December 3, 2019




                                                                  Supreme Court

                                                                  No. 2018-129-C.A.
                                                                  (P1/14-2479A)



                        State                     :

                         v.                       :

                   Leopoldo Belen.                :




                   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-
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                   corrections may be made before the opinion is published.
                                                                 Supreme Court

                                                                 No. 2018-129-C.A.
                                                                 (P1/14-2479A)


                     State                      :

                      v.                        :

               Leopoldo Belen.                  :


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

                                          OPINION

       Justice Flaherty, for the Court.        The defendant, Leopoldo Belen, appeals from a

judgment of conviction after a jury found him guilty of four counts of first-degree sexual assault.

The defendant argues that the trial justice erred when he did not declare a mistrial after the

prosecutor made two improper comments during closing arguments. After thoroughly reviewing

the record and after considering the arguments of the parties, we affirm the judgment of conviction.

                                                    I

                                        Facts and Travel

       Belen and Emily1 met in Providence approximately one year before the alleged assault. On

the day the couple met, Emily was walking to her job at a fast-food restaurant when Belen

approached her in his car. From this chance encounter, Belen and Emily became friends, a

friendship that quickly developed into a romantic relationship. After they dated for a few months,

Belen and Emily moved together to an apartment in Woonsocket.




1
 To protect the anonymity of the complaining witness, we have used a pseudonym in place of the
victim’s name in this opinion.
                                                    1
       Belen was not working at that time, and soon thereafter Emily lost her job. Emily testified

at trial that, at Belen’s insistence, she became an “escort.” Emily testified that Belen “was pretty

persistent so eventually [she] just gave in.” While Emily was working as an escort, Belen would

drive her to and from her appointments with her customers.

       In the early morning of April 1, 2014, Emily claimed that she was sexually assaulted by

Belen in their shared apartment. Just days before the assault, Belen and Emily had cavorted with

an unnamed woman at a motel in Warwick, and, she testified, the three had engaged in a variety

of consensual sex acts during their overnight stay. After their weekend frolic, Emily and Belen

returned to their apartment. Emily described Belen’s demeanor at that time as “[e]xtremely

hostile.” Emily testified that, as a result, she “tried to keep [her] distance” that night. However,

some time during the night Emily noticed that the battery to her cell phone had been removed.

       The next morning, Belen woke Emily and asked whether she had smoked their last

cigarette. She told him that she had in fact smoked it. At that response, Emily said that, an

apparently enraged Belen began to physically assault her. According to Emily, Belen then began

to assault her sexually and physically over the course of the next two hours, at times raping her

with a hair mousse bottle. She said that she was naked and bleeding from her nose because of the

physical and sexual abuse. According to Emily, Belen, while cleaning up blood, became more

agitated at the fact that she was bleeding in the bathroom where he was assaulting her. She testified

that Belen closed all the windows and played music to cover up the clamor caused by the assault.

       At some point, Belen strangled Emily and she passed out. Emily testified that after she

regained consciousness she told Belen that she was feeling lightheaded and that she needed to eat

something. Belen then permitted her to go to the kitchen to heat up some food. When Belen turned

his back on her to go back to the bathroom, Emily covered her naked body with a sheet and fled



                                                 2
the apartment. She said that she ran downstairs and banged on a neighbor’s door. The neighbor

allowed her to come into the apartment and provided a phone so that Emily could call the police.

          When the police arrived, Belen was no longer in the apartment. Emily was transported to

the hospital by ambulance. At the hospital, a nurse performed an examination using a “sexual

assault kit.” At trial, an expert witness called by the state testified that Belen’s DNA had been

found on the can of hair mousse that Emily claimed had been used in the sexual assault. Belen’s

DNA was also present on swabs obtained from Emily’s body. Under cross examination, the expert

conceded that the DNA on the swabs could have been the result of consensual sex that may have

occurred from thirty-six to forty-eight hours before the test was administered to Emily.

          Emily’s neighbor testified at trial and said that she had not heard any screaming, banging,

or loud music emanating from the apartment shared by Emily and Belen. However, she also

testified that a frantic and hysterical Emily appeared at her door that morning clothed only in a

sheet.

          On August 18, 2014, a grand jury indicted Belen on four counts of first-degree sexual

assault in violation of G.L. 1956 § 11-37-2. Prior to the indictment, Belen, who was being held

without bail, made several phone calls to Emily. Those calls were recorded by the Adult

Correctional Institutions, and one of them was played for the jury at trial. Significantly, the trial

justice had granted defendant’s motion in limine and ordered that the fact that the call was

originally from the ACI be redacted. In the recorded phone call played for the jury, Belen

apologized to Emily, telling her that he made a mistake, he was not in his right state of mind, and

he was only human.2 Emily in response called Belen a monster, to which Belen replied: “Listen,

even monsters make mistakes.”



2
    We rely on the state’s transcript of the call, because Belen did not challenge its accuracy at trial.
                                                     3
          At the close of evidence, and during her final argument, the prosecutor made two

statements that lie at the heart of this appeal. First, the prosecutor inadvertently referred to the

“ACI” when she discussed the recorded phone conversation that had been played for the jury.3 In

her statement, the prosecutor said: “One thing you will have upstairs with you in the jury

deliberation room is the ACI—excuse me, is the phone call [Emily] told you about.”

          Second, also during her closing argument, the prosecutor said the following about the

victim’s testimony:

                 “In addition to telling these stories, as long as [defense counsel] is
                 going to make gender based arguments, I don’t know about all the
                 women on the jury, but I hate getting pap smears and a yearly exam
                 and that is one more thing she had to do that morning. When you
                 heard from the nurse, in order to have a sexual assault kit done, and
                 she was told and she gave consent that she would have a speculum
                 inserted into her vagina to take the vaginal swabs and then also
                 taking of the anal swabs. Again, one more thing to ask yourself,
                 why would she lie? Why would she make all this up? Doesn’t make
                 sense?”

          Belen’s attorney objected to the reference to the ACI after the prosecutor’s closing

argument had concluded. In addition, the trial justice, sua sponte, raised the issue of the prosecutor

having related her personal experience as part of her final argument. The trial justice ruled that

both of those comments were improper, and he suggested that he provide the jury with a cautionary

instruction. Belen declined the trial justice’s offer of a cautionary instruction, but he did make a

move to pass the case based on the reference to the “ACI.”4 The trial justice denied that motion

because, he said, the jury was not “so tainted that they could not continue to deliberate and render

a fair and impartial verdict[.]”




3
    It is not disputed that the prosecutor’s reference to the ACI was inadvertent.
4
    In Rhode Island, the terms “motion to pass” and “motion for a mistrial” are used interchangeably.
                                                   4
       The jury returned a verdict of guilty on all four counts of first-degree sexual assault. The

trial justice sentenced the defendant to four concurrent life sentences. Belen timely appealed.

                                                  II

                                        Standard of Review

       “It is well settled that a decision to pass a case and declare a mistrial are matters left to the

sound discretion of the trial justice.” State v. Roscoe, 198 A.3d 1232, 1237 (R.I. 2019) (quoting

State v. Dubois, 36 A.3d 191, 197 (R.I. 2012)). “We have often stated that the trial justice has a

front row seat during the trial so that he can best evaluate the effects of any prejudice on the jury.”

Id. (quoting Dubois, 36 A.3d at 197). “The ruling of the trial justice is accorded great weight and

will not be disturbed on appeal unless clearly wrong.” Id. (deletion omitted) (quoting Dubois, 36

A.3d at 197).

                                                 III

                                             Discussion

       Before this Court, Belen argues that the trial justice erred by (1) failing to grant his motion

to pass the case after the prosecutor made an inappropriate remark during her closing argument

when she referred to the “ACI,” and (2) failing to pass the case after the prosecutor improperly

vouched for the credibility of the victim during her closing argument.

                                                  A

                                           ACI Reference

       Belen first takes issue with the prosecutor’s inadvertent and brief reference to the ACI

during her closing argument. However, before we address this issue, we must first determine

whether the issue is properly before us. “To preserve an objection to a prosecutor’s closing

argument, defense counsel must not only make an objection at the time, but must make a request



                                                  5
for a cautionary instruction or move for a mistrial.” State v. Whitfield, 93 A.3d 1011, 1018 (R.I.

2014) (deletion omitted) (quoting State v. Horton, 871 A.2d 959, 964 (R.I. 2005)).

       The record is pellucid that Belen did voice an objection and that he moved for a mistrial.

What is also clear, however, is that Belen did not contemporaneously object at the time the

prosecutor made her statement.

       The relevant sequence of events is as follows: The trial justice chose to instruct the jury

before closing arguments, not after, in this case. After the prosecutor’s closing argument, the trial

justice determined that he should give one additional instruction.5 When he did so, the trial justice

inquired if either party needed a sidebar regarding the jury charge. At that time, Belen’s attorney

raised his objection to the prosecutor’s reference to the ACI, and he moved for a mistrial.

       Although the objection was not made immediately following the prosecutor’s comment, it

is our opinion that, under the circumstances before us, the objection was nonetheless timely. In

State v. Boillard, 789 A.2d 881 (R.I. 2002), we held that, in certain limited circumstances,

objecting after the prosecutor had completed his closing argument might preserve the objection.

Boillard, 789 A.2d at 884. Here, the prosecutor, in a slip of the tongue, used the term “ACI” in

the middle of a sentence. She immediately realized her mistake, and she moved on without further

incident. It was therefore unnecessary for defense counsel to lodge a contemporaneous objection

in an effort to stop the prosecutor from continuing to discuss Belen’s incarceration, a subject that

had been prohibited by the trial justice. Given the context of the remark, Belen’s objection was

timely even if not made immediately following the prosecutor’s remark.




5
 The trial justice’s instruction explained, in part, the rule that, in rendering a verdict, the jurors
must be unanimous and must agree on the verdict.
                                                  6
       Thus, we turn to the merits of the issue. “There is no formula in law which precisely

delineates the proper bounds of a prosecutor’s argument.” Roscoe, 198 A.3d at 1237 (brackets and

deletion omitted) (quoting State v. Tucker, 111 A.3d 376, 388 (R.I. 2015)). “Prosecutors enjoy

‘considerable latitude in closing argument, as long as the statements pertain only to the evidence

presented and represent reasonable inferences from the record.’” Id. (quoting State v. Barkmeyer,

949 A.2d 984, 1007 (R.I. 2008)). However, we have held that if a prosecutor’s remarks are “totally

extraneous to the issues in the case and tend to inflame and arouse the passions of the jury[,]” then

such comments are improper. Boillard, 789 A.2d at 885 (quoting State v. Mancini, 108 R.I. 261,

273, 274 A.2d 742, 748 (1971)). To merit a mistrial, the statement must not only be improper, but

also so prejudicial that a cautionary instruction would be insufficient to cure the prejudice. State

v. Martinez, 624 A.2d 291, 294 (R.I. 1993). “This [C]ourt has * * * recognized that there is no

fixed formula for determining whether a particular statement is prejudicial.” Id. “Rather, we must

evaluate the statement’s probable effect upon the outcome of the case.” Id. (brackets omitted)

(quoting State v. Pugliese, 117 R.I. 21, 26, 362 A.2d 124, 126-27 (1976)).

       There is no doubt in our minds that the prosecutor’s comment was improper. The issue

remains, however, whether the comment was so prejudicial in the context of this case that the

failure to grant a mistrial rises to an abuse of discretion. “This [C]ourt has previously recognized

that knowledge of a defendant’s incarceration may have a serious prejudicial influence on the

jury.” Martinez, 624 A.2d at 294. “The prejudicial effect that may arise from the jury’s knowledge

of a defendant’s incarceration results from the likelihood that the jury will infer that the defendant

is incarcerated as a result of previous criminal activity and is thus possessed of a general criminal

disposition.” Id. (quoting State v. Burke, 529 A.2d 621, 628 (R.I. 1987)).




                                                  7
       Belen argues that this case is similar to Pugliese and, thus, a mistrial was required. See

Pugliese, 117 R.I. at 27, 362 A.2d at 127 (holding that reference to the ACI in that case was

prejudicial because there was a reasonable possibility that it might have influenced the jury’s

decision). In our opinion, however, Belen’s reliance on Pugliese is misplaced. In Pugliese, the

state’s only identification witness referred to the defendant’s incarceration during the course of his

testimony. Id. at 125. The witness made the reference while the state was attempting to rehabilitate

the witness’s credibility after the witness had recanted his identification of the defendant as the

perpetrator. Id. When the state asked the witness whether anyone had approached the witness

about his testimony, the witness responded that a man had approached him and that the man said

“he was Pugliese’s friend from up at the A.C.I.” Id.

       The defendant objected and moved for a mistrial. Pugliese, 117 R.I. at 27, 362 A.2d at 125.

The trial justice denied the motion and did not offer to provide a cautionary instruction. Id. at 126.

During jury deliberations, the jury, after nearly five hours of deliberation, sent a note to the trial

justice saying they could not reach a verdict. Id. at 127. The trial justice urged the jury to continue

to deliberate and break the impasse. Id. The jury returned a guilty verdict almost an hour later. Id.

The jury attached a note to the verdict that said: “We have reached a verdict. God help us.” Id.

On appeal, this Court vacated the defendant’s conviction. Id. We are led to the conclusion that

this Court vacated the conviction for three reasons, all of which were based on the reference to the

defendant’s incarceration. Id. First, this Court was unable to conclude that there had not been an

impact on the jury. Id. Second, the reference to the defendant’s incarceration was made by a

witness, during the state’s attempt to rehabilitate the witness’s credibility. Id. at 125. Finally, the

evidence of guilt was far from overwhelming. Id. at 126.




                                                  8
       The present case is distinguishable from Pugliese. There is nothing in the record that would

indicate or even allow us to infer that the comment had any impact on the jury’s deliberations. In

fact, from his front-row seat, the trial justice observed that the abortive remark had “just slid past”

the jurors.   Furthermore, the prosecutor made the unintentional remark during her closing

argument; it was not uttered by a witness nor did it have any impact on the credibility of a witness.

Finally, even though there is no overwhelming evidence of guilt in this case, there is substantially

more evidence of guilt than was present in Pugliese. In Pugliese, the state’s witness who identified

the defendant had only briefly seen the defendant’s face. Pugliese, 117 R.I. at 24, 362 A.2d at 125.

The state’s other witness was unable to identify the defendant as the perpetrator. Id. In the case at

hand, even though the case essentially came down to the credibility of Emily, there was additional

corroborating evidence to support Emily’s allegations including physical evidence and Belen’s

own recorded statements.

       After thoroughly reviewing the record, we conclude that the trial justice acted within his

discretion in refusing to pass the case. The trial justice found that the comment likely had little

impact on the jury because the comment, in the trial justice’s words, “just slid past” them. The

context of the reference supports this conclusion. The term “ACI” was dropped by the prosecutor

into a completely unrelated sentence. The term was a non sequitur because it added nothing to the

meaning of the sentence. We cannot fathom that it was of such consequence to have had a

prejudicial impact on the jury.




                                                  9
                                                  B

                                        Improper Vouching

       Belen next takes issue with the prosecutor relating her personal experience during her

closing argument.6 However, the state argues that Belen waived this argument by failing to

properly object or move for a mistrial.

       As we have said, “[t]o preserve an objection to a prosecutor’s closing argument, defense

counsel must not only make an objection at the time, but must make a request for cautionary

instructions or move for a mistrial.” Whitfield, 93 A.3d at 1018 (deletion omitted).

       Here, defense counsel objected neither at the time the prosecutor made her comments nor

at the sidebar, nor did defense counsel move for a mistrial or request a cautionary instruction. In

fact, it was the trial justice who, sua sponte, raised the issue after closing arguments. At that time,

the trial justice ruled that the comment was improper, but he also explained that a mistrial was

unwarranted. In response, defense counsel candidly said:

               “I will say, your Honor, I did hear [the prosecutor’s] statement about
               that speculum or whatever the heck it is called and while I personally
               have no experience with it, I had because it was passing and
               maybe—well, I didn’t object.”




6
  The trial justice referred to the prosecutor’s personalization as violating what is sometimes known
as the “golden rule.” On the other hand, Belen argues that the personalization was in fact improper
vouching. This Court has never embraced or even defined the doctrine of the “golden rule”;
however, the Supreme Court of Connecticut has stated that a golden rule argument “urges jurors
to put themselves in a particular party’s place or into a particular party’s shoes[.]” State v. Stephen
J.R., 72 A.3d 379, 393 (Conn. 2013) (deletion omitted). We have defined improper vouching as a
prosecutor’s argument that introduces the prosecutor’s own experience or evidence not in the
record to bolster the credibility of a witness. Jaiman v. State, 55 A.3d 224, 237 (R.I. 2012).
Nonetheless the difference between these two doctrines is not relevant to this appeal. The trial
justice in the present case found that the comment was improper. Thus, the ultimate focus is on
whether it was prejudicial. We therefore decline to distinguish whether the prosecutor’s remark
constituted either vouching or a violation of the “golden rule.”
                                                  10
Thus, because counsel did not press an objection, move for a mistrial, or request a curative

instruction on that issue, it has been waived.

       In any event, we find no fault with the trial justice’s ruling.           We agree that the

personalization by the prosecutor was ill advised but conclude that it was not prejudicial to the

extent that it rendered the proceedings unfair. Furthermore, any potential prejudice was offset by

the trial justice’s general instructions that the parties’ closing arguments are not evidence.


                                                 IV

                                            Conclusion

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

record shall be remanded to the Superior Court.




                                                 11
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        State v. Leopoldo Belen.
                                     No. 2018-129-C.A.
Case Number
                                     (P1/14-2479A)
Date Opinion Filed                   December 3, 2019
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice Francis X. Flaherty

Source of Appeal                     Providence County Superior Court

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

                                     Lauren S. Zurier
                                     Department of Attorney General
Attorney(s) on Appeal
                                     For Defendant:

                                     Angela M. Yingling
                                     Office of the Public Defender




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