January 7, 2019
Supreme Court
No. 2017-302-C.A.
(K2/14-710A)
State :
v. :
George Tabora. :
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 (401) 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2017-302-C.A.
(K2/14-710A)
State :
v. :
George Tabora. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Justice Goldberg, for the Court. This case came before the Supreme Court on
December 5, 2018, pursuant to an order directing the parties to appear and show cause why the
issues raised in this appeal should not be summarily decided. The defendant, George Tabora
(defendant or Tabora), appeals from a judgment of conviction after a jury found him guilty of
two counts of second-degree child molestation sexual assault1 committed against his son, whom
we refer to as John.2
On appeal, defendant argues that the trial justice erred in denying his motion for a new
trial and that the verdict failed to serve the interests of justice. After hearing the arguments of
counsel and examining the memoranda filed by the parties, we are of the opinion that cause has
not been shown, and we proceed to decide the appeal at this time. For the reasons set forth
herein, we affirm the judgment of conviction.
1
In violation of G.L. 1956 § 11-37-8.3.
2
The complaining witness has been given a pseudonym in order to protect his privacy.
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Facts and Travel
The disturbing facts of this case concern acts of molestation committed against John, who
was born on August 8, 2005. His parents, defendant and Rabiaa Madouch (Rabiaa), were
separated in 2006 and their divorce was finalized in 2009. John resided primarily with his
mother and had regularly scheduled visitation with his father.
In June 2014, after John completed the third grade, he and his mother traveled to
Morocco to visit her family for the summer. While spending time with his relatives, John
observed how his cousins interacted with other family members and later testified at trial that
“[t]hey were all happy, and if something [was] bothering them, they [would] tell their mother or
their grandpa or their uncle or whoever.”
Rabiaa and John returned to Rhode Island in August 2014; and, soon thereafter, John
began the fourth grade. According to Rabiaa, his first homework assignment was to compose ten
good things about himself, but John instead wrote about his father. Notably, this essay
assignment was the impetus for the charges and ultimate conviction in this case.
John, who was nine years old at the time, used the assignment as an opportunity to
disclose some of the troubling incidents involving his father that he had been harboring. He
wrote as follows, on lined paper marked with his name and dated “8-28-2014”:
“What I think about my dad
He talks about women boobs and daddy gets naked in front of me.
My dad watches movies on sex and he does not change the chanal
[sic]. and I don’t like him.”
Rabiaa asked to look at his assignment and was shocked by what her son had written. She met
with the Department of Children, Youth, and Families (DCYF), and an investigation ensued,
which led to John’s disclosures that he had been sexually molested by his father between
August 8, 2012, and August 8, 2013, when John was seven and eight years of age.
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The defendant was charged by criminal information with two counts of engaging in
sexual contact with John in violation of G.L. 1956 § 11-37-8.3, and a two-day jury trial
commenced in January 2017. The state offered testimony by the following witnesses: John;
Rabiaa; Adebimpe Adewusi, M.D. (Dr. Adewusi), a fellow at the Hasbro Children’s Hospital
Lawrence A. Aubin, Sr. Child Protection Center; and Yael Bat-Shimon (Bat-Shimon), a licensed
mental-health clinician at Gateway Healthcare.
In his testimony, John recounted several incidents that occurred while he was at
defendant’s apartment for scheduled visitation.3 John testified that, when he was between the
ages of seven and eight, defendant talked to him about women’s breasts and forced him to watch
sexually explicit movies. He testified, in response to a question as to what would happen if he
did not want to watch them, that “[i]f I tried to leave, he grabbed me by the arm and he forces me
to watch them.”
John also recalled incidents that took place when he showered at defendant’s apartment.
He testified that defendant would order him to take showers and that, when he was in the shower,
defendant would enter the bathroom, perform personal grooming tasks, and, when finished,
would join John in the shower. John testified that his father “would act like he is scrubbing my
body with soap, and then once he gets down to my private, he starts rubbing it.” John testified
that defendant would use his own hand while performing this act and that defendant’s penis
became erect when defendant touched John’s penis. According to John, defendant responded to
John’s pleas to stop by slapping him, and defendant also threatened to kill John if he told anyone.
3
The evidence disclosed that defendant originally had visitation rights with John every
Wednesday and every other weekend; that schedule was later adjusted to just every weekend,
and no Wednesdays. Rabiaa accompanied John to the visits and stayed with him the entire time,
unless she had to leave to run a quick errand.
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John further testified that every time he used the bathroom to urinate, defendant accompanied
him, lowered his pants to his ankles, and asked John to touch his testicles.
Next, Dr. Adewusi testified as an expert in the field of child-abuse pediatrics. She had
examined John at the request of DCYF for concerns of physical abuse, sexual abuse, emotional
abuse, and exposure to domestic violence. Doctor Adewusi testified about her examination of
John, including disclosures that he had made to her regarding his father. She testified that John
told her that he did not tell his mother about the incidents because he felt threatened by his
father.
The next witness to testify was Rabiaa. She testified about her relationship with
defendant as well as her current living situation; she recounted her observations during visits
between John and defendant. Lastly, Bat-Shimon testified about her observations with respect to
John and discussed the disclosures that he had made to her during their counseling sessions.
On January 27, 2017, the jury returned a verdict of guilty on both counts of second-
degree child molestation sexual assault. On February 14, 2017, the trial justice heard and denied
defendant’s motion for a new trial, brought pursuant to Rule 33 of the Superior Court Rules of
Criminal Procedure. Thereafter, defendant was sentenced to two concurrent terms of twenty-five
years in prison, with fifteen years to serve and ten years suspended, with probation. Before this
Court, defendant argues that the trial justice erred in denying his motion for a new trial.
Standard of Review
When presented with a motion for a new trial, it is well settled that “the trial justice must
determine whether the evidence adduced at trial is sufficient for the jury to conclude guilt
beyond a reasonable doubt.” State v. Baptista, 79 A.3d 24, 29 (R.I. 2013) (quoting State v.
Staffier, 21 A.3d 287, 290 (R.I. 2011)). Accordingly, “the trial justice acts as a thirteenth juror
and exercises independent judgment on the credibility of witnesses and on the weight of the
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evidence.” State v. Baker, 79 A.3d 1267, 1273 (R.I. 2013) (quoting State v. LaPierre, 57 A.3d
305, 310 (R.I. 2012)). “In this determination, 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.” LaPierre, 57 A.3d at 310 (quoting State v. Bunnell, 47
A.3d 220, 232 (R.I. 2012)).
“If, after conducting such a review, the trial justice reaches the same conclusion as the
jury, the verdict should be affirmed and the motion for a new trial denied.” State v. Paola,
59 A.3d 99, 104 (R.I. 2013) (quoting State v. Heredia, 10 A.3d 443, 446 (R.I. 2010)).
Alternatively, “if the trial justice does not agree with the jury verdict, ‘he or she is required to
proceed to a fourth step * * * to determine whether the verdict is against the fair preponderance
of the evidence and fails to do substantial justice.’” Baptista, 79 A.3d at 29 (quoting Staffier, 21
A.3d at 290-91). “If the verdict meets this standard, then a new trial may be granted.” Id.
(quoting Staffier, 21 A.3d at 291).
Accordingly, “[i]f the trial justice has complied with this procedure and articulated
adequate reasons for denying the motion, his or her decision will be given great weight and left
undisturbed unless the trial justice overlooked or misconceived material evidence or otherwise
was clearly wrong.” Paola, 59 A.3d at 104 (quoting State v. Smith, 39 A.3d 669, 673 (R.I.
2012)). On appeal, we apply this deferential standard of review because “a trial justice, being
present during all phases of the trial, is in an especially good position to evaluate the facts and to
judge the credibility of the witnesses.” Id. (quoting State v. Texieira, 944 A.2d 132, 141 (R.I.
2008)).
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Analysis
The defendant’s sole challenge on appeal to this Court is that the trial justice erred in
denying his motion for a new trial. He argues that the evidence presented at trial raised serious
doubt about the allegations and that the trial justice overlooked and misconceived material
evidence. Specifically, defendant argues that John’s testimony was neither credible nor reliable
and that the testimony of the other witnesses failed to corroborate John’s assertions, but instead
contradicted critical aspects of his testimony. For this reason, defendant contends that the verdict
returned by the jury was against the weight of the evidence and failed to serve the interests of
justice.
By calling into question the trial justice’s assessment of the testimony and the weight of
the evidence, defendant effectively challenges the trial justice’s credibility determinations.
However, “[t]his Court has stated that ‘[t]he mere fact that [a] defendant disagrees with the trial
justice’s conclusions about credibility is not a sufficient basis to warrant the granting of
a motion for new trial.’” Paola, 59 A.3d at 104 (quoting State v. Rivera, 987 A.2d 887, 903 (R.I.
2010)). As we have elucidated on numerous occasions, “the trial justice * * * has [had] the
opportunity to observe the witnesses as they testify and therefore is in a better position [than this
Court] to weigh the evidence and to pass upon the credibility of the witnesses than is this
[C]ourt.” Rivera, 987 A.2d at 903 (quoting State v. Luanglath, 749 A.2d 1, 5-6 (R.I. 2000)). For
this reason, we will not disturb the trial justice’s determination on appeal “unless the trial justice
clearly erred in his credibility determinations or ‘overlooked or misconceived relevant and
material evidence[.]’” Paola, 59 A.3d at 104 (quoting State v. Banach, 648 A.2d 1363, 1368
(R.I. 1994)).
A careful review of the record reveals that the trial justice, when considering defendant’s
motion for a new trial, articulated the correct analysis to be undertaken, recounted his
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independent observations from trial, and carefully assessed the credibility of the witnesses and
weight of the evidence. The trial justice comprehensively articulated his reasons for denying the
motion for a new trial. His conclusion—that the overwhelming and credible evidence of sexual
contact between defendant and John supported the jury’s finding of guilt beyond a reasonable
doubt—is clear and reflects thoughtful deliberation.
Furthermore, in assessing the credibility of the witnesses, the trial justice found John in
particular to be “a very nervous ten-year[-]old boy on the stand and some of his answers were
contradictory especially when the [c]ourt found he was nervous during cross-examination and
began answering correct to just about every question. But with respect to his testimony as a
whole, the [c]ourt [found John] to be a very credible witness.” Thus, the trial justice concluded
that, based on John’s testimony, the jury could conclude that the requisite elements of the
charged offense were proven “beyond a reasonable doubt.” Accordingly, after reviewing the
evidence adduced at trial, the trial justice concluded that he agreed with the verdict on all three
elements of the charge, and he denied defendant’s motion for a new trial.
Having carefully reviewed the record before us, we are satisfied that the trial justice did
not overlook or misconceive any material evidence. The trial justice conducted an appropriate
analysis of the evidence presented, evaluated the credibility of the witnesses, and assessed the
weight of the evidence; and, having done so, he determined that sufficient credible evidence was
submitted to support the verdict on both counts. We therefore hold that the trial justice did not
err in denying the defendant’s motion for a new trial.
Conclusion
For the reasons set forth in this opinion, we affirm the judgment of conviction. The
papers in this case may be remanded to the Superior Court.
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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
SUPREME COURT – CLERK’S OFFICE
OPINION COVER SHEET
Title of Case State v. George Tabora.
No. 2017-302-C.A.
Case Number
(K2/14-710A)
Date Opinion Filed January 7, 2019
Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
Indeglia, JJ.
Written By Associate Justice Maureen McKenna Goldberg
Source of Appeal Kent County Superior Court
Judicial Officer From Lower Court Associate Justice Brian P. Stern
For State:
Christopher R. Bush
Department of Attorney General
Attorney(s) on Appeal
For Defendant:
Camille A. McKenna
Office of the Public Defender
SU-CMS-02A (revised June 2016)