                                                                   Supreme Court

                                                                   No. 2012-60-C.A.
                                                                   (P2/08-911A)

                     State                          :

                       v.                           :

               Jaimeson Rushlow.                    :

                                           ORDER

       The defendant, Jaimeson Rushlow, appeals from a Superior Court order denying his

motion for the return of seized property. This case came before the Supreme Court for oral

argument pursuant to an order directing the parties to show cause why the issues raised in this

appeal should not be summarily decided.        After considering the parties’ written and oral

submissions and after 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

order, we vacate the order of the Superior Court.

       On April 2, 2008, defendant was charged by criminal information with assaulting his

estranged wife, Frances Rushlow, as well as stealing, or attempting to steal, cash from her.

Subsequently, on June 20, 2008, Ms. Rushlow reported another incident to the Cumberland

police alleging that defendant had broken into her apartment the night before, dragged her out of

bed, restrained her with his shirt, and then raped her. Following an investigation, defendant was

charged with burglary and various sexual assault charges. See State v. Rushlow, 32 A.3d 892

(R.I. 2011).

       After a jury trial, defendant was found not guilty of the burglary offense but guilty of

domestic first-degree sexual assault for which he was sentenced to thirty-five years, with fifteen

years to serve and twenty years suspended, with twenty years probation. See Rushlow, 32 A.3d


                                               -1-
at 895 n.3. Thereafter, on October 12, 2010, the state dismissed the larceny and assault charges

under Rule 48(a) of the Superior Court Rules of Criminal Procedure 1 with the following

explanation:

               “Defendant was found guilty after trial [on the first-degree sexual
               assault charge] and was sentenced to 35 years with 15 to serve.
               The victim in this case is the same and does not want to go through
               another trial on a less[e]r charge. State dismisses this case in the
               interest of Justice.”

       On December 6, 2010, defendant filed a motion to restore property, requesting the return

of the $247.41 that had been confiscated by the police on the night of his arrest in relation to the

larceny charge. A hearing on defendant’s motion was held on January 28, 2011, at which time

the state argued:

                       “I think it’s unbelievable that this defendant comes before
               the [c]ourt now after he was found guilty of raping this victim, that
               he now wants to take back the $240 that he allegedly took from
               her. I don’t know if the State has any standing to object because
               the case was dismissed, but I know Your Honor has great
               discretion in whether you would actually grant this motion; so I
               leave it to Your Honor’s discretion. I think in the interests of
               justice this particular motion should be denied.”

       The defendant argued that the underlying larceny charge was dismissed and, thus, “has

no bearing on the false allegations and wrongful[] * * * convict[ion] of raping [his] wife.” He

stated: “If she wants to take this to trial and prove it, then we’ll take it to trial, but she dismissed

it so there should be no argument. It has nothing to do with the conviction of my recent

charges.”

       In response, the hearing justice concluded that the court had “a great amount of discretion

in this matter,” and she stated that she had not been aware of the fact that defendant “had been

1
  Rule 48(a) of the Superior Court Rules of Criminal Procedure states that “[t]he attorney for the
State may file a dismissal of an indictment, information, or complaint and the prosecution shall
thereupon terminate.”

                                                  -2-
convicted after trial of a rape charge of the same victim” when he filed the motion to restore the

property. As a result, the hearing justice denied his motion. The defendant filed a timely appeal.

          We previously have stated that “[c]ompetent legal evidence must be presented at a

hearing so that the [court] * * * may determine whether the government has any right to retain

the seized property.” State v. Shore, 522 A.2d 1215, 1217 (R.I. 1987). It is the state’s burden to

“show that the property is necessary to the success of an active criminal investigation, is going to

be used as evidence in a pending criminal trial, or is subject to forfeiture.” Id. As such, it follows

that the burden also falls on the state to show that the property had been “stolen or otherwise

unlawfully taken from the owner” to prevent such property from being returned. See G.L. 1956

§§ 12-5-7; 12-17-6. 2 As this Court noted, “the seizure of property from an individual is prima

facie evidence of that individual’s entitlement to the property.” Shore, 522 A.2d at 1217.

Therefore, if the state does not present “serious reasons to doubt the individual’s entitlement,”



2
    General Laws 1956 § 12-5-7 states that:
                “(a) The property seized shall be safely kept by the officer seizing
                it, under the direction of the court, so long as may be necessary for
                the purpose of being used as evidence in any case.
                       “(b) As soon as may be thereafter, if the property is subject
                to forfeiture, further proceedings shall be had on the property for
                forfeiture as is prescribed by law in chapter 21 of this title.
                       “(c) If the property seized was stolen or otherwise
                unlawfully taken from the owner, or is not found to have been
                unlawfully used or intended for unlawful use, or is found to have
                been unlawfully used without the knowledge of the owner, it shall
                be returned to the person legally entitled to its possession.”

General Laws 1956 § 12-17-6, pertaining to property detained as evidence for
trial, states:
               “All property, money, or estate taken or detained as evidence in
               any criminal cause shall be subject to the order of the court before
               which the indictment, information, or complaint shall be brought
               or pending, and shall, at the termination of the cause, be restored to
               the rightful owner.”


                                                 -3-
and does not “produce[] evidence to substantiate its claim, the individual need not come forward

with additional evidence of ownership.” Id.

        The state, in its Rule 12A statement, asserts that the money was, in fact, unlawfully taken

from the defendant’s estranged wife, who the state claims is the rightful owner, but

simultaneously “recognizes that no proof of such allegation was presented at the * * * January

28, 2011, proceeding.” As such, the state declares it “has no objection to the vacation of the

below judgment denying [the defendant’s] ‘motion to restore property in the amount of $247.41’

* * * without prejudice to the [s]tate’s establishing, by competent evidence in the Superior Court,

[the defendant’s] disentitlement to the $247.41 at issue.” The state, however, had an opportunity

to meet its burden of proof to overcome the prima facie evidence that the defendant was entitled

to the money. Instead, it did not submit any evidence and, therefore, did not meet its burden of

proof. Accordingly, we vacate the order of the Superior Court and remand with directions that

the Superior Court enter an order requiring the state to return to the defendant the money seized

from his person at the time of his arrest, without prejudice to the state’s ability to refile.

        Entered as an Order of this Court on this 29th day of May, 2013.

                                                        By Order,



                                                        ____________/s/_____________________
                                                        Clerk




                                                  -4-
                          RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                               Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:      State v. Jaimeson Rushlow.

CASE NO:            No. 2012-60-C.A.
                    (P2/08-911A)

COURT:              Supreme Court

DATE ORDER FILED:   May 29, 2013

JUSTICES:           Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY:         N/A – Court Order

SOURCE OF APPEAL:   Providence County Superior Court

JUDGE FROM LOWER COURT:

                    Associate Justice Kristin E. Rodgers

ATTORNEYS ON APPEAL:

                    For State: Aaron L. Weisman
                               Department of Attorney General

                    For Defendant: Jaimeson Rushlow, Pro Se
