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State v. MacNeil

Supreme Court of Rhode Island

December 11, 2018

Bruce MacNeil.

          Kent County Superior Court, K2/15-289A Brian P. Stern

          For State: Christopher R. Bush Department of Attorney General

          For Defendant: Edward M. Pepe, Esq.

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



         The defendant, Bruce MacNeil, appeals from a January 23, 2017 judgment of conviction in Kent County Superior Court on one count of second-degree sexual assault in violation of G.L. 1956 §§ 11-37-4 and 11-37-5, after a jury found him guilty of having sexually assaulted a fifteen-year-old neighbor. He was sentenced to a term of ten years at the Adult Correctional Institutions, with two years to serve and the balance suspended with probation. On appeal, the defendant contends that he is entitled to a new trial because the trial justice committed what the defendant submits were three evidentiary errors- two of which relate to the admissibility of certain testimony, and one of which relates to the trial justice's having allowed a specific line of questioning by the prosecution as to whether the defendant's wife had contacted the alleged victim or his family.

         This case came before the Supreme Court pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After considering the parties' written and oral submissions and reviewing the record, we conclude that cause has not been shown and that this case may be decided without further briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.


         Facts and Travel

         On May 1, 2015, the state filed a criminal information charging defendant with one count of second-degree sexual assault in violation of §§ 11-37-4 and 11-37-5. In due course, a jury trial was held in Kent County Superior Court over three days from October 17 through October 19, 2016. We summarize below the salient aspects of what transpired at that trial.


         The Testimony of the Complaining Witness

         The complaining witness, Jacob, [1] testified that, on February 2, 2015, he and his mother were driving home when they saw defendant, their neighbor, shoveling snow in his driveway. Jacob stated that he got out of the car to assist his neighbor in clearing the snow. Having been neighbors for a few months, Jacob and defendant knew each other. Jacob was then fifteen years old, and defendant was in his mid-seventies. It was further Jacob's testimony that, after the two finished shoveling the snow, they both entered the shed located in defendant's backyard so that Jacob could return the shovel which he had been using. According to Jacob, once they were both inside the shed, defendant shook Jacob's hand and then "pulled [him] into a * * * two-handed hug * * * and kissed" his cheek. Jacob testified that defendant then asked "if he was moving too fast" and that, when Jacob said no, defendant told him that "he knew how [they] felt about each other." Jacob further testified that he had said no when defendant asked "if he was moving too fast" because defendant had "recently" told Jacob that "his son had died and [Jacob] reminded him of his son, so [Jacob] thought he kissed [him] seeing [him] as a son figure."

         Jacob proceeded to testify that defendant then "cupped [Jacob's] penis with his hand" over Jacob's jeans for five to seven seconds. According to Jacob, as defendant was acting in that manner, defendant asked if it felt good, to which Jacob responded in the negative. After the two of them left the shed, defendant asked for Jacob's cell phone number, which Jacob gave him. Jacob testified that he then returned home, told his parents what had happened, and they went to the police station to give a statement.

         During his cross-examination of Jacob, defense counsel asked him: "Now, did you seek professional help for any reaction that you might have had?" The prosecutor objected, the trial justice sustained the objection, and defense counsel immediately requested a sidebar, which was granted. At sidebar, the trial justice asked defense counsel: "How is that relevant to the elements?" Defense counsel responded:

"Part of the discovery was whether he had gone for counseling and I was provided the name of a counselor that he went too [sic]. I got my notes, like one page. I just wanted to make sure I have all the correct information. It's important whether he was telling the truth and whether he gave the correct information to the prosecutor. I just wanted the name."

         The trial justice then asked defense counsel: "Do you want to ask him questions before the jury to make sure there's [sic] no other medical providers[?]" Defense counsel responded: "I want to make sure there is no other person that he saw for counseling. That's all. I believe they asked him and his family." In response, the trial justice said: "That was something under the rules you could have even compelled at deposition if you wanted to under the criminal rule. The Court will not allow that to play out in front of the jury."[2]


         The Testimony of Defendant

         The defendant testified that, while he and Jacob were in the shed, defendant "gave him a hug" with "[j]ust [his] left arm" because elevating his right arm "hurt so much from days of shoveling that it was hard to pick it up." He further testified that his right hand "must have totally by accident brushed against [Jacob]." Also, referring to the hug, he testified that he asked Jacob if he liked it. He testified that he did not kiss Jacob on the cheek or ask him if he was moving too fast.


         The Testimony of Defendant's Wife

         In her testimony, defendant's wife, Johanna MacNeil, indicated that, at her husband's request, she had given him money to pay Jacob for having assisted with the snow shoveling and that she told her husband to ask Jacob for his phone number in case they might need help again. In the course of his cross-examination of Mrs. MacNeil, the prosecutor asked her if she ever tried to go to speak to Jacob or his parents after February 2, 2015. She responded that she had not done so and that the MacNeils had been "told not to have any contact" with Jacob and that she "assumed [they] were not allowed to" talk to his parents. The prosecutor then asked: "You live across from an elementary school; correct?" Mrs. MacNeil responded, "On the side." Defense counsel then objected on relevance grounds, and the trial justice overruled the objection, noting that the fact of the proximity of the elementary school was already in evidence.[3]


         The ...

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