                                                 Supreme Court

                                                 No. 2010-237-C.A.
                                                 (P1/08-3656A)


    State                     :

     v.                       :

Roger Morin.                  :




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

                                                                    No. 2010-237-C.A.
                                                                    (P1/08-3656A)


                    State                       :

                     v.                         :

               Roger Morin.                     :


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

                                           OPINION

       Justice Indeglia, for the Court. Roger Morin (Morin or defendant) appeals from a

Superior Court judgment of conviction for first-degree child molestation.            On appeal, he

contends that the trial justice erred in refusing to suppress a statement he made to the Warren

police following his arrest. He also ascribes error to the trial justice‟s decision to admit that

statement without first redacting certain portions. Finally, he argues that the trial justice erred in

denying his motion for a new trial. For the reasons set forth in this opinion, we affirm the

judgment of the Superior Court.

                                                    I

                                         Facts and Travel

       In December 2008, a grand jury returned a secret indictment charging Morin with sixteen

counts of child molestation sexual assault, in violation of G.L. 1956 §§ 11-37-8.1 and 11-37-8.3.1




1
  Under G.L. 1956 § 11-37-8.1, “[a] person is guilty of first degree child molestation sexual
assault if he or she engages in sexual penetration with a person fourteen (14) years of age or
under.” Under § 11-37-8.3, “[a] person is guilty of a second degree child molestation sexual
                                                -1-
Sally,2 Morin‟s stepdaughter, was identified as the victim in count 1 (first-degree child

molestation sexual assault), count 2 (second-degree child molestation sexual assault), and count

3 (second-degree child molestation sexual assault), all of which concerned conduct that allegedly

occurred between September 28, 1989, and September 28, 1992.3 Four additional victims were

identified in the remaining counts.

       Before trial, Morin successfully moved to sever counts 1 through 3 from the remaining

thirteen counts, pursuant to Rule 14 of the Superior Court Rules of Criminal Procedure. This

appeal concerns only counts 1 through 3. His motion in limine to preclude the introduction of

evidence related to the remaining thirteen counts was also granted.

       Morin also moved to suppress a statement he made to the Warren police on September

28, 1992.4 A hearing on that motion was held before a justice of the Superior Court on October

29-30, 2009.5 Two witnesses testified at the suppression hearing: Marta Brandstromskelding, a

child protective investigator employed by the Department of Children, Youth & Families




assault if he or she engages in sexual contact with another person fourteen (14) years of age or
under.”
2
  Because the victim was a minor when the alleged offenses occurred, we use a pseudonym to
protect her privacy. See § 11-37-8.5 (mandating confidentiality of records concerning victims of
child molestation sexual assault).
3
  According to Morin‟s sentencing memorandum, he was originally charged with these offenses
in 1992. The state “worked with the Morin family through the auspices of [the Department of
Children, Youth & Families],” and the charges were eventually dismissed. Morin raised no
objection to the refiling of the charges via indictment in 2008. There is no statute of limitations
for either first- or second-degree child molestation sexual assault. G.L. 1956 § 12-12-17(a).
4
  Morin also moved to suppress the statements he made to Marta Brandstromskelding. Because
he initially pressed this argument in his prebriefing statement to this Court but abandoned it in
his full brief, we do not address it. See State v. Rolon, 45 A.3d 518, 519 n.1 (R.I. 2012)
(deeming arguments raised in prebriefing statement but not in full brief to be waived, citing
Article I, Rule 16(a) of the Supreme Court Rules of Appellate Procedure).
5
  Because the justice who presided over the suppression hearing later presided over Morin‟s trial,
we refer to him as the trial justice throughout this opinion.
                                               -2-
(DCYF); and Det. Christopher J. Dicomitis, a former member of the Warren police.6 Below, we

summarize the testimony adduced at that hearing.

                                                A

                                       Motion to Suppress

        Brandstromskelding testified that DCYF received a call in September 1992 from an

anonymous woman who reported concerns about Morin‟s behavior.                 To investigate this

information, Brandstromskelding went to Morin‟s home in Warren on September 25, 1992. That

day, she interviewed Morin, his wife, Elizabeth, and their children, including Sally.

        According to Brandstromskelding, DCYF received a phone call from a police officer on

the following day “notifying us of concerns that a mother and daughter had brought to his

attention.” Two days later, on September 28, 1992, Brandstromskelding returned to Morin‟s

home.     She first spoke with Sally, who told her that Morin had molested her.

Brandstromskelding then asked Morin if this was true. Morin eventually admitted to her that “he

had done some of these things to [Sally]” and described this behavior as a “habit.”

        Brandstromskelding testified that, during this conversation with Morin, his wife was “in

and out of the kitchen,” where they were speaking, and that she was listening in from time to

time. At some point, Brandstromskelding called the police to report that Morin had admitted to

molesting Sally. After Morin‟s wife became “agitated” and slammed the blade of a “very large

butcher knife” into the kitchen table in front of Morin, Brandstromskelding called the police a

second time and asked them to come immediately.




6
 At the time of the suppression hearing, Det. Dicomitis was employed as a detective with the
Rhode Island State Police.
                                               -3-
       About two minutes after Brandstromskelding placed the second phone call to the police,

Officer Green arrived at Morin‟s home.7 Brandstromskelding greeted him at the front door and

spoke with him outside. She told him about what Sally and Morin had both revealed to her and

about how Morin‟s wife had reacted by slamming the knife into the table. Officer Green then

entered the residence and placed Morin under arrest. According to Brandstromskelding, Officer

Green read Morin his Miranda rights upon arresting him.

       Detective Dicomitis testified that, in 1992, he was a detective with the Warren police

department. On September 28, 1992, Det. Dicomitis advised Morin of his Miranda rights by

having him read and sign a standardized form. After Morin waived his Miranda rights, Det.

Dicomitis took a statement from him at the police station. In that statement, which was admitted

into evidence at the suppression hearing, Morin said that he had touched Sally‟s vagina on

several occasions over the previous six months. He explained that he had stopped doing this

“sometime [sic] ago” because “[t]here was no thrill” in it for him.

       At the conclusion of the testimony, Morin argued that his statement to police should be

suppressed as the fruit of an illegal arrest. He urged the trial justice to reject New York v. Harris,

495 U.S. 14, 21 (1990), in which the United States Supreme Court declined to apply the

exclusionary rule to statements obtained after a warrantless arrest in a home. In response, the

prosecutor argued that Harris should control the trial justice‟s decision. He also suggested that,

under the factors articulated in State v. Jennings, 461 A.2d 361, 368 (R.I. 1983), the exclusionary

rule should not apply to Morin‟s statement to police.




7
  It appears that Officer Green was identified only by his surname in the record. He did not
testify at the suppression hearing; the prosecutor advised the court that “without refreshing his
recollection from documents,” Officer Green was unable to remember “anything” about Morin‟s
arrest.
                                                -4-
          The trial justice stated that Harris “ought to control.” He found that Officer Green

“[p]lainly” had “probable cause to arrest [Morin].” Crediting Brandstromskelding‟s testimony

regarding the confrontation between Morin and his wife, the trial justice found that Officer

Green “would have truly been derelict in his responsibilities if he did not act as he acted [in

arresting Morin].” Having concluded that Morin was legally arrested, the trial justice heard

argument regarding whether Morin had knowingly and voluntarily waived his Miranda rights.

He then concluded that the prosecution

                 “ha[d] satisfied its burden [to prove] by clear and convincing
                 evidence that [Morin] comprehended all of his Miranda rights and
                 voluntarily, without coercion of any kind on the part of the police,
                 decided to speak with the [police], and that his decision was a
                 product of his free and intelligent choice.”

Accordingly, he denied Morin‟s motion to suppress his statement to the police.

          Morin then moved to redact certain portions of that statement. Specifically, he sought to

redact the portion of the statement in which he had told police that he had sought counseling in

the past and that he “wish[ed] to seek further counseling” in connection with his sexual habits.

Additionally, he also asked the trial justice to redact two lines of the statement containing

extremely crude language.8 The trial justice rejected Morin‟s argument that he would be unfairly

prejudiced if the jury were allowed to consider the statement in its entirety. The case then

proceeded to trial.

                                                   B

                                                 Trial

          Jury selection began and concluded on November 2, 2009. That day, the state dismissed

count 3 under Rule 48(a) of the Superior Court Rules of Criminal Procedure. Counts 1 and 2



8
    We discuss the pertinent portion of Morin‟s statement in part III-B, infra.
                                                  -5-
(first- and second-degree child molestation, respectively) were tried before a jury on November

3-4, 2009. The state presented testimony from three witnesses: Sally, Brandstromskelding, and

Det. Dicomitis.

       Sally was the first witness to testify. In September 1992, she was eight years old and

lived with her mother, her younger siblings, and her stepfather, Morin. She testified that she and

her siblings would sometimes play “the naked game,” which she described as “just get[ting]

naked and run[ning] around like, you know, kids do.” She described an incident that occurred

sometime in or around September 1992, when she was playing the naked game with her siblings

in the living room. That day, when she was naked and sitting on Morin‟s lap, Morin touched her

vagina and digitally penetrated her.

       Sally described another incident that occurred around the same time period. After she

had a bad dream, Morin got into bed with her. At first, Sally testified that she “[didn‟t] really --

know if [Morin] touched [her] or not.” When asked where Morin‟s hands were during that

incident, Sally said that she “[didn‟t] really remember too much, but maybe like around my

waist.” Later, however, she testified that he had rubbed her vagina over her undergarments.

       In September 1992, Sally testified, she told her babysitter (whose name she could not

recall) about what had happened with Morin. She also remembered speaking with someone

named Marta about the abuse. She testified that she did not tell her mother about the incidents of

molestation because she “didn‟t think that [her mother] would believe [her].”

       On cross-examination, Sally stated that she did not remember anything about meeting

with Brandstromskelding, even after Morin‟s counsel attempted to refresh her recollection by

having her review Brandstromskelding‟s notes of their conversation. Sally also admitted that,




                                               -6-
during a pretrial proceeding, she had not mentioned the incident in the bedroom. She did not

recall going to the police station and speaking with Det. Dicomitis on September 28, 1992.

       Because the trial testimony of Brandstromskelding and Det. Dicomitis largely mirrored

their testimony at the suppression hearing, we discuss the relevant portions of their trial

testimony in our analysis rather than summarize their testimony in this portion of the opinion.

On cross-examination, both Brandstromskelding and Det. Dicomitis testified that Sally had not

told them about the incident in which Morin touched her in her bedroom.             Over Morin‟s

objection, his statement to police was admitted as a full exhibit through Det. Dicomitis.

       The state then rested. After the trial justice denied Morin‟s motion for a judgment of

acquittal, pursuant to Rule 29 of the Superior Court Rules of Criminal Procedure, Morin rested

as well. On November 4, 2009, the jury returned a verdict, finding Morin guilty on count 1 and

not guilty on count 2.

       Morin filed a motion for a new trial on November 17, 2009, pursuant to Rule 33 of the

Superior Court Rules of Criminal Procedure.9 The trial justice heard arguments on that motion

on January 27, 2010. Morin argued that the jury‟s verdict—guilty on count 1 and not guilty on

count 2—was “confused * * * and perhaps * * * logically inconsistent.” In response, the

prosecutor suggested that Morin‟s “acquittal on count 2 provides an additional measure of

comfort in the verdict itself.”

       The trial justice stated that he was “well satisfied that [Sally‟s] claim of digital

penetration was truthful.”        He also indicated that he was “completely satisfied, beyond a

reasonable doubt, that [Morin] engaged in this activity specifically for the purpose of sexual

9
 On December 17, 2009, one month after filing his original motion for a new trial, Morin filed
an amended motion for a new trial. Because Morin withdrew this amended motion on January
27, 2010, when the trial justice heard arguments on his original motion for a new trial, we do not
address it.
                                                 -7-
gratification or arousal.” Furthermore, he agreed with the prosecutor that Morin‟s acquittal on

count 2 strengthened, rather than weakened, his confidence in the verdict. The trial justice

concluded that, “based upon [his] independent assessment of the evidence, * * * [Morin] was

guilty beyond a reasonable doubt as to the charge of first-degree child molestation as alleged.”

Accordingly, he denied Morin‟s motion for a new trial.

          At a hearing on March 24, 2010, the trial justice sentenced Morin to forty years

imprisonment, with fifteen years to serve and twenty-five years suspended, with probation.

Judgment of conviction entered on June 14, 2010. Morin timely appealed to this Court.10

                                                   II

                                           Issues on Appeal

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

his motion to suppress evidence, which was directed at the statement he gave to Det. Dicomitis.

As he did below, he contends that this statement should be suppressed as the fruit of an unlawful

arrest.    Second, he maintains that the trial justice should have redacted a portion of that

statement, which he describes as “irrelevant and highly prejudicial.” Lastly, Morin argues that

the trial justice erred in denying his motion for a new trial. We address each of his contentions in

turn.




10
   Appeals filed prior to the entry of final judgment are considered timely. See State v.
DeRobbio, 62 A.3d 1113, 1118 n.7 (R.I. 2013) (citing Chapdelaine v. State, 32 A.3d 937, 941
n.1 (R.I. 2011)).
                                                  -8-
                                                 III

                                             Discussion

                                                  A

                                         Motion to Suppress

       In Payton v. New York, 445 U.S. 573, 576 (1980), the United States Supreme Court held

that “the Fourth Amendment * * * prohibits the police from making a warrantless and

nonconsensual entry into a suspect‟s home in order to make a routine felony arrest.” Relying on

Payton, Morin argues that the trial justice should have suppressed his statement to police as the

fruit of an illegal arrest. Although Payton, 445 U.S. at 590, explicitly authorized warrantless in-

home arrests made under “exigent circumstances,” Morin contends that the trial justice did not

“explicitly” find that exigent circumstances justified his arrest.

       Although the trial justice did not make an explicit finding of exigent circumstances, our

review of the record shows that this finding was implicit in his decision to deny Morin‟s motion

to suppress. The trial justice characterized Brandstromskelding as “a detached state officer” and

credited her description of the confrontation that ensued at Morin‟s residence after his wife

learned that he had admitted to molesting Sally. He also credited her testimony that she called

police and requested them to come immediately after Morin‟s wife slammed a butcher knife into

the kitchen table. He found that “with the overall heightened concern that had arisen out of

violence, * * * [Officer Green] would have truly been derelict in his responsibilities if he did not

act as he acted [in arresting Morin].”

       Likewise, we conclude that exigent circumstances justified Morin‟s warrantless arrest in

his home. Officer Green had received information that a violent confrontation had taken place

and that Morin‟s wife was (quite understandably) enraged after finding out that Morin had



                                                 -9-
molested Sally. As the trial justice noted, Morin‟s admissions to Brandstromskelding, which she

relayed to police, “[p]lainly” furnished probable cause to arrest him. The trial justice further

observed that “if anybody was to be removed [from the house] at that point, it seems to me it

would have been [Morin], who had caused the escalation of the violence as a result of [his]

statements * * *.” In these circumstances, Officer Green must have “ha[d] a reasonable belief

that his assistance [was] required to avert a crisis.”11 See State v. Goulet, 21 A.3d 302, 313 (R.I.

2011) (quoting Duquette v. Godbout, 471 A.2d 1359, 1362 (R.I. 1984)); see also State v. Portes,

840 A.2d 1131, 1137 (R.I. 2004) (“This Court is mindful that police are in the emergency service

business and they usually have little or no time to leisurely consider their options or engage in

protracted evaluation.”).

       Morin also urges this Court to reject New York v. Harris, 495 U.S. 14, 21 (1990), in

which the United States Supreme Court declined to apply the exclusionary rule to statements

obtained after a warrantless arrest in violation of Payton. In light of our conclusion that Morin

was validly arrested under Payton because exigent circumstances existed, we need not consider

whether the Rhode Island constitution requires us to apply a broader exclusionary rule. See In re

Brown, 903 A.2d 147, 151 (R.I. 2006) (“Neither this Court nor the Superior Court should

decide constitutional issues unless it is absolutely necessary to do so.”); see also State v. Werner,

615 A.2d 1010, 1014 (R.I. 1992) (“[S]tate courts should respect the manner in which [the Fourth

Amendment] is interpreted by the Supreme Court.”).



11
  In most cases, the testimony of the arresting officer should provide the basis for the conclusion
that he or she reasonably believed that exigent circumstances existed. Under the facts of this
case, we conclude that, although Officer Green did not testify at the suppression hearing, “the
circumstances, viewed objectively, justify [his] action[s]” because Brandstromskelding‟s
testimony sufficiently demonstrated the existence of exigent circumstances. See Brigham City,
Utah v. Stuart, 547 U.S. 398, 404 (2006) (quoting Scott v. United States, 436 U.S. 128, 138
(1978)).
                                               - 10 -
       Although Morin argues that the trial justice should have suppressed his statement to

police as the fruit of an unlawful arrest, he has not pressed on appeal any additional grounds for

suppression. Because we hold that Morin was validly arrested, and because we perceive no error

with the trial justice‟s conclusion that Morin knowingly, voluntarily, and intelligently waived his

Miranda rights, we affirm his decision to deny Morin‟s suppression motion.

                                                 B

                                            Redaction

       Rule 403 of the Rhode Island Rules of Evidence allows a trial justice to exclude relevant

evidence “if its probative value is substantially outweighed by the danger of unfair prejudice * *

*.” “[A] trial justice‟s discretion to exclude evidence under Rule 403 must be used sparingly.”

State v. DeJesus, 947 A.2d 873, 883 (R.I. 2008). He or she must exclude evidence that is

“marginally relevant and enormously prejudicial.” Id. This Court will affirm a trial justice‟s

evidentiary ruling under Rule 403 “absent an abuse of discretion.” DeJesus, 947 A.2d at 883.

       Morin moved to redact portions of his statement which contained references to

counseling; he also requested redaction of two lines which contained crude language. The

pertinent portion of his statement, including those two lines, is below:

               “Q: You freely admit that you have sexually touched your
                   daughter [Sally] and you feel that it is a problem that you
                   have. Is this statement correct [?]
               “A: Yes. And that I wish to seek further counseling.
               “ * * *
               “Q: Have you ever sort [sic] counseling before [?]
               “A: Yes, through the mental health center. I attended one session.
                   Let me explain. The sessions were discontinued because I
                   was referred to another doctor. The first doctor could not
                   handle the pressure.
               “Q: What was the problem that you sort [sic] counseling for[?]
               “A: Call it „paper pussey [sic],‟ magazines.
               “Q: What do you mean by „paper pussey [sic]‟[?]
               “A: I would cut the pictures out and masterbate [sic] to

                                               - 11 -
                       them. I just wanted to stop it. I stopped it all on my own.”

        After Morin argued that he would be unfairly prejudiced if the trial justice admitted his

statement to police without redacting the portion of his statement reproduced above, the trial

justice stated:

                          “I think it‟s part and parcel and relevant to what he
                  says. He * * * says the reason [he sought] counseling was,
                  * * * for „paper pussy‟ magazines; and, the officer says,
                  what do you mean by that? He says, it‟s to cut out and
                  masturbate with them. And, in the same breath he says, I
                  wanted to stop that and I stopped it on my own. The officer
                  says, why did you touch the children? And, he says,
                  because it was something new.
                          “I think these statements are quite relevant to the
                  rest of the statement; I‟m not going to redact them at all.
                  The motion to redact is denied.”

        Having considered the contested portion in the context of Morin‟s entire statement, as

well as the remainder of the evidence against him—including Sally‟s damning testimony—we

hold that the trial justice did not abuse his discretion in admitting the statement in its entirety.

Regarding the reference to “paper pussy,” any prejudice that may have inhered to Morin from

that crass and offensive phrase was undoubtedly overshadowed by the most prejudicial aspect of

his statement: his admission that he had molested his stepdaughter. While that phrase may well

have raised some eyebrows among the jury, Morin‟s explanation of why he molested Sally—

because “[i]t was something new” after he stopped masturbating to pornographic magazines—

was highly relevant evidence. Furthermore, as the trial justice recognized, the references to

counseling were “part and parcel” of Morin‟s explanation of his behavior.

        Morin claims that “[t]he distinct possibility existed that the jurors would be so disturbed

by learning of [his] private sexual activities, legal though they might be, that they would be

unfairly prejudiced against him and fail to analyze the evidence in an objective manner.”



                                                 - 12 -
However, his acquittal on count 2 proves that the jury did, in fact, analyze the evidence

objectively. The trial justice did not err in refusing to redact Morin‟s statement to police.

                                                 C

                                     Motion for a New Trial

        “When deciding whether to grant or deny a motion for a new trial, the trial justice acts as

a thirteenth juror.” State v. Navarro, 33 A.3d 147, 156 (R.I. 2011) (quoting State v. Pineda, 13

A.3d 623, 640-41 (R.I. 2011)). “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.” Id. (quoting Pineda, 13 A.3d at 641). If the trial justice has set forth

sufficient reasoning to support his or her ruling, this Court “accord[s] great weight” to that ruling

on appeal. Id. (quoting Pineda, 13 A.3d at 641). We will not reverse the trial justice‟s decision

unless “we are convinced that [he or she] committed clear error or * * * overlooked or

misconceived material and relevant evidence [relating] to a critical issue in the case.” Id. at 156-

57 (quoting Pineda, 13 A.3d at 641).

        Morin argues that “[Sally‟s] testimony as to the first[-]degree molestation was too vague

to support a conviction” and that she “was not a credible witness.” We disagree. Sally did have

some difficulty remembering the details of the bedroom incident; presumably, this is why the

jury acquitted Morin on count 2. However, her testimony regarding the first molestation incident

in the living room reflected a painfully clear memory. She clearly stated that Morin “put them

[his fingers] in [her].”

        We discern no error with the trial justice‟s decision to deny Morin‟s motion for a new

trial. The trial justice correctly articulated and thoughtfully applied the applicable standard for



                                               - 13 -
that decision. He credited Sally‟s testimony that Morin had digitally penetrated her and found

that he had done so “specifically for the purpose of sexual gratification or arousal.” He also

noted that Morin‟s acquittal on count 2 strengthened his confidence in the verdict. Because we

conclude that the trial justice did not commit clear error and neither overlooked nor

misconceived material evidence, we cannot disturb his decision to deny Morin‟s motion for a

new trial.

                                               IV

                                           Conclusion

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

which we remand the record in this case.




                                             - 14 -
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        State v. Roger Morin.

CASE NO:              No. 2010-237-C.A.
                      (P1/08-3656A)

COURT:                Supreme Court

DATE OPINION FILED: June 18, 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 Robert D. Krause

ATTORNEYS ON APPEAL:

                      For State: Jane M. McSoley
                                 Department of Attorney General

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