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State v. Perez

Supreme Court of Rhode Island

June 6, 2017

Helberth Perez.

         Superior Court Providence County, No. P1/13-56A Netti C. Vogel Associate Justice

          For State: Jane M. McSoley Department of Attorney General

          For Defendant: John Joseph Karwashan, Esq. John M. Cicilline, Esq.

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


          Suttell, Chief Justice

         The defendant, Helberth Perez, was indicted and convicted by a jury of six counts of first-degree sexual assault and three counts of second-degree sexual assault, relating to conduct involving his daughter.[1] He now appeals from the Superior Court judgment of conviction. For the reasons set forth in this opinion, we vacate count 5 of the judgment of conviction and affirm the judgment of the Superior Court in all other respects.


         Facts and Travel

         At a jury trial held in July 2014, the then-sixteen-year-old complainant, whom we shall refer to as Maya, [2] testified that defendant, who is her biological father, had repeatedly molested her beginning shortly after she turned fourteen years old.

         Maya testified that, at the end of her fifth-grade year, her parents separated and she moved in with defendant in the middle of her seventh-grade year, a couple of months before her fourteenth birthday. She recalled that, "when [she] [was] younger, [defendant] * * * hit [her] a lot, " as a form of discipline, with his belt on her backside; but once she became older, defendant would "hit [her] * * * once in a while for little things." Maya further testified that she moved in with defendant "[b]ecause he promised [her] things." In particular, defendant promised Maya something that was really important to her: "gett[ing] [the] family back together." The defendant also promised Maya "[c]lothes, food, [and] anything [that she] wanted" for her to live with him because, at the time, Maya's mother "didn't have a lot of money."

         Maya testified that the abuse began shortly after her fourteenth birthday, in January 2012-approximately three to four months after moving in with defendant. According to Maya, one morning she had an appointment with an orthodontist. On that morning, she and defendant were watching the History Channel in defendant's room, as was customary for them. The defendant watched from the bed while Maya sat on the floor. Maya explained that she did not like visiting the orthodontist because "[t]hey would put needles in [her] mouth, and [she] didn't like it." According to Maya's testimony, defendant stated that they did not have to go to the appointment, and he asked her, "Why don't you sit on the bed?" Maya testified that she complied.

         Maya continued to testify that she was lying on her side, "facing the TV, " and that defendant "was at the other end where the pillows were * * * [and] where the bed frame was." The defendant then "got * * * really, really close * * * where he was touching * * * [her] butt." He then told her to remove her pants. At this moment, Maya "froze, " and defendant removed her pants. Maya testified that defendant then exposed his erect penis and "told [her] to suck it." Maya said that defendant "put [his penis] in [her] mouth and made [her] suck it for * * * five minutes." The defendant then told her to not "tell anyone, or [he]'ll go to jail or get deported."

         Maya testified that, on a separate but similar occasion, approximately "a week or two" later, while in defendant's bedroom, he "asked if [she] loved him." She answered affirmatively. The defendant then said, "I want you to suck it." According to Maya, she "froze, " and defendant "put [his penis] in [her] face and * * * practically told [her] to suck it." Maya further testified that defendant "made [her] suck [his penis] for like five to ten minutes, and then he left." Before he left, defendant again repeated to her to "[not] tell anyone, or [he]'ll get deported or go to jail."

         Approximately three days later, while taking a shower, Maya "heard the door creak;" and, suddenly, defendant "opened the curtain and stood there" as she "clean[ed] [her]self." Maya testified that defendant "stood there for, like, a minute or two and said, 'You're not cleaning yourself right.'" The defendant then "took the soap, * * * put it in his and [her] hand, and he forced [her] legs open and started rubbing * * * [her] private area, " telling her, "[t]his is how you wash it." He then took his hand away and told Maya to continue "rub[bing] [it] [her]self." Maya said that she had to yell at defendant "to get out" "four times" before he left the bathroom.

         The following spring or summer, Maya came home from a Saturday morning class and decided not to attend defendant's significant other's birthday party. Maya testified that she fell asleep alone in the house. Upon awakening, she "went to * * * get [her] [video] game and play it and [discovered] it was missing." Subsequently, while riding in a car with defendant, he told her that, "[i]f [she] want[ed] to get [her] [video] game back, [she] [would] have to do something." According to Maya, when they arrived home and were inside the apartment, defendant "put his hands in [her] * * * back pockets, and * * * dragged [her] into [his] [bed]room." Maya testified that defendant undressed her, "took off his pants, and he told [her] to suck [his penis, ]" then he "put [her] on the bed and * * * he put his fingers [in her vagina]." The defendant then "told [her] to suck it again" and proceeded to put his penis in her mouth and, after forcing oral sex, ejaculated in her mouth, removed his penis from her mouth, and "told [her] to swallow it."

         After graduating from the eighth grade, Maya visited her mother for "[t]wo to three weeks" because she "was upset with [defendant] [after] he hit [her]." Maya testified that, in that period of time, she had a "fine" experience with "really funny moments" but, after a while, she began "feeling bad" because her mother did not "have a lot of money, and she ha[d] so many kids to take care of * * * [in addition to being] pregnant" at the time. Specifically, Maya testified that she felt "bad that [she] [was] wasting and using so much space." Maya continued to testify that she got "really, really close to telling [her] mom" about defendant's abuse but did not because her mother "was pregnant" and Maya "didn't want her to worry." As a result, Maya returned to defendant's home.

         Upon arriving at defendant's home, according to Maya, he told her that he missed her, took her hand, and "brought [her] to his room." In the bedroom, defendant, once again, forced Maya to perform fellatio. Maya testified that, in addition to putting "his fingers in [her] [vagina], " defendant ejaculated in her mouth and "made her swallow it." Once defendant finished, he admonished Maya by stating: "Don't tell anyone. I'll get in trouble, go to jail or get deported."

         Maya testified that, a "couple days" later, after being repeatedly questioned by Hillary, her older sister, she broke down crying and told Hillary and another sister what defendant had been doing.[3]

         Hillary testified that, in July 2012, on an occasion when she was residing with defendant and Maya, she noticed that Maya "was acting very rebellious towards [defendant]." According to Hillary, one day Maya refused to assist her sisters after defendant had asked them to clean the house. Hillary testified that Maya was "acting so rebellious" because defendant had asked her to clean the house. She also explained that Maya nodded her head affirmatively when she asked if defendant had "done anything to" her. Hillary continued to testify that Maya "didn't want to tell [them] what [defendant] was doing, " but that she "assumed it was something sexual." According to Hillary's testimony, she made this assumption because defendant had also abused her when she was twelve years old-approximately eight years before the trial.

         At this point, the trial justice interrupted the examination and provided a limiting instruction to the jury. The trial justice instructed the jury that the "evidence that * * * [d]efendant allegedly committed a sexual act or another act with the witness, [Hillary], which alleged act [was] not charged in this case, [was] admissible for a limited purpose." The trial justice then stated that the evidence was "not admissible to show that * * * [d]efendant had a propensity to commit the acts charged in this case;" the trial justice indicated that the evidence was admissible, however, "to show motive, opportunity, intent, preparation, plan, and sense of mistake or accident. In other words, it [was] admissible to show a disposition, perhaps, but not as evidence that [defendant] had a propensity to commit the act alleged." The trial justice then allowed Hillary to continue testifying. The defendant made no objection to this limiting instruction.

         According to Hillary's testimony, on "one summer night, " she was not "feeling very well so [she] crawled into" defendant's bed. Hillary testified that defendant was in the bed with his then-wife, Courtney.[4] After she fell asleep, Hillary testified, "in the middle of the night, " she was awakened by her father "touch[ing] [her] * * * breast[s] and * * * vagina." She testified that, although she was clothed, defendant reached "under" her garments to touch her. After a "couple of minutes" of defendant touching her, Hillary testified that she left defendant's bedroom.

         Hillary further testified that, "a couple days later, " defendant groped her again. Hillary said that, after she fell asleep while watching television in defendant's bedroom, "the same thing happened."

         Hillary testified that, after these two occurrences, she asked Courtney if defendant "touch[ed] [her] at night[.]" Hillary recounted that Courtney answered "yes, " and asked her the reason for her question; Hillary responded by telling her of the two incidents in which defendant touched her. Hillary further testified that Courtney summoned defendant into the living room to discuss these incidents. According to Hillary's testimony, "[defendant] said that it was an accident and that he was sleeping[;] [that] [he] [did] [not] remember any of it."

         On the witness stand, Hillary recalled that, "within a week or week and a half" after discovering what defendant had allegedly done to Maya, she informed Courtney. Her testimony elucidated that Hillary, along with Maya and their sister, met with Courtney at the Providence Place Mall to inform Courtney of defendant's sexual abuse of Maya. Hillary indicated that she and her sister "were the ones talking to [Courtney]" at the mall; Maya did not share any information with her mother at that moment.

         Afterwards, Courtney took Maya to the Central Falls police station. There, Maya gave a statement to police concerning defendant's conduct. Thereafter, Maya was taken to a hospital and examined by a doctor. In her testimony, Maya indicated that she had not informed anyone of defendant's abuse because she was apprehensive that they would tell defendant and that "[h]e would hurt" her as a result.

         At the close of the state's case, defendant moved for a judgment of acquittal on all counts, which the trial justice denied. On July 17, 2014, the jury found defendant guilty of six counts of first-degree sexual assault and three counts of second-degree sexual assault. The defendant was sentenced on September 29, 2014, to a fifty-year sentence, twenty-eight years to serve at the Adult Correctional Institutions, and twenty-two years suspended with probation upon release.[5] The defendant timely appealed.


         Standard ...

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