                                                    Supreme Court

                                                    No. 2012-176-C.A.
                                                    (P2/11-1196A)


     State                     :

       v.                      :

DeAnthony Allen.               :




 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. 2012-176-C.A.
                                                                     (P2/11-1196A)


                   State                       :

                     v.                        :

             DeAnthony Allen.                  :


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

                                          OPINION

       Justice Robinson, for the Court.            On November 10, 2011, a Providence County

Superior Court jury found the defendant, DeAnthony Allen, guilty of first degree child abuse for

inflicting serious bodily injury on his infant son in violation of G.L. 1956 § 11-9-5.3(b)(1). The

trial justice imposed upon the defendant the maximum sentence allowed under that law—twenty

years to serve.

       On appeal, defendant contends that the charge against him should have been dismissed

because the child abuse statute (viz., § 11-9-5.3) is unconstitutionally vague. He also argues that

the trial justice erred when he admitted a statement that defendant wrote at the police station;

defendant contends that he did not knowingly and voluntarily waive his Miranda rights1 before

providing that statement. Finally, defendant argues that the trial justice erred in denying his

motion for a judgment of acquittal and his motion for a new trial. For the reasons set forth in this

opinion, we affirm the judgment of conviction.

1
       Miranda v. Arizona, 384 U.S. 436 (1966).


                                               -1-
                                                I

                                       Facts and Travel

       On April 28, 2011, the state charged defendant, DeAnthony Allen, by criminal

information with one count of first degree child abuse in violation of § 11-9-5.3(b)(1); that

criminal charge related to an incident that occurred in November of 2010. On November 8,

2011, defendant filed two pretrial motions, both of which are relevant to this appeal. One was a

motion to suppress statements that defendant had made to the Pawtucket police because,

according to defendant, ―they were obtained through violations of the United States and Rhode

Island Constitutions.‖ The second motion contended that the criminal information should be

dismissed because the statute under which defendant was charged (viz., § 11-9-5.3) was

unconstitutionally vague.

       At a hearing on the pretrial motions, the court first addressed defendant‘s motion to

suppress. Only one witness testified at the hearing: Linda Bachand-Doucet, a detective in the

Pawtucket Police Department who investigated the incident that led to the criminal charge

against defendant.   At the hearing, Det. Bachand-Doucet testified regarding the following

version of events.

       On November 14, 2010, Det. Bachand-Doucet went to Hasbro Children‘s Hospital after

receiving instructions to investigate an incident of alleged child abuse. After speaking with a

physician at the hospital, a representative of the Department of Children, Youth and Families,

and the infant‘s mother, the detective tried to reach defendant by telephone, but was

unsuccessful. However, two days later, defendant called Det. Bachand-Doucet back, and she

told him that the police ―needed to talk to him about the baby.‖ The defendant came to the

Pawtucket police station by bus that same day, arriving at noon.




                                              -2-
       Once defendant arrived at the police station, Det. Bachand-Doucet brought him into a

conference room, where she asked him what his level of education was; defendant told her that

he had dropped out of high school. The detective said that defendant was eighteen years old as

of the day he came to the police station.

       Detective Bachand-Doucet gave defendant a ―rights form‖ that set forth the Miranda

warnings. At 12:05 p.m., Det. Bachand-Doucet had defendant read those rights out loud; she

also had him mark his initials next to each of his rights ―to make sure he underst[ood].‖ The

rights form included a line that defendant ―checked off‖ to indicate that he understood his rights.

After defendant read his rights, Det. Bachand-Doucet watched him sign the document. Detective

Bachand-Doucet testified that defendant never said that he did not understand the rights which he

had read out loud; he also never asked her any questions about those rights. She said that it took

defendant ―less than five minutes‖ to complete the rights form.

       After defendant had read and signed the rights form, Det. Bachand-Doucet ―asked him

what happened.‖ She engaged in a brief conversation with defendant about the incident that she

was investigating, and then defendant wrote and signed a statement that was eventually admitted

as a full exhibit and read to the jury at trial. The detective said that it took defendant ―maybe ten

or fifteen minutes‖ to write the statement; she added that the statement was taken at 12:20 p.m.—

approximately fifteen minutes after defendant had read his rights.

       The motion justice ruled on the motion to suppress from the bench. He stated that he

found the sole witness, Det. Bachand-Doucet, to be ―nothing but credible.‖ The motion justice

was ―completely satisfied‖ that the police ―properly advised * * * defendant of his rights under

Miranda v. Arizona.‖ The motion to suppress was therefore denied.




                                                -3-
        As for the motion to dismiss, defense counsel stated that his ―void for vagueness‖

challenge would depend on ―the facts in this particular case,‖ and therefore he reserved his

argument until after the evidence was presented at trial.

        The defendant‘s two-day jury trial began on November 9, 2011. As its first witness, the

state called the infant‘s mother, Stephanie Marks. She testified that, on Thursday, November 11,

2010, she left her son in defendant‘s care for the weekend while she went to work as a caretaker

in Tiverton. She told the jury that she received a call from defendant between 5 and 5:30 a.m. on

Sunday, November 14, 2010, and that defendant told her that the infant ―wasn‘t acting right.‖

Ms. Marks stated that she thought it was just a ―typical baby situation where the baby was sick or

[was] just being fussy because he‘s only four months old.‖ She testified that she told defendant

to ―soothe‖ their son and to ―do what a parent‘s suppose[d]‖ to do.

        Ms. Marks went on to testify that she received a second call from defendant around 6:30

or 7 a.m. on Sunday, in which defendant indicated that ―everything was fine.‖ She stated that

she then received a third call from defendant around 9:30 or 10 a.m., during which defendant

told her that their son was not ―acting right‖ and that he was ―breathing weird‖ and was ―starting

to get really hot.‖ Ms. Marks told the jury that she ―started panicking.‖ She testified that she

then drove from Tiverton to Memorial Hospital. At Memorial Hospital, she was told that her son

was being transferred to Hasbro Children‘s Hospital because ―he was having extremely bad

seizures, he was having internal bleeding to the brain, and * * * he couldn‘t breathe right on his

own.‖ She told the jury that, after asking defendant what happened to their son, he told her that

he had grabbed the baby‘s legs as he was falling off the bed and that ―the baby‘s head skimmed

the floor.‖

        When asked how her son was doing at the time of trial, Ms. Marks replied:




                                               -4-
               ―He‘s doing good. It‘s just hard. He‘s a disabled baby now. He
               can‘t see. He has special equipment. He goes to early
               interventions, EACs, nonstop therapist on a weekly basis, every
               day there‘s something he has to be doing.‖

       The prosecutor also offered the testimony of Dr. Brett Slingsby—one of the physicians

who had treated the infant at Hasbro. Doctor Slingsby testified as both a fact witness and as an

expert in pediatric medicine with an emphasis on child abuse. Doctor Slingsby stated that, on

November 14, 2010, he was called into the hospital ―because there was concern for abuse of‖ the

infant. He stated that, when he initially examined the infant, he observed multiple bruises on his

head and bleeding within his mouth. Doctor Slingsby also testified that tests revealed ―new

blood‖ in the tissue layer between the infant‘s skull and brain. He responded affirmatively when

asked whether the injury was ―consistent with head trauma syndrome or with shaking.‖ He

stated that x-rays further revealed that the infant had multiple fractures in his ribs on both the

right and left sides, which he agreed were ―consistent with * * * squeezing or pressure to the

chest.‖ Doctor Slingsby testified that he also consulted with an ophthalmologist, who found

retinal hemorrhaging ―behind both eyes from the inside all the way out to the sides of both eyes.‖

       Doctor Slingsby told the jury that, in his opinion, the infant ―was a victim of physical

abuse as well as abusive head trauma.‖

       The prosecutor also called Det. Bachand-Doucet to testify before the jury. After the

detective reiterated the substance of much of the testimony that she had provided during the

hearing on the motion to suppress, the defendant‘s statement was admitted as a full exhibit. That

statement reads as follows:

               ―Thursday my girl friend [Stephanie Marks] left for work and I
               was with the kids by myself. My daughter had left with her aunt
               friday night then it was just me and [my son] in the house.
               Saturday night he was buggin out[.] I [couldn‘t] get him to stop
               crying so I picked him up and I shook him a little and said ‗shut
               the f * * * up.‘ Then I grabbed his face and squeezed his chin.


                                              -5-
                 After he was still buggin so [I] left him in the room on the bed with
                 a bottle then he was quiet.

                          ―Then [when we were] sleeping he fell, then I picked him
                 up [and] got him to be quiet. The Next morning he wasn‘t him
                 self, so I called his mom and she said ‗Take him to the hospital‘ so
                 I Did. I squeezed him when I was shakin him and I squeezed him
                 hard because I was frustrated [that] he wouldn‘t stop cryin.‖

          At the conclusion of the trial, defendant brought his previously filed motion to dismiss to

the court‘s attention, arguing that § 11-9-5.3, ―as applied in [the] case, [was] unconstitutionally

vague.‖ The court denied the motion. The defendant then moved for a judgment of acquittal;

that motion was also denied. The jury returned a guilty verdict within an hour.

          On November 14, 2011, defendant filed a motion for a new trial pursuant to Rule 33 of

the Superior Court Rules of Criminal Procedure. That motion was denied after a hearing on

November 16. The defendant was sentenced to twenty years to serve. He filed a timely notice of

appeal.

                                                  II

                                               Analysis

                                                  A

                                       The Motion to Dismiss

          The defendant first challenges the trial justice‘s decision to deny his motion to dismiss.

He argues that the child abuse statute, § 11-9-5.3 (―Brendan‘s Law‖), is unconstitutionally vague

and that, therefore, the motion justice should have dismissed the charges against him. We

disagree.

          When a party contests the constitutionality of a statute, that party has ―the burden of

proving beyond a reasonable doubt that the challenged enactment is unconstitutional.‖ State ex

rel. Town of Westerly v. Bradley, 877 A.2d 601, 605 (R.I. 2005). In our review of such a



                                                 -6-
challenge, we ―will attach every reasonable intendment in favor of * * * constitutionality in order

to preserve the statute.‖ State v. Russell, 890 A.2d 453, 458 (R.I. 2006) (internal quotation

marks omitted); see also Cranston Teachers Alliance Local No. 1704 AFT v. Miele, 495 A.2d

233, 235 (R.I. 1985) (noting that holding a statute void for vagueness ―is strong medicine that

should be employed sparingly and only as a last resort‖).

       A criminal statute will be declared void for vagueness under the Fourteenth

Amendment‘s Due Process Clause when that statute is so vague that people ―of common

intelligence must necessarily guess at its meaning and differ as to its application.‖ State v.

Stierhoff, 879 A.2d 425, 435 (R.I. 2005) (internal quotation marks omitted). Challenges based

on a statute‘s vagueness ―rest principally on lack of notice.‖ Id. (internal quotation marks

omitted). This Court has therefore held that ―[a]bsent some other constitutional concern,[2] if the

facts show that a defendant is given sufficient notice that his conduct is at risk we see no reason

to speculate whether the statute notifies a hypothetical defendant.‖ State v. Sahady, 694 A.2d

707, 708 (R.I. 1997) (citing Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc.,

455 U.S. 489, 500 (1982)). In other words, a vagueness challenge based solely on the Due

Process Clause ―must be examined in the light of the facts of the case at hand.‖ State v. Fonseca,

670 A.2d 1237, 1240 (R.I. 1996) (quoting United States v. Mazurie, 419 U.S. 544, 550 (1975)).

       The defendant argues that § 11-9-5.3 is unconstitutionally vague ―because the conduct

proscribed * * * [is] indistinguishable between first and second degree child abuse.‖ Any

purported ambiguity arising from the similarity between first and second degree child abuse,

however, is irrelevant to this case because defendant was charged with (and convicted of) only



2
        If a defendant‘s vagueness challenge implicates First Amendment freedoms, then a
different analysis will apply. See, e.g., State ex rel. City of Providence v. Auger, 44 A.3d 1218,
1232 (R.I. 2012). The defendant in this case, however, has not raised any such issues.


                                               -7-
first degree child abuse. Our inquiry, therefore, is limited to whether the first degree child abuse

charge is unconstitutionally vague in regard to defendant‘s specific conduct. See Fonseca, 670

A.2d at 1240.

       It is our opinion that § 11-9-5.3 clearly provided defendant with notice that his conduct

was unlawful. A person is guilty of first degree child abuse if he or she inflicts ―serious bodily

injury‖ upon a child while the child is within that person‘s care. The statute goes on to

specifically define ―serious bodily injury‖ as:

                ―[P]hysical injury that:

                       ―(1) Creates a substantial risk of death;

                       ―(2) Causes protracted loss or impairment of the function of
                       any bodily parts, member or organ, including any fractures
                       of any bones;

                       ―(3) Causes serious disfigurement; or

                       ―(4) Evidences subdural hematoma, intercranial
                       hemorrhage and/or retinal hemorrhages as signs of ‗shaken
                       baby syndrome‘ and/or ‗abusive head trauma.‘‖ Section
                       11-9-5.3(c).

       There is nothing unconstitutionally vague about the proscribed conduct in these

provisions. The statute does not create a situation where ―the innocent may be trapped by

inadequate warning of what the state forbids.‖ See State v. Authelet, 120 R.I. 42, 45, 385 A.2d

642, 644 (1978). Based on the evidence presented at trial, the infant suffered injuries that fell

squarely within the specific definition of ―serious bodily injury‖ provided by the General

Assembly. We therefore hold that the trial justice correctly denied defendant‘s challenge to the

constitutionality of § 11-9-5.3.




                                                  -8-
                                                B

                                    The Motion to Suppress

       Next, defendant contends that his written statement to the police should not have been

entered into evidence because he did not ―knowingly‖ and ―voluntarily‖ waive his Miranda

rights. Again, we disagree.

       When reviewing a motion to suppress based on an alleged violation of a defendant‘s

constitutional rights, ―this Court must make an independent examination of the record to

determine if [the defendant‘s] rights have been violated.‖ State v. Goulet, 21 A.3d 302, 311 (R.I.

2011) (internal quotation marks omitted). As part of our analysis, we must ―view the evidence in

the record in the light most favorable to the state.‖ Id. Accordingly, we will reverse a motion

justice‘s ruling only if ―(1) his or her findings concerning the challenged statements reveal clear

error, and (2) our independent review of the conclusions drawn from the historical facts

establishes that the defendant‘s federal constitutional rights were denied.‖ State v. Grayhurst,

852 A.2d 491, 513 (R.I. 2004) (internal quotation marks omitted).

       It has become a fundamental principle of American criminal law that, ―prior to custodial

interrogation a suspect must receive explicit warnings concerning his constitutional privilege

against self-incrimination and his right to counsel.‖ See State v. Amado, 424 A.2d 1057, 1061

(R.I. 1981) (discussing Miranda v. Arizona, 384 U.S. 436, 478–79 (1966)). Before statements

made by a defendant during a custodial interrogation may be admitted into evidence, the state

―must first prove by clear and convincing evidence that the defendant knowingly, intelligently,

and voluntarily waived his [or her] constitutional rights expressed in Miranda v. Arizona.‖ State

v. Jimenez, 33 A.3d 724, 733–34 (R.I. 2011) (internal quotation marks omitted).




                                               -9-
       The defendant contends that the state failed to meet its burden based on the ―totality of

the circumstances.‖ Specifically, he points out (1) that he was an eighteen-year-old high school

dropout at the time he went to the police station and (2) that it took him less than five minutes to

complete the ―rights form‖ on which he waived his Miranda rights.

       We have indeed recognized that the Miranda inquiry should take into account ―the

accused‘s age, experience, education, background, and intelligence to determine whether he has

the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and

the consequences of waiving those rights.‖ State v. Benton, 413 A.2d 104, 109 n.1 (R.I. 1980)

(citing Fare v. Michael C., 442 U.S. 707, 725 (1979)). The motion justice in this case took those

factors into account. Even though defendant was a high school dropout, Det. Bachand-Doucet

testified that defendant was able to read all of the Miranda rights out loud. Further, defendant

signed his initials next to each right to acknowledge that he understood those rights; he also

―checked off‖ a line indicating that he understood his rights, and he signed the rights form. See

State v. Kryla, 742 A.2d 1178, 1184 (R.I. 1999) (affirming the denial of a motion to suppress

where a seventeen-year-old suspect initialed and signed a rights form).

       Viewing this uncontradicted evidence in the light most favorable to the state, it is our

opinion that the motion justice correctly determined that defendant understood his rights and was

aware of the nature of his actions. See Benton, 413 A.2d at 110. Further, we are not troubled by

the fact that defendant spent less than five minutes with the rights form. Had the police recited

the Miranda rights for him, the process in all likelihood would have been even quicker.

Accordingly, after carefully reviewing the entire record, we perceive no error in the motion

justice‘s ruling on the motion to dismiss; accordingly, we affirm that ruling.




                                               - 10 -
                                                C

                              The Motion for a Judgment of Acquittal
                                  and the Motion for a New Trial

       The defendant‘s final argument is that the trial justice erred when he denied his motions

for a judgment of acquittal and for a new trial. The defendant hinges those arguments, however,

on the admissibility of his confession; he states that, ―[w]ithout [his] confession, there would

have been insufficient evidence to prove the case against him.‖         Since we have already

recognized that the motion justice did not err when he allowed the state to introduce the

defendant‘s confession, the defendant‘s arguments regarding his motions for a new trial and for a

judgment of acquittal fail.

                                                III

                                           Conclusion

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

conviction. The record in this case may be returned to that tribunal.




                                              - 11 -
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        State v. DeAnthony Allen.

CASE NO:              No. 2012-176-C.A.
                      (P2/11-1196A)

COURT:                Supreme Court

DATE OPINION FILED: June 19, 2013

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

WRITTEN BY:           Associate Justice William P. Robinson III

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Presiding Justice Joseph F. Rodgers, Jr. (Ret.)

ATTORNEYS ON APPEAL:

                      For State: Lauren S. Zurier
                                 Department of Attorney General

                      For Defendant: C. Daniel Schrock, Esq.
