State v. Morey

722 A.2d 1185, 1999 R.I. LEXIS 3, 1999 WL 9711
CourtSupreme Court of Rhode Island
DecidedJanuary 8, 1999
Docket97-303-CA
StatusPublished
Cited by11 cases

This text of 722 A.2d 1185 (State v. Morey) 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. Morey, 722 A.2d 1185, 1999 R.I. LEXIS 3, 1999 WL 9711 (R.I. 1999).

Opinion

OPINION

BOURCIER, Justice.

This case comes before us on the defendant’s appeal from a final judgment of con *1186 victions following a Superior Court jury trial on eleven counts of second degree child molestation sexual assault.

Robert Morey (defendant) had been a long-time family friend of Stephanie and Paul Smith 1 and their two children, Joseph and David. Stephanie was especially close to the defendant because prior to her marriage to Paul, and for a six-month period during her marriage, Stephanie had been involved romantically with the defendant. Even after their affair had ended, the defendant remained good friends with both Stephanie and Paul and in fact, he often visited and slept overnight at the Smith home. 2 During those visits, he had numerous opportunities to spend unsupervised time with the Smith children.

Through his friendship with the Smiths, the defendant also came to know and spend time with Edward White (Edward), who is the son of Frank and Mary White, close friends of the Smiths. Edward was younger than the Smith boys, but he often spent time with them when his parents visited the Smiths. The defendant was present during many of those visits.

In the spring or summer of 1991, the defendant asked Edward if he wanted to go for a walk in the woods. Edward was five years of age at the time. After receiving his parents’ permission, Edward joined Joseph, David, the defendant for a walk. Joseph and David had their bicycles with them and at some point during the walk, Joseph and David rode ahead, leaving behind the defendant and Edward, who was then too young to ride a bicycle. While Joseph and David were a fair distance ahead, Edward told the defendant that he had to go the bathroom. The defendant then instructed him to go into the woods and relieve himself. Edward proceeded to do so. As Edward relieved himself, the defendant, the ever-vigilant chaperone, watched him. When Edward finished, the defendant asked Edward if he could hold Edward’s “peanut.” 3 Young Edward, apparently too shocked to respond, remained silent and the defendant proceeded to hold Edward’s penis for a few “seconds.” After-wards, the defendant began to relieve himself. While doing so, the defendant asked Edward if he wanted to hold the defendant’s “peanut.” 4 After this incident, the defendant told Edward that it was a secret between Edward and himself and that Edward should not tell anybody about what had taken place.

A year later while he was watching television, young Edward suddenly became visibly upset. When his concerned mother asked him what was troubling him, Edward began talking about the walk that he had taken the year before with the defendant and the Smith children. He said that he had a secret with the defendant and that he was not supposed to tell anyone about it. After persistent questioning by his mother, Edward eventually revealed, on the following day, that the defendant had touched his “peanut.” Mary immediately went to her husband with this unexpected and disturbing information.

Because the Whites were such good friends with the Smiths and because the defendant had spent so much time with the Smith children, the Whites then decided to tell the Smiths about what they had learned of the defendant. The Smiths then questioned their own two boys, who at first denied any touching by the defendant, but eventually admitted that the defendant had touched their penises and buttocks. The Smiths then went to the police, who in turn contacted the Whites.

Following an investigation by the police, the matter was referred to the Department of the Attorney General. On May 24,1993, a criminal information charging the defendant *1187 with six counts of second degree child molestation involving Joseph, five counts involving David, and one count involving Edward, was filed in the Kent County Superior Court. See G.L.1956 § 11-37-8.3 (second degree child molestation statute).

At the defendant’s trial on the twelve information charges, the testimony revealed that the defendant had not been completely satisfied with the single incident of his touching of Edward’s penis in the woods, and that he had also preyed on the Smith children. The defendant had taken advantage of many opportunities when alone with the Smith children to fondle their penises and buttocks. The defendant first touched Joseph, the older Smith child, when Joseph was seven or eight years of age. At that time, Joseph was sitting on the lower bunk of his bed, watching his brother play video games. The defendant came into the room, put his hand in Joseph’s pants and touched his penis for a “few minutes.” When talking to his brother immediately after the incident, probably too ashamed, embarrassed or confused to say more, young Joseph merely commented that “Bob [the defendant] is gay.” Five other similar touching incidents between Joseph and the defendant followed at different times in various rooms of the Smith house — many occurring after the defendant had spent the night at the Smiths’. During two of the incidents, the defendant placed Joseph’s hand on the defendant’s penis.

Joseph’s brother, David, did not escape the defendant’s licentious advances either. Commencing when he was just six years of age, David was touched illicitly on his penis and buttocks five times, 5 On several of those occasions, David was warned by the defendant not to tell anyone about what he had done.

After a jury trial, the defendant was convicted on a total of eleven counts of second degree child molestation. In his timely filed appeal, the defendant advances three challenges to his conviction.

The defendant first challenges the testimony of Mary White, Edward’s mother. 6 Her testimony related her conversation with Edward during which Edward had told her what the defendant had done during their walk in the woods together. The defendant alleges that her testimony was impermissible hearsay. The defendant’s challenges fail for several reasons.

As to the defendant’s first claim of error concerning what he believes to have been impermissible hearsay, we conclude that the defendant’s challenge to that testimony was not properly preserved in the record. Defense counsel’s first objection to the supposed hearsay occurred after the following colloquy:

“Q Did he [Edward], at any time, say anything to you?
“A Not much. He just started talking about the walk in the woods.”

Defense counsel then objected and moved to strike the answer on the basis of hearsay. After a bench conference that was not recorded and is not part of any record, the objection was overruled. A second objection, also made without any specified basis, later was made during Mrs. White’s testimony, after the following colloquy:

“Q All right. When was it that you talked with your son about the walk?

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Cite This Page — Counsel Stack

Bluebook (online)
722 A.2d 1185, 1999 R.I. LEXIS 3, 1999 WL 9711, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-morey-ri-1999.