State v. Ricardo Florez
138 A.3d 789
| R.I. | 2016Background
- On Aug. 1, 2010, 13-year-old "Joshua" alleged that Ricardo Florez molested him in a Pawtucket McDonald’s bathroom; Joshua reported two types of contact (grabbing over clothing and being forced to touch the defendant’s penis).
- Police interviewed Joshua and his father, Glenn; Joshua gave a witness statement and identified Florez in a photo array.
- Florez was charged with second-degree child molestation and tried before a jury in March 2014; the jury convicted.
- Trial judge sentenced Florez to 20 years, with 8 years to serve and the remainder suspended with probation; sex-offender conditions were imposed.
- On appeal Florez raised four main challenges: denial of an alleged timely motion for new trial; jury instructions/verdict form (risk of nonunanimous verdict/duplicity under Saluter); propriety of the state’s use of Joshua’s prior statement to refresh/impeach; and exclusion/limitation on use of a portion of Glenn’s witness statement.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Florez) | Held |
|---|---|---|---|
| Timeliness/merits of motion for new trial | Motion was considered by trial justice and denial properly supported by credibility findings | Motion was timely enough / contest credibility determinations and video inconsistency warranted new trial | Motion was untimely under Super. Crim. R. 33 (jurisdictional) and, even if considered, trial justice did not misapprehend evidence; denial affirmed |
| Jury instructions & verdict form (duplicity; unanimity under Saluter) | No contemporaneous objection; defense acquiesced to trial judge’s plan; waived | Jury could have convicted nonunanimously as to two alternative acts (touch over clothing v. forced touching) causing Saluter error | Waived under raise-or-waive rule; counsel agreed to instruction approach; appeal not considered on merits |
| Use of Joshua’s prior statement (refresh/impeach) | Prior written statement was admissible to impeach where in-court testimony denied a second touching | State improperly refreshed recollection without proper foundation because Joshua said omission was due to fear, not lack of memory | Admissible as a prior inconsistent statement under R.I. R. Evid. 801(d)(1)(A); trial justice acted within discretion to permit impeachment |
| Exclusion/limitation of portion of Glenn’s statement ("tried" language) | The word "tried" would undercut proof and support lesser-included instruction; denial prejudiced defendant | Statement was hearsay if offered for truth; defenses overruled below were not properly preserved on appeal | Issues waived or inadequately preserved; trial justice did not abuse discretion; exclusion admissible (hearsay) if offered for truth; no reversible error |
Key Cases Cited
- State v. Kizekai, 19 A.3d 583 (R.I. 2011) (deference to trial justice on motion for new trial)
- State v. Saluter, 715 A.2d 1250 (R.I. 1998) (duplicity/ requirement of unanimity as to discrete acts)
- State v. Champion, 873 A.2d 92 (R.I. 2005) (Rule 33 time limit is jurisdictional)
- State v. Jaiman, 850 A.3d 984 (R.I. 2004) (prior inconsistent statements and trial-justice discretion for admissibility)