State v. Rosario
| Decision Date | 24 January 2012 |
| Docket Number | No. 2009–110–C.A.,2009–110–C.A. |
| Citation | 35 A.3d 938 |
| Parties | STATE v. Heriberto ROSARIO. |
| Court | Rhode Island Supreme Court |
OPINION TEXT STARTS HERE
Virginia M. McGinn, Department of Attorney General, for State.
Catherine Gibran, Office of the Public Defender, for Defendant.
Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, and ROBINSON, JJ.
The defendant, Heriberto Rosario, appeals from a judgment of conviction on two counts of first-degree child molestation. On appeal, the defendant argues that the trial justice erred in failing to grant his motion for a new trial. For the reasons set forth below, we affirm the judgment of the Superior Court.
The complaining witness, Joan,1 was born on October 21, 1993. In late May of 2007, when she was thirteen years old, Joan approached Ellen Albanese, a guidance counselor at her school. During their conversation, Joan revealed to Ms. Albanese that she had had sexual intercourse with a man whom she had met through the internet and who was twenty-three years old. Although Joan initially would not reveal the name of the man with whom she said she had sexual intercourse, the ensuing police investigation concluded that it was with defendant that she had engaged in the two alleged instances of sexual intercourse.
On August 30, 2007, a grand jury issued an indictment that charged defendant with two counts of first-degree child molestation in violation of G.L.1956 §§ 11–37–8.1 and 11–37–8.2.2
A jury trial was held in Providence County Superior Court over several days in mid-October of 2008. The state presented the following five witnesses: Joan, her sister (Jane), Ms. Albanese, Dr. Christine Barron (an expert in pediatrics and in child abuse and neglect), and Detective Douglas Allin (the detective assigned to investigate Joan's allegations). For his part, defendant opted to testify in his own behalf.
We summarize below the trial testimony that is relevant to the sole issue raised on appeal— viz., whether the trial justice erred in denying defendant's motion for a new trial.
At trial, Joan testified that she first became acquainted with defendant 3 in January of 2007 through her slightly older sister, Jane, who was then fourteen years old. Joan testified that Jane had first begun communicating with defendant on the social network website called “MiGente.” 4 Joan further testified that Jane told her that she (Jane) and defendant “were supposedly going out.” Joan stated that her own first interaction with defendant occurred when she “said hi to him once” while her sister was using a speakerphone during a telephone conversation with defendant in January of 2007.
Joan proceeded to testify that her first opportunity to communicate more extensively with defendant was on a particular day in April of 2007; on that day, while she had her sister's cell phone, Joan read a text message that defendant had sent to her sister. Joan testified that, when she saw that text message, she responded to defendant and explained that it was she who had received the text message, and not her sister. Joan further testified that defendant began asking her questions, including what her name was and how old she was. Joan testified that she told him her name and also told him that she “was in middle school” and was thirteen years old.
Joan further testified that defendant also asked her how old her sister (Jane) was; Joan added that defendant told her that Jane had informed him that “she was 25 and [that] she had four kids.” Joan responded to defendant's inquiry about Jane by telling him Jane's true age, which was fourteen. Joan testified that, after she informed defendant of her sister's actual age, he no longer wanted to speak with Jane.
It was Joan's further testimony that she continued to exchange text messages with defendant for approximately another month and a half; she added that, at some point, the tone of the conversations changed. Joan testified that defendant began to tell her that “he wanted to get with [her] and, supposedly, he wanted to have sex with [her].” Joan stated that the conversations with defendant about having sex together lasted about three weeks.
Joan further testified that in May of 2007 she and defendant made a plan for him to come to the house in Providence where she lived with her sister and her grandparents.5 Joan stated that defendant did in fact come over to the house at approximately 11 p.m. on May 4. She testified that her sister opened the door to the house for him while she remained in her bedroom, which was located in the basement of the house. Joan testified that defendant then came into her bedroom and that, other than saying “hi” to her, there was “not really” any conversation between them; she added, however, that he then began to kiss her. Joan stated that, about ten minutes after defendant's arrival, her sister came into the bedroom to get her cell phone charger. Joan testified that, when her sister entered the room, both she (Joan) and defendant were lying on the bed; Joan stated that, at that point in time, she “still had [her] clothes on,” while defendant was in his boxer shorts. She further testified that her grandparents were asleep on the second floor while defendant was in the house.
In further testifying about the events of May 4, Joan stated that, after defendant began kissing her, they had “sexual intercourse.” She stated that they were both naked and that defendant put “his penis in [her] vagina” and that “it hurt.” Joan testified that defendant then “got dressed” and said, “I'll see you tomorrow.” Joan stated that she then called her sister, who had been waiting in the living room section of the basement watching television, and her sister then opened the door for defendant to leave. Joan testified that, immediately afterwards, she told her sister what had just transpired between defendant and her.
Joan testified that defendant and she continued to exchange text messages after the May 4 encounter; she added that, two days after that encounter, defendant told her that he “didn't want to get caught” and that he was worried about going to jail.
Joan went on to testify that, some two weeks later, defendant asked her “to bunk school” 6 so that they could meet again. She stated that defendant told her that, if she were to get caught, she should “just say that [she was] 19” and that she went to Providence College. Joan testified that she told defendant that she did not want to bunk school; she said that, instead, he picked her up after school on May 14 and “took [her] to his house.” 7 Joan testified that, when they arrived, he took off her clothes as well as his own and they “had sex.” Joan stated that the sexual intercourse hurt as it had the previous time; she added that defendant used a condom on both occasions. She further testified that she was at defendant's house for about two and a half hours on May 14, during which time they did not engage in any conversation.
Joan testified that, after their second sexual encounter, she and defendant continued to exchange text messages for one or two more weeks. She stated that defendant then broke off the relationship; she said that he did so because her sister “was sending him text messages telling him to leave her [Joan] alone * * *.”
Joan next testified that, after defendant broke things off, she was upset and “felt weird” due to the fact that he was the first person with whom she had ever had sex. She testified that her behavior changed at that point in time; she stated that she “wasn't doing [her] work and [she] would just cry.” She further testified that, two days after defendant broke things off, a friend of hers noticed that she was crying during class and notified the teacher, who sent Joan to a school guidance counselor.
Joan testified that she related to the guidance counselor “everything that had happened.” The counselor then called the woman whom Joan referred to as her aunt.8 Joan stated that her aunt then took her to Hasbro Children's Hospital and that, at that point, she met with police officers.
Jane testified that she first came to know defendant “[t]hrough a friend on MiGente.” She stated that she first communicated with defendant through e-mail on MiGente and that thereafter she began speaking with him by telephone once a week. Jane testified that they communicated in this manner for about two months before they first met in person.
Jane further testified that she told defendant that her name was “Sarah,” adding that she did so because a woman named Sarah “wanted [Jane] to check up on him because she [ i.e., Sarah] couldn't always be in Rhode Island and she was interested in him.” 9 When asked by the prosecutor whether she herself was “interested in” defendant, Jane explicitly stated that she was not interested in him because she was a lesbian.
Jane further testified that the first time that she met defendant in person was in May of 2007, when he came to the house to see her sister. ( See section I A, supra.) Jane stated that defendant arrived around 9:30 p.m. and that she opened the door for him. She testified that defendant went into her sister's bedroom; she added that about an hour later she went downstairs to that bedroom in order to get her cell phone charger. She said that Joan opened the door to the bedroom; Jane testified that her sister was fully clothed while defendant was lying on the bed and “had no shirt on and his pants were unzippered [sic]” Jane further testified that defendant stayed in Joan's bedroom until around 11:30 p.m. and that Joan then called her (Jane) to ask her to “help him out of the house.” Jane further stated that she “went upstairs to talk to [her] [grandparents] while [defendant] left the house” so that “no one would see him.” She stated that her grandfather was awake during this time and was watching television.
Jane testified that she had previously overheard two telephone conversations...
To continue reading
Request your trial
-
State v. Rainey
...the facts and to judge the credibility of the witnesses.’ " State v. Whitaker , 79 A.3d 795, 804 (R.I. 2013) (quoting State v. Rosario , 35 A.3d 938, 948 (R.I. 2012) ). Therefore, "[w]e ‘will not overturn a trial justice's ruling on a motion for * * * new trial unless he was clearly wrong o......
-
State v. Whitaker
...State v. Schloesser, 940 A.2d 637, 639 (R.I.2007)). We similarly affirmed the denial of a motion for new trial in State v. Rosario, 35 A.3d 938, 948–49 (R.I.2012). There, the trial justice relied on Cerda in explaining that, although inconsistencies existed in the testimony of two witnesses......
-
State v. Virola
...A.3d 1123, 1128 (R.I.2014) (internal quotation marks omitted); see also State v. Baker, 79 A.3d 1267, 1273 (R.I.2013) ; State v. Rosario, 35 A.3d 938, 947 (R.I.2012) ; State v. Guerra, 12 A.3d 759, 765 (R.I.2011). We have repeatedly recognized that “[i]n fulfilling his or her role as the th......
-
State v. Blandino, 2016–115–C.A.
...a thirteenth juror and exercises independent judgment on the credibility of witnesses and on the weight of the evidence." State v. Rosario, 35 A.3d 938, 947 (R.I. 2012) (quoting State v. Guerra, 12 A.3d 759, 765 (R.I. 2011) ). This requires a three-step analytical process "whereby the trial......