Court Providence County, P2/09-1102A Daniel A. Procaccini
State: Virginia McGinn Department of Attorney General
Defendant: Angela Yingling Office of the Public Defender
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
William P. Robinson, Associate Justice
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 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.
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
November 5, 2009, defendant pled nolo contendere to
one count of felony assaultand received a deferred
sentence 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.
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
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
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
"[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
"[JESSICA]: To urinate.
"[PROSECUTOR]: Okay. And that would be your vagina?
"[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?
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.
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