January 29, 2019


                                                                      Supreme Court

                                                                      No. 2017-358-M.P.
                                                                      (P1/15-1141A)

                         State                      :

                           v.                       :

                     Jody Johnson.                  :




                   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-
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                                                                       Supreme Court

                                                                       No. 2017-358-M.P.
                                                                       (P1/15-1141A)

                        State                       :

                          v.                        :

                    Jody Johnson.                   :

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

                                            OPINION

          Chief Justice Suttell, for the Court. The defendant, Jody Johnson, was found guilty by

a jury of first-degree robbery, conspiracy to commit first-degree robbery, and assault with a

dangerous weapon in a dwelling house with intent to commit robbery. We granted his petition

for writ of certiorari requesting direct review of his convictions.1 He argues that the trial justice

erred by denying his motion for new trial because, according to the defendant, the jury’s verdict

was against the weight of the evidence. 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 considering the parties’ written and oral submissions and

reviewing the record, we conclude that cause has not been shown and that this case may be

decided without further briefing or argument. For the reasons set forth in this opinion, we affirm

the judgment of the Superior Court.

                                                    I

                                    Facts and Procedural History

          On April 10, 2015, defendant was charged by indictment with one count of conspiracy to

commit first-degree robbery, in violation of G.L. 1956 § 11-1-6; one count of first-degree

1
    The defendant did not file a timely notice of appeal.
                                                  -1-
robbery, in violation of G.L. 1956 § 11-39-1(a); and one count of assault with a firearm in a

dwelling house with intent to commit robbery, in violation of G.L. 1956 § 11-5-4.2            The

defendant was tried before a jury over four consecutive days in January 2017 in the Providence

County Superior Court. The state presented testimony from two individuals: the complaining

witness, Mary Celletti, and a Providence police detective, Matthew Cute, who responded to

Celletti’s home and was subsequently involved in the investigation.

       Mary Celletti testified that, on the evening of January 28, 2014, she was home alone and

getting ready to watch “the presidential address” when she realized, either through a knock at the

door or a ring of the doorbell, that someone was outside and wanted to come in. Before opening

the door, Celletti asked who was outside and heard “I’m locked out of the house” from an

unfamiliar voice who also told her his mother was not at home. Celletti “opened the door a

crack” and saw a boy around the age of ten or eleven standing there. She asked him if he wanted

to use her phone and opened the door to allow him to enter. After he walked into her house, she

tried to close the door but the door pushed back open and a “tall, muscular man” with black skin,

a dark blue jacket, a hood, a scarf, and glasses appeared in the doorway and asked her what she

was doing with his son. As she answered that she thought the boy was locked out of his house

and she was allowing him to use her phone, the man pulled out a gun with a “dirty silver barrel”

and brown handle and pointed it at her face. Celletti observed that the man’s glasses were dark

gray with Scotch tape on one side holding the arm to the front frame of the lenses. The man




2
  The defendant was also charged with contributing to the delinquency of a minor, in violation of
G.L. 1956 § 11-9-4, but the state dismissed this charge pursuant to Rule 48(a) of the Superior
Court Rules of Criminal Procedure after trial when it realized—during the sentencing phase of
the case—that, pursuant to § 11-9-9, the Family Court has exclusive jurisdiction over charges
brought under § 11-9-4.
                                              -2-
instructed Celletti to go sit down, and she sat down on her bed, located in an open alcove

adjacent to the kitchen.

       Celletti testified that the man asked her who else lived in her home; when she replied that

her son lived there but was at his girlfriend’s house that evening, the man asked where the son’s

bedroom was located and said that he was there to collect money the son owed him. The man

then took off his scarf and his jacket, hung the jacket on the back of a kitchen chair, and pulled

down the hood of his sweatshirt, uncovering his head. He made a phone call and Celletti heard a

third person enter her house from the same door through which the boy and the man had come.

The man handed the gun to the boy and instructed him to sit in a chair across from Celletti. The

boy held the gun on her while the man disappeared from view and spoke with the third person

who had entered her home. Celletti testified that she never saw the third person’s face, but that

she concluded this person was female from the timbre of the voice. Celletti described the third

person as tall and thin, wearing a red hoodie, with the hood up for the entire duration of the

incident.

       Celletti testified that she engaged the boy in conversation and told him about herself “to

humanize [her]self with [him]” and to try to find out who he was. She learned his name and the

name of his school. When the boy wanted a drink, Celletti gave him a can of Diet Coke. She

asked him if he had ever held a gun before and if he thought they were going to kill her.

       Celletti testified that she saw her son’s mattress and boxspring being lifted up as well as

things in her bedroom torn up; she also heard her computer being moved, her pocketbook being

dumped out, her television being turned off, unplugged, and carried out, as well as the movement

of other televisions in her home. Celletti also stated that the people who entered her home left

with bags from her basement, her cell phone, her home phone, bottles of red wine, coin


                                               -3-
collections, CDs and DVDs, her son’s wedding band, and cash, among other things. Before the

group of intruders left, the man took the gun from the boy, used a bra from Celletti’s dirty

clothes hamper to wipe the gun off, and, on his way out the door, said: “If you call the cops, I’m

coming back.”

       A few moments later, Celletti saw the man’s jacket on the back of her kitchen chair,

called out to him, and gave the jacket to him. After realizing that both her cell phone and her

home phone had been taken, she found an old cell phone with just enough battery charge to make

a call to her daughter and screamed that she had just been “robbed at gunpoint.” Her daughter

soon arrived at the house, which shortly thereafter was “swamped with police from Johnston and

Providence.”

       Both Celletti and Det. Cute testified that, a few days after the incident, the detective

brought a yearbook from the boy’s school over to Celletti’s house and Celletti was able to

identify the boy who had been in her house the night of the incident. Both witnesses also

testified that, two weeks after the incident, Det. Cute brought over a photo array which included

defendant’s photo, but Celletti was unable to identify any of the men in the photographs as the

man who had entered her home on January 28.

       Some months after being shown the photo array, Celletti called the Attorney General’s

office to inquire about the legal proceedings involving the boy. After a brief conversation—the

substance of which is not on the record—she used her daughter’s laptop computer to search

Facebook for the name “Jodi Johnson.” Celletti thought this might have been the name of the

third person in her house on January 28 whom she had not seen but had assumed was a woman

based on the voice. After scrolling through the various Jodi Johnsons who came up in the

Facebook search results, she looked at photos for different spellings of “Jodi.” She testified that,


                                               -4-
“all of a sudden [she] saw a picture that was very familiar to [her], but it wasn’t a female, it was

a male.” Celletti testified that, based on the eyes and the large head, “he looked like the man

who came into [her] house with a gun.” Celletti clicked on the photo, which brought her to that

man’s Facebook profile page. Celletti scrolled through several photos of this “Jody Johnson,”

including one in which he was wearing glasses with tape on the corner. When Celletti saw that

picture, she was “a hundred percent” certain this photo was of the man who had entered her

house on January 28. Celletti called Det. Cute, who testified that he went to her house, watched

her repeat the search sequence she had performed on Facebook, and, using his own cell phone

camera, took photos of the images on her computer screen. Celletti identified defendant as the

man who entered her home and pointed a gun at her face.

       At the close of the state’s evidence, defendant moved for a judgment of acquittal on the

assault charge, arguing that insufficient evidence had been produced that a firearm was used

during the incident. The trial justice denied the motion. The defendant renewed his motion prior

to the delivery of the jury instructions and closing arguments; the trial justice reserved his

decision. The jury returned guilty verdicts on all counts. In March 2017, the trial justice denied

defendant’s renewed motion for judgment of acquittal and motion for new trial, in which

defendant argued that the jury’s verdict was contrary to the weight of the evidence and Celletti’s

testimony.

       The trial justice imposed a sentence of twenty-five years’ imprisonment with twelve

years to serve and the balance suspended, with probation, on defendant’s first-degree robbery

conviction and on defendant’s assault-with-a-firearm conviction.      With respect to defendant’s

conspiracy conviction, the trial justice initially sentenced him to twenty years’ imprisonment

with ten years to serve and ten years suspended, with probation, but corrected the sentence sua


                                               -5-
sponte a month later because this sentence exceeded the statutory maximum. Accordingly, he

modified the sentence to ten years’ imprisonment with ten years to serve. Each sentence runs

concurrently with the sentences for the other convictions. Final judgment entered on May 30,

2017. The defendant filed a notice of appeal before the trial justice entered a final judgment of

conviction, but did not file another notice of appeal after the trial justice corrected the sentence

imposed for the conspiracy conviction. We granted defendant’s petition for writ of certiorari

asking this Court for direct review of his convictions.

                                                 II

                                       Standard of Review

       The defendant appeals only from the trial justice’s denial of his motion for new trial. As

we have oft repeated, “[w]hen a trial justice is presented with a motion for a new trial based on

the weight of the evidence, he or she acts as a thirteenth juror and exercises independent

judgment on the credibility of witnesses and on the weight of the evidence.” State v. Gomez, 116

A.3d 216, 223 (R.I. 2015) (quoting State v. Storey, 102 A.3d 641, 646 (R.I. 2014)). “[T]he 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.” Id.

(quoting Storey, 102 A.3d at 646). “If, after conducting this independent review, the trial justice

agrees with the jury’s verdict or if the evidence is such that reasonable minds could differ as to

the outcome, the motion for a new trial should be denied.” Id. (quoting Storey, 102 A.3d at 646).

“Only when the trial justice does not agree with the jury’s verdict, [must he or she] embark on a

fourth analytical step.” Id. (quoting Storey, 102 A.3d at 646).




                                                -6-
       “This Court’s review of a denial of a motion for a new trial is deferential because the trial

justice is in an especially good position to evaluate the facts and to judge the credibility of the

witnesses * * *.” Gomez, 116 A.3d at 223 (quoting Storey, 102 A.3d at 647). “If the trial justice

has articulated adequate grounds for denying the motion, his or her decision is entitled to great

weight and will not be overturned by this Court unless he or she has overlooked or misconceived

material evidence or was otherwise clearly wrong.” Id. (quoting Storey, 102 A.3d at 647).

                                                III

                                           Discussion

       On appeal, defendant argues that the trial justice was clearly wrong when he denied

defendant’s motion for a new trial because, according to defendant, the verdict was against the

weight of the evidence. Specifically, he asserts that Celletti’s testimony identifying him as the

perpetrator should have been given little weight and that the weight of the evidence does not

indicate that an operable firearm was used during the incident. We begin our discussion by

acknowledging that the trial justice applied the correct standard for assessing the motion for new

trial and articulated sufficient grounds for denying the motion; his decision is therefore entitled

to great weight and deference pursuant to our well established standard of review. See Gomez,

116 A.3d at 223.

       With respect to Celletti’s in-court identification of defendant as the perpetrator, defendant

argues that little weight should have been given to this testimony because she had not been able

to identify him from a photo array a couple of weeks after the incident despite her testimony that

she had spent several minutes looking at his face while he was in her house. The defendant also

argues that none of the Facebook photos of him wearing glasses shows tape at the corner, which

directly contradicts the emphasis he claims Celletti placed on her ability to identify him on


                                               -7-
Facebook as the perpetrator based on the Scotch tape at the corner of his glasses. In addition,

defendant argues that Celletti more likely identified defendant as the perpetrator because a

representative from the Attorney General’s office told her the name of a suspect, she went

looking for a photo of the person with that name, and then adjusted her recollection of his

physical description once she found the photos.

          In the trial justice’s decision denying defendant’s motion for new trial, he concluded that

Celletti’s testimony was consistent and that the few discrepancies—drawn out during cross-

examination—between her initial statements to the police, her grand jury testimony, and her trial

testimony “did not diminish the weight or significance of [her] testimony.” Our review of the

testimony reveals that, as Celletti scrolled through the Facebook profiles listed from her search

for “Jodi Johnson,” she came across a photo of a face that was “very familiar” to her “[b]ecause

he looked like the man who came into [her] house with a gun.” She opened his profile and

looked through other photos; when she saw the photo of him wearing glasses with “the shadow

of the tape on the side of the glasses,” she “knew a hundred percent that was him.” While it had

apparently been suggested to Celletti that an individual by the name of “Jodi Johnson” was

thought to be involved in the incident, the name merely provided a starting point for Celletti’s

Facebook search. Indeed, she testified that, when she started her search, she was looking for a

female.

          As the state points out, the Facebook search for “Jodi Johnson” yielded many profiles and

photos that Celletti scrolled through before seeing one with a familiar face; the search did not

result in a single photo that Celletti concluded was a photo of her perpetrator. Moreover, at trial,

Celletti emphasized that her in-court identification of defendant was based on “his height, how

big he is, his eyes.” Deferring to the trial justice’s front-and-center position to evaluate the facts


                                                 -8-
and to judge credibility, considering his clear articulation of his conclusion that Celletti’s

testimony was consistent and credible, and absent any indication that he overlooked or

misconceived the evidence, we agree with the trial justice’s assessment of the weight to which

Celletti’s testimony was entitled and perceive no error on his part. See Gomez, 116 A.3d at 223.

        The defendant also specifically challenges his convictions for first-degree robbery and

assault with a dangerous weapon in a dwelling house with intent to rob on the basis that the

guilty verdicts for these counts are against the weight of the evidence that the gun wielded during

the incident was operable. He argues that Celletti’s only testimony about the gun was to describe

its color and to state that it was pointed at her, and he further argues there was no testimony that

she knew the gun was operable or that the intruders indicated the gun was operable. The

defendant contends that Celletti’s testimony about her fear at the sight of the gun does not show

its operability.

        The indictment in this case identified the dangerous weapon as a firearm. To prove

assault with a dangerous weapon when the dangerous weapon in play is a firearm, it is well

settled that the state must prove the defendant possessed an operable gun. State v. Tillery, 922

A.2d 102, 107 (R.I. 2007). The state need not either produce the gun at trial or prove that the

gun was loaded during the commission of the crime; the operability of the gun “may be inferred

from the actions and statements of the defendant.” Id. at 108. We have had prior opportunities to

consider whether the circumstances presented in a variety of cases could lead to a reasonable

inference that an operable firearm was used in the commission of an assault. We have held that

there was sufficient evidence that an operable gun was used when witnesses consistently

described the gun they saw the defendant carrying and testified that the defendant had made a

threat to shoot and that they had heard the gun click. Id. We have also held that the jury could


                                               -9-
properly infer a firearm was used when the witnesses testified that they were afraid, when the

defendant pointed a gun at—and within inches of—one witness’s chest, and when the defendant

threatened to shoot a hole in a nearby mattress. State v. Andrade, 657 A.2d 538, 543 (R.I. 1995)

abrogated on other grounds by State v. Jackson, 752 A.2d 5, 9-10 (R.I. 2000). On the other

hand, we have also vacated a conviction after holding that there was insufficient evidence to

prove that the defendant possessed an operable weapon when the complaining witness was

equivocal about whether the defendant had possessed a gun at all during the incident in question.

State v. Caba, 887 A.2d 370, 376-77 (R.I. 2005).

       The case at bar presents testimony that is more akin to the circumstances in Tillery and

Andrade than those in Caba. In her testimony at trial, Celletti described the gun as having a dirty

silver barrel and brown handle and stated that defendant had pointed the gun at her face when he

entered her home. She was clearly afraid the gun would be used to kill her because she asked the

boy—who held the gun on her while the others searched her house—whether he thought the

others were going to kill her. She also testified that the gun was pointed at her face by the young

boy while defendant and the third person removed a variety of electronics and personal items

from her home. As the intruders were leaving, Celletti testified that defendant issued a threat: “If

you call the cops, I’m coming back.”

       In his decision denying defendant’s motion for new trial, the trial justice specifically

concluded that a gun was used during the incident. He considered the caselaw discussed supra

and gave great weight to Celletti’s testimony that she was in fear, as demonstrated by her

question to the young boy about whether he thought the others were going to kill her,

defendant’s threat to return if she called the police, and the gun pointed at her for the duration of

the incident. Unlike the defendant in Caba, Celletti was unequivocal about the presence of the


                                               - 10 -
gun. The unrebutted testimony as to the actions and statements of defendant and his accomplices

lead to a reasonable inference that the gun was operable, and defendant has not shown that the

trial justice overlooked or misconceived any evidence by so concluding.

       Overall, the trial justice concluded that Celletti was a credible witness, and he specifically

stated that he agreed with the jury’s guilty verdicts on all three counts.        After thoroughly

reviewing the record, it is apparent that the trial justice explained and supported his reasons for

denying the defendant’s motion for new trial. It is our opinion that the trial justice did not

overlook or misconceive any material evidence and did not err by denying the defendant’s

motion.

                                                IV

                                           Conclusion

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

record in this case may be returned to the Superior Court.




                                               - 11 -
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        State v. Jody Johnson.
                                     No. 2017-358-M.P.
Case Number
                                     (P1/15/1141A)
Date Opinion Filed                   January 29, 2019
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia JJ.
Written By                           Chief Justice Paul A. Suttell

Source of Appeal                     Providence County Superior Court

Judicial Officer From Lower Court    Associate Justice Joseph A. Montalbano
                                     For State:

                                     Owen Murphy
                                     Department of the Attorney General
Attorney(s) on Appeal
                                     For Defendant:

                                     Megan F. Jackson
                                     Office of the Public Defender




SU-CMS-02A (revised June 2016)
