Superior Court W2/12-216A, Melanie Wilk Thunberg, Associate Justice.
For State: Jane M. McSoley, Department of Attorney General.
For Defendant: Karen A. Pelczarski, Esq.
Present: Suttell, C.J., Goldberg, Robinson, and Indeglia, JJ.
Paul A. Suttell, Chief Justice.
The defendant, Craig Van Dongen, was found guilty of domestic simple assault and domestic disorderly conduct by a Superior Court justice sitting without a jury. He now appeals from the judgment of conviction, arguing that the trial justice erred by: (1) overlooking and misconceiving material evidence; (2) failing to apply the correct burden of proof with respect to his claim of self-defense; (3) barring evidence and cross-examination as to motive and bias and abusing her discretion concerning a number of evidentiary rulings; and (4) 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 considering the parties' written and oral submissions and reviewing the record, we conclude that cause has not been shown and that this case may be decided without further briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.
Facts and Procedural History
A criminal information filed on June 20, 2012, charged defendant with assaulting Kristine Andrew with a dangerous weapon, to wit, a foot, in violation of G.L. 1956 § 11-5-2 and G.L. 1956 § 12-29-5 (count 1) and "intentionally, knowingly, or recklessly" engaging in fighting, threatening, violent, or tumultuous behavior, in violation of G.L. 1956 § 11-45-1 and § 12-29-5 (count 2). The defendant waived his right to a jury trial, and a trial before a justice of the Superior Court commenced on April 23, 2013.
As in any case involving allegations of domestic assault, it is perhaps not surprising that the only percipient witnesses to the altercation were defendant and the complaining witness. Although both Ms. Andrew and defendant testified that an emotionally charged, physical altercation did in fact occur, they offered very differing versions of how it started and what exactly transpired. Accordingly, the trial justice's decision is largely predicated upon her credibility assessments. We deem it necessary, therefore, to summarize in some detail the unfortunate events as recounted by both Ms. Andrew and defendant-omitting, however, much of the expletive-laced epithets that each party claims the other copiously employed.
Ms. Andrew testified that she met defendant at the Kent County courthouse in 2006 when they were both involved in separate divorce proceedings. Shortly thereafter, the two began dating and saw each other four to five times a week. The relationship progressed and Ms. Andrew, along with her two children, moved into defendant's house. They lived together for two years, until Ms. Andrew and her children moved out in 2008 because, as described in Ms. Andrew's testimony, there was "[d]ifficulty with the relationship." Ms. Andrew further testified that she and defendant remained amicable and that they continued to date two to three times a month. In August 2009, however, their relationship ended for a period of approximately six months.
Ms. Andrew testified that the couple resumed dating when defendant visited Ms. Andrew at her parents' house and proclaimed that "he couldn't live without [her]. He said that he wanted to marry [her], and that he had changed, and he had sought counseling, and he * * * wanted to be together and enjoy [their lives] together and buy a home together and travel together." On February 14, 2010, defendant proposed to Ms. Andrew and she accepted. In November of 2010, they moved into a house in North Kingstown, which defendant had purchased.
On January 13, 2012, the couple had an argument that led to the underlying charges against defendant. The facts of the altercation were very much in dispute at trial. Ms. Andrew testified that she and defendant had returned home from dinner and were watching television in the living room, when defendant "instigated an argument." She explained that they "were watching TV, and [defendant] was packing for his [weekend] trip. And he started to complain about the house, and that it was a mess and complained that it was [her] fault and [her] children's fault and yelled at [her]." Ms. Andrew testified that she refused to engage defendant and told defendant that she was going to bed. At approximately 11 or 11:30 p.m., she took out her contact lenses, went to bed, and fell asleep. Ms. Andrew described that sometime thereafter she was awakened when defendant "came to bed yelling." She testified that defendant was yelling that the house was a mess and that it was her fault. Ms. Andrew asked defendant not to yell, but he did not respond. He then said, "[h]ow much f'ng money is it going to take me to get rid of you?" Ms. Andrew testified that she told defendant, "I love you" and "[i]t's not about the money." Ms. Andrew stated that defendant then called her "a fucking whore" and exposed himself to her. She said that she was "afraid" and "shocked."
Ms. Andrew testified that she got out of bed, picked up the suitcase defendant had packed for the weekend, and walked "toward the [bedroom] door to ask him to go sleep down in the basement [bedroom], because he was scaring [her], " but that defendant "jumped out of the bed and grabbed the bag." Ms. Andrew added that defendant pushed her in her abdomen. She attempted to "slap [defendant] to make him stop, " but defendant "grabbed [her] and screamed, 'I hate you * * *' [and he] threw [her] down on the floor." Ms. Andrew further testified that she landed on her left side and covered her face with her hands to protect herself while defendant held her down and punched her head, ear, and neck. Ms. Andrew also testified that defendant "was kicking [her] in the back, in the buttocks, [her] legs, [and her] ankle. He stomped on [her] hips. Then he punched [her] head some more." She added that, while she was on the ground, defendant had been screaming, "I wish you were dead * * * I hate you." She said she told defendant that "[she] was bleeding from [her] head and that [she] needed help, " but he responded, "[y]ou're not hurt you fucking drama queen, " and he kicked her in the back "three, four more times" before it stopped. Thereafter, defendant left the room and Ms. Andrew crawled to her phone on the bureau and called 911.
Conversely, defendant testified that, around 11 p.m. on January 13, 2012, he and Ms. Andrew decided to watch a television program. He stated that Ms. Andrew had fallen asleep on the couch when he got up to pack his bags for the weekend because he was going to play tennis early the next morning and then travel to see his sister in Maine. After he packed his bags, he woke Ms. Andrew to tell her "it was time for bed." He said that he went to bed and then she came into the room and started arguing with him. He testified that he did not "recall how it actually got started, but [he] kn[ew] she was upset that [he] was going up to Maine by [him]self ** *." The defendant said that, at approximately 1:30 a.m., he told Ms. Andrew that he "had to get up in the morning and [he] wanted some sleep. * * * [He] picked up [his] bags to leave the room, and she got up and just blocked the door." He described Ms. Andrew's stance as that of a "linebacker" who would not let him leave. He said Ms. Andrew told him, "we're going to finish this, " so he put his bags down and got back into bed, while they continued to argue. According to defendant, they argued for a "couple of hours" primarily about his family, her drinking, and financial matters. The defendant testified that Ms. Andrew referred to his daughter and his former wife in derogatory terminology.
The defendant testified that, after arguing for another forty-five minutes, he got out of bed a second time and told Ms. Andrew that he had to go to sleep, but that she again blocked the door. He continued: "I was going to go downstairs. Um, I got out of bed, picked my bags up, ** * and that's when she kind of came right up to me." The defendant described Ms. Andrew as having "kind of a crazed look in her eye, " stating that "it was kind of a scary look that she gets." He testified that she swung at him "with a closed fist." He added:
"She hit me with her right hand in my left eye. And she hit me so hard that, um, I, I kind of blacked out momentarily. * * * I came to, and she was swinging at me with her left hand, and at that point I must have dropped the bags because I was able to deflect her swing a little bit. And she didn't hit me as hard with her left hand as she did with the right."
The defendant continued: "I was pretty frightened at that point, and I punched her back with my right hand. I hit her above her left eye in the forehead. * * * I hit her hard." He described punching her as a "reflex." He stated that they continued to fight, describing it as a "wrestling match." He remembered that he "pushed her across the bed" and "she was wailing" on the floor. Thereafter, he left the room as he saw Ms. Andrew making a phone call.
A compact disc containing a recording of Ms. Andrew's call to 911 was admitted into evidence at trial. During the call, Ms. Andrew acknowledged that she slapped defendant after he called her a "fucking whore." She stated that, subsequently, defendant threw her to the floor. Throughout the call, Ms. Andrew reiterated that she was in pain.
Detective Jesse Jarvis of the Town of North Kingstown Police Department and Lieutenant Ernest Robin, a paramedic for the Town of North Kingstown, were part of the team who responded to Ms. Andrew's 911 call. At trial, Det. Jarvis stated that, when he arrived at the house, Ms. Andrew opened the door and was "hysterical." "She was crying, bleeding, * * * seemed pretty out of it." Detective Jarvis observed blood "[o]n the right side of her head, " describing that "she ha[d] light-colored blond hair, * * * it looked pretty bad." He testified that Ms. Andrew told him that "her fianc[é] had beat her and kicked her, punched her, stomped on her." Thereafter, Det. Jarvis searched the house ...