January 7, 2019


                                                                   Supreme Court

                                                                   No. 2017-302-C.A.
                                                                   (K2/14-710A)


                      State                     :

                        v.                      :

                  George Tabora.                :




                  NOTICE: This opinion is subject to formal revision before
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                  250 Benefit Street, Providence, Rhode Island 02903, at (401) 222-
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                                                                    Supreme Court

                                                                    No. 2017-302-C.A.
                                                                    (K2/14-710A)


                     State                      :

                        v.                      :

                George Tabora.                  :


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

                                             OPINION

         Justice Goldberg, for the Court.           This case came before the Supreme Court on

December 5, 2018, pursuant to an order directing the parties to appear and show cause why the

issues raised in this appeal should not be summarily decided. The defendant, George Tabora

(defendant or Tabora), appeals from a judgment of conviction after a jury found him guilty of

two counts of second-degree child molestation sexual assault1 committed against his son, whom

we refer to as John.2

          On appeal, defendant argues that the trial justice erred in denying his motion for a new

trial and that the verdict failed to serve the interests of justice. After hearing the arguments of

counsel and examining the memoranda filed by the parties, we are of the opinion that cause has

not been shown, and we proceed to decide the appeal at this time. For the reasons set forth

herein, we affirm the judgment of conviction.




1
    In violation of G.L. 1956 § 11-37-8.3.
2
    The complaining witness has been given a pseudonym in order to protect his privacy.
                                                 -1-
                                        Facts and Travel

       The disturbing facts of this case concern acts of molestation committed against John, who

was born on August 8, 2005. His parents, defendant and Rabiaa Madouch (Rabiaa), were

separated in 2006 and their divorce was finalized in 2009. John resided primarily with his

mother and had regularly scheduled visitation with his father.

       In June 2014, after John completed the third grade, he and his mother traveled to

Morocco to visit her family for the summer. While spending time with his relatives, John

observed how his cousins interacted with other family members and later testified at trial that

“[t]hey were all happy, and if something [was] bothering them, they [would] tell their mother or

their grandpa or their uncle or whoever.”

       Rabiaa and John returned to Rhode Island in August 2014; and, soon thereafter, John

began the fourth grade. According to Rabiaa, his first homework assignment was to compose ten

good things about himself, but John instead wrote about his father.         Notably, this essay

assignment was the impetus for the charges and ultimate conviction in this case.

       John, who was nine years old at the time, used the assignment as an opportunity to

disclose some of the troubling incidents involving his father that he had been harboring. He

wrote as follows, on lined paper marked with his name and dated “8-28-2014”:

               “What I think about my dad
               He talks about women boobs and daddy gets naked in front of me.
               My dad watches movies on sex and he does not change the chanal
               [sic]. and I don’t like him.”

Rabiaa asked to look at his assignment and was shocked by what her son had written. She met

with the Department of Children, Youth, and Families (DCYF), and an investigation ensued,

which led to John’s disclosures that he had been sexually molested by his father between

August 8, 2012, and August 8, 2013, when John was seven and eight years of age.


                                               -2-
       The defendant was charged by criminal information with two counts of engaging in

sexual contact with John in violation of G.L. 1956 § 11-37-8.3, and a two-day jury trial

commenced in January 2017. The state offered testimony by the following witnesses: John;

Rabiaa; Adebimpe Adewusi, M.D. (Dr. Adewusi), a fellow at the Hasbro Children’s Hospital

Lawrence A. Aubin, Sr. Child Protection Center; and Yael Bat-Shimon (Bat-Shimon), a licensed

mental-health clinician at Gateway Healthcare.

       In his testimony, John recounted several incidents that occurred while he was at

defendant’s apartment for scheduled visitation.3 John testified that, when he was between the

ages of seven and eight, defendant talked to him about women’s breasts and forced him to watch

sexually explicit movies. He testified, in response to a question as to what would happen if he

did not want to watch them, that “[i]f I tried to leave, he grabbed me by the arm and he forces me

to watch them.”

       John also recalled incidents that took place when he showered at defendant’s apartment.

He testified that defendant would order him to take showers and that, when he was in the shower,

defendant would enter the bathroom, perform personal grooming tasks, and, when finished,

would join John in the shower. John testified that his father “would act like he is scrubbing my

body with soap, and then once he gets down to my private, he starts rubbing it.” John testified

that defendant would use his own hand while performing this act and that defendant’s penis

became erect when defendant touched John’s penis. According to John, defendant responded to

John’s pleas to stop by slapping him, and defendant also threatened to kill John if he told anyone.



3
  The evidence disclosed that defendant originally had visitation rights with John every
Wednesday and every other weekend; that schedule was later adjusted to just every weekend,
and no Wednesdays. Rabiaa accompanied John to the visits and stayed with him the entire time,
unless she had to leave to run a quick errand.

                                               -3-
John further testified that every time he used the bathroom to urinate, defendant accompanied

him, lowered his pants to his ankles, and asked John to touch his testicles.

          Next, Dr. Adewusi testified as an expert in the field of child-abuse pediatrics. She had

examined John at the request of DCYF for concerns of physical abuse, sexual abuse, emotional

abuse, and exposure to domestic violence. Doctor Adewusi testified about her examination of

John, including disclosures that he had made to her regarding his father. She testified that John

told her that he did not tell his mother about the incidents because he felt threatened by his

father.

          The next witness to testify was Rabiaa.        She testified about her relationship with

defendant as well as her current living situation; she recounted her observations during visits

between John and defendant. Lastly, Bat-Shimon testified about her observations with respect to

John and discussed the disclosures that he had made to her during their counseling sessions.

          On January 27, 2017, the jury returned a verdict of guilty on both counts of second-

degree child molestation sexual assault. On February 14, 2017, the trial justice heard and denied

defendant’s motion for a new trial, brought pursuant to Rule 33 of the Superior Court Rules of

Criminal Procedure. Thereafter, defendant was sentenced to two concurrent terms of twenty-five

years in prison, with fifteen years to serve and ten years suspended, with probation. Before this

Court, defendant argues that the trial justice erred in denying his motion for a new trial.

                                         Standard of Review

          When presented with a motion for a new trial, it is well settled that “the trial justice must

determine whether the evidence adduced at trial is sufficient for the jury to conclude guilt

beyond a reasonable doubt.” State v. Baptista, 79 A.3d 24, 29 (R.I. 2013) (quoting State v.

Staffier, 21 A.3d 287, 290 (R.I. 2011)). Accordingly, “the trial justice acts as a thirteenth juror

and exercises independent judgment on the credibility of witnesses and on the weight of the
                                                  -4-
evidence.” State v. Baker, 79 A.3d 1267, 1273 (R.I. 2013) (quoting State v. LaPierre, 57 A.3d

305, 310 (R.I. 2012)). “In this determination, the trial justice must consider the evidence in light

of the jury charge, then independently assess the credibility of the witnesses and the weight of

the evidence, and also ultimately determine whether he or she would have reached a result

different from that reached by the jury.” LaPierre, 57 A.3d at 310 (quoting State v. Bunnell, 47

A.3d 220, 232 (R.I. 2012)).

          “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. Paola,

59 A.3d 99, 104 (R.I. 2013) (quoting State v. Heredia, 10 A.3d 443, 446 (R.I. 2010)).

Alternatively, “if the trial justice does not agree with the jury verdict, ‘he or she is required to

proceed to a fourth step * * * to determine whether the verdict is against the fair preponderance

of the evidence and fails to do substantial justice.’” Baptista, 79 A.3d at 29 (quoting Staffier, 21

A.3d at 290-91). “If the verdict meets this standard, then a new trial may be granted.” Id.

(quoting Staffier, 21 A.3d at 291).

          Accordingly, “[i]f the trial justice has complied with this procedure and articulated

adequate reasons for denying the motion, his or her decision will be given great weight and left

undisturbed unless the trial justice overlooked or misconceived material evidence or otherwise

was clearly wrong.” Paola, 59 A.3d at 104 (quoting State v. Smith, 39 A.3d 669, 673 (R.I.

2012)). On appeal, we apply this deferential standard of review because “a trial justice, being

present during all phases of the trial, is in an especially good position to evaluate the facts and to

judge the credibility of the witnesses.” Id. (quoting State v. Texieira, 944 A.2d 132, 141 (R.I.

2008)).




                                                -5-
                                                Analysis

           The defendant’s sole challenge on appeal to this Court is that the trial justice erred in

denying his motion for a new trial. He argues that the evidence presented at trial raised serious

doubt about the allegations and that the trial justice overlooked and misconceived material

evidence. Specifically, defendant argues that John’s testimony was neither credible nor reliable

and that the testimony of the other witnesses failed to corroborate John’s assertions, but instead

contradicted critical aspects of his testimony. For this reason, defendant contends that the verdict

returned by the jury was against the weight of the evidence and failed to serve the interests of

justice.

           By calling into question the trial justice’s assessment of the testimony and the weight of

the evidence, defendant effectively challenges the trial justice’s credibility determinations.

However, “[t]his Court has 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.’” Paola, 59 A.3d at 104 (quoting State v. Rivera, 987 A.2d 887, 903 (R.I.

2010)). As we have elucidated on numerous occasions, “the trial justice * * * has [had] the

opportunity to observe the witnesses as they testify and therefore is in a better position [than this

Court] to weigh the evidence and to pass upon the credibility of the witnesses than is this

[C]ourt.” Rivera, 987 A.2d at 903 (quoting State v. Luanglath, 749 A.2d 1, 5-6 (R.I. 2000)). For

this reason, we will not disturb the trial justice’s determination on appeal “unless the trial justice

clearly erred in his credibility determinations or ‘overlooked or misconceived relevant and

material evidence[.]’” Paola, 59 A.3d at 104 (quoting State v. Banach, 648 A.2d 1363, 1368

(R.I. 1994)).

           A careful review of the record reveals that the trial justice, when considering defendant’s

motion for a new trial, articulated the correct analysis to be undertaken, recounted his
                                                  -6-
independent observations from trial, and carefully assessed the credibility of the witnesses and

weight of the evidence. The trial justice comprehensively articulated his reasons for denying the

motion for a new trial. His conclusion—that the overwhelming and credible evidence of sexual

contact between defendant and John supported the jury’s finding of guilt beyond a reasonable

doubt—is clear and reflects thoughtful deliberation.

       Furthermore, in assessing the credibility of the witnesses, the trial justice found John in

particular to be “a very nervous ten-year[-]old boy on the stand and some of his answers were

contradictory especially when the [c]ourt found he was nervous during cross-examination and

began answering correct to just about every question. But with respect to his testimony as a

whole, the [c]ourt [found John] to be a very credible witness.” Thus, the trial justice concluded

that, based on John’s testimony, the jury could conclude that the requisite elements of the

charged offense were proven “beyond a reasonable doubt.” Accordingly, after reviewing the

evidence adduced at trial, the trial justice concluded that he agreed with the verdict on all three

elements of the charge, and he denied defendant’s motion for a new trial.

       Having carefully reviewed the record before us, we are satisfied that the trial justice did

not overlook or misconceive any material evidence. The trial justice conducted an appropriate

analysis of the evidence presented, evaluated the credibility of the witnesses, and assessed the

weight of the evidence; and, having done so, he determined that sufficient credible evidence was

submitted to support the verdict on both counts. We therefore hold that the trial justice did not

err in denying the defendant’s motion for a new trial.

                                           Conclusion

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

papers in this case may be remanded to the Superior Court.



                                               -7-
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        State v. George Tabora.
                                     No. 2017-302-C.A.
Case Number
                                     (K2/14-710A)
Date Opinion Filed                   January 7, 2019
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice Maureen McKenna Goldberg

Source of Appeal                     Kent County Superior Court

Judicial Officer From Lower Court    Associate Justice Brian P. Stern
                                     For State:

                                     Christopher R. Bush
                                     Department of Attorney General
Attorney(s) on Appeal
                                     For Defendant:

                                     Camille A. McKenna
                                     Office of the Public Defender




SU-CMS-02A (revised June 2016)
