Providence
County Superior Court, P2/13-1299ADV, Associate Justice Netti
C. Vogel.
For
State: Lauren S. Zurier Department of Attorney General.
For
Defendant: George J. West, Esq.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
Indeglia, JJ.
OPINION
MAUREEN MCKENNA GOLDBERG ASSOCIATE JUSTICE.
This
case came before the Supreme Court on May 3, 2017, pursuant
to an order directing the parties to appear and show cause
why the issues raised in this appeal should not be summarily
decided. The defendant, Hakim Funches (Funches or defendant),
appeals from a judgment of conviction entered in the Superior
Court, following a jury trial. The defendant was convicted of
one count of domestic assault by strangulation and one count
of simple assault. After hearing the arguments of counsel and
examining the memoranda submitted by the parties, we are of
the opinion that cause has not been shown and that this case
should be decided without further briefing or argument. We
affirm the judgment of conviction of the Superior Court.
Facts
and Travel
Funches
and the complaining witness, Jennifer Bacon (Bacon), were
involved in a relationship for approximately four years and
were the parents of two daughters. They also lived together
for a period of time.[1] On October 23, 2012, Bacon departed her
home at 4:30 p.m. to begin her night shift at Domino's
Pizza in Warwick, Rhode Island. Funches was at Bacon's
apartment, watching their children. The pair argued through
text messages and phone calls throughout Bacon's shift
about whether Bacon was romantically involved with another
man. Funches denied sending or receiving text messages from
Bacon on this particular night. Bacon testified that, because
Funches was so "hostile, " she went to a
friend's house after work. The defendant continued to
contact Bacon, threatening to "take [her] daughters up
to Massachusetts with no car seats at three something in the
morning" if she did not return home. Bacon responded
that she was returning home and that, as soon as she arrived,
Funches could leave. She returned home at approximately 3:30
a.m. It was a violent homecoming.
Bacon
testified that, when she entered her home, Funches
"immediately came from behind the door and ripped [her]
phone out of [her] hand and slammed [her] into the kitchen
table." Funches placed Bacon's cellphone in the
pocket of his pants. He then "threw [her] on the floor[,
] and he got on [her, ] and put his knees against [her]
shoulders and * * * took [her] chin and repeatedly smacked
[her] head into the tile floor." Throughout this
episode, Funches repeatedly declared that he would not
tolerate any romantic involvement with another man. When
Bacon stated that she was going to contact the police,
Funches responded that "[i]f [he was] going to go to
jail, [he was] going to make it worth it." At that
point, Funches lifted Bacon from the floor by her shirt and
tried to place her on a chair, but he did so with such force
that the chair "shattered" and Bacon fell to the
floor. Bacon testified that Funches "dragged [her by her
hair] back to the center of the room and started hitting
[her] head against the floor again." Funches then
grabbed their daughter's jump rope, wrapped it around
Bacon's neck, and "continuously choked [her] for
about an hour on and off." When it appeared that Bacon
was about to "pass out, " he would pause; but he
would then start choking her again. Bacon testified that she
was seeing stars and felt dizzy.
Funches
eventually stopped choking Bacon when his daughters began to
wake up in the next room; however, according to Bacon, the
abuse did not end. Funches dragged her by her hair to the
bedroom and threw her on the bed. When Bacon called Funches a
"scumbag, " he attempted to remove her slacks,
declaring, "I'll show you a scumbag." However,
when the youngest daughter began crying, Funches went to
check on the child and Bacon attempted to flee. The defendant
followed her and pushed her down two flights of stairs. She
eventually reached the front door and proceeded directly to
the Providence police station. She returned to the apartment
with three police officers. Funches subsequently was
arrested.
Funches
testified and provided a different version of events.
According to defendant, when Bacon returned home, he informed
her that he was ending their relationship, filing for joint
custody, and requesting physical placement of their
daughters. He explained that he made this decision after
Bacon told him that she did not have enough money for the
monthly bills. According to Funches, the argument lasted
approximately forty-five minutes, at which time Bacon left
the apartment. He denied that he physically assaulted Bacon.
Funches
was convicted by a jury of one count of domestic assault by
strangulation in violation of G.L. 1956 § 11-5-2.3 and
one count of simple assault in violation of § 11-5-3. He
was sentenced to ten years at the Adult Correctional
Institution, three years to serve with seven years of
probation on the strangulation count and one year, suspended,
on the simple assault count, to run concurrently. The
defendant also was required to complete a batterer
intervention program while incarcerated. He was acquitted of
one count of assault with a dangerous weapon-that being the
jump rope-in violation of § 11-5-2. He timely appealed.
Before
this Court, defendant argues that the trial justice erred in
denying his motion to pass the case after the prosecutor
posed an allegedly prejudicial question to defendant. The
defendant also contends that the trial justice erred in
denying his motion for judgment of acquittal, arguing that he
was twice placed in jeopardy for the same act.
Standard
...