Providence County Superior Court. (P1/10-1705A). Associate Justice Francis J. Darigan, Jr.
For State: Jane M. McSoley, Department of Attorney General.
For Defendant: Kara M. Hoopis, Office of the Public Defender.
Present: Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ. Justice Indeglia did not participate.
The defendant, Darnell Hie, appeals to this Court from a November 17, 2011 judgment of conviction after a jury found him guilty of two counts of second-degree child molestation sexual assault in violation of G.L. 1956 § 11-37-8.3. On appeal, the defendant contends that the trial justice erred in refusing to declare a mistrial and in denying his motion for a new trial. This case came before the Supreme Court pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After a close review of the record and careful consideration of the
parties' arguments (both written and oral), we are satisfied that cause has not been shown and that this appeal may be decided at this time.
For the reasons set forth in this opinion, we affirm the Superior Court's judgment of conviction and its denial of defendant's motion for a new trial.
Facts and Travel
The complaining witness, Jessica, was born on November 12, 1994 and was seventeen years old at the time of trial, in November of 2011. According to her testimony, on November 2, 2009, at the age fourteen, Jessica disclosed to her cousin Sarah (who was also her classmate) that defendant, Jessica's stepfather, had sexually molested her multiple times when she was in the third grade. It was Jessica's testimony that, immediately after listening to that disclosure, Sarah encouraged Jessica to share this information with Yvonne, Jessica's mother; Jessica added that she agreed and used her cellular phone to send a text message to her mother, asking her to come to her school because she needed to talk to her. Jessica stated that Yvonne arrived at the school, and there, in the principal's office, she revealed to her mother that defendant had sexually molested her.
On May 21, 2010, a Providence County grand jury indicted defendant on four counts of first-degree child molestation sexual assault in violation of § 11-37-8.1 and ten counts of second-degree child molestation sexual assault in violation of § 11-37-8.3. The charged offenses were alleged to have occurred between September of 2002 and June of 2003. Counts Eight and Fourteen alleged " Penile to Vaginal Penetration; " Counts Five and Eleven alleged " Penile to Anal Penetration; " Counts One, Four, Seven, Ten, and Thirteen alleged " Hand to Vagina; " and Counts Two, Three, Six, Nine, and Twelve alleged " Hand to Breast."
In due course, a jury trial was held over four days in November of 2011. We summarize below the salient aspects of what transpired at that trial.
The Testimony at Trial
1. The Testimony of the Complaining Witness
Jessica testified that, at the time of the assaults, she lived in an apartment on Charles Street in Providence with her mother, her older sister, Adriana, her less than one-year-old half-sister, Daria, and defendant, whom she had known, " [her] whole life." She stated that she shared a bedroom with her sisters and that her mother and defendant slept in another bedroom. At trial, Jessica described five separate incidents that she testified took place over a ten-to-twelve week period, during which defendant came into her room during the night, assaulted her, and left.
Jessica testified that during the first incident (Counts One & Two), defendant " came into [her] room and he laid under the covers with [her] and touched [her] under and over [her] pajamas." She stated that she was awake during this incident, but that she kept her eyes closed
because " [she] was scared." She further stated that she assumed defendant was the one who touched her because " [she] felt his hands touching [her] body" and " [h]is hands were rough."
Jessica testified that the second incident (Counts Three, Four & Five) took place approximately two weeks later. She stated that she was sleeping in her bed, lying on her stomach, and awoke to the touch of defendant's hands on her breast and vagina " over and under [her] pajamas." She stated that she opened her eyes this time and, " [t]hrough the corner of [her] eye," saw defendant on top of her. She testified: " At first he was touching me and then he inserted his penis in my rear end."
It was Jessica's testimony that the third incident (Counts Six, Seven & Eight) took place approximately two weeks after the second incident. She stated that she was sleeping in her bed, this time on her back, and awoke to the touch of defendant's hands on her breast and vagina " over and under [her] pajamas." She stated that she opened her eyes and saw defendant on top of her. This time, she further stated, " [defendant] actually inserted his penis inside my vagina."
The fourth incident (Counts Nine, Ten & Eleven), Jessica testified, was similar to the second incident. She stated that she was sleeping in her bed, lying on her stomach, and awoke to the touch of defendant's " rough" hands on her breast and vagina " over and under [her] pajamas." She further stated that, when she opened her eyes, defendant was " on top of [her] with his hands underneath [her] from behind." Then, Jessica stated, defendant penetrated her anally.
During the fifth incident (Counts Twelve, Thirteen & Fourteen) concerning which Jessica testified, she was sleeping in her bed, on her back, and awoke to the touch of defendant's hands on her breast and vagina " over and under [her] pajamas." Then, she stated, defendant " insert[ed] his penis inside my vagina."
Jessica testified that she did not tell anyone about the incidents when they occurred because " [defendant] was still in the house" and " [she] didn't feel safe." On cross-examination, Jessica testified that defendant did not threaten her and never said anything to her during the incidents that she had described. She had testified on direct examination, however, that " [w]hen [she] would see [defendant] around the house," " [h]e would give like little side smiles here and there."
In her testimony, Jessica estimated that each incident lasted " [a]bout 20 to 30 minutes." She stated that each of the incidents occurred while her sisters, Adriana and Daria, were sleeping in the same room. She further stated that she did not " call out" to Adriana or to her mother and never told defendant to " stop" or " get away." When Jessica was asked by defense counsel whether she had any type of discharge or blood after the second or third incident, she replied " [n]ot that I know of."
Jessica acknowledged in her testimony that six to seven years had passed between defendant's assaults and her reporting about them. During this time, she stated, her mother and defendant " had an okay relationship" but " [t]hey had their ups and downs." She further stated that, although her mother and defendant " broke up and [defendant] left the house for good" in 2007, her mother and defendant continued to see each other. Jessica testified that only when she knew defendant " was gone for good," after her mother filed for divorce, did she feel " safe enough to talk about it."
Jessica testified that, after she revealed to her mother (at the office of the principal
of her school) that defendant had " raped" her, she refused to describe the assaults in any detail to her. Jessica stated that she did not want to tell her mother about the details because she " was scared and because [her mother] has kids with [defendant]" and " [b]ecause [she] knew it would hurt her [mother] more."
2. The Testimony of the Mother of the Complaining Witness
Jessica's mother, Yvonne, testified that she had known defendant since 1994, when she was twenty-four years old; she added that she married him in 1999. Yvonne further testified that, at the time of the assaults, she lived with defendant in an apartment on Charles Street in Providence along with her daughters--Adriana, Jessica, and Daria. Yvonne stated that, since Daria was one month old, she " would * * * spend the night in [Adriana]'s bed a lot of the time."
Yvonne testified that her daughter Adriana told her one morning that " she awoke in the middle of the night and saw [defendant] * * * in their bedroom * * * looking out the window." Yvonne further testified that, when she asked defendant to explain what he had done in the girls' room, " [h]e said he had heard something [and he] wanted to make sure the windows were locked." Yvonne stated that she found defendant's behavior " odd" and that it " kind of upset [her] a little." It was Yvonne's testimony that, after that incident, she installed a lock on Adriana and Jessica's door; she described the lock as being " one of those that you buy at any hardware store and screw it into the wall." She stated that she wanted to put a lock on their door so that " they can lock their door and feel safe at night." Yvonne further stated that she asked her daughters to lock their bedroom door at night.
It was Yvonne's testimony that defendant " didn't understand why there was a lock on the door" and " would say things like what if there was a fire, or what if something happens, how are we going to get to them." Yvonne testified that, a week or two after she installed the lock, defendant " pushed the door in and broke the lock." She summarized as follows defendant's explanation as to why he broke the lock:
" [He] stated that he heard some noise in their room. He thought somebody was in their bedroom, and I had my ear to the door. I didn't hear anything. He kept insisting somebody was there. He got mad and pushed the door, forced the door open, kind of broke the piece of the wood so we couldn't put the lock back on."
Yvonne stated that, when defendant came through the door, no one other than Adriana and Jessica was in the room; she added that they were in bed and that they " jumped up, scared." It was further her testimony that there was never another adult male in the house overnight and that, during the time period in which the assaults occurred, Jessica " seemed nervous all the time."
On cross-examination, Yvonne testified that the first time she heard that defendant was assaulting Jessica was in 2009, when Jessica told her at her school that defendant had " raped [her]." Yvonne added that Jessica never disclosed any further details of what happened to her and that, even at the time of trial, she still had " no idea of what actually happened other than that [Jessica] told [her] that she was raped by [defendant]." It was her testimony that she " explained to [Jessica] what rape was" and Jessica confirmed that she had been raped, ...