State v. Ralph Thibedau , 2017 R.I. LEXIS 44 ( 2017 )

Supreme Court
No. 2015-163-C.A.
(K1/13-51A)
State :
v. :
Ralph Thibedau. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
State : No. 2015-163-C.A.
(K1/13-51A)
v. :
Ralph Thibedau. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Chief Justice Suttell, for the Court. On October 1, 2014, a jury found Ralph Thibedau
(defendant) guilty of three counts of child molestation against his stepdaughter, Stephanie. 1
Claiming that the trial justice committed a number of errors that warrant a reversal of his
conviction, he now appeals from the judgment of conviction. For the reasons set forth in this
opinion, we affirm the judgment of the Superior Court.
I
Facts and Procedural History
On or about January 2013, Kent County indictment No. K1/13-51A charged defendant
with three counts: count 1, first-degree child molestation, to wit, penile to vaginal penetration
with a person fourteen years of age or under, between August 1, 2009, and August 31, 2009; 2
count 2, second-degree child molestation, to wit, sexual contact with a person fourteen years of
age or younger, between July 1, 2009, and July 31, 2009; 3 and count 3, third-degree child
1
As is our customary practice, we refer to the complaining witness by use of a pseudonym.
2
“A person is guilty of first degree child molestation sexual assault if he or she engages in sexual
penetration with a person fourteen (14) years of age or under.” G.L. 1956 § 11-37-8.1.
3
“A person is guilty of a second degree child molestation sexual assault if he or she engages in
sexual contact with another person fourteen (14) years of age or under.” Section 11-37-8.3.
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molestation, to wit, penile to vaginal penetration with a person over the age of fourteen and
under the age of sixteen, between December 1, 2011, and March 31, 2012. 4
On October 10, 2013, defendant filed a motion to sever the counts against him. The state
objected. On December 6, 2013, defendant filed a motion to dismiss on the grounds of duplicity
and another motion to sever the counts. On January 23, 2014, defendant’s motions were heard
and denied in Kent County Superior Court. Prior to trial, defendant also filed a motion in limine
to preclude the state from introducing evidence of other uncharged conduct under Rule 404(b) of
the Rhode Island Rules of Evidence. A pretrial hearing was held on September 22, 2014, at
which Stephanie testified that defendant had sexually abused her “[o]ver a hundred” times during
the course of “[t]hree years.” At the conclusion of the hearing, the trial justice denied
defendant’s motion, stating that he was prepared to allow Stephanie to testify to those “instances
of other sexual misconduct.”
A jury trial commenced the following day. Stephanie testified that, when she was
thirteen years old, after the weekend of July 4, 2009, she began smoking cigarettes. She testified
that, shortly thereafter, at a family party at her aunt’s house in Webster, Massachusetts,
defendant offered her his cigarette, handed it to her, and grabbed her breast as he pulled his hand
away. Stephanie then testified that “[a]bout a week later,” when she was still thirteen years old,
defendant called her into his bedroom and told her that he would give her cigarettes if she
showed him her breasts. She related that defendant also told her that he wanted “to have sex
with [her] and that it could be a secret for [them] to keep.” Stephanie stated that she then “lifted
[her] shirt a little bit and he pulled it up the rest of the way” and fondled her breasts. He then
4
“A person is guilty of third degree sexual assault if he or she is over the age of eighteen (18)
years and engaged in sexual penetration with another person over the age of fourteen (14) years
and under the age of consent, sixteen (16) years of age.” Section 11-37-6.
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gave her cigarettes and she returned to her room. Stephanie testified that, about a week later,
defendant called her into his room again and that “[h]e started talking to [her] about sex again
and he said that he really wanted to. And he told [her] that [her] first time should be with
someone that [she] knew, instead of if [she] had hooked up with someone[.]” She recalled that
defendant “started undressing [her] and he bent [her] over his bed and he put his penis in [her]
vagina.” She said that she “told him to stop because it hurt” but that “he told [her] that it always
hurts the first time” and then he ejaculated inside of her, told her to go wash up, and “came back
later and threw a pack of cigarettes at [her].”
Stephanie further testified that this abusive relationship continued and that, in exchange
for sex, defendant would buy her alcohol, marijuana, or cigarettes. She said that the abuse ended
briefly when defendant was in the hospital for approximately two months beginning in June
2011. According to Stephanie, the molestation “stopped for a few months because [defendant]
was weak” but started again in March 2012, with defendant again offering her cigarettes for sex.
Stephanie testified that, on this occasion, they “were in his room and he laid [her] down on his
bed, and he gave [her] oral sex, and then [they] had vaginal sex,” after which he gave her a pack
of cigarettes and “said that he liked that [they] kept doing it.” On direct examination, Stephanie
again testified that the sexual acts occurred over one hundred times over the course of three
years. 5 According to Stephanie, she never disclosed the sexual nature of her relationship with
5
On cross-examination, Stephanie testified that the sexual acts occurred at least one hundred
times during the two-year period between July 2009 and June 2011. However, the line of
questioning demonstrates some confusion on Stephanie’s part, not inconsistency. The following
line of questioning occurred:
“Q One hundred acts of sexual contact at the very least, with
[defendant], is that your testimony?
“A Yes.
“Q So if this started in July of 2009; correct?
“A Yes.
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defendant until she told her aunt, Donna Hogan, after her sixteenth birthday. When asked what
prompted her to tell Hogan, she responded that she had been failing in school, had gone through
a mental breakdown, had cut off almost all of her hair, and was feeling really depressed.
The state next called Hogan to testify for the prosecution. The defendant objected on the
ground that Hogan was not listed as a witness in the state’s response to discovery and no
summary of her testimony had been provided. The trial justice however, rejected defendant’s
arguments and allowed the witness to testify. Hogan testified that Stephanie had “completely
changed,” stating that “[s]he went from a great student, to failing out of school. Her appearance
changed. Her behavior and attitude changed. She cut off all of her hair. She just completely
changed. She was not the girl I had known for the previous [fifteen] years of her life.” Hogan
also testified that, in June 2012, Stephanie stayed with her for a week and confided information
to her that shocked her. Hogan described Stephanie as “[s]haking, crying” and at times unable to
speak as she tried to answer Hogan’s questions.
The defense presented the following witnesses: Det. Anthony Bettencourt of the West
Warwick Police Department, Josephine Thibedau, Jacqueline Walker, Danielle Walker, Cathrine
“Q And went until June of 2011; correct?
“A 2012.
“Q No. Well, the first period before [defendant] was in the
hospital.
“A Yes.
“Q Right? So that would have been -- this is July of 2009, until
June of 2011; correct?
“A Yes.
“Q Okay. And that’s basically a two-year period; right?
“A Yes.
“Q So your testimony is, it breaks down into about 50 times a
year?
“A Yes.”
This confusion is further demonstrated by Stephanie’s testimony on redirect examination, where
Stephanie responded, “I don’t remember” when asked how many times the sexual acts occurred
before March 2012.
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Thibedau, Heather-Rose Mattias, and Stephanie’s sister. The defendant did not testify.
Detective Bettencourt testified regarding his investigation of the case at issue. Josephine
Thibedau, defendant’s wife and Stephanie’s mother, testified to her relationship with both
defendant and Stephanie, her observance of the relationship between defendant and Stephanie,
the daily structure of and routine in the home, her conversation with Stephanie and Hogan
regarding Stephanie’s disclosure of the allegations giving rise to the charges against defendant,
and Stephanie’s character for untruthfulness. Stephanie’s sister testified to Stephanie’s regular
schedule and daily household activities. Danielle Walker, Cathrine Thibedau, Heather-Rose
Mattias, and Jacqueline Walker all testified as character witnesses for defendant.
At the end of the state’s case and again at the close of the evidence, defendant moved for
a judgment of acquittal on count 1 on the grounds of duplicity. The trial justice denied his
motion. The trial justice then gave the jury instructions and assured the jury that he would be
providing them with a complete written copy of the instructions. Defense counsel objected to
the jury instructions on the grounds that the Rule 404(b) instruction was “scattershot” and also
that the instructions concerning all three counts had “misconstrued the age of the complaining
witness.”
On October 1, 2014, the jury returned guilty verdicts on all three counts. On December
17, 2014, the trial justice sentenced defendant to twenty-five years to serve on count 1 with
“sexual abuse counseling as provided at the prison” and registration as a sex offender upon
release. The trial justice imposed a sentence of three years suspended with probation on count
2, and a five-year suspended sentence on count 3, with both suspended terms to be served
consecutively to the period of incarceration imposed on count 1 and to each other, with credit for
time served. The defendant was also ordered to have no contact with Stephanie or with “any
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child fifteen years of age or younger.” On January 13, 2015, judgment was entered; defendant
timely filed a notice of appeal.
II
Discussion
A
The Admission of Evidence under Rule 404(b)
The defendant first argues that the trial justice erred when he allowed the admission of
evidence of other wrongful acts under Rule 404(b). Specifically, defendant takes issue with the
admission of Stephanie’s testimony that defendant sexually assaulted her over one hundred times
over the course of three years. He contends that the trial justice abused his discretion in
admitting the evidence because (1) the evidence “was not reasonably necessary to the [s]tate’s
case and the [trial justice] failed to make a determination that it was reasonably necessary and
not cumulative[,]” (2) the trial justice “failed to delineate a specific exception to which the
evidence was relevant and failed to properly instruct the jury as to the limited use for which the
evidence was to be considered[,]” (3) “there was no determination made that the [uncharged]
conduct was non-remote and similar to” the conduct for which defendant was being tried, and (4)
the evidence was more prejudicial than probative. The defendant also argues that the trial justice
erred by “giving a ‘scattershot’ [limiting] instruction to the jury regarding the permissible uses
[of the] other-acts evidence in this case.” The defendant seeks reversal of his conviction on all
counts.
1. Standard of Review
“This Court has stated that ‘[t]he admissibility of evidence is within the sound discretion
of the trial justice, and this Court will not interfere with the trial justice’s decision unless a clear
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abuse of discretion is apparent.’” State v. Rios, 996 A.2d 635, 638 (R.I. 2010) (quoting State v.
Gautier, 950 A.2d 400, 411 (R.I. 2008)). “Under Rule 404(b) * * * ‘[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.’” State v. Breen, 767 A.2d 50, 57 (R.I. 2001) (quoting
Rule 404(b)). “The rule is ‘designed to prohibit the introduction of evidence that is only relevant
to show that the defendant is a bad person and, therefore, likely to have committed the offense
with which he is charged.’” Id. at 57-58 (quoting State v. Clark, 754 A.2d 73, 79 (R.I. 2000)).
The rule expressly provides, however, that “such evidence may be admissible ‘for other
purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, [or] identity
* * *.’” Id. at 58 (quoting State v. Robertson, 740 A.2d 330, 335 (R.I. 1999)). “The decision on
whether evidence of other crimes is relevant to a permissible purpose is left to the sound
discretion of the trial justice, ‘and on appeal we shall only disturb his or her decision when it
constitutes an abuse of discretion,’ * * * [unless] the evidence was ‘both prejudicial and
irrelevant.’” Id. (quoting State v. Gabriau, 696 A.2d 290, 294 (R.I. 1997) and State v. Martinez,
651 A.2d 1189, 1194 (R.I. 1994)).
2. Analysis
In denying defendant’s motion in limine, the trial justice cited State v. Jalette, 119 R.I.
614, 382 A.2d 526 (1978) and, State v. Gomes, 690 A.2d 310 (R.I. 1997), for the proposition that
evidence of uncharged sexual offenses committed against a complaining witness “may be
introduced to show the accused’s lewd disposition or intent towards the [complaining witness].”
The Jalette Court, however, was quick to admonish “that this type of evidence should be
sparingly used by the prosecution and only when reasonably necessary.” Jalette, 119 R.I. at 627,
382 A.2d at 533. This Court further cabined the admissibility of such evidence in Gomes:
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“Other-acts evidence should be excluded if it is merely cumulative.
* * * Second, the evidence is only to be admitted when the
exception is relevant to proving the charges lodged against the
defendant. * * * Finally, a trial court should designate with
particularity the specific exception to which the evidence is
relevant and instruct the jury concerning the limited use for which
the evidence is to be considered.” Gomes, 690 A.2d at 317.
Here, the trial justice explained that the sexual conduct at issue in the uncharged offenses
all involved the same complaining witness (Stephanie) as in the indicted offenses, thereby
tending to demonstrate defendant’s “incestuous and lustful attitude toward” Stephanie. The trial
justice also determined that the evidence displayed a “common thread among all of [the] charged
instances, as well as the uncharged instances” whereby defendant employed a system of barter,
in which “in exchange for cigarettes, or alcohol, or marijuana, * * * defendant solicited the
complaining witness, to participate with her [sic] in sexual activities.” Finally, the trial justice
determined that the other-acts evidence displayed “a common opportunity, intent, plan, with
those acts that [were] charged.”
The defendant ascribes error to the trial justice’s admission of this evidence for several
reasons. First, he argues that the other-acts evidence “was not reasonably necessary to the
[s]tate’s case and that the [trial justice] failed to make a determination that it was reasonably
necessary * * *.” He maintains that the evidence is “vague and not specific as to time, place and
manner of sexual assault” and is merely cumulative.
Although it is true that the trial justice did not specifically state that the other-acts
evidence in this case was “reasonably necessary,” we are satisfied that he did not abuse his
discretion by admitting the proffered testimony. As he explained in his decision, Stephanie’s
testimony concerning the more than one hundred instances of sexual misconduct during a three-
year period was highly probative of defendant’s lewd disposition toward her. Moreover, her
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testimony that “[u]sually, the same thing happened every time” was indicative of a common
opportunity, intent, and plan with the offenses for which defendant was being tried.
This Court has long recognized that “evidence of other not too remote sex crimes with
the particular person concerned in the crime on trial may be introduced to show the accused’s
‘lewd disposition or * * * intent’ towards the person[.]” Jalette, 119 R.I. at 627, 382 A.2d at 533
(quoting People v. Kelley, 424 P.2d 947, 955 (Cal. 1967)). We are well satisfied that, in the case
under review, such evidence was both very probative and reasonably necessary. The state’s
entire case rested primarily upon Stephanie’s testimony and more particularly upon her
credibility, which was constantly called into question during the trial. Even her own mother
testified that Stephanie had a reputation among the members of her extended family as being
“more untruthful, than truthful.” The admission of the other-acts evidence in this case tended to
demonstrate defendant’s lustful disposition toward his stepdaughter, as well as “his attitude
regarding sexual activity with the victim.” Gomes, 690 A.2d at 316.
The defendant next argues that the trial justice erred by “fail[ing] to delineate a specific
exception to which the [other-acts] evidence was relevant and fail[ing] to properly instruct the
jury as to the limited [purpose] for which the evidence was to be considered.” On the contrary,
the trial justice explained that most courts allow evidence of other sexual acts against the same
victim and that the evidence at issue is probative of defendant’s “lewd disposition” toward
Stephanie, and shows a common thread of defendant’s use of a bartering system of sex for drugs,
cigarettes, and alcohol. The trial justice’s statements indicate that he determined that the
uncharged conduct was interwoven with the charged conduct and necessary to paint a picture of
defendant’s continued abuse and use of a bartering system, a theory advanced by the state at trial.
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We are of the opinion, therefore, that the trial justice did not abuse his discretion in allowing
Stephanie to testify about the other-acts evidence under this theory.
The defendant concedes that the trial justice initially stated that he felt the evidence fell
under the “lewd disposition” exception; defendant argues, however, that the trial justice
mentioned other exceptions as well, thereby abusing his discretion by making his ruling
“too broad.” At trial, the trial justice explained that his enumeration of the other exceptions
contained within Rule 404(b) was intended “to be inclusive, not scattershot[,]” because
Stephanie’s testimony “has elements of each of those [exceptions] in it.”
We agree. In denying defendant’s motion in limine, the trial justice stated that the
uncharged acts “display[ed] a common opportunity, intent, plan, with those acts that are
charged.” We discern no error in the trial justice’s ruling. The evidence in question, if believed
by the jury, bespeaks of a carefully conceived plan to victimize Stephanie and to coerce her
compliance with defendant’s lustful desires by exploiting his role of authority as her stepfather
and enticing her with cigarettes, alcohol, and other favors. It is both probative and permissible
under Rule 404(b).
The defendant also argues that the trial justice erred when he gave a “scattershot”
limiting instruction to the jury regarding the permissible uses of the other-acts evidence in this
case. Specifically, he maintains that the jury instruction concerning the Rule 404(b) evidence
was too broad and misled the jury. “We undergo a review of jury instructions on a de novo
basis.” State v. Martin, 68 A.3d 467, 473 (R.I. 2013) (quoting State v. Lopez, 45 A.3d 1, 22 (R.I.
2012)). “Moreover, we review jury instructions ‘to ascertain the manner in which a jury of
ordinary intelligent laypeople would have understood them, * * * and we review challenged
portions of jury instructions in the context in which they were rendered.’” Id. (quoting State v.
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Adefusika, 989 A.2d 467, 475 (R.I. 2010)). As Jalette, 119 R.I. at 627-28, 382 A.2d at 533 made
clear, “[i]n its charge the trial court should not take a scatter-shot approach and list all of the
exceptions to the exclusionary rule. Rather, it shall designate with particularity the specific
exceptions to which the ‘other crimes’ evidence is relevant and delete from its charge the
remaining exceptions.”
In the case at bar, the trial justice admonished the jurors that they could not consider the
uncharged sexual assaults as evidence to prove character or that defendant had a propensity to
commit sexual acts. He further instructed the jurors that they could consider the other acts of
wrongful conduct only as evidence of motive, intent, absence of mistake, and defendant’s lewd
disposition towards Stephanie. We perceive no error in the trial justice’s instructions. He
properly informed the jury that it could not consider the uncharged acts of sexual misconduct as
evidence of defendant’s bad character or his propensity to commit sexual acts. He then
delineated four specific uses for which the evidence might be considered, all of which are
permissible uses under Rule 404(b). We reject defendant’s contention that the charge to the jury
was so prejudicial to defendant as to warrant a reversal of his conviction.
The defendant also faults the trial justice for failing to make a determination that the
other-acts evidence was nonremote and similar to the offenses for which defendant was on trial.
The trial justice did make a finding, however, that the uncharged acts were “not too distant from
the charge[d] instances, and they do display a common opportunity, intent, plan, with those acts
* * * charged.” This finding is consistent with Stephanie’s testimony that the more than one
hundred uncharged acts of sexual misconduct occurred during a three-year period from 2009 to
2012, i.e., the same time frame as the three charged offenses, and that “[u]sually, the same thing
happened every time.”
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Finally, with respect to the Rule 404(b) evidence, defendant argues that it was highly
prejudicial and should have been excluded. Rule 403 of the Rhode Island Rules of Evidence
provides that even relevant evidence “may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” We have cautioned, however, that “Rule 403 ‘must be exercised sparingly,’ * * * and
‘only when [the] evidence demonstrate[s] mere marginal relevance and enormous unfair
prejudice should the trial justice exclude it.’” State v. Virola, 115 A.3d 980, 996 (R.I. 2015)
(quoting State v. Brown, 42 A.3d 1239, 1244 (R.I. 2012) and State v. Bishop, 68 A.3d 409, 422
(R.I. 2013)).
As in most matters concerning the admission or exclusion of evidence, the application of
Rule 403 in any given circumstance is entrusted to the sound discretion of the trial justice. See
Rios, 996 A.2d at 638. Here, we have no cause to disturb the trial justice’s ruling. Although
Stephanie’s testimony that defendant sexually assaulted her more than one hundred times was
undoubtedly prejudicial to him, it clearly was more than marginally relevant, for it demonstrated
in no uncertain terms defendant’s lewd disposition towards Stephanie. We are of the opinion
that the trial justice’s ruling admitting such evidence into the record was a sustainable exercise of
his considerable discretion in evidentiary matters.
B
Testimony of Donna Hogan
The defendant next argues that the trial justice erred when he allowed the state to
introduce Donna Hogan as a witness in violation of Rule 16 of the Superior Court Rules of
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Criminal Procedure. 6 The defendant supports this argument by claiming that Hogan was not
listed in the state’s response to discovery and no proper summary of Hogan’s testimony was
given to defendant. The state concedes that it omitted Hogan’s name from the list of witnesses in
the discovery response. The state also concedes that the police package did not contain any
statement given by Hogan herself. However, the state argues that the police packet provided to
defendant in discovery was sufficient to put defendant on notice of the state’s intention to call
Hogan as a witness. Moreover, the state argues that the report of a child protective investigator,
which was disclosed to defendant, summarized a conversation with Hogan, which effectively put
defendant on notice of Hogan’s anticipated testimony.
1. Standard of Review
“When this Court reviews a determination of whether a violation of Rule 16 occurred,
‘the applicable standard [of review] is narrow: the trial justice must have committed clear
error.’” State v. Stravato, 935 A.2d 948, 951 (R.I. 2007) (quoting State v. Briggs, 886 A.2d 735,
755 (R.I. 2005)). “The discovery ruling of a trial justice ‘will not be overturned absent a clear
abuse of discretion.’” State v. Farley, 962 A.2d 748, 753 (R.I. 2009) (quoting Stravato, 935 A.2d
at 951). “However, the trial justice’s discretion under Rule 16 is ‘not a blank check.’” Id.
(quoting Stravato, 935 A.2d at 951). “Rather, it ‘is limited, bounded by law, and reviewable.’”
Id. (quoting State v. Oster, 922 A.2d 151, 160 (R.I. 2007)).
6
Rule 16(a)(7) of the Superior Court Rules of Criminal Procedure explains that the state is
responsible to give the names and addresses of expected witnesses. “[I]n prosecuting a criminal
case, the prosecution may not gain a strategic trial benefit ‘by violating, whether intentionally or
unintentionally, the rules of discovery.’” State v. Gonzalez, 923 A.2d 1282, 1285 (R.I. 2007)
(quoting State v. Darcy, 442 A.2d 900, 903 (R.I. 1982)). “Rule 16 * * * is designed to afford the
accused notice of the charges, the basis for those charges, and the evidence that the state
possesses which led to the prosecution. * * * It is intended to prevent unfair surprise or ‘trial by
ambush.’” Gonzalez, 923 A.2d at 1285-86 (quoting State v. Small, 735 A.2d 216, 218 (R.I.
1999) (mem.)).
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2. Analysis
In determining that the state did not violate Rule 16, the trial justice applied the
enumerated factors in State v. Coelho, 454 A.2d 241, 245 (R.I. 1982). 7 The four-factor test
expressed in Coelho, 454 A.2d at 245, requires the trial court, and this Court on review, to
consider: “(1) the reason for nondisclosure, (2) the extent of prejudice to the opposing party, (3)
the feasibility of rectifying that prejudice by a continuance, and (4) any other relevant factors.”
See also State v. Oliveira, 774 A.2d 893, 905 (R.I. 2001). Here, defendant does not argue that
the state’s failure to list Hogan as a witness was intentional. “When a nondisclosure is
unintentional, ‘[t]he burden of establishing procedural prejudice * * * lies with [the] defendant.’”
Oliveira, 774 A.2d at 905 (quoting State v. Squillante, 622 A.2d 474, 478 (R.I. 1993)). “[I]n
order ‘[t]o demonstrate procedural prejudice on appeal, [a] defendant must show that had the
information been disclosed, there is a likelihood that trial counsel, * * * could have created a
reasonable doubt in the minds of one or more jurors to avoid conviction.’” Id. (quoting State v.
Garcia, 643 A.2d 180, 187 (R.I. 1994)). The defendant has failed to make such a showing. The
trial justice determined that defendant “was given ample information with which to prepare for
7
At trial, the state called Hogan to the stand to testify as a witness. The defendant objected,
arguing that a Rule 16 violation had occurred because defendant’s discovery request asked for a
written list of all expected witnesses the state expected to call at trial and the state failed to
include Hogan’s name and a summary of her testimony in its response. The state explained that
a criminal information package was provided to defendant, which included a statement from the
witness. The defendant argued that the statements were not taken from Hogan, herself, so they
were not statements from the witness. The state explained that a statement of Hogan was taken
by the DCYF worker, Robert McMahon. The trial court pointed out that defendant received the
statement of Hogan, taken by McMahon, through discovery and that the statement is about three-
quarters of a page long. The trial court then went on to cite the four-factor rule in Coelho, 454
A.2d at 241 and determined that there was a disclosure. The trial court explained that defendant
“was given ample information with which to prepare for cross-examination.”
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cross-examination” 8 and that a continuance was not necessary as the information was provided
on April 2, 2013, a year and a half prior to trial. Further, even if a Rule 16 violation had
occurred, “[i]t is within the sound discretion of the trial justice to decide whether to allow a
witness to testify whose name was not provided to a party who properly filed for discovery.”
State v. Ashness, 461 A.2d 659, 673 (R.I. 1983); see also Buckler v. Sinclair Refining Co., 216
N.E.2d 14, 19 (Ill. 1966); Southern Pacific Co. v. Watkins, 435 P.2d 498, 512 (Nev. 1967)).
The defendant also argues that the statement included in the information packet by the
state is not sufficient under Rule 16 because the statement was not verbatim. 9 However, Hogan
did not testify before a grand jury, and there is no evidence that the state had any verbatim
statements by Hogan in its control. Therefore, this Court concludes that the trial court did not err
in allowing Hogan to testify.
8
The police package on which the state relies included the following information regarding
Hogan: First, a report by McMahon, which contains a summary of his telephone conversation
with Hogan. Next, a West Warwick police narrative prepared by Officer Briand D. Ketcham, Jr.,
which stated that Stephanie told Hogan she was abused and explained that Stephanie wished to
live with Hogan. Also, a report by Det. Anthony Bettencourt expressed that he spoke to Hogan
by telephone. Finally, Stephanie’s own witness statements expressed her wish to live with
Hogan.
9
Rule 16(a)(8) states:
“Upon written request by a defendant, the attorney for the State
shall permit the defendant to inspect or listen to and copy or
photograph any of the following items within the possession,
custody, or control of the State, the existence of which is known,
or by the exercise of due diligence may become known to the
attorney for the State:
“***
“(8) as to those persons whom the State expects to call as
witnesses at the trial, all relevant recorded testimony before a
grand jury of such persons and all written or recorded verbatim
statements, signed or unsigned, of such persons and, if no such
testimony or statement of a witness is in the possession of the
State, a summary of the testimony such person is expected to give
at the trial[.]”
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C
The Complaining Witness’s Character for Untruthfulness
The defendant also argues that the trial justice erred when he precluded defense counsel
from cross-examining Donna Hogan “regarding specific instances of conduct concerning the
complaining witness’ character for untruthfulness.” He maintains that Hogan’s testimony “was
elicited to bolster [Stephanie’s] credibility.”
1. Standard of Review
“This Court repeatedly has recognized the well-established, constitutionally-protected
right of a criminal defendant to effective cross-examination of the prosecution’s witnesses.”
State v. Alston, 47 A.3d 234, 249 (R.I. 2012) (quoting State v. Dubois, 36 A.3d 191, 198 (R.I.
2012)). “This, however, is not an absolute right.” Id. “When we review a contention that a
defendant’s right to cross-examination erroneously was limited by the trial justice, we look to
whether the trial justice clearly abused his or her discretion when limiting the scope of the cross-
examination.” Id. “[W]e will consider the entire colloquy and the full context of the state’s
examination in making our determination.” State v. Rivera, 987 A.2d 887, 907 (R.I. 2010)
(quoting State v. Merced, 933 A.2d 172, 175 (R.I. 2007)).
2. Analysis
Rule 608(b)(2) of the Rhode Island Rules of Evidence allows a witness to be cross-
examined about specific instances of conduct concerning another witness’s character for
truthfulness or untruthfulness “as to which character the witness being cross-examined has
testified.” 10 Here, defendant points to no specific testimony on Hogan’s direct examination
10
Rule 608(b) of the Rhode Island Rules of Evidence states:
“Specific Instances of Conduct. Specific instances of the conduct of a witness,
for the purpose of attacking or supporting the witness’ credibility, other than
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regarding Stephanie’s character for truthfulness, which would have opened the door to cross-
examination regarding specific instances of untruthfulness, as defendant contends. On direct
examination, Hogan testified to her observations of Stephanie’s demeanor when discussing the
abuse and Stephanie’s dramatic change from a good student to a child Hogan no longer
recognized, who was doing poorly in school and who had cut off her hair. None of this
testimony goes to Stephanie’s character for truthfulness. Therefore, the trial justice did not abuse
his discretion.
D
Hogan’s Testimony Concerning Complaining Witness’s Body Language and Demeanor
The defendant also argues that the trial justice erred when he allowed Hogan to testify as
to the meaning of Stephanie’s body language and demeanor. He argues that the testimony was
improper opinion evidence, given by a lay witness, in violation of Rule 701 of the Rhode Island
Rules of Evidence. Specifically, defendant objects to Hogan’s testimony that Stephanie cut her
hair and was failing in school; that she felt Stephanie needed someplace safe to live; and that
Stephanie was “scared to death.” In response to defendant’s contentions, the state argues that
there was a foundation laid for the testimony because Hogan said she and Stephanie “were very
close” and that Hogan’s testimony was confined to her own direct observations of Stephanie’s
behavior and that no conclusory opinions were made by Hogan.
conviction of crime as provided in Rule 609, or, in the discretion of the trial
judge, evidence of prior similar false accusations, may not be proved by extrinsic
evidence. They may, however, in the discretion of the court, if probative of
truthfulness or untruthfulness, be inquired into on cross-examination of the
witness (1) concerning the witness’ character for truthfulness or untruthfulness, or
(2) concerning the character for truthfulness or untruthfulness of another witness
as to which character the witness being cross-examined has testified.”
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Even assuming that defendant’s objections were properly preserved on Rule 701 grounds,
we are satisfied that the trial justice did not abuse his discretion by allowing Hogan to testify
about her observations of Stephanie’s behaviors. Rule 701 provides:
“Opinion Testimony by Lay Witnesses. — If the witness
is not testifying as an expert, the witness’ testimony in the form of
opinions is limited to those opinions which are (A) rationally based
on the perception of the witness and (B) helpful to a clear
understanding of the witness’ testimony or the determination of a
fact in issue.”
We reject defendant’s contention that there was no foundation laid or any indication that
there was a rational basis for the testimony. The evidence was clear that Hogan enjoyed a close
relationship with her niece, such that Stephanie would spend school vacations at Hogan’s home
as a respite from the abusive situation in her own home. Stephanie testified that Hogan “seemed
more of a mother than [her] own mom did.”
Moreover, the testimony to which defendant objects is primarily confined to Hogan’s
direct observations of Stephanie’s behavior. The only exception is Hogan’s statement that
Stephanie was “scared to death.” In State v. Ortiz, 609 A.2d 921 (R.I. 1992), this Court laid out
a two-part test for the admission of lay opinion testimony: “(1) ‘the lay witness must have had an
opportunity to view the person or event at issue’ and (2) ‘the lay witness must be able to give
concrete details on which the opinion was founded.’” Id. at 930 (quoting State v. Cohen, 538
A.2d 151, 153 (R.I. 1988)). In Ortiz, a daughter testified to her observation that, during a
burglary at which she and her mother were both present, her mother “sounded scared and she just
looked at [her] like she was going to die, like something was going to happen.” Id. This Court
determined that this testimony clearly satisfied both parts of the test because the daughter “was
by her mother’s side throughout the entire episode, and hence was able to offer details upon
which she opined that her mother was in such a high state of anxiety.” Id.
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Similarly, here, Hogan was present when she observed Stephanie acting in such a manner
that led Hogan to conclude that “she was scared to death.” Therefore, as in Ortiz, the trial justice
here did not err in overruling defendant’s objection.
E
Defendant’s Motion for Judgment of Acquittal
The defendant also argues that the trial justice erred when he denied defendant’s motion
for judgment of acquittal because the evidence regarding the one hundred incidents of child
molestation that occurred in the same time frame set out in count one, rendered count one
duplicitous.
1. Standard of review
“In reviewing the denial of a motion for a judgment of acquittal, we apply the same
standard as that applied by the trial justice; namely, we must view the evidence in the light most
favorable to the state, * * * giv[e] full credibility to the state’s witnesses, and draw therefrom all
reasonable inferences consistent with guilt.” State v. Maria, 132 A.3d 694, 698 (R.I. 2016)
(quoting State v. Gomez, 116 A.3d 216, 224-25 (R.I. 2015)). “The trial justice’s denial of the
motion should be upheld when ‘the totality of the evidence so viewed and the inferences so
drawn would justify a reasonable juror in finding a defendant guilty beyond a reasonable doubt
* * *.’” Id. (quoting Gomez, 116 A.3d at 225).
2. Analysis
An indictment is duplicitous when it joins two or more separate offenses in a single
count. State v. Saluter, 715 A.2d 1250, 1253 (R.I. 1998). “If an indictment is duplicitous, a
general verdict of guilty will not reveal whether the jury found defendant guilty of only one
crime and not the other, or guilty of both.” Id. (quoting United States v. Murray, 618 F.2d 892,
896 (2d Cir. 1980)).
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In Saluter, 715 A.2d at 1255, seven of nine counts were determined to be duplicitous.
This Court differentiated the seven duplicitous counts from the other two counts, which were not
duplicitous. Id. This Court explained that, in the nonduplicitous counts, the bill of particulars
specified “that one single act was being charged by each count, thereby removing the shadow of
any apparent duplicity.” Id. at 1254. As to the remaining seven counts, however, there was
evidence presented at trial of more than one act during the relevant time frame, upon which the
jury could convict. Id.
This Court reasoned that the evidence was duplicitous because “some members of the
jury [could be] convinced beyond a reasonable doubt that [one] * * * incident did take place
while the remaining members were not adequately convinced of that allegation but instead were
convinced beyond a reasonable doubt that [another incident] * * * had occurred,” and, so, “the
jury could have returned a conviction * * * without the actual jury unanimity required for
conviction under our laws.” Saluter, 715 A.2d at 1255.
Here, count 1 alleges that “on or about a day and date between the 1st day of August,
2009 and the 31st day of August, 2009, * * * [defendant] did engage in sexual penetration, to
wit, penile to vaginal penetration, with [Stephanie], a person fourteen (14) years of age or under
* * *.” Furthermore, the state’s supplemental answer to defendant’s request for a bill of
particulars states that “[c]ount 1 relate[d] to the first time * * * defendant engaged in penile/
vaginal penetration with [Stephanie] * * * [,] which is believed to have been a day or date around
August 2009.” Unlike the allegations in Saluter, the allegations here for count 1 specify one
incident and the bill of particulars narrowed that incident to “the first time” penetration occurred.
See Saluter, 715 A.2d at 1254.
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Further, Stephanie testified that, after the weekend of July 4, 2009, she began smoking.
She then testified that shortly thereafter, defendant grabbed her breast for the first time. This is
the assault alleged in count 2. Stephanie also testified that “[a]bout a week later,” defendant
fondled her breasts in his room and then, “[a]bout a week after that,” he penetrated her for the
first time. This penetration is the assault alleged in count 1. However, Stephanie’s testimony at
trial also points to at least one hundred occasions of sexual contact with defendant. The issue,
therefore, is whether some members of the jury could have convicted defendant on count 1 based
on one of the more than one hundred uncharged incidents of sexual assault, rather than the
assault alleged in count 1.
In Saluter, 715 A.2d at 1254 the complaining witness testified to the specifics of two
separate instances of assault, which were both offered at trial as evidence of the charged conduct
under count 2. Here, unlike in Saluter, Stephanie’s testimony about the more than one hundred
acts of uncharged conduct was vague and simply acknowledged that “the same thing happened
every time.” The testimony regarding the first instance of penetration was the only instance of
assault during the period alleged in count 1 that was described with specificity. Therefore, this
Court determines that the evidence is not duplicitous and upholds the trial justice’s denial of
defendant’s motion for judgment of acquittal.
F
Jury Instructions
The defendant also argues that the trial justice erred when he (1) “failed to give an
instruction regarding the definition of a person’s age where age is an element of the offenses,”
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and (2) “failed to include an * * * instruction regarding the proper [use of the Rule 404(b)]
evidence in the written instructions given to the jury.” 11
1. Standard of Review
“We undergo a review of jury instructions on a de novo basis.” Martin, 68 A.3d at 473
(quoting Lopez, 45 A.3d at 22). “It is well settled that this Court ‘review[s] [jury] instructions in
their entirety,’ and ‘we will affirm if the instructions adequately cover the law and neither reduce
nor shift the state’s burden of proof.’” Id. (quoting Lopez, 45 A.3d at 22). “Moreover, we review
jury instructions ‘to ascertain the manner in which a jury of ordinary intelligent lay people would
have understood them, * * * and we review challenged portions of jury instructions in the
context in which they were rendered.’” Id. (quoting State v. Adefusika, 989 A.2d 467, 475 (R.I.
2010)). “As long as the trial justice’s general charge has fairly covered a requested charge for
jury instructions, his refusal to grant the requested charge is not reversible error.” Id. (quoting
State v. Linde, 876 A.2d 1115, 1128-29 (R.I. 2005)).
2. Analysis
The defendant argues that the victim’s age is an element of the offense and that the jury
may not have properly determined Stephanie’s age at the time of the offense without the
instruction. 12 The defendant argues that “[a] reasonably intelligent juror cannot be said to know
the meaning of a person’s age as it pertains to the statutes at issue.” The defendant further states
that the jury would have needed to find that the charged events occurred within the specified
11
The defendant failed to raise an objection to the trial justice on the second ground, thereby
waiving this argument for appeal. See Saluter, 715 A.2d at 1258 (failure to object at trial
constitutes waiver of issue on appeal).
12
This issue was preserved on appeal. After reading the instructions to the jury, describing
counts 1-3, defendant objected to the instructions regarding age and requested that the judge
clarify the definition of “age” to the jury, arguing that there was inconsistent evidence as to
Stephanie’s age.
- 22 -
time frames where the victim was the specified ages under the statutes. The defendant, however,
provides no case law supporting his assertion and provides no evidence regarding a discrepancy
in the state’s timeline.
Based on this Court’s review of the record, there appears to be no inconsistent evidence
concerning Stephanie’s age. The jury was told that Stephanie was born on June 22, 1996, that
the abuse began in the summer of 2009, shortly after she turned thirteen, and that Stephanie
started smoking in July 2009, the same month the defendant fondled her breasts, forming the
basis for count 2. About two weeks later, sexual penetration occurred, forming the basis for
count 1. Stephanie testified that the abuse began again in March 2012, after the defendant
returned from the hospital, and that it ended before her sixteenth birthday, forming the basis for
count 3. The state’s timeline appears clear. Further, there do not appear to be any issues
regarding whether an incident occurred on or directly before or after Stephanie’s birthday, which
may confuse the jury. 13 Therefore, the definition of age was unnecessary.
III
Conclusion
For the reasons stated herein, we affirm the judgment of the Superior Court. The record
shall be returned to the Superior Court.
13
See State v. Jordan, 528 A.2d 731, 734 (R.I. 1987).
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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
SUPREME COURT – CLERK’S OFFICE
OPINION COVER SHEET
Title of Case State v. Ralph Thibedau.
No. 2015-163-C.A.
Case Number
(K1/13-51A)
Date Opinion Filed April 18, 2017
Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
Indeglia, JJ.
Written By Chief Justice Paul A. Suttell
Source of Appeal Kent County Superior Court
Judicial Officer From Lower Court Associate Justice Allen P. Rubine
For State:
Jane M. McSoley
Department of Attorney General
Attorney(s) on Appeal
For Defendant:
Stefanie DiMaio-Larivee, Esq.
SU-CMS-02A (revised June 2016)