                                                     Supreme Court
                                                     No. 2012-120-C.A.
                                                     (P1/93-2785A)


        State                     :

         v.                       :

Thomas G. Lamoureux.              :




    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. 2012-120-C.A.
                                                                  (P1/93-2785A)


                   State                       :

                     v.                        :

          Thomas G. Lamoureux.                 :


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

                                          OPINION

       Justice Indeglia, for the Court. Thomas G. Lamoureux (Lamoureux or defendant)

appeals from a Superior Court judgment of conviction declaring him to be in violation of his

probation and executing seven years of his previously imposed suspended sentence. On appeal,

he challenges the sufficiency of the evidence in support of this judgment. This case came before

the Supreme Court for oral argument on December 6, 2012, pursuant to an order directing the

parties to appear and show cause why the issues raised in this appeal should not be summarily

decided. After carefully considering the written and oral submissions of the parties, we are

satisfied that this appeal may be resolved without further briefing or argument. For the reasons

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

                                                   I

                                        Facts and Travel

       Lamoureux pled guilty to manslaughter on September 26, 1994. He received a sentence

of thirty years in prison, with ten years to serve and twenty years suspended, along with twenty




                                             -1-
years probation. Since then, he has twice been adjudged a probation violator. 1 Lamoureux’s

third and most recent probation violation is the subject of this appeal. The events underlying the

adjudication now before us for review took place on October 7 and 8, 2011. Those events were

described in detail at a hearing held before a justice of the Superior Court on December 7, 2011.

We now summarize that proceeding, omitting testimony not relevant to our disposition of this

appeal.

          Two siblings testified for the prosecution: Joanne Michaud and David Michaud. 2 Joanne

testified that as of October 2011, she had known Lamoureux for a long time and had been dating

him for four years. On October 7, 2011, Lamoureux arrived uninvited at her apartment in

Woonsocket at around 4 p.m. She recalled that after he arrived, Lamoureux asked her for some

money. When she declined that request, he reached over her and used a pair of scissors to cut

the strap of her purse, which she had been wearing on her shoulder. Joanne explained that when

Lamoureux leaned toward her to cut the strap of her purse, she thought he was about to embrace

her. He then slapped her across the face, went through her purse, and took the money inside—

about $480. She testified that she had a red mark on her face after this incident. When she told

him that she was going to call the police, he “took off.” Soon after, Joanne gave a statement to

police in which she recounted the details of this encounter.

          Despite this incident, the following day, on October 8, 2011, Joanne accompanied

Lamoureux and his mother to the annual Autumnfest in Woonsocket. Apparently, Joanne did

not discuss the previous day’s events with Lamoureux; she stated that “[h]e never remembers.”

1
  In March 2004, Lamoureux was ordered to serve 120 days in prison, with 236 months
remaining suspended. In January 2011, he was ordered to serve six months in prison, with 230
months remaining suspended. The latter violation stemmed from an incident involving Joanne
Michaud, one of the complaining witnesses in this case.
2
  We refer to Joanne and David by their first names for the sake of clarity and intend no
disrespect.


                                             -2-
She explained that she normally used a wheelchair to get around because of various medical

issues and did not want to go to the Autumnfest alone for this reason. Once at the Autumnfest,

Joanne gave Lamoureux some money; he then became separated from her and his mother. At

some point, she left the Autumnfest to visit her brother, David, for a barbecue at his house.

When she arrived, Lamoureux was there.

       Joanne testified that her brother and the other guests at the barbecue wanted Lamoureux

to leave because he was intoxicated. 3 When she and David asked him to leave, he grabbed a

case of beer from her and tore it open. Lamoureux “punched [her] in the stomach and grabbed

[her] purse and then * * * picked [her] up by the throat and threw [her] on the ground.” He then

picked up a steak off the grill and flung it at David. Next, Lamoureux flipped over the grill and

“charged after” David. Lamoureux, she said, tore David’s shirt off and, at some point after

David attempted to defend himself, pulled a knife on him. Joanne averred that she recognized

the knife as hers; it had been in the purse Lamoureux had stolen from her the previous day.

Lamoureux then cut David’s arm and stabbed him in the stomach twice. At some point, David

“grabbed [Joanne’s] wheelchair to push [Lamoureux] away from him and pin him down * * *.”

After police were called, Lamoureux “took off.” Joanne claimed that although she told police

that Lamoureux had thrown the knife into a neighbor’s yard, the police “wouldn’t go in the next

yard to get the knife.”

       On cross-examination, Joanne admitted that when police came to take her statement after

the incident on October 7, 2011, she had not explained exactly how Lamoureux had stolen

money from her. She said that she did not tell the police that he had cut her purse strap with



3
  Although there was some inconsistency as to whether anyone besides Joanne, David, David’s
girlfriend, and Lamoureux were at the barbecue, this is irrelevant to our disposition of this
appeal.


                                            -3-
scissors because “[t]hey didn’t ask me.” In addition, she testified that, while she had told police

that Lamoureux had broken a chair in her apartment that day, she did not actually see him do so.

Concerning the altercation at the barbecue on October 8, 2011, Joanne explained that the police

refused to take a statement from her that day. She also claimed that the police told her to leave

her wheelchair “for evidence because it was covered in blood * * *.” Lastly, she explained that

although she had called the police several times before October 2011 to report break-ins at her

apartment and had identified Lamoureux as the perpetrator in one of these reports, no charges

were filed against him as a result of these reports.

       David was the next witness to testify at the hearing. His testimony largely corroborated

that of his sister’s. He explained that when Lamoureux arrived uninvited at his house on October

8, 2011, the two men went to the backyard and had a beer. Lamoureux asked David and his

girlfriend for more beer, but neither of them obliged.         David then described the ensuing

altercation, recounting that incident more or less as Joanne had described it.

       A photograph of a stab wound David sustained during the altercation was introduced into

evidence over Lamoureux’s objection.         On cross-examination, David admitted that in his

statement to police, he told them that he had not seen Lamoureux with a knife. In response to a

question from the hearing justice, David confirmed that he had not seen Lamoureux pull a knife

on him during the fight.

       Finally, defense counsel called Officer Jason Berthelett of the Woonsocket Police

Department. Officer Berthelett testified that he was on duty on October 8, 2011, the day of the

altercation at the barbecue. Apparently, after leaving David’s house, Lamoureux encountered

other police officers nearby.     The officers noticed that Lamoureux had some injuries and

requested that an ambulance be dispatched to their location.          Officer Berthelett first saw




                                              -4-
Lamoureux in the back of that ambulance, where he was being attended to by paramedics. He

explained that he came into contact with Lamoureux because “he * * * matched a description of

a person who had fled the scene of a potential other crime * * *.” He noticed that Lamoureux

had “a couple of cuts” on his body. After speaking with Lamoureux, Officer Berthelett went to

David’s house. There, he observed a laceration on David’s arm. He stated that a knife was not

recovered from the scene of the altercation. Officer Berthelett testified that, although he did not

personally search for the knife, he requested other officers to do so. It was unclear, however,

whether other officers actually searched the neighboring yard for the knife.

       After hearing arguments from counsel, the hearing justice articulated the standard of

proof applicable to the proceeding: “[T]he [c]ourt must be reasonably satisfied that the actions of

the defendant are sufficient * * * to find that he has not kept his promise to keep the peace and

be of good behavior * * *.” He characterized the events recounted by the Michaud siblings as a

“bizarre story of interpersonal relations.” The hearing justice described Joanne’s conduct—

specifically, accompanying Lamoureux to the Autumnfest the day after she claimed he assaulted

her—as “[b]izarre but not unbelievable.” After reviewing the evidence presented at the hearing,

he concluded that Lamoureux “[had] put himself into unseemly and probably criminal activities

within [twenty-four] hours of each other.” He found that Lamoureux had violated his probation

“by the actions occasioned to [Joanne] on October 7th and October 8th and in the melee that I

believe he precipitated in [David’s backyard].”

       The hearing justice sentenced Lamoureux to serve seven years of his previously

suspended sentence, with the balance of that sentence remaining suspended. Judgment against




                                             -5-
Lamoureux entered on January 20, 2012, followed by a corrected judgment making his sentence

retroactive to October 8, 2011, the date of his arrest. 4 Lamoureux timely appealed to this Court.

                                                II

                                         Issue on Appeal

       The only issue on appeal is whether the evidence presented at the probation-violation

hearing was sufficient to support the hearing justice’s finding that Lamoureux had violated the

terms of his probation under Rule 32(f) of the Superior Court Rules of Criminal Procedure.

Lamoureux characterizes that evidence as “dubious, conflicting, and minimal.” He contends that

Joanne’s testimony about the incident at her apartment on October 7, 2011, conflicted with the

account of that incident she gave to police that day. He argues that Joanne’s version of that

day’s events is doubtful, given her testimony that she accompanied him to the Autumnfest on the

next day. As to the incident on October 8, 2011, Lamoureux points out that he was not charged

as a result of his alleged assault on Joanne.         Lamoureux notes that the hearing justice

characterized his behavior as “untoward” and “unseemly,” which, according to Lamoureux,

suggests that the evidence was insufficient to prove that he violated the terms and conditions of

his probation.

                                                III

                                      Standard of Review

       “The sole issue for a hearing justice to consider at a probation-violation hearing is

whether or not the defendant has breached a condition of his or her probation by failing to keep

the peace or remain on good behavior.” State v. Delarosa, 39 A.3d 1043, 1049 (R.I. 2012)



4
  Although Lamoureux’s notice of appeal to this Court was premature, we treat such a filing as
timely. See State v. Delarosa, 39 A.3d 1043, 1049 n.12 (R.I. 2012) (citing State v. Pona, 13
A.3d 642, 646 n.3 (R.I. 2011)).


                                             -6-
(quoting State v. English, 21 A.3d 403, 406 (R.I. 2011)). The state must produce “‘reasonably

satisfactory’ evidence [to support] a finding that the defendant has violated his or her probation.”

Id. (quoting State v. Bouffard, 945 A.2d 305, 310 (R.I. 2008)). “In determining whether or not a

defendant has committed a probation violation, the hearing justice is charged with weighing the

evidence and assessing the credibility of the witnesses.” Id. at 1049-50 (quoting State v. Pona,

13 A.3d 642, 647 (R.I. 2011)). We confine our review of a finding of a violation of probation

“to considering whether the hearing justice acted arbitrarily or capriciously in finding a

violation.” Id. at 1050 (quoting English, 21 A.3d at 407). Because the merits of any new

charges are not the focus of a probation-violation hearing, see State v. Brown, 915 A.2d 1279,

1282 (R.I. 2007), they are not the focus of our review on appeal. 5

                                                IV

                                            Discussion

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

arbitrarily or capriciously in finding that Lamoureux had violated the terms and conditions of his

probation. With respect to the events of October 7, 2011, Joanne’s testimony regarding that

incident was consistent in all material aspects with the statement she gave to police that day.

That day, and at the hearing, she stated that the incident had occurred around 4 p.m., that

Lamoureux had taken $480 from her, and that he slapped her across the face after taking her

money. Although she did not mention that Lamoureux had broken one of her chairs when

describing this incident on direct examination, as she had told police on the day of the incident,




5
  In connection with the events described above, Lamoureux was charged with felony assault
with a dangerous weapon and domestic misdemeanor assault. After Lamoureux was adjudged to
be a probation violator, those charges were dismissed under Rule 48(a) of the Superior Court
Rules of Criminal Procedure.


                                             -7-
she did confirm this detail on cross-examination. In our view, the hearing justice did not err in

finding that, although Joanne’s account of this incident was “bizarre,” it was “not unbelievable.”

       Likewise, we must reject Lamoureux’s argument that the hearing justice erred in finding

that he had violated his probation by engaging in a “melee” in David’s backyard on October 8,

2011. The hearing justice correctly stated that he did not have to determine whether Lamoureux

had assaulted David with a dangerous weapon to find that Lamoureux had violated his probation.

Correctly focusing on Lamoureux’s behavior rather than on the sufficiency of the evidence

against him on the new charges, the hearing justice found that Lamoureux “[had] put himself into

unseemly and probably criminal activities within [twenty-four] hours of each other.”           The

hearing justice observed the witnesses in this matter, and our precedent requires us to afford

deference to his factual findings. We conclude, as did the hearing justice, that the evidence

adduced at the hearing was sufficient to support a finding that Lamoureux had violated the terms

of his probation.

                                                V

                                           Conclusion

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

which we remand the record in this case.




                                             -8-
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                   Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        State v. Thomas G. Lamoureux.

CASE NO:              No. 2012-120-C.A.
                      (P1/93-2785A)

COURT:                Supreme Court

DATE OPINION FILED: January 17, 2013

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

WRITTEN BY:           Associate Justice Gilbert V. Indeglia

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Francis J. Darigan, Jr.,

ATTORNEYS ON APPEAL:

                      For State:   Lauren S. Zurier
                                   Department of Attorney General

                      For Defendant: Lara E. Montecalvo
                                     Office of the Public Defender
