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State v. Mulcahey

Supreme Court of Rhode Island

November 21, 2019

State
v.
Stephen Mulcahey.

          Kent County Superior Court (K1/14-160A) Associate Justice Brian P. Stern

          For State: Christopher R. Bush Department of Attorney General

          For Defendant: Brett V. Beaubien, Esq.

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

          OPINION

          Maureen McKenna Goldberg Associate Justice.

         This case came before the Supreme Court for oral argument on October 3, 2019, on appeal by the defendant, Stephen Mulcahey, from a judgment of conviction, following a jury trial, for first-degree sexual assault in violation of G.L. 1956 § 11-37-2. Before this Court, the defendant argues that the Superior Court erred in admitting evidence of text messages allegedly sent by the defendant to the complainant because, he argues, the text messages were not properly authenticated under Rule 901 of the Rhode Island Rules of Evidence. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

         Facts and Travel

         In October 2013, Victoria, [1] the complainant, a seventeen-year-old high school senior, was residing with her maternal aunt, Cristee McCormick (McCormick), in an apartment in Coventry, Rhode Island. The defendant, who was McCormick's boyfriend, also lived at the apartment for an unspecified period after McCormick obtained custody of Victoria. At trial, the complainant described defendant as kind of "like a father figure," who would help her with her schoolwork and provide transportation when needed. However, Victoria testified, defendant sometimes made her feel uncomfortable: "Well, if he would give me a ride somewhere and when I would be like waiting in the car or something and we would go to a restaurant or something, he would like sit next to me and put his hand on my leg or something."

         On October 27, 2013, after spending the evening at a movie theater with her grandfather, Victoria returned to McCormick's apartment to eat Chinese food and watch a scary movie with McCormick, defendant, and defendant's brother. Victoria sat on the couch and covered herself with a comforter blanket. The defendant sat between Victoria and McCormick, and defendant's brother was seated on a chair.

         According to Victoria, just before the movie was about to begin, defendant pulled the blanket over her head. Victoria tried to move the comforter out of the way, "but then things happened." The defendant started to rub Victoria's back, which made her feel "uncomfortable and a little bit nervous[.]" Victoria testified that she "thought that [defendant] thought that [she] was [McCormick] so [she] tried to move around so that he would know that it was [her]." Then defendant "started to rub [her] butt[, ]" and, again, she tried to move around more to indicate to defendant that she was not McCormick. The defendant, however, proceeded to rub Victoria's belly under her clothes, and he touched her vagina.

         At that point, when McCormick walked to the bathroom and then to the kitchen to smoke a cigarette, defendant whispered in Victoria's ear that he wanted to "kiss [her] down there[, ]" and "taste [her] down there and lick [her]." The defendant then put his hand inside her vagina. When she tried to pull defendant's hand out by grabbing his arm, he "put it in harder[, ]" which "really hurt and it made [Victoria] very afraid." Victoria estimated that the assault lasted for about thirty minutes. When the movie ended, Victoria went next door to her grandmother's apartment to shower, and she noticed that she was bleeding from her vagina.

         Within hours of the assault, at 12:30 a.m., Victoria received the following four text messages from defendant:

"Hope I didn't do anything to upset you good night sleep well"
"Did I upset you"
"Good night sleep well you are a beautiful person"
"Can't stop thinking about you"

At 7:37 a.m., Victoria received the following text message from defendant: "Good morning hope you have a great day[.]" And, at 11:19 a.m., Victoria received the following text message from defendant: "Are you still sleeping[?]" After the last text message, Victoria took a screenshot of her phone depicting the six text ...


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