                                                   Supreme Court

                                                   No. 2012-83-C.A.
                                                   (P1/10-1705A)




    State                     :

     v.                       :

Darnell Hie.                  :




NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
                                                                     Supreme Court

                                                                     No. 2012-83-C.A.
                                                                     (P1/10-1705A)



                   State                       :

                     v.                        :

                Darnell Hie.                   :



                   Present: Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.

                                              OPINION

       Justice Robinson, for the Court. The defendant, Darnell Hie, appeals to this Court

from a November 17, 2011 judgment of conviction after a jury found him guilty of two counts of

second-degree child molestation sexual assault in violation of G.L. 1956 § 11-37-8.3. On appeal,

the defendant contends that the trial justice erred in refusing to declare a mistrial and in denying

his motion for a new trial. 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 a close review of the record and careful consideration of the parties’

arguments (both written and oral), we are satisfied that cause has not been shown and that this

appeal may be decided at this time.

       For the reasons set forth in this opinion, we affirm the Superior Court’s judgment of

conviction and its denial of defendant’s motion for a new trial.




                                               -1-
                                                   I

                                          Facts and Travel

       The complaining witness, Jessica,1 was born on November 12, 1994 and was seventeen

years old at the time of trial, in November of 2011. According to her testimony, on November 2,

2009, at the age fourteen, Jessica disclosed to her cousin Sarah (who was also her classmate) that

defendant, Jessica’s stepfather, had sexually molested her multiple times when she was in the

third grade. It was Jessica’s testimony that, immediately after listening to that disclosure, Sarah

encouraged Jessica to share this information with Yvonne, Jessica’s mother; Jessica added that

she agreed and used her cellular phone to send a text message to her mother, asking her to come

to her school because she needed to talk to her. Jessica stated that Yvonne arrived at the school,

and there, in the principal’s office, she revealed to her mother that defendant had sexually

molested her.

       On May 21, 2010, a Providence County grand jury indicted defendant on four counts of

first-degree child molestation sexual assault in violation of § 11-37-8.1 and ten counts of second-

degree child molestation sexual assault in violation of § 11-37-8.3. The charged offenses were

alleged to have occurred between September of 2002 and June of 2003. Counts Eight and

Fourteen alleged “Penile to Vaginal Penetration;” Counts Five and Eleven alleged “Penile to

Anal Penetration;” Counts One, Four, Seven, Ten, and Thirteen alleged “Hand to Vagina;” and

Counts Two, Three, Six, Nine, and Twelve alleged “Hand to Breast.”

       In due course, a jury trial was held over four days in November of 2011. We summarize

below the salient aspects of what transpired at that trial.

1
        In order to respect the privacy of the complaining witness and that of her family, we have
used pseudonyms in referring to the complaining witness (“Jessica”), her mother (“Yvonne”),
her older sister (“Adriana”), her half-sister (“Daria”), and her cousin (“Sarah”). For the same
reason, we have omitted their surnames. In doing so, we intend no disrespect.


                                                 -2-
                                                A

                                      The Testimony at Trial

                      1.      The Testimony of the Complaining Witness

       Jessica testified that, at the time of the assaults, she lived in an apartment on Charles

Street in Providence with her mother, her older sister, Adriana, her less than one-year-old half-

sister, Daria, and defendant, whom she had known, “[her] whole life.” She stated that she shared

a bedroom with her sisters and that her mother and defendant slept in another bedroom. At trial,

Jessica described five separate incidents that she testified took place over a ten-to-twelve week

period, during which defendant came into her room during the night, assaulted her, and left.

       Jessica testified that during the first incident (Counts One & Two), defendant “came into

[her] room and he laid under the covers with [her] and touched [her] under and over [her]

pajamas.” She stated that she was awake during this incident, but that she kept her eyes closed

because “[she] was scared.” She further stated that she assumed defendant was the one who

touched her because “[she] felt his hands touching [her] body” and “[h]is hands were rough.”

       Jessica testified that the second incident (Counts Three, Four & Five) took place

approximately two weeks later. She stated that she was sleeping in her bed, lying on her

stomach, and awoke to the touch of defendant’s hands on her breast and vagina “over and under

[her] pajamas.” She stated that she opened her eyes this time and, “[t]hrough the corner of [her]

eye,” saw defendant on top of her. She testified: “At first he was touching me and then he

inserted his penis in my rear end.”

       It was Jessica’s testimony that the third incident (Counts Six, Seven & Eight) took place

approximately two weeks after the second incident. She stated that she was sleeping in her bed,

this time on her back, and awoke to the touch of defendant’s hands on her breast and vagina




                                               -3-
“over and under [her] pajamas.” She stated that she opened her eyes and saw defendant on top

of her. This time, she further stated, “[defendant] actually inserted his penis inside my vagina.”

          The fourth incident (Counts Nine, Ten & Eleven), Jessica testified, was similar to the

second incident. She stated that she was sleeping in her bed, lying on her stomach, and awoke to

the touch of defendant’s “rough” hands on her breast and vagina “over and under [her] pajamas.”

She further stated that, when she opened her eyes, defendant was “on top of [her] with his hands

underneath [her] from behind.” Then, Jessica stated, defendant penetrated her anally.

          During the fifth incident (Counts Twelve, Thirteen & Fourteen) concerning which Jessica

testified, she was sleeping in her bed, on her back, and awoke to the touch of defendant’s hands

on her breast and vagina “over and under [her] pajamas.” Then, she stated, defendant “insert[ed]

his penis inside my vagina.”

          Jessica testified that she did not tell anyone about the incidents when they occurred

because “[defendant] was still in the house” and “[she] didn’t feel safe.” On cross-examination,

Jessica testified that defendant did not threaten her and never said anything to her during the

incidents that she had described. She had testified on direct examination, however, that “[w]hen

[she] would see [defendant] around the house,” “[h]e would give like little side smiles here and

there.”

          In her testimony, Jessica estimated that each incident lasted “[a]bout 20 to 30 minutes.”

She stated that each of the incidents occurred while her sisters, Adriana and Daria, were sleeping

in the same room. She further stated that she did not “call[] out” to Adriana or to her mother and

never told defendant to “stop” or “get away.” When Jessica was asked by defense counsel

whether she had any type of discharge or blood after the second or third incident, she replied

“[n]ot that I know of.”




                                                -4-
       Jessica acknowledged in her testimony that six to seven years had passed between

defendant’s assaults and her reporting about them. During this time, she stated, her mother and

defendant “had an okay relationship” but “[t]hey had their ups and downs.” She further stated

that, although her mother and defendant “broke up and [defendant] left the house for good” in

2007, her mother and defendant continued to see each other. Jessica testified that only when she

knew defendant “was gone for good,” after her mother filed for divorce, did she feel “safe

enough to talk about it.”

       Jessica testified that, after she revealed to her mother (at the office of the principal of her

school) that defendant had “raped” her, she refused to describe the assaults in any detail to her.

Jessica stated that she did not want to tell her mother about the details because she “was scared

and because [her mother] has kids with [defendant]” and “[b]ecause [she] knew it would hurt her

[mother] more.”

              2.      The Testimony of the Mother of the Complaining Witness

       Jessica’s mother, Yvonne, testified that she had known defendant since 1994, when she

was twenty-four years old; she added that she married him in 1999. Yvonne further testified

that, at the time of the assaults, she lived with defendant in an apartment on Charles Street in

Providence along with her daughters—Adriana, Jessica, and Daria. Yvonne stated that, since

Daria was one month old, she “would * * * spend the night in [Adriana]’s bed a lot of the time.”

       Yvonne testified that her daughter Adriana told her one morning that “she awoke in the

middle of the night and saw [defendant] * * * in their bedroom * * * looking out the window.”

Yvonne further testified that, when she asked defendant to explain what he had done in the girls’

room, “[h]e said he had heard something [and he] wanted to make sure the windows were

locked.” Yvonne stated that she found defendant’s behavior “odd” and that it “kind of upset




                                                -5-
[her] a little.” It was Yvonne’s testimony that, after that incident, she installed a lock on Adriana

and Jessica’s door; she described the lock as being “one of those that you buy at any hardware

store and screw it into the wall.” She stated that she wanted to put a lock on their door so that

“they can lock their door and feel safe at night.” Yvonne further stated that she asked her

daughters to lock their bedroom door at night.

         It was Yvonne’s testimony that defendant “didn’t understand why there was a lock on the

door” and “would say things like what if there was a fire, or what if something happens, how are

we going to get to them.” Yvonne testified that, a week or two after she installed the lock,

defendant “pushed the door in and broke the lock.” She summarized as follows defendant’s

explanation as to why he broke the lock:

                “[He] stated that he heard some noise in their room. He thought
                somebody was in their bedroom, and I had my ear to the door. I
                didn’t hear anything. He kept insisting somebody was there. He
                got mad and pushed the door, forced the door open, kind of broke
                the piece of the wood so we couldn’t put the lock back on.”

Yvonne stated that, when defendant came through the door, no one other than Adriana and

Jessica was in the room; she added that they were in bed and that they “jumped up, scared.” It

was further her testimony that there was never another adult male in the house overnight and

that, during the time period in which the assaults occurred, Jessica “seemed nervous all the

time.”

         On cross-examination, Yvonne testified that the first time she heard that defendant was

assaulting Jessica was in 2009, when Jessica told her at her school that defendant had “raped

[her].” Yvonne added that Jessica never disclosed any further details of what happened to her

and that, even at the time of trial, she still had “no idea of what actually happened other than that

[Jessica] told [her] that she was raped by [defendant].” It was her testimony that she “explained




                                                 -6-
to [Jessica] what rape was” and Jessica confirmed that she had been raped, stating, “‘Yes, he

raped me.’” Yvonne reiterated that her daughter had never spoken to her about any details.

       On redirect examination, the prosecutor and Yvonne engaged in the following exchange:

               “[Prosecutor]: You have been asked a number of different
               questions a number of different ways about the fact that your
               daughter has not explained to you what she meant by rape; is that
               right?

               “[Yvonne]: Yes.

               “[Prosecutor]: She has never told her mother that someone put his
               penis in her anus; is that right?

               “[Yvonne]: No.

               “[Prosecutor]: She has never told you that someone put his penis
               in her vagina; is that right?”

At that point, defense counsel objected, but Yvonne proceeded to answer in the negative. A

sidebar conference, out of the hearing of the jury, then took place; defense counsel addressed the

trial justice as follows: “[T]he witness is totally broken down on the stand. She is crying

uncontrollably. It’s through no question that I asked her. It’s through the prosecutor’s redirect.”

Defense counsel asked the trial justice to pass the case (i.e., declare a mistrial), arguing that the

prosecutor “went after” Yvonne “as a total adverse witness against the rules of redirect;” he

added that “[t]o have her breakdown [sic] to the point where the jury can feel nothing but

sympathy, I think it’s prejudicial to my client.” The trial justice characterized the prosecutor’s

questioning as a “very grave error,” “totally inappropriate,” and “totally improper.” He further

chastised the prosecutor at sidebar as follows:

                      “Why in the world did you take it upon yourself to tell her
               what her own daughter has never told her after all of these years
               when the witness’s answers have been consistent on both direct
               and cross examination that the daughter never told her?




                                                  -7-
                       “***

                       “This case rises and falls on the witness’s statement,
               [Jessica’s] statement, not what her mother didn’t know that, you,
               with great vehemen[ce] told her that she didn’t know, and I think it
               was very inappropriate that you took it upon yourself to tell her
               what she didn’t know when it wasn’t necessary. It wasn’t
               necessary to prove your case and put this woman through the
               distress that she is now going through.”

Despite his criticism at sidebar of the challenged questions by the prosecutor, the trial justice

nonetheless decided not to pass the case; and he denied defense counsel’s motion to that effect.

Instead, the trial justice provided a curative instruction to the jury as follows:

                       “Ladies and gentlemen, that line of questioning engaged in
               by the prosecutor I consider to be inappropriate to this witness.
               First of all, the witness answered consistently in both direct, cross
               and redirect that she was never told by her daughter what the actual
               alleged acts of misconduct were.
                       “I think it’s unfortunate that the prosecution chose to reveal
               these facts to this woman at this time. It really doesn’t add
               anything to this case other than to the discomfort of this woman.
                       “Now, one of the dangers of her reaction to this is the
               aspect of sympathy which may be visited upon you by her sudden
               surprise and reaction to this news. It has nothing to do with the
               quantum of proof. The case rises or falls so far as I can see in this
               case at this point on the testimony of the young complaining
               witness, not on this mother or her reaction to the news of the
               details allegedly experienced by her minor daughter. So I’m going
               to instruct you not to have any sympathy for this woman because
               of this revelation by the prosecution which apparently she has
               never heard before.”

The following exchange between the trial justice and Yvonne then took place:

               “[Trial Justice]: Is that correct, Miss, you had no idea the nature
               of these acts?

               “[Yvonne]: No.

               “[Trial Justice]: Despite your repeated questions of her over time?

               “[Yvonne]: Yes.




                                                 -8-
               “[Trial Justice]: You never heard [sic] a police report?

               “[Yvonne]: No.”

The trial justice then further addressed the jury in the following words:

                       “Okay. So her reaction has got nothing to do with this other
               than her own unfortunate discovery of the nature of these
               allegations. It doesn’t prove the allegations. Understand what I’m
               saying? And I think that line of questioning was inappropriate. I’m
               not going to do anything other than caution you not to allow this to
               enter into your deliberations with regard to overt sympathy. You
               may take this witness’s testimony and weigh it and sift as you
               would anyone else, but you would give no great weight or allow
               your deliberations to be swayed by the emotion that she has shown
               by this apparent and recent discovery.”

       At that point the questioning of Yvonne ceased, and Jessica’s sister Adriana was called to

the stand.

                  3.     The Testimony of the Complaining Witness’s Sister

       Adriana, Jessica’s older sister, was next called by the prosecution; she stated that she

remembered defendant being in the bedroom which she shared with Jessica at the apartment on

Charles Street during the night on two occasions. It was her testimony that, on one of those

occasions (which she stated that she told her mother about), defendant was “looking out the

window, the bedroom window.” It was further her testimony that, on the other occasion, she

“woke up” and saw defendant “getting out up from [Jessica’s] bed;” she added that she

pretended to be asleep and that defendant walked over, “sat on the end of [her] bed and then he

left the room.” Adriana testified that she did not tell her mother about the second incident.




                                                -9-
                                                    B

                    The Jury Instructions, the Deliberations and the Verdict

        After Adriana’s testimony, the prosecution rested, and defendant (after unsuccessfully

moving for a judgment of acquittal) likewise rested without calling any witnesses. In the course

of giving his final instructions to the jury, the trial justice stated:

                       “With regard to the sympathy factor, let me reiterate my
                comments about any undue sympathy which may have been
                invoked in you by the emotional response of [Yvonne] on the stand
                the other day. Sympathy, compassion, hatred, bias, any of the
                human emotions that we all have and that we all experience have
                no place in your deliberations.”

After a day of deliberating the jury sent a note to the trial justice stating that it had reached a

consensus on “12 of the 14 counts but [was] struggling to come up to a consensus on the other

two.”    After receiving that note from the jury, the trial justice repeated his instructions

concerning the issues to which the jury had pointed. That same day, the jury returned a verdict

of guilty on two counts of second-degree sexual assault, both of which arose from the first

incident about which Jessica testified. Specifically, defendant was found guilty on Count One

and Count Two which alleged “Hand to Vagina” and “Hand to Breast” respectively. The jury

returned a not guilty verdict on the remaining twelve counts. In due course, the trial justice

sentenced defendant on each of the two counts to twenty-five years imprisonment, with eight

years to serve and seventeen years suspended, with probation.

                                                    C

                                        Motion for a New Trial

        The defendant moved for a new trial, which motion was heard on December 2, 2011.

The defendant argued that the jury’s verdict was “inconsistent” with the evidence presented at

trial. It was his contention that there was “really * * * nothing different between” Jessica’s



                                                  - 10 -
testimony about the first incident of alleged sexual molestation and her testimony about the other

incidents. Accordingly, defendant argued that, if the jury found Jessica to be a credible witness,

it should have found him guilty on “all counts” and if it did not find her to be a credible witness

it should have “acquitted him” on all counts. The defendant also pointed out that the first

incident had the least evidentiary support since Jessica testified that she had “her eyes closed”

and knew defendant only by his “rough hands.” The defendant characterized Jessica’s testimony

as “robotic;” he added that her description of what had occurred was “done basically without any

type of emotion[,] * * * almost in a script * * * .”

       The trial justice denied defendant’s motion.          He found Jessica’s testimony to be

“unemotional” but nevertheless “credible.” With respect to Yvonne, the trial justice stated that

he found her to be “extremely credible particularly after she was made aware” of the specific

allegations against defendant. The trial justice expressed his “surprise” that the jury convicted

on only two of fourteen counts, and he found the verdict to be inconsistent. However, he

declined to “disturb the finding of guilty on the first two counts.” The trial justice stated that the

jury “understood the charge, and took their time.” He further stated that there could have been

“some compromise” among the jurors or that the jury may not have believed that a “child of

tender years” could have experienced the type of penetration Jessica described without “cry[ing]

out.” The trial justice stated that a “reasonable inference[]” could be drawn from Jessica’s

testimony that the perpetrator of the first incident of sexual assault (Counts One & Two) was

defendant because he was the only adult male in the household.




                                                - 11 -
                                                 II

                                        Issues on Appeal

       On appeal, defendant contends: (1) that the trial justice erred in failing to grant his motion

to pass the case subsequent to the prosecutor’s questioning on redirect examination of Yvonne

with respect to the details of the assaults that defendant allegedly committed against Jessica

(which questioning the trial justice characterized as “totally improper”); and (2) that, in denying

defendant’s motion for a new trial, the trial justice overlooked and misconceived material

evidence and inappropriately relied on Yvonne’s emotional response to the prosecutor’s

questioning on redirect examination, which he had instructed the jury not to consider.

                                                III

                                             Analysis

                                                 A

                                  The Motion to Pass the Case

                                     1. Standard of Review

       It has been our consistent practice to review the decision of a trial justice on a motion to

pass2 a case for abuse of discretion. State v. Clements, 83 A.3d 553, 564 (R.I. 2014); see State v.

Hernandez, 641 A.2d 62, 69 (R.I. 1994) (“The decision to declare a mistrial is within the sound

discretion of a trial justice.”); see also State v. McManus, 941 A.2d 222, 234 (R.I. 2008); State v.

Figueroa, 673 A.2d 1084, 1091 (R.I. 1996). We apply the abuse of discretion standard because

“[t]he trial justice enjoys a ringside seat at the trial and therefore is in the best posture to

determine whether a witness’s inappropriate remark [or action] has so inflamed the jurors that



2
       “[A] motion to pass a case is viewed for all intents and purposes as identical to a motion
for a mistrial.” State v. McManus, 941 A.2d 222, 234 (R.I. 2008) (internal quotation marks
omitted); see also State v. Disla, 874 A.2d 190, 198 (R.I. 2005).


                                               - 12 -
they no longer would be able to decide the case based on a calm and dispassionate evaluation of

the evidence.” State v. Disla, 874 A.2d 190, 198 (R.I. 2005) (internal quotation marks omitted);

see also State v. Mendoza, 889 A.2d 153, 158 (R.I. 2005). For that reason, the decision of a trial

justice to deny a party’s motion to pass the case “will be given great weight, and we will not

disturb that determination unless it is clearly wrong.” Figueroa, 673 A.2d at 1091; see also

Clements, 83 A.3d at 565. When a cautionary instruction has been given, “[a] mistrial will be

ordered at the appellate level only if we are convinced that the cautionary instructions were

untimely or ineffective, or if the improper material had been so indelibly etched in the jurors’

minds that, despite [the trial justice’s] timely action, the trial justice did not disabuse the jurors’

minds of the prejudicial effect.” State v. Hoyle, 122 R.I. 45, 48, 404 A.2d 69, 71 (1979); see

Mendoza, 889 A.2d at 158.3

                                           2. Discussion

       The defendant contends that the trial justice erred in not passing the case after the

prosecutor’s improper questioning which led to Yvonne’s “[e]motional [b]reakdown.”4 The

defendant argues that both Jessica and her mother were “explicit” about Jessica’s never having

told her mother any details of the sexual assaults and yet, despite that state of the record, the

prosecutor “ambushed [Yvonne] with the presentation of explicit details about [Jessica’s]

claims.” The defendant posits that “the state’s callous questions were designed for theatrical

effect and to cause the predictable and public emotional breakdown of [Yvonne];” defendant



3
       We note that, in our decision in State v. Hoyle, 122 R.I. 45, 48, 404 A.2d 69, 71 (1979),
we remarked that the same “principles control,” regardless of whether or not “the conduct
complained of is a display of emotion or other objectionable conduct rather than an improper
remark.”
4
       Many of the filings referenced in this Court’s discussion have headings which employ
bold-face type. We have conformed those headings to our usual style throughout this opinion.


                                                - 13 -
adds that those questions “served no legitimate testimonial purpose.” The defendant avers that

“the prejudice inuring from the prosecutor’s improper questioning was demonstrably incurable.”

Moreover, according to defendant, the “most telling evidence” of the “prejudicial effect” of the

prosecutor’s questioning “and of the ineffectiveness of the trial justice’s cautionary instruction”

was that the trial justice himself referenced Yvonne’s breakdown as evidence of her credibility

when ruling on defendant’s motion for a new trial. Accordingly, it is defendant’s contention that

the trial justice recognized that the questioning was improper and prejudicial and therefore, that,

he abused his discretion in not granting defendant’s motion to pass the case.

        In response, the state, “for its part, stands by the argument that the defendant opened the

door to the prosecutor’s line of inquiry when, on cross-examination, counsel pressed [Yvonne]

about her daughter’s failure to inform her mother of [defendant’s] conduct in explicit sordid

detail * * * .” The state adds that it “respectfully disagrees with the trial justice’s determination

that this line of questioning by the prosecutor was improper.” According to the state, the

defendant cannot “justifiably complain that the prosecutor questioned [Yvonne] on re-direct

examination concerning the very same information his counsel pressed that witness about on

cross-examination.” (Emphasis in original.) The state avers that defendant “made an issue out

of [Jessica’s] reluctance to disclose to [Yvonne] the specific details of [defendant’s] conduct”

and, consequently, “when [defendant] claimed that [Jessica’s] silence on the matter of the sexual

abuse was evidence of fabrication, it became the State’s job to provide the jury with an

explanation for her hesitancy to confide such sordid information to her mother.” The state

further contends that any prejudice which may have resulted from the questioning at issue was

cured by the trial justice’s curative instruction to the jury.




                                                 - 14 -
        A trial justice, in considering a motion to pass a case, “must determine whether the

evidence would cause the jurors to be so inflamed as to make them unable to decide the case on

the basis of the evidence presented.” State v. Oliveira, 882 A.2d 1097, 1127 (R.I. 2005). “If the

prejudice is inexpiable, the motion to pass should be granted. If the prejudice can be cured, the

instructions which follow must be timely and effective.” Hoyle, 122 R.I. at 48, 404 A.2d at 70;

see also Disla, 874 A.2d at 198. However, there is no “precise formula” to determine whether

any prejudicial taint may have been cured by a cautionary instruction. Oliveira, 882 A.2d at

1127; see also Hoyle, 122 R.I. at 48, 404 A.2d at 70. Therefore, “[e]ach case must be decided on

an ad hoc basis and each challenged remark must be viewed in the context in which it appeared

and in light of the attendant circumstances.” Hoyle, 122 R.I. at 48, 404 A.2d at 70-71. Since the

trial justice decided to “utilize a cautionary instruction” in the instant case, “the question before

us is whether [the trial justice’s] instruction can be fairly said to have removed from [the jurors’

minds], when weighing the evidence properly before them, the taint represented” by Yvonne’s

emotional response to the prosecutor’s questions on redirect examination, which questions

provided her, for the first time, with the specific details of the assaults to which her daughter was

subjected. State v. Brown, 528 A.2d 1098, 1103 (R.I. 1987) (internal quotation marks omitted).

        We need not, and consequently we do not, make any judgment on the propriety of the

prosecutor’s questions to Yvonne; if we assume arguendo that those comments were

inappropriate, it is nonetheless our conclusion that any prejudice which may have resulted was

effectively and efficiently cured by the trial justice’s instruction to the jury.

        Without any evidence “that the jury was not capable of complying with the trial

justice[’s] cautionary instruction, this [C]ourt must assume that the jury did disregard the witness

[reaction] as it was instructed to do.” Disla, 874 A.2d at 198 (internal quotation marks omitted);




                                                 - 15 -
see also Mendoza, 889 A.2d at 159.         Unquestionably, “the entire rationale underlying the

structure of jury trials and the lyrical deference that is paid to jury findings rests upon the

proposition that jurors will obey the admonitions of the trial justice and will apply the law as

given to them by the justice presiding.” Disla, 874 A.2d at 198 (internal quotation marks

omitted); see also Mendoza, 889 A.2d at 159. In spite of defendant’s contention that any

prejudice in the instant case was “demonstrably uncurable,” we can perceive nothing in the

record that indicates that any taint which might have existed was not cured by the trial justice’s

curative instruction; we likewise can perceive nothing in the record that indicates that the jury

chose to disregard the trial justice’s curative instruction. See McManus, 941 A.2d at 234 (“[W]e

cannot conclude that the jury would be so affected by the question that they would not be able to

decide the case based on a dispassionate evaluation of the evidence.”) (internal quotation marks

omitted).

       It is worth noting that the curative instruction given by the trial justice clearly and

thoroughly explained to the jury that it was not to allow any sympathy which it might have for

Yvonne to affect its determination as to her credibility or the credibility of the other witnesses.

(We also note approvingly that the trial justice included a substantially similar instruction in his

final charge to the jury.) He even reminded the jury that the case rose and fell “on the testimony

of the young complaining witness.” The trial justice also gave the instruction in a timely

manner, immediately after the questioning at issue. See Hoyle, 122 R.I. at 48, 404 A.2d at 71.

Moreover, we note that, despite Yvonne’s emotional response to the questioning on redirect

examination, the jury nonetheless found defendant not guilty on twelve out of the fourteen

counts against him. Lastly, it is worth remarking that the information which formed the basis of




                                               - 16 -
the prosecutor’s questions was simply cumulative to other testimony at trial, and thus it was not a

situation where the jury was exposed to additional, prejudicial information.

       In our judgment, after reviewing the record, considering the context in which Yvonne’s

emotional response was elicited, and the trial justice’s curative instruction, there is no reason to

believe that the jury in the instant case was not able to make an objective evaluation of the

evidence against Mr. Hie. See Oliveira, 882 A.2d at 1127; Hoyle, 122 R.I. at 48, 404 A.2d at 70-

71. Accordingly, we hold that the trial justice did not abuse his discretion when he denied

defendant’s motion to pass the case.

                                                 B

                                       Motion for a New Trial

                                       1. Standard of Review

       When ruling on a motion for a new trial, the trial justice “acts as a thirteenth juror and

exercises independent judgment on the credibility of witnesses and on the weight of the

evidence.” State v. Barrios, 88 A.3d 1123, 1128 (R.I. 2014) (internal quotation marks omitted);

see also State v. Baker, 79 A.3d 1267, 1273 (R.I. 2013); State v. Paola, 59 A.3d 99, 104 (R.I.

2013); State v. Guerra, 12 A.3d 759, 765 (R.I. 2011). In fulfilling his or her role as the thirteenth

juror and passing on a motion for a new trial, “the trial justice must (1) consider the evidence in

light of the jury charge, (2) independently assess the credibility of the witnesses and the weight

of the evidence, and then (3) determine whether he or she would have reached a result different

from that reached by the jury.” State v. Silva, 84 A.3d 411, 416 (R.I. 2014) (internal quotation

marks omitted); see also State v. Mitchell, 80 A.3d 19, 30 (R.I. 2013); State v. Espinal, 943 A.2d

1052, 1058 (R.I. 2008); State v. Morales, 895 A.2d 114, 121 (R.I. 2006). If, after carrying out

this three-step analytical process, “the trial justice agrees with the jury’s verdict or determines




                                               - 17 -
that reasonable minds could differ, then the analysis is complete and the verdict should be

affirmed.” State v. Harrison, 66 A.3d 432, 445 (R.I. 2013) (internal quotation marks omitted);

see also State v. Bunnell, 47 A.3d 220, 232 (R.I. 2012); State v. Kizekai, 19 A.3d 583, 590 (R.I.

2011). However, if the trial justice “does not agree with the verdict or does not agree that

reasonable minds could differ, then the trial justice must determine whether the verdict is against

the fair preponderance of the evidence and fails to do substantial justice.” Harrison, 66 A.3d at

445 (internal quotation marks omitted); see State v. Gonzalez, 56 A.3d 96, 102 (R.I. 2012).

       With respect to a trial justice’s ruling on a motion for a new trial, we have stated that the

“record should reflect a few sentences of the justice’s reasoning on each point.”            State v.

DiCarlo, 987 A.2d 867, 870 (R.I. 2010) (internal quotation marks omitted); see also Silva, 84

A.3d at 417. Nonetheless, we have also stated that, in providing the rationale for his or her

decision, a trial justice does not need to “refer to all the evidence supporting the decision; rather,

he or she need only cite evidence sufficient to allow this [C]ourt to discern whether the justice

has applied the appropriate standards.” State v. Robat, 49 A.3d 58, 71 (R.I. 2012) (emphasis in

original) (internal quotation marks omitted); see also DiCarlo, 987 A.2d at 870.

       We accord “great weight to a trial justice’s ruling on a motion for a new trial if he or she

has articulated sufficient reasoning in support of the ruling.” Robat, 49 A.3d at 71 (internal

quotation marks omitted); see Espinal, 943 A.2d at 1058; see also State v. Day, 925 A.2d 962,

983-84 (R.I. 2007). Accordingly, we will not disturb a trial justice’s decision with respect to a

motion for a new trial “unless we determine that the trial justice committed clear error or that he

or she overlooked or misconceived material and relevant evidence [relating] to a critical issue in

the case.” DiCarlo, 987 A.2d at 871 (internal quotation marks omitted); see State v. Payette, 38

A.3d 1120, 1127 (R.I. 2012); see also Harrison, 66 A.3d at 445. When conducting a review of a




                                                - 18 -
denial of a motion for a new trial, “we do not focus on whether this Court simply agrees or

disagrees with the trial justice’s credibility determinations,” but rather we are “deferential to

those determinations;” and “we will not overturn that decision unless the trial justice has

overlooked or misconceived material evidence or was otherwise clearly wrong.” State v. Clay,

79 A.3d 832, 842 (R.I. 2013) (internal quotation marks omitted); see also Gonzalez, 56 A.3d at

104; Bunnell, 47 A.3d at 232-33. We have repeatedly noted that “[t]his Court affords a great

deal of respect to the factual determinations and credibility assessments made by the judicial

officer who has actually observed the human drama that is part and parcel of every trial and who

has had an opportunity to appraise witness demeanor and to take into account other realities that

cannot be grasped from a reading of a cold record.” Paola, 59 A.3d at 106 (internal quotation

marks omitted); see Barrios, 88 A.3d at 1130; see also DiCarlo, 987 A.2d at 872.

                                          2. Discussion

       The defendant contends that, in denying his motion for a new trial, “the trial justice

overlooked and misconceived material evidence which established doubt that [defendant] was

the perpetrator of two counts of second degree child molestation.” Specifically, he claims that

the close quarters in Jessica’s bedroom coupled with the fact that Jessica testified that she never

cried out, the fact that her sisters never awoke at any point when Jessica was being assaulted, and

the fact that Jessica never opened her eyes, calls “into question the reliability of [Jessica’s]

testimony.” It is defendant’s position that “the jury surely wondered whether [Jessica’s] claims

were the accurate memories of a young girl or imaginary nighttime visions” and, according to

defendant, the trial justice should have “similarly scrutinized” Jessica’s claims.

       The defendant also contends that, in denying his motion for a new trial, the trial justice

improperly relied upon “deeply prejudicial testimony that he ordered stricken from the record.”




                                               - 19 -
The defendant refers to the emotional response of Yvonne to the prosecutor’s questions on

redirect examination, which questions disclosed the details of Jessica’s assaults to her mother for

the first time. It is defendant’s contention that, if “an experienced, impartial jurist like [the trial

justice] was so influenced by [Yvonne’s] emotional outburst that he did not follow his own

cautionary instruction to the jury * * * it only follows that [Yvonne’s] reaction produced both

passion and prejudice against [defendant] for those that observed her courtroom tears.”

       The state avers that defendant’s argument is flawed given that it “overlooks the great

weight accorded to the trial justice’s ruling;” it further contends that, by finding Jessica credible,

the trial justice “articulated adequate reasoning to uphold the jury’s verdict and any consideration

of the testimony of [Yvonne] was superfluous to the ruling.”

       The trial justice in the instant case properly followed the required three-step analysis in

ruling on defendant’s motion for a new trial. First, he considered the evidence in light of the jury

charge; the trial justice addressed with specificity the multiple incidents of sexual assault alleged

by Jessica, and he noted that Adriana’s testimony “corroborated” Jessica’s testimony. He further

considered Yvonne’s testimony with respect to the fact that she installed a lock on Jessica and

Adriana’s bedroom, and he stated that “the inference was she was somewhat suspicious of

defendant as the girls got older * * * .” In ruling on defendant’s motion for a new trial, the trial

justice considered the testimony of every witness who testified at trial. He also commented on

the evidence in light of the jury charge on sexual assault. See Silva, 84 A.3d at 416.

       Next, the trial justice properly weighed the evidence and addressed the credibility of the

witnesses. See id. After explicitly recognizing that he had to conduct his own independent

review of the evidence, the trial justice discussed Jessica’s testimony. He began by noting that

she was “very unemotional” and “fairly monotone;” but he added that he did not find that




                                                - 20 -
“totally unusual in cases like [the one before him].” He noted that, when Jessica testified

regarding the assault for which defendant was convicted, she stated that she had her eyes closed

but that she had felt “rough hands;” the trial justice added that a “reasonable inference” could be

drawn from that testimony that defendant “perpetrated these crimes against her,” because “[h]e

was the only adult in the building, living there” and Jessica “knew he was living there” and “had

rough hands.” The trial justice concluded that Jessica was a “credible witness” and stated:

               “I thought that her testimony, while delivered in a monotone, flat
               manner, was as a result of her embarrassment of having to live
               through the motion, [sic] live through the emotion of telling the
               story again that had happened so long ago, that she could look at it
               perhaps from a distance now as a young woman and just relate
               what she remembered from the facts.”

The trial justice proceeded to find Adriana to be “credible” and Yvonne to be “extremely

credible.” We note that the mere fact that defendant might disagree with the trial justice’s

determination that each of the witnesses at trial was credible does not require the trial justice to

grant defendant’s motion for a new trial. See id. at 418 (“This Court has repeatedly stated that

[t]he mere fact that [a] defendant disagrees with the trial justice’s conclusions about credibility is

not a sufficient basis to warrant the granting of a motion for new trial.”) (internal quotation

marks omitted); see also Gonzalez, 56 A.3d at 103.

       With relation to the third step in his analysis, the trial justice remarked that he was

“surprised” by the verdict. However, he stated that there potentially might have been “some

compromise” among the jurors. The trial justice concluded as follows:

               “[T]he Court believes that based on the evidence, based on the
               credibility of the witnesses here, and based on particularly the fact
               that there were five discreet [sic] instances complained of that the
               Court cannot, I don’t disagree with the verdict because I thought
               the witnesses were credible as to all counts * * * .”




                                                - 21 -
Thus, it is clear that, after properly assessing the evidence and weighing the credibility of the

witnesses, the trial justice concluded that he could not “disagree with the [jury’s] verdict.” As

such, his “analysis [was] complete,” and he denied defendant’s motion for a new trial. Harrison,

66 A.3d at 445. We perceive no error in the trial justice’s progression through the three required

steps or in his conclusion that he could not “disagree with the verdict.”

       The defendant contends that the trial justice did not properly take into account the fact

that, as defendant states, the verdicts were “inconsistent.” However, the trial justice clearly

addressed defendant’s argument that the verdicts were inconsistent; he stated that they were in

fact “inconsistent.” See State v. Staffier, 21 A.3d 287, 291 (R.I. 2011). But he went on to state

that Jessica was a credible witness and that it is possible that the jury compromised in finding

defendant guilty on two of the fourteen counts. See id. at 292 (“We also recognize that in cases

in which juries reach inconsistent verdicts on different counts of the same information, the jury

may reach compromises through a variety of motivations, including leniency.”). Consequently,

we are satisfied that the trial justice properly took into account the fact that the verdicts in this

case could be characterized as inconsistent.

       Finally, defendant takes issue with the trial justice’s reference to Yvonne’s emotional

response to the questions regarding the specifics of Jessica’s sexual assault.           In denying

defendant’s motion for a new trial, the trial justice stated: “I thought the mother was extremely

credible particularly after she was made aware of what the nature of the allegations was which

apparently heretofore [she] had not been aware of.”         While it is true that the trial justice

instructed the jury not to let sympathy affect their assessment of Yvonne’s testimony, he did not

instruct the jury to utterly disregard her reaction. He expressly stated:

               “I’m not going to do anything other than caution you not to allow
               [the line of questioning on redirect examination] to enter into your



                                                - 22 -
                 deliberations with regard to overt sympathy. You may take this
                 witness’s testimony and weigh it and sift as you would anyone
                 else * * * .”

In our view, in denying defendant’s motion for a new trial, it would have been preferable for the

trial justice to pass over in silence Yvonne’s emotional breakdown on the witness stand; but

there is nothing in the trial justice’s comments that would suggest that he was doing what he

instructed the jury not to do—namely, letting sympathy affect his determination of Yvonne’s

credibility. Therefore, we consider defendant’s contention that it was error for the trial justice to

mention Yvonne’s emotional response in denying his motion for a new trial to be unavailing.

          Accordingly, in our judgment, the trial justice did not misconceive or overlook material

testimony and did not otherwise commit clear error in denying the defendant’s motion for a new

trial.5




5
        The defendant also raises a challenge to the trial justice’s denial of his motion for a
judgment of acquittal, which he made at the close of the prosecution’s case and at the close of all
the evidence. It should be recalled that we have stated as follows:

                 “When faced with a defendant’s challenge to the rulings on both [a
                 motion for a judgment of acquittal and a motion for a new trial],
                 this Court first conducts a review of the new-trial
                 motion. * * * The motion for a new trial requires a more exacting
                 analysis, * * * therefore unless 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.” State v. Richardson, 47 A.3d 305, 317 (R.I. 2012)
                 (internal quotation marks omitted); see also State v. Pineda, 13
                 A.3d 623, 640 (R.I. 2011).

Accordingly, in the instant case, since defendant has been unable to establish that the trial justice
erred in denying his motion for a new trial, it follows a fortiori that he cannot establish that the
trial justice erred in denying his motion for judgment of acquittal.


                                               - 23 -
                                                  IV

                                               Conclusion

       For the reasons set forth in this opinion, we affirm the Superior Court’s judgment of

conviction and its denial of the defendant’s motion for a new trial. The record in this case may

be returned to that tribunal.



       Justice Indeglia did not participate.




                                                 - 24 -
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        State v. Darnell Hie.

CASE NO:              No. 2012-83-C.A.
                      (P1/10-1705A)

COURT:                Supreme Court

DATE OPINION FILED: June 27, 2014

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

WRITTEN BY:           Associate Justice William P. Robinson

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Francis J. Darigan, Jr.

ATTORNEYS ON APPEAL:

                      For State: Jane M. McSoley
                                 Department of Attorney General

                      For Defendant: Kara M. Hoopis
                                     Office of the Public Defender
