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State v. Swiridowsky

Supreme Court of Rhode Island

November 12, 2015

State
v.
Christopher Swiridowsky

Supreme Court P1/11-3317A Associate Justice Jeffrey A. Lanphear

Aaron L. Weisman Department of Attorney General For State

Angela M. Yingling Office of the Public Defender For Defendant

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

OPINION

Gilbert V. Indeglia Associate Justice

On July 19, 2013, a Providence County Superior Court jury found the defendant, Christopher Swiridowsky (defendant or Swiridowsky), guilty of three counts of first degree sexual assault in violation of G.L. 1956 §§ 11-37-2 and 11-37-3, guilty of one count of assault with the intent to commit a sexual assault in violation of G.L. 1956 § 11-5-1, and not guilty of one count of kidnapping under G.L. 1956 § 11-26-1. On October 15, 2013, the trial justice sentenced the defendant. With respect to the first three counts, the defendant was sentenced to forty years imprisonment for each, with twenty-five years to serve and the remaining time suspended, with probation, to run concurrently. On count four, the defendant was sentenced to ten years imprisonment, with two years to serve and the remaining time suspended with probation, to run consecutively to the first three counts.

On appeal, the defendant contends that the trial justice erred in: (1) permitting the state to impeach him with a prior conviction for assault; and (2) denying his motion for a new trial. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

I

Facts and Travel

The incident giving rise to defendant's conviction occurred in the early morning of October 28, 2007, in Providence, Rhode Island. After the alleged sexual assaults occurring on that date, swabs were taken from the mouth and vagina of the complaining witness, Sarah.[1]Over three years later, on January 13, 2011, the DNA sample that had been taken from Sarah's mouth was matched to defendant through a nationwide database of DNA profiles known as CODIS (Combined DNA Index System).

On December 1, 2011, defendant was charged by indictment with the above-referenced offenses. The defendant's trial began on July 16, 2013. The state presented six witnesses, [2]including Sarah, whose credibility defendant now contests on appeal. The defense presented five witnesses, [3] including defendant himself. During trial, it was undisputed that the paths of Sarah and defendant crossed on October 28, 2007. However, the testimony diverges as to exactly what happened prior to and during the encounter between them. The relevant portions of such testimony are summarized below.

A

Conflicting Trial Testimonies

1. Sarah's Testimony

In October of 2007, Sarah was employed as a "salad and pizza cook" at Nordstrom's Café at the Providence Place Mall. On October 27, 2007, she worked until 9 p.m., at which time she changed out of her work uniform and walked to the City Café, a place that she frequented three or four times per week. There, Sarah consumed about four vodka and cranberry juice drinks. At some point during her stay at the City Café, her friend, Matt, arrived and sat next to her until between one and two in the morning. Sarah then left the City Café and walked with Matt to his apartment.

The two remained at Matt's apartment until "sometime before five o'clock in the morning, " when Sarah left because "[i]t was getting late, and the night was over." Sarah testified that, although Matt offered her a ride home, she declined and decided to walk home because "[they] both had been drinking." Before leaving, Sarah indicated to Matt that she would send him a text message when she arrived at her apartment to let him know that she had arrived safely. However, she testified that she actually sent him a text message letting him know that she was home and safe "about two and a half blocks, maybe three blocks from [her] house." She explained that it was not uncommon for her to send such a message when she got close to home, rather than waiting until she arrived.

At trial, Sarah explained that, shortly after she sent the text message, a "dark-colored SUV" pulled up next to her, driven by a man with a shaved head who was wearing a white T-shirt. The driver asked if she wanted a ride, to which she replied, "No. I'm all set. Thanks." She then continued to walk and the car came up next to her again, but this time the driver asked if she "wanted to get high." She testified that again she replied, "No. I'm all set. Thanks." She explained at trial that the SUV then turned and she continued to walk, but "a few second[s] later, [she] heard someone yell, 'Yo, yo, ' behind [her]." She further recounted that, when she went to turn, she was grabbed by the hair on the back of her head and was told: "Now you don't have a choice." She testified that she attempted to take her cell phone out of her pocket to call for help, but the man noticed what she was trying to do and grabbed her wrist. Sarah then testified that, after she promised that she would not try to call anybody, the man let her maintain possession of the phone. She recounted during trial that the man dragged her toward the dark-colored SUV, during which time she was attempting to get ...


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