                                                Supreme Court

                                                No. 2014-278-C.A.
                                                (P2/09-1102A)

    State                          :

      v.                           :

Michael Giard.                     :




       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
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                                                             Supreme Court

                                                             No. 2014-278-C.A.
                                                             (P2/09-1102A)

           State                              :

             v.                               :

      Michael Giard.                          :


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

                                           OPINION

       Justice Robinson, for the Court. The defendant, Michael Giard, appeals to this Court

from an adjudication of a violation of a deferred sentence. On appeal, the defendant contends

that “the hearing justice acted arbitrarily and capriciously” in determining: (1) “that Mr. Giard

touched [Jessica1 ] inappropriately;” and (2) “that Mr. Giard assaulted [Jessica] in reasonable

proximity to April of 2010” because, in the defendant’s view, neither determination was

supported by the evidence in the record.

       This case came before the Supreme Court for oral argument on December 7, 2016,

pursuant to an order directing the parties to show cause why the issues raised in this appeal

should not be summarily decided. After a close review of the record and careful consideration of

the parties’ arguments (both written and oral), we are satisfied that cause has not been shown and

that this appeal may be decided at this time. For the reasons set forth below, we affirm the

judgment of the Superior Court.



1
        We have employed pseudonyms in referring to the complaining witness (Jessica), her
brother (Jacob), her mother (Charlene), her father (Joshua), her aunt (Lucy) (who is defendant’s
wife), and her cousin (Christine) (who is defendant’s daughter).

                                               -1-
                                                  I

                                        Facts and Travel

       On November 5, 2009, defendant pled nolo contendere to one count of felony assault2

and received a deferred sentence3 of five years with respect to that count. Thereafter, in April of

2010, Jessica, who is defendant’s niece, told her mother and her aunt that defendant had touched

her inappropriately. On May 7, 2012, defendant was presented with a notice of violation

pursuant to Rule 32(f) of the Superior Court Rules of Criminal Procedure based on an alleged act

of second-degree child molestation of Jessica.

       In June of 2014, by agreement of the parties, a jury trial on the second-degree child

molestation charge and a deferred sentence violation hearing were held simultaneously in




2
        In the felony assault case that is referenced in the text, defendant was accused of sexually
assaulting a fifteen-year-old girl and allegedly offering her money thereafter in exchange for her
silence.
3
       General Laws 1956 § 12-19-19, entitled “Sentencing on plea of guilty or nolo
contendere—Deferment of sentence,” provides in pertinent part:

                      “(b) It shall be an express condition of any deferment of
               sentence * * * that the person agreeing to said deferment of
               sentence shall at all times during the period of deferment keep
               the peace and be of good behavior. A violation of this express
               condition or any other condition set forth by either the court or
               the written deferral agreement shall violate the terms and
               conditions of the deferment of sentence and the court may
               impose sentence.
                      “(c) If a person, after the completion of the five (5) year
               deferment period is determined by the court to have complied
               with all of the terms and conditions of the written deferral
               agreement, then the person shall be exonerated of the charges
               for which sentence was deferred * * * .”

We note that § 12-19-19 was amended in 2016. However, we have focused on the version of the
statute in effect at the time the instant case was heard in Superior Court. See P.L. 2016, ch. 204,
§ 2.

                                                 -2-
Superior Court. We summarize below the salient aspects of what transpired at that trial, noting

from the outset that there are widely differing accounts as to the chronology of events.4

                                                 A

                                       Jessica’s Testimony

       The complaining witness, Jessica, testified first at trial. She stated that she was born on

January 11, 2002, making her eight years old at the time when defendant allegedly molested her.

She testified on cross-examination that, in 2009, her aunt Lucy (who is defendant’s wife) had

come to where she was then living in order to bring both her and her brother Jacob to the home

that Lucy and defendant shared in Woonsocket. Jessica added that her parents, Charlene and

Joshua, joined her and Jacob at that Woonsocket home some time later.

       Jessica testified that the garage of defendant’s Woonsocket home had been converted into

a computer room; she stated that defendant would from time to time call her into the computer

room and “tell [her] to sit on his lap, and [she] would get distracted watching the [video] game.”

With respect to the molestation, Jessica testified as follows:

               “[JESSICA]: Um, I would feel movement down in my private area.
               “[PROSECUTOR]: When you say private area, what are you
               talking about, [Jessica]?
               “[JESSICA]: The one below where -- below your hips.
               “[PROSECUTOR]: Okay. And, in that private area, I know it’s
               uncomfortable. What do you use that private area to do?
               “[JESSICA]: To urinate.
               “[PROSECUTOR]: Okay. And that would be your vagina?
               “[JESSICA]: Yes.
               “[PROSECUTOR]: Okay. Now, you would feel movement, and
               when you said you would feel movement, where would the
               defendant’s hands be?
               “[JESSICA]: Near my private area, one of them.

4
       The chronology of events is of great importance in this case in view of the fact that
defendant’s five-year deferred sentence was imposed on November 5, 2009. It goes without
saying that said deferred sentence could not have been violated if defendant’s alleged wrongful
conduct occurred prior to that date.

                                                -3-
               “[PROSECUTOR]: One of them. So one of his hands would be on
               your vagina; is that right?
               “[JESSICA]: Yes.”

Jessica further testified that the touching occurred over her nightgown and that, after defendant

had engaged in the sexual touching, he would give her one dollar, usually in quarters. When

defense counsel asked why Jessica did not do anything, she replied: “I was afraid I would get

yelled at [by defendant]” because of “his bad temper;” and, she indicated that, at that time, “[she]

didn’t know if it was wrong or right.” She indicated that defendant had touched her on four

previous occasions, the last incident having occurred in April of 2010.5

       Jessica then testified that she told her cousin (Christine), who is defendant’s daughter,

about the alleged molestation approximately one week after the April 2010 incident; she noted

that Christine ultimately “convinced [her] to tell [her] mom” about that incident. Jessica stated,

“At first I thought maybe I shouldn’t [tell my mom] because if she got sick” or “stress[ed],” but

“then I started worrying and my cousin helped me through it.” It was Jessica’s testimony that

thereafter, at the end of April of 2010, she told her mother and her aunt about the molestation, at

which time the two women were preparing to leave for a “[g]irls’ night out.” Jessica stated that

her disclosure to her mother and her aunt was prompted by the fact that she did not wish to

remain alone with defendant at his home while her mother and aunt were away; Jessica added

that she was “sick and tired of it.” Although there was some discrepancy in the evidence as to

just when Jessica and her family moved out of defendant’s Woonsocket home, Jessica testified

that she remained in Rhode Island until September of 2010, before permanently moving to

Minnesota.

5
       Although Jessica testified that defendant had molested her on four previous occasions, for
the purposes of the present appeal we are concerned solely with the fifth and final incident that
allegedly occurred in April of 2010 because the other four were alleged to have occurred before
defendant’s deferred sentence.

                                               -4-
                                                 B

                                     Charlene’s Testimony

       Jessica’s mother, Charlene, testified next at trial. She stated that, at some point later than

April of 2010, she and her sister (Lucy) had been planning to go to New Hampshire to visit their

mother,6 at which time Jessica asked the women not to be left alone with defendant at the house

in Woonsocket. On direct examination, Charlene testified as follows:

              “[Jessica] was scared. She was crying. She said, ‘I don’t want you
              to go. I don’t want you to go,’ and I asked her why, and she said, ‘I
              don’t want to be alone with [defendant],’ and then I asked her
              more about it, and then she had told me what he had done with her.

              “* * *

              “* * * And that is when [Jessica] told me he -- she -- she told me
              he touched her private part.

              “* * *

              “She said [defendant] had paid her money to change her dress and
              also that he had brought her to a room off the garage that is a
              computer room and made her sit there.”

Charlene stated that she was “upset” and “in shock” by Jessica’s statements. She testified that,

shortly thereafter, she told Lucy about Jessica’s disclosure; and, ultimately, she and Lucy




6
        Charlene’s testimony with respect to which family member she and Lucy were visiting in
New Hampshire and the date of her grandmother’s death were contradicted several times. On
direct examination, Charlene testified that, at some point after April of 2010, she and Lucy
visited their mother and, “later,” their grandmother in New Hampshire; however, she denied that
they had visited her grandmother on the day that Jessica revealed the molestation. Although
Charlene stated on several occasions that her grandmother had been alive at the time of Jessica’s
disclosure, it was then her testimony that her grandmother had died on September 1, 2009.
When confronted with this discrepancy in her testimony, Charlene indicated that her
grandmother’s death may have been “around 2010.”

                                               -5-
decided to take Jessica with them to New Hampshire.7 She testified that, from that day forward,

she never left Jessica alone with defendant. When asked if Charlene ever called the police in

Rhode Island about the alleged molestation, she replied: “[M]y main focus was to try to move

[out of Rhode Island] * * * , [but] there was problems with money * * *.” It was Charlene’s

testimony that, when she finally moved to Minnesota at a later date, she accompanied Jessica to

visit a doctor in that state, who advised them to contact the police.

                                                 C

                                        Lucy’s Testimony

       Lucy, defendant’s wife, was the last witness to testify at trial. She testified that, in

February of 2009, Jessica and her family began residing at defendant’s home in Woonsocket; she

said that they did not move out of that home until October of 2010. According to Lucy, Jessica

actually disclosed the alleged molestation to her in August of 2009:8

               “[LUCY]: It was in -- at the end of August, probably a couple of
               days, a couple of days at the end of August towards the beginning
               of September.
               “[DEFENSE COUNSEL]: How do you remember it was -- sorry,
               what year was it?
               “[LUCY]: 2009
               “[DEFENSE COUNSEL]: How do you remember that it was
               2009, end of August?
               “[LUCY]: It was a memorable time because my grandmother was
               in a nursing home dying, and we -- I received a phone call that my
               sister and I needed to go to the nursing home and say our final
               goodbyes to her.



7
        Charlene noted that Lucy “didn’t believe” Jessica’s accusations against defendant,
“hurt[ing] [Charlene’s] feelings;” for that reason, Charlene and her family—including Joshua,
Jacob, and Jessica—all moved to Minnesota at a later date.
8
       If Lucy’s testimony as to when Jessica’s disclosure took place were found to be credible,
then there could have been no violation by defendant of the conditions relative to the deferred
sentence.



                                                -6-
               “[DEFENSE COUNSEL]: And when did your grandmother pass
               away?
               “[LUCY]: September 1, 2009.”

       Lucy further testified that Jessica and her family had remained in the Woonsocket home

which Lucy shared with defendant for approximately fourteen months after Jessica’s disclosure.

She noted that, during that period of time, Jessica was not allowed to be in the same room as

defendant so that there would not be incidents that Jessica might report.

       It was Lucy’s testimony that, in February of 2011, she received a phone call from the

Rhode Island Department of Children, Youth, and Families (DCYF) concerning Jessica’s

allegations about defendant’s conduct; as a result of that phone call, she and defendant decided to

live separately to ensure that DCYF would not take away their children.

                                                D

                               The Trial and Violation Hearing

       On June 25, 2014, the jury acquitted defendant of second-degree child molestation. On

June 30, 2014, a hearing was held with respect to defendant’s alleged violation of the conditions

of the deferred sentence that had been imposed on November 5, 2009. The hearing justice

preliminarily noted that he was not collaterally estopped from finding defendant to have been in

violation of his deferred sentence, even though the jury had acquitted him. Thereafter, he found

Jessica’s testimony to be credible, commenting that she was “polite,” “[a]rticulate,” “[m]ature,”

and had a “[g]ood memory.” Although the hearing justice acknowledged that there was “some

confusion” as to the “chronology of events related to the incident itself and how much time

transpired before [Jessica’s] family moved out of [defendant’s] home,” he ruled that such

confusion did not undermine “[Jessica’s] recollection of the incident.” In his bench decision, he

expressly stated as follows:




                                               -7-
               “This [c]ourt accepts [Jessica’s] testimony and finds that the
               defendant at a time in reasonable proximity to April of 2010 called
               [her] to his computer room, sat her on his lap and over her clothing
               moved his hand over her vagina.”

       After hearing closing arguments from the parties, the hearing justice reviewed the

testimony and evidence presented at trial and found that defendant had indeed violated the

conditions of his deferred sentence. He specifically stated:

                       “This [c]ourt is reasonably satisfied that this defendant
               by this sexual contact with [Jessica] did not keep the peace or
               be of good behavior as required by his probationary status. He
               is declared to be a violator.”

Consequently, the hearing justice imposed on defendant a twenty-year sentence with five years

to serve. The defendant then timely filed a notice of appeal.

                                                II

                                      Standard of Review

       At the outset, we note that the standard for finding a violation of probation is the same as

that relative to a violation of a deferred sentence. See State v. Plante, 109 R.I. 371, 377, 285

A.2d 395, 398 (1972). In Plante, this Court expressly stated as follows:

                       “We perceive no logical reason to support such a
               distinction. In both cases the guilt of the convicted accused has
               been established, but, as an act of grace, one is given a sentence,
               the execution of which is suspended, while in the case of the other,
               the imposition of sentence is formally deferred. Both * * * are
               placed on probation and retention of their liberty depends on good
               behavior during the period of probation.” Id. at 377-78, 285 A.2d
               at 398.

The only issue for the hearing justice to consider at a deferred sentence or probation violation

hearing is whether or not a defendant “has breached a condition of his or her probation by failing

to keep the peace or remain on good behavior.” State v. Barrientos, 88 A.3d 1130, 1133 (R.I.

2014) (internal quotation marks omitted).      Additionally, at a deferred sentence or probation



                                               -8-
violation proceeding, “[t]he burden of proof on the state is much lower than that which exists in a

criminal trial—the state need only show that reasonably satisfactory evidence supports a finding

that the defendant has violated his or her probation.” State v. Tetreault, 973 A.2d 489, 491-92

(R.I. 2009) (internal quotation marks omitted).9

       In determining whether or not a defendant has committed a violation of his or her

deferred sentence or probation, “the hearing justice is charged with weighing the evidence and

assessing the credibility of the witnesses.” State v. Horton, 971 A.2d 606, 610 (R.I. 2009)

(internal quotation marks omitted); see State v. Pena, 791 A.2d 484, 485 (R.I. 2002) (mem.); see

also State v. English, 21 A.3d 403, 407 (R.I. 2011). In doing so, the hearing justice may “draw

reasonable inferences from the evidence presented to determine whether the defendant violated

the terms of his probation.” State v. McLaughlin, 935 A.2d 938, 942 (R.I. 2007). We “will not

second-guess supportable credibility assessments of a hearing justice in a probation-revocation

hearing.” State v. Raso, 80 A.3d 33, 42 (R.I. 2013) (internal quotation marks omitted); State v.

Johnson, 899 A.2d 478, 482 (R.I. 2006).         Instead, “[t]his Court accords deference to the

credibility determinations of the hearing justice who has had the opportunity to listen to live

testimony and to observe demeanor [of the witnesses].” State v. Jensen, 40 A.3d 771, 778 (R.I.

2012) (internal quotation marks omitted).

       Our review of a hearing justice’s finding of a violation of a deferred sentence or of

probation is “limited to determining whether the hearing justice acted arbitrarily or capriciously

in assessing the credibility of the witnesses or in finding such a violation.” State v. Washington,




9
       In 2016, the burden of proof was amended to “a fair preponderance on the evidence;”
however, that amendment has no bearing on the instant case. In re Amendments to Superior
Court Rules of Criminal Procedure and Sentencing Benchmarks at 1 (R.I., filed June 21, 2016)
(mem.).

                                               -9-
42 A.3d 1265, 1271 (R.I. 2012) (internal quotation marks omitted); see also State v. Ford, 56

A.3d 463, 469 (R.I. 2012); Tetreault, 973 A.2d at 492.

                                                III

                                             Analysis

       On appeal, defendant contends that “the hearing justice acted arbitrarily and capriciously”

in determining: (1) “that Mr. Giard touched [Jessica] inappropriately;” and (2) “that Mr. Giard

assaulted [Jessica] in reasonable proximity to April of 2010” because, in defendant’s view,

neither determination was supported by the evidence in the record. The defendant further argues

that the hearing justice erred in finding Jessica’s testimony to be credible and in overlooking

inconsistencies among the testimonies of Jessica and that of her mother (Charlene) and her aunt

(Lucy) with respect to chronology—specifically as to when various events took place. We are in

disagreement with all of his contentions.

       After thoroughly reviewing the record, we are satisfied that the hearing justice did not act

arbitrarily or capriciously in assessing the credibility of the witnesses, especially Jessica, or in

adjudicating defendant to be a violator of his five-year deferred sentence. As we have stated on

multiple occasions, “the presiding judicial officer need only be reasonably satisfied that a

defendant breached a condition of probation by failing to keep the peace or remain on good

behavior.” State v. Bouffard, 945 A.2d 305, 313 (R.I. 2008) (internal quotation marks omitted);

see, e.g., State v. Seamans, 935 A.2d 618, 623 (R.I. 2007). It is noteworthy that we “accord[]

deference to the credibility determinations of the hearing justice,” Jensen, 40 A.3d at 778,

because “[w]e do not have the same vantage point as [him or her], and we are unable to assess

the witness’ demeanor, tone of voice, and body language.           Our perspective is limited to

analyzing words printed on a black and white record.” State v. Woods, 936 A.2d 195, 198 (R.I.




                                               - 10 -
2007). Consequently, it is not the role of this Court—but instead that of the hearing justice—to

assess the credibility of a witness in a probation violation hearing. See Bouffard, 945 A.2d at

311-13; see also State v. Hazard, 68 A.3d 479, 499 (R.I. 2013).

       In the instant case, the hearing justice carefully reviewed and discussed the testimony of

the several witnesses; he weighed the evidence and assessed the credibility of each of the

witnesses, as is required. See State v. Forbes, 925 A.2d 929, 934 (R.I. 2007). He prefaced his

bench ruling by stating that often, in probation violation hearings, the ultimate determination as

to whether a defendant has kept the peace and been of good behavior hinges upon the hearing

justice’s assessment of the credibility of the various witnesses.      In this regard, it should

particularly be recalled that the hearing justice focused upon Jessica’s in-court demeanor when

making a credibility determination, stating:

                      “This [c]ourt has made a careful and thorough assessment
               of [Jessica’s] testimony that this defendant engaged in sexual
               contact with her when she was living in his home.

                      “* * *

               “I make notations often in the margins about the demeanor and
               attitude and candor and memory of the witnesses that are testifying
               before the [c]ourt. And in this case during [Jessica’s] testimony,
               the [c]ourt wrote the following: ‘Very polite. Articulate. Mature.
               Good memory.’”

                      “* * *

                       “This [c]ourt accepts [Jessica’s] testimony and finds that
               the defendant at a time in reasonable proximity to April of 2010
               called [her] to his computer room, sat her on his lap and over her
               clothing moved his hand over her vagina.”

       Ultimately, the hearing justice found Jessica’s testimony to be credible; from his vantage

point, he had been able to infer from her testimony and demeanor that the last molestation




                                               - 11 -
occurred in April of 2010. After perusing the record, it is quite evident that the hearing justice

had more than plausible reasons for accepting Jessica’s testimony.

       We are aware that there were some inconsistencies between and among the testimonies of

Jessica, Charlene, and Lucy. However, from a review of the pertinent case law, we are also

mindful that we have “on more than one occasion acknowledged that the presence of some

inconsistencies between or among utterances of a witness or witnesses at different points in time

does not ipso facto render the testimony unworthy of belief.” Jensen, 40 A.3d at 781; see State

v. Lopez, 129 A.3d 77, 85 (R.I. 2016) (“Percipient witnesses often differ concerning some details

about events in which they had some degree of involvement.”); see also State v. Rosario, 35

A.3d 938, 948-49 (R.I. 2012). With respect to the testimonial inconsistencies concerning the

chronology of events, the hearing justice stated “[t]hat [such] area of confusion does not

undermine the remainder of [Jessica’s] recollection of the [molestation] incident that occurred

between her and this defendant.” In the end, we cannot say that the hearing justice’s credibility

determinations were based on an implausible foundation. After reviewing all of the evidence

presented at trial, he was “reasonably satisfied” that defendant had violated the conditions of

his deferred sentence.

       When, as in the case at bar, an inquiry as to w hether the defendant violated his deferred

sentence “turns on a determination of credibility”—and, after considering all the evidence, the

hearing justice “accepts one version of events for plausible reasons stated and rationally rejects

another version”—we “can safely conclude that the hearing justice did not act unreasonably or

arbitrarily in [assessing witness credibility and in] finding that a * * * violation [of the conditions

of the defendant’s deferred sentence] ha[d] occurred.” State v. Ferrara, 883 A.2d 1140, 1144

(R.I. 2005) (internal quotation marks omitted).




                                                - 12 -
                                                IV

                                           Conclusion

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

The record may be returned to that tribunal.




                                               - 13 -
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        State v. Michael Giard.
                                     SU-14-0278-C.A.
Case Number
                                     (P2/09-1102A)
Date Opinion Filed                   March 24, 2017
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice William P. Robinson

Source of Appeal                     Providence County Superior Court

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

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

                                     Angela Yingling
                                     Office of the Public Defender




SU-CMS-02A (revised June 2016)
