State v. Higham

865 A.2d 1040, 2004 R.I. LEXIS 202, 2004 WL 3059218
CourtSupreme Court of Rhode Island
DecidedDecember 23, 2004
Docket2003-0237-C.A.
StatusPublished
Cited by23 cases

This text of 865 A.2d 1040 (State v. Higham) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Higham, 865 A.2d 1040, 2004 R.I. LEXIS 202, 2004 WL 3059218 (R.I. 2004).

Opinion

OPINION

SUTTELL, Justice.

The defendant, David Higham, appeals from a judgment of conviction entered in the Superior Court on January 10, 2003, after guilty verdicts by a jury on two counts of first-degree child molestation sexual assault in violation of G.L.1956 § 11-37-8.1 and § 11-37-8.2. The two charges involved sexual assaults committed by the defendant upon his seven-year-old stepgranddaughter. After denying the defendant’s motion for a new trial, the trial justice sentenced the defendant to concurrent terms of forty years on each count, with twenty years to serve at the Adult Correctional Institutions and twenty years suspended, with twenty years of probation.

*1042 Higham contends that the Superior Court committed two errors that warrant the entry of a judgment of acquittal on the first count and a new trial on the second count. He asserts that the trial justice erred (1) in refusing to pass the case after a witness testified she had discussed the incidents of sexual assault with the victim “in counseling,” and (2) in denying defendant’s motion for a judgment of acquittal on count 1, because the evidence was not sufficient to establish an act of cunnilingus. For the reasons stated below, we affirm the judgment of conviction.

Facts and Procedural History

The incident that gave rise to the indictment for two counts of first-degree child molestation sexual assault occurred during the summer of 2000. We shall identify the victim by the fictitious name of Kelly. Kelly’s father is defendant’s stepson. A short family history may help to understand the facts underlying defendant’s conviction.

From October 1993 to January 1994, Kelly lived with her parents in California, where her father was stationed as a member of the Navy. In or around January or February 1994, Kelly and her mother moved back to Rhode Island. Shortly thereafter, Kelly’s mother gave birth to a second daughter. They lived with Kelly’s maternal grandparents until June 1994, when they moved in with defendant and his wife in West Warwick, where they continued to live until August 1998. At this point, defendant and Kelly’s mother apparently had a falling out, as a result of which Kelly, her mother, and sister moved back to her maternal grandparents’ house in Warwick. At the end of September or the beginning of October 1998, the relationship between defendant and Kelly’s mother improved, and the girls again spent time at defendant’s house, including overnight visits.

During the summer of 2000, Kelly’s mother, a certified nursing assistant, was working at a nursing home from 7 a.m. to 3 p.m. The defendant would care for the children during the week to save their mother the cost of child-care expenses. 1 Kelly’s mother and defendant agreed that the children would stay at defendant’s house, usually from Monday through Thursday. During that summer, therefore, the two girls spent most of their time with defendant. He was solely responsible for their care during the day because his wife also was working. The defendant is totally disabled and is not employed because of serious back and knee problems that have required extensive surgery in the past.

When school started in the fall of 2000, the girls’ schedule returned to its normal routine. They lived primarily at their maternal grandparents’ house, and stayed over at defendant’s house only on occasion. However, after their maternal great-grandmother passed away at the end of September 2000, defendant offered to take the two girls for the week. They stayed with defendant and his wife until the day of the funeral, on October 2, 2000. On that day, defendant and his wife dropped the children off at school and attended the funeral. Later that day the girls returned to their maternal grandparents’ house by school bus.

When Kelly, her mother, and sister lived at defendant’s house from 1994 to 1998, the two girls shared one of the three bed *1043 rooms in the house. Their mother had the second bedroom to herself, and defendant and his wife slept in the third bedroom. During the nights, the girls, especially Kelly, frequently came to sleep in their mother’s bed.

After the family had moved back in with the maternal grandparents, defendant began sleeping in the bedroom formerly occupied by Kelly’s mother. Because of problems with his back, defendant needed a firmer mattress than the one available in the marital bedroom. According to the mother’s testimony, when the girls stayed overnight at defendant’s house, they would often sleep with defendant in his bed. When they moved back to her parents’ house in 1998, the children’s beds remained at defendant’s house. After he learned that the girls did not have beds there and were sleeping on the floor, he and a friend moved their beds to their maternal grandparents’ house. Thus, the girls no longer had beds at defendant’s home. The defendant testified that in the summer of 2000 the girls would typically sleep on the floor in the living room, or in his bedroom, either with him in bed or on the floor in their sleeping bags. The defendant and his wife testified that the children would decide themselves where they would sleep on any particular night.

By all accounts, up until the incident in question, the children had an excellent relationship with the Highams and with David Higham, in particular. The defendant considered himself as their step-grandfather, “but also on the same edge as being a father, because I was basically the only male in their life, and I had raised these kids since they was [sic] infants.” The girls always referred to defendant as their “papa.”

Kelly’s mother testified that on the night of her grandmother’s funeral, on October 2, 2000, while she was driving with her two daughters, she heard the two girls whispering in the back seat of the car. Kelly had asked her sister to tell her mother something, but the younger girl could not remember what. Kelly then proceeded to tell her mother that “papa had done something wrong to her.” That same night, Kelly and her mother went to defendant’s house and confronted him and his wife with what Kelly had said. After this conversation, defendant told Kelly’s mother that the children would no longer be welcome in his home.

At the trial, Kelly testified about the incident that gave rise to the two counts of the indictment in this case. At the time, she was seven years old and her sister was five years old. She said that on the night in question the two girls had been watching television with defendant. As the girls got ready to go to bed, Kelly put on a pair of pajamas with long sleeves and long pants over her underpants. The defendant put on his pajamas in the bathroom and went to bed. According to Kelly, the two girls then jumped into his bed, slipped under the covers and went to sleep.

Kelly next remembered that she was awakened. At this point she was lying on top of defendant with her pajama bottoms off. The defendant had removed his pajama bottoms as well.

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Bluebook (online)
865 A.2d 1040, 2004 R.I. LEXIS 202, 2004 WL 3059218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-higham-ri-2004.