June 19, 2017



                                                     Supreme Court

                                                     No. 2016-116-C.A.
                                                     (P1/13-3713AG)
        State                      :

          v.                       :

    James Adams.                   :




  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. 2016-116-C.A.
                                                                    (P1/13-3713AG)
                      State                      :

                       v.                        :

                 James Adams.                    :


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

                                          OPINION

       Chief Justice Suttell, for the Court. The defendant, James Adams, appeals from a

judgment of conviction of one count of first-degree robbery, two counts of felony assault, one

count of second-degree murder, and one count of committing a crime of violence while

possessing a firearm. These charges stemmed from allegations that the defendant, during June

and July 2012, accessed Backpage.com1 for escort services and had female escorts meet him at

his designated location, where he then committed the above-referenced crimes. Following the

jury’s guilty verdict, the defendant filed a motion for a new trial, which was heard and denied by

a justice of the Superior Court. On appeal, the defendant maintains that he is entitled to a new

trial because the weight of the evidence was insufficient to convict him and that the trial justice

erred in deciding otherwise. The defendant also appeals the admission of certain evidence

relating to cell phone data and analysis that was introduced at trial, which he claims should have




1
 Backpage is a classified advertising website where individuals can list a variety of products and
services. Until January 2017, Backpage included an adult section containing different
subcategories of various sex work professions, including escorts and strippers. See Alastair
Jamieson & Tracy Connor, Backpage Pulls Adult Ads, Blames ‘Censorship’ After Report on Sex
Trafficking, Prostitution (Jan. 10, 2017), http://www.nbcnews.com/news/us-news/backpage-
pulls-adult-ads-blames-censorship-after-report-sex-trafficking-n705056.

                                               -1-
been excluded by the trial justice. For the reasons stated herein, we affirm the judgment of the

Superior Court.

                                                I

                                       Facts and Travel

                                               A

                                 Initial Murder Investigation

       On July 20, 2012, Patrolman Jared Hardy of the Cranston Police Department responded

to the area of 391 Farmington Avenue in Cranston (the property), a three-family home with “a

detached garage to the left rear” (the garage). Patrolman Hardy was dispatched in connection

with a report of “an oozing liquid which was coming out of the garage” that had a “bad smell.”

Upon entering the garage he “was struck with the smell of decaying flesh,” and he determined

that the smell was emanating “from the back left corner of the garage.” Upon walking to the

back left corner and tipping a green sofa over to identify the source of the smell, Hardy found a

badly decayed body of what appeared to be an African-American female (the decedent). Hardy

immediately called for a supervisor and secured the scene.

       Detective William John Palmer of the Bureau of Criminal Identification (BCI) unit2 of

the Cranston Police Department was called into work to investigate this matter. Upon arriving at

the property with another BCI detective, Peter Souza, Det. Palmer observed “a dark colored stain

that appeared to be coming from the * * * garage[’s] * * * east side wall.” Upon entering the

garage, he witnessed the tipped-over green sofa and the decomposing body of the decedent. He




2
  The BCI unit is a subsection of the detective division. The unit is responsible for processing
crime scenes—including photographing, identifying, collecting, maintaining, and following up
on the evidence.

                                              -2-
described the garage as cluttered and with the appearance that it was used for storage and “for

people hanging out.”

       Detective Souza took several photographs of both the inside and outside of the garage

and of the decedent’s body. Detective Palmer also photographed “contents that were at [the

decedent’s] feet that appeared to be dumped there,” and he observed a tan pocketbook and a

green piece of clothing—later identified as a jumper. He identified several other items found by

the decedent’s feet, including a cell phone charger, lotion, earphones, a Massachusetts

identification card, and a black wig. Under the black wig, he discovered a body spray, Vaseline

petroleum jelly, a couple of debit cards belonging to one Mary Grier, and a pair of size medium

Joe Boxer underwear.

       Detective Sergeant Michael Hollis Gates of the Cranston Police Department, who had

also responded to the property that day, was given the Massachusetts identification card, but he

could not identify the decedent in the garage due to the extensive decomposition of the body.

Detective Gates testified that the name on the identification card was Mary Grier. On the next

day, July 21, he, along with another detective, “follow[ed] up with the address that [they] had on

the identification that was recovered next to the body.”       That address was in Dorchester,

Massachusetts, where they met with Leslie and Jeanetta Trotman (the Trotmans), Grier’s foster

parents.3 They indicated to the detectives that they believed Grier had been working at Foxy

Lady, an adult entertainment club in Providence, and they also provided the detectives with the

address of Regina Grier, Grier’s adoptive mother.4 Detective Gates went to Foxy Lady to follow




3
  At trial, Jeanetta Trotman testified that Grier had been her foster child from the moment Grier
was one day old until she was adopted four years later.
4
  Regina Grier informed the detectives that she had last spoken to Grier sometime shortly after
the Fourth of July holiday that year.

                                              -3-
up on the information he had received from the Trotmans, and he learned that Grier “hadn’t been

working there recently.”

        The following day, July 22, Det. Gates met with Jesse Adams, defendant’s brother.

According to Jesse Adams, in June 2012, defendant lived in the garage.5 Following the meeting

with Jesse Adams, Det. Gates asked that a photo array be prepared containing defendant’s image

and that defendant’s parole officer be contacted to ascertain defendant’s whereabouts. That same

day, after having become confident that the decedent was Grier, Det. Gates returned to

Dorchester to inform both sets of parents that Grier had passed away. Detective Gates obtained

Grier’s cell phone number, and a fellow detective prepared search warrants for certain cell phone

records. Subsequently, Det. Gates secured an arrest warrant for defendant.

        On July 23, 2012, Det. Gates interviewed Jessica Dyer after “[he] was given information

that there may have been a second female present at * * * [the] garage * * * the night that [they]

believe[d] * * * Grier was murdered.” Dyer alleged that she had been assaulted by a man in the

same garage on June 30, 2012. Detective Gates conducted a photo array with six photos of

males who had the same general characteristics as defendant. Dyer identified defendant as her

assailant.6

        On July 24, the detectives learned of defendant’s whereabouts and proceeded to the

Charlesgate Manor apartment complex in Providence to execute an arrest warrant. Detective

Jaime Cahill of the Cranston Police Department testified that he entered a building in the



5
  Detective Gates also obtained defendant’s phone number from Jesse Adams. At trial, Jesse
Adams testified that, in June 2012, he would give defendant rides and that he had picked
defendant up and dropped defendant off “[a] good two dozen times” at the garage. He attested
that, after seeing the garage on television and recognizing it as the place at which his brother was
staying, he contacted the police.
6
  Jessica Dyer’s allegations gave rise to three of the charges in the indictment, and her trial
testimony is summarized in greater detail in Section III, B, of this opinion.

                                               -4-
apartment complex and waited for defendant by the elevators with other officers. Realizing that

defendant did not come off of the elevator, Det. Cahill rushed outside the building and observed

defendant “running through the parking lot.” He further observed defendant discard a backpack,

“which another detective secured,” while another detective tackled defendant.

        Detective Souza testified that he was called to the location of the arrest to collect a “red

and black backpack, a couple of bottles of beer, [a] bottle of water, * * * and an Airsoft pistol.”

As part of the investigation, he test-fired the pistol found in the backpack and confirmed that this

“pistol [was] an operable firearm” that was capable of firing plastic and metal projectiles.

        On July 26, Evonna Malave, who had previously reported to the police that, on June 24,

2012, she had been sexually assaulted and robbed by a man on School Street in Johnston, went to

the Johnston Police Department, where she gave a statement and identified defendant as her

assailant.7

        On December 6, 2013, defendant was charged by criminal indictment with the murder of

Grier (count 1), two counts of felony assault upon Dyer (counts 2 and 3), two counts of

committing a crime of violence while in possession of a firearm (counts 4 and 11), two counts of

first-degree sexual assault upon Malave (counts 8 and 9), first-degree robbery of Malave (count

10), and unlawful possession of a firearm (count 12).8 These counts were the subject of a ten-

day jury trial, during which a total of twenty-eight witnesses testified. These witnesses included

the detectives involved in the investigation, forensic and cell phone data experts, the two

complaining witnesses, and several individuals who knew defendant in 2012.



7
  Evonna Malave’s allegations gave rise to four of the charges in the indictment, and her trial
testimony is summarized in greater detail in Section III, C, of this opinion.
8
  The original indictment also included a first-degree sexual assault upon Adetarsha Adewuyi
(count 5), first-degree robbery of Adewuyi (count 6), and committing a crime of violence while
in possession of a firearm (count 7). Counts 5, 6, and 7 were severed prior to trial.

                                                -5-
                                                 B

                                        Forensic Analysis

       Doctor Carolyn Revercomb, a former assistant medical examiner at the Office of State

Medical Examiners for Rhode Island, testified about the forensic autopsy that she conducted on

the decedent in July 2012. She explained that the decedent was identified through dental records

as Mary S. Grier and that the decedent’s body was “in a state of decomposition with partial

skeletonization, meaning exposure of bone,” when examined. Doctor Revercomb explained that

the decedent’s body arrived nude, with a ligature wrapped around her neck, a belly button

piercing, and an anklet. She noted that a jumper-type garment accompanied the decedent’s body.

       After explaining the procedure that she followed in examining the decedent’s body, Dr.

Revercomb acknowledged that “decomposition can obscure surface features of the body.”

During her external examination, Dr. Revercomb discovered bruising “on the front of the right

knee, on the front of the lower right leg, and over the back of the index finger on the right hand.”

She also testified to “a fracture without any bleeding into it of the left clavicle” and opined that,

to a reasonable degree of medical certainty, based on “[b]oth the appearance of the fracture break

into that bone and its relationship to the body position at the scene,” that “this [was] a

postmortem fracture; that [Grier] did not have a blood pressure when it happened.” During her

internal examination of the decedent, Dr. Revercomb “saw some focal bleeding in the scalp.”

       Doctor Revercomb concluded that the cause of death was homicidal violence.                She

explained that “[h]omicidal violence is a blanket term for findings associated with an assault by

another or others.” She reached this opinion based on several factors, including “the positioning

of the body in a concealed location where it was found, the presence of the ligature around the

neck with an * * * irregular knot[,]” the fact that the body was nude, the fact that there were



                                                -6-
clothing and a wig present at the scene, “indicating a struggle,” and the fact that there were

bruises on the decedent’s right leg and on her right-hand index finger, which Dr. Revercomb

noted as resulting “potentially from a defensive cause or a defensive-type bruise.” She also

indicated that the time of death was difficult to pinpoint due to the extent of decomposition. She

opined that, based on the maggot activity she observed when visiting the garage on July 24, the

death could have occurred “a week or more” prior to that date.

           Tamara Wong, a forensic scientist employed at the Rhode Island Department of Health

Laboratories, testified that she conducted a DNA analysis of “[a] ligature, three cuttings from a

couch,”9 swabbing from the tan pocketbook, fingernail clippings belonging to the decedent, and

“a reference sample from [defendant].” Her analysis of these items was inconclusive, either

because there were multiple contributors to the DNA profile or because there was no DNA

profile.     Wong also analyzed the pair of Joe Boxer underwear found in the garage, which

resulted in a mixed DNA profile. Wong testified that the mixed DNA profile consisted of a

major component and a minor component.            Based on her analysis, she concluded that

defendant’s DNA profile was a match to the profile in the major component found on the pair of

Joe Boxer underwear. She noted that there was a “1 in 82 trillion chance that” the DNA profile

indicated someone other than defendant.

           Additionally, Kevin Horan, a Special Agent in the Federal Bureau of Investigation’s

(FBI) Cellular Analysis Certificate Survey Team (CAST team), testified regarding his analysis of

certain cell phone data from defendant’s and Grier’s phones. Agent Horan concluded that




9
  On July 24, detectives had cut out three sections of the green sofa’s fabric containing a semen-
like specimen for DNA testing.


                                               -7-
defendant’s and Grier’s cell phones were in the same approximate vicinity on the early morning

of July 15, 2012.10

                                                C

                                     Other Trial Witnesses

       Brothers Nhoeuth Nhim and Nhoeun Nhim both testified that they lived in the first-floor

apartment of the property during the summer of 2012 and that the garage was used as a “hanging

out” space. Nhoeuth testified that, in June 2012, defendant would “hang out” in the garage, and

sometimes stay overnight. Nhoeun testified that, during a time period in June and July 2012,

defendant would stay in the garage, but he acknowledged that he did not know if defendant

would sleep in the garage. Nhoeun also testified that he saw “a white person” that he did not

know go into the garage, come out of the garage with a suitcase, and drive off with it. He

claimed that the last day that he was near the garage before the police arrived was on July 14 and

that defendant was also there. Nhoeuth testified that, sometime in July 2012, he started to clean

the garage but did not get very far because of how unpleasant the garage smelled. He claimed to

have thought that the smell was due to a dead animal.

       Kenneth J. Larney III, defendant’s friend during the summer of 2012, also testified that

he had seen defendant at the garage during that time, that he drove defendant there “[b]etween

five and ten” times because defendant did not have a car, and that he knew defendant had

“crashed” at the garage a few times. Larney noted that defendant “was kind of living place to

place” and “didn’t really have a set living location” at that time. He testified that he had

personally “hung out” at the garage, playing cards, listening to music, and being “really

nonchalant,” approximately five times. He testified that, on July 18, 2012, he was contacted by

10
   Agent Horan’s testimony was the subject of defendant’s motion in limine and is discussed in
further detail in Section II, B, of this decision.

                                              -8-
defendant and asked to pick up a suitcase that was in the garage. When he went to retrieve the

suitcase, he simply lifted the door of the garage, retrieved the suitcase, and left. He claimed that

he did not smell anything at that time. He placed the suitcase in the basement of his apartment

located on Burnside Street in Cranston. He further testified that defendant informed him that he

would eventually pick up the suitcase, but the Cranston police came to his home and retrieved

it.11

        Vanyik Proeun testified that, in July 2012, he resided on the second-floor apartment of

the property and that he had become friendly with defendant. Proeun testified that he gave

defendant rides and, on one occasion, defendant informed him that he was attracted to strippers.

He claimed that defendant always carried a red backpack with him.             Proeun also recalled

speaking to a police officer on July 21, and he testified that he had smelled the odor in the garage

“probably the week before that.”

        Sarivutha Pich, who also resided in the second-floor apartment, testified that, on July 15,

2012, after returning from a friend’s wedding between 3:30 and 4:30 a.m. feeling “kind of

buzzed,” she proceeded to enter the apartment building through the back when she noticed that

the garage light was on. She glanced into the garage and saw defendant in the garage alone. She

testified that defendant informed her that everyone had gone to sleep and that he was “going to

finish up” and “head out.” She testified that she did not smell anything in the garage at that time.

                                                 D

                                   Testimony of Dayo Oduntan

        Dayo Oduntan, who knew defendant for “a little bit over 15 years,” testified that the two

were “close friends, buddies” when they first met. He testified that eventually he became

11
  Detective Souza testified that, on August 4, 2012, he retrieved a suitcase from the basement of
18 Burnside Street.

                                               -9-
friendly with defendant’s mother and brother and that he would have dinner at defendant’s

mother’s house. Over the course of fifteen years, Oduntan claimed, that he and defendant stayed

in touch “[o]ff and on.” He testified that, in 2002 or 2003, the two shared an apartment on

Federal Hill in Providence.    He recalled that, at that time, he observed defendant use the

Backpage website and that, on occasion, defendant would “go on there, look[ing] for girls.”

       Oduntan testified that he was incarcerated at the Adult Correctional Institutions (ACI) in

June 2012 for failing to report to parole.12 He attested that, in July 2012, he saw defendant in

prison, but that the two were not assigned to the same area in the ACI at that time. He testified

that he then wrote a letter to the Special Investigations Unit “looking for a deal” with respect to

his own sentence in exchange for information he had or could get from defendant. He explained

that, as a result of a meeting with Cranston detectives, he was assigned to the same cellblock as

defendant, but he was unable to strike a deal with the Attorney General’s Office regarding his

own sentence.

       While sharing a cell with defendant, Oduntan testified that he “asked [defendant] bluntly”

about the murder and that defendant “right away start[ed] [to] mak[e] gestures and pointing

around the room, pretty much insinuating that he was nervous that the room might [have been]

bugged or wired.” Oduntan testified that, while he was out on the recreational yard, he again

asked defendant about the female and defendant “let it be known, yes, he did it.” At that time,

however, defendant “didn’t get into detail” regarding the murder.             Oduntan described

defendant’s demeanor as “[r]eal nonchalant about it. Like it didn’t matter or anything like that.”

       Oduntan testified that, on a later date, when the two were watching a television show

where a cartoon character murdered a female and rolled her body in a carpet before disposing of

12
   He also acknowledged his criminal record—which included convictions for robbery and
larceny.

                                              - 10 -
it, defendant “jumped off the bunk and * * * point[ed] [to] the [television]” and said that that was

what he had done and made “strangling gestures.” He recounted that eventually defendant

seemed more willing to talk about the murder and that defendant said he did not know why the

police were “making such a big deal of even looking into it because she was a prostitute.” On

another occasion, according to Oduntan, the two were watching television again and a female

was wearing a “short shirt thing,” where the shorts are connected to the shirt and defendant

indicated that the female in the rug “was wearing something like that.” Oduntan further testified

that defendant did not give him a reason for committing the murder and also “didn’t seem to care

at all.”

           When Oduntan asked defendant if anyone else was involved in the murder, Oduntan

testified, defendant said that “he did it on his own, but he was mad at other people for not

helping him dispose of her body.” According to Oduntan, defendant named Nhoeuth Nhim as

one of the individuals who had refused to assist in removing the body. Oduntan also testified

that defendant indicated that he was surprised a friend “K.J.” did not “rat on him,” since “K.J.”

had already been questioned, and that “K.J.” was supposed to get defendant his clothing.           He

further testified that defendant said he was sleeping in the garage prior to the murder.

           Oduntan wrote another letter to authorities after learning all of this information; and, in

the interim, he was released from custody after completing his sentence. He was again arrested

and charged with armed robbery in 2013; and, while he was released on bail, he was contacted

by the Cranston police regarding his willingness to testify. He acknowledged that he was a paid

federal informant, but he insisted that he had not been compensated or received any favors from

the state in exchange for his testimony against defendant in this case.




                                                 - 11 -
        The state rested its case-in-chief on Friday, July 10, 2015;13 the defense did not present

any witnesses. On the following Monday morning, July 13, the jury returned guilty verdicts on a

total of five counts in the indictment. The jury found defendant guilty of the second-degree

murder of Grier (count 1), felony assault on Dyer with a dangerous weapon (firearm) (count 2),

felony assault on Dyer with a dangerous weapon (metal object) (count 3), first-degree robbery of

Malave (count 10), and unlawful possession of a firearm (count 12).14 The defendant’s motion

for a new trial was heard and denied on September 2, 2015. Subsequently, on November 13,

2015, defendant was sentenced to life imprisonment plus one hundred years to serve.15 The

defendant filed a timely notice of appeal to this Court.

        The defendant’s arguments on appeal are two-fold; he assigns errors to certain

evidentiary rulings of the trial justice and to the trial justice’s denial of his motion for a new trial

on counts 1, 2, 3, and 10.16

                                                  II

                                     Admissibility of Evidence

        On appeal, defendant argues that the trial justice erred in admitting Agent Horan’s

testimony regarding cell phone technology because, in his view, it constituted a violation of Rule

702 of the Rhode Island Rules of Evidence. The defendant also argues that the trial justice



13
   In addition to the witnesses whose testimony is summarized herein, the following witnesses
also testified at trial: Leon Sam, Sergeant Dana Gousie, Detective Anthony Sasso, Detective
John Cardone, Patrolman Derrick Palazzo, Detective Donald Bucci, and Paul Carney.
14
   The jury returned not-guilty verdicts on counts 8, 9, and 11. Count 4 was dismissed by the
state at the close of its case pursuant to Rule 48 of the Superior Court Rules of Criminal
Procedure.
15
   The defendant was sentenced to life imprisonment on count 1, fifteen years imprisonment on
counts 2 and 3, to be served concurrently, seventy-five years imprisonment on count 10, and ten
years imprisonment on count 12.
16
   On appeal, defendant does not challenge the sufficiency of the evidence as it pertains to his
conviction of unlawful possession of a firearm (count 12).

                                                 - 12 -
should have excluded Agent Horan’s testimony based on what he perceived to be a violation of

Rule 16 of the Superior Court Rules of Criminal Procedure.

                                                 A

                                       Standard of Review

       It is well established that decisions concerning the admissibility of evidence are “within

the sound discretion of the trial justice, and this Court will not interfere with the trial justice’s

decision unless a clear abuse of that discretion is apparent.” State v. Mohapatra, 880 A.2d 802,

805 (R.I. 2005) (quoting State v. Grayhurst, 852 A.2d 491, 504 (R.I. 2004)). “The trial justice

will not have abused his or her discretion as long as some grounds supporting his or her decision

appear in the record.” State v. Evans, 742 A.2d 715, 719 (R.I. 1999).

                                                 B

                         Testimony of FBI Special Agent Kevin Horan

       Prior to trial, defendant filed a motion in limine to have all evidence and testimony

relating to cell phone towers and data excluded from trial, as he suggested that such evidence

was both untimely and inconclusive. A hearing was held on defendant’s motion on May 28,

2015. Agent Horan, whom the state sought to present as an expert witness on cell phone

technology, testified at the hearing. Agent Horan testified that he had been a member of the

FBI’s CAST team since 2010 and that he was trained to track cell phones and to know how

cellular networks are built, what frequencies they use, how switches work, and how to utilize cell

phone records. He stated that he was also trained on how to conduct a drive test, which includes

“specialized gear that * * * scan[s] the radio frequency environment” and at the end of the drive

provides a “footprint or a map of what the radio frequency looks like coming off of a cell phone

tower.” He testified that he has been qualified as an expert witness in approximately fifty-two



                                               - 13 -
other cases and that he has been involved in “maybe a thousand” cell phone investigations

throughout his career.

       As it pertains to the facts in this case, Agent Horan testified that he analyzed certain T-

Mobile, MetroPCS, and AT&T call detail records (CDRs) provided by the state. He presented a

PowerPoint that he had prepared based on the CDRs, which illustrated the approximate locations

of the cell phones as they communicated with the towers in the early morning of July 14, 2012.

The PowerPoint also showed the drive test he conducted which revealed that, in the area of the

garage where Grier’s body was found, the tower section with the dominant signal was the one to

which defendant’s phone connected during Grier’s final phone call. Agent Horan acknowledged

that his tests and analysis could not pinpoint the exact location of the phones during the

transmissions, but only their approximate locations.

       Following Agent Horan’s testimony, defendant argued to the trial justice that the agent’s

testimony should be excluded both as a discovery violation and because it did not pass the

Daubert analyses.17 The trial justice found that Daubert did not have any application to the

proceedings, stating that there were “scores of cases that [he had] seen on the shelves from

federal and state courts. There are periodicals, secondary sources addressing the subject,” and

that “[t]his [was] not new stuff.” He opined that the “analysis of cell phone records by expert

testimony is certainly helpful to the trier of fact” and that Agent Horan’s inability to “pinpoint

the precise location of the phone [was] not a reason to exclude his testimony.” The trial justice


17
  The defendant was referring to the seminal Supreme Court case of Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). Although this Court has declined to expressly adopt
Daubert, we have drawn guidance from its principles. See Owens v. Silvia, 838 A.2d 881, 890
(R.I. 2003); see also DiPetrillo v. Dow Chemical Co., 729 A.2d 677, 685 (R.I. 1999).




                                              - 14 -
noted that Agent Horan had circled an area, or “footprint,” and had opined that the calls were

made within that particular area and that what weight to give to his opinion was a task for the

jury.

        Moreover, the trial justice discussed defendant’s contentions as they related to a “so-

called Rule 16 or late discovery.” The trial justice specifically noted:

               “[They were] a month ahead of the trial. It should [have been]
               ample time for [defense counsel] to speak with the expert that he
               ha[d] engaged and ha[d] had on his Rolodex for months * * *. If
               [defense counsel] want[ed] to invite the court reporter to do a
               transcript of what [they] did th[at] morning so [he could] ship it off
               to [defendant’s] expert, that[] [was] fine. * * * [I]f it turn[ed] out
               that [defense counsel] need[ed] additional time, that [he] [could
               not] try the case when [they were] anticipating it, so be it, [he
               would] get the extension, the time that [he] need[ed].”

The trial justice added that the transcript would be “at the [s]tate’s expense,” and the hearing on

the matter concluded. There is no indication or allegation that defendant sought a continuance.

At trial, Agent Horan testified consistently with his testimony at the hearing on defendant’s

motion in limine.

                                 1. Rule 702: Expert Testimony

        As to Rule 702, defendant asserts that the trial justice abused his discretion in admitting

the testimony because Agent Horan “failed to demonstrate either that his conclusion was the

product of scientifically valid theories and methodologies, or that [the] theories and

methodologies have been subjected to peer review.”           Moreover, defendant avers that the

testimony should have been excluded at trial because Agent Horan could not provide an opinion

as to what he believed was the closest cell phone tower to the crime scene due to the particular

terrain or edifices in the surrounding area. Thus, defendant posits, the trial justice erred in

allowing the introduction of the testimony and in making “a sweeping generalization about the



                                               - 15 -
qualifications of * * * [Agent Horan],” by finding that “[Agent Horan] must really be an expert”

in the field.

        “The purpose of expert testimony is to aid in the search for the truth.” Morabit v. Hoag,

80 A.3d 1, 11 (R.I. 2013) (quoting Morra v. Harrop, 791 A.2d 472, 477 (R.I. 2002)). Rule 702

provides that “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact

to understand the evidence or to determine a fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education, may testify thereto in the form of fact or

opinion.” We recognize that “[a] witness qualifies as an expert as long as his or her ‘knowledge,

skill, experience, training or education’ [can] deliver a helpful opinion to the jury.” Beaton v.

Malouin, 845 A.2d 298, 301 (R.I. 2004) (quoting Owens v. Payless Cashways, Inc., 670 A.2d

1240, 1244 (R.I. 1996)).

        When litigants adduce technical or novel evidence at trial, the trial justice must act as a

gatekeeper and perform “a preliminary evidentiary hearing outside the presence of the jury in

order to determine whether such evidence is reliable and whether the situation is one on which

expert testimony is appropriate.” Morabit, 80 A.3d at 11 (quoting DiPetrillo v. Dow Chemical

Co., 729 A.2d 677, 685 (R.I. 1999)). The trial justice’s role as a gatekeeper is to assure that the

“proposed expert testimony, presented as a scientifically valid theory, is not mere ‘junk

science.’” Id. (quoting Owens v. Silvia, 838 A.2d 881, 891 (R.I 2003)). In so doing, “[t]he trial

justice thereby ensures that the trier of fact considers ‘only expert testimony that is based on

ostensibly reliable scientific reasoning and methodology.’” Id. at 11-12 (quoting Owens, 838

A.2d at 891).

        In DiPetrillo, 729 A.2d at 689, we provided four nonexclusive factors to the trial courts to

assist in the consideration of expert testimony involving novel or technical theories or



                                                - 16 -
procedures. Those factors are: “(1) whether the proffered knowledge can be or has been tested;

(2) whether the theory or technique has been subjected to peer review and publication; (3) the

known or potential rate of error; and (4) whether the theory or technique has gained general

acceptance in the relevant scientific field.” Id.; see Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579, 593-94 (1993). “Satisfaction of one or more of these factors may suffice to

admit the proposed evidence and the trial justice need not afford each factor equal weight.”

Morabit, 80 A.3d at 12. Furthermore, “when the proffered knowledge is neither novel nor highly

technical, satisfaction of one or more of these factors is not a necessary condition precedent to

allowing the expert to testify” and “[t]he proponent of the evidence need only show that the

expert arrived at his or her conclusion in what appears to be a scientifically sound and

methodologically reliable manner.” Owens, 838 A.2d at 892.

       It is our opinion that the trial justice did not abuse his discretion in allowing Agent Horan

to testify regarding cell phone technology—a field in which he is an expert by all accounts. We

agree with the trial justice that Agent Horan’s expert testimony regarding cell phone towers was

not novel. See United States v. Jones, 918 F. Supp. 2d 1, 7 (D.D.C. 2013); People v. Wells, No.

A112173, 2007 WL 466963, at *11 (Cal. Dist. Ct. App. Feb. 14, 2007) (“It is simply not true, as

[the] defendant contends, that the use of cell phones to locate a caller is new to the law. Cell

phone evidence has been introduced for that purpose in a number of cases across the country

* * *.”); People v. Davis, No. A109671, 2006 WL 2965368, at *10 (Cal. Dist. Ct. App. Oct. 18,

2006) (“[T]he technology in question is neither new to science or the law.”); Pullin v. State, 534

S.E.2d 69, 71 (Ga. 2000). Therefore, because no evidentiary hearing was necessary, the state

“need[ed] only [to] show that [Agent Horan] arrived at his * * * conclusion in what appear[ed] to

be a scientifically sound and methodologically reliable manner.” Owens, 838 A.2d at 892. After



                                              - 17 -
a careful review of both the hearing and trial transcripts, we are satisfied that the state has met

this burden.

       Moreover, defendant specifically noted that he had “never suggested that the science is

junk science.” Instead, his concern was that Agent Horan had not testified as to an opinion based

on a reasonable degree of technological certainty. However, Agent Horan’s inability to pinpoint

the exact location of the cell phones on the morning in question to a reasonable degree of

certainty does not render his testimony inadmissible.        Instead, the jury was tasked with

determining the weight of Agent Horan’s testimony in light of that fact. Moreover, defendant

availed himself of the opportunity, both at the hearing on the motion in limine and at trial, to

fully cross-examine Agent Horan on the limitations of cell phone tower science.

                            2. Rule 16: Alleged Discovery Violation

       Furthermore, defendant argues that the trial justice should have excluded Agent Horan’s

testimony under Rule 16 because Agent Horan “did not set forth any opinion much less the bases

and reasons for [his] opinion, and did not comply with either the discovery request [at trial] or

[Rule 16].” The defendant contends that the trial justice clearly abused his discretion when he

did “not fashion an effective remedy” after the state disclosed Agent Horan’s expert testimony

one month before trial, and he alleges that the one-month period was insufficient to prepare for

this testimony.

       “Rule 16 governs discovery procedures in criminal trials.” State v. Santiago, 81 A.3d

1136, 1140 (R.I. 2014). “It is well settled that ‘Rule 16 requires that discovery be made in a

timely manner * * * in order that defense counsel may marshal the information contained in the

discovery material in an orderly manner.’” State v. Rosado, 139 A.3d 419, 424 (R.I. 2016)

(quoting State v. Huffman, 68 A.3d 558, 568-69 (R.I. 2013)). “The overarching purpose of Rule



                                              - 18 -
16 is ‘to ensure that criminal trials are fundamentally fair.’” Santiago, 81 A.3d at 1140 (quoting

State v. Briggs, 886 A.2d 735, 754 (R.I. 2005)). “It includes a requirement that ‘[w]hen a

criminal defendant requests discovery material concerning witnesses the state may call to testify

at trial, Rule 16 obligates the state to produce only prior recorded statements of a witness, a

summary of the witness’s expected trial testimony, and any records of prior convictions.’” Id.

(quoting Briggs, 886 A.2d at 754).

       “A trial justice considering an alleged discovery violation pursuant to Rule 16 * * *

should examine four factors: (1) the reason for the nondisclosure; (2) the prejudice to the other

party; (3) whether or not a continuance can rectify any such prejudice; and (4) any other relevant

factors.” Rosado, 139 A.3d at 424 (quoting State v. Marte, 92 A.3d 148, 151 (R.I. 2014)). “It is

well established that, when this Court reviews questions regarding claimed Rule 16 discovery

violations, ‘the applicable standard is narrow: [T]he trial justice must have committed clear

error.’” Santiago, 81 A.3d at 1139 (quoting Briggs, 886 A.2d at 755). Therefore, because the

trial justice is in the best position to determine whether any harm has resulted from alleged

noncompliance with discovery motions, we will not disturb a trial justice’s ruling on claimed

Rule 16 violations absent a clear abuse of discretion. See State v. Wilson, 568 A.2d 764, 767

(R.I. 1990).

       It is our opinion that the trial justice did not abuse his discretion in this case given that, at

the May 28 evidentiary hearing, the trial justice specifically informed defense counsel that “if it

turn[ed] out that [he] need[ed] additional time, * * * [he would] get the extension, the time that

[he] need[ed].” The defendant’s decision not to request a continuance is fatal to his claim of

error on appeal. See Rosado, 139 A.3d at 425. Accordingly, based on the circumstances of this

case, we are of the opinion that the trial justice’s decision to allow the testimony and not sanction



                                                - 19 -
the state, as defendant had requested, was well within his discretion, and we decline to disturb

his ruling.

                                                 C

                                       Cell Phone Records

         The defendant also contends that the trial justice abused his discretion in admitting his

MetroPCS cell phone records (MetroPCS records) through Susan Johnson, an employee of T-

Mobile. In particular, defendant claims that the trial justice erred in admitting the evidence

under the business-records exception to the hearsay rule because the pertinent “records were kept

in the ordinary course of business of MetroPCS, not T-Mobile.” Additionally, defendant asserts

that the cell phone records could not be authenticated by Johnson because she did not physically

have the cell phone records when testifying at trial.

         At trial, Johnson testified that, for eighteen years, she managed cell phone records at T-

Mobile. In 2013, after T-Mobile and MetroPCS merged, Johnson also became responsible for

maintaining MetroPCS records. At that time, she was trained on the procedures of MetroPCS for

storing and providing records, which were the same as T-Mobile’s. Because T-Mobile and

MetroPCS records did not merge, in order to obtain the pertinent records for this case (cellular

data from 2012), Johnson had to contact another MetroPCS employee who was responsible for

maintaining MetroPCS records.18 On cross-examination, Johnson acknowledged that she had

obtained the MetroPCS records the Friday before she testified from the MetroPCS employee

who first received the request in 2012 and that, from 2012 through 2015, the records were kept

with MetroPCS, not T-Mobile.




18
     When the subpoena in this case was first issued in 2012, T-Mobile did not yet own MetroPCS.

                                               - 20 -
       Following Johnson’s testimony, a colloquy ensued in which defense counsel, as he had

done prior to Johnson taking the stand, contended that the MetroPCS records could not be

authenticated by Johnson as she had “readily acknowledged” that the MetroPCS records were

not kept in T-Mobile’s ordinary course of business. Following a recess and further arguments

from both sides, the trial justice noted that he was satisfied that the cell phone records met the

business-record rule exception and that they satisfied Rule 901 of the Rhode Island Rules of

Evidence.    The trial justice reasoned that, although “Johnson was not an employee of

Metro[PCS] in 2012, she [was], however, entirely familiar with how Metro[PCS] kept its

records. She ha[d] firsthand knowledge in that respect because she visited the Metro[PCS]

center in Texas and personally familiarized herself with its operations to make that

determination.”   He further noted that the T-Mobile and MetroPCS records “were kept in

precisely the same way.” In quoting Rhode Island Managed Eye Care, Inc. v. Blue Cross & Blue

Shield of Rhode Island, 996 A.2d 684, 692 (R.I. 2010), the trial justice opined that the persuasive

force of the records was for the jury to decide.

       Rule 801(c) of the Rhode Island Rules of Evidence defines hearsay as “a statement, other

than one made by the declarant while testifying at the trial or hearing, offered in evidence to

prove the truth of the matter asserted.” Hearsay testimony, unless meeting an exception to the

rule, is generally inadmissible at trial. See Rule 802 of the Rhode Island Rules of Evidence. Rule

803(6) of the Rhode Island Rules of Evidence, colloquially characterized as the “business-

records exception” to the hearsay rule, allows a business record into evidence if it was “made at

or near the time * * * of a regularly conducted business activity,” which must be “shown by the

testimony of the custodian or other qualified witness * * *.”




                                               - 21 -
       This Court has set forth a four-part test for examining and admitting business records into

evidence:

               “First, the record must be regularly maintained in the course of a
               regularly conducted business activity. Second, the source of the
               information must be a person with knowledge. Third, the
               information must be recorded contemporaneously with the event or
               occurrence, and fourth, the party introducing the record must
               provide adequate foundation testimony.” Martin v. Lawrence, 79
               A.3d 1275, 1282 (R.I. 2013) (quoting Rhode Island Managed Eye
               Care, Inc., 996 A.2d at 691).

Furthermore, “[i]n order ‘[t]o provide [an] adequate foundation a party must prove the first three

requirements and authenticate the document or record.’” Id. (quoting Rhode Island Managed Eye

Care, Inc., 996 A.2d at 691).

       Rule 901 sets forth the analysis to properly authenticate evidence. Rule 901(a) provides

that authentication is a “condition precedent to admissibility.” “The advisory committee’s note

to Rule 901 informs that ‘authentication and identification are regarded as a special aspect of

relevancy’; evidence is relevant only if it is in fact what the party seeking its admission claims it

to be.” O’Connor v. Newport Hospital, 111 A.3d 317, 323 (R.I. 2015) (quoting Rule 901

Advisory Committee Notes). “[T]he burden of proof for authentication[,] [however,] is slight.”

Id. (quoting United States v. Reilly, 33 F.3d 1396, 1404 (3d Cir. 1994)).

       Indeed, “[a]uthentication is not a high hurdle to clear: Rule 901(a) merely requires

‘evidence sufficient to support a finding that the matter in question is what its proponent

claims.’” McGovern v. Bank of America, N.A., 91 A.3d 853, 860 (R.I. 2014) (quoting Rule

901(a)). “This Court has taken a flexible and pragmatic approach to Rule 901 by allowing ‘a

document’s authenticity [to] be established in any number of different ways.’” O’Connor, 111

A.3d at 323 (quoting McGovern, 91 A.3d at 860). “We have previously held that ‘document

authenticity need not be established by any particular means * * * [but] may be accomplished by


                                               - 22 -
any of the methods enumerated in Rule[s] 901 or 902.’”19 O’Connor, 111 A.3d at 323 (quoting

State v. Oliveira, 774 A.2d 893, 925 (R.I. 2001)). “In making Rule 901 determinations, trial

justices must decide whether there is enough support in the record to conclude that it is

‘reasonably probable’ that the evidence is what its offeror [pro]claims it to be. * * * If so, then

the evidence’s suasive force is for the jury to decide.” O’Connor, 111 A.3d at 323 (quoting

Oliveira, 774 A.2d at 926). “Thus, a trial justice ‘need not find that the evidence is necessarily

what the proponent claims, but only that there is sufficient evidence that the jury ultimately

might do so.’” Id. (quoting United States v. Safavian, 435 F. Supp. 2d 36, 38 (D.D.C. 2006)).

        It is our opinion that the trial justice did not abuse his discretion in allowing the cell

phone records to be admitted into evidence through Johnson, as she had knowledge of the

record-keeping of MetroPCS. Moreover, Johnson testified that she spoke to the record keeper of

the MetroPCS data and that MetroPCS followed the same processes for storing data as T-Mobile.

Additionally, we are satisfied that the trial justice did not abuse his discretion in finding that the

cell phone records were properly authenticated. As noted, “[a]uthentication is not a high hurdle

to clear,” McGovern, 91 A.3d at 860; and, after a careful review of the record, we are of the

opinion that “there is enough support * * * to conclude that it is ‘reasonably probable’ that the

evidence is what [Johnson] [pro]claim[ed] it to be.” O’Connor, 111 A.3d at 323 (quoting

Oliveira, 774 A.2d at 926). Accordingly, we perceive no error in the trial justice’s evidentiary

ruling as it relates to the cell phone records.




19
   Rule 901(b) of the Rhode Island Rules of Evidence provides a nonexclusive list of ways to
authenticate evidence; Rule 902 of the Rhode Island Rules of Evidence lists documents that are
self-authenticating.

                                                  - 23 -
                                                III

                                     Motion for a New Trial

       Finally, defendant argues that the trial justice erroneously denied his motion for a new

trial because the weight of the evidence was insufficient to support his convictions. Specifically,

he contends that the jury should not have been allowed to consider the testimony of Dyer and

Malave because they were not credible witnesses at trial. In addition, defendant contends that

his second-degree murder charge should be vacated because there was “no evidence of any type

of malice necessary to sustain a second[-]degree murder conviction.”

                                                 A

                                       Standard of Review

       On a motion for a new trial pursuant to Rule 33 of the Superior Court Rules of Criminal

Procedure, “the trial justice places himself or herself in the role of a ‘thirteenth juror’ and then

exercises his or her independent judgment as to the credibility of the witnesses and the weight of

the evidence.” State v. Grantley, 149 A.3d 124, 131 (R.I. 2016) (quoting State v. Matthews, 111

A.3d 390, 398 (R.I. 2015)). “[T]he 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 Matthews, 111 A.3d at 398).

       “If, after conducting this independent review, the trial justice agrees with the jury’s

verdict or if the evidence is such that reasonable minds could differ as to the outcome, the motion

for a new trial should be denied.” State v. Clay, 79 A.3d 832, 842 (R.I. 2013) (quoting State v.

LaPierre, 57 A.3d 305, 310 (R.I. 2012)). “Only when the trial justice does not agree with the

jury’s verdict, [must he or she] embark on a fourth analytical step.” Id. The fourth step of the



                                               - 24 -
analysis requires the trial justice to “determine whether the verdict is against the fair

preponderance of the evidence and fails to do substantial justice. If the verdict meets this

standard, then a new trial may be granted.” State v. Guerra, 12 A.3d 759, 765-66 (R.I. 2011)

(quoting State v. Rivera, 839 A.2d 497, 503 (R.I. 2003)).

       “When reviewing a trial justice’s decision on a motion for a new trial, ‘[w]e accord great

deference * * * because a trial justice, being present during all phases of the trial, is in an

especially good position to evaluate the facts and to judge the credibility of the witnesses.’”

Grantley, 149 A.3d at 131 (quoting State v. Florez, 138 A.3d 789, 794-95 (R.I. 2016)). “If the

trial justice has articulated adequate grounds for denying the motion, his or her decision is

entitled to great weight and will not be overturned by this Court unless he or she has overlooked

or misconceived material evidence or was otherwise clearly wrong.” Id. (quoting Florez, 138

A.3d at 793).

                                                B

                                Counts 2 and 3: Felony Assault

       At trial, Dyer testified that, on June 30, 2012, after posting an ad for escort services on

Backpage, she received a phone call from someone whom she had never met—but whom she

would later identify as defendant. After discussing her fee over the phone, she noted the caller’s

address and planned to go to 391 Farmington Avenue at the end of her shift at the Cheaters

exotic dancing club (Cheaters). She attested that she left work at 1 a.m. and took a cab to the

property, where defendant was waiting for her at the end of the driveway. The two proceeded to

walk towards the garage, and Dyer believed that they were going into the basement of the




                                              - 25 -
residence through the back.20 As they walked, the two shared a cigarette and were no more than

an arm’s length away from each other. Dyer described defendant as “white,” and “tall” with

“evil and empty” eyes.

       As they continued up the driveway, defendant “kept asking [her], [a]re you alone?”

After confirming a few times that she was, she testified that defendant thereafter “pulled out [a]

gun and said be quiet and get in the garage.” She described the weapon as “a black handgun”

that he pulled from his waistband. She testified that defendant told her: “Go in the garage. I

won’t hurt you.” She then recounted that, while in the garage, “[she] got to talking to him, and

[she] got to a point where [she] could turn [her] back so [she] could walk down the driveway,

and that’s when [she] ran” and “[defendant] chased [her] all the way down the driveway.” Dyer

explained that she “got almost to the end” of the driveway when defendant hit her hard in the

back of the head and she fell in the middle of the road. She could not identify exactly what hit

her head, but described it as hard and indicated that it did not feel like a fist. Dyer testified that,

at that time, she yelled, “Help, rape,” and someone turned on a light and defendant ran “[b]ack

towards the garage.”

       Dyer testified that she then ran “for about five, ten minutes” until she was picked up by a

stranger. While sitting in the stranger’s vehicle, she noticed an injury to her forearm and the

stranger drove her to the hospital. After waiting at Rhode Island Hospital for a few hours

without being attended to, Dyer took a cab to Landmark Medical Center in Woonsocket, where

she was treated. She testified that she told the doctor at the hospital that she “fell” because she

“didn’t want to go in and say [she] was a prostitute, and [her] date [had] just beat [her] up * * *.”

She also confirmed that she did not go to the police to report the incident at that time.

20
  She identified the garage from June 30, 2012, as being the same garage where Grier’s body
was found.

                                                - 26 -
       Approximately two weeks later, Dyer saw on the news “[t]hat a girl was killed in a

Cranston garage in the same address [she] went to,” and she knew the girl because they had

worked at Cheaters together. She testified that, after disclosing her own incident at the garage to

two individuals at Cheaters, her boss called the Cranston police, and they came to her place of

work and took her to the Cranston Police Department. At the police station, she spoke to Det.

Gates and gave a statement. She later testified that she was shown six photographs and that she

identified defendant as her assailant. She went through the photo array a total of three times

before identifying defendant. During the first array, she did not identify anyone; during the

second, she identified two pictures as the possible assailant; and during the third, she identified

defendant.

       Doctor George Shervanick, a physician who was employed in the emergency room at

Landmark Medical Center in June 2012, testified that he treated Dyer for a laceration to her left

elbow, requiring fifteen sutures, abrasions to both knees and the left side of her hip, and left rib

pain. Doctor Shervanick testified that, although Dyer denied a head injury when he specifically

asked her, a history taken from Dyer by a nurse indicated: “hit head (back), no [loss of

consciousness].”

       Furthermore, Det. Cahill reviewed the cell phone records between defendant’s and

Dyer’s cell phones. His investigation revealed that, on the early morning of June 30, 2012, from

12:24 a.m. to 4:36 a.m., five phone calls and several text messages were exchanged between the

two phones and that defendant’s cell phone connected to towers in the area of the garage during

those transmissions.

       In defendant’s motion for a new trial following the jury’s verdict finding him guilty of

two counts of felony assault upon Dyer pertaining to the June 30, 2012, incident, defendant



                                               - 27 -
contended that Dyer was not a credible witness and that her identification of defendant as her

assailant could not be relied upon. When considering the motion for a new trial and acting as the

thirteenth juror, the trial justice found that Dyer was a credible witness. He highlighted that her

failure to disclose a head injury at the hospital did not mean “that * * * defendant didn’t hit her

in the head.” The trial justice also noted that there had not been any pretrial request to suppress

either identification in this case, but he added that “any such pretrial motion based upon the

evidence adduced at the trial would have been unsuccessful.”              He expressed that the

discrepancies of the identification were brought out at trial and “were not lost on the jury or the

[c]ourt.”

                                                  C

                                        Count 10: Robbery

          Evonna Malave testified that, on June 24, 2012, she was at a Providence nightclub where

she met defendant and accepted his invitation to go to a house party on School Street in

Johnston.21 According to Malave, her family friend Sixto Reyes took her to the address; she said

that, upon arriving, she met with defendant, who was waving her down. The two went to the

basement through the back of the house. While in the basement, Malave noticed a handgun

between boxes near them. She testified that she was scared and nervous and that, at that time,

defendant performed cunnilingus on her and had vaginal sex with her.             She testified that

defendant told her “to do anything he said * * * so he wouldn’t use the gun.” She testified that

defendant stopped having sex with her when her friend, Reyes, contacted defendant’s phone, at

which time defendant put the gun in a backpack which he had and the two went upstairs so that

she could call Reyes back. After Malave spoke to Reyes and arranged for him to pick her up,



21
     In 2012, defendant’s father and stepmother resided on School Street in Johnston.

                                                - 28 -
defendant began acting nervous and looking up and down the street and “asked [Malave] if [she]

had * * * any cash on [her], and [she] told him yeah. He asked [her] if [she] could pass it over to

him, and [she] did.” She attested that, when he asked for the money, he had one hand on the

backpack and one hand inside the backpack holding the gun and that she felt threatened. She

recalled that defendant then got inside a vehicle and left and she was eventually picked up by

Reyes. Malave attested that, after informing the police what happened, they sent her to Women

& Infants Hospital in Providence and that, after waiting “for hours” at the hospital and not being

attended, she left.

        On July 26, Malave was contacted by the Cranston police, who directed her to the

Johnston Police Department, where she gave a statement. At the police department, she was

given a photo array, from which she identified defendant; she recalled being a “hundred percent

sure” that he was her assailant. During cross-examination, the defense demonstrated that a

written statement given to the police, purportedly from Malave, indicated that her assailant had

blond hair, tattoos on both arms, and crooked teeth—a description that did not resemble

defendant; at trial, however, Malave denied making this statement.

        The jury returned not-guilty verdicts on the sexual assault charges, but found defendant

guilty of robbery relating to the June 24, 2012, incident with Malave. In his motion for a new

trial, defendant highlighted that Malave had identified the perpetrator as “having blond hair and

tattoos,” but that the photo array presented to Malave contained individuals who all looked like

defendant. The defendant also made the court aware that Malave “could not recall what the

person looked like” and therefore had Det. Gates bring a picture of defendant before she testified

at trial. The defendant argued that Malave was not a credible witness and that her testimony

regarding the incident should, accordingly, not have been given any weight.



                                              - 29 -
       The trial justice stated that “[t]here was little question that * * * Malave was a prostitute

and that [Reyes] was her so-called pimp.” He noted that, while defendant was acquitted of the

sexual assault count, this did not “diminish the conviction of the robbery charge.” The trial

justice had “no hesitation in concluding that [Malave] indeed saw * * * defendant’s firearm

during that assignation.” The trial justice found that “defendant knew full well that she had

money” and that he “simply decided to retrieve it.” The trial justice found Malave credible in

this regard and noted that a handgun found in defendant’s backpack when he was arrested

provided further support for her allegations. He concluded that the “jury decided, after assessing

the entirety of the evidence in the case, that * * * defendant had his hand on his weapon in his

backpack” when he robbed Malave, that “[t]he presence of the weapon * * * raise[d] the level of

the offense to first-degree robbery, and [he] concurr[ed] with that verdict.”        He noted the

discrepancies between her description of her assailant and her subsequent identification of

defendant, but indicated that “[s]he was with [her assailant] for a lengthy period of time. And

the jury simply ignored, with justification, in [his] view, the hair and any discrepancy, and [he]

[did] not fault the jury for having done so. She knew full well with whom she was with that

night, and her identification of * * * defendant was not at all mistaken.”

                                                 D

                                Count 1: Second-Degree Murder

       At the hearing on the motion for a new trial, defendant noted that “the evidence that[]

[had] been presented [was] devoid of any indication that [malice] was present” as required to

support a conviction for second-degree murder. He argued that, because the cause of Grier’s

death was “undetermined homicide” due to the body’s decomposition, Dr. Revercomb’s

testimony was circular and did not sustain a second-degree murder conviction.



                                               - 30 -
       In assessing the evidence and denying the new-trial motion, the trial justice noted that,

while the state had spent significant time “introducing cell phone evidence, putting * * * Grier’s

phone in the vicinity of * * * defendant’s phone in the Cranston area,” thus “help[ing] to fix the

date of [Grier’s] death on or about the 15th of July, 2012,” this testimony “was not as compelling

as the evidence provided by * * * Oduntan.” Noting that Oduntan’s testimony came with its own

“historical warts and blemishes,” as he had his own lengthy criminal history and had been a paid

informant for the federal government, the trial justice explained that “the jury also learned other

unshakeable things about Oduntan.”        He was a lifelong family friend of defendant and

defendant’s family and was apparently a dependable and credible informant for the federal

government given their extended relationship.      The trial justice also highlighted Oduntan’s

ability to recount details of the case that “could only have come from [defendant],” including the

style of clothing that Grier wore when she was killed. Moreover, given Oduntan’s relationship

with defendant, it was likely defendant would have confided in him.

       The trial justice also cited to Oduntan’s testimony regarding statements defendant made

in prison—including that Grier was just a prostitute and that he had left her body behind a sofa in

the garage—in concluding that the evidence presented supported a finding of malice. Moreover,

he highlighted that several witnesses, including Nhim and Larney, testified that defendant was

using the garage as his homestead, that Pich saw “defendant alone in the garage late in the early

hours of July 15th,” and that Dyer had also testified that defendant had tried to force her at

gunpoint in that same garage “a few weeks earlier.”

       The trial justice concluded that, “if * * * Oduntan’s testimony was accepted,

[d]efendant[’s] * * * conviction on [this] charge was foreordained.” Because he, too, “found




                                              - 31 -
[Oduntan’s] testimony in this instance and in this case credible and persuasive,” he denied

defendant’s motion for a new trial on count 1.

       After a careful review of the trial transcript in its entirety and of the decision of the trial

justice denying the motion for a new trial, we are satisfied that he “articulated adequate grounds

for denying the motion.” Grantley, 149 A.3d at 131 (quoting Florez, 138 A.3d at 793). Clearly,

as summarized in this decision, the trial justice carefully reviewed the testimony and weighed the

evidence before him. He specifically noted the shortcomings and inconsistencies of certain

witnesses, but he ultimately concluded, based on his own credibility determinations, that the

weight of the evidence supported guilty verdicts as to counts 1, 2, 3, and 10 of the indictment.

We are confident that the trial justice did not overlook or misconceive material evidence nor was

he otherwise clearly wrong, and we therefore decline to disturb his decision.

                                                  IV

                                            Conclusion

       For the reasons stated herein, we affirm the judgment of the Superior Court. The record

of this case shall be returned thereto.




                                                 - 32 -
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        State v. James Adams.
                                     No. 2016-116-C.A.
Case Number
                                     (P1/13-3713AG)
Date Opinion Filed                   June 19, 2017
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Chief Justice Paul A. Suttell

Source of Appeal                     Providence County Superior Court

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

                                     Aaron L. Weisman,
                                     Department of Attorney General
Attorney(s) on Appeal
                                     For Defendant:

                                     Jodi M. Gladstone, Esq.




SU-CMS-02A (revised June 2016)
