May 26, 2017


                                                   Supreme Court

                                                   No. 2015-32-C.A.
                                                   (P2/13-1299ADV)


      State                     :

       v.                       :

 Hakim Funches.                 :




  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
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  corrections may be made before the opinion is published.
                                                                  Supreme Court

                                                                  No. 2015-32-C.A.
                                                                  (P2/13-1299ADV)


                   State                       :

                     v.                        :

             Hakim Funches.                    :


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

                                          OPINION

       Justice Goldberg, for the Court. This case came before the Supreme Court on May 3,

2017, 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, Hakim Funches (Funches or

defendant), appeals from a judgment of conviction entered in the Superior Court, following a

jury trial. The defendant was convicted of one count of domestic assault by strangulation and

one count of simple assault.        After hearing the arguments of counsel and examining the

memoranda submitted by the parties, we are of the opinion that cause has not been shown and

that this case should be decided without further briefing or argument. We affirm the judgment of

conviction of the Superior Court.

                                         Facts and Travel

       Funches and the complaining witness, Jennifer Bacon (Bacon), were involved in a

relationship for approximately four years and were the parents of two daughters. They also lived

together for a period of time.1 On October 23, 2012, Bacon departed her home at 4:30 p.m. to



1
  At trial, it was a contested issue whether they remained romantically involved and were living
together in the fall of 2012.
                                               -1-
begin her night shift at Domino’s Pizza in Warwick, Rhode Island. Funches was at Bacon’s

apartment, watching their children. The pair argued through text messages and phone calls

throughout Bacon’s shift about whether Bacon was romantically involved with another man.

Funches denied sending or receiving text messages from Bacon on this particular night. Bacon

testified that, because Funches was so “hostile,” she went to a friend’s house after work. The

defendant continued to contact Bacon, threatening to “take [her] daughters up to Massachusetts

with no car seats at three something in the morning” if she did not return home.              Bacon

responded that she was returning home and that, as soon as she arrived, Funches could leave.

She returned home at approximately 3:30 a.m. It was a violent homecoming.

       Bacon testified that, when she entered her home, Funches “immediately came from

behind the door and ripped [her] phone out of [her] hand and slammed [her] into the kitchen

table.” Funches placed Bacon’s cellphone in the pocket of his pants. He then “threw [her] on

the floor[,] and he got on [her,] and put his knees against [her] shoulders and * * * took [her]

chin and repeatedly smacked [her] head into the tile floor.” Throughout this episode, Funches

repeatedly declared that he would not tolerate any romantic involvement with another man.

When Bacon stated that she was going to contact the police, Funches responded that “[i]f [he

was] going to go to jail, [he was] going to make it worth it.” At that point, Funches lifted Bacon

from the floor by her shirt and tried to place her on a chair, but he did so with such force that the

chair “shattered” and Bacon fell to the floor. Bacon testified that Funches “dragged [her by her

hair] back to the center of the room and started hitting [her] head against the floor again.”

Funches then grabbed their daughter’s jump rope, wrapped it around Bacon’s neck, and

“continuously choked [her] for about an hour on and off.” When it appeared that Bacon was




                                                -2-
about to “pass out,” he would pause; but he would then start choking her again. Bacon testified

that she was seeing stars and felt dizzy.

       Funches eventually stopped choking Bacon when his daughters began to wake up in the

next room; however, according to Bacon, the abuse did not end. Funches dragged her by her hair

to the bedroom and threw her on the bed. When Bacon called Funches a “scumbag,” he

attempted to remove her slacks, declaring, “I’ll show you a scumbag.” However, when the

youngest daughter began crying, Funches went to check on the child and Bacon attempted to

flee. The defendant followed her and pushed her down two flights of stairs. She eventually

reached the front door and proceeded directly to the Providence police station. She returned to

the apartment with three police officers. Funches subsequently was arrested.

       Funches testified and provided a different version of events. According to defendant,

when Bacon returned home, he informed her that he was ending their relationship, filing for joint

custody, and requesting physical placement of their daughters. He explained that he made this

decision after Bacon told him that she did not have enough money for the monthly bills.

According to Funches, the argument lasted approximately forty-five minutes, at which time

Bacon left the apartment. He denied that he physically assaulted Bacon.

       Funches was convicted by a jury of one count of domestic assault by strangulation in

violation of G.L. 1956 § 11-5-2.3 and one count of simple assault in violation of § 11-5-3. He

was sentenced to ten years at the Adult Correctional Institution, three years to serve with seven

years of probation on the strangulation count and one year, suspended, on the simple assault

count, to run concurrently. The defendant also was required to complete a batterer intervention

program while incarcerated.      He was acquitted of one count of assault with a dangerous

weapon—that being the jump rope—in violation of § 11-5-2. He timely appealed.



                                              -3-
       Before this Court, defendant argues that the trial justice erred in denying his motion to

pass the case after the prosecutor posed an allegedly prejudicial question to defendant. The

defendant also contends that the trial justice erred in denying his motion for judgment of

acquittal, arguing that he was twice placed in jeopardy for the same act.

                                       Standard of Review

       It is well established “that a decision to pass a case and declare a mistrial are matters left

to the sound discretion of the trial justice.” State v. Dubois, 36 A.3d 191, 197 (R.I. 2012)

(quoting State v. Barkmeyer, 949 A.2d 984, 1007 (R.I. 2008)). “We often have stated that ‘the

trial justice has a front row seat during the trial so that he can best evaluate the effects of any

prejudice on the jury.’” Id. (quoting Barkmeyer, 949 A.2d at 1007). “The ruling of the trial

justice * * * is accorded great weight and will not be disturbed on appeal unless clearly wrong.”

Id. (quoting Barkmeyer, 949 A.2d at 1007). Moreover, “[i]f the prejudice can be cured[,] * * * a

mistrial will be ordered only if we are convinced that the cautionary instructions were untimely

or ineffective.” State v. Disla, 874 A.2d 190, 198 (R.I. 2005) (quoting State v. Shinn, 786 A.2d

1069, 1072 (R.I. 2002)). “In the absence of any indication that the jury was not capable of

complying with the trial justice[’]s cautionary instruction, this court must assume that the jury

did disregard the witness comments as it was instructed to do.” Id. (quoting State v. Powers, 566

A.2d 1298, 1304 (R.I. 1989)).

       “When passing on ‘a trial justice’s denial of a motion for judgment of acquittal, this

Court applies the same standard as the trial justice.’” State v. Long, 61 A.3d 439, 445 (R.I.

2013) (quoting State v. Lynch, 19 A.3d 51, 56 (R.I. 2011)). “A motion for a judgment of

acquittal should be granted only if the evidence, viewed in the light most favorable to the

prosecution, is insufficient to establish the defendant’s guilt beyond a reasonable doubt.” Id.



                                               -4-
(quoting State v. Heredia, 10 A.3d 443, 446 (R.I. 2010)). “If, however, a reasonable juror could

find the defendant guilty beyond a reasonable doubt, the motion should be denied.” Id. (quoting

Heredia, 10 A.3d at 446).

                                            Analysis

                                    Motion to Pass the Case

       During the cross-examination of defendant, the prosecutor posed the following question

to defendant: “She didn’t break up with you a year prior because she saw many naked pictures

on your phone?” The defendant responded, “[n]o,” but defense counsel immediately objected,

and the trial justice sustained the objection. Defense counsel then moved to pass the case. The

prosecutor averred that she posed the question for impeachment purposes since defendant

claimed that he was still romantically involved with Bacon on the date in question.         The trial

justice denied the motion to pass the case and gave the following cautionary instruction:

               “Counsel for the State just asked the witness a question about
               naked photographs on his phone. * * * There’s no evidence in this
               case about his phone, what was on it or what * * * Bacon observed
               on it. * * * You must disregard the question. It wasn’t answered. I
               sustained the objection. If it was answered, I would strike the
               answer because there is no evidence whatsoever on this issue in
               this case.
                        “Now, I’m going to ask you, * * * can each of you
               disregard that question as though you never heard it? Each of you
               has nodded in the affirmative that you can. So I’m not making any
               mistakes here, is there anybody here who has any difficulty
               whatsoever having heard that question, and I’ll take you to sidebar.
               Nobody has difficulty, and you can all disregard it as though you
               never heard it? Thank you. Proceed.”

       The Sixth Amendment to the United States Constitution, as applied to the states through

the Fourteenth Amendment, and article 1, section 10, of the Rhode Island Constitution guarantee

a defendant’s right to a “fair trial by an impartial jury.” State v. Ordway, 619 A.2d 819, 826

(R.I. 1992). Improper prosecutorial comments could “deprive a litigant of a fair trial,” as one


                                               -5-
cannot often “‘unring the bell’ once it has soundly rung[.]” Id. Accordingly, “[w]e must * * *

determine whether the prosecutor’s remarks ‘so poisoned the well’ that the trial’s outcome was

likely affected.” Id. (quoting United States v. Mateos-Sanchez, 864 F.2d 232, 240-41 (1st Cir.

1988)).

          In Ordway, 619 A.2d at 825, the prosecutor asked the defendant, who was on trial for

stabbing her husband to death, if she recalled stabbing another person with whom she previously

lived. The Court recognized that “[o]nce laypeople have heard evidence, or in this case a

remark, tending to show that the defendant committed a crime similar to the one he or she is

being tried for, their impartiality may become tainted.” Id. at 826. The defendant in Ordway

claimed that she suffered from battered woman syndrome. Id. at 827. We stated that jurors may

have difficulty understanding this syndrome and that the prosecutor’s question could likewise

paint the picture that the defendant “was not so helpless.” Id. The Court also acknowledged that

the state made minimal efforts to substantiate this evidence such that the defendant did not move

for its exclusion by way of a motion in limine. Id. at 826-27. Under the particular circumstances

in Ordway, we held that “[t]he cautionary instructions and the individual examinations of the

jurors by the trial justice, although commendable, did not dispel the prejudicial effect created by

the question.” Id. at 828. We are of the opinion that the Ordway case is distinguishable from the

facts of the case at bar.

          We consider on an ad hoc basis “the prejudicial effect of challenged remarks in light of

the context in which they were uttered.” State v. Anil, 417 A.2d 1367, 1373 (R.I. 1980). In this

case, in contrast to Ordway, the alleged conduct of defendant—while not laudable—is not

criminal in nature. See Ordway, 619 A.2d at 826 (expressing concern with the prosecutor’s

behavior and paraphrasing Rule 404(b) of the Rhode Island Rules of Evidence).         The alleged



                                                -6-
possession of naked pictures on one’s cell phone also is not related to the crimes charged in this

case, whereas in Ordway the defendant was charged with murdering her husband with a knife

and was asked about having stabbed another person with whom she had lived. We recognized in

Ordway, 619 A.2d at 826, that the correlation between the alleged conduct and the charged crime

was striking and highly prejudicial.

       The defendant argues that possession of lewd photographs has a sufficient nexus to the

crimes charged in this case, contending that the incident occurred in a domestic setting and that

pictures suggest that defendant “objectifies” women. This argument was not raised at trial,

however; nor are we persuaded that possession of photographs of naked individuals is

sufficiently related to charges of strangulation and simple assault. In State v. Kholi, 672 A.2d

429, 432 (R.I. 1996), we acknowledged that “the questions posed in Ordway * * * implicated

th[e] defendant[] in [a] crime[] similar to the one[] for which [she] stood trial.” Id. at 432.

Despite the fact that the defendant in Kholi was charged with sexual assault and was asked about

previously breaking a glass over the same complainant’s hand, the substantial nexus required

was lacking because the alleged act did not involve sexual assault. Id. We are satisfied that the

alleged possession of naked, non-juvenile photographs is not criminal nor is such behavior

substantially related to the crimes charged in this case: strangulation and simple assault.

       Accordingly, the prosecutor’s question was not so inflammatory that the trial justice was

unable to expiate the harm. The trial justice correctly sustained the objection and gave a

cautionary instruction to the jury. She likewise asked the jurors three times whether they could

disregard the question, each juror nodding in response. We, therefore, are satisfied that, in the

circumstances of this case, the cautionary instruction cured the prejudice created by the

prosecutor’s improper comments. A review of the record does not reveal that the jury was



                                                -7-
unable to comply with the trial justice’s cautionary instruction, and we “must assume that the

jury did disregard the witness comments as it was instructed to do.” Disla, 874 A.2d at 198

(quoting Powers, 566 A.2d at 1304). Accordingly, we are satisfied that the trial justice did not

err in denying defendant’s motion to pass the case.

                              Motion for Judgment of Acquittal

       The defendant contends that the count of assault with a dangerous weapon, of which he

was acquitted, and the count of assault by strangulation, of which he was convicted, were

duplicative. Accordingly, defendant avers that he was twice placed in jeopardy for the same act

and that the conviction for the single count of domestic strangulation should be vacated. We

disagree. Because defendant stands convicted of only one of the two counts, we need not dwell

long on this issue.

       Rule 12(b)(2) of the Superior Court Rules of Criminal Procedure provides that “[t]he

defense of double jeopardy * * * may be raised only by motion before trial.” Therefore, “a

defendant’s failure to raise such a motion before trial precludes that defendant from thereafter

raising a double jeopardy challenge.” State v. Day, 925 A.2d 962, 977 (R.I. 2007) (citing State

v. Feliciano, 901 A.2d 631, 647 (R.I. 2006)). A review of the record indicates that the defendant

did not raise the defense of double jeopardy prior to trial as required by Rule 12(b)(2). We

therefore consider this issue to be waived. Nonetheless, “[t]he principal evil against which the

Double Jeopardy Clause protects—multiple criminal punishments for the same offense—is not

implicated in this case because [the] defendant stands convicted of (and punished for) a single

offense.” State v. Matthews, 88 A.3d 375, 380 (R.I. 2014). The defendant was not twice placed

in jeopardy because he was convicted of only one count; he was acquitted of the other.

Accordingly, “[b]ecause there was a single conviction in this case, there is no double jeopardy



                                              -8-
violation for us to remedy.” Id. at 381. We are, therefore, of the opinion that the trial justice

properly denied the motion for judgment of acquittal.

                                          Conclusion

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

case shall be remanded to the Superior Court.




                                                -9-
STATE OF RHODE ISLAND AND                                   PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        State v. Hakim Funches.
                                     No. 2015-32-C.A.
Case Number
                                     (P2/13-1299ADV)
Date Opinion Filed                   May 26, 2017
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice Maureen McKenna Goldberg

Source of Appeal                     Providence County Superior Court

Judicial Officer From Lower Court    Associate Justice Netti C. Vogel
                                     For State:

                                     Lauren S. Zurier
                                     Department of Attorney General
Attorney(s) on Appeal
                                     For Defendant:

                                     George J. West, Esq.




SU-CMS-02A (revised June 2016)
