Providence County Superior Court P2/12-3223A Associate Justice Daniel A. Procaccini
For State: Aaron L. Weisman Department of Attorney General
For Defendant: Lara E. Montecalvo Office of the Public Defender
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
Associate Justice Maureen McKenna Goldberg
This case came before the Supreme Court on March 2, 2016, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. The defendant, Daniel Hunt, was charged with two counts of second-degree child molestation sexual assault (second-degree child molestation). After a jury trial in the Superior Court, the defendant was convicted on count 1 and acquitted on count 2. He was sentenced to twenty years at the Adult Correctional Institutions, with nine years to serve and eleven years suspended with probation. On appeal, the defendant argues that the trial justice committed reversible error when, in his instructions to the jury and in the jury-verdict form, he failed to adequately inform the jury of the distinction between counts 1 and 2, which were identically worded. Having carefully considered the memoranda submitted by the parties and the arguments of counsel, we are satisfied that cause has not been shown, and the appeal may be decided at this time. We affirm the judgment of the Superior Court.
Facts and Travel
The defendant began dating Sandra in 2005. They had one child together, and defendant assumed a paternal relationship with Sandra's two older children from a prior relationship. The romantic relationship between defendant and Sandra ended in 2010, but they remained friends until the summer of 2012, when their relationship soured. Despite the breakup, Sandra's two older children continued to view defendant as their father, and all three children periodically saw him. The defendant, a truck driver, spent substantial time outside the state for work and sometimes slept over at Sandra's home when he was in Rhode Island.
On April 7, 2012, the night before Easter Sunday and months before defendant's friendship with Sandra ended, defendant spent the night at Sandra's home. Several months later, on August 23, 2012, Sandra came across a private message that her oldest child, Emily, had written to a friend on Facebook; in the message, Emily had disclosed to her friend that defendant had inappropriately touched her while he was visiting the night before Easter. The crux of the allegation against defendant was that, on the evening of April 7, 2012, when Emily was twelve years old, defendant twice touched Emily's breasts under her shirt and her bra; in particular, defendant fondled her for "[a]bout 20 minutes, " left the room to go outside to his truck, and, upon returning, he touched her again for approximately ten minutes, until Emily retired to her bedroom. A police investigation ensued.
On December 4, 2012, defendant was charged by criminal information with two counts of second-degree child molestation. Both counts charged "[t]hat [Daniel Hunt], * * * on or about the 7th day of April, 2012, in the City of Woonsocket, * * * did engage in sexual contact with [Emily], a person fourteen (14) years of age or under, in violation of [G.L. 1956] § 11-37-8.3 and § 11-37-8.4." The defendant did not seek a bill of particulars in accordance with Rule 7(f) of the Superior Court Rules of Criminal Procedure.
The case was reached for trial in Providence County Superior Court on December 6, 2013. At the close of trial, the trial justice instructed the jury that it was to consider two charges against defendant:
"In order to convict * * * defendant of second[-]degree child molestation, the [s]tate must prove beyond a reasonable doubt first that on or about April 7, 2012, * * * defendant engaged in two separate acts of sexual contact[-]namely[, ] * * * defendant touched [Emily]'s breast and shortly thereafter again touched [Emily]'s breasts and nipples." (Emphases added.)
The trial justice further charged:
"[B]ecause * * * defendant has been charged with more than one criminal offense, each alleged violation must be considered by you separately and the [s]tate must prove its case ...