                                                          Supreme Court

                                                          No. 2014-149-C.A.
                                                          (P2/12-1929ADV)


           State                     :

             v.                      :

      Jose A. Breton.                :




NOTICE: This opinion is subject to formal revision before publication in the
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                                                                   Supreme Court

                                                                   No. 2014-149-C.A.
                                                                   (P2/12-1929ADV)


                    State                       :

                      v.                        :

               Jose A. Breton.                  :


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

                                           OPINION


       Justice Flaherty, for the Court. Early in the morning of October 25, 2011, as she was

leaving for work, the complaining witness, Dilcia Lora, was viciously attacked by a masked

assailant in the front hall of her home and was severely cut on her face with a small blade.

Ms. Lora subsequently identified her attacker as the defendant, Jose A. Breton a.k.a. Pappi

Valdez, a man with whom she had previously had a two-year-long romantic relationship. In a

three-count information, the defendant was charged with one count of assault with a dangerous

weapon and one count of simple assault on Ms. Lora. The third count was for a simple assault

against Ms. Lora’s daughter, Jani Tolentino, which was alleged to have occurred on May 26,

2010. When the case was reached for trial, the defendant was convicted of the two counts of

assault against Ms. Lora, but he was acquitted of the third count against Ms. Tolentino. The

defendant filed a motion for a new trial, which the trial justice denied. 1 It is from that ruling that

the defendant has timely appealed, arguing that the trial justice misconstrued the evidence when

1
  On count 1 defendant was sentenced to twenty years, eleven to serve, nine years suspended,
with nine years of probation. On count 2, he was sentenced to one year to serve, suspended with
probation to run concurrently with count 1.


                                                 -1-
he found Ms. Lora to be a more credible witness than the alibi witnesses produced by the

defendant. We have examined the record and have considered the written submissions and oral

arguments advanced by the parties. For the reasons set forth in this opinion, we affirm the

judgment of conviction.

                                          Facts and Travel

       On May 26, 2010, Ms. Lora and defendant had an argument, during the course of which

defendant struck and pushed Ms. Lora’s daughter, Jani Tolentino. The police were called, but

when they arrived, Ms. Lora told them that she did not know defendant’s real name, only his

alias, “Pappi Valdez,” and that they had been dating for only three months when in fact they had

been dating for two years. At trial, Ms. Lora explained that she had not been truthful with the

police because she was afraid of what defendant would do if she reported him to law

enforcement.

       According to Ms. Lora, she and defendant had been in a two-year relationship that had

been replete with assaults and threats. The romance, she said, came to an end in December 2010.

However, Ms. Lora said that she never explained to defendant that the relationship was over and

that she never “officially” broke up with him, but instead she simply left the country. Ms. Lora

said that she went to the Dominican Republic to stay with her mother, remaining there for

approximately two months. Ms. Lora did not tell defendant she was leaving the country or

where she would be going, nor did she inform her mother why she had come to stay. However,

shortly after she got to the Dominican Republic, defendant showed up at her mother’s house,

unexpected and uninvited. The defendant repeatedly asked Ms. Lora to resume their relationship

and he promised to enter counseling. But Ms. Lora was unmoved, and, when she refused to get

back together with him, he left.




                                             -2-
       Ms. Lora moved to Florida and then back to Santo Domingo before finally returning to

Rhode Island in August 2011. In Rhode Island, she lived with her brother, her sister, her

daughter, and her niece and nephew. Eventually, Ms. Lora secured employment at Kenny

Manufacturing, where she worked with the mother of defendant’s children. Occasionally, she

saw defendant as he brought that woman to work but, she explained, she avoided interacting with

either of them.

       On October 25, 2011, as she was leaving her apartment to go to work, Ms. Lora was

accosted by a hooded and masked assailant. Ms. Lora made an effort to defend herself with her

hands “so he wouldn’t cut [her]” and, during the course of the struggle, she was able to pull part

of the mask up. When she did, she recognized defendant’s nose and chin. Ms. Lora also

recognized the ski mask as belonging to defendant. Ms. Lora screamed for help and attempted to

defend herself as the attacker kept slashing at her with the knife. Ms. Lora’s brother, niece,

daughter, and sister, hearing her screams, rushed to her aid. When they arrived, the assailant

ceased attacking Ms. Lora, fled the apartment building and ran down the street. Lisandro, Ms.

Lora’s brother, chased the assailant out of the building but was unable to catch him. Ms. Lora

immediately told her family that “Pappi” had cut her.

       At the hospital, Ms. Lora informed the doctors that Jose Breton had cut her face, that she

had been in a relationship with him for a long time, that he “always threatened [her]” and that

she had never before reported the abuse because she feared that he “would leave [her]

paralyzed.” She also told the medical personnel that defendant had followed her to the

Dominican Republic and had confronted her at her mother’s house. Although Ms. Lora related

these events to the doctors, she did not immediately notify the police about who had attacked her

because she was still afraid of defendant.     However, the following day Ms. Lora advised




                                              -3-
Det. Emilio Matos of the Providence police department that defendant had assaulted her, that she

knew it was him because of his height and build, and that she recognized the “little bit” of his

face that had become uncovered when she tugged on the mask. She also explained that “the only

person threatening [her] was [defendant]. And he was always threatening [her] if [she] left him

he was going to kill [her], this that [sic], that he was going to take [her] eyes out, that he was

going to leave [her] paralyzed.”

       At trial, the attending emergency room physician, Dr. Leo Kowayashi, testified that

Ms. Lora presented with three lacerations above her right eye as well as a large deep laceration to

the left side of her face, and that these wounds would result in permanent scarring. Ana Cruz,

defendant’s mother, testified for her son. She said that she had brought defendant to New York

City on October 24, 2011, the day before the assault, dropping him off there as she traveled to

Virginia for a funeral service for a recently deceased family member. She said that she rented a

minivan at the T.F. Green Airport in Warwick, on October 24, 2011, traveled to New York City

with defendant, and arrived in Manhattan around 3:30 a.m. on October 25, 2011. Ms. Cruz

testified that she left defendant in Manhattan and picked up other family members who were

going to the funeral, and that defendant went to stay with her brother’s former girlfriend, “Fam,”

for the day in Brooklyn. Ms. Cruz produced receipts for the rental car, gas, and tolls for the trip

to Virginia. She testified that she returned the rental van on October 26, 2011.

       Femije Tairi, or “Fam,” testified that defendant’s mother called her on October 24, and

asked if defendant could stay with her because there were too many people going to the funeral

and not everyone could afford to go. She said that she met Ms. Cruz and defendant in Manhattan

early in the morning on October 25, 2011, and Ms. Cruz picked up other family members;

Ms. Tairi said that she then drove with defendant back to her home in Brooklyn, where she lived




                                               -4-
with her daughter and two small sons. She testified that she and defendant arrived at her home

around 4 a.m., at which point they started talking about the deceased family member and

“goofing around like normal families” before making breakfast at about 6 a.m. The defendant’s

aunt, Marilyn Castillo, arrived around 6:15 a.m. “to grieve,” and Ms. Tairi explained that “[w]e

have our own way of grieving.” According to Ms. Tairi, defendant stayed in Brooklyn until after

10 p.m., at which point she transported him back to Manhattan to meet his mother for the return

trip to Rhode Island. 2

        The jury returned a guilty verdict on counts 1 and 2, but acquitted defendant on count 3.

When defendant was heard on his motion for a new trial, he argued that the verdict was against

the weight of the evidence because it was based primarily on the credibility and reliability of

Ms. Lora in identifying defendant as her assailant. The defendant challenged Ms. Lora’s ability

to identify her attacker, arguing that an accurate identification was impossible given that the

attack began and ended in a matter of seconds in a poorly lit stairwell. Additionally, he pointed

to the fact that it took her over a day to identify defendant as her assailant to the police after she

initially lied to them. And when she finally did, he argued, she did not describe defendant’s

specific facial features to them. Finally, defendant argued that the state was unable to cast doubt

on the unimpeached testimony of his alibi witnesses. 3

                                       Standard of Review

        Rule 33 of the Superior Court Rules of Criminal Procedure provides that “[o]n motion of

the defendant the court may grant a new trial to the defendant if required in the interest of

2
  Ms. Castillo testified that Ms. Tairi had invited her to have breakfast on October 24 as a
“family reunion[] [on] the occurrences of my cousin’s death.” She arrived there with her two
children around 6 a.m., when she had breakfast with Ms. Tairi, her nieces, and defendant.
3
  The defendant argued for the first time, in his supplemental Rule 12A statement and at oral
arguments before this Court, that the trial justice’s decision demonstrated “a cultural bias or
ignorance.” After reviewing the record, we see no merit to this argument.


                                                -5-
justice.” The trial justice’s role in reviewing a motion for a new trial is that of the proverbial

“superjuror” who independently weighs the evidence and assesses the credibility of the

witnesses. Battle v. State, 125 A.3d 130, 132 (R.I. 2015). “Specifically, ‘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. Offley, 131 A.3d 663,

674 (R.I. 2016) (quoting State v. Heredia, 10 A.3d 443, 446 (R.I. 2010)). “If, after conducting

such a review, the trial justice reaches the same conclusion as the jury, the verdict should be

affirmed and the motion for a new trial denied.” State v. Gregson, 113 A.3d 393, 398 (R.I. 2015)

(quoting State v. Mathews, 88 A.3d 375, 388 (R.I. 2014)). In the end, we will not disturb the

decision of a trial justice on a motion for a new trial unless the decision is clearly wrong or “the

trial justice overlooked or misconceived material and relevant evidence * * *.” Battle, 125 A.3d

at 132 (quoting Gomes v. Rosario, 79 A.3d 1262, 1265 (R.I. 2013)).


                                             Analysis

       At the outset of his decision, the trial justice acknowledged that the state’s “case rises and

falls on the shoulders of the [s]tate’s first witness Dilcia Lora.” He also said that he had

“listened carefully” to defense counsel’s arguments and that he did not “overlook the various

points made” by him. These included the poor lighting, the fact the assailant was wearing a

mask during an attack that occurred in a matter of seconds, Ms. Lora’s inability to identify the

weapon used, and her refusal to identify defendant or reveal her prior relationship with him.

Nonetheless, the trial justice found her to be a credible witness. In so doing, the trial justice, in

evaluating her testimony, said he sought to “understand the circumstances, the background, the




                                                -6-
relationship, between Ms. Lora and this defendant in weighing, sifting, and evaluating some of

the contradictions and omissions * * *.”

       For that, he looked to Ms. Tolentino’s testimony, which he also found credible. Even

though defendant was acquitted of the assault charge related to her, the trial justice said that it

was helpful that she “did describe the nature of [the relationship between Ms. Lora and

defendant] and the dynamics of that relationship and the conduct exhibited by this defendant

towards her mother in the period of time leading up to the events related to these specific

charges.” Finding their testimony to be genuine, he summarized,

               “[t]here is no question in observing those two cases, mother and
               daughter on this witness stand either it was an academy award
               acting performance or it was a legitimate and sincere display of
               fear but there is no question in this [c]ourt’s mind, I have not seen
               witnesses testify in the manner that they testified aside from what
               they said but the manner of delivery how they positioned
               themselves on the witness stand, it didn’t strike me as contrived or
               an act. It seemed like a sincere display of their feeling towards this
               defendant.”

       The trial justice did not stop there, however, and he went on to address the credibility of

the defendant’s alibi witnesses, all of whom placed him in New York at the time of the attack.

During the defendant’s argument on his motion for a new trial, the trial justice specifically

questioned the alibi testimony regarding having the family gathering at 6 to 7 a.m. to

memorialize a decedent.        The trial justice asked defense counsel to address the timing,

commenting specifically:

               “[It] just so happened that is exactly the time that this assault
               occurred. And, of course, they identified the defendant as sitting at
               the table. I mean, I mean, I know there are different cultures and
               different ways that people do things and [sic] but isn’t that an odd
               time of day to gather little children and let’s all sit around and that
               is the time you pick to memorialize this person who died.

                      “* * *



                                                -7-
               “I just thought it peaked [sic] my interest at the time of the day that
               took place.”

In response, defense counsel dismissed any suggestion that the time of day was odd, reasoning

that it was natural under the circumstances to hold a family gathering at that time of the day:

                        “So if he arrives 3:30, 4:00 in the morning what is he
               supposed to go to sleep at four a.m. or something. Of course they
               are going to be up, and you cook breakfast, you know, young kids
               have breakfast 6:30 seven in the morning. They get up early. So,
               again, it was not just, not just a gathering for the memorial it was
               also to see my client, too. Because the mother was coming into
               town and they needed to pick my client up. She wasn’t going to be
               staying at the house in Brooklyn. She was driving through. So
               that is the reason for that time so the time is the trip for Rhode
               Island time it takes to get to New York, meet them over in
               Manhattan and instead of more driving to Brooklyn and Manhattan
               because other people were meeting 191st Street the trip from 191st
               Street goes back over to Brooklyn and the other aunt came over a
               little bit later on to meet for breakfast time. I think she arrived
               little after six she said.”

However, the trial justice rejected the testimony of the alibi witnesses when he weighed it against

the testimony of Ms. Lora, Ms. Tolentino, and the history of Ms. Lora’s relationship with the

defendant. The trial justice opined that

               “[w]hen you take that testimony and weigh it against what
               Ms. Lora and her daughter had to say and the history of that
               relationship up to that point, I can’t say I disagree with the jury’s
               conclusion that the alibi would not be accepted based on the
               recitation of those witnesses.”

We are of the opinion that the trial justice satisfied his obligations when he considered and

decided the defendant’s motion for a new trial, and that he was well within his discretion when

he found the state’s witnesses to be credible, despite any inconsistencies in their testimony. See

State v. Gonzalez, 56 A.3d 96, 103 (R.I. 2012) (“Even taking into account [the trial justice’s]

own observations that something was ‘being left out,’ the trial justice found that the witnesses




                                                -8-
were credible * * *.”); State v. Jensen, 40 A.3d 771, 781 (R.I. 2012) (“[T]he presence of some

inconsistencies between or among utterances of a witness or witnesses at different points in time

does not ipso facto render the testimony unworthy of belief.”).

                                            Conclusion

       For the reasons set forth in this opinion, we affirm the judgment of conviction. The

record is remanded to the Superior Court.




                                               -9-
                                RHODE ISLAND SUPREME COURT CLERK’S
                                              OFFICE

                                Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:       State v. Jose A. Breton.

CASE NO:             No. 2014-149-C.A.
                     (P2/12-1929ADV)

COURT:               Supreme Court

DATE OPINION FILED: May 27, 2016

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

WRITTEN BY:          Associate Justice Francis X. Flaherty

SOURCE OF APPEAL:    Providence County Superior Court

JUDGE FROM LOWER COURT:

                     Associate Justice Daniel A. Procaccini

ATTORNEYS ON APPEAL:

                     For State: Virginia M. McGinn
                                Department of Attorney General

                     For Defendant: Layne C. Savage, Esq.
                                    Martin D. Harris, Esq.
