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State v. Belen

Supreme Court of Rhode Island

December 3, 2019

State
v.
Leopoldo Belen.

          Providence County Superior Court (P1/14-2479A) Associate Justice Daniel A. Procaccini

          For State: Lauren S. Zurier Department of Attorney General

          For Defendant: Angela M. Yingling Office of the Public Defender

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

          OPINION

          Francis X. Flaherty Associate Justice.

         The defendant, Leopoldo Belen, appeals from a judgment of conviction after a jury found him guilty of four counts of first-degree sexual assault. The defendant argues that the trial justice erred when he did not declare a mistrial after the prosecutor made two improper comments during closing arguments. After thoroughly reviewing the record and after considering the arguments of the parties, we affirm the judgment of conviction.

         I

         Facts and Travel

         Belen and Emily[1] met in Providence approximately one year before the alleged assault. On the day the couple met, Emily was walking to her job at a fast-food restaurant when Belen approached her in his car. From this chance encounter, Belen and Emily became friends, a friendship that quickly developed into a romantic relationship. After they dated for a few months, Belen and Emily moved together to an apartment in Woonsocket.

         Belen was not working at that time, and soon thereafter Emily lost her job. Emily testified at trial that, at Belen's insistence, she became an "escort." Emily testified that Belen "was pretty persistent so eventually [she] just gave in." While Emily was working as an escort, Belen would drive her to and from her appointments with her customers.

         In the early morning of April 1, 2014, Emily claimed that she was sexually assaulted by Belen in their shared apartment. Just days before the assault, Belen and Emily had cavorted with an unnamed woman at a motel in Warwick, and, she testified, the three had engaged in a variety of consensual sex acts during their overnight stay. After their weekend frolic, Emily and Belen returned to their apartment. Emily described Belen's demeanor at that time as "[e]xtremely hostile." Emily testified that, as a result, she "tried to keep [her] distance" that night. However, some time during the night Emily noticed that the battery to her cell phone had been removed.

         The next morning, Belen woke Emily and asked whether she had smoked their last cigarette. She told him that she had in fact smoked it. At that response, Emily said that, an apparently enraged Belen began to physically assault her. According to Emily, Belen then began to assault her sexually and physically over the course of the next two hours, at times raping her with a hair mousse bottle. She said that she was naked and bleeding from her nose because of the physical and sexual abuse. According to Emily, Belen, while cleaning up blood, became more agitated at the fact that she was bleeding in the bathroom where he was assaulting her. She testified that Belen closed all the windows and played music to cover up the clamor caused by the assault.

         At some point, Belen strangled Emily and she passed out. Emily testified that after she regained consciousness she told Belen that she was feeling lightheaded and that she needed to eat something. Belen then permitted her to go to the kitchen to heat up some food. When Belen turned his back on her to go back to the bathroom, Emily covered her naked body with a sheet and fled the apartment. She said that she ran downstairs and banged on a neighbor's door. The neighbor allowed her to come into the apartment and provided a phone so that Emily could call the police.

         When the police arrived, Belen was no longer in the apartment. Emily was transported to the hospital by ambulance. At the hospital, a nurse performed an examination using a "sexual assault kit." At trial, an expert witness called by the state testified that Belen's DNA had been found on the can of hair mousse that Emily claimed had been used in the sexual assault. Belen's DNA was also present on swabs obtained from Emily's body. Under cross examination, the expert conceded that the DNA on the swabs could have been the result of consensual sex that may have occurred from thirty-six to forty-eight hours before the test was administered to Emily.

         Emily's neighbor testified at trial and said that she had not heard any screaming, banging, or loud music emanating from the apartment shared by Emily and Belen. However, she also testified that a frantic and hysterical Emily appeared at her door that morning clothed only in a sheet.

         On August 18, 2014, a grand jury indicted Belen on four counts of first-degree sexual assault in violation of G.L. 1956 § 11-37-2. Prior to the indictment, Belen, who was being held without bail, made several phone calls to Emily. Those calls were recorded by the Adult Correctional Institutions, and one of them was played for the jury at trial. Significantly, the trial justice had granted defendant's motion in limine and ordered that the fact that the call was originally from the ACI be redacted. In the recorded phone call played for the jury, Belen apologized to Emily, telling her that he made a mistake, he was not in his right state of mind, and he was only human.[2] Emily in response called Belen a monster, to which Belen replied: "Listen, even monsters make mistakes."

         At the close of evidence, and during her final argument, the prosecutor made two statements that lie at the heart of this appeal. First, the prosecutor inadvertently referred to the "ACI" when she discussed the recorded phone conversation that had been played for the jury.[3] In her statement, the prosecutor said: "One thing you will have upstairs with you in the ...


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