State v. Perry

• Decision Date: 25 April 2018
• Docket Number: No. 2015–255–C.A.(P1/13–1113A),2015–255–C.A.(P1/13–1113A)
• Citation: 182 A.3d 558
• Parties: STATE v. Jesse S. PERRY.
• Court: Rhode Island Supreme Court

182 A.3d 558

STATE

v.Jesse S. PERRY.

No. 2015–255–C.A.(P1/13–1113A)

Supreme Court of Rhode Island.

April 25, 2018

For State: Virginia M. McGinn, Department of Attorney General.

For Defendant: Thomas M. Dickinson, Esq., Johnston.

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

OPINION

Chief Justice Suttell, for the Court.

The defendant, Jesse S. Perry (defendant or Perry), appeals from a judgment of conviction on three counts following a jury-waived trial in the Superior Court. A justice of the Superior Court found the defendant 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 two life sentences, to run concurrently, on each count of first-degree child molestation sexual assault, and a thirty-year sentence, to run concurrently with the life sentences, on the count of second-degree child molestation sexual assault. For the reasons set forth herein, we affirm the judgment of the Superior Court.

IFacts and Travel

In May 2012, Sergeant Steven St. Pierre of the Bristol Police Department was conducting an investigation concerning possible child molestation when the officer came into contact with Brian.¹ Brian directed Sgt. St. Pierre to contact Adam, the complainant, whom Brian alleged defendant had molested. Adam came forward to the Bristol Police Department; and, as a result of Adam's disclosure to authorities, defendant was arrested on January 4, 2013. On April 12, 2013, the state charged defendant with nine counts: three counts of first-degree child molestation sexual assault, in violation of § 11–37–8.1 (counts 1, 2, and 3); two counts of second-degree child molestation sexual assault, in violation of § 11–37–8.3 (counts 4 and 5); two counts of first-degree sexual assault, in violation of G.L. 1956 § 11–37–2 (counts 6 and 7); and two counts of second-degree sexual assault, in violation of G.L. 1956 § 11–37–4 (counts 8 and 9).

AThe State's Motion In Limine

On May 15, 2013, the state filed a motion in limine in the Superior Court seeking to present testimony from five witnesses about alleged incidents of defendant's prior sexual misconduct that had occurred between the years 1977 and 1980.² The state argued that the witnesses' testimony was admissible pursuant to Rule 404(b) of the Rhode Island Rules of Evidence, which provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith[,]" but can be admitted "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or to prove that defendant feared imminent bodily harm and that the fear was reasonable." The state maintained that nearly all the witnesses who had come forward with allegations of sexual abuse by defendant were involved in youth sports in Bristol, had a difficult home life, and were offered a "sports massage" prior to the sexual abuse. Accordingly, the state asserted that defendant's prior sexual misconduct was "probative of [his] modus operandi of preying on vulnerable young boys[,]" and tended to prove defendant's motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident.

The defendant opposed the state's motion in limine and maintained that the testimony was inadmissible under Rule 404(b). He cited to State v. Mohapatra , 880 A.2d 802 (R.I. 2005), for the proposition that "when the evidence offered proves prior sexual misconduct with someone other than the complainant, ‘nonremote similar sexual offenses’ are admissible under the exceptions of Rule 404(b)." Mohapatra , 880 A.2d at 806 (quoting State v. Jalette , 119 R.I. 614, 627, 382 A.2d 526, 533 (1978) ). The defendant asserted that the alleged incidents of prior sexual misconduct did not satisfy the requirements of nonremoteness and similarity as decreed by this Court. He argued that the incidents were remote from the charged acts because they occurred between the late 1970s and early 1980s, while the charged acts occurred between 1990 and 1999. Further, defendant maintained that the charged acts were not consistent with the modus operandi of the alleged prior sexual misconduct, which defendant summarized as follows: "[defendant] would use the opportunity of a sports injury, claim that he was pursuing training in massage therapy, invite the victims to his home, and would inappropriately touch the victims during the course of a ‘sports massage.’ " In contrast, defendant noted that Adam's alleged abuse was not an isolated incident that occurred under the guise of a sports massage—rather it allegedly occurred over the nine-year period during which Adam lived with defendant.

The defendant alternatively argued that the prior sexual misconduct was inadmissible under Rule 403 of the Rhode Island Rules of Evidence because it had little probative value and was "unquestionably" prejudicial. Specifically, he again asserted that the alleged prior sexual misconduct was too remote and dissimilar to be probative of his modus operandi . With respect to the evidence's risk of prejudice, defendant maintained that it was likely "that a jury would either seek to punish [defendant] for those uncharged actions or use the 404(b) evidence for its impermissible purpose * * *."

Before the trial commenced, the trial justice heard the parties on the state's motion in limine . The state cited to State v. Mitchell , 80 A.3d 19 (R.I. 2013), for the principle that when a defendant is charged with second-degree child molestation sexual assault, which is a specific-intent crime that requires proof that the defendant touched the complainant "for the purpose of sexual arousal, gratification, or assault[,]" similar instances of sexual misconduct are admissible to show the defendant's intent. Mitchell , 80 A.3d at 29 (quoting State v. Coningford , 901 A.2d 623, 630 (R.I. 2006) ). The state then discussed the similarities between the alleged prior sexual misconduct and the charged act; each incident occurred when the children were around the same age, in the same location, and involved the same act of sexual misconduct. The state maintained that the alleged prior sexual misconduct demonstrated defendant's "systematic and repeated molestation of these young boys."

The defendant disputed the state's contention that the prior sexual misconduct was probative of his intent to self-gratify. He argued that the trial justice would have to infer that "when [defendant] finished with the sports massage, he goes into a bathroom[ ] * * * [a]nd then when he comes back, the witnesses are going to draw the inference that somehow he saw something, in the form of a child's penis, went behind a closed door, and gratified himself." The defendant maintained, however, that there was no evidence of self-gratification.

The trial justice rendered her decision on the state's motion in limine . Although she was mindful of the time span between the alleged prior sexual misconduct and the charged acts, she found that "[t]he similarities between the relationship of the parties, the nature of the alleged assault and the location of the alleged assault would be so strong that the [c]ourt would find that the span of time between the alleged assaults * * * is not rendered so remote that the [c]ourt shall preclude the evidence." She determined that the 404(b) evidence was relevant to establish motive, opportunity, intent, preparation, plan, identity, and absence of mistake or accident. Accordingly, the trial justice granted the state's motion in limine and allowed the state to present testimony from witnesses about prior sexual misconduct perpetrated by defendant.

BThe State's Case

A jury-waived trial began on November 18, 2014. Below we summarize the relevant testimony adduced at trial.

The complaining witness, Adam, testified. At the time of trial, he was thirty-three years old. He testified that he first met defendant when he was eight years old and defendant was the coach of his youth football team. Adam said that defendant gave him rides to practices and games because his parents "were always working." Adam described the progression of his relationship with defendant: "It grew into going out to dinner, going to movies, and then finally it grew into sleeping over during the weekends and then moving in." He testified that he moved in with defendant at the age of twelve and described this development:

"My parents saw a huge difference in my attitude and everything. I mean, I had two older brothers who were hell for my mom, and she basically thought it was best in my, you know, interest and pretty much allowed me to stay there. He was a teacher. I mean, to them, you know—something holy, I guess, because it would save me from going with my brothers. Both my brothers got deported. He helped me in every single way he could so my parents thought it was the best thing for me."

Adam testified about the first incident of sexual abuse. He was approximately nine years old and was at defendant's house watching a television show about cancer

and circumcision. Adam, unsure of whether he was circumcised, asked defendant, who, in turn, asked Adam to show him his penis. Adam testified that defendant began washing Adam's penis in the shower. Thereafter, Adam asked defendant what "a normal penis" looked like, and in response defendant showed Adam his penis and told him if he rubbed it, it would get bigger. Adam testified that defendant's penis was erect and that defendant ejaculated. Adam testified that this incident occurred in defendant's bedroom, on defendant's bed.

Adam testified that he did not tell his parents about the incident because he was afraid and he did not understand what had happened. He said that, after this first incident,...