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State v. Nickerson

Supreme Court of Rhode Island

July 10, 2014

Jason Nickerson

Page 1117

Providence County. Superior Court. (P1/11-1596A). Associate Justice Judith C. Savage.

For State: Jane M. McSoley, Department of Attorney General.

For Defendant: Lara E. Montecalvo, Office of the Public Defender.

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


Page 1118

Goldberg, Justice.

The defendant, Jason Nickerson (defendant or Nickerson), is before the Supreme Court on appeal from a judgment of conviction on four counts of first-degree sexual assault, in violation of G.L. 1956 § 11-37-2, and one count of felony assault and battery, in violation of G.L. 1956 § 11-5-2. The defendant argues that the trial justice erred in denying his motion for judgment of acquittal and his motion for a new trial, claiming that the state failed to prove that he was the perpetrator of these crimes. The defendant also argues that, in violation of his constitutional rights and Rule 16 of the Superior Court Rules of Criminal Procedure, the trial justice erred in denying the defendant's motion to exclude the testimony of a forensic evidence analyst who testified at trial. For the reasons set

Page 1119

forth in this opinion, we affirm the judgment of the Superior Court.

Facts and Travel

In June 2007, sixteen-year old Emma [1] was living in a motel room in South Attleboro, Massachusetts, with her alcoholic parents and younger sister. The family had moved to the motel after Emma became involved in a physical altercation with a cousin, causing her family to leave the home they were sharing with Emma's aunt and cousins. At the time, Emma had dropped out of high school, but was working to obtain a GED; she also worked part-time at a fast-food restaurant in Pawtucket, Rhode Island. Emma was on probation at the time, with an 8 p.m. curfew that had been imposed by the Family Court as a result of her having been reported missing to the police several times.

Despite this curfew, however, on June 30, 2007, Emma's mother drove her to a friend's house near Miriam Hospital in Providence at around 10 p.m., with the understanding that she would return for her later that evening. Emma and her friend watched television, played video games, and smoked marijuana. After a few hours, Emma repeatedly and unsuccessfully tried to contact her mother for the promised ride back to the motel. Receiving no response, Emma made the fateful decision to walk from Providence to South Attleboro.[2]

Emma had been walking on North Main Street toward Pawtucket for about ten minutes when a car pulled up beside her and the driver asked if she needed a ride. Emma described the driver as a dark-skinned male who was bald, between 6'2" and 6'4" tall, and weighed over two hundred pounds; she also noted the man's pointy noise, a distinguishing feature that she " had never seen [on] a person of his [African-American] race." According to Emma, she was apprehensive about getting into the car with the stranger, and asked the man " [a]re you going to hurt me? Is everything going to be all right?" The man responded " [y]es, I'm not going to hurt you, everything will be all right." Emma--discouraged by the long walk ahead of her--accepted what she thought to be " a nice gesture," and got into the car.

As they drove, the man asked her name, and Emma, deciding that her real name was none of his business, told him her name was Jasmine. He also asked if she smoked marijuana, and she disclosed that she had some with her. According to Emma, the man then drove to a parking lot in Pawtucket in order to smoke the marijuana; however, the presence of people nearby made the man uncomfortable and they left. The man then drove through a maze of side streets until Emma realized that the car was no longer traveling toward the motel. When Emma voiced her concerns, the man explained that they were going to his house to smoke the marijuana.

The car, however, came to a stop in a small parking area--surrounded on three sides by a chain link fence--where the man tried to kiss Emma. When she resisted, the man forced her to kiss him; he bit her collarbone and began to pull off her pants. Emma testified that the man continuously hit her in the face as she struggled and tried to escape. According to

Page 1120

Emma, the man began to penetrate her vagina with his fingers, and forced her to perform oral sex. She attempted to escape by crawling into the backseat, but the man climbed on top of her and penetrated her both vaginally and anally. Emma testified that as she tried to escape from the backseat the man choked her until she almost lost consciousness. Emma testified that, at one point during the attack, she felt a knife against her ribs and realized that resistance was futile. She stopped struggling and began pleading with the man to let her go.

When the ordeal ended, the man took a towel and wiped her thoroughly in the vaginal and anal areas where he had ejaculated. He took her cell phone from her purse and removed the battery; he gave Emma the phone, but refused to return her purse. The man started the car, at which point Emma noticed that it was almost 4 a.m. He then ordered Emma to get out of the car and lie face down on the ground, threatening to back the car over her if she looked at him, his vehicle, or his license plate. He also threatened to kill her and her family if she reported the incident to police.

After the man drove away, Emma stood up and ran toward the street. A woman driving by asked Emma if she needed help, and offered her a ride. Emma accepted and told the woman what had happened to her; however, she refused the woman's attempt to go to the police station, insisting that she go home to be with her family.[3] When the woman was unable to find the motel where Emma's family resided, she left Emma at a Walgreens store in Pawtucket with enough money to buy water. Emma was met there by Pawtucket Police Officer Richard LaForest (Det. LaForest),[4] who was responding to a report--from a woman who went to the Pawtucket police station--suggesting that the police check on the well-being of an injured woman at Walgreens.[5] Emma disclosed to Det. LaForest that she had been raped, and, despite Emma's desire to return home, an ambulance was summoned to transport her to Hasbro Children's Hospital.

At the hospital, Emma was seen by Dr. Amy Goldberg (Dr. Goldberg), a specialist in child abuse pediatrics. According to Dr. Goldberg, it was immediately apparent that Emma " had very obvious physical trauma," to her face and neck; Emma's left eye was swollen shut, there was a cut on her mouth, and her neck was red and swollen. Emma told Dr. Goldberg that she had been physically and sexually assaulted by a man who penetrated her vaginally, anally, and orally over a period of about three hours, and explained that when she tried to resist, her assailant punched her in the face and body, and he bit her and choked her almost to the point of unconsciousness.

Doctor Goldberg testified that her examination was consistent with Emma's description of the assault; it revealed extensive bruising and petechial hemorrhaging--which occurs when vessels in the skin release blood due to pressure or trauma--on Emma's face. Doctor Goldberg testified that the pervasive petechial hemorrhaging around Emma's eyes and neck corroborated the girl's account

Page 1121

of being choked. Additional petechial hemorrhaging was evident on Emma's back, and Dr. Goldberg noted bruising and " suction" injuries on Emma's chest, consistent with Emma's claim of having been bitten by the assailant. According to Dr. Goldberg, all of Emma's injuries were recently inflicted.[6]

Doctor Goldberg also conducted a genital examination, noting that except for the area outside of her vagina, which exhibited erythema, or extreme redness, the examination was normal. Doctor Goldberg explained that erythema was consistent with trauma; however, she noted that there was no bleeding, tearing, fissures, or other acute signs of traumatic injury to the vaginal or anal areas. According to Dr. Goldberg, such observations did not conflict with Emma's account of having been sexually assaulted, because girls of Emma's age are " fully estrogenized," which makes vaginal tissue " extremely lubricated, thick and flexible." It is for this reason, Dr. Goldberg clarified, that outward signs of genital trauma are uncommon and exhibited in no more than 5 to 10 percent of sexual assault cases. The ...

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