State v. Reynaldo Gomez

Supreme Court
No. 2014-146-C.A.
(P2/11-3244A)
State :
v. :
Reynaldo Gomez. :
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
No. 2014-146-C.A.
(P2/11-3244A)
State :
v. :
Reynaldo Gomez. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Chief Justice Suttell, for the Court. The defendant, Reynaldo Gomez, appeals from a
Superior Court judgment of conviction after having been found guilty by a jury of second-degree
sexual assault in violation of G.L. 1956 § 11-37-4(2). 1 On appeal, the defendant contends that
the trial justice erred in: (1) denying his motion for judgment of acquittal; 2 (2) denying his
motion for a new trial; and (3) allowing the complaining witness’s statements to the police
1
General Laws 1956 § 11-37-4, as it was styled at the time pertinent to this case, provided as
follows:
“A person is guilty of a second degree sexual assault if he or she
engages in sexual contact with another person and if any of the
following circumstances exist:
“(1) The accused knows or has reason to know that the
victim is mentally incapacitated, mentally disabled or
physically helpless;
“(2) The accused uses force or coercion;
“(3) The accused engages in the medical treatment or
examination of the victim for the purpose of sexual arousal,
gratification or stimulation.”
This version of the statute provides the language applicable to the present case. However, the
General Assembly in 2014 amended the “force or coercion” element of the statute. The amended
version of § 11-37-4(2) reads: “The accused uses force, element of surprise, or coercion.”
P.L. 2014, ch. 164, § 1.
2
We note that defendant does not explicitly frame this argument set forth in his prebriefing
statement as an appeal from the denial of his motion for judgment of acquittal. In defendant’s
supplemental briefing memorandum submitted to this Court, however, he does express his
insufficiency argument, along with an argument for the preservation thereof, in the context of his
motion for judgment of acquittal. We treat it as such.
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officer at the scene into evidence under the excited-utterance exception to the hearsay rule. 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.
I
Facts and Procedural History
The incident giving rise to defendant’s conviction occurred in the early evening of
September 13, 2011 in Smithfield, Rhode Island at the Blackbird Farm Stand. Following this
incident, defendant was charged by a criminal information, filed in Superior Court on November
29, 2011, with one count of second-degree sexual assault pursuant to § 11-37-4. A jury trial in
Superior Court took place over five days in July 2013. The following facts chronicling the
unfortunate events that unfolded at the Blackbird Farm Stand came to light at trial. The
Blackbird Farm Stand is a small stand or, as it was described at trial, approximately “twice the
size of the top of the [trial court] clerk’s desk,” with only three windows and one door. The
stand offers customers a selection of goods, such as meat, produce, vegetables, cheese, and milk.
Inside the farm stand, in addition to the goods, there was a refrigerator and a counter with a
single stool behind it.
On September 13, 2011, Jessica 3 was the cashier at the Blackbird Farm Stand perched
behind the counter on that lone stool. She was the sole employee working at the farm stand that
3
We use a pseudonym to identify the complaining witness.
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day; however, she testified that the farm owner or the owner’s son would typically check on her
approximately every two hours. She was eighteen years old at the time, working part-time at the
farm stand as a cashier. Jessica had been on the job for about a month.
She testified that a male customer, defendant, walked into the farm stand at about 5:30
that evening. Jessica, however, explained that she did not notice him immediately because she
had her back to the door while she restocked the refrigerator. In her testimony, Jessica stated
that, when she turned around to get additional produce, it was the first time she noticed the
customer behind her. At trial, she described him as being “about a foot or two” away from her.
Further, she testified, “he didn’t say a word, he didn’t even say anything, which kind of spooked
me I guess. * * * [N]ormally customers would say something like ‘Hi’ or ‘How are you?’”
Jessica explained that she turned around and said: “Hi. Can I help you with anything?” She
testified that in response defendant did not answer her question, but rather he asked her if she
spoke Spanish. Next, defendant inquired about where the food products, such as the corn, came
from.
After this exchange, defendant stepped outside the farm stand. Jessica testified that when
defendant went outside, “I felt weird, I just didn’t feel right.” She explained that “I had a bad
feeling -- in my stomach, I just -- I don’t particularly like to be alone at that time.” She indicated
in response to the state’s question at trial that she felt nervous at that time. Jessica also testified
that a female customer entered the Blackbird Farm Stand and purchased some items during this
time. Jessica did have a cell phone with her that day. She explained at trial, however, that
because her prepaid phone was out of minutes she could use it only to text. After the female
customer departed, defendant came back into the farm stand. The defendant asked Jessica, “[d]o
you have a husband or a boyfriend?” Jessica testified that she said “no,” which was a response
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that “just came out.” To that response defendant replied: “[y]ou’re very beautiful and I like you.
I have a crush on you.” Jessica replied with a “thanks,” which she described at trial as being
uttered in a “very sarcastic, kind of angry, mean way.” Jessica detailed that these comments
“made me feel worse than I did when he went in there. I felt like just -- I just had a bad feeling.”
She indicated that she felt uncomfortable, nervous, and scared. In her testimony, she elaborated
that, “I was just afraid that anything could happen. * * * I was just afraid that he would ask me
more odd questions and he would come behind the counter or even just lock the door, I don’t -- I
don’t know.”
At that time, the counter stood between defendant, who was standing in front of it, and
Jessica, who was sitting behind it. The defendant appeared to want to purchase some corn.
Jessica testified: “I was trying to just hurry up, I wanted to go home, it was six o’clock, so I was
just -- I was like ‘[a]re you looking for anything else?’” She stated that defendant perused the
bread stand, located at the right corner of the counter, selecting a package of bread to add to his
items for checkout. Jessica described that, while ringing up defendant’s order, defendant moved
to the side of the counter. After cashing out the corn, Jessica testified that she “s[aw] him
closer.” She explained that “I cashed out the bread, and before I know it, he’s like not even a
foot away from me.” At trial, she expressed that a customer at the farm stand had never before
come that close to her. Jessica testified that, while she continued to total the cost of his order,
defendant “put[] his hand on [her] inner thigh.” She was wearing a pair of shorts and was seated
atop the stool behind the counter. Jessica explained at trial that, in response, she “said ‘[n]o’ and
I pushed [his hand] away.” She testified further that she “felt like I was going to throw up,” was
“scared,” and “wanted to cry.” She also indicated that she noticed defendant was “aroused” at
that time.
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There was no one else around at the farm stand. Jessica testified that defendant then
touched her again when he “swept [her] vagina over her shorts.” She stated that she then got the
price of his order, which she told him three times, and then she “told him that I was [fourteen] as
a defense to make him somewhat scared that, you know, maybe I’m a minor, maybe you
shouldn’t do that, but that was a defense.” According to Jessica, defendant responded “[o]kay,
okay, I’m sorry, you’re very beautiful.” She explained that defendant paid in cash and “left in a
hurry” because he must have seen another customer arrive. Jessica detailed that next she went to
the window and grabbed a marker to write down defendant’s license plate on her hand. When
questioned about how she felt at that time, she indicated that she felt “shocked” and also “felt
relieved at the same time because he left.” She also indicated that she was upset, crying, and
shaking.
A second witness, Michael Lamoureux, testified that he decided to deviate from his usual
work-to-home routine that day with a stop at the Blackbird Farm Stand. This was Mr.
Lamoureux’s first visit to the farm stand. He had driven past the Blackbird Farm Stand twice a
day for years, but he finally decided to stop and support the local farmer. In his testimony at
trial, Mr. Lamoureux described that, when he pulled into the parking lot, he noticed a red Pontiac
parked right in front of the farm stand. Mr. Lamoureux was the next customer to enter the farm
stand after defendant’s hasty departure. Jessica explained that she had never met Mr. Lamoureux
previously, but after he asked her if she was all right, she explained what had happened. She told
him that she had just been assaulted. Mr. Lamoureux testified that “[Jessica] seemed very upset,
she was visibly shaken and physically shaking when I entered the building.”
Mr. Lamoureux explained that he immediately went outside and got a description of the
car and license plate, as well as a “cursory description” of the driver of the vehicle. At the time
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of trial, Mr. Lamoureux stated that he was employed as a sales executive at a computer company,
but that he had the background and training of a military police officer. Mr. Lamoureux
explained that he utilized his military training in taking quick action to secure these descriptions
and dial 9-1-1. The police arrived at the Blackbird Farm Stand approximately ten minutes later.
Jessica spoke briefly with Officer Michael Proulx of the Smithfield Police Department
inside the farm stand. Officer Proulx testified at trial that Jessica’s demeanor at that time was
“[u]pset, trembling, tearful.” When Officer Proulx questioned Jessica at the scene, she told him
that she had just been assaulted. Defense counsel lodged an objection at this response, which
was initially sustained. However, the trial justice entertained brief discussion at sidebar and then
overruled that objection after determining that Jessica’s response qualified as an excited
utterance. Officer Proulx next inquired of Jessica as to who had perpetrated the assault. In
response, Officer Proulx testified that Jessica provided him with defendant’s license plate
number that she had written on her hand. Officer Proulx explained that he immediately went
back to his cruiser and ran the license plate number. Officer Proulx also recounted Jessica’s
description of the vehicle as “an older model red Pontiac.” Subsequently, Officer Proulx drove
Jessica to the police station where she proffered and he transcribed an official statement
regarding the incident. The next day Jessica returned to the police station in order to view a
photo array. She identified and selected defendant from the six photos presented.
At the conclusion of the state’s presentation of evidence, defendant made a motion for
judgment of acquittal pursuant to Rule 29 of the Superior Court Rules of Criminal Procedure. 4
4
Rule 29(a)(1) of the Superior Court Rules of Criminal Procedure states, in pertinent part:
“The court on motion of a defendant or on its own motion shall
order the entry of judgment of acquittal of one or more offenses
charged in the indictment, information, or complaint, after the
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In arguing that motion, defendant asserted that there was insufficient evidence of intent for
sexual gratification. The defendant argued that the alleged touching could be “construed in
every way as an accidental sweeping.” The trial justice found sufficient evidence of intent for
sexual gratification and therefore denied defendant’s motion for judgment of acquittal. The
defendant then rested.
The jury returned a verdict of guilty on one count of second-degree sexual assault. The
defendant subsequently filed a motion for a new trial, and a hearing was held on the motion on
November 8, 2013. The trial justice denied defendant’s motion for a new trial. The defendant
was sentenced to ten years, with one year to serve and nine years suspended with probation, as
conditions of which he was to cooperate with sex-offender counseling and register as a sex-
offender. The judgment of conviction was entered on February 25, 2014. The defendant filed a
timely notice of appeal.
II
Discussion
The defendant raises three issues on appeal. First, defendant argues that the trial justice
erred in denying his motion for a new trial by overlooking and misconceiving material evidence.
Second, defendant contends that the state failed to prove the element of “force or coercion”
necessary to sustain a conviction for second-degree sexual assault. Third, defendant asserts that
the trial justice erred in admitting Jessica’s statements—made to Officer Proulx at the farm
stand—into evidence at trial under the excited-utterance exception to the hearsay rule. We
address each issue in turn, providing additional facts as necessary.
evidence on either side is closed, if the evidence is insufficient to
sustain a conviction of such offense or offenses.”
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A
Motion for a New Trial
The defendant avers that the trial justice “overlooked and misapprehended critical
evidence” in concluding that Jessica was a “credible witness whose testimony deserves much
weight.” The state, for its part, argues that there was no error in the trial justice’s denial of
defendant’s motion for a new trial.
1. Standard of Review
“We have oft stated that, ‘[w]hen faced, as here, with both Rule 29 and [Super. R. Crim.
P.] 33 motions, this Court first conducts a review of the new-trial motion.’” State v. Storey, 102
A.3d 641, 646 (R.I. 2014) (quoting State v. Fleck, 81 A.3d 1129, 1133 (R.I. 2014)). We employ
this approach in our review because a defendant has a “higher hurdle to overcome when arguing
a Rule 29 motion for judgment of acquittal than when he seeks to prevail on a Rule 33 motion
for a new trial * * *.” Id. (quoting Fleck, 81 A.3d at 1133). “[U]nless a defendant can show that
the presented evidence failed to support his or her conviction upon the motion-for-a-new-trial
standard, a defendant necessarily will be unable to establish he or she was entitled to a judgment
of acquittal.” Id. (quoting State v. Pineda, 13 A.3d 623, 640 (R.I. 2011)).
“When a trial justice is presented with a motion for a new trial based on the weight of the
evidence, he or she ‘acts as a thirteenth juror and exercises independent judgment on the
credibility of witnesses and on the weight of the evidence.’” Storey, 102 A.3d at 646 (quoting
State v. Watkins, 92 A.3d 172, 191 (R.I. 2014)). “[T]he trial justice must consider the evidence
in light of the jury charge, then independently assess the credibility of the witnesses and the
weight of the evidence, and also ultimately determine whether he or she would have reached a
result different from that reached by the jury.” Id. (quoting Watkins, 92 A.3d at 191). “If, after
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conducting this independent review, the trial justice agrees with the jury’s verdict or if the
evidence is such that reasonable minds could differ as to the outcome, the motion for a new trial
should be denied.” Id. (quoting Watkins, 92 A.3d at 191). “Only when the trial justice does not
agree with the jury’s verdict, [must he or she] embark on a fourth analytical step.” Id. (quoting
Watkins, 92 A.3d at 191).
“This Court’s review of a denial of a motion for a new trial is deferential because the trial
justice is in an ‘especially good position to evaluate the facts and to judge the credibility of the
witnesses * * *.’” Storey, 102 A.3d at 647 (quoting Watkins, 92 A.3d at 191). “If the trial justice
has articulated adequate grounds for denying the motion, his or her decision is entitled to great
weight and will not be overturned by this Court unless he or she has overlooked or misconceived
material evidence or was otherwise clearly wrong.” Id. (quoting Watkins, 92 A.3d at 191).
2. Analysis
After a review of the record, it is clear to this Court that defendant’s arguments on appeal
evince little more than a disagreement with the trial justice’s determination on the credibility of
the complaining witness, Jessica. The trial justice found that “[t]he evidence in light of the jury
charge was strong and consistent with this verdict.” With regard to Jessica, she found her to be
“a credible witness whose testimony deserves much weight.” The trial justice also specifically
rejected the contention that Jessica had an ulterior, pecuniary motive in this case. The trial
justice explained that, “[a]lthough the defense attempted to portray her as a money-hungry victim
trying to leverage a personal injury action, she did not in any way appear to be that person to the
[c]ourt. She appeared honest and forthright.” The trial justice also observed: “[t]he fact that she
said nothing to the woman who appeared in the store does not faze this [c]ourt, nor does the fact
that she didn’t text anyone from her broken cell phone faze the [c]ourt. She was credible.”
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The defendant attempts to challenge this credibility determination made at trial on the
basis of inconsistencies in Jessica’s accounts of the incident. In particular, defendant highlights
the fact that Mr. Lamoureux told the police in his official statement that, upon arriving at the
Blackbird Farm Stand, Jessica told him that defendant had “grabbed her leg around the counter
and she told him to leave immediately.” The defendant makes the point that Jessica in her own
testimony made no mention of asking defendant to leave after he touched her. Further,
defendant maintains that Jessica made no mention of any “‘sweeping’ of her vagina” to Mr.
Lamoureux or Officer Proulx. Finally, defendant contends that Jessica added additional
elements of resistance in each of her subsequent accounts of the incident, which she did not
describe in her testimony at trial.
This Court in State v. Jimenez observed that “[t]he mere fact that [a] defendant disagrees
with the trial justice’s conclusions about credibility is not a sufficient basis to warrant the
granting of a motion for new trial.” State v. Jimenez, 33 A.3d 724, 738 (R.I. 2011) (quoting State
v. Rivera, 987 A.2d 887, 903 (R.I. 2010)). We afford great deference to the trial justice’s
determinations on a witness’s credibility because the trial justice has “had the opportunity to
observe the witnesses testify ‘and therefore is in a better position [than this Court] to weigh the
evidence and to pass upon the credibility of the witnesses * * *.’” Id. (quoting State v. Ferreira,
21 A.3d 355, 367 (R.I. 2011)). Moreover, “if the trial justice has stated sufficient grounds for
denying a motion for a new trial, we will not overturn that decision unless the trial justice ‘has
overlooked or misconceived material evidence or was otherwise clearly wrong.’” State v.
LaPierre, 57 A.3d 305, 311 (R.I. 2012) (quoting State v. Bunnell, 47 A.3d 220, 233 (R.I. 2012)).
Here, the trial justice articulated adequate grounds to support her decision. The trial
justice also determined that in addition to Jessica, Mr. Lamoureux and Officer Proulx were also
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both highly credible witnesses. She explained that: “[a]ll of the evidence was extremely credible
and worthy of belief. This Court would not have reached a different decision from that of the
jury.” Ultimately, in rendering her decision to deny the motion for a new trial, the trial justice
said: “[T]his Court finds that the jury’s verdict was consistent with the evidence and the
instructions given to the jury, the jury charge with respect to the charge of second-degree sexual
assault. The facts as testified to clearly demonstrated that a sexual assault did take place on this
day.” Accordingly, we are satisfied that the trial justice articulated adequate grounds for her
decision to deny the motion for a new trial and did not overlook or misconceive material
evidence in rendering her decision.
B
Motion for Judgment of Acquittal
On appeal, defendant argues that it is clear from the record that the state failed to prove
the element of “force or coercion” necessary to sustain a conviction for second-degree sexual
assault under § 11-37-4(2). The state contends that defendant has waived this argument because
he did not raise it below and therefore did not preserve it for review by this Court. In particular,
the state avers that defendant failed to make the argument that the element of “force or coercion”
was not met in either his motion for judgment of acquittal or his motion for a new trial. With
regard to the motion for judgment of acquittal, the state asserts that defendant confined his
argument at that time to the issue of intent for sexual gratification. 5 With regard to the motion
for a new trial, the state emphasizes that defendant attacked Jessica’s credibility rather than the
evidence present in the record to prove “force or coercion.” Finally, the state asserts that, even if
5
The trial justice asked for clarification from defense counsel as to whether the only issue being
argued on the Rule 29 motion was lack of intent for sexual gratification. Defense counsel
confirmed that that was correct.
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the issue was preserved, there was sufficient evidence of Jessica’s resistance for this Court to
affirm defendant’s conviction.
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, * * * giving full credibility to the state’s witnesses, and draw therefrom all
reasonable inferences consistent with guilt.’” State v. Rolon, 45 A.3d 518, 523 (R.I. 2012)
(quoting State v. Caba, 887 A.2d 370, 372 (R.I. 2005)). “If 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, the motion for judgment of acquittal must be denied.” State v. Snow, 670
A.2d 239, 243 (R.I. 1996).
2. Analysis
After conducting a careful review of the record, and particularly defendant’s arguments
made before the trial justice, we have serious doubts as to whether defendant preserved his
insufficient evidence of “force or coercion” argument for our review. Nevertheless, we
determine that, even if this argument had been properly raised, sufficient evidence of “force”
exists to sustain defendant’s conviction for second-degree sexual assault. 6 The defendant was
found guilty of second-degree sexual assault in violation of § 11-37-4(2), which, at the time,
stated in pertinent part: “A person is guilty of a second degree sexual assault if he or she engages
in sexual contact with another person and if any of the following circumstances exist: * * * (2)
6
With respect to defendant’s Rule 29 motion, the record reveals that defendant raised only the
issue of insufficient evidence of intent for sexual gratification below. Now, on appeal, defendant
raises only the issue of insufficient evidence of “force or coercion” to sustain his conviction.
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The accused uses force or coercion.” “Force or coercion” is defined in § 11-37-1(2) as when the
accused does any of the following:
“(i) Uses or threatens to use a weapon, or any article used
or fashioned in a manner to lead the victim to reasonably
believe it to be a weapon.
“(ii) Overcomes the victim through the application of
physical force or physical violence.
“(iii) Coerces the victim to submit by threatening to use
force or violence on the victim and the victim reasonably
believes that the accused has the present ability to execute
these threats.
“(iv) Coerces the victim to submit by threatening to at some
time in the future murder, inflict serious bodily injury upon
or kidnap the victim or any other person and the victim
reasonably believes that the accused has the ability to
execute this threat.” (Emphasis added.)
The definition applicable to the facts of the present case is set forth in § 11-37-1(2)(ii),
which focuses on physical force. This Court has stated that, in order to sustain a conviction for
second-degree sexual assault, the state “must prove force beyond that necessary to commit the
sexual assault.” State v. Goodreau, 560 A.2d 318, 322 (R.I. 1989); see State v. Jacques, 536 A.2d
535, 537 (R.I. 1988). In order to meet that standard, the state must demonstrate that the victim
did not consent to the act. Goodreau, 560 A.2d at 322. Therefore, if the state introduces
evidence of the victim’s resistance to the act, then the defendant has used force beyond that
necessary to commit the sexual assault. Id. We have recognized that the victim need only “offer
such resistance as seems reasonable under all the circumstances.” Id. at 322-23 (quoting State v.
Carvalho, 122 R.I. 461, 467, 409 A.2d 132, 136 (1979)).
We find that the evidence of Jessica’s resistance, which consisted of her telling defendant
“no” and pushing his hand away, after he first touched her leg, and telling defendant she was
fourteen was reasonable under the circumstances. Her verbal and physical reactions demonstrate
her lack of consent to these offensive touchings by defendant. As such, we are of the opinion
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that there was sufficient evidence of “force” within the meaning of § 11-37-1(2)(ii) to warrant
submitting the second-degree sexual assault charge to the jury. Accordingly, we affirm the trial
justice’s denial of defendant’s motion for judgment of acquittal.
C
Excited Utterance
The final argument that defendant advances on appeal is his contention that the trial
justice abused her discretion in finding that all of Jessica’s hearsay statements made to Officer
Proulx at the farm stand were nevertheless admissible as excited utterances. The state argues
that there was no error in the admission of Jessica’s statements to Officer Proulx at the scene.
1. Standard of Review
Hearsay is defined in Rule 801(c) of the Rhode Island Rules of Evidence as “a statement,
other than one made by the declarant while testifying at the trial or hearing, offered in evidence
to prove the truth of the matter asserted.” Rule 802 of the Rhode Island Rules of Evidence sets
forth the general prohibition against the admissibility of hearsay statements other than those
well-recognized exceptions carved out by law. “[A] determination of whether an out-of-court
statement meets an exception to the hearsay rule is within the trial justice’s discretion.” Watkins,
92 A.3d at 187 (quoting State v. Martin, 68 A.3d 467, 475 (R.I. 2013)). Under this standard, this
Court will uphold the trial justice’s ruling unless a clear “abuse of discretion that prejudices the
complaining party is shown.” Id. (quoting Martin, 68 A.3d at 475).
2. Analysis
Among the well-recognized exceptions to the hearsay rule is the exception for excited
utterances. State v. Torres, 787 A.2d 1214, 1222 (R.I. 2002). Rule 803(2) of the Rhode Island
Rules of Evidence defines an excited utterance as “[a] statement relating to a startling event or
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condition made while the declarant was under the stress of excitement caused by the event or
condition.” The rationale behind the excited-utterance exception is deeply rooted in the belief
that “a startling event may produce an effect that temporarily stills the declarant’s capacity of
reflection and produces statements free of conscious fabrication.” Martin, 68 A.3d at 475
(quoting State v. Oliveira, 961 A.2d 299, 314 (R.I. 2008)). Therefore, this Court has established
that a particular guarantee of trustworthiness accompanies the declarant’s statement so long as it
is an “instinctive outpouring” or an “effusion.” Torres, 787 A.2d at 1222 (quoting State v.
Krakue, 726 A.2d 458, 462 (R.I. 1999)). In accordance with this rationale, “[t]he test is whether,
from a consideration of all the facts, the declarant was still laboring under the stress of
excitement caused by the event when he or she made the statement at issue.” Martin, 68 A.3d at
475 (quoting Oliveira, 961 A.2d at 315).
The statement at issue need not be “strictly contemporaneous with the startling event” in
order to qualify as an excited utterance. Martin, 68 A.3d at 475 (quoting Oliveira, 961 A.2d at
315). Furthermore, this Court has recognized that “[t]he time requirement is more lenient in
sexual assault cases * * *.” Id. (quoting Oliveira, 961 A.2d at 315). The modest relaxation of
this timing requirement is based upon the understanding that, in sexual assault cases, “the shock
of the event often lasts longer and the outpouring may come only later, when a parent, friend, or
officer is present.” Id. at 475-76 (quoting Oliveira, 961 A.2d at 315). Nevertheless, it is the state
that bears “the burden of proving that the statement is spontaneous and was made before the
declarant had an opportunity to contrive or misrepresent.” Oliveira, 961 A.2d at 315 (quoting
State v. Burgess, 465 A.2d 204, 207 (R.I. 1983)).
Here, evidence was presented at trial that reasonably supports a conclusion that Jessica
was “still laboring under the stress of the nervous excitement engendered by the event” when she
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spoke to Officer Proulx. Oliveira, 961 A.2d at 315 (quoting State v. Morales, 895 A.2d 114, 120
(R.I. 2006)). At trial, Jessica testified that defendant touched her “inner thigh” and “swept [her]
vagina,” which actions occurred shortly before she spoke with Officer Proulx. The record
establishes that the statements in question were made to Officer Proulx after he arrived at the
Blackbird Farm Stand about ten minutes after the incident occurred. In our opinion, ten minutes
is not a significant lapse of time under the circumstances. Notably, according to testimony at
trial, Jessica appeared to be in physical distress following the incident. Mr. Lamoureux testified
that when he arrived at the farm stand “[Jessica] seemed very upset, she was visibly shaken and
physically shaking when I entered the building.” He also described her demeanor as “crying and
shaking” while he called the police and waited for them to arrive. Officer Proulx described
meeting Jessica in a similar “[u]pset, trembling, [and] tearful” state when he arrived at the
Blackbird Farm Stand. The statements made by Jessica to Officer Proulx were not unprompted;
rather her statements came in response to inquiries from Officer Proulx. Their exchange
consisted of a series of questions, which prompted Jessica to: (1) tell Officer Proulx that “[s]he
was just assaulted;” (2) explain by whom by providing the license plate number recorded on her
hand; and (3) describe the vehicle she saw exiting the Blackbird Farm Stand.
The fact that Jessica’s statements came in response to Officer Proulx’s questions is not
dispositive as to whether the excited-utterance exception is applicable here. See Oliveira, 961
A.2d at 315; State v. St. Jean, 469 A.2d 736, 737-38 (R.I. 1983) (affirming the admissibility of
victim’s statements made in response to police officer’s questioning at the scene less than five
hours after the startling event under the excited-utterance exception); see also State v. Creighton,
462 A.2d 980, 982 (R.I. 1983). This Court, however, does consider “[w]hether a statement was
in response to an inquiry [as] a factor in determining spontaneity.” Oliveira, 961 A.2d at 315.
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We have held previously that “a response to a question can still be a spontaneous verbal
reaction.” Id. at 316; see St. Jean, 469 A.2d at 738; Creighton, 462 A.2d at 982-83. Given that
Officer Proulx, in observing Jessica, described that “[y]ou could physically see the tears and you
could see her trembling” just before he spoke with her, it was not unreasonable for the trial
justice to find that her responses were spontaneous and made while still laboring under the stress
of the event. See Oliveira, 961 A.2d at 316.
In light of our holding, we take this occasion to reiterate our observation from Oliveira in
that “[t]he use of such terms as ‘tears,’ ‘nervous,’ or ‘upset’ are not to be the ‘open sesame’ to
having a declarant’s statement classified as a spontaneous utterance.” Oliveira, 961 A.2d at 316
(quoting St. Jean, 469 A.2d at 739). We nevertheless recognize that the admissibility of
evidence under the excited-utterance exception is a determination committed to the “sound
discretion of the trial justice.” Id. at 314. In the present case, we are satisfied that the trial justice
did not abuse her discretion in admitting Jessica’s statements made to Officer Proulx under the
excited-utterance exception to the hearsay rule.
IV
Conclusion
For the reasons set forth herein, we affirm the judgment of the Superior Court. The
record of this case shall be returned to the Superior Court.
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RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE: State v. Reynaldo Gomez.
CASE NO: No. 2014-146-C.A.
(P2/11-3244A)
COURT: Supreme Court
DATE OPINION FILED: June 5, 2015
JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
WRITTEN BY: Chief Justice Paul A. Suttell
SOURCE OF APPEAL: Providence County Superior Court
JUDGE FROM LOWER COURT:
Associate Justice Sarah Taft-Carter
ATTORNEYS ON APPEAL:
For State: Jane M. McSoley
Department of Attorney General
For Defendant: Catherine Gibran
Office of the Public Defender