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State v. Giard

Supreme Court of Rhode Island

March 24, 2017

Michael Giard.

         Superior Court Providence County, P2/09-1102A Daniel A. Procaccini Associate Justice

          For State: Virginia McGinn Department of Attorney General

          For Defendant: Angela Yingling Office of the Public Defender

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


          William P. Robinson, Associate Justice

         The defendant, Michael Giard, appeals to this Court from an adjudication of a violation of a deferred sentence. On appeal, the defendant contends that "the hearing justice acted arbitrarily and capriciously" in determining: (1) "that Mr. Giard touched [Jessica[1] inappropriately;" and (2) "that Mr. Giard assaulted [Jessica] in reasonable proximity to April of 2010" because, in the defendant's view, neither determination was supported by the evidence in the record.

         This case came before the Supreme Court for oral argument on December 7, 2016, pursuant to an order directing the parties to 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 below, we affirm the judgment of the Superior Court.


         Facts and Travel

         On November 5, 2009, defendant pled nolo contendere to one count of felony assault[2]and received a deferred sentence[3] of five years with respect to that count. Thereafter, in April of 2010, Jessica, who is defendant's niece, told her mother and her aunt that defendant had touched her inappropriately. On May 7, 2012, defendant was presented with a notice of violation pursuant to Rule 32(f) of the Superior Court Rules of Criminal Procedure based on an alleged act of second-degree child molestation of Jessica.

         In June of 2014, by agreement of the parties, a jury trial on the second-degree child molestation charge and a deferred sentence violation hearing were held simultaneously in Superior Court. We summarize below the salient aspects of what transpired at that trial, noting from the outset that there are widely differing accounts as to the chronology of events.[4]

         A Jessica's Testimony

         The complaining witness, Jessica, testified first at trial. She stated that she was born on January 11, 2002, making her eight years old at the time when defendant allegedly molested her. She testified on cross-examination that, in 2009, her aunt Lucy (who is defendant's wife) had come to where she was then living in order to bring both her and her brother Jacob to the home that Lucy and defendant shared in Woonsocket. Jessica added that her parents, Charlene and Joshua, joined her and Jacob at that Woonsocket home some time later.

         Jessica testified that the garage of defendant's Woonsocket home had been converted into a computer room; she stated that defendant would from time to time call her into the computer room and "tell [her] to sit on his lap, and [she] would get distracted watching the [video] game." With respect to the molestation, Jessica testified as follows:

"[JESSICA]: Um, I would feel movement down in my private area.
"[PROSECUTOR]: When you say private area, what are you talking about, [Jessica]?
"[JESSICA]: The one below where -- below your hips.
"[PROSECUTOR]: Okay. And, in that private area, I know it's uncomfortable. What do you use that private area to do?
"[JESSICA]: To urinate.
"[PROSECUTOR]: Okay. And that would be your vagina?
"[JESSICA]: Yes.
"[PROSECUTOR]: Okay. Now, you would feel movement, and when you said you would feel movement, where would the defendant's hands be?
"[JESSICA]: Near my private area, one of them.
"[PROSECUTOR]: One of them. So one of his hands would be on your vagina; is that right?
"[JESSICA]: Yes."

         Jessica further testified that the touching occurred over her nightgown and that, after defendant had engaged in the sexual touching, he would give her one dollar, usually in quarters. When defense counsel asked why Jessica did not do anything, she replied: "I was afraid I would get yelled at [by defendant]" because of "his bad temper;" and, she indicated that, at that time, "[she] didn't know if it was wrong or right." She indicated that defendant had touched her on four previous occasions, the last incident having occurred in April of 2010.[5]

         Jessica then testified that she told her cousin (Christine), who is defendant's daughter, about the alleged molestation approximately one week after the April 2010 incident; she noted that Christine ultimately "convinced [her] to tell [her] mom" about that incident. Jessica stated, "At first I thought maybe I shouldn't [tell my mom] because if she got sick" or "stress[ed], " but "then I started worrying and my cousin helped me through it." It was Jessica's testimony that thereafter, at the end of April of 2010, she told her mother and her aunt about the molestation, at which time the two women were preparing to leave for a "[g]irls' night out." Jessica stated that her disclosure to her mother and her aunt was prompted by the fact that she did not wish to remain alone with defendant at his home while her mother and aunt were away; Jessica added that she was "sick and tired of it." Although there was some discrepancy in the evidence ...

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