State v. Farias

796 A.2d 1074, 2002 R.I. LEXIS 104, 2002 WL 996473

• Court: Supreme Court of Rhode Island
• Decided: May 9, 2002
• Docket: No. 2000-38-C.A.
• Status: Published

Opinions

OPINION

PER CURIAM.

The defendant, Dennis Farias, appeals from his conviction after a jury found him guilty of one count of second-degree sexual assault. The Superior Court sentenced him to ten years, one year to serve and the remainder suspended with probation. The sexual assault occurred on the evening of February 18, 1997, at a health club in East Providence. The defendant groped and sexually pawed his twenty-one-year-old victim when they were both seated in the health club’s jacuzzi. According to the victim, the defendant began touching and feeling her body by inserting his hand into her bathing-suit bottom and attempting to fondle her. As the victim tried to get out of the jacuzzi, the defendant grabbed her foot and fell on top of her, and then attempted to remove her bathing-suit top in full view of others who were present in that area of the health club. A lifeguard who was on duty that evening also witnessed the defendant pulling at the victim’s bathing-suit top.

On appeal, defendant argues that the prosecutor impermissibly elicited evidence about “uncharged acts of sexually touching other members of the health club” and that the trial justice failed to give an appropriate limiting instruction concerning testimony that defendant had touched other club members inappropriately in the past. The state counters that these claims of error are without merit for two reasons: first, defendant failed to object to the specific testimony on this subject; and, second, because he did not request a limiting instruction from the trial justice. The state also maintains that it introduced no evidence that defendant improperly had touched other club members on previous occasions. Thus, the state contends, it was unnecessary for the trial justice to give a limiting instruction.

After a prebriefing conference, a single justice of this Court ordered the parties to show cause why the issues raised in this appeal should not be summarily decided. In reviewing their written and oral submissions, we conclude that no cause has been shown and that we can decide the appeal at this time.

During her testimony, the lifeguard stated that she observed defendant in the Jacuzzi area of the club but was not “keeping a specific eye on him.” As soon as the victim got into the Jacuzzi she began watching the Jacuzzi area “because [defendant] was in there.” She further testified that after the victim exited the Jacuzzi, the lifeguard confronted defendant and told him, “This can’t go on. You have to stop this.”

The testimony at issue occurred when the prosecutor questioned the lifeguard-witness on direct examination, as follows:

“Q: What is the first thing you did when you approached the defendant?

“A: I said, I need to talk to you about what just happened, it can’t happen. Those types1, of things cannot happen in here, and I had told him that I have seen him bother

“The Court: Never mind that.

“Defense Counsel: Objection.

“Q: I’m just asking regarding what you said regarding [the victim],

“A: Okay.

“Q: Do you remember what words you used when you spoke to him?

“A: Something to the effect that this has to stop, something like that, that can’t happen again.

“Q: Would looking at your statement refresh your memory?

“A: Yes.

“Q: I’m just directing your attention to read to yourself, to read where that red mark is. Just read it to yourself.

“A: Yes, I remember saying that, yes.

“Q: Do you remember what words you used when you spoke to him?

“A: Rubbing and touching other members, that is what I said.

“Q: You told the police that you

“A: I told him that this stuff is going to have to stop.

“Q: With him touching and rubbing other members, is that what you said?

“A: Yes.”

The state contends that “the commonsense meaning of the [above-quoted] testimony was that defendant, a member of the club, must not touch other members” — but not that there was any evidence that he had indeed done so on previous occasions.

“This Court has noted previously that the line dividing prior-bad-act evidence offered to show a propensity to commit such acts and/or a defendant’s bad character, and prior-bad-act evidence offered to show motive, intent, or for some other permissible purpose is both a fine one to draw and an even more difficult one for judges and juries to follow.” State v. Garcia, 743 A.2d 1038, 1052 (R.I.2000).

Nevertheless, we have held that in cases in which the evidence in question can be used for a variety of reasons, the trial judge should issue a limiting instruction “explaining ‘the limited purpose [or purposes] for which the jury may consider it.’ ” Id. (quoting State v. Gallagher, 654 A.2d 1206, 1210 (R.I.1995)). Indeed, such an instruction is required in sexual assault cases “even in the absence of a specific request by defense counsel to do so.” Id., at 1052.

Based upon this Court’s holdings in Garcia and Gallagher, and in light of the fact that the above-quoted testimony could have been interpreted to suggest that the defendant had been “fondling and rubbing other members” on previous occasions, we conclude that the trial justice erred in not giving a cautionary instruction to the jury about the limited use of such testimony. Although the defendant failed to object or to request a limiting instruction, our case law on this issue required the trial justice to do so anyway — especially in a case such as this one in which the evidence turned on credibility assessments and the lifeguard’s testimony may have weighed heavily against the defendant.

Because our ruling on this point is dis-positive of the appeal, it is unnecessary for us to reach the other issues raised by the defendant. Accordingly, we sustain the defendant’s appeal, vacate the conviction, and remand this case to the Superior Court for a new trial.