January 8, 2018



                                                                     Supreme Court

                        State                      :                 No. 2016-283-C.A.
                                                                     (P1/82-1097A)
                          v.                       :

                  Walter Simpson.                  :




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

                        State                       :                  No. 2016-283-C.A.
                                                                       (P1/82-1097A)
                          v.                        :

                  Walter Simpson.                   :



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

                                            OPINION

           Chief Justice Suttell, for the Court. The defendant, Walter Simpson (Simpson or

defendant), appeals from a Superior Court judgment adjudging him to have violated the terms

and conditions of his probation and executing eighteen years of a twenty-year suspended

sentence. 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 herein, we affirm the decision of the hearing

justice.

                                                    I

                                    Facts and Procedural History

           In 1985, Simpson was convicted of one count of first-degree sexual assault, which this

Court affirmed on appeal. See State v. Simpson, 520 A.2d 1281, 1282 (R.I. 1987). Simpson was

sentenced to fifty years at the Adult Correctional Institutions with thirty years to serve and

twenty years suspended with probation. On December 17, 2015, the state filed a notice of

probation violation pursuant to Rule 32(f) of the Superior Court Rules of Criminal Procedure. A


                                                  -1-
three-day violation hearing was held in February 2016. Below, we summarize the evidence

adduced at the hearing.

         The complaining witness, whom we shall refer to as Valerie,1 testified that, on December

14, 2015, she traveled to Woonsocket for a medical appointment. After the appointment, she

crossed the street to a bus stop to take a bus home. There, she met a man named “Reggie,”2 who,

as Valerie testified, asked her if she “wanted to get high with him.” She answered in the

affirmative, and the two proceeded to a nearby park. After about fifteen minutes in the park,

they headed to Diamond Hill Road, where Simpson lived, because Simpson “didn’t want to get

high in the park.” About ten to fifteen minutes after leaving the park, they arrived at Simpson’s

house, where they went into an unfinished basement with a dirt floor and a couple of mattresses

in the corner.

         Valerie testified that Simpson “laid one of the mattresses down on the ground” and then,

when she “tried to turn and walk away, * * * he grabbed [her] and threw [her] * * * face down[]

on the mattress.” Simpson then put Valerie’s hands behind her back; and, when she tried to

leave, he told her “that he was a member of the police force.” He then “pulled [her] pants down

and put his penis into [her] vagina.” Valerie testified that she “struggled” but could not get

away. She said that Simpson then “put his penis into [her] mouth” but that she “kind of like

threw up on him a little bit” so he “inserted his penis” into her vagina again. Valerie further

testified that, “when [they] went to switch positions, * * * [she] pretended [she] was going to

* * * put his penis in [her] mouth, but * * * instead [she] leaned over him and grabbed [her] bag

* * * and started to run * * *.” When Simpson caught her, she screamed for help. Then “he




1
    We use a pseudonym to refer to the complaining witness.
2
    She identified “Reggie” as Simpson at the violation hearing.
                                                -2-
pushed [her] and he said, ‘Fine, go,’ and [she] started to run * * * out of the basement.” She then

“called the police because [Simpson] was following [her] down the street.”

       Valerie testified that she told the 911 operator that she “had been raped and that

somebody was chasing [her] down the street.” When the police arrived, they drove her around to

visually identify Simpson’s house. The police officers then searched the location she identified

and drove her to Landmark Hospital.

       The state then introduced as an exhibit a photo array that the Woonsocket Police

Department showed to Valerie on December 14, 2015.            Valerie identified Simpson as her

attacker and marked the photo with a statement that she was 75 percent sure that the photo she

identified was accurate.     The state also introduced a recording of Valerie’s 911 call.

Additionally, the state introduced into evidence photographs taken by the police of Simpson’s

basement, which depicted a basement with two mattresses within it.

       Patrolman Justin Mowry of the Woonsocket Police Department testified that he

responded to a phone call the police department had received from an unknown female who was

screaming and running down the roadway in the area of Diamond Hill Road and Wood Avenue.

Upon his arrival in the area, Valerie waved him down and told him she had been assaulted by a

man she referred to only as “Reggie.” Officer Mowry testified that Valerie directed him to the

location of the assault, 594 Diamond Hill Road. He also stated that the police were able to

determine that a Walter Simpson, who used “Reggie” as an alias, resided on the third floor of

that address. Officer Mowry proceeded to investigate the multifamily dwelling. He observed a

dirty basement with two mattresses in the corner leaned against a pole. He then went up to the

third floor, where Simpson resided, and spoke to Simpson’s girlfriend, who informed him that

Simpson was at school.


                                               -3-
       Simpson testified on his own behalf. He stated that he lived at 592 Diamond Hill Road in

Woonsocket.3 At around 3:50 p.m. on December 14, 2015, he left his apartment and went to the

bus stop to catch a bus because he had class at the Community College of Rhode Island. At the

bus stop, Valerie “was soliciting gentlemen”; one man went with her to the park across the street,

and then he returned to the bus stop. Valerie then gave Simpson a napkin with her phone

number written thereon.      He later discovered that the phone number was incorrect.           The

defendant testified that Valerie began asking about drugs. “She * * * was interested in crack,”

and Simpson told her that he did not smoke crack.

       Simpson testified that he and Valerie went across the street to the park and Valerie

“attempted to perform oral sex” on him, but it started raining; so she asked if they could go to his

house. Simpson “told her no” because “[his] girl [wa]s at [his] house.” Simpson testified that

Valerie decided “it would be best” if they went to his house and that she “was under the

impression that [he] was a drug dealer.” They then walked to Diamond Hill Road and went to

the basement of Simpson’s house. Simpson testified that Valerie “went to perform oral sex” on

him and then they began to have sexual intercourse. He further testified that, “[i]n the process of

having sexual intercourse, [he] came to realize that” he was cheating on his girlfriend and

“pushed her away a little bit” and told her to “just leave.” Valerie “cussed [him] out and stormed

up the stairs,” and that was the last Simpson saw of her.

       At the conclusion of the evidence, the hearing justice found that Simpson had violated his

probation and executed eighteen years of Simpson’s twenty-year suspended sentence. The

hearing justice explained,




3
 Officer Mowry testified that 592 and 594 Diamond Hill Road are in the same building with a
common entryway.
                                               -4-
               “the evidence in this probation violation hearing suggests by the
               overwhelming weight of evidence that on December 14th, 2015 he
               enticed a young woman to his apartment with promises of smoking
               crack. Once in the cellar or basement of his apartment, he placed a
               mattress that had been leaning against the wall onto the floor and
               proceeded to overpower her and sexually assault her.”

The hearing justice accepted Valerie’s version of events, explaining that Valerie “was a good

witness on her own behalf” and that “[h]er description of the events surrounding the sexual

assault [was] credible.” On the other hand, the hearing justice found Simpson’s testimony not

credible.

       The hearing justice went on to explain: “Although the standard of proof in a probation

violation proceeding is reasonably satisfactory evidence, I have decided this case by a higher

standard, fair preponderance of the evidence.” She found,

               “the [s]tate proved [that Simpson] violated his probation by a fair
               preponderance of the evidence. Actually, the evidence was
               overwhelming going far beyond 51 percent required of fair
               preponderance of the evidence in favor of finding that [Simpson]
               violated his probation. And let me make it very clear. His
               violation of the probation that I’m finding, his bad behavior, was
               not merely what he testified to, that he was solicited by a
               prostitute, took her home. I find by the evidence that I accept as
               true, as testified to by [Valerie], that of a sexual assault.”

Simpson timely filed a notice of appeal.

                                                II

                                      Standard of Review

       “At a probation-violation hearing, [t]he sole issue for a hearing justice * * * is whether or

not the defendant has breached a condition of his or her probation by failing to keep the peace or

remain on good behavior.” State v. Prout, 116 A.3d 196, 202 (R.I. 2015) (quoting State v.

Barrientos, 88 A.3d 1130, 1133 (R.I. 2014)). “Because probation-violation hearings are not part

of a criminal prosecution, the burden of proof at a probation-violation hearing is much lower

                                               -5-
than the standard of beyond a reasonable doubt used in criminal trials.” Id. (quoting State v.

Raso, 80 A.3d 33, 42 (R.I. 2013)). “[T]he state need only show that reasonably satisfactory

evidence supports a finding that the defendant has violated his or her probation.” Id. (quoting

Barrientos, 88 A.3d at 1133). “In making this determination, ‘the hearing justice weighs the

evidence and assesses the credibility of the witnesses.’”4 Id. (quoting Barrientos, 88 A.3d at

1133).

         It is well established that “[o]n review, ‘[t]his Court accords great deference to the

hearing justice’s credibility assessments’ and ‘will not second-guess supportable credibility

assessments of a hearing justice in a probation-revocation hearing.’” State v. Beaudoin, 137 A.3d

726, 732 (R.I. 2016) (quoting Prout, 116 A.3d at 202). “Rather, ‘our review is limited to

considering whether the hearing justice acted arbitrarily or capriciously in finding a violation.’”

Id. (quoting Prout, 116 A.3d at 202).

                                                  III

                                             Discussion

         The defendant’s first assertion of error is that the “[h]earing [j]ustice went far beyond the

scope of the probation violation hearing in deciding that Mr. Simpson had committed first degree

sexual assault by a fair preponderance of the evidence.” Specifically, he takes issue with the

hearing justice’s statement that “I find by the evidence that I accept as true, as testified to by

[Valerie], that of a sexual assault.” Based upon our review of the record, we are satisfied that the




4
  “On June 21, 2016, this Court entered an order adopting an amendment to Rule 32(f) of the
Superior Court Rules of Criminal Procedure that changes the burden of proof at a probation
violation hearing to ‘a fair preponderance of the evidence.’” State v. Brown, 140 A.3d 768, 780
n.9 (R.I. 2016) (quoting In re Amendments to Superior Court Rules of Criminal Procedure and
Sentencing Benchmarks, at 1 (R.I., filed June 21, 2016) (mem.)). This amendment has no
bearing on this case.
                                                 -6-
hearing justice committed no error in finding that defendant had violated the terms and

conditions of his probation.

       The hearing justice carefully reviewed the evidence and gave complete credence to

Valerie’s testimony “on all material issues.” The hearing justice considered Valerie’s criminal

history as well as notes that Valerie had made to refresh her recollection, which the hearing

justice described as “odd.” Nevertheless, the hearing justice concluded that Valerie was a strong

witness who testified consistently and “held up very well in cross-examination.” Contrariwise,

the hearing justice described defendant’s testimony as “virtually ridiculous.” She rejected his

version of events.

       After considering the evidence, the hearing justice declared that it was her responsibility

to determine whether defendant’s conduct “on the day in question had been lacking in the

required good behavior expected and required by his probationary status.” She then announced

that she would apply a “fair preponderance of the evidence” burden of proof, rather than the

then-required lesser standard of “reasonably satisfactory evidence.” She ultimately concluded

that the state proved that defendant had violated his probation by a fair preponderance of the

evidence.

       In the context of this case, we are of the opinion that the hearing justice’s characterization

of defendant’s conduct as “that of a sexual assault” was merely stating the obvious. Valerie’s

testimony, which the hearing justice accepted as true, bespoke of behavior by defendant that

clearly can be described as a sexual assault whereas defendant’s testimony, even if given

credence, amounted to an admission that he solicited a prostitute, conduct that would also

support a violation adjudication. By crediting Valerie’s testimony, the hearing justice was

necessarily subscribing to the sexual-assault version as the basis for the violation finding.


                                                -7-
       To the extent that defendant ascribes error to the hearing justice’s employment of the

preponderance of the evidence standard, we need not ponder long. The defendant did not object

to this at the hearing and, in fact, conceded at oral argument that he was not challenging the

burden of proof standard that the hearing justice applied.

       Finally, defendant asserts that the hearing justice abused her discretion in sentencing him

to serve eighteen years of his previously suspended sentence. He argues that the “invocation of

18 years to serve suggests that the sentence is motivated by a decision to punish Mr. Simpson for

a criminal offense for which he is presumed innocent and has yet to be tried.

       It is well established, however, “that a hearing justice has ‘wide discretion to determine

whether to execute any or all of a defendant’s previously suspended sentence.’” State v.

Fairweather, 138 A.3d 822, 829 (R.I. 2016) (quoting State v. McKinnon-Conneally, 101 A.3d

875, 879 (R.I. 2014)). We review a probation-violation sentence “for an abuse of discretion

only.” Id. (quoting McKinnon-Conneally, 101 A.3d at 879).

       In imposing the sentence, the hearing justice considered the severity of defendant’s initial

offense, the nature of the conduct underlying the probation violation, and the fact that he had

been “on the street for six and a half years.” She found that he lied to the police, lied under oath,

and that his conduct was “heinous.” She concluded that he was “not a good candidate for

rehabilitation” and that he needed to be incarcerated for the safety of the community.

       The behavior that provided the basis for the probation violation involved the same type of

violent, assaultive conduct for which defendant was originally convicted. Clearly, this pattern of

conduct demonstrates an inability of defendant to conform his conduct to the mores of society

and suggests that he is not amenable to rehabilitation. We have often stated that rehabilitation is

a “factor to be considered in sentencing.” Fairweather, 138 A.3d at 829.


                                                -8-
       Therefore, we are of the opinion that, by executing eighteen years of his original

suspended sentence, the hearing justice was acting well within the ambit of her discretionary

authority.

                                              IV

                                           Conclusion

       For the reasons stated herein, we affirm the judgment of the Superior Court. 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. Walter Simpson.
                                     No. 2016-283-C.A.
Case Number
                                     (P1-82-1097A)
Date Opinion Filed                   January 8, 2018
                                     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 Netti C. Vogel
                                     For State:

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

                                     For Defendant:

                                     Susan B. Iannitelli, Esq.




SU-CMS-02A (revised June 2016)
