STATE v. Paul FLECK.
No. 2011-305-C.A.
Supreme Court of Rhode Island.
Jan. 15, 2014.
75 A.3d 1129
OPINION
Justice FLAHERTY, for the Court.
The defendant, Paul Fleck, appeals to this Court from a judgment of conviction of one count of simple domestic assault against Kim Dolbec in violation of
Facts and Travel
This case arises from an incident that occurred during the course of an argument between defendant, Paul Fleck, and the complaining witness, Kim Dolbec, on September 13, 2009. Although the two were long acquainted, having first met in schоol nearly thirty years earlier, they had begun to date only some months before, after they were reintroduced by Dolbec‘s neighbor, Heidi Leonard. At that time, both were living in East Providence.1 Dolbec testified that soon after the pair began a relationship, she asked Fleck to move in with her, and that he did so, even though he continued to maintain his own apartment.
Dolbec testified that after she made dinner for defendant on September 13, defendant grabbed her by the arm and struck her in the face with a closed fist. Although by all indications this was the first incident of physical violence between the two, the substance of the argument was familiar to this couple because it arose when defendant aсcused Dolbec of cheating on him. As she did whenever defendant made such accusations, Dolbec denied them because, as she testified, she told him, “[w]hen I‘m with somebody, I‘m not a slut. Excuse my language.” Dolbec did not report the assault at that time; she testified that she did not do so because she was afraid that Fleck would kill her if she did. However, two nights later, оn September 15, defendant made similar accusations, and this time the accusations were coupled with poking Dolbec in the chest. After this second incident, Dolbec left the apartment and went to Leonard‘s resi
East Providence Police Officers Ryan Vose and Genevieve Rock responded to a call for a “delayed domestic assault,” and they took a statement from Dolbec. Officer Vose testified that he had observed that Dolbec was visibly shaken and that she had “a black eye that appeаred to be coming down” as well as some bruising on her right arm. At the police station, the officers photographed Dolbec‘s injuries; the photos eventually were entered into evidence. Dolbec related to Officer Vose that defendant had been her boyfriend for five months and that she had been living with him. Officer Vose noted on the Domestic Violence Sexual Assault Reporting (DVSA) form that Fleck was Dolbec‘s “intimate partner.” Officer Rock also spoke with Dolbec at the Leonard residence, noting the bruises and that she appeared to be very nervous out of fear of Mr. Fleck. Officer Rock indicated that Dolbec‘s bruises were consistent with her story of the physical abuse that she claimed had occurred two days earlier.
The East Providence Police apprehended Fleck on the evening of September 15 without incident, after spotting him on a park bench near Riverside Square in East Providence. Fleck was charged with one count of simple domestic assault on November 6, 2009. The defendant was tried befоre a jury on March 7-9, 2011.
At the conclusion of the prosecution‘s case, defendant moved for judgment of acquittal pursuant to Rule 29. The defendant argued that the state had introduced insufficient evidence that Fleck and Dolbec had been in a domestic relationship, as that term is defined in
The defendant then filed a motion for new trial pursuant to Rule 33, which the trial justice heard and decided on March 25, 2011. The defendant argued that there was insufficient evidence to support a finding of guilt because, under
Before this Court, defendant argues that the trial justice erred when she denied both the Rule 29 and Rule 33 motions. Both arguments are premised on the same grounds: that the state fаiled to prove that Fleck and Dolbec were in a domestic relationship as that term is defined in
Standard of Review
It is well settled that 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 new trial because when he renews an acquittal motion, the trial justice “must view the evidence in the light most favorable to the state, * * * giving full credibility to the state‘s witnesses, and draw[ing] therefrom all reasonable inferences consistent with guilt.” State v. Cardin, 987 A.2d 248, 250 (R.I. 2010) (quoting State v. Caba, 887 A.2d 370, 372 (R.I. 2005)). In the case of a motion for new trial, however, the trial justice does not favor the state‘s evidence, but “use[s] independent judgment to weigh the evidence and assess the credibility of the witnesses.” State v. Pineda, 13 A.3d 623, 640 (R.I. 2011) (quoting State v. Dame, 560 A.2d 330, 334 (R.I. 1989)). Whеn faced, as here, with both Rule 29 and Rule 33 motions, “this Court first conducts a review of the new-trial motion.” See State v. Gaffney, 63 A.3d 888, 893 (R.I. 2013) (citing State v. Cardona, 969 A.2d 667, 672 (R.I. 2009)). “[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.” Pineda, 13 A.3d at 640 (citing State v. Hesford, 900 A.2d 1194, 1200 (R.I. 2006)).
At this juncture, it is important for us to note that a motion for new trial may be argued on two bases. A defendant may claim that the weight of the evidence was not adequate to convict him, or, in the alternative, he may argue that the evidence was legally insufficient to support a conviction. State v. Clark, 974 A.2d 558, 569 (R.I. 2009). Here, even though defendant casts his appеal as a challenge to the “sufficiency” of the evidence, his arguments and presentation of the law, both to the trial justice and to this Court, ask that his appeal be viewed through the prism of the more traditional, weight-of-the-evidence standard. We previously have articulated the differing standards of review for sufficiency of the evidence versus weight of the evidence when a defendant appeals a trial justice‘s denial of a motion for new trial. See State v. Karngar, 29 A.3d 1232, 1235-36 (R.I. 2011); see also Clark, 974 A.2d at 569.
As set forth above, when a defendant argues that the evidence was legally insufficient to serve as the basis for conviction, the trial justice does not weigh the evidence or the credibility of the witnesses, examining it instead in the light most favorable to the prosecution. See Karngar, 29 A.3d at 1235. To deny the motion, the trial justice need only decide that any rational trier of fact “could have found that the prosecution established the elements of the crime beyond a reasonable doubt.” Id.
On the other hand, a motion for a new trial based on the weight of the evidence requires thаt “the trial justice act[] as a thirteenth juror, exercising ‘independent judgment on the credibility of witnesses and on the weight of the evidence.‘” State v. Heredia, 10 A.3d 443, 446
Because defendant urged that the trial justice, both in the hearing on the motion for a new trial and in his brief before this Court, act as the “thirteenth juror,” we will therefore consider defendant‘s appeal as a challenge to the weight of the evidence, and not as to its legal sufficiency. See Karngar, 29 A.3d at 1235.
Discussion
Motion for New Trial
The defendant contends that the trial justice erred when she denied the mоtion for new trial because the evidence that the state presented did not establish beyond a reasonable doubt that defendant and Dolbec were in a domestic relationship as defined within the “[f]amily or household member” definition in
“Every person convicted of an offense punishable as a misdemeanor involving domestic violence as defined in
§ 12-29-2 shall:* * *
“(ii) For a third and subsequent violation be deemed guilty of a felony and be imprisoned for a term of not less than one year and not more than ten (10) years.”
The trial justice‘s finding that the parties were in fact in a domestic relationship bore particular importance because of defendant‘s rather impressive record of eаrlier domestic violence convictions. The defendant‘s criminal record reveals a disturbing pattern of domestic abuse. From 1992 until 1996, defendant had four different domestic-misdemeanor convictions. And from 1997 until 2001, he was convicted of three felony domestic-assault charges. Because of his prior domestic-violence convictions, if the parties’ relationship was deemed to be domestic in nature, defendant would be subject to the enhanced sentencing sanctions of the statute.
Relevant to our discussion here,
“(1) the length of time of the relationship;
“(2) the type of the relationship;
“(3) the frequence [sic] of the interaction between the parties.”2
Because the characterization of defendant and Dolbec as being in a domestic relationship was proper, we must next determine if the trial justice apprоpriately denied the motion for new trial. We hold that that denial was appropriate. After an exacting review of the record, it is clear to us that the trial justice conducted a thorough and complete analysis of defendant‘s motion for new trial. Although defendant attempts on appeal to challenge the credibility of the complaining witness due to her cognitive deficiencies, the trial justice came to a different conclusion.
“This Court is loath to overturn the credibility findings of a trial justice because ‘it is the trial justice who has the opportunity to observe the witnesses as they testify and therefore is in a better position to weigh the evidence and to pass upon the credibility of the witnesses than is this [C]ourt.‘” State v. Richardson, 47 A.3d 305, 318 (R.I. 2012) (quoting Penhallow v. Penhallow, 725 A.2d 896, 897 (R.I. 1998) (mem.)). In our opinion, the trial justice followed the proper procedure when considering the motion for new trial and did not overlook or misconceive material evidence. See Phannavong, 21 A.3d at 325. The trial justice‘s denial of the motion for new trial was not clearly wrong, and we see no basis for disturbing her decision.
Motion for Judgment of Acquittal
The defеndant moved for judgment of acquittal at the close of the prosecution‘s case, but did not renew that motion after presenting his defense. This Court has held that we will consider an appeal for a denial of a motion for judgment of acquittal only if the matter has been properly preserved. State v. Price, 68 A.3d 440, 444 (R.I. 2013) (citing State v. Tower, 984 A.2d 40, 45 (R.I. 2009)). “We consistently have held that the failure to renew a motion for judgment of acquittal at the close of evidence forecloses the defendant‘s right to appeal the denial.” Tower, 984 A.2d at 45. Therefore, the defendant‘s Rule 29 motion has been waived. However, even if the motion had
Conclusion
For the reasons set forth in this opinion, we affirm the judgment of conviction in this case. The record shall be returned to the Superior Court.
Virginia M. McGinn, Department of Attorney General, for State.
Catherine Gibran, Office of the Public Defender, for Defendant.