State v. Juan Gibson

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

No. 2021-139-C.A.
(P1/19-820AG)

State :

v. :

Juan Gibson. :

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.

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 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.

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 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.

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 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.

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 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

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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

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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.

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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.

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 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

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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.

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 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

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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.”).

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 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.

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 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

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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)).

Analysis

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.”

Standard of Review

“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)).

Analysis

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)