                                                 Supreme Court

                                                 No. 2013-110-C.A.
                                                 (P2/11-779A)


    State                     :

      v.                      :

Joseph Armour.                :




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,
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                                                                    Supreme Court

                                                                    No. 2013-110-C.A.
                                                                    (P2/11-779A)


                     State                      :

                       v.                       :

                Joseph Armour.                  :


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


                                           OPINION

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

February 3, 2015, on appeal by the defendant, Joseph Armour (defendant), from a Superior Court

judgment of conviction following a jury verdict of guilty of one count of second-degree child

molestation. The defendant contends that the trial justice erred in: (1) denying his motion to

suppress an incriminating confession he gave to the police; (2) permitting Dr. Amy Goldberg

(Dr. Goldberg) to testify regarding the explanation of a normal examination over defense

counsel’s objection; and (3) denying the defendant’s motion for judgment of acquittal. For the

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

                                          Facts and Travel

          In 2010, six-year-old Sarah1 lived with her mother and defendant in a multifamily home

in East Providence, Rhode Island. The defendant had been renting a bedroom on the second




1
    In order to protect the child’s privacy, she has been given a pseudonym.


                                                 -1-
floor, while the child and her mother lived on the first floor.2           On January 29, 2011, at

approximately one o’clock in the morning, Sarah awakened to defendant touching her vagina.

After Sarah’s mother saw defendant run out of Sarah’s room, she went into her daughter’s room,

turned on the light, and noticed that the blankets covered her daughter’s head. When Sarah’s

mother moved the blankets, she saw that her daughter’s jeans and underwear had been pulled

down below her waist. Sarah’s mother immediately took the child into her own bedroom, locked

the door, and asked her “Did he touch your cookie?”3 Sarah answered “yes[,]” and her mother

subsequently called the East Providence police. When the police arrived, Sarah’s mother

explained what had happened, and Sarah was taken to Hasbro Children’s Hospital (Hasbro) for

an examination, which was performed by Dr. Goldberg. The following day the police arrested

defendant.

          On March 18, 2011, a criminal information was filed against defendant in Providence

County Superior Court, alleging one count of second-degree child molestation in violation of

G.L. 1956 § 11-37-8.3 and § 11-37-8.4. A jury trial was held in September 2012. The jury

returned a verdict of guilty, and the trial justice sentenced defendant to thirty years at the Adult

Correctional Institutions, with ninety months to serve and two hundred and seventy months

suspended with probation. The defendant timely appealed.

                                         Motion to Suppress

          On appeal, defendant argues that the trial justice erred when she denied defendant’s

motion to suppress an incriminating statement he gave to the East Providence police while in

custody. It was defendant’s contention that the confession was obtained in violation of his

2
  The child’s mother had known defendant for over twenty years and had “thought of him as
family.”
3
    Sarah and her mother testified that “cookie” is the word they used to refer to the child’s vagina.
                                                  -2-
constitutional rights against self-incrimination and his right to counsel. A pretrial hearing on the

motion was held, which featured the testimony of two East Providence police officers, defendant,

defendant’s mother, defendant’s cousin, and an attorney who had been contacted by defendant’s

cousin.

          Detective Mark Jones (Det. Jones) of the East Providence police department was the first

witness. Detective Jones was on duty on January 29, 2011 and spoke with defendant the

following day, after defendant’s arrest. According to Det. Jones, he and another officer, Det.

Michael Spremulli (Det. Spremulli), first spoke to defendant while in the department cellblock

and, after he agreed to speak with them, defendant was moved to an interview room. Detective

Jones stated that he “asked [defendant] if he understood, if he could read English, if he could

read period, and [defendant] said yes.” Detective Jones testified that he provided defendant with

a rights form and advised defendant of his constitutional rights, as set forth on the form. The

defendant then initialed each numerically listed item on the rights form and signed the form.

          Next, Det. Jones testified that, although defendant was alert, he appeared “subdued but

nervous[,]” which the detective characterized as normal behavior.                 Detective Jones

acknowledged that defendant stated that he had vomited some sleeping pills which he ingested

prior to being arrested while purportedly attempting suicide, but the officer testified that he did

not observe anything that would suggest defendant had taken sleeping pills. Detective Jones

testified that defendant stated the following:

                 “He said that night of the incident, he was in Cranston * * * doing
                 shots. He got home, he thinks it was around midnight or so, took a
                 sleeping pill, and then he said he went into [Sarah’s] bedroom to
                 check on her. And he said he saw that she had a pair of jeans, she
                 seemed uncomfortable. So he decided to pull her pants down, and
                 while doing so her underwear came down as well. Then he said
                 when he saw her vagina he got curious as to what it would feel
                 like. So at that time, he said he touched her vagina, got nervous,

                                                 -3-
               realizing what he did was wrong, and then left the room.”

After the interview, Det. Jones typed the statement, asked defendant to read the statement, and

then asked him if there were any inconsistencies in the statement or anything he wished to

change. Detective Jones testified that defendant never indicated that the statement was incorrect

or that it was incomplete in any way. The defendant then signed the statement. Detective Jones

noted that at no time during his interaction with defendant did defendant ever ask to speak to an

attorney, nor did defendant request that he be allowed to make a phone call.4

       Detective Spremulli also testified at the suppression hearing. Detective Spremulli’s

testimony corroborated the testimony of Det. Jones. Specifically, Det. Spremulli testified that he

was present when defendant read the rights form, indicated to the officers that he understood the

contents of the form, and initialed and signed the rights form. Detective Spremulli’s recollection

of defendant’s confession was substantially the same as that of Det. Jones. Detective Spremulli

also testified that he did not recall defendant asking for a lawyer, nor did he recall anyone

coming into the interview room to tell the officers about a telephone call.

       The defendant’s version was at variance with the testimony of the police detectives.

According to defendant, after he was first arrested and while still in handcuffs, ten to fifteen

officers “kept saying[,] * * * did you resist arrest? Did he resist arrest? * * * I hope he does, I

hope he does, I’m really in the mood to mess him up. They kept saying, I want to mess him up, I

want to fuck him up.” He testified that the officers were “fingering their Billy clubs and putting

their hands on their guns and stuff * * *.” The defendant stated that he “was afraid they were

going to beat the hell out of [him]” and that he felt “intimidated.” The defendant testified that,

when he arrived at the station, officers further threatened him about what he could expect from

4
  Detective Jones did, however, testify that the booking sheet was marked “phone call, no[,]”
indicating, according to the officer, that defendant “didn’t choose to make a phone call.”
                                               -4-
the other inmates at the prison, which made him think that he “was going to die.” The defendant

stated that, while at the police station, he asked an officer if he could make a phone call;

however, because the telephone number of the person he wished to call was on his mobile phone,

the officer allowed defendant to make one phone call from his mobile phone. The defendant

testified that he called his mother and asked her to call his cousin and ask the cousin to obtain a

lawyer for him.

       The defendant’s testimony concerning the interview with Det. Jones and Det. Spremulli

also differed from that of the detectives. He testified that, numerous times before he was shown

the rights form, he asked for a lawyer. He testified that Det. Jones ignored his requests and kept

pestering him about the incident. The defendant testified that he signed the rights form because

he was scared, tired, and “afraid that the judge was going to decide [he] was guilty if [he] didn’t

give [his] side of the story.” He also told the court that, while being questioned, another officer

came into the room where he was being questioned and said something to Det. Jones about a

phone call. The defendant admitted to giving a statement to the police and signing it, but he

stated that he never read it and only signed it because he “was afraid not to.” However, on cross-

examination, defendant admitted that he understood he did not have to say anything to the

officers but spoke with Det. Jones anyway.

       The defendant’s mother also testified at the suppression hearing. She testified that, on

January 30, 2011, she received a call from defendant, requesting that she obtain a lawyer for him.

She testified that she told defendant that she would contact his cousin to obtain a lawyer for him;

she then called defendant’s cousin, who agreed to help. The defendant’s cousin also testified and

stated that she contacted Attorney Priscilla DiMaio (Attorney DiMaio), who agreed to represent

defendant.



                                               -5-
       Lastly, Attorney DiMaio testified. Attorney DiMaio testified that, on January 30, 2011,

at approximately 9:45 in the morning, she called the East Providence police department,

identified herself as an attorney who was trying to contact defendant, and asked to speak to a

detective. She stated that she also asked to speak with defendant, but her request was denied.

She testified that she told a detective “to let [defendant] know that [she had] called, and * * * not

to give a statement.” We note that the record discloses that defendant signed the waiver of rights

form at 9:40 that morning.

       At the conclusion of testimony and after hearing counsels’ arguments, the trial justice

rendered a bench decision. The trial justice denied the motion to suppress, declaring that, based

on the record before her, defendant’s statement was voluntary and that defendant had not been

deprived of his right to counsel. With respect to whether the statement was voluntary, the trial

justice found defendant’s testimony “implausible,” “unbelievable,” and “far-fetched.” “Viewing

all the evidence and under the totality of the circumstances[,]” the trial justice found that

defendant’s statement was not coerced and that defendant knowingly, intelligently, and

voluntarily waived his rights. Also, with respect to defendant’s argument that he was deprived

of his right to counsel, the trial justice, citing State v. Burbine, 451 A.2d 22 (R.I. 1982), noted

“that the effort by third parties to retain counsel for the defendant is entirely irrelevant to whether

the defendant asked for and was denied the right to counsel.” See id. at 27-28. The trial justice

went on to find “the detectives to be more credible than the defendant in testifying that the

defendant never did request counsel.” Specifically, the trial justice found “it incredible that such

numerous requests [for a lawyer] were made * * * and fell on deaf ears * * *.” The trial justice

determined that the state had established by clear and convincing evidence that defendant did not

request an attorney and, therefore, was not deprived of his right to counsel.



                                                 -6-
       Before this Court, defendant asserts that the trial justice erred in denying his motion to

suppress his statement to police, arguing that his statement was not voluntary. “Both the Rhode

Island and the United States Constitutions bar the use of a defendant’s involuntary statements in

a criminal trial.” State v. Bojang, 83 A.3d 526, 532 (R.I. 2014) (quoting State v. Bido, 941 A.2d

822, 835 (R.I. 2008)). “In order for the trial justice to admit a defendant’s statement at trial, ‘the

state must establish, by clear and convincing evidence, that the defendant knowingly and

intelligently waived his or her right against self-incrimination and that the statement was

voluntary.’” Id. at 533 (quoting State v. Monteiro, 924 A.2d 784, 790 (R.I. 2007)). “This inquiry

‘requires an analysis of the totality of the circumstances surrounding the interrogation.’” Id.

(quoting State v. Jimenez, 33 A.3d 724, 734 (R.I. 2011)). “This Court applies the following two-

step review of a trial justice’s finding of voluntariness:
               ‘First, we review the trial justice’s findings of historical fact with
               deference, and we will not overturn those findings unless they are
               clearly erroneous. * * * Second, because this issue is of
               constitutional dimension, we accept the historical facts and
               credibility determinations, and we then conduct de novo review of
               the trial justice’s conclusion that the confession was voluntary.’”
               Id. (quoting Monteiro, 924 A.2d at 790).

       After examining the record in this case, we are satisfied that defendant’s confession was

voluntary and that the trial justice did not err when she refused to suppress the confession. The

evidence presented at the suppression hearing disclosed that Det. Jones advised defendant of his

rights, both orally and in writing. The defendant initialed and signed the waiver of rights form

that was introduced into evidence. Detective Jones testified that defendant appeared alert, and

both Det. Jones and Det. Spremulli testified that defendant acknowledged that he understood his

rights. Finally, defendant himself testified that he knew he did not have to say anything to the

detectives, but he nevertheless proceeded to speak with the detectives and then to sign the

statement.

                                                -7-
       Although the trial justice set forth her decision in a comprehensive bench ruling, she did

err when she stated that “defendant never testified that his mother, aunt, and/or cousin were in

the process of retaining an attorney * * * [n]or did the defendant testify that he, in fact, had

already made a call to his mother requesting that she procure an attorney for him.” The record

reveals that defendant did testify about the phone call to his mother. Nonetheless, this error was

not material and has no impact on our decision given the appropriate factual findings and

credibility determinations made by the trial justice in view of the totality of the circumstances.5

The trial justice specifically found that defendant did not invoke his right to counsel. The trial

justice rejected defendant’s argument that the police officers threatened him or deprived him of

his right to counsel. The trial justice concluded, after analyzing the totality of the circumstances,

that defendant knowingly, intelligently, and voluntarily waived his rights and spoke to the police.

       In light of the trial justice’s findings of historical fact and credibility determinations,

which we review with deference, we are satisfied that the trial justice did not misconceive or

overlook material evidence, nor did she err in her conclusions. Our de novo review also satisfies

us that defendant’s confession was given voluntarily.

       Finally, we pause to note that defendant also argued that the trial justice erred in denying

his motion to suppress because he “was denied his right to a confidential phone call pursuant to

R.I.G.L. § 12-7-20.” General Laws 1956 § 12-7-20 provides that a person who is arrested “shall

be afforded, as soon after being detained as practicable, * * * the opportunity to make use of a

telephone for the purpose of securing an attorney * * *.” Here, defendant testified that, after he


5
  The defendant testified that he was given an opportunity to make a phone call and did make a
phone call. The detectives testified that the booking sheet was marked “phone call, no[,]”
indicating that defendant “didn’t choose to make a phone call.” Whether or not the notation on
the booking sheet meant that defendant did not make a phone call from a police phone is
irrelevant to our analysis. It is not disputed that defendant did in fact make a telephone call to his
mother.
                                                -8-
was arrested and transported to the East Providence police station, he made a phone call to his

mother and requested that she assist him in obtaining a lawyer by contacting a cousin.

Accordingly, we deem this argument without merit.

                                  Testimony of Dr. Goldberg

       Next, defendant asserts that the trial justice erred when she allowed Dr. Goldberg to

testify regarding what defendant characterized as “physical examination, diagnosis, and

treatment of penetrative first degree sexual assault[,]” as contrasted with the second-degree

sexual assault of which he was accused. During trial, the state sought to introduce the testimony

of Dr. Goldberg, an attending physician in the Child Protection Program at Hasbro who had

examined Sarah on the night of the incident. At trial, Dr. Goldberg discussed her examination of

the child, presented certain disclosures that Sarah made during her examination, and explained

what was meant by an examination that was found to be normal. Doctor Goldberg testified that,

on January 29, 2011, Sarah, in describing the incident and her physical condition, had told her

“she felt wet,” a symptom which, Dr. Goldberg explained, prompted her to evaluate the child for

an acute sexual assault. Next, Dr. Goldberg testified that Sarah had some redness in her genital

examination but that the rest of her physical examination appeared to be normal, which she

explained to the jury meant that she saw no specific abnormalities. Doctor Goldberg went on to

explain that a normal finding does not necessarily mean that the child was not abused. Although

defense counsel objected numerous times throughout Dr. Goldberg’s testimony, these objections

were grounded on lack of materiality. Significantly, the witness was asked, without objection:

“[a]nd that normal examination in your mind at the time, can you say for certain whether or not

she was touched in the manner that you understood?” To which Dr. Goldberg replied, “[Sarah’s]

normal examination does not exclude the possibility of sexual abuse, or even penetration, in my



                                              -9-
mind.” Not only was there no objection to this question, there was no motion to strike this

answer.

       On appeal, defendant contends that the trial justice erred in admitting this testimony

because it was irrelevant, beyond the scope of proper expert testimony, and substantially

prejudicial. It is well settled that this Court will “review a trial justice’s decision admitting or

excluding evidence under an abuse of discretion standard.” State v. Covington, 69 A.3d 855, 862

(R.I. 2013) (quoting State v. Brown, 42 A.3d 1239, 1242 (R.I. 2012)). “We will reverse a trial

justice’s ruling on the admissibility of evidence only where ‘it constitutes a clear abuse of

discretion.’” Id. (quoting Brown, 42 A.3d at 1242).

       After a thorough examination of the record, this Court concludes that defendant failed to

preserve this issue for appellate review. We note at the outset that, prior to Dr. Goldberg’s

testimony, defense counsel expressly agreed that “[Dr. Goldberg could] testify as to what the

absence of any injuries means, and [could] also testify as to the result of her examination.”

During Dr. Goldberg’s direct examination she was asked, “[a]nd that normal examination in your

mind at the time, can you say for certain whether or not she was touched in the manner that you

understood?” To which Dr. Goldberg answered, “[h]er normal examination does not exclude the

possibility of sexual abuse, or even penetration, in my mind.” As noted, defense counsel did not

object to the question, or move to strike the answer. Therefore, according to this Court’s “raise-

or-waive” doctrine, we deem defendant’s argument that the trial justice erred in permitting Dr.

Goldberg to testify waived.6 However, were this issue properly preserved before the Court, we

are convinced that Dr. Goldberg’s testimony—which was equivocal at best—was not unduly



6
  See Berard v. HCP, Inc., 64 A.3d 1215, 1219 n.2 (R.I. 2013) (noting that the Court “shall ‘not
review issues that were not presented to the trial court in such a posture as to alert the trial justice
to the question being raised[.]’” quoting State v. Kluth, 46 A.3d 867, 876 (R.I. 2012)).
                                                 - 10 -
prejudicial or implied that defendant engaged in sexual penetration, as the trial justice instructed

the jury “that there is no evidence in this case of the type of conduct that this doctor just referred

to * * *.” It is also significant that defendant was not charged with first-degree sexual assault

and that he, through his confession, admitted to improperly touching Sarah, the act that led to the

charge of second-degree child molestation for which he was convicted.

       In addition, “because the state bears the burden of proving each element of the charge

beyond a reasonable doubt, it has the right to present evidence establishing those elements in its

case in chief.” State v. Marmolejos, 990 A.2d 848, 852 (R.I. 2010). Here, the child’s disclosure

to Dr. Goldberg, about feeling “wet,” prompted the physical examination about which the

witness testified.   Thus, the state was within its rights to present testimony about the

examination.

                                Motion for Judgment of Acquittal

       Lastly, defendant asserts that the trial justice erred in denying his motion for judgment of

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

Court applies the same standard as the trial justice.’” State v. Long, 61 A.3d 439, 445 (R.I. 2013)

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

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

insufficient to establish the defendant’s guilt beyond a reasonable doubt.” Id. (quoting State v.

Heredia, 10 A.3d 443, 446 (R.I. 2010)).         “If, however, a reasonable juror could find the

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

10 A.3d at 446).

       Viewing the evidence “in the light most favorable to the state” and “giving full credibility

to the state’s witnesses,” we conclude that sufficient evidence existed to prove, beyond a



                                                - 11 -
reasonable doubt, that the defendant committed one count of second-degree child molestation, in

violation of § 11-37-8.3. See Lynch, 19 A.3d at 56. In this case, the six-year-old child took the

stand at trial and testified that, on the night of the incident, she woke up, felt something on her

vagina, and opened her eyes to the defendant standing at her bed. Sarah’s mother also testified at

trial and corroborated the child’s statements and the events of that night. According to Sarah’s

mother, on January 29, 2011, she had put her daughter to bed with her jeans and underwear

pulled up to her waist. At approximately one o’clock in the morning, she saw someone leaving

her daughter’s room; and, when she went into the room, she discovered that her daughter’s pants

and underwear had been pulled down below her waist. She testified that she took Sarah into her

room, locked the door, and asked her if the defendant touched her, to which Sarah replied, “yes.”

Doctor Goldberg testified that Sarah told her that the defendant had been in her room that night

and that “she felt wet.” Further, Det. Jones also testified at trial and read the defendant’s sworn

statement, which stated:

               “On January 28, 2011, I was out drinking * * *. Then I went to
               check on [Sarah]. I noticed that she had jeans on, and she looked
               very uncomfortable. * * * I went over to [her] and pulled her jeans
               down. The jeans were so tight that her underpants came down
               with the jeans. * * * I was always curious if a young girl felt the
               same as a woman. * * * After [Sarah’s] underpants came down
               with her jeans, I saw her vagina. * * * So I touched the outside of
               [her] vagina with my hand.”

       “A person is guilty of a second degree child molestation sexual assault if he or she

engages in sexual contact with another person fourteen (14) years of age or under.” Section 11-

37-8.3. Because we are satisfied that the state presented ample evidence that Sarah was six years

old when the defendant touched her vagina, in violation of § 11-37-8.3, we conclude that there

was sufficient evidence to withstand the defendant’s motion for judgment of acquittal and to

support the conviction. Accordingly, the trial justice did not err when she denied the defendant’s

                                              - 12 -
motion for a judgment of acquittal.

                                         Conclusion

       For the reasons articulated in this opinion, we affirm the judgment below. The papers in

this case may be 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. Joseph Armour.

CASE NO:              No. 2013-110-C.A.
                      (P2/11-779A)

COURT:                Supreme Court

DATE OPINION FILED: March 17, 2015

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

WRITTEN BY:           Associate Justice Maureen McKenna Goldberg

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Kristin E. Rodgers

ATTORNEYS ON APPEAL:

                      For State: Lauren S. Zurier
                                 Department of Attorney General

                      For Defendant: Kara J. Maguire
                                     Office of the Public Defender
