Supreme Court
No. 2014-278-C.A.
(P2/09-1102A)
State :
v. :
Michael Giard. :
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 222-3258 of any typographical or other
formal errors in order that corrections may be made before the
opinion is published.
Supreme Court
No. 2014-278-C.A.
(P2/09-1102A)
State :
v. :
Michael Giard. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Justice Robinson, for the Court. The defendant, Michael Giard, appeals to this Court
from an adjudication of a violation of a deferred sentence. On appeal, the defendant contends
that “the hearing justice acted arbitrarily and capriciously” in determining: (1) “that Mr. Giard
touched [Jessica1 ] inappropriately;” and (2) “that Mr. Giard assaulted [Jessica] in reasonable
proximity to April of 2010” because, in the defendant’s view, neither determination was
supported by the evidence in the record.
This case came before the Supreme Court for oral argument on December 7, 2016,
pursuant to an order directing the parties to show cause why the issues raised in this appeal
should not be summarily decided. After a close review of the record and careful consideration of
the parties’ arguments (both written and oral), we are satisfied that cause has not been shown and
that this appeal may be decided at this time. For the reasons set forth below, we affirm the
judgment of the Superior Court.
1
We have employed pseudonyms in referring to the complaining witness (Jessica), her
brother (Jacob), her mother (Charlene), her father (Joshua), her aunt (Lucy) (who is defendant’s
wife), and her cousin (Christine) (who is defendant’s daughter).
-1-
I
Facts and Travel
On November 5, 2009, defendant pled nolo contendere to one count of felony assault2
and received a deferred sentence3 of five years with respect to that count. Thereafter, in April of
2010, Jessica, who is defendant’s niece, told her mother and her aunt that defendant had touched
her inappropriately. On May 7, 2012, defendant was presented with a notice of violation
pursuant to Rule 32(f) of the Superior Court Rules of Criminal Procedure based on an alleged act
of second-degree child molestation of Jessica.
In June of 2014, by agreement of the parties, a jury trial on the second-degree child
molestation charge and a deferred sentence violation hearing were held simultaneously in
2
In the felony assault case that is referenced in the text, defendant was accused of sexually
assaulting a fifteen-year-old girl and allegedly offering her money thereafter in exchange for her
silence.
3
General Laws 1956 § 12-19-19, entitled “Sentencing on plea of guilty or nolo
contendere—Deferment of sentence,” provides in pertinent part:
“(b) It shall be an express condition of any deferment of
sentence * * * that the person agreeing to said deferment of
sentence shall at all times during the period of deferment keep
the peace and be of good behavior. A violation of this express
condition or any other condition set forth by either the court or
the written deferral agreement shall violate the terms and
conditions of the deferment of sentence and the court may
impose sentence.
“(c) If a person, after the completion of the five (5) year
deferment period is determined by the court to have complied
with all of the terms and conditions of the written deferral
agreement, then the person shall be exonerated of the charges
for which sentence was deferred * * * .”
We note that § 12-19-19 was amended in 2016. However, we have focused on the version of the
statute in effect at the time the instant case was heard in Superior Court. See P.L. 2016, ch. 204,
§ 2.
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Superior Court. We summarize below the salient aspects of what transpired at that trial, noting
from the outset that there are widely differing accounts as to the chronology of events.4
A
Jessica’s Testimony
The complaining witness, Jessica, testified first at trial. She stated that she was born on
January 11, 2002, making her eight years old at the time when defendant allegedly molested her.
She testified on cross-examination that, in 2009, her aunt Lucy (who is defendant’s wife) had
come to where she was then living in order to bring both her and her brother Jacob to the home
that Lucy and defendant shared in Woonsocket. Jessica added that her parents, Charlene and
Joshua, joined her and Jacob at that Woonsocket home some time later.
Jessica testified that the garage of defendant’s Woonsocket home had been converted into
a computer room; she stated that defendant would from time to time call her into the computer
room and “tell [her] to sit on his lap, and [she] would get distracted watching the [video] game.”
With respect to the molestation, Jessica testified as follows:
“[JESSICA]: Um, I would feel movement down in my private area.
“[PROSECUTOR]: When you say private area, what are you
talking about, [Jessica]?
“[JESSICA]: The one below where -- below your hips.
“[PROSECUTOR]: Okay. And, in that private area, I know it’s
uncomfortable. What do you use that private area to do?
“[JESSICA]: To urinate.
“[PROSECUTOR]: Okay. And that would be your vagina?
“[JESSICA]: Yes.
“[PROSECUTOR]: Okay. Now, you would feel movement, and
when you said you would feel movement, where would the
defendant’s hands be?
“[JESSICA]: Near my private area, one of them.
4
The chronology of events is of great importance in this case in view of the fact that
defendant’s five-year deferred sentence was imposed on November 5, 2009. It goes without
saying that said deferred sentence could not have been violated if defendant’s alleged wrongful
conduct occurred prior to that date.
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“[PROSECUTOR]: One of them. So one of his hands would be on
your vagina; is that right?
“[JESSICA]: Yes.”
Jessica further testified that the touching occurred over her nightgown and that, after defendant
had engaged in the sexual touching, he would give her one dollar, usually in quarters. When
defense counsel asked why Jessica did not do anything, she replied: “I was afraid I would get
yelled at [by defendant]” because of “his bad temper;” and, she indicated that, at that time, “[she]
didn’t know if it was wrong or right.” She indicated that defendant had touched her on four
previous occasions, the last incident having occurred in April of 2010.5
Jessica then testified that she told her cousin (Christine), who is defendant’s daughter,
about the alleged molestation approximately one week after the April 2010 incident; she noted
that Christine ultimately “convinced [her] to tell [her] mom” about that incident. Jessica stated,
“At first I thought maybe I shouldn’t [tell my mom] because if she got sick” or “stress[ed],” but
“then I started worrying and my cousin helped me through it.” It was Jessica’s testimony that
thereafter, at the end of April of 2010, she told her mother and her aunt about the molestation, at
which time the two women were preparing to leave for a “[g]irls’ night out.” Jessica stated that
her disclosure to her mother and her aunt was prompted by the fact that she did not wish to
remain alone with defendant at his home while her mother and aunt were away; Jessica added
that she was “sick and tired of it.” Although there was some discrepancy in the evidence as to
just when Jessica and her family moved out of defendant’s Woonsocket home, Jessica testified
that she remained in Rhode Island until September of 2010, before permanently moving to
Minnesota.
5
Although Jessica testified that defendant had molested her on four previous occasions, for
the purposes of the present appeal we are concerned solely with the fifth and final incident that
allegedly occurred in April of 2010 because the other four were alleged to have occurred before
defendant’s deferred sentence.
-4-
B
Charlene’s Testimony
Jessica’s mother, Charlene, testified next at trial. She stated that, at some point later than
April of 2010, she and her sister (Lucy) had been planning to go to New Hampshire to visit their
mother,6 at which time Jessica asked the women not to be left alone with defendant at the house
in Woonsocket. On direct examination, Charlene testified as follows:
“[Jessica] was scared. She was crying. She said, ‘I don’t want you
to go. I don’t want you to go,’ and I asked her why, and she said, ‘I
don’t want to be alone with [defendant],’ and then I asked her
more about it, and then she had told me what he had done with her.
“* * *
“* * * And that is when [Jessica] told me he -- she -- she told me
he touched her private part.
“* * *
“She said [defendant] had paid her money to change her dress and
also that he had brought her to a room off the garage that is a
computer room and made her sit there.”
Charlene stated that she was “upset” and “in shock” by Jessica’s statements. She testified that,
shortly thereafter, she told Lucy about Jessica’s disclosure; and, ultimately, she and Lucy
6
Charlene’s testimony with respect to which family member she and Lucy were visiting in
New Hampshire and the date of her grandmother’s death were contradicted several times. On
direct examination, Charlene testified that, at some point after April of 2010, she and Lucy
visited their mother and, “later,” their grandmother in New Hampshire; however, she denied that
they had visited her grandmother on the day that Jessica revealed the molestation. Although
Charlene stated on several occasions that her grandmother had been alive at the time of Jessica’s
disclosure, it was then her testimony that her grandmother had died on September 1, 2009.
When confronted with this discrepancy in her testimony, Charlene indicated that her
grandmother’s death may have been “around 2010.”
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decided to take Jessica with them to New Hampshire.7 She testified that, from that day forward,
she never left Jessica alone with defendant. When asked if Charlene ever called the police in
Rhode Island about the alleged molestation, she replied: “[M]y main focus was to try to move
[out of Rhode Island] * * * , [but] there was problems with money * * *.” It was Charlene’s
testimony that, when she finally moved to Minnesota at a later date, she accompanied Jessica to
visit a doctor in that state, who advised them to contact the police.
C
Lucy’s Testimony
Lucy, defendant’s wife, was the last witness to testify at trial. She testified that, in
February of 2009, Jessica and her family began residing at defendant’s home in Woonsocket; she
said that they did not move out of that home until October of 2010. According to Lucy, Jessica
actually disclosed the alleged molestation to her in August of 2009:8
“[LUCY]: It was in -- at the end of August, probably a couple of
days, a couple of days at the end of August towards the beginning
of September.
“[DEFENSE COUNSEL]: How do you remember it was -- sorry,
what year was it?
“[LUCY]: 2009
“[DEFENSE COUNSEL]: How do you remember that it was
2009, end of August?
“[LUCY]: It was a memorable time because my grandmother was
in a nursing home dying, and we -- I received a phone call that my
sister and I needed to go to the nursing home and say our final
goodbyes to her.
7
Charlene noted that Lucy “didn’t believe” Jessica’s accusations against defendant,
“hurt[ing] [Charlene’s] feelings;” for that reason, Charlene and her family—including Joshua,
Jacob, and Jessica—all moved to Minnesota at a later date.
8
If Lucy’s testimony as to when Jessica’s disclosure took place were found to be credible,
then there could have been no violation by defendant of the conditions relative to the deferred
sentence.
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“[DEFENSE COUNSEL]: And when did your grandmother pass
away?
“[LUCY]: September 1, 2009.”
Lucy further testified that Jessica and her family had remained in the Woonsocket home
which Lucy shared with defendant for approximately fourteen months after Jessica’s disclosure.
She noted that, during that period of time, Jessica was not allowed to be in the same room as
defendant so that there would not be incidents that Jessica might report.
It was Lucy’s testimony that, in February of 2011, she received a phone call from the
Rhode Island Department of Children, Youth, and Families (DCYF) concerning Jessica’s
allegations about defendant’s conduct; as a result of that phone call, she and defendant decided to
live separately to ensure that DCYF would not take away their children.
D
The Trial and Violation Hearing
On June 25, 2014, the jury acquitted defendant of second-degree child molestation. On
June 30, 2014, a hearing was held with respect to defendant’s alleged violation of the conditions
of the deferred sentence that had been imposed on November 5, 2009. The hearing justice
preliminarily noted that he was not collaterally estopped from finding defendant to have been in
violation of his deferred sentence, even though the jury had acquitted him. Thereafter, he found
Jessica’s testimony to be credible, commenting that she was “polite,” “[a]rticulate,” “[m]ature,”
and had a “[g]ood memory.” Although the hearing justice acknowledged that there was “some
confusion” as to the “chronology of events related to the incident itself and how much time
transpired before [Jessica’s] family moved out of [defendant’s] home,” he ruled that such
confusion did not undermine “[Jessica’s] recollection of the incident.” In his bench decision, he
expressly stated as follows:
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“This [c]ourt accepts [Jessica’s] testimony and finds that the
defendant at a time in reasonable proximity to April of 2010 called
[her] to his computer room, sat her on his lap and over her clothing
moved his hand over her vagina.”
After hearing closing arguments from the parties, the hearing justice reviewed the
testimony and evidence presented at trial and found that defendant had indeed violated the
conditions of his deferred sentence. He specifically stated:
“This [c]ourt is reasonably satisfied that this defendant
by this sexual contact with [Jessica] did not keep the peace or
be of good behavior as required by his probationary status. He
is declared to be a violator.”
Consequently, the hearing justice imposed on defendant a twenty-year sentence with five years
to serve. The defendant then timely filed a notice of appeal.
II
Standard of Review
At the outset, we note that the standard for finding a violation of probation is the same as
that relative to a violation of a deferred sentence. See State v. Plante, 109 R.I. 371, 377, 285
A.2d 395, 398 (1972). In Plante, this Court expressly stated as follows:
“We perceive no logical reason to support such a
distinction. In both cases the guilt of the convicted accused has
been established, but, as an act of grace, one is given a sentence,
the execution of which is suspended, while in the case of the other,
the imposition of sentence is formally deferred. Both * * * are
placed on probation and retention of their liberty depends on good
behavior during the period of probation.” Id. at 377-78, 285 A.2d
at 398.
The only issue for the hearing justice to consider at a deferred sentence or probation violation
hearing is whether or not a defendant “has breached a condition of his or her probation by failing
to keep the peace or remain on good behavior.” State v. Barrientos, 88 A.3d 1130, 1133 (R.I.
2014) (internal quotation marks omitted). Additionally, at a deferred sentence or probation
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violation proceeding, “[t]he burden of proof on the state is much lower than that which exists in a
criminal trial—the state need only show that reasonably satisfactory evidence supports a finding
that the defendant has violated his or her probation.” State v. Tetreault, 973 A.2d 489, 491-92
(R.I. 2009) (internal quotation marks omitted).9
In determining whether or not a defendant has committed a violation of his or her
deferred sentence or probation, “the hearing justice is charged with weighing the evidence and
assessing the credibility of the witnesses.” State v. Horton, 971 A.2d 606, 610 (R.I. 2009)
(internal quotation marks omitted); see State v. Pena, 791 A.2d 484, 485 (R.I. 2002) (mem.); see
also State v. English, 21 A.3d 403, 407 (R.I. 2011). In doing so, the hearing justice may “draw
reasonable inferences from the evidence presented to determine whether the defendant violated
the terms of his probation.” State v. McLaughlin, 935 A.2d 938, 942 (R.I. 2007). We “will not
second-guess supportable credibility assessments of a hearing justice in a probation-revocation
hearing.” State v. Raso, 80 A.3d 33, 42 (R.I. 2013) (internal quotation marks omitted); State v.
Johnson, 899 A.2d 478, 482 (R.I. 2006). Instead, “[t]his Court accords deference to the
credibility determinations of the hearing justice who has had the opportunity to listen to live
testimony and to observe demeanor [of the witnesses].” State v. Jensen, 40 A.3d 771, 778 (R.I.
2012) (internal quotation marks omitted).
Our review of a hearing justice’s finding of a violation of a deferred sentence or of
probation is “limited to determining whether the hearing justice acted arbitrarily or capriciously
in assessing the credibility of the witnesses or in finding such a violation.” State v. Washington,
9
In 2016, the burden of proof was amended to “a fair preponderance on the evidence;”
however, that amendment has no bearing on the instant case. In re Amendments to Superior
Court Rules of Criminal Procedure and Sentencing Benchmarks at 1 (R.I., filed June 21, 2016)
(mem.).
-9-
42 A.3d 1265, 1271 (R.I. 2012) (internal quotation marks omitted); see also State v. Ford, 56
A.3d 463, 469 (R.I. 2012); Tetreault, 973 A.2d at 492.
III
Analysis
On appeal, defendant contends that “the hearing justice acted arbitrarily and capriciously”
in determining: (1) “that Mr. Giard touched [Jessica] inappropriately;” and (2) “that Mr. Giard
assaulted [Jessica] in reasonable proximity to April of 2010” because, in defendant’s view,
neither determination was supported by the evidence in the record. The defendant further argues
that the hearing justice erred in finding Jessica’s testimony to be credible and in overlooking
inconsistencies among the testimonies of Jessica and that of her mother (Charlene) and her aunt
(Lucy) with respect to chronology—specifically as to when various events took place. We are in
disagreement with all of his contentions.
After thoroughly reviewing the record, we are satisfied that the hearing justice did not act
arbitrarily or capriciously in assessing the credibility of the witnesses, especially Jessica, or in
adjudicating defendant to be a violator of his five-year deferred sentence. As we have stated on
multiple occasions, “the presiding judicial officer need only be reasonably satisfied that a
defendant breached a condition of probation by failing to keep the peace or remain on good
behavior.” State v. Bouffard, 945 A.2d 305, 313 (R.I. 2008) (internal quotation marks omitted);
see, e.g., State v. Seamans, 935 A.2d 618, 623 (R.I. 2007). It is noteworthy that we “accord[]
deference to the credibility determinations of the hearing justice,” Jensen, 40 A.3d at 778,
because “[w]e do not have the same vantage point as [him or her], and we are unable to assess
the witness’ demeanor, tone of voice, and body language. Our perspective is limited to
analyzing words printed on a black and white record.” State v. Woods, 936 A.2d 195, 198 (R.I.
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2007). Consequently, it is not the role of this Court—but instead that of the hearing justice—to
assess the credibility of a witness in a probation violation hearing. See Bouffard, 945 A.2d at
311-13; see also State v. Hazard, 68 A.3d 479, 499 (R.I. 2013).
In the instant case, the hearing justice carefully reviewed and discussed the testimony of
the several witnesses; he weighed the evidence and assessed the credibility of each of the
witnesses, as is required. See State v. Forbes, 925 A.2d 929, 934 (R.I. 2007). He prefaced his
bench ruling by stating that often, in probation violation hearings, the ultimate determination as
to whether a defendant has kept the peace and been of good behavior hinges upon the hearing
justice’s assessment of the credibility of the various witnesses. In this regard, it should
particularly be recalled that the hearing justice focused upon Jessica’s in-court demeanor when
making a credibility determination, stating:
“This [c]ourt has made a careful and thorough assessment
of [Jessica’s] testimony that this defendant engaged in sexual
contact with her when she was living in his home.
“* * *
“I make notations often in the margins about the demeanor and
attitude and candor and memory of the witnesses that are testifying
before the [c]ourt. And in this case during [Jessica’s] testimony,
the [c]ourt wrote the following: ‘Very polite. Articulate. Mature.
Good memory.’”
“* * *
“This [c]ourt accepts [Jessica’s] testimony and finds that
the defendant at a time in reasonable proximity to April of 2010
called [her] to his computer room, sat her on his lap and over her
clothing moved his hand over her vagina.”
Ultimately, the hearing justice found Jessica’s testimony to be credible; from his vantage
point, he had been able to infer from her testimony and demeanor that the last molestation
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occurred in April of 2010. After perusing the record, it is quite evident that the hearing justice
had more than plausible reasons for accepting Jessica’s testimony.
We are aware that there were some inconsistencies between and among the testimonies of
Jessica, Charlene, and Lucy. However, from a review of the pertinent case law, we are also
mindful that we have “on more than one occasion acknowledged that the presence of some
inconsistencies between or among utterances of a witness or witnesses at different points in time
does not ipso facto render the testimony unworthy of belief.” Jensen, 40 A.3d at 781; see State
v. Lopez, 129 A.3d 77, 85 (R.I. 2016) (“Percipient witnesses often differ concerning some details
about events in which they had some degree of involvement.”); see also State v. Rosario, 35
A.3d 938, 948-49 (R.I. 2012). With respect to the testimonial inconsistencies concerning the
chronology of events, the hearing justice stated “[t]hat [such] area of confusion does not
undermine the remainder of [Jessica’s] recollection of the [molestation] incident that occurred
between her and this defendant.” In the end, we cannot say that the hearing justice’s credibility
determinations were based on an implausible foundation. After reviewing all of the evidence
presented at trial, he was “reasonably satisfied” that defendant had violated the conditions of
his deferred sentence.
When, as in the case at bar, an inquiry as to w hether the defendant violated his deferred
sentence “turns on a determination of credibility”—and, after considering all the evidence, the
hearing justice “accepts one version of events for plausible reasons stated and rationally rejects
another version”—we “can safely conclude that the hearing justice did not act unreasonably or
arbitrarily in [assessing witness credibility and in] finding that a * * * violation [of the conditions
of the defendant’s deferred sentence] ha[d] occurred.” State v. Ferrara, 883 A.2d 1140, 1144
(R.I. 2005) (internal quotation marks omitted).
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IV
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.
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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
SUPREME COURT – CLERK’S OFFICE
OPINION COVER SHEET
Title of Case State v. Michael Giard.
SU-14-0278-C.A.
Case Number
(P2/09-1102A)
Date Opinion Filed March 24, 2017
Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
Indeglia, JJ.
Written By Associate Justice William P. Robinson
Source of Appeal Providence County Superior Court
Judicial Officer From Lower Court Associate Justice Daniel A. Procaccini
For State:
Virginia McGinn
Department of Attorney General
Attorney(s) on Appeal
For Defendant:
Angela Yingling
Office of the Public Defender
SU-CMS-02A (revised June 2016)