June 20, 2018
                June 20, 2018




                                                                                   Supreme Court

                                                                                   No. 2016-182-C.A.
                                                                                   (P2/13-2607A)


                                    State                     :

                                     v.                       :

                                Tory Lussier.                 :




                                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 Tel. 222-3258 of any typographical or other
                                formal errors in order that corrections may be made before the opinion is
                                published.
                                                                Supreme Court

                                                                No. 2016-182-C.A.
                                                                (P2/13-2607A)


                   State                         :

                     v.                          :

               Tory Lussier.                     :


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

                                          OPINION

       Justice Flaherty, for the Court. The defendant, Tory Lussier, appeals from a judgment

of conviction on one count of felony assault following a jury-waived trial in the Superior Court.

A group consisting of the defendant, his friends, and his brother—most of whom were off-duty

Marines—was involved in a late-night melee with some students from Brown University. After

the brawl had subsided and the groups were heading their separate ways, the defendant ripped off

his shirt, ran back toward the site of the donnybrook, and landed a punch to the head of Joseph

Sharkey. According to the defendant, that punch was in defense of himself and his companions;

according to the state, it was an uncalled-for sucker punch. The trial justice agreed with the

state’s theory and found the defendant guilty.

       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 summarily be decided.

The defendant contends that there was sufficient evidence of self-defense to require a finding of

not guilty. The defendant further argues that the trial justice overlooked material evidence in



                                                 -1-
carrying out his fact-finding function.      After considering the parties’ written and oral

submissions and after 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 below,

we affirm the judgment of conviction.

                                                I

                                        Facts and Travel

       The defendant and his friends Joseph Ryan, Joseph Parrish, and Andrew Parrish were all

United States Marines who had served in the same unit, and they had been deployed to

Afghanistan together. They considered themselves to be brothers, and each knew the importance

of always having each other’s back. Unfortunately, during the early morning hours of May 12,

2013, they became brothers in arms in a manner that they did not anticipate.

       After the four Marines returned from active duty, they made plans to get together and

enjoy a night socializing in Providence. The defendant, Ryan, Joseph, Andrew, and defendant’s

younger brother, Derek, first convened for dinner. 1 Eventually, they made their way to the East

Side of the city, where the comrades spent the remainder of their night drinking at a bar located

near Brown University. The defendant estimated that he had consumed at least seven drinks at

the bar, and he described himself as having been intoxicated that night. The defendant was

known to his friends to sometimes become irritable and angry when he was drinking. Shortly

before the 2:00 a.m. closing time, the group left the establishment in search of late-night food.

Trouble ensued, however, while they were en route to their vehicles.




1
  Due to the commonalities of both first and last names in this case, we will refer to the Parrish
brothers and defendant’s brother by their first names and Joseph Ryan by his last name. We
intend no disrespect to anyone involved.

                                              -2-
       As the group walked on Thayer Street, in the vicinity of George Street, they passed by

two individuals. The larger of the two, Dillon Ingham, a Brown University football player,

somehow insulted Ryan. Joseph intervened, and a fight erupted. Ingham punched Joseph and

knocked him out. Either Ingham or his cohort rendered Ryan unconscious as well. Indeed, Ryan

suffered a concussion and broken orbital bone, nose, and tooth. 2 Andrew and Derek then jumped

into the fray to battle with Ingham.

       Meanwhile, defendant had engaged in fisticuffs with the other individual who had been

standing with Ingham. The defendant, Ryan, and Derek all identified that second individual as

Sharkey, a Brown University basketball player who would ultimately become the complaining

witness at trial. 3 Soon enough, the melee petered out. Andrew pulled Derek away from Ingham,

who raised his hands and began to back away. At that point, the police arrived, and the crowd

scattered.

       The defendant was later seen on surveillance video pulling his shirt off and walking back

in the direction of the initial confrontation as the first police cruiser arrived at the scene. By the

time the camera panned in that direction, an individual—later identified as Sharkey—could be

seen lying motionless on the ground, his body half in the street and half on the sidewalk.

Sharkey had been badly injured and he had apparently collapsed and hit his head on the concrete.



2
  At trial, Ryan was unable to say definitively which of the two had hit him. However, it was
Ingham who was charged with felony assault of Ryan and misdemeanor simple assault of
Joseph. Ingham’s felony-assault charge was later reduced to a simple assault in exchange for his
pleading nolo contendere to both misdemeanor counts. He received one year of probation.
3
  As a result of the injuries that he suffered, Sharkey could not remember what transpired that
night. He did, however, testify that he and Ingham were “acquaintances” who were in the same
fraternity. Sharkey explained that, because “Brown doesn’t recognize Greek life,” “[i]t’s not
really a fraternity, just a house where everybody lives.” Theirs was a dorm that housed football
and basketball players, but, according to Sharkey, he and Ingham were not all that close and did
not hang out socially. In fact, Sharkey did not know Ingham’s actual first name, but only his
nickname, until after the unfortunate events that precipitated this trial.

                                                -3-
To save his life, it was necessary to remove a portion of his skull to stop his brain from

swelling. 4 In fact, Sharkey’s injuries were so severe that Providence police initially treated the

case as a homicide investigation.

          Numerous witnesses testified to what had transpired in the seconds between the time that

defendant was seen heading back toward the scene of the initial confrontation and the time that

Sharkey was grievously injured. Katherine Mahoney said that she had been out with Sharkey

that night; they were merely friends at the time, although the relationship did ripen into romance

at a later time. Mahoney explained that she and Sharkey had just left an on-campus bar and that

they were walking on Thayer Street when they saw a commotion. According to Mahoney,

Sharkey then walked over to the “late night brawl” while she remained on the sidewalk. She

testified that she was watching him the whole time and that she did not see him throw any

punches or touch anyone whatsoever. Sharkey was in the middle of the fighting for ten seconds

at most, Mahoney said, before she called for him to get out of there and, whether her entreaty

was the reason or not, he did so. Mahoney said that, less than a minute later, she and Sharkey

were talking on the sidewalk approximately thirty feet away from where the fighting had taken

place. Mahoney testified that Sharkey had his back turned to the fight and that defendant ran

toward them from that direction. It was then that Mahoney saw defendant punch Sharkey in the

side of his face from behind, and she watched as Sharkey “fell and smashed his head on the

concrete.” The defendant ran away, leaving Mahoney with the unresponsive and bleeding

Sharkey. The police arrived within seconds.

          Wooyoung Moon, a student at Brown University, also testified to what he witnessed.

Moon said that he had been out with some friends that night and that he was sober. He related



4
    Sharkey testified that, ever since his injury, he has been prone to seizures.

                                                   -4-
that he was walking on Thayer Street when he heard a commotion. Moon testified that he looked

up and saw a brawl going on, although it appeared to him to be “a gang of people ganging up on

this one guy and punching him.” Moon said that he watched the fight for ten to twenty seconds

and that he was about fifteen to twenty yards away from it. He then looked down at his phone,

struggling to find the phone number for the Brown University police, and by the time he looked

back up, the fight had settled down. He said that there was still some jawing going on, but no

punches were being thrown. Moon then watched as defendant walked along Thayer Street, and

Moon presumed he was going to his car. Moon also saw “this guy and this girl standing * * * on

the sidewalk north of this clump of people.” Moon testified that he thought defendant would

simply walk past the couple, but instead defendant suddenly punched the man. As the man fell

to the ground, Moon heard defendant yelling expletives at the man while the woman screamed

for defendant to stop. The defendant then continued walking on Thayer Street, but when the

police arrived just seconds later, Moon testified that defendant ran right past him and ducked

down a side street.

       When defendant testified, he painted quite a different picture. The defendant said that

Sharkey was with Ingham, that it was they who had initiated the scuffle, and that he saw Sharkey

kicking Ryan. At that time, defendant testified, he jumped into the ruckus and he and Sharkey

actually exchanged blows for about twenty seconds.          After Sharkey landed a punch to

defendant’s face, defendant said that he put Sharkey in a headlock until a woman came along and

pulled Sharkey out of the brawl by his belt. Meanwhile, Derek was still engaged with Ingham

farther down Thayer Street, so defendant ran to his brother’s aid. He said that that was when the

surveillance video captured Ingham backing away from the group of Marines with his hands

raised, seemingly in a gesture of surrender. The defendant testified that he then saw Sharkey




                                              -5-
walking in his direction and “[f]ully looking” at him, and defendant “felt like it was him or me

that was going to be hit * * *.” And, defendant said, if it was not him who Sharkey was going to

assault, it would have been one of his fellow Marines or his brother. The defendant said that he

punched Sharkey but once. The defendant testified that it was simply a “reaction[,]” that he “felt

like it was fight or flight * * *.”

        The trial justice did not see it that way. The trial justice found Moon to be the most

credible witness because he was the only person testifying who was completely disinterested and

because he had not been drinking that night. The trial justice also held that the testimony of

Moon and Mahoney and the events depicted in the surveillance video were corroborative of each

other. The trial justice did not find any credible evidence that supported defendant’s story, and

he determined that the initial confrontation had concluded before defendant punched Sharkey.

Based on those findings, the trial justice said that he was “constrained to conclude that this was

not a case of self-defense or defense of others, rather it was an act of retribution to even the score

for what happened earlier to [defendant’s] friends at the hands of the other Brown University

student, Dillon Ingham.” Therefore, the trial justice found defendant guilty of felony assault. 5




5
  At the time the criminal information was filed in this case, G.L. 1956 § 11-5-2 defined felony
assault as follows:

                “(a) Every person who shall make an assault or battery, or both,
                with a dangerous weapon, or with acid or other dangerous
                substance, or by fire, or an assault or battery which results in
                serious bodily injury, shall be punished by imprisonment for not
                more than twenty (20) years.
                “* * *
                “(c) ‘Serious bodily injury’ means physical injury that:
                “(1) Creates a substantial risk of death;
                “(2) Causes protracted loss or impairment of the function of any
                bodily part, member or organ; or

                                                -6-
The trial justice sentenced defendant to seven years at the Adult Correctional Institutions, all

suspended with probation; 1,000 hours of community service; weekly counseling for two years

for treatment for his anger issues, PTSD-related symptoms, and alcohol abuse; and weekly

random substance abuse screenings.

                                                 II

                                       Standard of Review

       “In a jury-waived criminal proceeding, this Court gives deference to a trial justice’s

finding[s] of fact[]” and determinations of credibility. State v. Medeiros, 996 A.2d 115, 121 (R.I.

2010) (quoting State v. Adewumi, 966 A.2d 1217, 1221-22 (R.I. 2009)). This is so because we

               “accord a great deal of respect to the factual determinations and
               credibility assessments made by the judicial officer who has
               actually observed the human drama that is part and parcel of every
               trial and who has had an opportunity to appraise witness demeanor
               and to take into account other realities that cannot be grasped from
               a reading of a cold record.” Id. at 122 (quoting State v. Erminelli,
               991 A.2d 1064, 1069 (R.I. 2010)).

Therefore, “this Court will not disturb the * * * findings [made by a trial justice sitting without a

jury] unless they are clearly wrong or the trial justice misconceived or overlooked material

evidence on a controlling issue.” Id. at 121 (quoting Adewumi, 966 A.2d at 1222). At the same

time, however, “our role is not simply to rubber-stamp the trial justice’s findings of fact; rather,

our role is ‘to review the record carefully to see if it in fact contains sufficient evidence to

support the trial justice’s conclusion.’” State v. Forand, 958 A.2d 134, 138 (R.I. 2008) (quoting

State v. Harris, 871 A.2d 341, 346 (R.I. 2005)). “When the record indicates that competent

evidence supports the trial justice’s findings, we shall not substitute our view of the evidence for



               “(3) Causes serious permanent disfigurement or circumcises,
               excises or infibulates the whole or any part of the labia majora or
               labia minora or clitoris of a person.”

                                                -7-
his [or hers] even though a contrary conclusion could have been reached.” State v. Van Dongen,

132 A.3d 1070, 1076 (R.I. 2016) (quoting South County Post & Beam, Inc. v. McMahon, 116

A.3d 204, 210 (R.I. 2015)).

                                                  III

                                             Discussion

       The defendant takes issue with the trial justice’s decision that the state successfully

rebutted defendant’s self-defense claim beyond a reasonable doubt. 6 That argument is inherently

related to his other argument: that the trial justice overlooked certain evidence in arriving at his

decision. The defendant contends that, because the trial justice did not recite or summarize

Andrew’s testimony when delivering his bench decision, he must have overlooked it, and,

according to defendant, consideration of that testimony would have swung the weight of the

evidence back in his direction. In our opinion, that argument misses the mark.

       It is significant that, as he rendered his decision, the trial justice explained:

               “I have reviewed all of the witnesses who testified in this case, but
               the most relevant and most significant testimony which I have just
               placed on the record is from those witnesses that I’ve just recited
               testimony from. There were a number of other witnesses who
               certainly testified in this matter. I’ve considered that testimony,
               but this testimony that I’ve just recited has the most bearing on the
               legal issues before this Court. I just don’t want anyone to think I
               overlooked the other witnesses.”

In defendant’s view, though, the trial justice did just that: “overlooked material evidence on a

controlling issue.” Medeiros, 996 A.2d at 121 (quoting Adewumi, 966 A.2d at 1222). We do not

agree. Simply because the trial justice did not go through each painstaking detail of every

witness’s testimony, it cannot be concluded that he did not consider it. To the contrary, he



6
 “Once a defendant introduces evidence of self-defense, the burden is on the state to negate that
defense beyond a reasonable doubt.” State v. Urena, 899 A.2d 1281, 1288 (R.I. 2006).

                                                 -8-
professed that he did in fact consider it, and his bench decision evinces that he had clearly and

comprehensively reviewed the evidence adduced at trial.

         Furthermore, our review of the record leaves no doubt whatsoever that sufficient

competent evidence existed to support the trial justice’s decision. See Forand, 958 A.2d at 138.

The trial justice had ample evidence before him to support both the state’s theory of the case as

well as defendant’s. The trial justice discussed and analyzed both theories, and he made factual

findings and credibility assessments that led him to side with the state in concluding that

defendant had not assaulted Sharkey in an effort to defend himself, his friends, or his brother.

Moreover, even if we were to disagree with that outcome, we are not in the business of replacing

the trial justice’s view of the evidence with our own. See Van Dongen, 132 A.3d at 1079.

         It seems to us that the defendant’s twofold argument—that the evidence of self-defense

negated a guilty finding, and that the trial justice overlooked evidence in finding defendant

guilty—is nothing more than a manifestation of the defendant’s disagreement with the findings

of fact and determinations of credibility that the trial justice did place on the record. That,

certainly, “is a most difficult hurdle to overcome in a jury-waived trial.” Van Dongen, 132 A.3d

at 1079. It was the defendant’s considered decision to waive his right to a trial by jury and put

his fate in the hands of a seasoned justice of the Superior Court, who, it turned out, did not see

things the way the defendant would have wished. In our opinion, there was no error in this trial.

                                               IV

                                           Conclusion

         The judgment of conviction is affirmed. The record shall be returned 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. Tory Lussier.
                                     No. 2016-182-C.A.
Case Number
                                     (P2/13-2607A)
Date Opinion Filed                   June 20, 2018
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice Francis X. Flaherty

Source of Appeal                     Providence County Superior Court

Judicial Officer From Lower Court    Associate Justice Daniel A. Procaccini
                                     For State:

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

                                     Megan F. Jackson
                                     Office of the Public Defender




SU-CMS-02A (revised June 2016)
