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State v. Thibedau

Supreme Court of Rhode Island

April 18, 2017

State
v.
Ralph Thibedau.

         Kent County Superior Court (K1/13-51A) Associate Justice Allen P. Rubine Judge.

          For State: Jane M. McSoley Department of Attorney General.

          For Defendant: Stefanie DiMaio-Larivee, Esq.

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

          OPINION

          Paul A. Suttell Chief Justice.

         On October 1, 2014, a jury found Ralph Thibedau (defendant) guilty of three counts of child molestation against his stepdaughter, Stephanie.[1]Claiming that the trial justice committed a number of errors that warrant a reversal of his conviction, he now appeals from the judgment of conviction. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

         I

         Facts and Procedural History

         On or about January 2013, Kent County indictment No. K1/13-51A charged defendant with three counts: count 1, first-degree child molestation, to wit, penile to vaginal penetration with a person fourteen years of age or under, between August 1, 2009, and August 31, 2009;[2]count 2, second-degree child molestation, to wit, sexual contact with a person fourteen years of age or younger, between July 1, 2009, and July 31, 2009;[3] and count 3, third-degree child molestation, to wit, penile to vaginal penetration with a person over the age of fourteen and under the age of sixteen, between December 1, 2011, and March 31, 2012.[4]

         On October 10, 2013, defendant filed a motion to sever the counts against him. The state objected. On December 6, 2013, defendant filed a motion to dismiss on the grounds of duplicity and another motion to sever the counts. On January 23, 2014, defendant's motions were heard and denied in Kent County Superior Court. Prior to trial, defendant also filed a motion in limine to preclude the state from introducing evidence of other uncharged conduct under Rule 404(b) of the Rhode Island Rules of Evidence. A pretrial hearing was held on September 22, 2014, at which Stephanie testified that defendant had sexually abused her "[o]ver a hundred" times during the course of "[t]hree years." At the conclusion of the hearing, the trial justice denied defendant's motion, stating that he was prepared to allow Stephanie to testify to those "instances of other sexual misconduct."

         A jury trial commenced the following day. Stephanie testified that, when she was thirteen years old, after the weekend of July 4, 2009, she began smoking cigarettes. She testified that, shortly thereafter, at a family party at her aunt's house in Webster, Massachusetts, defendant offered her his cigarette, handed it to her, and grabbed her breast as he pulled his hand away. Stephanie then testified that "[a]bout a week later, " when she was still thirteen years old, defendant called her into his bedroom and told her that he would give her cigarettes if she showed him her breasts. She related that defendant also told her that he wanted "to have sex with [her] and that it could be a secret for [them] to keep." Stephanie stated that she then "lifted [her] shirt a little bit and he pulled it up the rest of the way" and fondled her breasts. He then gave her cigarettes and she returned to her room. Stephanie testified that, about a week later, defendant called her into his room again and that "[h]e started talking to [her] about sex again and he said that he really wanted to. And he told [her] that [her] first time should be with someone that [she] knew, instead of if [she] had hooked up with someone[.]" She recalled that defendant "started undressing [her] and he bent [her] over his bed and he put his penis in [her] vagina." She said that she "told him to stop because it hurt" but that "he told [her] that it always hurts the first time" and then he ejaculated inside of her, told her to go wash up, and "came back later and threw a pack of cigarettes at [her]."

         Stephanie further testified that this abusive relationship continued and that, in exchange for sex, defendant would buy her alcohol, marijuana, or cigarettes. She said that the abuse ended briefly when defendant was in the hospital for approximately two months beginning in June 2011. According to Stephanie, the molestation "stopped for a few months because [defendant] was weak" but started again in March 2012, with defendant again offering her cigarettes for sex. Stephanie testified that, on this occasion, they "were in his room and he laid [her] down on his bed, and he gave [her] oral sex, and then [they] had vaginal sex, " after which he gave her a pack of cigarettes and "said that he liked that [they] kept doing it." On direct examination, Stephanie again testified that the sexual acts occurred over one hundred times over the course of three years.[5] According to Stephanie, she never disclosed the sexual nature of her relationship with defendant until she told her aunt, Donna Hogan, after her sixteenth birthday. When asked what prompted her to tell Hogan, she responded that she had been failing in school, had gone through a mental breakdown, had cut off almost all of her hair, and was feeling really depressed.

         The state next called Hogan to testify for the prosecution. The defendant objected on the ground that Hogan was not listed as a witness in the state's response to discovery and no summary of her testimony had been provided. The trial justice however, rejected defendant's arguments and allowed the witness to testify. Hogan testified that Stephanie had "completely changed, " stating that "[s]he went from a great student, to failing out of school. Her appearance changed. Her behavior and attitude changed. She cut off all of her hair. She just completely changed. She was not the girl I had known for the previous [fifteen] years of her life." Hogan also testified that, in June 2012, Stephanie stayed with her for a week and confided information to her that shocked her. Hogan described Stephanie as "[s]haking, crying" and at times unable to speak as she tried to answer Hogan's questions.

         The defense presented the following witnesses: Det. Anthony Bettencourt of the West Warwick Police Department, Josephine Thibedau, Jacqueline Walker, Danielle Walker, Cathrine Thibedau, Heather-Rose Mattias, and Stephanie's sister. The defendant did not testify. Detective Bettencourt testified regarding his investigation of the case at issue. Josephine Thibedau, defendant's wife and Stephanie's mother, testified to her relationship with both defendant and Stephanie, her observance of the relationship between defendant and Stephanie, the daily structure of and routine in the home, her conversation with Stephanie and Hogan regarding Stephanie's disclosure of the allegations giving rise to the charges against defendant, and Stephanie's character for untruthfulness. Stephanie's sister testified to Stephanie's regular schedule and daily household activities. Danielle Walker, Cathrine Thibedau, Heather-Rose Mattias, and Jacqueline Walker all testified as character witnesses for defendant.

         At the end of the state's case and again at the close of the evidence, defendant moved for a judgment of acquittal on count 1 on the grounds of duplicity. The trial justice denied his motion. The trial justice then gave the jury instructions and assured the jury that he would be providing them with a complete written copy of the instructions. Defense counsel objected to the jury instructions on the grounds that the Rule 404(b) instruction was "scattershot" and also that the instructions concerning all three counts had "misconstrued the age of the complaining witness."

         On October 1, 2014, the jury returned guilty verdicts on all three counts. On December 17, 2014, the trial justice sentenced defendant to twenty-five years to serve on count 1 with "sexual abuse counseling as provided at the prison" and registration as a sex offender upon release. The trial justice imposed a sentence of three years suspended with probation on count 2, and a five-year suspended sentence on count 3, with both suspended terms to be served consecutively to the period of incarceration imposed on count 1 and to each other, with credit for time served. The defendant was also ordered to have no contact with Stephanie or with "any child fifteen years of age or younger." On January 13, 2015, judgment was entered; defendant timely filed a notice of appeal.

         II

         Discussion

         A

         The Admission of Evidence under Rule 404(b)

         The defendant first argues that the trial justice erred when he allowed the admission of evidence of other wrongful acts under Rule 404(b). Specifically, defendant takes issue with the admission of Stephanie's testimony that defendant sexually assaulted her over one hundred times over the course of three years. He contends that the trial justice abused his discretion in admitting the evidence because (1) the evidence "was not reasonably necessary to the [s]tate's case and the [trial justice] failed to make a determination that it was reasonably necessary and not cumulative[, ]" (2) the trial justice "failed to delineate a specific exception to which the evidence was relevant and failed to properly instruct the jury as to the limited use for which the evidence was to be considered[, ]" (3) "there was no determination made that the [uncharged] conduct was non-remote and similar to" the conduct for which defendant was being tried, and (4) the evidence was more prejudicial than probative. The defendant also argues that the trial justice erred by "giving a 'scattershot' [limiting] instruction to the jury regarding the permissible uses [of the] other-acts evidence in this case." The defendant seeks reversal of his conviction on all counts.

         1. Standard of Review

         "This Court has stated that '[t]he admissibility of evidence is within the sound discretion of the trial justice, and this Court will not interfere with the trial justice's decision unless a clear abuse of discretion is apparent.'" State v. Rios, 996 A.2d 635, 638 (R.I. 2010) (quoting State v. Gautier, 950 A.2d 400, 411 (R.I. 2008)). "Under Rule 404(b) * * * '[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith.'" State v. Breen, 767 A.2d 50, 57 (R.I. 2001) (quoting Rule 404(b)). "The rule is 'designed to prohibit the introduction of evidence that is only relevant to show that the defendant is a bad person and, therefore, likely to have committed the offense with which he is charged.'" Id. at 57-58 (quoting State v. Clark, 754 A.2d 73, 79 (R.I. 2000)). The rule expressly provides, however, that "such evidence may be admissible 'for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, [or] identity * * *.'" Id. at 58 (quoting State v. Robertson, 740 A.2d 330, 335 (R.I. 1999)). "The decision on whether evidence of other crimes is relevant to a permissible purpose is left to the sound discretion of the trial justice, 'and on appeal we shall only disturb his or her decision when it constitutes an abuse of discretion, ' * * * [unless] the evidence was 'both prejudicial and irrelevant.'" Id. (quoting State v. Gabriau, 696 A.2d 290, 294 (R.I. 1997) and State v. Martinez, 651 A.2d 1189, 1194 (R.I. 1994)).

         2. Analysis

         In denying defendant's motion in limine, the trial justice cited State v. Jalette, 119 R.I. 614, 382 A.2d 526 (1978) and, State v. Gomes, 690 A.2d 310 (R.I. 1997), for the proposition that evidence of uncharged sexual offenses committed against a complaining witness "may be introduced to show the accused's lewd disposition or intent towards the [complaining witness]." The Jalette Court, however, was quick to admonish "that this type of evidence should be sparingly used by the prosecution and only when reasonably necessary." Jalette, 119 R.I. at 627, 382 A.2d at 533. This Court further cabined the admissibility of such evidence in Gomes:

"Other-acts evidence should be excluded if it is merely cumulative. * * * Second, the evidence is only to be admitted when the exception is relevant to proving the charges lodged against the defendant. * * * Finally, a trial court should designate with particularity the specific exception to which the evidence is relevant and instruct the jury concerning the limited use for which the evidence is to be considered." Gomes, 690 A.2d at 317.

         Here, the trial justice explained that the sexual conduct at issue in the uncharged offenses all involved the same complaining witness (Stephanie) as in the indicted offenses, thereby tending to demonstrate defendant's "incestuous and lustful attitude toward" Stephanie. The trial justice also determined that the evidence displayed a "common thread among all of [the] charged instances, as well as the uncharged instances" whereby defendant employed a system of barter, in which "in exchange for cigarettes, or alcohol, or marijuana, * * * defendant solicited the complaining witness, to participate with her [sic] in sexual activities." Finally, the trial justice determined that the other-acts evidence displayed "a common opportunity, intent, plan, with those acts that [were] charged."

         The defendant ascribes error to the trial justice's admission of this evidence for several reasons. First, he argues that the other-acts evidence "was not reasonably necessary to the [s]tate's case and that the [trial justice] failed to make a determination that it was reasonably necessary * * *." He maintains that the evidence is "vague and not specific as to time, place and manner of sexual assault" and is merely cumulative.

         Although it is true that the trial justice did not specifically state that the other-acts evidence in this case was "reasonably necessary, " we are satisfied that he did not abuse his discretion by admitting the proffered testimony. As he explained in his decision, Stephanie's testimony concerning the more than one hundred instances of sexual misconduct during a three-year period was highly probative of defendant's lewd disposition toward her. Moreover, her testimony that "[u]sually, the same thing happened every time" was indicative of a common opportunity, intent, and plan with the offenses for which defendant was being tried.

         This Court has long recognized that "evidence of other not too remote sex crimes with the particular person concerned in the crime on trial may be introduced to show the accused's 'lewd disposition or * * * intent' towards the person[.]" Jalette, 119 R.I. at 627, 382 A.2d at 533 (quoting People v. Kelley, 424 P.2d 947, 955 (Cal. 1967)). We are well satisfied that, in the case under review, such evidence was both very probative and reasonably necessary. The state's entire case rested primarily upon Stephanie's testimony and more particularly upon her credibility, which was constantly called into question during the trial. Even her own mother testified that Stephanie had a reputation among the members of her extended family as being "more untruthful, than truthful." The admission of the other-acts evidence in this case tended to demonstrate defendant's lustful disposition toward his stepdaughter, as well as "his attitude regarding sexual activity with the victim." Gomes, 690 A.2d at 316.

         The defendant next argues that the trial justice erred by "fail[ing] to delineate a specific exception to which the [other-acts] evidence was relevant and fail[ing] to properly instruct the jury as to the limited [purpose] for which the evidence was to be considered." On the contrary, the trial justice explained that most courts allow evidence of other sexual acts against the same victim and that the evidence at issue is probative of defendant's "lewd disposition" toward Stephanie, and shows a common thread of defendant's use of a bartering system of sex for drugs, cigarettes, and alcohol. The trial justice's statements indicate that he determined that the uncharged conduct was interwoven with the charged conduct and necessary to paint a picture of defendant's continued abuse and use of a bartering system, a theory advanced by the state at trial. We are of the opinion, therefore, that the trial justice did not abuse his discretion in allowing Stephanie to testify about the other-acts evidence under this theory.

         The defendant concedes that the trial justice initially stated that he felt the evidence fell under the "lewd disposition" exception; defendant argues, however, that the trial justice mentioned other exceptions as well, thereby abusing his discretion by making his ruling "too broad." At trial, the trial justice explained that his enumeration of the other exceptions contained within Rule 404(b) was intended "to be inclusive, not scattershot[, ]" because Stephanie's testimony "has elements of each of those [exceptions] in it."

         We agree. In denying defendant's motion in limine, the trial justice stated that the uncharged acts "display[ed] a common opportunity, intent, plan, with those acts that are charged." We discern no error in the trial justice's ruling. The evidence in question, if believed by the jury, bespeaks of a carefully conceived plan to victimize Stephanie and to coerce her compliance with defendant's lustful desires by exploiting his role of authority as her stepfather and enticing her with cigarettes, alcohol, and other favors. It is both probative and permissible under Rule 404(b).

         The defendant also argues that the trial justice erred when he gave a "scattershot" limiting instruction to the jury regarding the permissible uses of the other-acts evidence in this case. Specifically, he maintains that the jury instruction concerning the Rule 404(b) evidence was too broad and misled the jury. "We undergo a review of jury instructions on a de novo basis." State v. Martin, 68 A.3d 467, 473 (R.I. 2013) (quoting State v. Lopez, 45 A.3d 1, 22 (R.I. 2012)). "Moreover, we review jury instructions 'to ascertain the manner in which a jury of ordinary intelligent laypeople would have understood them, * * * and we review challenged portions of jury instructions in the context in which they were rendered.'" Id. (quoting State v. Adefusika, 989 A.2d 467, 475 (R.I. 2010)). As Jalette, 119 R.I. at 627-28, 382 A.2d at 533 made clear, "[i]n its charge the trial court should not take a scatter-shot approach and list all of the exceptions to the exclusionary rule. Rather, it shall designate with particularity the specific exceptions to which the 'other crimes' evidence is relevant and delete from its charge the remaining exceptions."

         In the case at bar, the trial justice admonished the jurors that they could not consider the uncharged sexual assaults as evidence to prove character or that defendant had a propensity to commit sexual acts. He further instructed the jurors that they could consider the other acts of wrongful conduct only as evidence of motive, intent, absence of mistake, and defendant's lewd disposition towards Stephanie. We perceive no error in the trial justice's instructions. He properly informed the jury that it could not consider the uncharged acts of sexual misconduct as evidence of defendant's bad character or his propensity to commit sexual acts. He then delineated four specific uses for which the evidence might be ...


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