April 4, 2023 Supreme Court
No. 2021-139-C.A. (P1/19-820AG)
State :
v. :
Juan Gibson. :
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 (401) 222-3258 or Email opinionanalyst@courts.ri.gov, of any typographical or other formal errors in order that corrections may be made before the opinion is published. Supreme Court
Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
OPINION
Chief Justice Suttell, for the Court. The issues in this appeal arise from two
separate home invasions that occurred at the residence of Jeffrey Lebrun in May and
July of 2013, the latter of which resulted in his death. In January 2020, a jury
convicted the defendant, Juan Gibson, of six criminal counts related to these two
incidents. The defendant now appeals from that judgment of conviction and
commitment. Specifically, the defendant asserts that the trial justice erred by
omitting a jury instruction on the specific-intent element of robbery and by denying
the defendant’s motion for judgment of acquittal and his motion for a new trial. For
the reasons set forth herein, we affirm the judgment of the Superior Court.
-1- I
Facts and Travel
In March 2013, Jeffrey moved with his family—his wife, Sheri, and his
stepdaughter, Sedina (then fifteen years old)—to 112 Dawson Street in Pawtucket.1, 2
The Lebruns’ elder daughter, Alexis (then eighteen years old), did not reside with
the family at the time of the pertinent events, but lived with a friend nearby.
To supplement his income, Jeffrey began growing marijuana in his basement
and selling the product to both medicinal and recreational users. Jeffrey kept the
cash proceeds of his business in a Gardall safe on the second floor of the house near
his bedroom. Although Sheri, Sedina, and Alexis all knew about the business,
Jeffrey maintained exclusive control over the money. In fact, Jeffrey and Sheri
regularly fought over finances because Jeffrey would refuse to give Sheri money.
According to Sedina and Sheri, Jeffrey did not keep his lucrative marijuana
business a secret. Sedina testified that Jeffrey would readily share with others the
nature of his business. Alexis testified that she too posted about Jeffrey’s marijuana
business on social media and would discuss his financial success in conversations
with others.
1 The essential facts of the case are not disputed. We recite only the facts necessary to follow the analysis of the legal issues presented to this Court on appeal. 2 To avoid confusion, we refer to Jeffrey Lebrun, Sheri Lebrun, Sedina Lebrun, and Alexis (Lebrun) Jordan by their first names. No disrespect is intended.
-2- One person who became particularly privy to the details of Jeffrey’s business
was Lisa Silva. Silva first became friends with Alexis, but she eventually befriended
the entire Lebrun family. The defendant was Silva’s boyfriend at the time and the
father of her children.
Alexis testified that, when she socialized at Silva’s home, defendant would
often be “in and out” of the room during conversations about Jeffrey and the Lebrun
family. Sedina testified that defendant visited the Lebruns’ home at least once to
talk to Jeffrey, presumably about the marijuana business. Sheri testified that
defendant had purchased marijuana from Jeffrey before and that he knew about the
marijuana business at Dawson Street.
May 19, 2013
On the night of May 18, 2013—and into the early morning hours of May 19—
Sedina went to bed in her room on the first floor of the Lebruns’ home while Jeffrey
played video games in the adjacent room. Sheri was asleep in the bedroom upstairs.
Between 1 a.m. and 1:30 a.m., Sedina and Sheri awoke to loud noises and the sound
of Jeffrey screaming. When Sheri ran downstairs, she saw Jeffrey struggling with a
person wearing a black sweatshirt and a black ski mask. During the physical struggle
with the intruder, Jeffrey wrestled away a knife. The intruder then ran out the back
of the house.
-3- Sedina stayed in her room during the intrusion. When she emerged, Sedina
testified, her stepfather looked like “a mess” and “there was blood all over him” from
what appeared to be stab wounds.
First on the scene was Pawtucket Police Patrol Officer William Briggs,
responding to a 1:48 a.m. 911 call. Jeffrey told Officer Briggs that two intruders
dressed in black and wearing ski masks had attacked him. When Officer Briggs
arrived, there was a black backpack in the living room that the Lebruns did not
recognize. Sedina testified that she saw Jeffrey rummaging through the backpack,
assuming it had been left behind by the intruder.
In response to the 911 call, the Pawtucket police also dispatched Officers Eric
Bucka and Robert Pickett to search the surrounding area for suspects. At
approximately 1:56 a.m., Officer Bucka encountered a man, defendant, walking
down County Street about a block and a half from the Lebruns’ house. Officer
Bucka stopped defendant for questioning; at the time, defendant was wearing a white
T-shirt and black pants. Officer Bucka explained to the court that he stopped
defendant because, aside from the white T-shirt, defendant matched the description
of the suspect in the home invasion. After defendant answered their questions,
Officer Bucka and Officer Pickett confirmed that there were no warrants outstanding
for defendant’s arrest, and they let him leave.
-4- Mark Theroux, a detective sergeant with the Pawtucket Police Department,
reported to the scene and seized the backpack that the Lebruns had found in their
living room, along with the knife and two nitrile gloves, the latter of which were
found in the driveway. Detective Theroux reported that the backpack contained: one
ball-peen hammer, five large wire or “zip” ties, clear packaging tape, one hand towel,
one center-punch tool, one glass-cutter tool, one flathead screwdriver, and eight
coiled pieces of clothesline or cords tied into slip knots.3 These items were submitted
for DNA testing.
Later in the morning of May 19, 2013, Pawtucket Patrol Officer Carl Barovier
received a call from an elderly neighbor of the Lebruns, alerting him that she had
found a black sweatshirt in her yard that morning, which she presumed someone had
thrown over her fence. Officer Barovier collected the sweatshirt and drove it back
to the Lebruns for identification. Sheri and Jeffrey both told Officer Barovier that
the sweatshirt looked like the one the intruder wore the night of the assault.
July 28, 2013
Toward the end of July 2013, Sheri set out to plan a party at the Lebruns’
home for Alexis to celebrate her moving into a new apartment. Sheri asked Jeffrey
for money to host the party. He initially agreed, but then later reneged on his
3 Tamara Wong, a forensic scientist and key expert witness, later testified to her examination of a paper towel that was also found in the backpack, although Detective Theroux did not mention this paper towel in his testimony.
-5- promise, which led to an argument. Sheri admitted in her testimony to feeling
“pretty angry” and “ticked,” feelings that she shared with Alexis and Silva while the
three were at Silva’s apartment. The defendant was home at the time, and Alexis
testified that he was “in and out” of the room when Sheri aired her frustrations about
Jeffrey.
During the investigation following Jeffrey’s murder, Sheri conveyed in a
handwritten statement to the police that she communicated her frustrations about
Jeffrey’s refusal to pay for the party to Silva and defendant. She also stated that she
had told Silva that she “wished someone would teach [Jeffrey] a lesson,” and that
“someone bigger” should give Jeffrey “a beating[,]” and that defendant was present
during these statements.
Jeffrey ultimately agreed to pay for the party. The Lebruns held the party at
their home in the backyard on the afternoon of July 27, 2013. After the party, Sheri
and Alexis made plans to go out, while Sedina and Jeffrey stayed home.
Sedina testified that she went to bed around 10 p.m. or 11 p.m. and fell asleep
while her stepfather stayed awake. Sedina then testified that she awoke to loud
noises emanating from the living room, including Jeffrey’s voice yelling. Jeffrey,
locked in a fight with another person, then crashed through the door of Sedina’s
bedroom. Sedina testified that, when Jeffrey and the intruder fell into her room, she
got a brief look at the intruder, noting that the person was male, tall, skinny, and
-6- dressed in black. Jeffrey and the intruder backed out and carried on with the fight
in the living room.
Sedina, still in her room, then testified that she heard “about three” gunshots,
following which she heard Jeffrey “make sort of a groaning noise * * *.” She then
heard the sounds of footsteps from two people and a “dragging noise.” Eventually,
everything went silent. Soon after, Sedina heard sirens and police officers arriving
at the house.
The police had responded to a 911 call made by the Lebruns’ neighbor, Jessica
Parker. Parker testified that she heard what she thought to be “about six” gunshots.
As she turned to look where the noise was coming from, she spotted a man running
from the back of the Lebruns’ house, up the driveway, and along Dawson Street
toward Newport Avenue. Parker testified that the man she saw was wearing black
pants and a black hoodie with the hood raised over his head.
About twenty to thirty seconds later, Parker saw a second male, dressed in all
black, run out of the house and along Dawson Street toward Newport Avenue, in the
same direction as the first man. Parker testified that the second man appeared to
have his hand underneath his hoodie, as if holding something tight to his side. Parker
and her then-fiancé got in their car and attempted to follow the two achromatically
clad runners, but soon lost sight of them. Parker then called 911.
-7- The first officers on the scene attempted to enter the Lebruns’ home through
the front and side doors, which were both locked, but eventually they made entry
through the open back door. The officers found Jeffrey in the living room with
visible gunshot wounds to the torso and head. Jeffrey was not breathing and had no
pulse. The officers called for a rescue. Paramedics arrived and pronounced Jeffrey
dead at the scene.
DNA Evidence
Tamara Wong, Principal Forensic Scientist at the Rhode Island Department
of Health Forensic Science Laboratory, performed the DNA analysis on the evidence
collected from the May and July crime scenes and testified to her findings at trial.4
Evidence from May 19, 2013
First, Wong analyzed the collar of the black sweatshirt found near the
Lebruns’ home after the May intrusion, in hopes of identifying the wearer. Wong
found that the likelihood that defendant’s DNA was on the sweatshirt collar was 232
quintillion, or that it was 232 quintillion times more likely than not that defendant’s
DNA was part of the DNA mixture found on the sweatshirt.
4 Wong’s testimony was uncontested. She testified extensively about general best practices for analyzing DNA evidence as well as the particular procedures she followed when conducting the DNA analyses in this case. This opinion recounts only the facts and evidence pertinent to the legal issues before this Court on appeal.
-8- Next, Wong analyzed the nitrile gloves found in the Lebruns’ driveway and
discovered mixed DNA profiles on both gloves. Wong testified that it was 474
billion times more likely than not that the DNA mixture on one of the gloves
included defendant’s DNA.
Then, Wong conducted an analysis of the backpack left in the living room.
The analysis of the backpack showed several mixed DNA profiles from two people,
but none that Wong could specifically identify.
Wong also tested the objects found inside the backpack, including a paper
towel and eight pieces of cord.5 On the paper towel, Wong found that there were
two DNA contributors. Ultimately, she concluded that it was 20 quadrillion times
more likely than not that defendant’s DNA was part of the DNA mixture found on
the paper towel.
Finally, Wong analyzed the eight pieces of cord found in the backpack. Only
three cords produced DNA profiles ripe for analysis; however, of those three, Wong
determined that it was 965 trillion times more likely than not that defendant’s DNA
was part of the DNA mixture found on one of the cords.
5 Other items found in the backpack included a hammer, hand towel, flathead screwdriver, zip ties, center-punch tool, glass cutter, and packing tape. Some of these items contained insufficient amounts of DNA for full analysis; others yielded results that did not identify defendant or any other specific DNA contributors.
-9- Evidence from July 28, 2013
In 2019 Wong analyzed the physical evidence retrieved from the Lebruns’
house after the murder. This physical evidence included samples of fingernail
clippings from Jeffrey.
Wong’s analysis of the fingernail clippings revealed that it was 279 trillion
times more likely than not that the DNA found on the fingernails came from Jeffrey
and defendant than from Jeffrey and some other, unknown individual.
The Indictment
On March 1, 2019, a grand jury returned an indictment against defendant on
eight counts: burglary of a dwelling house, in violation of G.L. 1956 § 11-8-1
(count one); conspiring to commit robbery, in violation of G.L. 1956 § 11-1-6 (count
two); assault with a dangerous weapon in a dwelling house, in violation of G.L. 1956
§ 11-5-4 (count three); first degree murder, to wit, felony murder, during the course
of an inherently dangerous felony (attempted robbery), in violation of G.L. 1956
§ 11-23-1 and § 11-23-2 (count four); conspiracy to commit robbery, in violation of
§ 11-1-6 (count five); discharging a firearm while committing a crime of violence
(murder), in violation of G.L. 1956 § 11-47-3.2(b)(4) (count six); carrying a pistol
without a license in violation of § 11-47-8(a) (count seven); and possessing a firearm
after having been convicted of a felony in violation of § 11-47-5 (count eight).
Counts one through three were charged in connection with the May 19, 2013
- 10 - incident; counts four through eight were charged in connection with the July 28,
2013 incident.
On January 6, 2020, the state dismissed counts seven and eight pursuant to
Rule 48(a) of the Superior Court Rules of Criminal Procedure. After trial, the jury
returned a verdict of guilty against defendant on all remaining counts.
After the state rested its case, defendant moved for a judgment of acquittal.
The trial justice denied the motion. Shortly thereafter, defendant filed a motion for
a new trial. The trial justice denied the motion and sentenced defendant on July 29,
2020.
For the counts related to the events of May 19, 2013, the trial justice sentenced
defendant to serve concurrent terms of forty years for the burglary, ten years for the
conspiracy to commit robbery, and forty years to serve for the assault with a
dangerous weapon.6 For the counts related to the events of July 28, 2013, the trial
justice imposed two consecutive life sentences for the felony murder and discharging
a firearm, as well as ten years, to be served concurrently to counts one, two, and
6 The sentence ultimately imposed by the trial justice does not align with the sentence as recorded on the judgment of conviction, which denotes a twenty-year sentence for the burglary charge (count one) and the assault with a dangerous weapon charge (count three), to be served concurrently with the first conspiracy charge (count two). Neither party disputes the final sentence, but we acknowledge the discrepancy in the record for accuracy.
- 11 - three, for the conspiracy to commit robbery. In total, the Superior Court imposed a
sentence of two consecutive life sentences plus a consecutive forty years to serve.
The defendant filed a premature but timely notice of appeal to this Court on
July 29, 2020. A judgment of conviction and commitment then entered on
September 15, 2020.
III
Discussion
On appeal, defendant first argues that the trial justice’s jury instruction on
robbery created reversible error. The defendant then argues that the trial justice erred
in denying his motion for judgment of acquittal and his motion for a new trial.
A
Jury Instructions
The defendant asserts that the trial justice committed reversible error by
failing to instruct the jury on the specific-intent element of robbery. The state rebuts
this argument by noting that it did not charge defendant with robbery per se but,
instead, with other felonious acts that require an intent, conspiracy, or attempt to rob.
Such offenses, the state advances, do not require the particularity of instruction that
defendant demands on appeal.
- 12 - Before we reach the merits of defendant’s claim of error by the trial justice,
we first address the state’s contention that defendant failed to properly preserve his
objection for appellate review.
“It is well settled that the raise-or-waive rule precludes us from considering at
the appellate level issues not properly presented before the trial court.” State v.
Andrade, 209 A.3d 1185, 1194 (R.I. 2019) (quoting State v. Cahill, 196 A.3d 744,
753 (R.I. 2018)). “No party may assign as error any portion of the [jury instructions]
or omission therefrom unless the party objects thereto before the jury retires to
consider its verdict, stating distinctly the matter to which the party objects and the
grounds of the party’s objection.” Super. R. Crim. P. 30. “The purpose of Rule 30
is to notify the trial justice, with clarity and specificity, of any deficiencies in the
charge so that the alleged error may be cured before the jury retires for
deliberations.” State v. Gautier, 950 A.2d 400, 415 (R.I. 2008) (quoting State v.
Brown, 898 A.2d 69, 83 (R.I. 2006)).
“[W]aiver of an issue on appeal is often based on our well-settled requirement
that objections must be sufficiently specific ‘as to call the trial justice’s attention to
the basis for said objection.’” State v. Soler, 140 A.3d 755, 760 (R.I. 2016) (quoting
State v. Brown, 9 A.3d 1240, 1245 (R.I. 2010)).
At trial, upon request for any objections to the proposed jury instructions,
defendant submitted written objections to the trial justice. During the subsequent
- 13 - hearing, defendant advised the trial justice as follows, “Your Honor, I did file a
written copy of my objections * * *. I would just like to incorporate those for the
record * * *.” The trial justice noted the objection. After the trial justice noted the
objection, the jury retired for deliberations.7 On appeal, the state attacks the
specificity of defendant’s objection, claiming that defendant’s general reference to
the lengthy written objections he submitted failed to alert the trial justice to the
precise nature of his objection.
We observe that not only did the trial justice note defendant’s objection, but
also that defendant clearly disputed the trial justice’s omission of the specific-intent
element of robbery in his written objections. See State v. Oliveira, 882 A.2d 1097,
1121 (R.I. 2005) (affirming a trial justice’s decision to refuse a jury instruction where
the requesting party did not submit the requested instruction in writing and the issue
was otherwise adequately covered); State v. DeCiantis, 501 A.2d 365, 369 (R.I.
1985) (holding that an issue was not adequately preserved on appeal where counsel
merely “[o]bject[ed] by number” to the jury charge). This Court perceives no error
with either the timeliness or specificity of defendant’s objection. The objection to
the jury instruction on robbery is not waived; therefore, we proceed with our review.
7 We note the order of events and recognize that defendant timely raised the objection. See State v. Maria, 132 A.3d 694, 700 (R.I. 2016).
- 14 - Standard of Review
We review “jury instructions on a de novo basis.” State v. Isom, 251 A.3d 1,
6 (R.I. 2021) (quoting State v. Ros, 973 A.2d 1148, 1166 (R.I. 2009)). “It is well
settled that this Court ‘reviews jury instructions in their entirety’ and ‘we will affirm
if the instructions adequately cover the law and neither reduce nor shift the state’s
burden of proof.’” State v. Martin, 68 A.3d 467, 473 (R.I. 2013) (brackets omitted)
(quoting State v. Lopez, 45 A.3d 1, 22 (R.I. 2012)).
Analysis
The defendant argues that the trial justice committed reversible error by
omitting the specific-intent element of robbery from her instructions to the jury.
Specifically, defendant alleges that the flawed instruction interfered with the jury’s
ability to decide count one (burglary); count three (assault with a dangerous weapon
in a dwelling house with the intent to rob); count four (felony murder during an
attempted robbery); and counts two and five (conspiracy to commit robbery).
Because all of these counts involve either an intent to, conspiracy to, or attempt to
rob, defendant avers that the trial justice was required to instruct the jury on all
elements of robbery. Her failure to do so, defendant argues, improperly reduced the
state’s burden of proof, violated defendant’s constitutional rights, and created
reversible error necessitating a new trial.
- 15 - In her jury instructions, the trial justice provided the common-law definition
of robbery: “Robbery is a felony. It is defined as the taking of money or goods of
any value from the person of another, or in his presence, against his will, by violence
or by putting him in fear.” The common-law definition is the legal definition of
robbery in Rhode Island. See State v. Robertson, 740 A.2d 330, 333 (R.I. 1999)
(“This Court has long held that the [penalty for robbery] statute [(G.L. 1956
§ 11-39-1)] incorporates the common-law definition of robbery.”); see also State v.
Shepard, 726 A.2d 1138, 1140 (R.I. 1999); State v. Domanski, 57 R.I. 500, 501, 190
A. 854, 855 (1937). Our caselaw additionally instructs that the specific-intent
element of robbery is “to deprive another wholly and permanently of his property.”
State v. Hazard, 745 A.2d 748, 755 (R.I. 2000) (quoting State v. Robalewski, 418
A.2d 817, 821 (R.I. 1980), abrogated on other grounds by Horton v. California, 496
U.S. 128 (1990)). This is an essential element of the crime. See State v. Brown, 549
A.2d 1373, 1377 (R.I. 1988); Robalewski, 418 A.2d at 821.
Jury instructions curtail a defendant’s right to due process when the
instructions reduce the state’s burden to prove every element of the crimes charged
beyond a reasonable doubt. See State v. Whitaker, 79 A.3d 795, 808 (R.I. 2013)
(“The state * * * carries the burden of producing enough evidence so that * * * the
defendant’s guilt has been proved beyond a reasonable doubt as to each element or
component of the crimes charged.” (brackets omitted) (emphasis added)); State v.
- 16 - Sivo, 925 A.2d 901, 915 (R.I. 2007) (“[T]he ‘Constitution gives a criminal defendant
the right to demand that a jury find him guilty of all the elements of the crime with
which he is charged.’” (emphasis added) (quoting United States v. Booker, 543 U.S.
220, 230 (2005))); Hazard, 745 A.2d at 751 (“The Due Process Clause of the
Fourteenth Amendment to the United States Constitution * * * den[ies] the state the
power to deprive the accused of liberty unless the state proves every element
necessary to constitute the crime charged beyond a reasonable doubt.” (emphasis
added)).
The focus of our inquiry must then be solely on the crimes charged against
defendant and the elements of those crimes—particularly, as defendant has put at
issue here, the requisite mental state for each crime. See 1 Wharton’s Criminal Law
§ 5.1 (Ohlin 16th ed. Sept. 2022 update) (“[A] crime consists in the concurrence of
prohibited conduct and a culpable mental state. Each crime * * * has its own type
of culpable mental state (often called mens rea).”).
Before this Court, the state concedes that the trial justice did not instruct the
jury on the specific-intent element of robbery. The state also does not dispute that
the intent to wholly and permanently deprive is an essential element of robbery.
Rather, the crux of the state’s argument is that the specific-intent instruction was
superfluous based on the charges brought. To bolster this argument, the state notes
that defendant fails to cite any caselaw from this Court that requires a robbery
- 17 - specific-intent instruction for the crimes of burglary, assault with a dangerous
weapon, felony murder, or conspiracy. The state maintains, therefore, that the
omission of the specific-intent instruction did not in any way reduce its burden or
constitute reversible error.
In response, defendant claims that the jury needed the specific-intent
instruction for robbery to decide the following charges: burglary (count one); assault
with a dangerous weapon in a dwelling house (count three); felony murder in the
first degree, during the course of an attempted robbery (count four); and conspiracy
(counts two and five). We review each of these counts in turn to determine whether
the omission of the specific-intent instruction in any way reduced the state’s burden
of proof.
Burglary
Rhode Island law incorporates the common-law definition of burglary. See
State v. Lefebvre, 609 A.2d 957, 958 (R.I. 1992); State v. Hudson, 53 R.I. 229, 230,
165 A. 649, 650 (1933). “Burglary at common law is the breaking and entering the
dwelling-house of another in the nighttime with the intent to commit a felony therein,
whether the felony be actually committed or not.” State v. Contreras-Cruz, 765 A.2d
849, 852 (R.I. 2001) (quoting Hudson, 53 R.I. at 230, 165 A. at 650).
To complete the crime of burglary, a defendant need only possess felonious
intent “at the critical time of breaking and entering,” regardless of whether the
- 18 - underlying felony was separately completed. See, e.g., Contreras-Cruz, 765 A.2d at
853, 855 (upholding a burglary conviction where sufficient evidence existed to prove
that the defendant intended to commit sexual assault, a felony, upon entering the
victim’s bedroom without permission); Lopes v. State, 111 A.3d 344, 351 (R.I. 2015)
(upholding a burglary conviction even though the underlying felony, larceny, had
not been proven because “it is the intent to commit a felony that is the essential
element of the crime of burglary” (emphasis added)); State v. Dyer, 813 A.2d 71, 76
(R.I. 2003) (upholding a burglary conviction against the defendant because his
assault of the victim established a felonious intent to kill, even though the defendant
failed to complete the murder).
Here, defendant insists that the omission of the specific-intent instruction for
robbery, the underlying felony to his burglary charge, reduced the state’s burden of
proof. This argument confuses the temporal aspect of intent for burglary as opposed
to robbery. The specific intent for robbery reflects the mental state of an accused at
the moment of asportation or taking. See State v. Firby, 636 A.2d 1330, 1331 (R.I.
1994) (affirming that the pertinent intent for robbery is “at the time of * * *
dispossession”). Whereas, for burglary, the relevant intent exists at the moment of
breaking and entering. See Lefebvre, 609 A.2d at 960 (“It is most important to note
that the burglary was complete at the time the breaking and entering took place with
the felonious intent.”).
- 19 - As such, to decide the burglary charge, the jury did not require an instruction
on the specific-intent element of robbery. For count one, the state’s sole burden was
to prove beyond a reasonable doubt that, at the moment defendant crossed the
threshold into the Lebruns’ home on the night of May 19, 2013, he intended to
commit a felony—in this case, robbing Jeffrey. See Lopes, 111 A.3d at 351; Dyer,
813 A.2d at 76; Contreras-Cruz, 765 A.2d at 853. A specific-intent instruction for
robbery has no bearing on that analysis not because the actual taking of Jeffrey’s
property never occurred—although it did not—but because that instruction captures
the wrong moment in time given the crime charged.
Therefore, “we perceive neither error nor prejudice to defendant in the trial
justice’s decision to decline defendant’s request that the specific language that he
preferred be included in the jury instructions” for count one. Lopez, 45 A.3d at 23
(brackets omitted) (quoting State v. Adefusika, 989 A.2d 467, 477 (R.I. 2010)).
Assault with Intent to Commit Robbery
On count three, assault with a dangerous weapon in a dwelling house with the
intent to commit a robbery, defendant concedes that the trial justice instructed the
jury that “[t]he defendant’s intention to rob [Jeffrey] is an integral element of this
charge[,]” but maintains that her omission of the specific-intent instruction was in
error. We disagree.
- 20 - As discussed above, the only burden on the state is to prove every element of
the crimes charged against defendant beyond a reasonable doubt. It is well settled
in Rhode Island that assault with a dangerous weapon with the intent to rob is a
lesser-included offense within the common-law crime of robbery. See State v.
Holley, 604 A.2d 772, 776 (R.I. 1992); Brown, 549 A.2d at 1376-77. This Court has
said, in particular, that “[t]his element of taking,” or rather, “[t]he specific intent to
deprive another permanently of his or her property,” “distinguishes robbery from
assault with intent to rob.” Brown, 549 A.2d at 1377. As such, our caselaw
deliberately excludes the specific-intent element of robbery from the separate, lesser
crime of assault with a dangerous weapon with the intent to rob. See id. The
defendant incorrectly assigns reversible error to the trial justice for failing to instruct
the jury on an element extraneous to the crime charged against him.
We perceive “neither error nor prejudice to defendant” in the jury instructions
as provided for count three. Lopez, 45 A.3d at 23 (quoting Adefusika, 989 A.2d at
477).
Felony Murder
The defendant’s objection is most appropriately raised on count four, where
he asserts correctly that a felony murder conviction requires all elements of the
predicate felony to be proven beyond a reasonable doubt. See Oliveira, 882 A.2d at
1109. It is likewise true that the specific intent required for robbery, to wholly and
- 21 - permanently deprive, is an essential element of the crime and one that requires
instruction because, as this Court has stated, the specific-intent element is not
intuitive to a jury. Robalewski, 418 A.2d at 821. Even still, defendant misses the
mark.
“To obtain a conviction under a felony murder theory, the state must prove all
the elements of the underlying felony, or an attempt to commit the underlying felony,
and that the death occurred during the perpetration of the felony, beyond a
reasonable doubt.” Oliveira, 882 A.2d at 1111; see State v. Villani, 491 A.2d 976,
980 (R.I. 1985); State v. Innis, 120 R.I. 641, 656, 391 A.2d 1158, 1166 (1978), rev’d
on other grounds, 446 U.S. 291 (1980). The felony murder theory illuminates a
critical distinction between the principal charge and the predicate felony raised in a
criminal case. See, e.g., Villani, 491 A.2d at 980 (holding that the trial justice erred
by requiring the state to prove beyond a reasonable doubt every element of
first-degree murder and, separately, every element of robbery on a felony murder
charge); Jefferson v. State, 472 A.2d 1200, 1203 (R.I. 1984) (dismissing a claim of
double jeopardy where the petitioner was punished for felony murder only and not
held additionally culpable for attempted robbery—the predicate felony).
The defendant’s argument on count four hinges on this Court’s ruling in State
v. Robalewski, wherein we perceived reversible error on a jury instruction that did
not include the specific-intent element of robbery. Robalewski, 418 A.2d at 821.
- 22 - However, Robalewski is distinguishable from the case at bar because there, the
principal charge levied against the defendant was robbery. Id. By contrast, here, the
state charged defendant with felony murder during the course, not of a robbery, but
of an attempted robbery. Attempted robbery is a felony in its own right and does
not call for the same specific intent as a regular robbery. See Jefferson, 472 A.2d at
1203 (noting the legal distinction between robbery and the lesser, separate offense
of attempted robbery).
This Court and federal caselaw draw a clear distinction between the requisite
intent for an attempted robbery versus robbery. In State v. Latraverse, 443 A.2d 890
(R.I. 1982), Rhode Island adopted the Model Penal Code definition of criminal
attempt, which requires that the perpetrator “purposely does or omits to do anything
which is an act or omission constituting a substantial step in a course of conduct
planned to culminate in his commission of the crime.” Latraverse, 443 A.2d at 894
(deletion omitted) (quoting § 5.01(1)(c) of the American Law Institute’s Model
Penal Code (Proposed Official Draft 1962)). As applied to robbery, a defendant may
be convicted of attempted robbery “so long as his intention and some other
substantial step are present,” even “before he has actually engaged in threatening
conduct * * *.” United States v. Taylor, 142 S. Ct. 2015, 2021 (2022) (discussing
common law principles of attempted robbery) (quoting the American Law Institute’s
Model Penal Code § 222.1 at 114 (1980)); see United States v. LiCausi, 167 F.3d
- 23 - 36, 48 (1st Cir. 1999) (determining that defendants who stole a car and surveilled a
grocery store in preparation to rob it, without ever setting foot on the store’s
property, constituted attempted robbery).
The trial justice furnished the following jury instruction for attempted
robbery: “To attempt an offense means to willfully act with the specific intention of
accomplishing something that the law forbids. In other words, an attempt is a
substantial step towards the completion of the offense with the intent to commit that
offense.” The trial justice further clarified that, “if you find that the [s]tate has
proven beyond a reasonable doubt that the defendant * * * did unlawfully kill Jeffrey
* * * while * * * attempting to rob Jeffrey * * *, then you must return a guilty verdict
on [c]ount 4.”
In light of our caselaw and general common law principles, we hold that these
instructions were more than adequate to cover the law on felony murder during the
course of an attempted robbery. There was no need for the trial justice to instruct on
the specific-intent element of robbery because robbery was not the predicate felony
to the felony murder charge. Here again, we perceive “neither error nor prejudice to
defendant” in the jury instructions as provided for count four. Lopez, 45 A.3d at 23
(quoting Adefusika, 989 A.2d at 477).
- 24 - Conspiracy
In Rhode Island, conspiracy “remains a common law crime.” State v. Jilling,
275 A.3d 1160, 1170-71 (R.I. 2022). “The crime of conspiracy is an agreement
between ‘two or more persons to commit an unlawful act or to perform a lawful act
for an unlawful purpose.’” Ros, 973 A.2d at 1163 (quoting State v. Graham, 941
A.2d 848, 863 (R.I. 2008)). “Once an agreement has been made, no further action
in furtherance of the conspiracy is necessary to find a defendant guilty of the crime
of conspiracy.” State v. Tully, 110 A.3d 1181, 1194 (R.I. 2015) (quoting State v.
Disla, 874 A.2d 190, 197 (R.I. 2005)).
In State v. LaPlume, 118 R.I. 670, 375 A.2d 938 (1977), this Court recognized
that “the crime of conspiracy is separate and distinct from the substantive offense
* * *.” LaPlume, 118 R.I. at 677, 375 A.2d at 941. Following this maxim, the
conspiracies implicated under counts two and five must be considered separately and
distinctly from the alleged object of those conspiracies—the robbery of Jeffrey.
The trial justice instructed the jury as follows: “[T]he law provides that if two
or more persons conspire to commit a substantive criminal act, such as robbery, each
person is also guilty of the separate offense of conspiracy. * * * Once the unlawful
agreement has been made, the crime of the conspiracy is complete.”
Relying on this Court’s opinion in State v. Huntley, 171 A.3d 1003 (R.I.
2017), defendant argues that the jury had no way of knowing whether the state had
- 25 - proved the “existence and scope of the unlawful agreement beyond a reasonable
doubt” without an instruction on the specific-intent element of robbery—the crime
undergirding the alleged conspiracy. Huntley, 171 A.3d at 1006 (quoting State v.
Abdullah, 967 A.2d 469, 475 (R.I. 2009)). This argument fails to convince.
Although we opined in Huntley that the state must prove the existence and scope of
an unlawful agreement, we further expounded that the scope “may be ‘inferentially
established’” and that “[t]he essence of a criminal conspiracy is the agreement to
commit an unlawful act.” Id. (emphasis added) (quoting Disla, 874 A.2d at 197).
This clarification belies defendant’s claim that Huntley supports his argument.
So long as the state anchors the conspiracy charge with an underlying crime
punishable by Rhode Island law, the state need not prove every element of the
underlying offense or even that the underlying offense occurred. See Jilling, 275
A.3d at 1170 (“[A]lthough the crime of conspiracy is itself a separate offense,
conspiracy counts should also be dismissed when there is no underlying crime on
which to base the conspiracy charge.” (brackets and deletion omitted) (quoting State
v. Maxie, 187 A.3d 330, 341-42 n.13 (R.I. 2018))). This Court articulated succinctly
in LaPlume that “[t]he gravamen of [conspiracy] is entry into an unlawful agreement
and once that occurs the offense is complete.” LaPlume, 118 R.I. at 677, 375 A.2d
at 941. Therefore, defendant’s contention that the jury required exhaustive
instruction on the underlying substantive offense—robbery—to decide the
- 26 - overarching principal charge—conspiracy—appears unmoored from our caselaw
and the common law.
Again, we perceive “neither error nor prejudice to defendant” in the jury
instructions as provided for counts two and five. Lopez, 45 A.3d at 23 (quoting
Adefusika, 989 A.2d at 477).
After reviewing the jury instructions de novo, we conclude that the trial
justice’s instructions adequately covered the law on all the crimes charged and,
specifically, that her omission of the specific-intent instruction for robbery was not
in error. The jury instructions did not reduce the state’s burden of proof on any of
the crimes charged against defendant. Consequently, we affirm the trial justice’s
decision to decline defendant’s requested changes to the jury instructions on all
counts.8
B
Motion for Judgment of Acquittal
The defendant contends that the trial justice erred in denying his motion for
judgment of acquittal with respect to the felony murder charge (count four) and the
8 Because we perceive no error with the jury instructions, we need not address the parties’ arguments as to harmless error. Similarly, we reject defendant’s argument that the purportedly erroneous jury instruction justifies the grant of a new trial on all counts.
- 27 - charge of conspiracy to commit robbery (count five).9 The defendant argues that the
state offered insufficient evidence to prove that the intruders on the night of July 28,
2013, either intended or conspired to rob Jeffrey. The state maintains on appeal that
it submitted ample evidence to prove all elements of counts four and five and that
the trial justice’s ruling on the motion was not in error.
Standard of Review
“Rule 29(a)(1) of the Superior Court Rules of Criminal Procedure provides
that the trial justice shall order the entry of judgment of acquittal when the evidence
is insufficient to sustain a conviction of one or more of the offenses charged.” State
v. Maria, 132 A.3d 694, 698 (R.I. 2016) (internal quotation marks omitted). “In
reviewing the denial of a motion for a judgment of acquittal, we apply the same
standard as that applied by the trial justice; namely, we must view the evidence in
the light most favorable to the state, give full credibility to the state’s witnesses, and
draw therefrom all reasonable inferences consistent with guilt.” State v. Thibedau,
157 A.3d 1063, 1077 (R.I. 2017) (brackets and deletion omitted) (quoting Maria,
132 A.3d at 698). “If the totality of the evidence so viewed and the inferences so
drawn would justify a reasonable juror in finding a defendant guilty beyond a
9 “We have oft stated that, when faced, as here, with both Rule 29 and [Rule] 33 motions, this Court first conducts a review of the new-trial motion.” State v. Gomez, 116 A.3d 216, 222 (R.I. 2015) (quoting State v. Storey, 102 A.3d 641, 646 (R.I. 2014)). In his brief to this Court, defendant deliberately argued his Rule 29 motion first. We address the motions in the order presented by defendant.
- 28 - reasonable doubt, the motion for judgment of acquittal must be denied.” State v.
Gomez, 116 A.3d 216, 225 (R.I. 2015) (quoting State v. Snow, 670 A.2d 239, 243
(R.I. 1996)).
On appeal, defendant argues that the state submitted insufficient evidence to
show that the intruders attempted or conspired to rob Jeffrey on July 28, 2013. The
defendant avers that the state offered sheer “speculation” as to the intentions of the
men who broke into the Lebruns’ home. Unless the state can prove that the intruders
specifically intended to rob Jeffrey, defendant argues, the felony murder charge must
be dismissed because, in that case, the state will have failed to prove beyond a
reasonable doubt that Jeffrey was killed during an attempted robbery. Similarly,
defendant presses, if the state did not adequately prove that defendant specifically
conspired to rob Jeffrey, the conspiracy charge must also be dismissed.
We review the evidence in the light most favorable to the state to determine
whether the evidence supports a reasonable inference by the jury that defendant
conspired to rob Jeffrey and murdered Jeffrey during the course of an attempted
robbery. See Thibedau, 157 A.3d at 1077. The defendant asserts that the state
submitted insufficient evidence to prove defendant’s intention to commit a robbery.
We establish at the outset of our review that “circumstantial evidence has the same
- 29 - probative value as direct evidence, and that the state can rest its entire case upon
circumstantial evidence alone.” State v. Brown, 9 A.3d 1232, 1238 (R.I. 2010).
As to count four, the state offered testimonial evidence from Alexis and Sheri
that defendant knew Jeffrey kept marijuana in the house. Sheri also confirmed that
“it wasn’t a secret” where Jeffrey stored the cash from the business. Additionally,
through Alexis’s testimony and Sheri’s testimony, the state demonstrated that
defendant was “in and out” of the room when Sheri vented to Silva about Jeffrey’s
stinginess and when Sheri expressed her eagerness that someone would teach Jeffrey
a lesson.
The state additionally submitted evidence that defendant had unsuccessfully
attempted to rob Jeffrey in May 2013. This evidence included (1) the police officers’
encounter with defendant blocks away from the Lebruns’ home shortly after the
break-in; (2) Wong’s testimony that traces of defendant’s DNA were found on the
black sweatshirt abandoned near the Lebruns’ property; and (3) Wong’s testimony
that defendant’s DNA was linked to some of the “tools of the trade” found in the
backpack left at the Lebruns’ house.
Before this Court, the state reiterates that defendant’s involvement in the May
break-in supports a reasonable inference that, in July, he intended to finish what he
started. The defendant impugns the state’s attempt to connect the May and July
occurrences. If anything, defendant argues, the fact that the May intruders came
- 30 - armed with “tools of the trade” and the July intruders carried none of these items
indicates that, in July, there was no intention to rob Jeffrey but only to attack him.
Even assuming arguendo that the home invasions in May and July were
unrelated, the evidence presented at trial was still sufficient to support a reasonable
inference that the July intruders intended to rob Jeffrey and murdered him during the
course of that attempted robbery. See Ros, 973 A.2d at 1161 (“We reiterate that, in
the context of this issue on appeal, we are required to evaluate the evidence in the
light most favorable to the state.”). On a motion for judgment of acquittal, this Court
must assess “whether a reasonable inference consistent with guilt can be drawn, not
whether reasonable inferences consistent with innocence are also possible.” Brown,
9 A.3d at 1238. Viewing the same evidence in the light most favorable to the state,
we concur with the trial justice’s determination to deny the motion for judgment of
acquittal on count four.
Appealing the trial justice’s denial of the motion as to count five, defendant
asserts that the state failed to prove the object and scope of the alleged conspiracy.
See Huntley, 171 A.3d at 1006 (“To convict the accused of the crime of conspiracy,
‘the prosecution must prove the existence and scope of the unlawful agreement
beyond a reasonable doubt.’” (quoting Abdullah, 967 A.2d at 475)). The defendant
disputes the trial justice’s conclusion that “two individuals in black with masks,
armed with a gun, at night, demonstrate a common purpose.” Further, defendant
- 31 - challenges the trial justice’s deduction that the object of the conspiracy must have
been robbery, as opposed to “any other number of crimes.” This determination by
the trial justice, defendant argues, defied the standard this Court established in
Huntley.
“Although a common agreement is the keystone of the crime of conspiracy,
this Court ‘has recognized that it is usually very difficult to prove in complete detail
the explicit terms of an agreement.’” Ros, 973 A.2d at 1163 (quoting State v.
Oliveira, 774 A.2d 893, 919 (R.I. 2001)). “Consequently, the conspirators’ goals
may be inferentially established by proof of the relations, conduct, circumstances,
and actions of the parties.” Tully, 110 A.3d at 1194 (quoting Ros, 973 A.2d at 1163).
The state may also prove the existence of a conspiracy “based on a tacit agreement
shown from an implicit working relationship” between coconspirators and need not
produce evidence of “an express agreement.” United States v. Mubayyid, 658 F.3d
35, 57 (1st Cir. 2011) (quoting United States v. Patrick, 248 F.3d 11, 20 (1st Cir.
2001)).
To support a conviction on the conspiracy charge, the state presented evidence
at trial that (1) DNA evidence found underneath Jeffrey’s fingernails more likely
than not included defendant’s DNA; (2) Sedina heard two people moving around
inside the house after she heard the gunshots; and (3) Parker saw two men, dressed
- 32 - in black, run out of the Lebruns’ house in quick succession and head in the same
direction towards Newport Avenue.
The defendant may be correct that, theoretically, the intruders could have
intended to commit an offense other than robbery, based on the evidence presented;
however, that logic is irrelevant for our inquiry upon reviewing this motion. See
State v. Valdez, 267 A.3d 638, 643 (R.I. 2022) (“If the totality of the evidence so
viewed and the inferences so drawn would justify a reasonable juror in finding a
defendant guilty beyond a reasonable doubt, the motion for judgment of acquittal
must be denied.” (quoting Snow, 670 A.2d at 243)).
Additionally, we are unmoved by defendant’s hypothesis that “empty-handed
individuals” could not have intended or conspired to attempt robbery. See
Latraverse, 443 A.2d at 895 (embracing the rejection by the United States Court of
Appeals for the Second Circuit of an argument that the defendants “could not be
convicted of an attempted bank robbery because they neither entered the bank nor
brandished weapons” (quoting United States v. Stallworth, 543 F.2d 1038, 1040 (2d
Cir. 1976))); see also Stallworth, 543 F.2d at 1040 (“We reject this wooden logic.
Attempt is a subtle concept that * * * enables society to punish malefactors who
have unequivocally set out upon a criminal course * * *.”). We conclude that the
testimonial and physical evidence presented support a reasonable inference that
defendant conspired to rob Jeffrey on the night of July 28, 2013.
- 33 - Upon our thorough review of the record in the light most favorable to the state,
drawing all reasonable inferences consistent with guilt, we affirm the trial justice’s
denial of the motion for judgment of acquittal on counts four and five.
C
Motion for a New Trial
The defendant additionally argues that the trial justice erred in denying his
motion for a new trial on counts four, five, and six—the charges stemming from the
July incident. On these counts, defendant claims that the trial justice relied on
“meager evidence” insufficient to support any inference beyond “a desire to engage
in generic criminal activity.”
“When passing on a motion for a new trial, the trial justice acts as a thirteenth
juror and exercises independent judgment on the credibility of witnesses and on the
weight of the evidence.” State v. Maxie, 241 A.3d 124, 126 (R.I. 2020) (brackets
omitted) (quoting State v. Cerda, 957 A.2d 382, 385 (R.I. 2008)). “The trial justice
must consider the evidence in light of the jury charge, then independently assess the
credibility of the witnesses and the weight of the evidence, and also ultimately
determine whether he or she would have reached a result different from that reached
by the jury.” State v. Gumkowski, 223 A.3d 321, 328 (R.I. 2020) (quoting State v.
Johnson, 199 A.3d 1046, 1051 (R.I. 2019)). “If, after conducting this independent
- 34 - review, the trial justice agrees with the jury’s verdict or if the evidence is such that
reasonable minds could differ as to the outcome, the motion for a new trial should
be denied.” Tully, 110 A.3d at 1192 (quoting State v. Watkins, 92 A.3d 172, 191
(R.I. 2014)).
Accordingly, “[i]f the trial justice has articulated adequate grounds for
denying the motion, his or her decision is entitled to great weight and will not be
overturned by this Court unless he or she has overlooked or misconceived material
evidence or was otherwise clearly wrong.” State v. Alexis, 185 A.3d 526, 537 (R.I.
2018) (quoting State v. Adams, 161 A.3d 1182, 1200-01 (R.I. 2017)).
Similar to the arguments advanced on the motion for judgment of acquittal,
defendant contends that the trial justice erred in denying the motion for a new trial
because “the weight of the evidence failed to establish that [Jeffrey] was killed
during an attempted robbery or that [defendant] had conspired to commit [a] robbery
* * *.” Specifically on count four, defendant disputes the trial justice’s conclusion
that the July incident demonstrated “the same MO as the incident on May 19th.”
The defendant avers that the evidence showing that both events occurred during “the
same time in the evening” with “the same number of intruders” in “the same type
and manner of dress,” does not sufficiently support a connection between the events
of May and July such that the May evidence can be imputed onto the July murder.
- 35 - On count five, defendant argues that the trial justice cited insufficient evidence
to support her finding that “there was a conspiracy where [the intruders] would be
taking off thereafter, after the robbery that was the subject of the conspiracy.”
Moreover, defendant argues, the fact that the third-party witness—Parker—did not
witness the intruders “carrying any bags or backpacks” shows there was no intent or
conspiracy to commit a robbery.
At the outset, we acknowledge that the trial justice opened her discussion on
the motion for a new trial by stating the correct standard and that she then articulated
specific grounds for denying the motion. This entitles her decision to great deference
by this Court. See State v. Vidot, 253 A.3d 401, 410 (R.I. 2021).
As required in ruling on a motion for a new trial, the trial justice began her
review by analyzing the evidence in light of the jury charge. See State v. Virola, 115
A.3d 980, 991 (R.I. 2015). She observed that “[t]here is ample evidence * * * that
this defendant had knowledge of the cash and the drugs that were maintained at
[Jeffrey’s] residence, providing both the motive and opportunity * * * to target this
complaining witness for both the May 19th incident as well as the July 28th
incident.” The trial justice also noted the other “substantial evidence of record,”
including the “uncontradicted testimony * * * of Tamara Wong” showing that
defendant’s DNA was found under Jeffrey’s fingernail after the July attack. And
- 36 - moreover, she stated, there was “uncontradicted testimony * * * that the decedent
* * * died as a result of a gunshot wound.”
Next, the trial justice assessed the credibility of the witness testimony and the
weight of the evidence. See Virola, 115 A.3d at 992. At this stage, the trial justice
determined that the testimony “from each of the Lebrun women” constituted
“credible evidence[.]” She also emphasized the reliability of Parker’s testimony,
which applied solely to the convictions on counts four, five, and six. The trial justice
recounted that, according to “the most independent individual in this case,” the two
intruders absconded separately, yet in sync, from the Lebruns’ home on the July
night in question. The trial justice reviewed the similarities connecting the May
invasion to the July incident, listing “the same type and manner of dress, * * * the
same time in the evening, [and] two people.” She then noted that immediately after
gunshots were heard, “one person [ran] out of the house * * * and then a minute
later, another individual, again, dressed all in black” ran in the same direction.
Finally, the trial justice summarized her independent assessment of the
evidence with the conclusion that she would not have reached a different result from
the jury. See Virola, 115 A.3d at 992. It is clear that the trial justice assiduously
followed the proper steps to decide on the motion for a new trial. See State v. Franco,
225 A.3d 623, 631 (R.I. 2020) (“In providing a rationale for a decision, however, the
trial justice need not refer to all the evidence supporting the decision but need only
- 37 - cite evidence sufficient to allow this Court to discern whether the justice has applied
the appropriate standards.” (quoting State v. DiCarlo, 987 A.2d 867, 870 (R.I.
2010))).
Accordingly, we hold that the trial justice did not overlook or misconceive
material evidence nor was she otherwise clearly wrong in denying the defendant’s
motion for a new trial.
IV
Conclusion
For the reasons stated herein, we affirm the judgment of the Superior Court.
The record shall be returned to that tribunal.
- 38 - STATE OF RHODE ISLAND SUPREME COURT – CLERK’S OFFICE Licht Judicial Complex 250 Benefit Street Providence, RI 02903
OPINION COVER SHEET
Title of Case State v. Juan Gibson.
No. 2021-139-C.A. Case Number (P1/19-820AG)
Date Opinion Filed April 4, 2023
Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Justices Long, JJ.
Written By Chief Justice Paul A. Suttell
Source of Appeal Providence County Superior Court
Judicial Officer from Lower Court Associate Justice Kristin E. Rodgers
For State:
Christopher R. Bush Department of Attorney General Attorney(s) on Appeal For Defendant:
Megan F. Jackson Office of the Public Defender
SU-CMS-02A (revised November 2022)