                                                  Supreme Court
                                                  No. 2010-283-C.A.
                                                  (P2/08-1764A)


     State                     :

       v.                      :

Victor M. Lopez.               :




 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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                                                                  Supreme Court
                                                                  No. 2010-283-C.A.
                                                                  (P2/08-1764A)


                   State                        :

                     v.                         :

             Victor M. Lopez.                   :


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

                                          OPINION

       Justice Indeglia, for the Court. Victor M. Lopez (Lopez or defendant) appeals from a

Superior Court judgment of conviction for breaking and entering and for felony assault with a

dangerous weapon by choking with his hands. On appeal, Lopez contends that the trial justice

erred in denying his motion for a new trial; erred in not permitting him to question the jurors

during voir dire about the reliability of eyewitness testimony; and erred in denying his motion for

a judgment of acquittal on the charge of felony assault. For the reasons set forth in this opinion,

we affirm the judgment of the Superior Court.

                                                    I

                                        Facts and Travel

       On the morning of April 15, 2008, Isaidely Negron unlocked the door of her apartment

on Dexter Street in Central Falls which she then shared with her fiancé and her ten-month-old

daughter. Her fiancé had left for work, and she was expecting her sister to arrive soon. She

decided to watch TV while waiting for her sister but fell asleep while on her bed.




                                             -1-
       Ms. Negron was awoken at some time after that when she heard the door open and saw a

“dark-skinned man” walk into the apartment. She testified at trial that, from her bed, she had a

“perfect view” to the apartment door.

       The intruder told Ms. Negron not to move, picked up a coat from the kitchen chair,

climbed on top of her, covered her face with the coat and began to suffocate her. At trial, Ms.

Negron demonstrated how the intruder was choking her by putting her right hand around her

neck in a choking fashion. 1 Ms. Negron testified that she struggled and scratched the intruder’s

arms and that, at some point during the struggle, she felt his hands at her waist. The intruder

threatened her, saying, “Don’t move or I’ll kill you.” During the struggle, the coat came off her

face, allowing her to see. She then grabbed a plastic water bottle from beside the bed and hit the

intruder with it, striking him on the side of the neck. Ms. Negron stated that, at this point in the

struggle, she was briefly face to face with the intruder. The intruder turned and ran out of the

bedroom and Ms. Negron chased him out of the apartment and then locked the apartment door.

Ms. Negron testified that, after locking the door, she saw that the time was 8:10 a.m.

       Later that morning, Ms. Negron went to her sister’s apartment and had her call the police.

She then went to the Central Falls police station to file a witness statement. Photographs were

taken of scratches on her face, chest, and arms as a result of the struggle. Ms. Negron described

the intruder as being an “average-size man, dark skin, short hair” and wearing “a short-sleeved

shirt and light blue jeans.” The Central Falls Police did not dust for fingerprints at the apartment

nor did they obtain any DNA evidence from Ms. Negron’s fingernails. 2 Detective Jeff Araujo of



1
  We note that in testifying, Ms. Negron stated that the intruder used his “hands” in choking her
but when asked to demonstrate, the record reflected that she put only her right hand around her
neck.
2
  Ms. Negron testified that, during the struggle with the intruder, she had purposely scratched his
arms in an effort to collect his DNA under her fingernails.


                                             -2-
the Central Falls Police testified that Ms. Negron did not mention at that time that the intruder

spoke with an accent.

         A few days later, on April 20, 2008, Ms. Negron was on the porch of her apartment

overlooking the driveway to the house. A car drove in and parked in the driveway and the driver

passed by Ms. Negron’s door wearing a “sweater” with a hood over his head. Ms. Negron

identified the driver, who she later discovered lived above her in the same building, as being the

intruder who had entered her apartment. She called the police immediately to inform them.

         Detective Araujo put together a photo array that included a Department of Motor

Vehicles license picture of defendant. Prior to being shown the photos, Ms. Negron was given

an instruction form informing her that she was not obligated to identify anyone from the photo

array.   Nevertheless, Ms. Negron identified defendant’s picture from it.       Detective Araujo

testified that, upon being shown the array, Ms. Negron immediately began to shake and cry and

seemed “almost like she was afraid of the photographs.”           Detective Araujo learned that

defendant worked at Chili’s Bar & Grill in Lincoln, about four and a half miles away from Ms.

Negron’s apartment.     According to Detective Araujo, the distance between Ms. Negron’s

apartment and Chili’s could be traveled by car in approximately eleven to fifteen minutes.

Detective Araujo secured an arrest warrant but he was unable to locate defendant on April 22,

2008. Lopez, however, turned himself in to the police later that night.

         According to Richard Sliwinski, Jr., defendant’s manager at Chili’s at the time, the

restaurant’s computerized time records showed that defendant clocked into work at 8:30 a.m. on

the morning of April 15, 2008. Sliwinski, who was called as a witness by defendant, explained

that the restaurant’s computer that records employees’ hours does not permit employees to clock

in prior to their scheduled start time, regardless of when they arrive. Sliwinski testified that it




                                             -3-
was defendant’s usual habit at the time to arrive at least half an hour prior to his scheduled time

because he took the bus to work. Sliwinski said that defendant is bilingual but speaks English

with a definite “Spanish accent.” He admitted that he had no specific recollection of defendant’s

arrival or conduct on April 15, 2008, but stated that if he had observed any scratches on

defendant’s hands, he would have addressed the issue as to “whether it was reasonable for him

[defendant] to work or not” because of “a possible * * * food issue.”

       Criminal Information No. P2/08-1764A charged Lopez with four criminal offenses: count

1, breaking and entering in violation of G.L. 1956 § 11-8-2; count 2, assault with intent to

murder in violation of G.L. § 11-5-1; count 3, felony assault in violation of § 11-5-2; and count

4, assault in violation of § 11-5-3. 3 The state dismissed counts 2 and 4 prior to jury selection.

       Jury impaneling took place on February 11 and 12, 2010, and the trial took place on

February 12 and 15, 2010. During impanelment, defense counsel began to question the jurors

regarding their opinion of eyewitness testimony through the following exchange:

           “[Defense counsel]: Because the Super Bowl was this past week, I think I’m
       going to start with sort of a football question. As most of you probably know, in
       the NFL football games there are a number of referees who are paid to watch each
       play, and they’re trained to observe and to make a call about what they see. So if
       they see a touchdown, they call a touchdown. Yet, these NFL games, as I think
       we all know, they have what’s called instant replay, so that if a coach would like a
       play reviewed, they ask for a video replay of what just happened.

           “And I’m going to direct some of my questions directly to each one of you.
       And I don’t mean to put you on the spot, there aren’t right or wrong answers here,
       but you, sir, [Juror No. 187] –

           “Juror No. 187: Yup.


3
  Felony assault under G.L. § 11-5-2 is defined as an “‘unlawful offer to do corporal injury to
another under such circumstances as may create a reasonable apprehension of immediate injury
unless the person so threatened takes action or inaction to avoid it, coupled with a present ability
to carry the offer into effect’ by use of a dangerous weapon.” State v. Froais, 653 A.2d 735, 737
(R.I. 1995) (quoting State v. Jeremiah, 546 A.2d 183, 186-87 (R.I. 1988) (abrogated on other
grounds)).


                                              -4-
          “[Defense counsel]: — why do you think if you have—if the NFL has these
       highly trained people to see and observe, why do they have videos?

           “Juror No. 187: Well, they are human. They do make mistakes. They are
       human. They make mistakes. They’re not going to see every call. Sometime
       [sic] they’re not in a position to see that call. Sometimes they make it—they
       make a judgment and they’re not really sure, but they have to make that split-
       second decision either way.

          “[Defense counsel]: So what are some of the things that interfere or cause
       people, even like referees, to make mistakes about what they saw?”

The state objected to this line of questioning. The trial justice heard arguments from both

counsel at a sidebar conference and expressed some concerns about questioning the jurors on the

subject, saying, “Well, if you ask a juror what that person expects that would be necessary for

them to accept an eyewitness testimony and this witness doesn’t meet that expectation, they’re

going to be somehow bound to say, because I answered that young attorney that way, I can’t

believe this witness.”

       The trial justice sustained the state’s objection, reasoning,

       “You can do that in argument. You heard this testimony of this witness, ask
       yourself, ladies and gentlemen, under the conditions of extreme anxiety in the
       early morning hours, having been woken from a sound sleep, is that identification
       reliable? Did she have the opportunity to see this person? You heard about the
       coat being thrown over her head. How long did she actually have to see this
       person? So I think you’re really talking more about argument.”

       After voir dire concluded, the trial commenced. At the close of the state’s evidence,

defendant moved pursuant to Rule 29 of the Superior Court Rules of Criminal Procedure for a

judgment of acquittal on the charge of felony assault with a dangerous weapon. The defendant

argued that the evidence did not support the felony assault charge because it was not clear that

the intruder’s hands were, in fact, used in such a way that was likely to produce substantial

bodily harm as Ms. Negron did not testify to the length of time or the intensity of the choking.




                                              -5-
The trial justice denied the motion on the grounds that Ms. Negron’s testimony about how

defendant straddled her and choked her was sufficient because “a choke, if carried to its natural

conclusion, would probably cause death.” 4

       At the close of all the evidence and after the trial justice instructed the jury, 5 the jury

found Lopez guilty on the charges of breaking and entering and of felony assault with a

dangerous weapon.

       The defendant filed a motion for a new trial pursuant to Rule 33 of the Superior Court

Rules of Criminal Procedure, which was heard on February 26, 2010. The defendant argued that

he had an “imperfect” alibi for the time the crime took place because he had clocked in to work

by 8:30 a.m. and he was in the habit of arriving at least half an hour before his shift was due to

begin, which gave him very little time after the assault on Ms. Negron in which to get to work.

He also emphasized that no one at work on April 15, 2008 noticed anything unusual about him,

such as any marks or scratches on his face or hands that would be consistent with the struggle

that took place with Ms. Negron. The defendant further contended that his actions in turning

himself in to the police a few days later were not the actions of a guilty man. Finally, Lopez

focused on the lack of physical evidence to tie him to the crime and argued that eyewitness

testimony such as Ms. Negron’s is unreliable.

       The trial justice denied defendant’s motion for a new trial, finding that Ms. Negron’s

testimony was “extremely credible” and noting that “no evidence * * * has been uncovered to

shake the confidence of the Court in her identification.” The trial justice recalled that “all of the

individuals in that photo-pack look amazingly alike” and noted that Ms. Negron identified


4
  The defendant renewed the motion for a judgment of acquittal at the close of all the evidence.
The trial justice again denied the motion.
5
  In his instructions, the trial justice permitted the jury to consider the lesser-included offense of
simple assault as to count 3.


                                              -6-
defendant “without hesitation[.]” Finally, the trial justice stated that defendant’s “imperfect”

alibi for the time of the crime was insufficient because it was possible that he drove from Central

Falls to his workplace at the Chili’s in Lincoln in the twenty minutes between the time Ms.

Negron testified the intruder left her apartment and 8:30 a.m., when he clocked in to work.

        At a hearing on May 7, 2010, defendant was sentenced to ten years, with eight years to

serve and the balance suspended, on the charge of breaking and entering and a concurrent

sentence of twenty years, twelve years to serve with the balance suspended, on the charge of

assault with a dangerous weapon.

        The defendant filed a notice of appeal on May 13, 2010. Judgment of conviction entered

on September 14, 2010. 6

                                                 II

                                         Issues on Appeal

        Lopez raises three issues on appeal. First, he argues that the trial justice erred in denying

his motion for a new trial because the weight of the evidence did not support the jury verdicts.

Second, he contends that the trial justice’s decision not to permit defense counsel to question

prospective jurors about eyewitness testimony during voir dire was in error. Lastly, Lopez

maintains that the trial justice erred in denying his motion for a judgment of acquittal on the

charge of assault with a dangerous weapon because the evidence was insufficient to prove that

the intruder’s hands were used as a dangerous weapon as required by § 11-5-2. We address each

of these issues in turn.




6
 This Court deems a direct appeal filed prior to the entry of final judgment to be timely. See
State v. Morin, 68 A.3d 61, 66 n.10 (R.I. 2013) (citing State v. DeRobbio, 62 A.3d 1113, 1118
n.7 (R.I. 2013)).


                                              -7-
                                                 III

                                             Discussion

                                                  A

                                      Motion for a New Trial

       It is well settled that our review of a trial justice’s ruling on a motion for a new trial is

deferential. State v. Covington, 69 A.3d 855, 863 (R.I. 2013). When deciding whether to grant

or deny a motion for a new trial, the trial justice acts as the legendary thirteenth juror. Id. at 862.

“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.

Navarro, 33 A.3d 147, 156 (R.I. 2011) (quoting State v. Pineda, 13 A.3d 623, 641 (R.I. 2011)).

“The new-trial motion should be denied ‘[i]f the trial justice concludes that reasonable minds

could differ as to the result or if the trial justice reaches the same conclusion as the jury did * *

*.’” Pineda, 13 A.3d at 641 (quoting State v. Espinal, 943 A.2d 1052, 1058 (R.I. 2008)). If the

trial justice has articulated adequate reasoning in support of the ruling, “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.” Covington, 69 A.3d at 863 (quoting State v.

Smith, 39 A.3d 669, 673 (R.I. 2012)).

       Lopez argues that the evidence was insufficient to establish beyond a reasonable doubt

that he was the man who had intruded into Ms. Negron’s apartment on the morning of April 15,

2008 because he had an “imperfect” alibi to the time when the incident took place and because

Ms. Negron’s eyewitness identification occurred under circumstances making it unreliable. We

disagree. The jury was entitled to weigh the evidence regarding the inference of defendant’s




                                               -8-
alibi when deliberating and found it wanting. We cannot state that the jury’s verdict was entirely

unsupported by the evidence.

       We find no error in the trial justice’s decision denying Lopez’s motion for a new trial.

The trial justice set out the correct standard and then summarized complainant’s testimony. The

trial justice acknowledged the possibility that Ms. Negron was mistaken in her identification of

Lopez as the intruder but stated that he found her testimony to be credible and the jury was

entitled to find her credible as well. The trial justice also addressed the issue of defendant’s

“imperfect” alibi but ultimately concluded that it was insufficient because it was possible to drive

from Ms. Negron’s apartment in Central Falls to the restaurant in Lincoln in the time between

the intruder’s leaving the apartment and when defendant had clocked in to work. The trial

justice finally stated that he agreed with the jury verdict.

       We are satisfied that the trial justice adequately articulated his reasoning in denying the

motion for a new trial. Once the trial justice had determined that he agreed with the jury verdict,

he was correct in denying the motion for a new trial. Moreover, the trial justice clearly set forth

and considered the factors which this Court has used in determining the credibility of eyewitness

testimony in weighing Ms. Negron’s testimony. Because we conclude that the trial justice did

not commit clear error and neither overlooked nor misconceived material evidence, this Court

will not disturb his decision to deny Lopez’s motion for a new trial.

                                                   B

                                       Voir Dire Questioning

       Rule 24(a) of the Superior Court Rules of Criminal Procedure governs the questioning of

potential jurors. Rule 24(a) states, in pertinent part:

       “The court may permit a defendant or the defendant’s attorney and the attorney
       for the State to conduct the examination of prospective jurors or may itself



                                               -9-
       conduct the examination. In the latter event, the court shall permit the defendant
       or the defendant’s attorney and the attorney for the State to supplement the
       examination by further inquiry or, upon request, shall itself put to the prospective
       jurors such additional questions as are submitted by the parties or their attorneys.
       The examination of prospective jurors shall be for the purpose of determining
       whether a prospective juror is related to a party, or has any interest in the case, or
       has expressed or formed an opinion or is sensible of any bias or prejudice
       therein.”

“Although the trial justice may not hinder the attorneys’ attempts to inquire into the objectivity

of the prospective jurors, the scope of examination of prospective jurors during voir dire is

within the sound discretion of the trial justice.” State v. Kaba, 798 A.2d 383, 389 (R.I. 2002)

(quoting State v. Goodreau, 560 A.2d 318, 323 (R.I. 1989)). However, “[t]he exercise of [the

trial justice’s] discretion does not mean that [the trial justice] must permit every question * * *

that can be devised by an ingenious attorney.” Id. at 390 (quoting State v. Spivey, 114 R.I. 43,

48, 328 A.2d 414, 417 (1974)).

       Lopez contends that the trial justice erred in not permitting his attorney to question

potential jurors regarding any preconceived notions they might have about eyewitness testimony.

Specifically, defendant argues that this line of questioning was necessary in this case because

Ms. Negron’s eyewitness identification was the only evidence connecting defendant with the

alleged crimes. During voir dire, defense counsel began to question potential jurors about their

opinions of the reliability of eyewitness testimony, using the example of Super Bowl referees.

After a sidebar discussion with counsel, the trial justice curtailed defense counsel’s line of

questioning, stating that the reliability of the complaining witness’s identification could more

properly be questioned during argument.

       We discern no error in the trial justice’s decision. It is well settled that questioning

during voir dire should not be “argumentative, cumulative or tangential.” State v. Johnson, 119

R.I. 749, 759, 383 A.2d 1012, 1018 (1978) (quoting Brundage v. United States, 365 F.2d 616,



                                             - 10 -
618 (10th Cir. 1966)). Moreover, this Court has repeatedly stated that “the trustworthiness of

eyewitness observations is ‘not beyond the ken of the jurors.’” State v. Day, 898 A.2d 698, 707

(R.I. 2006) (quoting State v. Porraro, 121 R.I. 882, 892, 404 A.2d 465, 471 (1979)). Here, Ms.

Negron’s testimony and identification of defendant were subject to cross-examination. Both

defense counsel in closing argument and the trial justice in the jury instructions informed the jury

about factors affecting the reliability of eyewitness identifications.        We cannot find that

defendant was prejudiced by the trial justice’s decision not to permit questioning on the

reliability of eyewitness identification during voir dire.

       We are satisfied from our review of the record that voir dire was thorough and the

purpose of voir dire adequately fulfilled.       Accordingly, the trial justice did not abuse his

discretion nor will this Court disturb his decision on review.

                                                  C

                                Motion for Judgment of Acquittal

       Rule 29 states that “a judgment of acquittal shall be entered when the evidence is not

legally sufficient to sustain a conviction.” State v. Cardin, 987 A.2d 248, 250 (R.I. 2010)

(quoting State v. Ros, 973 A.2d 1148, 1159 (R.I. 2009)). We review a trial justice’s denial of a

motion for a judgment of acquittal using the same standard as the trial court applies. “[W]e

‘must view the evidence in the light most favorable to the state, * * * giving full credibility to the

state’s witnesses, and draw therefrom all reasonable inferences consistent with guilt.’” Id.

(quoting State v. Caba, 887 A.2d 370, 372 (R.I. 2005)). “The trial justice is required to evaluate

‘only that evidence that the prosecution claims is capable of supporting proof of guilt beyond a

reasonable doubt.’”     Cardin, 987 A.2d at 250 (quoting Caba, 887 A.2d at 372).               If the




                                              - 11 -
examination of that evidence reveals evidence sufficient to warrant a jury verdict of guilt beyond

a reasonable doubt, the trial justice’s decision should be upheld. Id.

       Lopez argues that the trial justice erred in denying his motion for a judgment of acquittal

on the charge of assault with a dangerous weapon because the evidence failed to establish that

the intruder’s hands were used as a dangerous weapon. Lopez specifically emphasizes that there

was no testimony about how long the assailant had his hand or hands on the complainant’s neck

nor were the injuries described by the complainant indicative of choking.

       We find the defendant’s argument to be unpersuasive. This Court previously has held

that “an individual’s hands, when employed in such a manner as to be likely to produce

substantial bodily harm, may properly be qualified as a dangerous weapon.” State v. Zangrilli,

440 A.2d 710, 711 (R.I. 1982). This Court has never stated that any specific duration or intensity

is necessary for choking with a person’s hands to constitute assault with a dangerous weapon. In

this case, the complainant testified and described at trial how the intruder straddled her as he had

his hand around her neck in a choking fashion. We are satisfied that the complainant’s testimony

is sufficient to support the conviction on the charge of assault with a dangerous weapon.

Regardless of the injuries actually suffered by the complainant, this Court agrees with the trial

justice’s statement that “a choke, if carried to its natural conclusion, would probably cause

death.” This Court has repeatedly held that “[t]he test is not whether serious bodily injury results

from the assault, but whether the object was so used that serious bodily injury may have

resulted.” State v. Gore, 820 A.2d 978, 980 (R.I. 2003) (mem.). Accordingly, this Court finds

no error in the trial justice’s denial of the motion for a judgment of acquittal and will not disturb

his decision on review.




                                             - 12 -
                                               IV

                                          Conclusion

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

The record in this case is remanded to the Superior Court.




                                            - 13 -
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        State v. Victor M. Lopez.

CASE NO:              No. 2010-283-C.A.
                      (P2/08-1764A)

COURT:                Supreme Court

DATE OPINION FILED: November 5, 2013

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

WRITTEN BY:           Associate Justice Gilbert V. Indeglia

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Francis J. Darigan, Jr.

ATTORNEYS ON APPEAL:

                      For State: Virginia M. McGinn
                                 Department of Attorney General

                      For Defendant: Lara E. Montecalvo
                                     Office of the Public Defender
