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State v. Connery

Supreme Court of Rhode Island

June 8, 2016

State
v.
Karen A. Connery.

         Providence County Superior Court Associate Justice Daniel A. Procaccini (P2/13-446ADV), (P3/12-2066A)

          ATTORNEYS ON APPEAL: For State: Jane M. McSoley Department of Attorney General

          For Defendant: Jodi M. Gladstone, Esq.

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

          OPINION

          William P. Robinson III Associate Justice.

         The defendant, Karen A. Connery, appeals from two judgments of conviction rendered after a jury-waived trial held in Providence County Superior Court.[1] As to the first case, Ms. Connery was found guilty of one count of simple assault. As to the second case, although Ms. Connery had initially been charged with breaking and entering a dwelling, the trial justice (after a colloquy with counsel) found her guilty of willful trespass as being a lesser-included offense. On appeal to this Court, with respect to the conviction of simple assault, the defendant contends that her constitutional right to a speedy trial was violated. With respect to the willful trespass conviction, the defendant contends that willful trespass is not a lesser-included offense of breaking and entering and that the trial justice erred in denying her motion to dismiss the original charge of breaking and entering a dwelling. These cases 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 a close review of the record and careful consideration of the parties' arguments (both written and oral), we are satisfied that cause has not been shown and that this appeal may be decided at this time.

         For the reasons set forth in this opinion, we affirm the judgments of the Superior Court.

         I

         Facts and Travel

         On July 11, 2012, a criminal complaint charging defendant with one count of simple assault in violation of G.L. 1956 § 11-5-3 was filed in the Sixth Division District Court. Ms. Connery was accused of assaulting another woman on June 24, 2012 in Pawtucket. Subsequently, having waived her right to a jury trial in the first instance, that case was transferred to the Superior Court. On February 15, 2013, a separate criminal information was filed charging defendant with "break[ing] and enter[ing] the dwelling of [defendant's sister] without the consent of the owner, " in violation of G.L. 1956 § 11-8-2 and G.L. 1956 § 12-29-5.

         On June 16 and 17, 2014, both charges were tried on a jury-waived basis, at the conclusion of which, defendant moved to dismiss the breaking and entering charge[2] "based on the fact that [the state had] not presented evidence to establish the crime of breaking and entering * * *." After a brief recess, both parties were provided with an additional opportunity to address the court before a decision was rendered. In addressing the court, counsel for defendant stated: "[W]hat I'm suggesting is that you apply the statutory language for * * * willful trespass. That is what my client is most likely guilty of * * *."

         Subsequently, the trial justice rendered a bench decision. With respect to the simple assault charge, he found defendant guilty thereof. And with respect to the breaking and entering charge, he concluded that it had been established beyond a reasonable doubt that defendant was guilty of the misdemeanor offense of willful trespass. As to each charge of which defendant had been found guilty, the trial justice sentenced her to a one-year suspended sentence with one year of probation on each count; the sentences were to run consecutively. He also issued a no-contact order running in favor of the victim of the simple assault and a no-contact order running in favor of the victim of the willful trespass (viz., defendant's sister). Thereafter, defendant filed a timely notice of appeal.[3]

         II

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