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State v. Florez

Supreme Court of Rhode Island

May 27, 2016

Ricardo Florez.

         Providence County Superior Court (P2/11-86A) Associate Justice Daniel A. Procaccini

          For State: Aaron L. Weisman Department of Attorney General

          For Defendant: Eric H. Miller, Esq. Seth A. Perlmutter, Esq.

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


          Gilbert V. Indeglia, Associate Justice

         On March 31, 2014, a Providence County Superior Court jury found the defendant, Ricardo Florez (defendant or Florez), guilty of one count of second-degree child molestation sexual assault (sexual contact with a person fourteen years of age or under) in violation of G.L. 1956 §§ 11-37-8.3 and 11-37-8.4. On July 29, 2014, the trial justice sentenced the defendant to twenty years' imprisonment, with eight years to serve and the remaining time suspended with probation.[1] On appeal, the defendant asserts a variety of issues before this Court. First, he contends that the trial justice erred in denying his motion for a new trial. Next, he asserts that the trial justice's jury charge and verdict sheet were flawed in that they permitted the jury to return a non-unanimous guilty verdict. Third, the defendant argues that the trial justice erred by allowing the state to improperly refresh the complainant's recollection. Finally, he contends that the trial justice committed reversible error by declining to admit parts of the witness statement of the complainant's father into evidence. 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 on August 1, 2010 at a McDonald's restaurant in Pawtucket, Rhode Island. The defendant was subsequently charged by criminal information with engaging in sexual contact with a person fourteen years of age or under in violation of §§ 11-37-8.3 and 11-37-8.4. A two-day jury trial in Providence County Superior Court took place in March 2014.[2] We briefly sketch the facts that came to light at trial, and add more detail where necessary in our later discussion of defendant's specific claims.

         On August 1, 2010, the complainant, Joshua; his father, Glenn;[3] and Joshua's nephew were on their way to a Pawtucket Red Sox game when they stopped at McDonald's in Pawtucket for lunch. While the other two went to the register to order food, Joshua sat at a booth and watched television. According to Joshua, defendant came over to him and "asked [him] questions about how old [he] was and where [he] was from and * * * if [he] had a girlfriend or not." Joshua testified that the conversation was one-sided, with defendant asking all of the questions, and that it lasted approximately ten minutes. He further testified that he was scared because he did not know defendant but did not want to be rude by not responding.

         Joshua next testified that he got up from his seat and told his father that he was going to the bathroom. He recounted that he was washing his hands at the sink when "[t]he defendant came out [of the stall] with his pants down and came over to me and grabbed my unit." He further elaborated that defendant grabbed his penis over his clothing. He testified that defendant then let him walk out of the bathroom, [4] at which point he went to his father and told him what had happened. Joshua further recounted that the police arrived, he explained to them what had happened, and he provided a description of defendant. He further reported that he spoke to Det. Charles Devine (Det. Devine) of the Pawtucket Police Department on August 5, 2010, at which time he provided a statement and identified defendant from a photo array.

         As part of his direct examination, Joshua was asked: "at any point in time before leaving the bathroom, did you ever touch any part of the defendant?" to which he answered, "No." As a result, the state handed Joshua the statement that he had provided to police. The state then asked Joshua if he "recall[ed] describing any other type of contact between [him] and the defendant that day in the bathroom in your statement to Detective Devine?" Again, Joshua answered, "No." After the state directed Joshua's attention to a specific portion of his witness statement, it asked, over defendant's continued objection, "Tell me what it is you told Detective Devine." Joshua answered, "That he grabbed my hand and made me touch his exposed penis." The state then asked if there was "some reason [he] didn't want to tell us that?" Joshua responded, "Um, I was just scared to tell you."

         The state also called Glenn as a witness. He testified that, as he was ordering lunch, Joshua approached him and told him that he had to use the bathroom. He further testified that Joshua was still in the bathroom when he got back to the table with the food. According to Glenn's testimony, Joshua left the bathroom, came up to him, and told him "that man touched me;" and, when Glenn asked what he meant, Joshua replied "sexually." Glenn recounted that Joshua pointed to defendant when he walked out of the bathroom. Glenn testified that he approached defendant, but defendant replied that Joshua was lying. At that point, defendant "jumped on his bike and took off." Glenn called 911 and the police responded. Four days later, Glenn and his son went to the Pawtucket police station, where he provided a witness statement and identified defendant from a photo array.

         II Standard of Review

         Given the variety of claims on appeal, our standard of review varies with respect to each of the different issues. In regard to the motion for a new trial, "this Court 'accord[s] great weight to a trial justice's ruling on [such a motion] if he or she has articulated sufficient reasoning in support of the ruling.'" State v. Kizekai, 19 A.3d 583, 589 (R.I. 2011) (quoting State v. Guerra, 12 A.3d 759, 766 (R.I. 2011)). "If the trial justice has articulated adequate grounds for denying the motion, his or her decision is entitled to great weight and will not be overturned by this Court unless he or she has overlooked or misconceived material evidence or was otherwise clearly wrong." State v. Bunnell, 47 A.3d 220, 233 (R.I. 2012) (quoting State v. Cipriano, 21 A.3d 408, 429 (R.I. 2011)).

         As for our review of the jury instructions and the verdict form, we employ a de novo standard of review "in scrutinizing [them] regarding their constitutional or legal adequacy[.]" State v. Imbruglia, 913 A.2d 1022, 1031 (R.I. 2007). "[A]n erroneous charge warrants reversal only if it can be shown that the jury 'could have been misled' to the resultant prejudice of the complaining party." State v. Burnham, 58 A.3d 889, 897 (R.I. 2013) (quoting State v. Lynch, 19 A.3d 51, 58 (R.I. 2011)).

         Finally, we review a trial justice's evidentiary rulings under an abuse of discretion rubric, and will not overturn a trial justice's decision with respect to evidentiary issues unless it constitutes an abuse of that discretion and prejudices the complaining party. State v. Pitts, 990 A.2d 185, 189 (R.I. 2010); State v. Pompey, 934 A.2d 210, 215 (R.I. 2007). "We are disinclined to perceive an abuse of discretion so long as the record contains 'some grounds for supporting the trial justice's decision * * *.'" Pitts, 990 A.2d at 189-90 (quoting State v. Grullon, 984 A.2d 46, 53 (R.I. 2009)).




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