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State v. Perry

Supreme Court of Rhode Island

April 25, 2018

State
v.
Jesse S. Perry.

          Providence County Superior Court (P1/13-1113A) Netti C. Vogel Associate Justice.

          For State: Virginia M. McGinn Department of Attorney General

          For Defendant: Thomas M. Dickinson, Esq.

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

          OPINION

          Paul A. Suttell, Chief Justice.

         The defendant, Jesse S. Perry (defendant or Perry), appeals from a judgment of conviction on three counts following a jury-waived trial in the Superior Court. A justice of the Superior Court found the defendant guilty of two counts of first-degree child molestation sexual assault in violation of G.L. 1956 § 11-37-8.1, and one count of second-degree child molestation sexual assault, in violation of G.L. 1956 § 11-37-8.3. The trial justice sentenced the defendant to two life sentences, to run concurrently, on each count of first-degree child molestation sexual assault, and a thirty-year sentence, to run concurrently with the life sentences, on the count of second-degree child molestation sexual assault. For the reasons set forth herein, we affirm the judgment of the Superior Court.

         I

         Facts and Travel

         In May 2012, Sergeant Steven St. Pierre of the Bristol Police Department was conducting an investigation concerning possible child molestation when the officer came into contact with Brian.[1] Brian directed Sgt. St. Pierre to contact Adam, the complainant, whom Brian alleged defendant had molested. Adam came forward to the Bristol Police Department; and, as a result of Adam's disclosure to authorities, defendant was arrested on January 4, 2013. On April 12, 2013, the state charged defendant with nine counts: three counts of first-degree child molestation sexual assault, in violation of § 11-37-8.1 (counts 1, 2, and 3); two counts of second-degree child molestation sexual assault, in violation of § 11-37-8.3 (counts 4 and 5); two counts of first-degree sexual assault, in violation of G.L. 1956 § 11-37-2 (counts 6 and 7); and two counts of second-degree sexual assault, in violation of G.L. 1956 § 11-37-4 (counts 8 and 9).

         A

         The State's Motion In Limine

         On May 15, 2013, the state filed a motion in limine in the Superior Court seeking to present testimony from five witnesses about alleged incidents of defendant's prior sexual misconduct that had occurred between the years 1977 and 1980.[2] The state argued that the witnesses' testimony was admissible pursuant to Rule 404(b) of the Rhode Island Rules of Evidence, which provides that "[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[, ]" but can be admitted "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or to prove that defendant feared imminent bodily harm and that the fear was reasonable." The state maintained that nearly all the witnesses who had come forward with allegations of sexual abuse by defendant were involved in youth sports in Bristol, had a difficult home life, and were offered a "sports massage" prior to the sexual abuse. Accordingly, the state asserted that defendant's prior sexual misconduct was "probative of [his] modus operandi of preying on vulnerable young boys[, ]" and tended to prove defendant's motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident.

         The defendant opposed the state's motion in limine and maintained that the testimony was inadmissible under Rule 404(b). He cited to State v. Mohapatra, 880 A.2d 802 (R.I. 2005), for the proposition that "when the evidence offered proves prior sexual misconduct with someone other than the complainant, 'nonremote similar sexual offenses' are admissible under the exceptions of Rule 404(b)." Mohapatra, 880 A.2d at 806 (quoting State v. Jalette, 119 R.I. 614, 627, 382 A.2d 526, 533 (1978)). The defendant asserted that the alleged incidents of prior sexual misconduct did not satisfy the requirements of nonremoteness and similarity as decreed by this Court. He argued that the incidents were remote from the charged acts because they occurred between the late 1970s and early 1980s, while the charged acts occurred between 1990 and 1999. Further, defendant maintained that the charged acts were not consistent with the modus operandi of the alleged prior sexual misconduct, which defendant summarized as follows: "[defendant] would use the opportunity of a sports injury, claim that he was pursuing training in massage therapy, invite the victims to his home, and would inappropriately touch the victims during the course of a 'sports massage.'" In contrast, defendant noted that Adam's alleged abuse was not an isolated incident that occurred under the guise of a sports massage-rather it allegedly occurred over the nine-year period during which Adam lived with defendant.

         The defendant alternatively argued that the prior sexual misconduct was inadmissible under Rule 403 of the Rhode Island Rules of Evidence because it had little probative value and was "unquestionably" prejudicial. Specifically, he again asserted that the alleged prior sexual misconduct was too remote and dissimilar to be probative of his modus operandi. With respect to the evidence's risk of prejudice, defendant maintained that it was likely "that a jury would either seek to punish [defendant] for those uncharged actions or use the 404(b) evidence for its impermissible purpose * * *."

         Before the trial commenced, the trial justice heard the parties on the state's motion in limine. The state cited to State v. Mitchell, 80 A.3d 19 (R.I. 2013), for the principle that when a defendant is charged with second-degree child molestation sexual assault, which is a specific-intent crime that requires proof that the defendant touched the complainant "for the purpose of sexual arousal, gratification, or assault[, ]" similar instances of sexual misconduct are admissible to show the defendant's intent. Mitchell, 80 A.3d at 29 (quoting State v. Coningford, 901 A.2d 623, 630 (R.I. 2006)). The state then discussed the similarities between the alleged prior sexual misconduct and the charged act; each incident occurred when the children were around the same age, in the same location, and involved the same act of sexual misconduct. The state maintained that the alleged prior sexual misconduct demonstrated defendant's "systematic and repeated molestation of these young boys."

         The defendant disputed the state's contention that the prior sexual misconduct was probative of his intent to self-gratify. He argued that the trial justice would have to infer that "when [defendant] finished with the sports massage, he goes into a bathroom[] * * * [a]nd then when he comes back, the witnesses are going to draw the inference that somehow he saw something, in the form of a child's penis, went behind a closed door, and gratified himself." The defendant maintained, however, that there was no evidence of self-gratification.

         The trial justice rendered her decision on the state's motion in limine. Although she was mindful of the time span between the alleged prior sexual misconduct and the charged acts, she found that "[t]he similarities between the relationship of the parties, the nature of the alleged assault and the location of the alleged assault would be so strong that the [c]ourt would find that the span of time between the alleged assaults * * * is not rendered so remote that the [c]ourt shall preclude the evidence." She determined that the 404(b) evidence was relevant to establish motive, opportunity, intent, preparation, plan, identity, and absence of mistake or accident. Accordingly, the trial justice granted the state's motion in limine and allowed the state to present testimony from witnesses about prior sexual misconduct perpetrated by defendant.

         B

         The State's Case

         A jury-waived trial began on November 18, 2014. Below we summarize the relevant testimony adduced at trial.

         The complaining witness, Adam, testified. At the time of trial, he was thirty-three years old. He testified that he first met defendant when he was eight years old and defendant was the coach of his youth football team. Adam said that defendant gave him rides to practices and games because his parents "were always working." Adam described the progression of his relationship with defendant: "It grew into going out to dinner, going to movies, and then finally it grew into sleeping over during the weekends and then moving in." He testified that he moved in with defendant at the age of twelve and described this development:

"My parents saw a huge difference in my attitude and everything. I mean, I had two older brothers who were hell for my mom, and she basically thought it was best in my, you know, interest and pretty much allowed me to stay there. He was a teacher. I mean, to them, you know-something holy, I guess, because it would save me from going with my brothers. Both my brothers got deported. He helped me in every single way he could so my parents thought it was the best thing for me."

         Adam testified about the first incident of sexual abuse. He was approximately nine years old and was at defendant's house watching a television show about cancer and circumcision. Adam, unsure of whether he was circumcised, asked defendant, who, in turn, asked Adam to show him his penis. Adam testified that defendant began washing Adam's penis in the shower. Thereafter, Adam asked defendant what "a normal penis" looked like, and in response defendant showed Adam his penis and told him if he rubbed it, it would get bigger. Adam testified that defendant's penis was erect and that defendant ejaculated. Adam testified that this incident occurred in defendant's bedroom, on defendant's bed.

         Adam testified that he did not tell his parents about the incident because he was afraid and he did not understand what had happened. He said that, after this first incident, the touching continued every weekend and "[i]t turned into getting in the shower together, washing each other." Adam characterized these incidents as him masturbating defendant and testified that they continued until he was approximately seventeen-and-a-half years old.

         In his testimony, Adam discussed the first incident of fellatio, which occurred when he was approximately eleven or twelve years old. He stated that defendant performed fellatio on him at least once per week, but it progressed to three to four times per week. Adam testified that, shortly after defendant began performing fellatio on him, he began performing it on defendant. He testified that the incidents took place in defendant's bedroom, where he regularly slept with defendant. Adam moved out of defendant's house when he went to college; after he dropped out of college, Adam moved in with his brother. He did not move back in with defendant because he did not want the sexual abuse to reoccur.

         The state then introduced the testimony of three 404(b) witnesses, beginning with Colin.[3]Colin, who was forty-seven years old at the time of trial, testified about an incident that occurred when he was approximately twelve years old. He went to defendant's house for a sports massage after pulling a muscle in his groin during football practice. Colin testified that defendant was giving him a full body massage, then told him to roll over, removed Colin's underwear, and moved Colin's penis out of the way of the area he wanted to massage. He described defendant as "shaking very violently" while this happened. Colin testified that his penis was not injured.

         Colin discussed his involvement with a 2004 investigation of defendant. He said that he was at the beach with his brother and friends when they began discussing "the whole system of the Perry brothers and how they were always around kids' houses * * *." He said that he became upset thinking about what defendant did to him and he gave a statement to the Bristol Police Department about the incident.

         Next, David, who was forty-six years old at the time of trial, said that he first met defendant when he was nine years old and tried out for a little league baseball team that defendant coached. David testified about an incident of sexual misconduct by defendant that occurred when he was approximately nine or ten years old. Because David intended to play football in the fall, defendant repeatedly badgered him about getting a jockstrap and a cup. He testified that defendant asked him "[m]any, many times" to show his genitals to him so that defendant could tell David what cup size he needed. David eventually complied in a shed on defendant's property; he pulled down his pants and underwear. He testified that defendant then fondled his genitals. David said that defendant never told him what cup size he needed.

         David discussed another incident that occurred when he was approximately nine or ten years old. While driving David home from a team outing at the movies, defendant told David that he had to talk to him. David testified, "[h]e basically took [me] by my shoulders very tight * * * and he proceeded to tell me that he was falling in love with me." In 2004, David contacted the Bristol Police Department and gave a statement about the incident. He was prompted to come forward about the incident after discussing defendant at the beach with his brother and friends, including Colin. David said that he went to the police because "[he] didn't want other kids to go through * * * what happened to [him]. It was a known secret. People knew what was going on."

         Brian, who was forty-five years old at the time of trial, testified next. He knew defendant because, as a child, he lived on the same street as defendant, and defendant coached the little league baseball team with which Brian was involved. He testified about an incident involving defendant that occurred when Brian was approximately ten years old. He said that defendant invited him over to his house to show him nunchucks, knowing that Brian was interested in martial arts.[4] While Brian sat on the edge of defendant's bed in his bedroom, defendant began rubbing his back and asked Brian if he wanted a massage. Brian testified that defendant asked him to take his shirt off, defendant pulled Brian's shorts off, and "he started to work his way down towards [Brian's] private areas." Brian testified that "[defendant's] hands were on my penis. I mean, I don't know any other way to describe it, rubbing * * *." He approximated that the incident lasted between five and ten minutes. After this first incident, Brian testified, defendant gave him three to five more "massages, " but they were not to the degree of the first incident.

         Brian also testified about his relationship with Adam, the complaining witness. Brian was in his early twenties when he first met Adam, who was approximately nine or ten years old at the time. They became good friends and Adam ended up working with Brian. Brian testified that, at some point in their friendship, he and Adam confided in each other about what defendant did to them.

         The state then rested its case and dismissed count 2 pursuant to Rule 48(a) of the Superior Court Rules of Criminal Procedure.[5]

         C

         The Defendant's Motion to Dismiss

         The defendant then moved pursuant to Rule 29(b) of the Superior Court Rules of Criminal Procedure, which provides that "[i]n a case tried without a jury, a motion to dismiss may be filed at the close of the [s]tate's case to challenge the legal sufficiency of the [s]tate's trial evidence." The defendant argued that the counts were duplicitous. He referenced State v. Saluter, 715 A.2d 1250 (R.I. 1998), where this Court addressed the issue of "duplicity, " which is "the joining of two or more offenses, however numerous, in a single count of an indictment." Saluter, 715 A.2d at 1253.

         On December 16, 2014, the trial justice issued a decision on defendant's motion to dismiss. At the outset, she noted that the state dismissed count 2, and it also dismissed count 9 "after the [c]ourt brought an inconsistency to the attention of the parties * * *." She then recited the standard for deciding a motion to dismiss, noting that "she is required to weigh and evaluate the trial evidence, to pass upon the credibility of the trial witnesses and engage in inferential processes impartially, not being required to view inferences in favor of the nonmoving party and against the moving party." The trial justice then made credibility findings. She noted that the case depended on the credibility of Adam, whom she deemed to be a credible witness. The trial justice, on the record before her, found defendant to be "a pedophile who developed a sexual relationship with [Adam], which relationship continued throughout his childhood and into his teens. When their sexual contact began, [defendant] convinced the young boy that it was normal, and their sexual relationship became part of their lives together, part of [Adam's] life." She further found that "[d]efendant had a pattern of engaging in sexual contact with young boys he either met through his work as an athletic coach or in the case of [Brian], who he met as a neighbor, but who he developed a coach/player relationship with."

         The trial justice accepted the testimony of the 404(b) witnesses and found that the testimony satisfied Rule 404(b)'s requirements despite the fact that Brian, Colin, and David testified about single acts of sexual misconduct by defendant, whereas Adam endured regular, long-term sexual abuse, noting that defendant had a greater opportunity to groom and abuse Adam.

         The trial justice then discussed the specific counts charged against defendant. The trial justice addressed counts 1 and 3, which charged defendant with first-degree child molestation sexual assault. Specifically, count 1 related to fellatio by Adam on defendant, and count 3 related to the first incident of fellatio by defendant on Adam. The trial justice regarded Adam's testimony on each of these incidents as credible, and accordingly denied defendant's motion to dismiss with respect to counts 1 and 3.

         The trial justice also denied defendant's motion to dismiss with respect to count 4, which charged defendant with second-degree child molestation sexual assault, specifically the first incident of sexual contact, when defendant touched Adam's penis. She regarded as credible Adam's testimony about this incident, which he said occurred in the shower under the guise of washing Adam's uncircumcised penis. She dismissed count 5, however, which also charged defendant with second-degree child molestation sexual assault, because she found it duplicitous in view of that fact that the indictment "[did] not identify this particular act of second degree sexual assault ...


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