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State v. Cahill

Supreme Court of Rhode Island

November 30, 2018

State
v.
Patrick Cahill.

          Providence County Superior Court P1/12-2771A Daniel A. Procaccini, Associate Justice

          For State: Virginia M. McGinn Department of the Attorney General

          For Defendant: Robert B. Mann, Esq.

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

          OPINION

          Paul A. Suttell, Chief Justice

         The defendant, Patrick Cahill, was found guilty of second-degree child abuse, in violation of G.L. 1956 § 11-9-5.3(b)(2), by a Superior Court trial justice sitting without a jury in Providence County. The trial justice sentenced him to ten years' imprisonment, with six months to serve and the remainder suspended, with probation. The defendant now appeals from the judgment of conviction, arguing that the trial justice erred by (1) allowing opinion testimony by a witness not tendered as an expert; (2) failing to consider simple assault as a lesser-included offense to second-degree child abuse; and (3) denying defendant's motion for a new trial. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

         I

         Facts and Procedural History

         The defendant was charged with one count of second-degree child abuse stemming from an incident with his half-sister. He waived his right to a jury trial, and a trial commenced before a justice of the Superior Court on September 22, 2014. The state called four witnesses: complaining witness Abigail; her sister, Beth; her mother, Danielle;[1] and Dana Kaplan, M.D. The defendant presented two witnesses: himself and his girlfriend, Amanda Paquette (Paquette). Their testimony is summarized below.

         A

         Testimony

         1

         Abigail and Beth

         Abigail testified that, on August 20, 2012, her mother, Danielle, dropped her and her sister Beth at their father's house in Woonsocket on Danielle's way to work.[2] The defendant is half-brother to Abigail and Beth; the three share the same biological father. Abigail and Beth lived with their mother and grandmother in Burrillville after their mother and father separated. Both Abigail and Beth testified that they had a normal sibling relationship with defendant and, for the most part, got along well with defendant.

         A short time after arriving at the house, the girls discovered that defendant was at home, and they went downstairs to defendant's room. Beth testified that she stayed in defendant's room for only a short time before returning upstairs to finish watching a television show, but that Abigail remained with defendant to watch television and watch defendant exercise. At some point, Beth testified, Abigail returned upstairs to ask Beth if she could go outside and play with the girl next door. Beth told Abigail that it was "up to [defendant.]" Abigail testified that she then returned to defendant's room to ask him if she could go outside, but that defendant said no.

         Abigail, unhappy with defendant's answer, ran up the stairs and out of the house. Abigail recalled seeing defendant's girlfriend, Paquette, when she ran outside. Abigail testified that she ran around and attempted to get in Paquette's locked car; she was "scared" because defendant was chasing her. Beth testified that she saw Abigail running up the stairs, with defendant following behind her. She also heard both Abigail and defendant yelling as they ran outside. Beth further testified that she heard defendant tell Abigail to "get back over here" and that he "is the boss."

         The defendant eventually caught up with Abigail at Paquette's car, according to Beth. Abigail testified that defendant then grabbed her hair, which was in a high ponytail, and pulled it straight up. Abigail testified that it hurt when defendant grabbed her ponytail and that defendant did not let go of her hair as he "pulled [her] into the house." Beth testified that she stood on the steps of the house, about twenty-eight to thirty feet away from Abigail, and watched defendant grab and pull Abigail into the house by her ponytail. Beth recalled that Abigail was crying while defendant held on to her ponytail.

         According to Abigail, once inside the house, defendant "threw [her] on the couch" in the living room and let go of her ponytail. Next, defendant placed his knee on her chest and stomach area, which Abigail testified gave her a "sharp pain[.]" According to Abigail, defendant then grabbed and squeezed her cheeks with one hand and placed his other hand on her throat as she continued to cry. Although Abigail could not recall how hard defendant squeezed her cheeks, she said that it hurt "[a] little bit." As for the hand on her throat, Abigail testified that defendant "pushed down a little bit[, ]" and that his hand was "a little tight" on her neck. Abigail testified that at this time she was still crying and had "[a] little bit" of trouble breathing. Abigail remembered defendant telling her that she needed to listen to him, but testified that her attempted response "wasn't clear because he was squeezing [her] cheeks."

         Beth gave a similar account of the events on the couch. She testified that she and Paquette had followed defendant and Abigail into the living room of the house, and that she heard defendant repeatedly tell Abigail that he was "the boss," that he "runs the show here[, ]" and that the girls needed to listen to him. Beth testified that she watched Abigail try unsuccessfully to get up off the couch at first, and that she did not see Abigail kick or spit at defendant at any time. Beth saw defendant put his knee on Abigail's stomach and push, as well as squeeze her cheeks and place his hand on her throat. Beth stood a "cushion" distance away from defendant at the couch and yelled at him to get off Abigail when she saw Abigail "change color in her face[.]" Beth recalled that defendant had his hand on Abigail's throat for a minute but squeezed for only about five seconds, and that, during that time, Abigail's face turned from pink to "a deeper red." Beth continued to yell at defendant to stop, and tried to take defendant's hand off Abigail's neck. The defendant eventually let go of Abigail's cheeks and neck, stood up, and left the room.

         Beth testified that, immediately after defendant let go, Abigail coughed and tried to catch her breath. Beth took Abigail upstairs into the bedroom they shared at their father's house and called their mother. Beth proceeded to take pictures of Abigail on her cell phone, following her mother's instructions. Those pictures were introduced into evidence at trial. Beth then brought Abigail outside to wait for their mother to pick them up from the house. Both Abigail and Beth recalled being taken to their "Aunt Sara's" house immediately after the incident, and then to the police station later that day. Abigail testified that her mother brought her to the hospital the following day to be examined, and that she returned home later that day.

         2

         Danielle

         Danielle testified that she dropped her daughters off at their father's house on the morning of August 20, 2012, intending to pick them up after she got out of work at noon. At 11:50 a.m., Danielle received a phone call from Beth, who told her about the incident with defendant. Danielle raced to pick the girls up from the house; she saw them sitting outside when she arrived, about fifteen minutes after Beth's phone call. She then drove the girls to her friend's house, about a minute away from defendant's house. Once at her friend's house, Danielle noticed a moon-shaped mark on the right side of Abigail's cheek. She called the girls' and defendant's father to discuss how to deal with the incident; however, the two were not in agreement as to how to proceed. After a couple hours at her friend's house, Danielle took the girls to the Woonsocket police station, where Abigail, Beth, and Danielle were interviewed and gave statements. Later that night, after some thought, Danielle decided to file a complaint against defendant. The following day, Danielle took Abigail to Hasbro Children's Hospital after she complained of cheek pain. Danielle testified that Abigail was examined and that they stayed at Hasbro for a couple hours before Abigail was discharged. Danielle recalled that after returning from the hospital, police officers arrived at her friend's house to take photographs of Abigail. Those photographs were also introduced into evidence at trial.

         3

         Dana Kaplan, M.D.

         The state called Dr. Dana Kaplan, a child-abuse pediatrics fellow at Hasbro Children's Hospital, to interpret the medical records admitted by stipulation as a full exhibit at trial. Doctor Kaplan testified that she was a licensed physician in Rhode Island and New York, and that, through that work, she reviewed medical documentation and reports on a daily basis. She confirmed during her testimony that she was not Abigail's treating physician, but that she had reviewed Abigail's medical records at the state's request. Doctor Kaplan testified that the medical records indicated that Abigail's "chief complaint was an attempted strangulation."

         When the prosecutor asked about strangulation, Dr. Kaplan explained: "[S]trangulation is part of an umbrella term asphyxia, lack of oxygen. You can provide lack of oxygen through strangulation and through suffocation. Strangulation is when you apply external forces to the neck to close down the vein and artery." She expounded that strangulation by force would result in the impairment of a bodily function-namely, "[d]elivery of oxygen to the brain." Doctor Kaplan was also shown the photographs of Abigail that Beth had taken on her phone following the incident, and she testified that those photographs were consistent with Abigail's medical records. Lastly, Dr. Kaplan testified that she did not find it uncommon that Abigail would be discharged from the hospital after a couple hours or that no further tests would be performed.

         4

         Patrick Cahill

         The defendant in his testimony described a different version of the events of August 20, 2012. At the time of the incident, defendant was twenty-three years old and working as a Woonsocket police officer. He testified that, on that day, he went upstairs to greet Abigail and Beth when he heard movement in the house. The defendant confirmed that, at some point after he had gone back downstairs to his bedroom, Abigail and Beth came down to watch television and watch him exercise. After a few minutes in his room, defendant recalled that Abigail began "tearing [his] things up" by throwing his clothes on the floor and dumping out his jar of loose coins. The defendant testified that both Abigail and Beth also knocked down travel souvenirs that he kept on the top of his bureau. The defendant then told the girls that they "had to go upstairs * * * if they [were] going to tear everything apart * * *." The defendant testified that he grabbed Abigail by the arm and walked her upstairs; Beth also walked upstairs. He recalled that Abigail said to him, "[Y]ou can't touch me" as he walked her up the stairs. Abigail returned downstairs within a minute and repeated this behavior two more times, and defendant brought her upstairs each time. On one of the two trips back upstairs, defendant testified, Abigail "dropped dead weight" as he moved toward her, so he picked her up with one hand behind her back and one behind her legs to carry her upstairs.

         After the third time he brought Abigail upstairs, defendant testified Abigail and Beth yelled down to him to come up the stairs; defendant began up the stairs, at which point he saw a substance, either salad dressing or mustard, placed "on the stairs so that [he] would slip." The defendant again told both girls to "stop, knock it off, stop, go outside, play, go sit down, watch TV, [and] quit tearing up the house." The defendant returned to his bedroom, and, a couple of minutes later, Abigail returned to defendant's room and told him that she was going to the "Dollar Store," which was about a quarter of a mile from defendant's house. The defendant told Abigail that he would not take her to the store, and he followed Abigail when she ran up the stairs and out of the house. The defendant testified that, when he observed Abigail ask Paquette to take her to the store, he told Paquette that he would not take the girls because "they were not listening."

         The defendant testified that, after the exchange between defendant and Paquette, Abigail walked out into the middle of the street. When defendant told her to get on the sidewalk, Abigail taunted him with a "hip shake," telling him, "I don't have to listen to you." The defendant recalled that Abigail was "playing this game to try to get away from [him]" and that his concern was to get her out of the street. When defendant caught up to Abigail, he grabbed her by "something"-he was not sure what he grabbed-before Abigail dropped to the ground, dead weight, as she had in the basement. The defendant said that he "scoop[ed] [Abigail] up," with his hands underneath her arms, waist, and chest, to get her out of the street. Once defendant walked Abigail to the sidewalk, she put her feet underneath her, and he took her by the arm to walk her into the house. The defendant recalled that Abigail began "headbutting" him in the chest and kicking backwards as he walked her from the sidewalk into the house. The defendant testified that he placed his hand on the back of Abigail's neck to prevent her from continuing to "headbutt" him. Throughout his testimony, defendant emphasized that he was not mad or upset, but that he was annoyed and aggravated at Abigail's behavior.

         The defendant testified that, once inside the house, he brought Abigail to the couch, and when he sat her down, she immediately stood up and took a step toward the entrance of the house. The defendant then grabbed Abigail by the shoulder and upper arms to sit her down again, and she began to spit at him and kick him. The defendant testified that he covered Abigail's mouth with his hand and placed his knee on her thigh to prevent her from spitting and kicking. The defendant further testified that his other hand was on the side of the couch, supporting his weight, and was not on Abigail's throat at any time. When he was satisfied that she was going to stay, defendant let go of Abigail. According to defendant, the entire encounter on the couch lasted only about fifteen seconds. The defendant never saw Abigail have trouble breathing, instead commenting that "[s]he was talking and yelling the whole time." He also testified that Abigail was hyperventilating because she had been crying.

         5

         Amanda ...


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