Supreme Court
No. 2020-288-C.A. (N2/18-125A)
State :
v. :
Richard Gamache. :
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
Justice Robinson, for the Court. The defendant, Richard Gamache, appeals
from a judgment of conviction and commitment following a jury trial in Newport
County Superior Court. On appeal, the defendant asserts that the trial justice erred
in denying his motion for judgment of acquittal on the felony charges that stemmed
from his alleged violations of G.L. 1956 § 11-52-3; his argument is based on the
ground that the “uncontroverted [and] relevant evidence” proves that he had the
authority to make the alterations and deletions in question.1
1 General Laws 1956 § 11-52-3 provides:
“Whoever, intentionally, without authorization, and for fraudulent or other illegal purposes, directly or indirectly, accesses, alters, damages, or destroys any computer, computer system, computer network, computer software, computer program, or data contained in a computer, computer system, computer program, or computer -1- For the reasons set forth in this opinion, we affirm the judgment of the
Superior Court.
I
Facts and Travel
This case stems from defendant’s alleged misuse of his position as detective
commander in the Middletown Police Department for the purpose of assisting one
Tiffany Walaski in attaining a Housing Choice Voucher from the Newport Housing
Authority. The facts relative to defendant’s actions and the eventual charges against
him will be more fully explained infra, when we summarize the trial testimony of
the various witnesses.
On April 20, 2018, defendant was charged by information with five counts of
accessing a computer “for the purpose of damaging, destroying, altering, deleting or
removing any computer program or data contained in it in connection with any
scheme or artifice to defraud, in violation of § 11-52-2(3)” (Counts One through
Five);2 and twelve counts of “intentionally and without authorization directly or
indirectly” accessing, altering, damaging, or destroying “any computer system,
computer network, computer software, computer program or data contained in a
network shall be guilty of a felony and shall be subject to the penalties set forth in § 11-52-5.” 2 Prior to trial, the state dismissed Counts One through Five pursuant to Rule 48(a) of the Superior Court Rules of Criminal Procedure. -2- computer system,” in violation of § 11-52-3 (Counts Six through Seventeen);3 and
two counts of knowingly giving “to an agent, servant, or employee of the State of
Rhode Island, a document * * * which contained a false, erroneous or defective
statement in an important particular,” with the intent “to mislead the State of Rhode
Island,” in violation of G.L. 1956 § 11-18-1 (Counts Eighteen and Nineteen). A
four-day jury trial was held in February of 2020. We relate below the salient aspects
of what transpired at the trial.
A
The Testimony of Detective Michael O’Neill
Michael O’Neill, a Rhode Island State Police detective, testified that, on
October 14, 2017,4 he and Trooper Ted Gibbons were assigned to “DUI patrol” and
that, at approximately 12:30 a.m., a white Lexus “operating erratically” passed their
3 The referenced charges alleged that defendant altered the following: arrest report 08-247-AR on January 27, 2016 (Count Six); arrest report 08-120-AR on January 27, 2016 (Count Seven); arrest report 16-340-AR on May 4, 2016 (Count Eight); incident report 16-4-OF on August 11, 2016 (Count Nine); accident report 16-539-AC on September 20, 2016 (Count Ten); arrest report 11-913-AR on December 21, 2016 (Count Eleven); arrest report 07-1042-AR on December 21, 2016 (Count Twelve); arrest report 11-60-AR on December 21, 2016 (Count Thirteen); arrest report 11-271-AR on December 21, 2016 (Count Fourteen); incident report 15-687-OF on December 21, 2016 (Count Fifteen); investigative report 15-40-IV between December 2, 2015 and October 14, 2017 (Count Sixteen); and incident report 14-842-OF between May 9, 2014 and October 14, 2017 (Count Seventeen). 4 At that time, Detective O’Neill was a trooper. -3- marked cruiser “at a high rate of speed * * *.” After successfully pursuing the
speeding vehicle, they initiated a motor vehicle stop. Detective O’Neill stated that
defendant, who was a passenger in the white Lexus, “repeatedly indicat[ed] that he
was a police officer,” had a “[s]trong odor of alcohol coming from his breath,” and
“appeared heavily intoxicated.” He testified that the driver, Tiffany Walaski, “was
also heavily intoxicated.” Detective O’Neill further testified that Ms. Walaski
“identified the defendant as her boyfriend.”5
Detective O’Neill testified that it was then “determined that both would be
charged with domestic [sic] and Ms. Walaski would also be charged with DUI.”6 He
added that defendant and Ms. Walaski were both arrested at the scene and were
transported to the Rhode Island State Police barracks in Scituate. Detective O’Neill
testified that the Middletown Police Department was contacted and that Major
Ferenc Karoly of that department came to the barracks that night. He added that
defendant was arraigned and was then released from State Police custody.
5 On the first day of trial, the trial justice instructed the jury that defendant had conceded that he and Ms. Walaski “were involved in a romantic relationship at all times relevant to this trial.” 6 These charges were subsequently dismissed. -4- B
The Testimony of Chief Anthony M. Pesare
Anthony M. Pesare, the former chief of police of the Middletown Police
Department, testified that in 2016 defendant held the position of detective
commander in that department. He stated that, after the October 14, 2017 incident,
he ordered an internal investigation “into what had happened in the course of the
arrest;” he added that defendant was notified that the Middletown Police Department
was conducting such an investigation. He explained that the investigation “would
focus solely on [defendant’s] action in regards to department rules and regulations.”7
Chief Pesare testified that, in January of 2018, he became aware that “the
Rhode Island State Police charges that had been pending against the defendant had
been dismissed.” He added that the Middletown Police Department then
“reengage[d] in the administrative investigation that had been formally opened * * *
in October of 2017;” he explained that “it’s common practice to let the criminal case
play out completely before the administrative investigation takes place.” Chief
Pesare stated that he assigned Captain Jason Ryan to conduct the investigation.
Chief Pesare testified that he learned from Captain Ryan that “in the course
of investigating whether or not the rules and regulations had been violated, he and
his investigators had uncovered what appeared to be criminal behavior.”
7 The referenced rules and regulations were admitted as a full exhibit at trial. -5- Specifically, he testified that Captain Ryan “uncovered evidence which appeared to
indicate that [defendant] had used his position to petition the Newport Housing
Authority to give favorable treatment to Ms. Walaski.” It was his testimony that
defendant sent two letters on the Middletown Police Department’s letterhead to the
Newport Housing Authority which falsely claimed that “Ms. Walaski was in dire
danger because she was a criminal informant in a drug investigation.”
Chief Pesare also testified that it was his responsibility “to manage or assign
security rights” within the Middletown Police Department’s IMC records system; 8
he added that he was assisted in that regard by his administrative assistant, Lisa
Sisson. He further testified that, “[d]epending on an officer’s position in the
department, they are allowed access to certain documents and investigations and
reports;” he added that “the higher you go in the police department, the more access
you’re given.” Chief Pesare further stated:
“[A detective commander] has administrative rights, which means he has high access to the reports, he has access to the system, he has, under the responsibilities of the detective commander, the ability to go into any investigation and document things or remove things. He has the authority to do that.”
8 Chief Pesare explained that “[t]he IMC system is a way of recording all the reports, all the incident reports, accident reports, and so investigators can use that as a tool, a police officer can use it as a tool to upload data, register arrest reports, speeding tickets, any interaction with the public.” -6- C
The Testimony of Tammy Nelson
Tammy Nelson, formerly director of housing at the Newport Housing
Authority, testified that, in June of 2016, defendant approached her seeking an
emergency housing voucher for Ms. Walaski on the ground that she “needed to move
immediately” because she was an informant for the Middletown Police Department
and “was in grave danger * * *.” Ms. Nelson further testified that the Housing
Choice Voucher (sometimes called a Section 8 voucher) is “referred to as the golden
ticket * * *.” She stated that, at that time, the waiting list for Housing Choice
Vouchers had been closed for approximately eight years and there were thousands
of people on the waiting list. Ms. Nelson further stated: “Unless there was an
extenuating circumstance, displacement by government action, or if there was an
emergency situation that necessitated an emergency voucher, other than that you
basically were waiting on a waiting list, if you could even get on the waiting list
* * *.”
Ms. Nelson testified that, on June 9, 2016, after she had asked that defendant
submit his request in writing, he sent her a letter, requesting an emergency housing
voucher for Ms. Walaski. Ms. Nelson further testified that, on July 13, 2016, the
request was denied because of Ms. Walaski’s criminal background, which decision
Ms. Walaski appealed. Ms. Nelson added that, on August 22, 2016, defendant sent
-7- an additional letter explaining Ms. Walaski’s continued need for a Housing Choice
Voucher.9 Ms. Nelson testified that, on November 9, 2016, the denial of the voucher
request for Ms. Walaski was overturned; and she indicated that, on January 18, 2017,
Ms. Walaski was issued a Housing Choice Voucher.
D
The Testimony of Detective Adam Tobias
Adam Tobias, a detective with the Middletown Police Department, testified
that, on January 26, 2018, he met with Rhonda Mitchell of the Newport Housing
Authority to discuss Ms. Walaski—specifically her housing status and how she had
obtained such housing. He further testified that, on January 29, 2018, he met with
Ms. Nelson, during which meeting Ms. Nelson explained that “defendant had come
to her and requested a Section 8 housing voucher for Ms. Walaski based on an active
case going on with the Middletown Police which put Ms. Walaski in imminent
danger.” The detective further testified that Ms. Nelson “talked about details of the
case that had been described to her by the defendant and also [talked about] two
letters that the defendant had provided to Newport Housing Authority regarding
that.”
9 The letters of June 9 and August 22, 2016 were admitted as full exhibits at trial. -8- Detective Tobias also testified that Detective Scott Naso “recalled that the
details of the letters and the situation that the defendant had described Ms. Walaski
being part of was an actual investigation that Detective Naso had been involved with,
however, Ms. Walaski was not involved in that investigation.” He further testified
that Det. Naso stated that “Ms. Walaski had been added to that investigative report.”
Detective Tobias testified that an investigative incident report involving Ms.
Walaski was missing from her “in-house record,” which he explained is a “document
that shows someone’s overall contact with the Middletown Police.” Specifically, he
stated that “[t]here was an incident report, an OF report that involved the larceny of
a cell phone from a bar named Brewski’s in Middletown.” He added that the
reporting party was one David Latney and that, when he reviewed Mr. Latney’s in-
house record, he could no longer “find the report involving him reporting that his
cell phone had been stolen.” He stated that he then utilized the “detective case
assignment Excel spreadsheet that is maintained by the detective commander,”
which he stated was not “stored in or connected to the IMC record system” in order
to track down the OF report number. He testified that the detective case assignment
Excel spreadsheet, of which an excerpt was admitted as a full exhibit at trial, listed
the OF report number as 15-687-OF. He further testified that, when he searched for
this OF number in the IMC records system, “[t]he report came back not on file.”
-9- Detective Tobias testified that, on January 30, 2018, he and Captain Ryan met
with Nate McClymonds, the Town of Middletown’s Information Technology
Support Specialist, to inquire as to whether “there was a way to obtain reports that
had been deleted from the IMC system [and whether] there was a way to determine
what reports from the IMC system had been deleted, who they were deleted by and
when they were deleted.” He added that, in the course of the January 30, 2018
meeting, they contacted TriTech Corporation, which he described as “a software
company that provides support for the IMC system;” he said that they contacted that
company in order to “retrieve a complete list of deleted files from the IMC records
system.”
Detective Tobias testified that the next day, January 31, 2018, Captain Ryan
generated a list of deleted files, which list was admitted as a full exhibit at trial. It
was his testimony that, on December 21, 2016, the IMC system had recorded five
separate deletions within the incident report concerning the fact that he had
“investigated Ms. Walaski for the larceny of the cell phone from Brewski’s” (No.
15-687-OF). He stated that the network user ID and the IMC user ID associated
with those five deletions were defendant’s.10
10 Detective Tobias confirmed that the network user identification is what allows an employee “initial access into the broader Middletown Police computer system,” but that “one has to enter one’s personal password alongside one’s IMC user ID in order to first log into the IMC system * * *.” - 10 - Detective Tobias further testified that, as a detective, he could change
mistakes made in reports and that he also had the “access and ability to” delete
information “that really didn’t belong there * * *.” He added that he had the access
and “the authority for a legitimate reason * * *.” Detective Tobias testified that the
right of access of defendant, as the detective commander, “would be a little bit
higher” than his. He stated that defendant had the right to modify reports as well as
“the right to delete certain information in the reports * * *.”
E
The Testimony of Detective Scott Naso
Scott Naso, a detective in the Middletown Police Department, testified that,
in January of 2018, Captain Ryan asked him to assist in an internal investigation
regarding defendant. He further testified that, on January 26, 2018, Captain Ryan
asked him if Ms. Walaski was an informant for the department. He stated that, on
that same day, he checked Ms. Walaski’s name in the department’s IMC
investigative module and discovered that Ms. Walaski’s name had been inserted into
an investigation that he had conducted during the 2015-2016 calendar year (No.
15-40-IV). Detective Naso testified, however, that Ms. Walaski was not the
confidential informant who was used in that investigation, nor was she ever an
informant for the Middletown Police Department.
- 11 - Detective Naso further testified that, on January 28, 2018, he used the IMC
records system to generate an up-to-date copy of Ms. Walaski’s 2018 in-house
record, which he compared to a copy of Ms. Walaski’s in-house record that he had
printed on January 4, 2015. He stated that the 2018 in-house record had “four arrest
reports that had been deleted from it;” he added that “there were several reports
under the other activity section of the in-house record that had been removed.”
It was Det. Naso’s further testimony that arrest reports 11-913-AR,
08-247-AR, 08-120-AR, and 07-1042-AR had all been deleted from Ms. Walaski’s
2018 in-house record and that incident report 14-842-OF “had been altered” and
“was missing all of the information in the actual report.” Detective Naso also
testified that he then searched Ms. Walaski’s name on the Rhode Island Judiciary
public portal and learned that “all of those arrests listed were listed in the public
portal’s website.” He further testified, however, that the arrest reports had been
“completely removed from digital existence” within the IMC records system. In
addition, Det. Naso testified that, on August 16, 2019, he conducted a search of
defendant’s locker at the Middletown Police Department, during which he found “an
altered copy of [his] investigative report 15-40-IV contained in the back of the
defendant’s locker behind his duty bag.”
- 12 - F
The Testimony of Officer David Guerriero
Officer David Guerriero of the Middletown Police Department testified that,
on June 21, 2018, he met with Captain Ryan and Det. Tobias concerning an incident
report that he had authored and which is identified as “report 14-842-OF.” The
report that he submitted concerned some information relative to Ms. Walaski which
he had garnered from a person to whom he had given a ride from Newport to that
person’s place of employment in Middletown. Officer Guerriero testified that Ms.
Walaski’s name was missing from the report as was his “narrative setting forth [his]
observations” relative to what had been disclosed to him about Ms. Walaski.
G
The Testimony of Lisa Marie Sisson
Lisa Marie Sisson, the administrative assistant to the chief of police in
Middletown, testified that the chief “has the authority and decides who gets what
access based on their rank.” She added that she does “the actual entry into the system
to give them the rights.” Ms. Sisson explained that there are not “individual
assignments of security rights to individual members of the Middletown Police
Department,” but rather “it all depends on their rank and their job responsibilities.”
She testified that defendant had “the ability to alter or delete electronic records
within the IMC system * * *.” She further testified that defendant also had “the
- 13 - security right to actually alter or delete a file within the system, that grant of authority
Ms. Sisson testified that she did not know whether there were restrictions on
defendant “making entries * * * and deletions in the IMC system * * *.” She added
that the restrictions “would be part of the rules and regulations of the police
department.” Ms. Sisson acknowledged that defendant “had the right and
permission to use the computer system, the IMC system” and that he could use the
computer system “to add and delete information * * *.”
H
The Testimony of Captain Jason Ryan
Captain Jason Ryan, who was responsible for the administrative services in
the detective division of the Middletown Police Department, testified that, on
October 16, 2017, two days after defendant’s October 14 arrest by the State Police
in the white Lexus incident, Chief Pesare ordered him to “open up an internal
investigation into the happenings surrounding the arrest * * *.” He further testified
that, in January of 2018, after the charge against defendant relative to the white
Lexus incident had been disposed of, he began his internal investigation. He stated
that it was through Det. Naso that he “first became aware of alterations and deletions
to reports within the IMC system;” he said that Det. Naso had “found that the
investigative report [15-40-IV] that he had done in 2015 had been altered * * *.”
- 14 - Captain Ryan also referred to “Detective Tobias discovering that his report
[15-687-OF] that he had done had been deleted.”
Captain Ryan testified that, on January 31, 2018, he and Det. Tobias “ran an
audit on the incidents and arrests * * * looking for which files had been deleted.”
He testified that the said audit generated a four-page report,11 which listed deletions
relative to arrest reports, incident reports, and accident reports. Captain Ryan
testified that all of the deletions in question were made under the aegis of defendant’s
user ID applicable to the IMC records system.
The following are examples of the numerous deletions from the official
reports that the audit report disclosed:12
January 27, 2016: deletions were made in arrest reports identified as 08-247-AR and 08-120-AR.
May 4, 2016: two deletions were made in arrest report identified as 16-340-AR.
December 21, 2016: deletions were made in arrest report identified as 11-913-AR.
Finally, Captain Ryan testified that the audit reflected a deletion made to
accident report 16-539-AC on September 20, 2016. He further testified that,
although the report itself had been erased from the IMC records system, he was able
11 The referenced audit report was admitted as a full exhibit at trial. 12 Virtually all of the official reports alluded to in the text related to Ms. Walaski. - 15 - to use the dispatch log to determine the details of the accident in question. It was
his testimony that the dispatch log, which was admitted as a full exhibit, listed one
Adam Gamache13 as the operator of the vehicle involved in the accident and
defendant as the owner of the vehicle.
1. The Objection to the Testimony about the Rules and Regulations
During Captain Ryan’s direct testimony, the prosecutor requested a sidebar
conference, during which he explained that he was “about to make an inquiry * * *
into some of the Middletown Department rules and regulations that are already in as
a full exhibit through Chief Pesare * * *.” The prosecutor added that he had
requested the sidebar in the wake of a chambers conference that had taken place
earlier that day, at which the trial justice instructed him to approach the bench before
inquiring about the Middletown Police Department’s rules and regulations. During
the sidebar conference, the trial justice noted that “there’s an issue” because “there
is authority on both sides,” which he explained he had come to realize “after hearing
about it for the first time” that day.
The trial justice proceeded to ask defense counsel: “What do you have to say
about that?” Defense counsel answered as follows:
“The defendant is charged with 12 counts of 11-52-3, which in essence reads whoever intentionally and without authorization, directly or indirectly, etcetera. The
13 Captain Ryan testified that it was his belief that “Adam Gamache is one of the defendant’s sons.” - 16 - defendant’s position is that this is an anti-hacking statute. That is to say that the purpose of this statute is to punish a person who either hacks into the IMC from the outside world or, by way of example, a patrolman who only can initially enter some information as far as his narrative is concerned, exceeds his authority, hacks into the computer and makes changes. If the person, at least in the defendant’s position, has the authority to enter additional information or delete information, he is not a hacker. * * * So as far as the defendant is concerned, the legislature never intended that this statute be used for a breach of some kind of employment condition that the defendant was under, but merely he was either a hacker or he wasn’t, and I think the evidence is clear he was not.”
The prosecutor responded that the state had “proceeded under 11-52-3 under
the premise that Detective Commander Gamache acted without authority based on
the definition in that statute, the part of the ‘without authority’ definition, which
states use of a computer in a manner exceeding his right or permission * * *.” He
added that “in terms of what the legislature was trying to do interpreting that, it’s
broad language and it’s common sense.” The prosecutor continued, stating: “If
someone has the authority, like Mr. Gamache did, to alter and delete, that authority
doesn’t include wiping out police computer records. Using a computer in a manner
exceeding his rights speaks directly to that.”
The prosecutor emphasized that his position was “that this evidence of
violations of policy and their training on the proper uses is properly admitted to show
that he used a computer in a manner exceeding his right or authority.” Defense
counsel responded by stating that “[i]f the [c]ourt is to follow that theory, then - 17 - defendants would be subject to this particular statute, 11-52-3, for lack of authority
for any alleged violation of a particular policy” and the state could “pick and choose
as to who they want to charge with a violation of the rules and procedure when, in
fact, the person with authority makes some type of deletion.”
The trial justice reserved decision, and the prosecutor continued with his
direct examination of Captain Ryan. After a recess, the trial resumed and the
following exchange occurred outside the presence of the jury:
“THE COURT: The State has intended to examine Captain Ryan regarding the application of the rules and regulations the Middletown Police Department entered as Exhibit 3 as it relates to whether or not the defendant had authorization to do what he is alleged to have done regarding manipulation of data on the computer system of the police department. The defendant has raised the issue that the rules and regulations do not apply and are not evidence that he utilized the computer for an illegal or improper purpose. Did I sufficiently state that?
“[DEFENSE COUNSEL]: Without authority, your Honor.
“THE COURT: Without authority. It’s the authorization is the issue which is contested at this point and the application of the rules and regulations to the authority is the issue that’s been presented. The [c]ourt is bound to read the statute based on the plain language of the statute * * *. [T]he definition section * * * says a person is without authority when, A, he or she has no right or permission of the owner to use the computer, and that’s not the case here. The defendant definitely had the permission to use the computer, but it says ‘or’, he or she uses a computer in a manner exceeding his or her right or permission. The plain language of that statute indicates that a person can lawfully be using a computer, however, - 18 - if he exceeds that authority, then he violates the terms and conditions of the statute. I think that’s clear, unambiguous language associated with the criminal statute that the defendant is being charged with. I also think that the rules and regulations of the police department relate directly to his authorization. To say that the defendant’s got carte blanche authorization to manipulate the data in the computer without any reference to what the rules and regulations say is allowed and what is not permitted would be -- it just doesn’t make sense to the [c]ourt. I think that the rules and regulations as to his authority are directly related to his authority, and so I’m going to allow the subject matter to be addressed by the State, of course, subject to any other objections that may be posed; but the basic premise is that the [c]ourt believes that the rules and regulations are directly related to his authority to do what he did when he was using the computer, and the statute says that.”
At the conclusion of the trial justice’s ruling, defense counsel stated that he
“objects to the [c]ourt’s decision as far as allowing the rules and regulations to
constitute whether he did or did not have authority.” The trial justice stated: “That
was the whole purpose of the sidebar, so it’s preserved.” The trial justice also
confirmed that defendant “will have an ongoing objection based on that.” At that
point, the prosecutor continued with his direct examination of Captain Ryan.
2. The Additional Testimony of Captain Ryan
Captain Ryan testified that the job description of a Middletown Police
Department detective, which was admitted as a full exhibit, includes “[p]revent[ing]
the destruction or removal of any records, fingerprint cards or photographs from files
- 19 - except upon the order of the chief of police.”14 Captain Ryan further testified that
he is familiar with the Middletown Police Department’s rules and regulations. It
was his testimony that the rules and regulations state under the “Prohibited Conduct”
subsection that “[a]n officer or employee shall not make or submit any false or
inaccurate reports or knowingly or cause to be entered into any departmental books,
records or reports, any inaccurate, false or improper information.” He further
testified that the rules and regulations state that “all members and employees who
are issued this manual are responsible for its maintenance and knowledge of its
contents * * *.”
Captain Ryan also testified that, after employees receive the rules and
regulations, they are required to sign a statement to the effect that they have read
them; and he further testified that they “can be charged with a violation of those rules
within the Middletown Police Department.” He further explained that at “the Rhode
Island Municipal Police Academy, we take a class on report writing,” during which
“it’s emphasized that the reports are written unbiasedly, truthfully and accurately
and they are going to be memorialized as to the true events that took place during
that time.”
14 The defendant objected on relevancy grounds to the job description being admitted. - 20 - I
The Defendant’s Motion for Judgment of Acquittal
At the conclusion of Captain Ryan’s testimony, the prosecution rested.
Thereafter, defense counsel moved, pursuant to Rule 29 of the Superior Court Rules
of Criminal Procedure,15 for the entry of a judgment of acquittal. Defense counsel
explained that he “is aware that the [c]ourt allowed certain evidence to be introduced
concerning the rules and regulations” and that he “is also aware that the [c]ourt is
going to instruct the jury that they may consider violations of the rules and
regulations as an act without authority of the defendant while he’s on the IMC
computer system.” He further stated:
“In order for the defendant to preserve his objection to the evidence, he must indicate that his position is that the allowance of rules and regulations to suggest a violation of his authority with regard to the IMC computer system is objectionable. I understand the [c]ourt allowed it, but I think, in order to preserve the record for consistency, if for
15 Rule 29 of the Superior Court Rules of Criminal Procedure reads in pertinent part as follows:
“The court on motion for a judgment of acquittal of a defendant or on the court’s own motion shall order the entry of judgment of acquittal of one (1) 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. If a defendant’s motion for judgment of acquittal at the close of the evidence offered by the State is not granted, the defendant may offer evidence without having reserved the right.” - 21 - some reason the [c]ourt were in error, then the defendant, based on the evidence but for the rules and regulations, I believe his motion for judgment of acquittal should be granted. And I raise it for that particular purpose. I realize, in a light most favorable to the State with what came in, he’s dead in the water, but I wanted to preserve his particular right by suggesting that the defendant still objects to the [c]ourt’s ruling about the rules and regulations and had the objection been sustained, probably 12 counts would have been dismissed, but I realize what the [c]ourt’s obligation is, but I needed to put that on the record.”
Thereafter, the following exchange occurred:
“THE COURT: Okay. Other than that, is there any other basis for the --
“[DEFENSE COUNSEL]: No.
“THE COURT: -- Rule 29 motion?
“[DEFENSE COUNSEL]: No. And with regard to the false reports, that’s a given all day everyday. That’s not the subject matter of a Rule 29.
“THE COURT: Okay. So your Rule 29 motion is, in fact, if the [c]ourt were to have erred on its decision to allow the rules and regulations to become evidence of his authority, then, in fact, the Rule 29 motion excluding that evidence should be granted.
“[DEFENSE COUNSEL]: That’s the argument.”
After a recess, the trial justice made the following statement outside the
presence of the jury:
“Defendant made a motion pursuant to Rule 29 based on a perceived error by the [c]ourt in that the [c]ourt allowed - 22 - the Middletown Police Department policies and procedures to be introduced into evidence as it relates to defendant’s lack of authority to do the alleged acts, that was the only basis by which the motion was based, and the [c]ourt denies the motion on that basis as it believes the [c]ourt’s decision was the right one and it declines to address the issue in the hypothetical.”
After having so ruled, the trial justice stated that the testimony of Captain
Ryan “established that destruction of or modification of records is against
Middletown Police Department policies and procedures, and, thus, outside the
defendant’s authority.”
Thereafter, defendant rested and then renewed his motion for judgment of
acquittal, which the trial justice again denied. After both parties presented their
closing arguments and the trial justice delivered the jury instructions, the jury retired
to deliberate. At the conclusion of its deliberations, the jury found defendant not
guilty as to one count of violating § 11-52-3,16 and guilty on the remaining thirteen
counts. On February 27, 2020, defendant filed a motion for a new trial, which was
16 The jury found defendant not guilty as to Count Ten, which alleged that on September 20, 2016, defendant altered accident report 16-539-AC. (That accident report concerned an accident in which defendant’s son had been involved.) - 23 - denied on June 17, 2020.17 On July 15, 2020, defendant was sentenced.18 He
thereafter filed a timely notice of appeal to this Court.
II
Issue on Appeal
On appeal, defendant asserts that the trial justice erred in denying his motion
for judgment of acquittal on the basis of his contention that “[a]ny rules governing
the user’s behavior within the system are irrelevant and cannot contribute to the
sufficiency of the state’s case in a Rule 29 motion * * *.”
III
Standard of Review
Rule 29 “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); see also State v. Gibson, 291 A.3d 525, 540 (R.I. 2023).
Moreover, “[i]n reviewing the denial of a motion for a judgment of acquittal, a
17 The denial of the motion for a new trial is not challenged in the briefs submitted to this Court. 18 The defendant was sentenced to five years, with eighteen months to serve, with probation for each of the eleven violations of § 11-52-3, with the sentences to be served concurrently. He was also fined $200 for each of the violations. Additionally, the trial justice sentenced defendant to one year, nine months to serve, with probation for the two violations of § 11-18-1, to be served consecutively with each other, but concurrently with the other violations. - 24 - defendant must overcome a decidedly high bar in that 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, * * * giving full credibility to the state’s witnesses, and
drawing therefrom all reasonable inferences consistent with guilt.” State v. Benoit,
138 A.3d 805, 810 (R.I. 2016) (internal quotation marks and brackets omitted).
Significantly, “[t]he court is required to evaluate only that evidence that the
prosecution claims is capable of supporting proof of guilt beyond a reasonable
doubt.” State v. Ros, 973 A.2d 1148, 1159 (R.I. 2009). Accordingly, “[t]he trial
justice’s denial of the motion should be upheld when 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 * * *.” Maria, 132 A.3d at 698 (internal
quotation marks omitted).
IV
Analysis
The defendant argues that Ҥ 11-52-3 only criminalizes a user who accesses a
certain computer system (or an area of the system) without permission, not a person
who behaves inappropriately once they are logged into a system they have
permission to enter.” He further contends that: “Had the trial justice properly
considered the uncontroverted, relevant evidence before him, he would have granted
the motion for a judgment of acquittal.”
- 25 - For its part, the state contends that defendant is barred by our raise or waive
rule from pressing this argument on appeal because it “is not the same argument that
was made by the defendant to the Superior Court * * *.” In addition, the state
contends that “the court applied the correct legal standard and correctly observed
that a motion for judgment of acquittal functions to assess the sufficiency of the
evidence presented, and is an inappropriate procedural vehicle to challenge the
admissibility of evidence.” Finally, the state contends that, even if this Court
determines that defendant’s argument is not waived, Captain Ryan’s testimony as
well as other evidence presented “showed that, although the defendant had the
security clearance to access data in the IMC system, he did not have the right or
permission to alter or delete accurate information or to falsify correct police reports
for any reason,” especially “not for the fraudulent purpose of securing a Section 8
emergency housing voucher for [Ms.] Walaski * * *.”
At the outset, we first address the state’s contention that defendant waived his
argument on appeal.
To begin, we emphasize that this Court’s “raise-or-waive rule precludes us
from considering at the appellate level issues not properly presented before the trial
court.” State v. Merida, 960 A.2d 228, 236 (R.I. 2008) (internal quotation marks
omitted). And it is important to emphasize that “the raise or waive rule is not some
sort of artificial or arbitrary Kafkaesque hurdle,” but rather it is “an important
- 26 - guarantor of fairness and efficiency in the judicial process.” DeMarco v. Travelers
Insurance Company, 26 A.3d 585, 628 n.55 (R.I. 2011); see also State v. Figuereo,
31 A.3d 1283, 1289 n.6 (R.I. 2011). Accordingly, we “will not review issues that
were not presented to the trial court in such a posture as to alert the trial justice to
the question being raised.” Figuereo, 31 A.3d at 1289 (internal quotation marks
omitted). Likewise, “a litigant cannot raise an objection or advance a new theory on
appeal if it was not raised before the trial court.” State v. Bido, 941 A.2d 822, 829
(R.I. 2008).
On appeal, defendant challenges the trial justice’s denial of his Rule 29 motion
for judgment of acquittal on the ground that the evidence was insufficient to support
a conviction under § 11-52-3 because, in his view, the statute does not criminalize
the conduct of “a person who behaves inappropriately once they are logged into a
system they have permission to enter.” However, this is not the same argument as
defendant made below.
In arguing before the trial justice for the entry of a judgment of acquittal
pursuant to Rule 29, defendant stated that he “is aware that the [c]ourt allowed
certain evidence to be introduced concerning the rules and regulations.” Further, in
the course of articulating his Rule 29 motion, he stated:
“In order for the defendant to preserve his objection to the evidence, he must indicate that his position is that the allowance of rules and regulations to suggest a violation of his authority with regard to the IMC computer system - 27 - is objectionable. I understand the [c]ourt allowed it, but I think, in order to preserve the record for consistency, if for some reason the [c]ourt were in error, then the defendant, based on the evidence but for the rules and regulations, I believe his motion for judgment of acquittal should be granted.” (Emphasis added.)
Importantly, prior to ruling on defendant’s Rule 29 motion, the trial justice
explicitly asked defense counsel: “So your Rule 29 motion is [that] if the [c]ourt
were to have erred on its decision to allow the rules and regulations to become
evidence of his authority, then, in fact, the Rule 29 motion excluding that evidence
should be granted[?]” (Emphasis added.) Notably, defendant confirmed: “That’s the
argument.”
Thereafter, the trial justice stated:
“Defendant made a motion pursuant to Rule 29 based on a perceived error by the [c]ourt in that the [c]ourt allowed the Middletown Police Department policies and procedures to be introduced into evidence as it relates to defendant’s lack of authority to do the alleged acts, that was the only basis by which the motion was based, and the [c]ourt denies the motion on that basis as it believes the [c]ourt’s decision was the right one and it declines to address the issue in the hypothetical.” (Emphasis added.)
The defendant’s argument on appeal is much more expansive than, and quite
different from, the argument he made before the trial justice. In his argument made
in Superior Court, he tailored his argument in support of his Rule 29 motion to focus
exclusively on the trial justice’s alleged error in allowing Captain Ryan to testify as
to the Middletown Police Department’s rules and regulations. By contrast, on - 28 - appeal, he fashions his argument in terms of statutory analysis and asserts that “[h]ad
the trial justice properly considered the uncontroverted, relevant evidence before
him, he would have granted the motion for judgment of acquittal.”
It is important to note that the trial justice was not alerted to, nor did he
address, defendant’s argument as it has been articulated before us on appeal—
namely, that the entirety of the evidence presented was insufficient to establish that
defendant deleted and altered the IMC reports “without authorization * * *.” See
State v. Grant, 840 A.2d 541, 546-47 (R.I. 2004) (“[A]ssignments of error must be
alleged with sufficient particularity so it will call the trial justice’s attention to the
basis of the [argument].”). As such, defendant’s argument at the Rule 29 juncture
in the trial court was far too narrow in focus to permit us to rule that it was essentially
the same argument as he is now presenting to this Court.
Accordingly, we deem the defendant’s argument on appeal to be waived. For
that reason, we need not and shall not undertake an analysis in this case of the
defendant’s appellate Rule 29 argument.
V
Conclusion
For the reasons set forth in this opinion, we affirm the judgment of the
Superior Court. The record may be returned to that tribunal.
- 29 - 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. Richard Gamache.
No. 2020-288-C.A. Case Number (N2/18-125A)
Date Opinion Filed July 10, 2023
Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Justices Long, JJ.
Written By Associate Justice William P. Robinson III
Source of Appeal Newport County Superior Court
Judicial Officer from Lower Court Associate Justice Brian Van Couyghen
For State:
Mariana Ormonde Department of Attorney General Attorney(s) on Appeal For Defendant:
Angela M. Yingling Office of the Public Defender
SU-CMS-02A (revised November 2022)