State v. Enos
State v. Enos
Concurring in Part
concurring in part and dissenting in part.
I concur in the Court’s ruling that the trial justice did not abuse her discretion
I respectfully dissent, however, from the Court’s holding that the trial justice did not err when she denied defendant’s motion for a judgment of acquittal.
The evidence that the prosecution presented with respect to the existence of such a relationship was, in my view, quite meager, and I believe that it was insufficient to establish that there was a substantive dating relationship between Mary and defendant. Mary testified as to when her relationship with defendant began and when it ended; and she responded affirmatively to the prosecutor’s leading question about whether the relationship had been “intimate.” There was no further testimony or evidence about the relationship between Mary and defendant.
I respectfully submit that the just-referenced evidence was insufficient to support a determination that a substantive dating relationship had existed; too much was left unaddressed. For example, we are not even told how often the two individuals saw each other during the six-month period in question, even though “the frequence of the interaction between the parties” is one of the “factors” that the statute specifically directs be considered. See § 12-29-2(b)(3); see also Devon M. Largio, Refining the Meaning and Application of “Dating Relationship” Language in Domestic Violence Statutes, 60 Vand. L.Rev. 939, 965 (2007).
For these reasons, I believe that there was insufficient meaningful evidence as to the existence of a substantive dating relationship. Accordingly, I believe that the defendant’s motion for a judgment of acquittal with respect to that issue should have been granted.
. Although neither party has challenged the fact that the question of whether or not there was a substantive dating relationship was submitted to the jury, I would hope that this Court will have occasion in another case to pass upon the propriety of such a submission to the jury in view of the fact that the statute indicates that it is the court’s role to make such a determination.
Opinion of the Court
OPINION
for the Court.
This case came before the Supreme Court on May 10, 2011, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. After hearing the arguments of counsel and reviewing the memoranda of the parties, we are satisfied that cause has not been shown. Accordingly, we shall decide the appeal at this time without further briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.
Facts and Travel
An incident of violence that occurred during the winding down of a couple’s romantic relationship is at the root of this appeal. The defendant, James Enos, met a young woman named Mary on the popular dating website, Match.com, in January
On December 8, 2008, James Enos was charged by information in the Superior Court for Washington County with one count of assault with a dangerous weapon, namely a drinking glass, in violation of G.L.1956 § 11-5-2 and G.L.1956 § 12-29-5.
Before us, defendant presses two arguments: First, he contends that the evidence presented by the state was legally insufficient for a reasonable juror to conclude that Mr. Enos and Mary were in a domestic relationship, and thus that the trial justice erred when she denied Mr.
I
The Question of a Domestic Relationship
A
Standard of Review
When this Court reviews motions for judgment of acquittal, it applies the same standard as the trial justice.
B
The Parties Were in a Domestic Relationship
The jury found defendant guilty of violating § 11-5-2, namely felony assault. Section 11-5-2(a) provides that “[e]very person who shall make an assault or battery, or both, with a dangerous weapon * * * shall be punished by imprisonment for not more than twenty (20) years.” Section 11-5-2(b) also says that “[w]here the provisions of the ‘Domestic Violence Prevention Act’ * * * are applicable, the penalties for violation of this section shall also include penalties as provided in § 12-29-5.” Section 12-29-2 provides the definitions that inform § 12-29-5. Specifically, § 12-29-2(a) defines “domestic violence” as “ineludfing], but * * * not limited to, [a felony assault] when committed by one family or household member against another * * *.” “Family or household member” is defined as
“spouses, former spouses, adult persons related by blood or marriage, adult persons who are presently residing together or who have resided together in the past three (3) years, and persons who have a child in common regardless of whether they have been married or have lived together, or if persons who are or have been in a substantive dating or engagement relationship within the past one year which shall be determined by the court’s consideration of the following factors:
“(1) the length of time of the relationship;
“(2) the type of the relationship;
*330 “(3) the frequence [sic] of the interaction between the parties.” Section 12-29-2(b) (emphasis added).
As soon as the state rested after presenting its evidence, defendant moved for a judgment of acquittal based on Rule 29 concerning the issue of the existence of a “domestic relationship.” He argued that the state had failed to present any evidence concerning the frequency of the interactions between the couple and that Mary’s testimony that the relationship was an intimate one failed properly to describe the nature of the relationship. In short, defendant argued that the testimony had been too conclusory for a reasonable juror to find that the parties were in a domestic relationship. The trial justice denied defendant’s motion.
This Court has not yet had an opportunity to consider what minimum facts serve as a foundation for a conclusion that a couple has been in a “substantive dating * * * relationship” under § 12-29-2. This is, by its very nature, a somewhat flexible concept. Other jurisdictions that have considered this issue also have struggled in determining whether the parties are in a dating relationship, even when statutory factors are delineated for the courts’ consideration (as they are here). See, e.g., Hobdy v. State, 919 So.2d 318, 322-25, 325 (Ala.Crim.App. 2005) (looking to six factors that might be suggestive of a dating relationship, but concluding that such factors are “not exhaustive” and “must allow for the consideration of additional facts and/or factors that may be relevant”); Oriola v. Thaler, 84 Cal.App.4th 397, 100 Cal.Rptr.2d 822, 827-32, 832 (2000) (noting the difficulty posed by a lack of a statutory definition of “dating relationship” and looking to myriad factors considered by other states, including Rhode Island, to conclude that a dating relationship means a “serious courtship”); People v. Disher, 224 P.3d 254, 256-58 (Colo. 2010) (holding that a couple need not have a sexual relationship in order for an “intimate relationship,” to exist under a state domestic violence statute); C.O. v. M.M., 442 Mass. 648, 815 N.E.2d 582, 586, 586-88 (2004) (concluding that a state statute that listed four factors to be considered in determining the existence of a substantive dating relationship was written “with purposeful flexibility in its definitions”).
We begin our own analysis by noting that the General Assembly has enunciated that the intent of this particular statute “is to recognize the importance of domestic violence as a serious crime against society and to assure victims of domestic violence the maximum protection from abuse which the law and those who enforce the law can provide.” Section 12-29-1(a).
The statute directs the court to look to three factors (length, nature, and frequency) as indicative of the substance of the relationship as a whole.
When she ruled on the motion, the trial justice considered the testimony offered by the victim that (1) the couple started dating in January 2008, (2) they met through a dating website, (3) they had an intimate relationship, (4) defendant had terminated the relationship within a couple of weeks preceding the assault,
Although Mary did not offer specific evidence about the number of times each week or month she saw defendant, she did testify that the couple dated for six months. From this, combined with other evidence (e.g., defendant referring to Mary as his girlfriend), a reasonable juror certainly could infer that the couple saw each other on a regular basis over a period of six months. When she was asked if the relationship was “an intimate relationship,” Mary testified that “it was.” It is clear to us that this statement is evidence of the nature of the interactions between the parties. Therefore, we are satisfied that the trial justice considered the nature of the interactions as well.
II
Post-Miranda Silence
A
Standard of Review
“A trial justice’s decision to deny a motion for a mistrial is accorded great weight and will not be disturbed on appeal unless it is clearly wrong.” State v. Higham, 865 A.2d 1040, 1044 (R.I. 2004) (quoting State v. Lynch, 854 A.2d 1022, 1033 (R.I. 2004)). “The trial justice ‘has a front-row seat at the trial’ and is in the best position to determine whether a defendant has been unfairly prejudiced.” State v. Luciano, 739 A.2d 222, 228 (R.I. 1999) (quoting State v. Gomes, 690 A.2d 310, 317-18 (R.I. 1997)). When considering a motion for a mistrial, “the trial justice must determine whether the evidence would cause the jurors to be so inflamed as to make them unable to decide the case on the basis of the evidence presented.” Id. (citing State v. Mastracchio, 672 A.2d 438, 444 (R.I. 1996)).
B
Defendant Was Not Prejudiced by Witness’s Remark and Jury Instruction Was Proper
In a series of cases, the United States Supreme Court has restricted prosecutors, judges, and witnesses from commenting on, or even mentioning, a defendant’s decision to remain silent after that defendant was informed of his or her Miranda rights.
In Higham, 865 A.2d at 1046-47, this Court considered a similar situation— albeit one not involving Miranda. During the trial of Mr. Higham on charges that he sexually molested his step-granddaughter, the victim’s mother responded to a question put to her about whether the victim had spoken to her about the incident; the mother replied, “in counseling.” Id. at 1044. The defendant’s counsel objected. Id. The trial justice sustained the defendant’s objection and struck the witness’s comment from the record. Id. Counsel then moved for a mistrial, or in the alternative, an instruction to the jury that it was to disregard the remark. Id. The trial justice denied the motion for mistrial, but did provide the jury with a curative instruction. Id. On appeal, the defendant alleged error in the trial justice’s denial of his motion to pass because the reference to counseling constituted impermissible vouching for the complaining witness’s credibility and, therefore, was prejudicial to the defendant. Id. This Court observed that “much hinged on the issue of the complaining witness’s credibility.” Id. at 1045. It went on to note that because determining the credibility of a witness is entirely within the province of the jury, the testimony of another witness that would have “ ‘substantive import’ ” on assessing the credibility of the complaining witness should not be admitted. Id. The Court concluded, however, that Mr. Hig-ham was not prejudiced by only one brief reference to the complaining witness’s counseling session. Id. Moreover, the line of questioning ceased immediately; and, significantly, after denying the motion for a mistrial, “the trial justice immediately proceeded to give the * * * curative instruction to the jury.” Id. at 1045-46. The jury instruction “was quite comprehensive and sufficient to offset the mother’s remark.”
Here, the witness made an unprompted, unsolicited remark that the defendant remained silent after he had been informed of his Miranda rights. While
Conclusion
For the reasons articulated above, we affirm the judgment of the Superior Court. The papers in this case shall be returned to that tribunal.
. It appears that the couple was arguing over some aspect of Mary’s job as a student-nurse.
. As a result of the attack, Mary received ten stitches to close the wounds on her scalp, and she suffered mental and emotional trauma.
. General Laws 1956 § 11-5-2 is the felony assault statute. General Laws 1956 chapter 29 of title 12 is the Domestic Violence Prevention Act. A second count, one of intentionally, knowingly or recklessly engaging in fighting, threatening, violent, or tumultuous behavior, was dismissed prior to trial.
. Because Mr. Enos filed his appeal prior to the entry of the judgment of conviction and commitment, the appeal was premature under Article I, Rule 4(a) of the Supreme Court Rules of Appellate Procedure. The defendant was sentenced on October 2, 2009. He filed his notice of appeal on October 5, 2009, but judgment did not enter until November 30, 2009. This Court has held, however, that an appeal filed after an oral decision but prior to the entry of final judgment may be treated as timely in the interests of justice and to avoid undue hardship. Fossa v. Fossa, 869 A.2d 58, 59 n. 2 (R.I. 2005) (citing Russell v. Kalian, 414 A.2d 462, 464 (R.I. 1980)); United Lending Corp. v. City of Providence, 827 A.2d 626, 631 n. 9 (R.I. 2003). We, therefore, treat this appeal as timely.
. Rule 29(a)(1) of the Superior Court Rules of Criminal Procedure, motion for judgement of acquittal before submission to the jury, says in pertinent part:
"The court on motion of a defendant or on its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, after the evidence on either side is closed, if the evidence is insufficient to sustain a conviction of such offense or offenses.”
. Section 12-29-1 goes on to note the prior lax enforcement of criminal statutes in situations in which the parties involved were in a domestic relationship:
"(b) While the legislature finds that the existing criminal statutes are adequate to provide protection for victims of domestic violence, previous societal attitudes have been reflected in policies and practices of law enforcement agencies, prosecutors, and courts which have resulted in differing treatment of crimes occurring between family or household members and of the same crimes occurring between strangers. Only recently has public perception of the serious consequences of domestic violence to society and to the victims led to the recognition of the necessity for early intervention by law enforcement agencies.
"(c) It is the intent of the legislature that the official response to cases of domestic violence shall stress the enforcement of the laws to protect the victim and shall communicate the attitude that violent behavior is not excused or tolerated. Furthermore, it is the intent of the legislature that criminal laws be enforced without regard to whether*331 the persons involved are or were married, cohabitating, or involved in a relationship.”
. The American Heritage Dictionary of the English Language 463 (4th ed. 2009) defines "dating” as "[t]o go on a date or dates with,” and defines “date” as "[a]n engagement to go out socially with another person, often out of romantic interest.” It defines "relationship” as “[a] romantic or sexual involvement." Id. at 1473.
. At the trial, Mary testified that Mr. Enos had “broke[n] up with” her.
. See, e.g., Doyle v. Ohio, 426 U.S. 610, 611, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (holding that the use of a defendant's post-arrest silence could not be used to impeach a defendant because it violated that defendant’s due process rights); Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) (holding that a prosecutor's comments about a defendant’s failure to testify about matters of which he or she has knowledge and comments by the court that the defendant’s silence can be construed against the defendant violate the Fifth Amendment); cf. United States v. Robinson, 485 U.S. 25, 31-32, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988) (holding that when the defendant's attorney first suggested that the government had prevented the defendant from giving "his side of the story,” the prosecutor's comments that the defendant could have but chose not to testify did not violate the defendant's Fifth Amendment rights).
. The witness, Officer Joshua Eidam testified in relevant part as follows;
"Q While he was being treated by EMS, did you advise him of any rights?
"A Immediately upon them securing the wound, I observed his hand and Miran-dized him.”
"Q At that point, did the Defendant say anything to you?”
The defendant’s attorney objected at this point, but withdrew his objection after a bench conference.
"Q After he received that initial treatment for his hand from EMS and you advised*333 him of his Miranda rights, did the Defendant make any statements to you about what happened in the bar?
"A No.
"Q Did he say anything to you about his—
"[Defendant's attorney]: Objection, your Honor. This is getting leading at this point. The officer said no.
"THE COURT: Sustained.
"A Can I speak?
"Q I'll withdraw the question, your Hon- or. What did you do next?
"A After?
"Q After you advised him of his Miranda rights.
"A After I advised him of his Miranda rights he declined to give me any information.
"[Defendant’s attorney]: Objection, move to strike and I have a motion.
"THE COURT: Answer stricken and should be disregarded. Come up."
. The state argues that Mr. Enos waived his objection by failing to renew it in light of the trial justice’s decision to instruct the jury to disregard Officer Eidam's remarks. The Court in State v. Higham, 865 A.2d 1040, 1046-47 (R.I. 2004), noted that the defendant failed to preserve the issue for review because the defendant's attorney requested, and the trial justice gave, a curative instruction to the jury. But, Mr. Enos's attorney did not request a jury instruction as an alternative to declaring a mistrial, and thus did not waive his right to appeal the denial of his motion for a mistrial.
Concurring in Part
concurring and dissenting.
I respectfully dissent from that portion of the majority’s opinion holding that there was legally sufficient evidence to conclude that defendant and Mary were in a domestic relationship. I cannot concur with the majority’s conclusion that the substantive dating relationship as set forth in G.L.1956 § 12-29-2, which is an essential element of the domestic violence offense, “is, by its very nature, a somewhat flexible concept.” Although I agree that, to decide whether a substantive dating relationship exists, an analysis of the factors enumerated in the statute must be undertaken, it is the trial court which must do so as a preliminary matter. I cannot agree that this element of the crime, which must be proven beyond a reasonable doubt, is a “somewhat flexible concept” or that the question is committed to the jury in the first instance. It is well established that “the language of a penal statute must be read narrowly, [and] that penal statutes must be strictly construed in favor of the defendant[.]”
The record discloses that Mary was the first witness to testify at trial. During her direct examination, the state engaged in a short colloquy about the nature of Mary’s relationship with defendant:
“Q How do you know James Enos?
“A We were in a relationship.
“Q When did you meet?
“A In January of 2008.
“Q And how did you meet?
*335 “A Match.com.
“Q You met Mr. Enos in January and began dating him at that time?
“A At the end of January.
“Q And how long did you date him for?
“A About six months.
“Q And was it an intimate relationship?
“A Yes, it was.
"* * *
“Q When did your relationship with Mr. Enos end?
“A In the beginning of August.
“Q And who broke up with [whom]?
“A He broke up with me.”
The state did not elicit any further information about Mary’s relationship with defendant from her, or from any other witness. The foregoing testimony was the only evidence relative to this element of the crime. The fact that they dated for six months and were intimate is not enough in my opinion.
This evidence virtually provided no information about two of the three factors the trial justice must consider in determining whether there existed a substantive dating relationship — namely, the type of relationship, and the frequency of the interaction between defendant and Mary. The complainant testified that she and defendant dated for six months, but she did not explain how often they saw each other, or whether it was a mutually exclusive relationship or whether they also were dating other people. Although she testified that they were “intimate,” the Random House Unabridged Dictionary 1000 (1993) assigns no less than thirteen different meanings to the word “intimate.” Clearly, in the context of this case, it is reasonable to assume the witness was referring to sexual relations. Sexual intimacy, however, may consist of casual sex or sex for convenience. It may or may not indicate a serious relationship; “human experience teaches that sexual intimacy does not necessarily reflect a romantic interest, * * * and a romantic relationship need not involve sexual intimacy.” Oriola v. Thaler, 84 Cal.App.4th 397, 100 Cal.Rptr.2d 822, 831 (2000).
The majority concludes that a reasonable juror could infer from Mary’s testimony that she and defendant “saw one another on a regular basis over a period of six months.” I am not convinced. Additionally, the majority finds that Mary’s testimony that she and defendant were “intimate,” constitutes sufficient evidence about “the nature of the interactions between the parties.” Although I agree that the statute does not require a specific showing on each of the enumerated factors set forth in § 12-29-2, in my opinion, Mary’s scant testimony does not reasonably support the dual inferences that she and defendant saw each other on a regular basis and that the relationship was of a serious nature. The drawing of these inferences would stretch the evidence beyond its breaking point. “This Court is not in the business of supplying essential elements of a felony offense by implication.” State v. Carter, 827 A.2d 636, 643 (R.I. 2003).
“[The defendant and Mary] met on a dating website called Match.com. She testified that [they] dated for six months, that they had been intimate during that relationship, that the [defendant had terminated the relationship within a couple of weeks preceding [the alleged assault] and that they had com-municat[ed] since the breakup relative to affairs of the heart, the return of the jewelry, winding down their relationship.”
The trial justice’s ruling was as follows:
“Given the evidence that was just outlined by [the state], this [c]ourt cannot say as a matter of law that the [s]tate could not prove this to be a domestic offense beyond a reasonable doubt. I believe it’s a question for the jury pursuant to the statute and I intend to instruct them and submit that question to them.” (Emphasis added.)
I am of the opinion that the trial justice’s failure to consider the factors enumerated in § 12-29-2 was error. The statute explicitly provides that the factors are for the court’s consideration.
Unquestionably, our sister states have struggled to determine the factors that characterize a dating relationship. Notably, our statute requires a substantive dating relationship. The California Court of Appeals has stated that a dating relationship:
“[I]s a social relationship between two individuals who have or have had a reciprocally amorous and increasingly exclusive interest in one another, and shared expectation of the growth of that mutual interest, that has endured for such a length of time and stimulated such frequent interactions that the relationship cannot be deemed to have been casual.” Oriola, 100 Cal.Rptr.2d at 832-33.
The Superior Court of New Jersey, Chancery Division, considers a minimum of six factors in determining the existence of a dating relationship, including “the parties’ ongoing expectations with respect to the relationship, either individually or jointly[,]” and whether “the parties demonstrated an affirmation of their relationship before others by statement or conduct[.]” Andrews v. Rutherford, 363 N.J.Super. 252, 832 A.2d 379, 383, 384 (Ch.Div. 2003). Although these factors may vary slightly from our own, the underlying principle is clear; a “substantive dating relationship” simply does not equate with casual dating or casual sex. To trigger the provisions of the Domestic Violence statute, there must be more. The nature of the relationship must establish mutual affection, shared expectations or a growing expectancy, and a frequency of interaction that reflects substance and meaning. The record before us does not contain sufficient evidence to make any such determination. It is thus my view that the trial justice erred in denying the defendant’s motion for a judgment of acquittal.
I concur in the Court’s conclusion with respect to the trial justice’s decision denying the defendant’s motion for a mistrial.
. Of note, this Court has not yet been confronted with a challenge to G.L.1956 § 12-29-2 on vagueness grounds.
. This is not the first time this Court has addressed the piecemeal fashion in which this state’s domestic violence legislative scheme has been crafted. In State v. Carter, 827 A.2d 636, 642 n. 8 (R.I. 2003), this Court noted:
"We remain concerned about the inconsistencies in the Domestic Abuse Protection Act, chapter 15 of title 15, the Domestic
Assault Act, G.L.1956 chapter 8.1 of title 8, and the Domestic Violence Prevention Act, title 29 of chapter . 12. This statutory scheme, enacted by the General Assembly over a period of years, contains troubling jurisdictional inconsistencies and contradictions and reflects a patchwork approach to*336 one of society’s most serious ills. It warrants comprehensive revision.”
Reference
- Full Case Name
- STATE v. James ENOS
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- 11 cases
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- Published