Court Providence County, No. P1/13-56A Netti C. Vogel
State: Jane M. McSoley Department of Attorney General
Defendant: John Joseph Karwashan, Esq. John M. Cicilline,
Present: Suttell, C.J., Goldberg, Robinson, Flaherty, and
Suttell, Chief Justice
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. 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
jury trial held in July 2014, the then-sixteen-year-old
complainant, whom we shall refer to as Maya,  testified that defendant, who is her
biological father, had repeatedly molested her beginning
shortly after she turned fourteen years old.
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."
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
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
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."
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.
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."
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
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."
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.
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
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.
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. 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.
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."
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."
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.
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
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. The defendant timely