State v. Pereira

• Decision Date: 15 June 2009
• Docket Number: No. 2007-194-C.A.,2007-194-C.A.
• Citation: 973 A.2d 19
• Parties: STATE v. Paul PEREIRA.
• Court: Rhode Island Supreme Court

973 A.2d 19

STATE v. Paul PEREIRA.

No. 2007-194-C.A.

Supreme Court of Rhode Island.

June 15, 2009.

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

Catherine Gibran, Office of Public Defender, for Defendant.

Present: GOLDBERG, Acting C.J., FLAHERTY, SUTTELL, ROBINSON, JJ., and WILLIAMS, C.J. (ret.).

OPINION

Justice FLAHERTY, for the Court.

The defendant, Paul Pereira, appeals from judgments of conviction for sexual offenses against both his daughter and his niece, ensuing from separate incidents that occurred some sixteen to twenty-one years apart. The state filed an indictment in the Providence County Superior Court, charging Pereira with one count of first-degree child molestation sexual assault against his daughter, Amy, in violation of G.L.1956 §§ 11-37-8.1, 11-37-8.2 (count 1), one count of second-degree sexual assault against his niece, Kim, in violation of §§ 11-37-4(A), 11-37-5 (count 2), and one count of second-degree child molestation sexual assault against Kim, in violation of §§ 11-37-8.3, 11-37-8.4 (count 3).¹ After a trial, held in September 2006, a jury returned a guilty verdict on counts 1 and 2, but found the defendant not guilty of the charges alleged in count 3. Pereira was sentenced to forty years imprisonment at the Adult Correctional Institutions, with twenty-five years to serve on count 1, and a concurrent term of fifteen years, with ten years to serve, on count 2.

On appeal, defendant argues that the charges against him pertaining to the sexual abuse of his niece, alleged to have occurred between June 26, 1982, and May 10, 1984 (count 2), and between May 11, 1984, and December 9, 1984 (count 3), were misjoined with the sexual-molestation charges against him with regard to his daughter that allegedly occurred between July 8, 2000 and November 3, 2003 (count 1). The defendant also maintains that the trial justice erred when he denied defendant's motion to sever the counts in the indictment, resulting in real and substantial prejudice against him and creating a considerable doubt about whether he received a fair trial. In addition, defendant submits that count 2 of the indictment should have been dismissed because of a violation of the ex post facto clauses of the state and federal constitutions. Further, defendant argues that the trial justice erred when he allowed a witness to testify about a prior consistent statement that Amy made when she reported the abuse by her father. As a result of the alleged errors, defendant contends that his convictions should be reversed and a new trial ordered. For the reasons stated below, we affirm the judgments of conviction.

Facts and Travel

A call to Amy to "come downstairs I have something for you" are the words that the young nine-year-old girl testified led her into her father's bedroom. Amy recalled that the summons occurred sometime after she began kindergarten and that she was in her grandmother's upstairs apartment when her father called to her from the bottom of the stairs of her family's first-floor apartment.² After her father called to her, Amy dutifully walked down the stairs and into his bedroom, where he placed her on his bed, pulled down her pants and underwear, and inserted his fingers inside her "chixona."³ Amy testified that "[i]t hurt" and that his hand "was moving." She remembered that she went back upstairs after this episode and that she did not tell anyone what had happened because she was scared.

Amy recalled that eventually she told her mother what had happened to her, but she did not recall when or where she was when she revealed the abuse. Amy's mother, Mrs. Pereira, testified that she became concerned in October 2003 because when she bathed Amy, the young girl would complain that her private parts "bothered her." Mrs. Pereira testified that she told defendant about Amy's complaints, but that he dismissed them as fabrications and he convinced her not to bring Amy to the doctor. Then, on November 3, 2003, Mrs. Pereira's concern for her daughter heightened because during more recent baths, Amy had insisted that her vagina hurt and because she seemed dismayed and would look seriously at her mother while remaining very quiet.

Mrs. Pereira testified that the next day, she decided to take Amy to the home of her friend Lucy in Fall River, Massachusetts. Lucy had a grown daughter with whom Amy had become close, and Mrs. Pereira thought that Amy might open up to her. Lucy testified, over defendant's objection, that on November 4, 2003, Mrs. Pereira brought Amy to her home because she was troubled about Amy's complaints during her baths. Lucy testified that she asked Amy what part of her body was hurting her during her baths, and Amy started to cry. Amy then pointed to her vagina. Lucy asked whether anyone had touched her there. Amy continued to cry, somberly looked down, and said that it was her father who had touched her with his fingers.

Mrs. Pereira testified that after she and Amy returned home later that day, her brother called the police. On cross-examination, however, she acknowledged that before the police were called, she went to her brother's house and first contacted a lawyer. The next day, on November 5, 2003, she met with the lawyer, and she withdrew half the money from a joint bank account that she and her husband had maintained. She also testified that she filed and was granted a divorce from her husband, and as a result of a settlement, the family home was conveyed to her.

On November 6, 2003, Mrs. Pereira brought Amy to the Child Advocacy Center (CAC). There, Amy underwent a physical examination, and she was evaluated for signs of abuse. At trial, the director of the child protection program at Hasbro Children's Hospital testified that Amy's physical examination was normal, neither ruling out nor confirming that she had suffered any abuse. The director also testified that according to the agency's report, Amy had refused to answer any questions about the abuse and that she remained quiet and attentive, answering only simple questions.

On January 16, 2004, Mrs. Pereira brought Amy back to the CAC. During this second visit, Amy reported the abuse to the agency. She indicated that her father had touched her "a long time ago," and she answered questions about some of the circumstances surrounding her allegations of abuse. She reported that her father had been wearing pants and a shirt when he touched her, that her grandmother and her mother had been upstairs in her apartment, cooking, and that her brother also had been upstairs, watching television. The counselor inquired whether she had been touched in any other places, and she said no. The counselor also asked Amy whether she had touched her father's body; she replied that she had not.

When defense counsel cross-examined Amy about her visits to the CAC, she acknowledged that during the first visit in November 2003, she did not reveal to anyone that her father had touched her. Defense counsel then asked her whether she had talked to anyone about her father in the interim, between her first and second visits to the CAC. She replied that she had spoken to her mother and to her cousin, Kim. She said that Kim told her that Pereira had been "bad" to her too, disclosing that he had done "the same thing" to her.

Kim, who was thirty-one years old at the time of trial, testified that when she was young, Pereira was her favorite uncle. As a child, she saw him every weekend. Pereira and his mother (Kim's grandmother) would visit Kim's home in Central Falls every other weekend. On the alternating weekends, Kim and her family would visit her grandmother's home in Fall River. Kim testified that on the weekends in Central Falls, the family had to share bedrooms because of a lack of space. She said that she would give her room to her grandmother, and she would have to sleep in her parents' room with Pereira.

Kim testified that at bedtime, during weekend visits, when she was between seven and a half and nine and a half years old, Pereira would expose his penis and place her hand on it. With his hand, he would guide her hand up and down. Although he had her touch him in this manner, she testified that he never touched her. According to Kim, this event happened every weekend that Pereira and his mother came to visit. She remembered that defendant's abuse of her ceased around the time that she turned ten years old, which was when he started dating Mrs. Pereira.

Kim also recalled that while she was putting away groceries on the evening of November 4, 2003, Pereira came into her home and frantically walked through the kitchen into her grandmother's room. A little while later, she talked to her aunt, who informed her about what Pereira had done to Amy. Kim recalled that she told her aunt to order Pereira to leave the house. She then overheard Pereira say, "I know that I did it to [Kim], but I didn't do it to my daughter."

Pereira filed several pretrial motions that the Superior Court denied and that are now before us on appeal. On October 19, 2005, a justice of the Superior Court heard defendant's first motion to dismiss. Pereira argued that the indictment contained charges that extended beyond the statute of limitations and that violated the ex post facto clauses of the state and federal constitutions.⁴ The motion justice denied defendant's motions, but he also allowed the state to amend the indictment.

The state amended count 2 of the indictment on April 14, 2006. As amended, count 2 charged Pereira with second-degree sexual assault against Kim, under § 11-37-4(A), between June 26, 1982 and May 10, 1984, instead of child molestation under § 11-37-8.1. Pereira filed another motion, this time before the trial justice, asserting that the amended count 2 violated the ex post facto clauses of the state and federal constitutions. The trial justice heard and denied the motion, citing the law of the case. See State v. Infantolino, 116 R.I. 303, 310, 355...