State v. Hunt

137 A.3d 689

STATE

v.Daniel HUNT.

No. 2014–195–C.A.

Supreme Court of Rhode Island.

April 12, 2016.

Aaron L. Weisman, Department of Attorney General, for State.

Lara E. Montecalvo, Office of the Public Defender, for Defendant.

Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.

OPINION

Justice GOLDBERG, for the Court.

This case came before the Supreme Court on March 2, 2016, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. The defendant, Daniel Hunt, was charged with two counts of second-degree child molestation sexual assault (second-degree child molestation). After a jury trial in the Superior Court, the defendant was convicted on count 1 and acquitted on count 2. He was sentenced to twenty years at the Adult Correctional Institutions, with nine years to serve and eleven years suspended with probation. On appeal, the defendant argues that the trial justice committed reversible error when, in his instructions to the jury and in the jury-verdict form, he failed to adequately inform the jury of the distinction between counts 1 and 2, which were identically worded. Having carefully considered the memoranda submitted by the parties and the arguments of counsel, we are satisfied that cause has not been shown, and the appeal may be decided at this time. We affirm the judgment of the Superior Court.

Facts and Travel

The defendant began dating Sandra¹ in 2005. They had one child together, and defendant assumed a paternal relationship with Sandra's two older children from a prior relationship. The romantic relationship between defendant and Sandra ended in 2010, but they remained friends until the summer of 2012, when their relationship soured. Despite the breakup, Sandra's two older children continued to view defendant as their father, and all three children periodically saw him. The defendant, a truck driver, spent substantial time outside the state for work and sometimes slept over at Sandra's home when he was in Rhode Island.

On April 7, 2012, the night before Easter Sunday and months before defendant's friendship with Sandra ended, defendant spent the night at Sandra's home. Several months later, on August 23, 2012, Sandra came across a private message that her oldest child, Emily, had written to a friend on Facebook; in the message, Emily had disclosed to her friend that defendant had inappropriately touched her while he was visiting the night before Easter.² The crux of the allegation against defendant was that, on the evening of April 7, 2012, when Emily was twelve years old, defendant twice touched Emily's breasts under her shirt and her bra; in particular, defendant fondled her for “[a]bout 20 minutes,” left the room to go outside to his truck, and, upon returning, he touched her again for approximately ten minutes, until Emily retired to her bedroom. A police investigation ensued.

On December 4, 2012, defendant was charged by criminal information with two counts of second-degree child molestation. Both counts charged “[t]hat [Daniel Hunt], * * * on or about the 7th day of April, 2012, in the City of Woonsocket, * * * did engage in sexual contact with [Emily], a person fourteen (14) years of age or under, in violation of [G.L.1956] § 11–37–8.3 and § 11–37–8.4.”³ The defendant did not seek a bill of particulars in accordance with Rule 7(f) of the Superior Court Rules of Criminal Procedure.

The case was reached for trial in Providence County Superior Court on December 6, 2013. At the close of trial, the trial justice instructed the jury that it was to consider two charges against defendant:

“In order to convict * * * defendant of second[-]degree child molestation, the [s]tate must prove beyond a reasonable doubt first that on or about April 7, 2012, * * * defendant engaged in two separate acts of sexual contact [—]namely[,] * * * defendant touched [Emily]'s breast and shortly thereafter again touched [Emily]'s breasts and nipples.” (Emphases added.)

The trial justice further charged:

“[B]ecause * * * defendant has been charged with more than one criminal offense, each alleged violation must be considered by you separately and the [s]tate must prove its case beyond a reasonable doubt as to each offense.

“[D]efendant is entitled to your independent consideration of each of the charges.”

Defense counsel raised no objection to the jury instructions, nor did he object to the contents of the jury-verdict form—which listed the charges as follows:

“1. As to [c]ount 1, which charges that[,] on or about April 7, 2012 [,] Daniel Hunt committed Second[–]Degree Child Molestation Sexual Assault upon [Emily], a child 14 years old or younger, we the jury find the [d]efendant: [guilty/not guilty].

“2. As to [c]ount 2, which charges that[,] on or about April 7, 2012 [,] Daniel Hunt committed Second[–]Degree Child Molestation Sexual Assault upon [Emily], a child 14 years old or younger, we the jury find the [d]efendant: [guilty/not guilty].”

During its deliberations, the jury submitted two questions to the trial justice: First, the jurors asked to review Emily's “description of the second touching,” and, next, her testimony about “what happened after the first incident.”⁴ On both occasions, after relevant portions of the transcript were read aloud to the jury, the trial justice asked defendant if he wished to make an objection for the record. The defendant declined each time.

The jury returned a verdict of guilty on count 1 and not guilty on count 2.⁵ On January 6, 2014, the trial justice heard and denied defendant's motion for a new trial. The defendant filed this timely appeal.

Standard of Review

We apply de novo review to “issues pertaining to jury instructions.” State v. Vargas, 991 A.2d 1056, 1060 (R.I.2010). We “examine[ ] ‘the instructions in their entirety to ascertain the manner in which a jury of ordinary intelligent lay people would have understood them, * * * and * * * review[ ] [the] challenged portions * * * in the context in which they were rendered.’ ” State v. Carpio, 43 A.3d 1, 10 (R.I.2012) (quoting State v. Cardona, 969 A.2d 667, 674 (R.I.2009) ). “[A]n erroneous charge [to the jury] warrants reversal only if it can be shown that the jury ‘could have been misled’ to the resultant prejudice of the complaining party.” Vargas, 991 A.2d at 1063 (quoting Maglioli v. J.P. Noonan Transportation, Inc., 869 A.2d 71, 75 (R.I.2005) ).

Analysis

The defendant argues on appeal that the trial justice erred in his instructions to the jury and by employing the jury-verdict form. Specifically, defendant asserts that the trial justice failed to sufficiently advise the jury of the distinction between counts 1 and 2. The defendant contends that this failure resulted in the infringement of his constitutional right “to be adequately informed of the nature and cause of the accusations against him.”

Fatal to defendant's challenge, however, is the fact that he did not raise this argument until he filed his motion for a new trial. Rule 30 of the Superior Court Rules of Criminal Procedure provides, in relevant part, that “[n]o party may assign as error any portion of the charge or omission therefrom unless the party objects thereto before the jury retires to consider its verdict * * *.” This requirement serves the important function of promoting judicial efficiency by alerting the trial justice to “alleged deficiencies” while there still is an opportunity to rectify them. State v. Flori, 963 A.2d 932, 937 (R.I.2009) (quoting State v. Hallenbeck, 878 A.2d 992, 1006 (R.I.2005) ). For this reason, we repeatedly have declared that a party's failure to timely object to jury instructions will result in the waiver of that issue on appeal, unless “issues of constitutional dimension are implicated.” Id.; see also State v. Mendez, 116 A.3d 228, 243 (R.I.2015) (“With respect to objections to jury instructions in particular, this Court has ‘consistently been exacting about applying the raise[-]or[-]waive rule.’ ” (quoting Ferris Avenue Realty, LLC v. Huhtamaki, Inc., 110 A.3d 267, 285 (R.I.2015) )). The raise-or-waive rule similarly applies to an appellate challenge to the jury-verdict form if the party fails to object to its use at trial. State v. Mohapatra, 880 A.2d 802, 810 (R.I.2005).

A defendant who is confronted with an ambiguous complaint or indictment has a remedy: a bill of particulars. See Rule 7(f). As we have previously explained, its “function * * * is to provide the defendant with the factual detail omitted from an indictment or information.” State v. Saluter, 715 A.2d 1250, 1253 (R.I.1998) (quoting State v. Collins, 543 A.2d 641, 654 (R.I.1988), overruled on other grounds, State v. Rios , 702 A.2d 889, 890 (R.I.1997) ). The “primary purpose [of a bill of particulars] is to supply the defendant with such particulars as are necessary in order that judicial surprise is avoided at trial.” Id. (quoting Collins , 543 A.2d at 654 ). Having failed to seek a bill of particulars, a defendant should not be heard to complain about the lack of notice of the specificity of the charge.

We further note that, although a bill of particulars is not mandatory, State v. Prefontaine, 667 A.2d 531, 532 (R.I.1995), the timely objection to jury instructions at trial is required, State v. Davis, 877 A.2d 642, 648 (R.I.2005). In Davis , 877 A.2d at 646, the defendant, Davis, claimed that the jury verdict did not specify whether he was convicted on the basis of his role as a principal of the offenses charged or as an aider or abettor. Davis had not requested a bill of particulars to clarify the charges against him before trial. Id. at 647. Further, despite being afforded the opportunity to review the jury instructions before the trial justice charged the jury, Davis did not object to the jury instructions or the jury-verdict form until he argued his motion for a new trial. Id. at 647–48. Since no issue of constitutional dimension underlay Davis's claim of error, this...