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State v. Cavanaugh

Supreme Court of Rhode Island

April 28, 2017

John Cavanaugh.

         Source of Appeal Kent County (K1/14-79A) Superior Court Judicial Officer From Lower Court Associate Justice Brian P. Stern

          For State: Virginia M. McGinn Department of Attorney General

          Attorney(s) on Appeal For Defendant: Lara E. Montecalvo Office of the Public Defender

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


          Maureen McKenna Goldberg, Associate Justice

         This case came before the Supreme Court on February 23, 2017, on a writ of certiorari by the defendant, John Cavanaugh (defendant), from judgments of conviction entered in the Superior Court, following a jury trial.[1] The defendant was convicted of one count of first-degree sexual assault and four counts of second-degree child molestation sexual assault.

         Before this Court, defendant argues that the Superior Court justice committed reversible error in: (1) failing to strike testimony about defendant's interaction with certain family members after the sexual assault allegations came to light and then failing to give an adequate cautionary instruction to the jury; (2) denying defendant's motion to pass the case after the state alluded to an "empty chair" during cross-examination of defendant and during closing argument; (3) failing to exclude the victim's testimony that she had witnessed defendant inappropriately touching a family friend after she could not be located in order to corroborate the allegation; and (4) denying defendant's motion for judgment of acquittal on two of the counts in the indictment. For the reasons set forth herein, we affirm the judgments of conviction.

         Facts and Travel

         On June 20, 2013, the victim, Danielle M. (Danielle), [2] decided to "stand[] up for [her]self" by contacting the Warwick Police Department and reporting that defendant, her uncle, had sexually abused her, when she was between six and fifteen years old. She claimed that she was no longer "that scared little girl anymore." On January 28, 2014, an indictment was returned, charging defendant with one count of first-degree sexual assault in violation of G.L. 1956 § 11-37-2 and four counts of second-degree child molestation sexual assault in violation of § 11-37-8.3. The case was tried before a jury in November 2014.[3]

         The sexual abuse recounted in this case began at a family cookout in Warwick, Rhode Island.[4] Danielle, who was between the ages of eight and ten, was living with her mother's family, her grandmother, aunt, Carol C. (Carol), uncle, defendant, and cousin, John C. (John), in Warwick. Danielle testified that, when she came into the house in her bathing suit, she encountered defendant, who was in the living room. The defendant asked Danielle to sit on his lap, and then "he put his hand down in front of [her] bathing suit and began touching [her] vaginal area in a circular motion while kissing [her] neck and the side of [her] face." This continued for approximately one or two minutes. The defendant also told Danielle that she was going to be "a beautiful girl when [she] got older." Danielle also testified that, during this same family cookout, she saw defendant in her bedroom with a child named Rosemary, who was a close family friend and who lived in the same building.[5] Danielle stated that she observed defendant "doing the same thing to [Rosemary]" that he had done to her earlier that day. However, despite diligent efforts by the police, Rosemary could not be located. Warwick Police Detective Shaun Turcotte testified regarding the efforts he undertook to locate Rosemary, to no avail.

         On another occasion, Danielle testified that she and John-defendant's son-were playing in the family living room when defendant placed a blanket over the two cousins and "told [them] that [they] could touch each other if [they] wanted to." The defendant then put John to bed and joined Danielle in the living room. According to Danielle, defendant placed his hand inside her underwear and "began doing the same thing as the other times, moving his hand around in a circular motion." He again commented on Danielle's beauty and kissed her face and neck.

         The next incident occurred when Danielle was around thirteen years of age when she and defendant were watching a movie in defendant's bed. The defendant placed a comforter over Danielle, put his hand up her shirt, and began touching her breast and areola. He also "put his hand down [Danielle's] pants and * * * began doing the same thing as the other times." The final incident occurred after Danielle and her family moved to East Providence when she was around age fifteen. Danielle was spending the night at defendant's house because his home was closer to her school. She recalled that she was lying on the floor and watching television when defendant "got down on the floor" and grabbed her chest over her clothes. The defendant then unbuttoned Danielle's pants and inserted his finger into her vagina. She then rolled onto her stomach in order to avoid this assault.[6]

         Danielle initially attempted to tell her cousin, Jeffrey L. (Jeff), about the abuse when she was between the ages of eight and ten. Jeff testified at trial and corroborated this testimony, but added that Danielle indicated "that she was joking as like a way so as [he] wouldn't tell anybody." Many years later, on Christmas Eve 2010, when Danielle was having relationship issues, Danielle's mother, Audrey R. (Audrey), asked Danielle if she had ever been abused by anyone. Audrey testified that she began naming male figures in Danielle's life; when Audrey named defendant, Danielle "just looked at [her]." Although she denied having sexual intercourse with defendant, Danielle would not divulge much more. When defendant's wife, Carol, who is Audrey's sister, telephoned on Christmas Day, Audrey confronted defendant, stating: "I know what you did to my daughter. * * * I know what you did to my daughter when she was younger." When Carol asked him what they were talking about, defendant responded, "She's saying I molested Danielle." Audrey testified that she never used the word "molested" when she confronted defendant. The two families never spoke again. At trial, defendant testified and acknowledged that the families became estranged after the allegations, but he denied that he had sexually assaulted Danielle.

         The defendant was convicted of all counts in the indictment. The Superior Court justice denied defendant's motion for a new trial and sentenced defendant to life in prison for first-degree sexual assault, and ten years suspended, to run concurrently with the life sentence, on the remaining counts of second-degree child molestation.

         Because no timely appeal was taken in this case, defendant filed a petition for writ of certiorari, which this Court granted on October 20, 2015.

         Standard of Review

         "In reviewing the admission or exclusion of evidence, it is well settled 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. Peltier, 116 A.3d 150, 153 (R.I. 2015) (quoting State v. Clay, 79 A.3d 832, 838 (R.I. 2013)). It is likewise established "that a decision to pass a case and declare a mistrial are matters left to the sound discretion of the trial justice." State v. Dubois, 36 A.3d 191, 197 (R.I. 2012) (quoting State v. Barkmeyer, 949 A.2d 984, 1007 (R.I. 2008)). "We often have stated that 'the trial justice has a front row seat during the trial so that he can best evaluate the effects of any prejudice on the jury.'" Id. (quoting Barkmeyer, 949 A.2d at 1007). "The ruling of the trial justice * * * is accorded great weight and will not be disturbed on appeal unless clearly wrong." Id. (quoting Barkmeyer, 949 A.2d at 1007).

         "When passing on 'a trial justice's denial of a motion for judgment of acquittal, this Court applies the same standard as the trial justice.'" State v. Long, 61 A.3d 439, 445 (R.I. 2013) (quoting State v. Lynch, 19 A.3d 51, 56 (R.I. 2011)). "A motion for a judgment of acquittal should be granted only if the evidence, viewed in the light most favorable to the prosecution, is insufficient to establish the defendant's guilt beyond a reasonable doubt." Id. (quoting State v. Heredia, 10 A.3d 443, 446 (R.I. 2010)). "If, however, a reasonable juror could find the defendant guilty beyond a reasonable doubt, the motion should be denied." Id. (quoting Heredia, 10 A.3d at 446).


         Motions to Pass the Case

         The defendant twice moved to pass the case and argued that the state improperly alluded to defendant's failure to produce evidence. First, defendant directs our attention to the state's cross-examination of defendant concerning his wife and son and the fact that they did not contact authorities after the sexual assault allegations were made. According to defendant, this questioning improperly suggested that defendant bore a burden to produce evidence in this case, such that a mistrial was warranted. However, only the cross-examination concerning defendant's wife was preserved for appellate review. The record discloses that during cross-examination of defendant, the state asked about defendant's interaction with his son, John. Because there was no objection to this line of questioning, we deem this issue waived.

         Turning to the cross-examination concerning defendant's wife, the following colloquy occurred:

"Q. And you've talked to your wife since this?
"A. Yes.
"Q. Did you ever tell your wife to give a statement to Detective
"THE COURT: Overruled. You can answer yes or ...

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