Dennis played strip poker, which was similar to the strip-UNO game previously played, and engaged in the same fondling activity as on the prior evening. On the following morning Dennis awoke to find his pajama pants pulled down to his knees and defendant stroking Dennis's genitals.

Later that day defendant and Dennis again played strip poker, and after several hands, defendant asked Dennis if he knew what an ejaculation was. The defendant then offered Dennis fifty cents to stimulate defendant to ejaculation manually, which Dennis proceeded to do. The defendant and Dennis continued to play several more hands of cards before returning home. Before defendant dropped Dennis off at his home, he warned Dennis not to discuss the sexual conduct surrounding the card games with anyone. Out of fear, as well as embarrassment, Dennis refrained from telling anyone until December 1988 what defendant had done to him during the trip to Block Island.

The defendant was charged with three counts of second-degree child molestation of a person under thirteen years of age, and the jury convicted defendant on all three counts.

I Challenge to the Jury Instructions

Upon appeal, defendant alleges that the trial justice committed reversible error by failing to instruct the jury that evidence of sexual conduct not listed in the bill of particulars could not be considered as proof of the charges against him. In support of his position, defendant points out that the bill of particulars produced by the state identified the offensive sexual contact as a touching of Dennis's body by defendant. No mention was made in the bill of any reciprocal touching of defendant's body by Dennis. Yet, defendant asserts, at trial Dennis testified that he had fondled defendant's body several times. ² Furthermore, defendant asserts, in his charge the trial justice defined the element of "sexual contact" as the intentional touching of either the victim's or the accused's intimate parts. Because of this extrinsic evidence and over-inclusive definition, defendant argues that an express instruction was necessary prohibiting the jury from using evidence that Dennis touched defendant's body, which evidence was outside the bill, as a basis for a conviction. We are not persuaded by defendant's argument.

As we have discussed on prior occasions, the function of a bill of particulars is to apprise a defendant of the evidentiary details establishing the facts of the offense when such facts have not been included in the indictment or information. See, e.g., State v. Collins, 543 A.2d 641, 654 (R.I.1988); see also John A. MacFadyen & Barbara Hurst, Rhode Island Criminal Procedure, ch. 7 at 66-69, ch. 16 at 190-91 (1988); Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 19.4(a) at 823-24 (2nd ed.1992). The primary purpose of the bill is to avoid prejudicial surprise at trial. See, e.g., State v. Gerald Brown, 626 A.2d 228, 231 (R.I.1993).

We have discussed the relationship between a bill of particulars and jury instructions in two recent cases. First, in State v. Edmond Brown, 574 A.2d 745 (R.I.1990), we held that the trial justice erred in instructing the jury that a conviction for child molestation could be based upon a finding of penetration "by any object" when three instrumentalities of penetration were identified in a bill of particulars but a fourth was revealed at trial. We observed that even though the bill "restricted the state to reliance upon the three instrumentalities alleged therein," the trial justice negated this restriction by his broad charge that allowed the jury to consider the fourth instrumentality not set forth in the bill. Id. at 748-49.

Second, in Gerald Brown, the bill of particulars alleged vaginal penetration, but testimony of both vaginal and rectal penetration was adduced at trial. Distinguishing the jury instructions from those of the Edmond Brown case, we held that the trial justice "properly instructed the members of the jury that in order to convict defendant, they had to find vaginal penetration, the precise charge set forth in the bill of particulars." 626 A.2d at 232.

From these two cases we extract the general rule that when a bill of particulars is produced but extraneous evidence is nevertheless admitted at trial, the trial justice must charge the jurors in a manner that makes clear that in order to convict the defendant, they must find the precise charge set forth in the bill.

Upon reviewing the entire charge in the case at hand, we determine that the trial justice did just that. We note that at the outset of the charge the trial justice identified the sexual contact alleged by the state as defendant's "touching certain parts of the body of [Dennis]." Likewise, the verdict sheet read to the jury by the trial justice identified the offense as a "sexual assault on [Dennis]." Immediately thereafter, the trial justice again stressed that "the allegations of the state is [sic] that on these dates the Defendant allegedly touched the intimate parts of [Dennis]." ³ Taken as a whole, we conclude that the trial justice's instructions made quite clear to the jurors that they could only convict defendant for touching Dennis and not for making Dennis touch him. Rather than negate the effect of the bill as in the Edmond Brown case, the instructions here reinforced the limitations of the bill as in the Gerald Brown case. Thus we reject defendant's argument in respect to this issue.

In so holding, we also reject defendant's contention that the statutory definition of sexual contact incorporated into the charge negated the limitations of both the bill and other elements of the charge. Upon hearing the limiting instructions of the trial justice both before and after the definition, the reasonable juror would have understood that although the statutory definition included a touching of both the victim's and the accused's body, only a touching of the victim's body was alleged in this case. See State v. Caruolo, 524 A.2d 575, 582 (R.I.1987) (challenged instruction viewed in light of entire charge and as a reasonable juror would). To suggest that the jury would blindly apply the statutory definition, despite three instructions by the trial justice to the contrary, "would only support the assumption that jurors are unable to perform the simplest task that may be submitted to them." State v Cassey, 543 A.2d 670, 678 (R.I.1988). We therefore hold that inclusion of the statutory definition "did not cause any reasonable likelihood of prejudicial misunderstanding or confusion" on the part of the jury. Id. at 680.

We also reject defendant's argument that the trial justice should have given an additional instruction that expressly prohibited consideration of evidence that Dennis had touched defendant. As we have stated in prior decisions, as long as a charge adequately covers a requested instruction, a trial justice need not give an additional instruction in the precise language requested by a party. See State v. Tooher, 542 A.2d 1084, 1088 (R.I.1988); State v. Burke, 522 A.2d 725, 736 (R.I.1987). We believe the jury was sufficiently apprised of the evidence upon which a verdict could and could not be based, with the prohibitions inferred from the express language, sequence, and context of the entire charge. Consequently we conclude that the substance of defendant's requested instruction had in fact already been conveyed to the jury and that an additional instruction in the precise language requested by defendant was not required. See State v. Collins, 543 A.2d 641, 655-56 (R.I.1988).

II Challenge to the Denial of the Motion for...