November 14, 2017



                                                                      Supreme Court

                                                                      No. 2016-105-C.A.
                                                                      (P2/15-118AG)


                           State                    :

                            v.                      :

                    Douglas J. Huntley.             :



                        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
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                                                                   Supreme Court

                                                                   No. 2016-105-C.A.
                                                                   (P2/15-118AG)


                   State                       :

                     v.                        :

            Douglas J. Huntley.                :


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

                                          OPINION

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

October 3, 2017, pursuant to an order directing the parties to appear and show cause why the

issues raised in this appeal should not be summarily decided. The defendant, Douglas J. Huntley

(Huntley or defendant), appeals from a judgment of conviction entered in the Superior Court,

following a jury trial. The defendant was convicted of possession of a controlled substance;

possession of a firearm after having been convicted of a crime of violence; carrying a firearm

without a license; breaking and entering a dwelling without consent; and conspiracy to commit

the crime of breaking and entering. The defendant assigns error to the decision of the trial justice

denying the defendant’s motion for judgment of acquittal on the conspiracy count and his refusal

to grant a new trial on the breaking-and-entering offense. After hearing the arguments of counsel

and examining the memoranda submitted by the parties, we are of the opinion that good cause

has not been shown and that this case should be decided without further briefing or argument.

We affirm the judgment of the Superior Court.




                                             -1-
                                       Facts and Travel

       Sabrina Weston (Weston) was the second-floor tenant in a three-story apartment building

located at 38 Bergen Street in Providence, Rhode Island. On April 23, 2014, at approximately

7:30 p.m., Weston heard a loud knock at the front entrance to the apartment building.1 When

Weston looked out her window, she saw two men who were unknown to her. From the second

floor Weston asked if she could help; the men responded that they were looking for the

“gentleman on the first floor.” Weston informed the strangers that the first-floor tenant—whom

she identified at trial as “Troy Grant” or “Troy Tunstall”—was not home. She then overheard

the men discuss “jimmying the lock” and watched as they attempted to gain entrance by

manipulating the lock of the front door. After this attempt proved unsuccessful, the men walked

around to the back and peered into the first-floor apartment windows. The men began talking to

each other, and Weston testified that “they mentioned what they were going to do and then

proceeded to do that.” Specifically, Weston overheard one of the men say “go pop the front

lock” as the other man thereafter pushed open the window to the first-floor apartment; he entered

through the window, and Weston called 9-1-1 to report a break-in. The man who entered

through the window opened the front door for the other man. Shortly thereafter, Weston saw one

man leave the apartment building.

       Two police officers, Giuseppe Scarcello (Officer Scarcello) and Michael Gammino

(Officer Gammino) (collectively the officers), were the first to respond.       Officer Scarcello

testified that when he first arrived he saw the open window on the first floor. After the officers

entered the apartment through the front door, Officer Gammino noted that the door to the first-




1
  Weston testified that the front entrance of the building leads to a common entranceway and that
the front entrance door automatically locks.


                                             -2-
floor apartment was ajar. The apartment was dark and had sparse furnishings. The officers

made their presence known, but received no response.

       Upon entering the kitchen, they observed a man’s buttocks protruding from beneath the

kitchen table, with a firearm next to him and a second firearm on the kitchen counter. Officer

Gammino testified that he asked the individual to show his hands, but he neither moved nor

responded. The officers apprehended the suspect and located plastic bags containing crack

cocaine in the suspect’s front jacket. The man was identified as defendant.

       The defendant was charged in a ten-count criminal information2 that proceeded to trial in

October of 2015. After a five-day jury trial, defendant was convicted of simple possession of a

controlled substance; possession of a firearm after having been convicted of a crime of violence;

carrying a firearm without a license; breaking and entering; and conspiracy to commit breaking

and entering. The defendant was acquitted of the remaining charges. Thereafter, defendant

moved for a new trial and for a judgment of acquittal as to count 9, breaking and entering, and

count 10, conspiracy to commit breaking and entering. On November 9, 2015, defendant’s post-

trial motions were heard and denied by the trial justice, and the trial justice sentenced defendant

to a total of twenty years with twelve years to serve and eight years suspended with probation.

The defendant timely appealed to this Court.3



2
  The charges included count 1 of possession of a controlled substance with the intent to deliver;
counts 2 and 3, possession of a firearm after having been previously convicted of a violent crime;
count 4, possession of a stolen firearm; counts 5 and 6, carrying a firearm without a license;
counts 7 and 8, possession of a firearm while in possession of a controlled substance with the
intent to deliver; count 9, breaking and entering into the apartment of Troy Tunstall without
consent; and count 10, conspiracy to commit the crime of breaking and entering. The state later
dismissed counts 7 and 8, and count 1 was amended to a reduced charge of simple possession of
a controlled substance.
3
 In September 2016, this Court remanded this case to the Superior Court for consideration of
defendant’s motion to correct a clerical error in the judgment. The appeal was held in abeyance


                                             -3-
                                        Standard of Review

       “When this Court reviews motions for judgment of acquittal, it applies the same standard

as the trial justice.” State v. Enos, 21 A.3d 326, 329 (R.I. 2011) (citing State v. Brown, 9 A.3d

1232, 1237 (R.I. 2010)). “As such, we ‘must view the evidence in the light most favorable to the

state, without weighing the evidence or assessing the credibility of the witnesses, and draw

therefrom every reasonable inference consistent with guilt.’” Id. (quoting State v. Mercado, 635

A.2d 260, 263 (R.I. 1993)). “If the totality of the evidence so viewed and the inferences so

drawn would justify a reasonable juror in finding a defendant guilty beyond a reasonable doubt,

the motion for the judgment of acquittal must be denied.” Id. (quoting State v. Forbes, 779 A.2d

637, 641 (R.I. 2001)).

                                              Analysis

       On appeal to this Court, defendant raises two issues: (1) that the trial justice erred in

denying his motion for a judgment of acquittal on count 10, conspiracy to commit breaking and

entering of the first-floor apartment located at 38 Bergen Street; and (2) that the trial justice erred

by denying his motion for judgment of acquittal as to count 9, the breaking-and-entering charge.

We reject these arguments.

                                                  A

                  Count 10—Conspiracy to Commit Breaking and Entering

       We first address the defendant’s contention that the trial justice erred in denying his

motion for a judgment of acquittal of conspiracy to commit breaking and entering, arguing that

there was insufficient evidence for a jury to find beyond a reasonable doubt that he conspired to

commit the act of breaking and entering.


pending consideration for that motion. Thereafter, an amended judgment was entered on
September 20, 2016, and the papers were timely returned to this Court.


                                               -4-
       A criminal conspiracy is an “agreement by ‘two or more persons to commit an unlawful

act or to perform a lawful act for an unlawful purpose.’” State v. Abdullah, 967 A.2d 469, 474-

75 (R.I. 2009) (quoting State v. Lassiter, 836 A.2d 1096, 1104 (R.I. 2003)). To convict the

accused of the crime of conspiracy, “the prosecution must prove the existence and scope of the

unlawful agreement beyond a reasonable doubt.” Id. at 475 (citing State v. Day, 925 A.2d 962,

975 (R.I. 2007)). The essence of a criminal conspiracy is the agreement to commit an unlawful

act. The evidence presented may be solely circumstantial such that it may be “inferentially

established by proof of the relations, conduct, circumstances, and actions of the parties.” State v.

Disla, 874 A.2d 190, 197 (R.I. 2005) (quoting Lassiter, 836 A.2d at 1104).

       When passing upon a motion for judgment of acquittal, in accordance with Rule 29 of the

Superior Court Rules of Criminal Procedure, the trial justice is required to view the evidence in

the light most favorable to the prosecution, according “full credibility to the state’s witnesses,

and draw[ing] therefrom all reasonable inferences consistent with guilt.” State v. Fleck, 81 A.3d

1129, 1133 (R.I. 2014) (quoting State v. Cardin, 987 A.2d 248, 250 (R.I. 2010)).

       At trial, the state presented Weston, the second-floor neighbor and eyewitness to the

crimes, as well as the two police officers who apprehended defendant. After Weston informed

the suspects that the first-floor tenant was not at home, she overheard defendant and his

counterpart discuss entering the apartment by “jimmying the lock” to the first door and watched

as they attempted to manipulate the lock. Weston testified that, when their efforts proved

unsuccessful, the men then went around to the back of the house and she overheard one man

direct the other to “go pop the lock.” She also watched as they opened a window and one of the

men climbed through the window and opened the front door for his counterpart. Additional

evidence presented at trial established that the police officers discovered defendant in the first-




                                             -5-
floor apartment hiding in the dark under a table with a firearm in his immediate vicinity. This

testimony, when viewed in the light most favorable to the state, is sufficient to establish beyond a

reasonable doubt that defendant, and his unidentified counterpart, conspired to unlawfully enter

the apartment. The state presented a witness who overheard the suspects discuss their plans. We

are therefore satisfied that the statements overheard by the second-floor tenant constitute direct

evidence of the conspiracy. Nothing more is required.

       The defendant also attacks the conviction on the ground that the state did not identify

defendant’s co-conspirator.    However, we have recently held that there can be sufficient

evidence to establish a conspiracy conviction despite the fact that the co-conspirators identities

were unknown. See State v. Tully, 110 A.3d 1181, 1195 (R.I. 2015). Here, the record clearly

reflects that defendant entered into an agreement with another person to unlawfully enter the

apartment. They collectively agreed to disable the lock to the front door and attempted to do so.

They were also observed opening a first-floor window in order to gain entrance. The fact that

the co-conspirator was unidentified is of no moment to the sufficiency of the evidence in support

of defendant’s conspiracy conviction.

       The defendant further contends that the evidence to support a conspiracy charge was

nothing more than a pyramiding of inferences that was based on speculation and conjecture. In a

criminal prosecution, the state may seek to establish guilt “by a process of logical deduction,

reasoning from an established circumstantial fact through a series of inferences to the ultimate

conclusion of guilt.” State v. Vargas, 21 A.3d 347, 353 (R.I. 2011) (quoting State v. Caruolo,

524 A.2d 575, 581-82 (R.I. 1987)).        However, inferences cannot be drawn from another

inference that rests upon an ambiguous fact that is capable of supporting other reasonable

inferences clearly inconsistent with guilt. See State v. Cipriano, 21 A.3d 408, 425 (2011); see




                                             -6-
also Waldman v. Shipyard Marina, Inc., 102 R.I. 366, 374, 230 A.2d 841, 845 (1967) (“an

inference resting on an inference drawn from established facts must be rejected as being without

probative force where the facts from which it is drawn are susceptible of another reasonable

inference”); In re Derek, 448 A.2d 765, 768 (R.I. 1982) (holding that reasonable inferences

cannot be drawn from conjecture or speculative evidence).

        The defendant argues to this Court that a judgment of acquittal on the crime of

conspiracy should have been granted because, he contends, “the state had to prove that

[defendant] and another person had entered into an agreement to illegally break and enter the

dwelling of another.” In a somewhat unorthodox approach to the crime of conspiracy, defendant

posits that the state was required first to prove that the entry was unlawful and second, that the

suspects, “knowing it was unlawful, agreed to enter the apartment anyway.” This contention is

without merit. The crime of conspiracy consists of an agreement between “two or more persons

to commit an unlawful act or perform a lawful act for an unlawful purpose.” Lassiter, 836 A.2d

at 1104 (quoting State v. Mastracchio, 612 A.2d 698, 706 (R.I. 1992)). The crime is complete

when the agreement is made. Conspiracy does not require an overt act or even an attempt to

perform an act in furtherance of the agreement.

       In the case at bar, abundant and direct evidence was introduced from which a factfinder

could find—without drawing any inferences—that these suspects agreed to enter the dwelling.

They were overheard discussing how to break in, and an eyewitness saw them enter the

apartment through the window. To the extent that defendant challenges whether there was an

ambiguous inference that the intruders knew that the entry was unlawful (that is, they entered

without consent) this would constitute the only inference, drawn from the eyewitness testimony

and “by proof of the relations, conduct, circumstances, and actions of the parties.” Lassiter, 836




                                             -7-
A.2d at 1104 (quoting Mastracchio, 612 A.2d at 706). This inference obviously could be drawn

from the direct evidence that defendant was located hiding in a dark kitchen, under the table,

with a firearm. The defendant’s suggestion that the finding of guilt in this case was contingent

upon a pyramiding of ambiguous inferences is not supported by the record or the law of

conspiracy and is incorrect. Because this is not a case of one or more ambiguous inferences, we

are satisfied that the trial justice was correct in denying the defendant’s motion for a judgment of

acquittal as to count 10.

                                                 B

                            Count Nine-Breaking and Entering a Dwelling

       The defendant also argues that the trial justice erred in denying his motion for judgment

of acquittal as to count 9 because the state failed to prove that the defendant did not have consent

to be in the apartment. In support of this contention, the defendant argues that there was a

material variance between the pleadings and the evidence causing the jury to be misled at trial.

A review of the record reveals that the defendant did not properly raise this argument before the

trial justice. Therefore, we deem this issue waived. See State v. Barros, 148 A.3d 168, 174-75

(R.I. 2016).

                                            Conclusion

       For all the aforementioned reasons, we affirm the judgment of conviction. The papers in

this case shall be remanded to the Superior Court.




                                              -8-
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        State v. Douglas J. Huntley.
                                     No. 2016-105-C.A.
Case Number
                                     (P2/15-118AG)
Date Opinion Filed                   November 14, 2017
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice Maureen McKenna Goldberg

Source of Appeal                     Providence County Superior Court

Judicial Officer From Lower Court    Associate Justice Robert D. Krause
                                     For State:

                                     Virginia M. McGinn
                                     Department of Attorney General
Attorney(s) on Appeal
                                     For Defendant:

                                     Angela M. Yingling
                                     Office of the Public Defender




SU-CMS-02A (revised June 2016)
