State v. Valdez

267 A.3d 638

STATE

v.Erik VALDEZ.

No. 2020-89-C.A.

(P2/16-1651A)

Supreme Court of Rhode Island.

February 2, 2022

Brianne M. Chevalier, Department of Attorney General, for State.

Camille A. McKenna, Office of the Public Defender, for Defendant.

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

Justice Long, for the Court.

The defendant, Erik Valdez (defendant or Mr. Valdez), appeals from a Superior Court judgment of conviction following a jury trial at which he was found guilty of second-degree sexual assault, breaking and entering, and disorderly conduct. The defendant alleges before this Court that the trial justice erred in denying his motion for judgment of acquittal on the count alleging disorderly conduct and in denying his motion for new trial on all convicted counts.

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 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.

Facts and Procedural History

On June 8, 2016, the state filed a four-count criminal information in Providence County Superior Court charging Mr. Valdez with second-degree sexual assault, breaking and entering, simple assault, and disorderly conduct. Trial on the charges commenced on June 4, 2019, beginning with the testimony of Aleksandra Osipova and Lacey Figueroa. The testimony of the two women reveals the following. Ms. Osipova and Ms. Figueroa met through work in 2014 and became good friends. Throughout the summer of 2015, they spent most weekends together, either with their children or, when their children were with their fathers, drinking and going to clubs. At that time, Ms. Figueroa was dating Mr. Valdez; she occasionally invited him to events that Ms. Osipova also attended, including a summer barbecue and a night at a club. Ms. Osipova had met Mr. Valdez but, due to a language barrier, the two did not talk often; Mr. Valdez did not speak English, and Ms. Osipova did not speak Spanish. During those brief encounters, Ms. Figueroa would translate between English and Spanish to facilitate conversation between Ms. Osipova and Mr. Valdez.

On August 1, 2015, Ms. Osipova and Ms. Figueroa made their customary plans to drink and go to Club Ultra in Providence. Ms. Figueroa arranged for Mr. Valdez and his friend, Oliver Palmer, to drive Ms. Osipova and her so that Ms. Osipova, who typically drove, could relax and drink. Ms. Figueroa arrived at Ms. Osipova's apartment at approximately 9 p.m., followed a little later by Mr. Valdez and Mr. Palmer. The two women "pregamed" by drinking three or four mixed drinks as they danced and listened to music, got dressed, and did their hair and makeup before going out. The two men sat at the kitchen table while the women got ready in the bedroom, but occasionally the women would go into the kitchen to take shots of vodka with the men.

Mr. Palmer drove the group to the club, arriving around 11 p.m. Mr. Valdez and Mr. Palmer headed to the bar while Ms. Osipova and Ms. Figueroa danced and drank more mixed alcoholic beverages. The group left when the club closed in the early morning hours of August 2, 2015. They first went to Mr. Valdez's apartment to drink alcohol and chat some more; then, according to her trial testimony, Ms. Osipova asked to go home because she was tired. However, Ms. Figueroa testified that Ms. Osipova wanted to go home because she was sick. Mr. Palmer drove the group to Ms. Osipova's apartment as the sun was rising.

Upon arrival at Ms. Osipova's apartment, the women bade their goodbyes to the two men and walked into the building. Ms. Osipova opened the back door to her building, which had no lock. She walked up a short flight of stairs to her apartment, unlocked the door, and let Ms. Figueroa and herself in. Ms. Figueroa closed the door behind them, but she did not lock it.

Ms. Osipova recalled at trial that, after she entered her apartment, she walked into her bedroom, where she lay on her stomach, pulled up her dress slightly to be more comfortable, and immediately fell asleep. Ms. Figueroa went to use the bathroom off the kitchen. Ms. Osipova's next memory was being awakened by Mr. Valdez standing over her, touching her buttocks through her underwear, and moving his hand toward her vagina. Ms. Osipova jumped up and began forcing Mr. Valdez out of her bedroom. She was cursing at him and yelling, "Get out[!]" while pushing him out of the bedroom. As Ms. Osipova pushed him, Mr. Valdez resisted her efforts and grabbed her upper arm, bruising it.

From the bathroom, Ms. Figueroa heard Ms. Osipova screaming and yelling, "Get out[!]" and quickly went to see what was happening. Ms. Figueroa instantly knew something was wrong when she saw Ms. Osipova outside of her bedroom door, pushing Mr. Valdez out. Ms. Osipova then yelled to Ms. Figueroa: "This mother f'er just touched me[.]" Ms. Figueroa immediately joined Ms. Osipova in pushing Mr. Valdez out of the apartment. Mr. Valdez stood in the apartment, blocking the women's attempts to forcibly eject him from the apartment; he did not leave. For approximately five minutes, Ms. Osipova repeatedly screamed at Mr. Valdez to "Get out[!]" and struggled with him until she and Ms. Figueroa successfully drove him out of the apartment. At that point, Ms. Figueroa grabbed an empty beer bottle from the kitchen table, swung it at Mr. Valdez, and continued to chase Mr. Valdez out of the building with the bottle before throwing it at him outside, missing him. Ms. Figueroa then reentered the apartment to check on Ms. Osipova. Ms. Osipova was shaken and told Ms. Figueroa that Mr. Valdez had touched "her privates." Neither woman called the police at that time; Ms. Figueroa went home, and Ms. Osipova went to bed to sleep before she had to go to work.

During her workday, Ms. Osipova kept thinking about her encounter with defendant. She called Ms. Figueroa on her lunch break to discuss what happened. Ms. Figueroa told Ms. Osipova that she was worried about being charged with assault for wielding the beer bottle against Mr. Valdez. After mulling over the events, when Ms. Osipova arrived home, she called the Pawtucket Police Department, which dispatched an officer to her home to take her statement.

Both Ms. Osipova and Ms. Figueroa were cross-examined at trial about photographs taken with Ms. Figueroa's cell phone. Ms. Osipova and Ms. Figueroa maintained that the photographs were taken at the club on August 1 or 2, 2015, because they recognized themselves, Mr. Valdez, and Mr. Palmer in one of the images. Ms. Osipova also recognized the black dress she wore, a dress she often wore to the club.

After the state rested its case, defendant moved for judgment of acquittal on all counts pursuant to Rule 29 of the Superior Court Rules of Criminal Procedure. The trial justice denied defendant's motion, determining that there was sufficient evidence for each count.

The defendant then testified to the events of August 1 and 2, 2015, as he remembered them. Mr. Valdez testified that, after the group left the club, Mr. Palmer immediately drove the women back to Ms. Osipova's apartment because the women were drunk. Mr. Valdez watched the women help each other enter the apartment building before he spotted a pair of high-heeled shoes in the backseat of the car. Thinking that the shoes belonged to one of the women, Mr. Valdez grabbed them and decided to go up to Ms. Osipova's apartment to return them. He walked into the apartment alone through the unlocked door, placed the shoes between the kitchen and the hallway, and surprised Ms. Osipova and Ms. Figueroa with his entrance. The women, belligerent and drunk, immediately began yelling and hitting Mr. Valdez, ignoring his attempts to explain himself. Mr. Valdez testified that he stood there for a few minutes, defending himself from the women's blows, before he turned and left the apartment.

The defendant next called Estuardo Hernandez to testify. Mr. Hernandez testified that he was the second man in the photographs introduced into evidence, and that the photographs were taken at the beginning of June 2015 when they were at Club Ultra celebrating his birthday, not at the beginning of August.

The defendant also called the police officer who responded to Ms. Osipova's call on the night of August 2, 2015, as a witness at trial. The officer testified that Ms. Osipova stated that, prior to returning to her apartment that morning, she had been at a friend's house in Central Falls but left because she became ill.

Lastly, Mr. Valdez called Richard Suls, an expert in digital file forensics, to give his expert opinion on when the photographs were taken. Mr. Suls testified that the metadata of the photographs was consistent with the images being captured on June 6, 2015.

After defendant rested his case, he pressed a renewed motion for judgment of acquittal, which was again denied by the trial justice.

During closing arguments, defense counsel implored the jury to discredit the testimony by Ms. Osipova and Ms. Figueroa in favor of defendant's testimony. Defense counsel underscored their inconsistent testimony and lapses in memory due to their inebriation on the night of the alleged incident; Ms. Figueroa's motive to contrive her story given her fear of being charged with assault; and the women's repeated insistence that the photographs were taken on August 1 or 2, 2015, rather than in June of that year.

The jury found defendant not guilty of simple assault but found him guilty on three counts: count one, second-degree sexual assault; count two, breaking and entering; and count four, disorderly conduct.

The defendant moved for a new trial on all convicted counts pursuant to Rule 33 of the...