State v. Rivera

Decision Date12 February 2010
Docket NumberNo. 2008-100-C.A.,2008-100-C.A.
Citation987 A.2d 887
PartiesSTATE v. Jose RIVERA.
CourtRhode Island Supreme Court

Christopher R. Bush, Department of Attorney General, for Plaintiff.

Martin D. Harris, Esquire, for Defendant.

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

OPINION

Chief Justice SUTTELL, for the Court.

The defendant, Jose Rivera, appeals from a judgment of conviction, after a jury trial, of two counts of first-degree sexual assault, four counts of second-degree sexual assault, and one count of simple assault. On appeal, the defendant presents four grounds for reversal of his conviction. He contends that: (1) the complaining witnesses were not competent to testify at trial; (2) the trial justice erred in denying his motion to sever the trial counts; (3) the denial of his motion for new trial was an abuse of discretion; (4) the testimony of the complaining witnesses was not competent, legally sufficient, or otherwise credible; and (5) it was error for the trial justice to permit the state to lead the complaining witnesses during direct examination. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

I Facts and Travel

Mr. Rivera was employed as a bus driver in the RIde division of the Rhode Island Public Transit Authority (RIPTA), beginning on June 9, 2003. The RIde division provides transportation to people living in Rhode Island needing door-to-door service, such as the developmentally disabled and the elderly.

In 2005, Mr. Rivera drove five separate routes providing transportation to people attending the Adeline LaPlante Memorial Center (LaPlante Center), a private organization that provides services for children and adults with developmental disabilities. Mr. Rivera picked up his assigned passengers, drove them to the LaPlante Center, and assisted passengers as they got on and off the RIde bus.

The defendant's convictions stem from allegations that Mr. Rivera sexually assaulted three developmentally disabled women in June and July 2005. During this period, the three complaining witnesses in this case, Tracy, Elaine, and Deborah,1 were passengers on two of Mr. Rivera's bus routes.

A Tracy

Tracy, then thirty-seven years old, has a severe developmental disability. Tracy worked at the LaPlante Center for four years prior to the alleged assaults, and she took the RIde bus to the LaPlante Center each day. Tracy testified that Mr. Rivera sexually assaulted her twice when they were alone together on the bus.

The first sexual assault allegedly occurred in the RIde bus while it was parked in the woods.2 Tracy testified that defendant removed her pants, and she hit her head against the corner of the bus window. Tracy further stated that defendant touched her breasts under her bra without her consent. The defendant, according to Tracy's testimony, also touched his penis to her vagina. She further testified that "[h]e tried to go inside with mine." Tracy stated that she told Mr. Rivera, "no, stop it" and "[p]lease, stop it."

The second assault allegedly occurred while the RIde bus was parked behind a church. According to Tracy's testimony, Mr. Rivera and Tracy were alone together on the bus when he removed her socks, pants, and one of her shoes. She said defendant touched his penis to her "private area in front" and touched her breasts under her clothing and bra. Tracy further testified that "[a]ll white stuff came out" of defendant's penis and that she told defendant to stop, but he continued to assault her. Mr. Rivera told Tracy, according to her testimony, not to tell her parents, or she would get in trouble. Tracy stated that when she arrived home, she told her mother that she had to wash her hands because she had "sticky stuff" on them.

Tracy testified that she ultimately reported the incident to her mother, although she was too scared to tell her mother at first. Tracy said that she first spoke to Deborah about Mr. Rivera and, some time after, they both told their mothers about the assaults. Her mother testified that she remembered the day she got off the bus and was not acting like herself, but her mother could not recall the exact date.

On July 13, 2005, Tracy went to a physician's assistant, Josephine Barns-Brown, and, according to Ms. Barns-Brown, Tracy reported that she had lumps on her "pee-wee" and her left inner thigh. Ms. Barns-Brown testified that she was unable to determine the exact date of the assaults, that Tracy's hymen was intact, and that Tracy's mother had not found blood in Tracy's underwear. Although Tracy testified that she had lumps on her breasts and hip, Ms. Barns-Brown testified that she did not find any such lumps or bumps.

Mr. Rivera denied assaulting Tracy and, in fact, testified he was never alone with Tracy on the bus. The defendant stated that when he announced to his passengers he was going to be transferred to another route, Tracy was "angry, upset" and was in "tears." Tracy testified that she told defendant "you're not going anywhere; you're going to be my bus driver." Tracy indicated that she wanted to get Mr. Rivera fired because she was upset that he was changing routes.

Detective Patrick Strickland testified that he spoke to Tracy's mother in the course of investigating the allegations against defendant. Tracy's mother reported, according to Det. Strickland, that Tracy told her that defendant "exposed his penis to her [and] asked her if she wanted to play a game," but that defendant never touched her. Detective Strickland testified, however, that when he spoke with Tracy, she reported, consistent with her own testimony, that defendant vaginally raped her and touched her breasts over and underneath her clothing. Tracy reported to Det. Strickland that this occurred while defendant and Tracy were alone together on the bus, parked in the woods.

B Elaine

Elaine, then twenty-two years old, has a developmental disability stemming from a seizure disorder. Elaine testified that one morning she was on the RIde bus parked in front of the LaPlante Center and defendant asked Corey, another passenger, to move from the seat next to Elaine. According to her testimony, Mr. Rivera sat next to her and used the palm of his hand to rub her breast area underneath her clothing and bra. The defendant also allegedly used his first finger and hand to touch her "privates" underneath her underwear. Elaine stated that she used taekwondo training to attempt to block Mr. Rivera's advances and told him to stop. Elaine further testified that there were five other passengers on the bus when the assault occurred.

Elaine alleged that Mr. Rivera assaulted her on one occasion. When Elaine went into the LaPlante Center the morning of the assault, she approached Danielle Fournier Cole, an employee of the LaPlante Center at the time of the alleged assault, and told her that the bus driver had touched her inappropriately. Ms. Fournier Cole testified, contrary to Elaine's testimony, that Elaine reported she had been touched a couple of times that week. Although the date of the assault is not apparent from the record, Ms. Fournier Cole prepared a statement documenting Elaine's report on July 22, 2005.

Two passengers on the RIde bus testified that they witnessed Mr. Rivera assault Elaine. Corey confirmed that he was sitting next to Elaine when defendant told him to move. According to Corey's testimony, defendant then sat next to Elaine and touched Elaine's chest, her legs, and "in a private part." Corey stated that he observed the alleged assault by looking in a mirror mounted above the driver's seat of the bus. Katherine, another passenger, testified that she saw defendant touch Elaine's breast and vagina.

At trial, defendant elicited testimony to establish facts suggesting Elaine had a motive to fabricate the allegations against him. The defendant attempted to establish facts that (1) tended to show Elaine sought revenge against defendant for reprimanding her on the bus; (2) Elaine had a propensity to lie, especially that she had a propensity to make false accusations of sexual assault; and (3) the three complaining witnesses shared stories of defendant's sexual assault before reporting the incidents to authority figures, implying that they had colluded to make such allegations.

Mr. Rivera testified that he reprimanded Elaine and a male passenger, Emil, for being "intertwined" on the bus, "kissing, hugging and carrying on." The defendant further testified that Elaine and Emil were "furious" at him for intervening. The defendant stated he reported the situation to employees of the LaPlante Center a day or two prior to Elaine's accusation of sexual assault.

During the trial, defendant questioned Brenda Centracchio, a state social worker at the LaPlante Center, about a "status sheet" she prepared that indicated Elaine's mother thought Elaine had a grudge against Mr. Rivera for reprimanding her. The trial justice, however, did not permit the questioning to continue, and he did not allow the admission of the "status sheet" as a full exhibit, ruling that it constituted double hearsay.

Supporting defendant's theory that Elaine had a propensity to lie, Elaine's mother testified that she did not, at first, believe her daughter had been assaulted because some LaPlante Center attendees had started a "pathological liars club" and they were "trying to one up each other." The defendant unsuccessfully sought to introduce other evidence suggesting Elaine had a propensity to lie; namely, that Elaine previously had made a false accusation against both Emil and another person. The defendant questioned Elaine about the alleged incident between Elaine and Emil, and Elaine denied that he had "done anything physically inappropriate," but noted that Emil had "kissed [her] and stuff like that when [she] didn't want to." The defendant also questioned Elaine's mother about whether Elaine had accused other people of touching her...

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