State v. Enos

Justice GOLDBERG,

concurring and dissenting.

I respectfully dissent from that portion of the majority’s opinion holding that there was legally sufficient evidence to conclude that defendant and Mary were in a domestic relationship. I cannot concur with the majority’s conclusion that the substantive dating relationship as set forth in G.L.1956 § 12-29-2, which is an essential element of the domestic violence offense, “is, by its very nature, a somewhat flexible concept.” Although I agree that, to decide whether a substantive dating relationship exists, an analysis of the factors enumerated in the statute must be undertaken, it is the trial court which must do so as a preliminary matter. I cannot agree that this element of the crime, which must be proven beyond a reasonable doubt, is a “somewhat flexible concept” or that the question is committed to the jury in the first instance. It is well established that “the language of a penal statute must be read narrowly, [and] that penal statutes must be strictly construed in favor of the defendant[.]”12 State v. Martini, 860 A.2d 689, 691 (R.I.2004). Because the testimony elicited in this case provided little to no information about (1) the length of the relationship; (2) the type of relationship; or (3) the frequency of the interaction between defendant and Mary, as set forth in § 12-29-2, I am of the opinion the trial justice erred in denying defendant’s motion for a judgment of acquittal concerning the domestic violence crime. I also note that the trial justice failed to address these factors in her ruling denying defendant’s motion for a judgment of acquittal and concluded that this was a question solely for the jury’s determination. This was error in my opinion. I would remand this case with directions to enter a judgment of conviction for the crime of felony assault and for a new sentencing hearing respecting that conviction.

The record discloses that Mary was the first witness to testify at trial. During her direct examination, the state engaged in a short colloquy about the nature of Mary’s relationship with defendant:

“Q How do you know James Enos?
“A We were in a relationship.
“Q When did you meet?
“A In January of 2008.
“Q And how did you meet?
*335“A Match.com.
“Q You met Mr. Enos in January and began dating him at that time?
“A At the end of January.
“Q And how long did you date him for?
“A About six months.
“Q And was it an intimate relationship?
“A Yes, it was.
"* * *
“Q When did your relationship with Mr. Enos end?
“A In the beginning of August.
“Q And who broke up with [whom]?
“A He broke up with me.”

The state did not elicit any further information about Mary’s relationship with defendant from her, or from any other witness. The foregoing testimony was the only evidence relative to this element of the crime. The fact that they dated for six months and were intimate is not enough in my opinion.

This evidence virtually provided no information about two of the three factors the trial justice must consider in determining whether there existed a substantive dating relationship — namely, the type of relationship, and the frequency of the interaction between defendant and Mary. The complainant testified that she and defendant dated for six months, but she did not explain how often they saw each other, or whether it was a mutually exclusive relationship or whether they also were dating other people. Although she testified that they were “intimate,” the Random House Unabridged Dictionary 1000 (1993) assigns no less than thirteen different meanings to the word “intimate.” Clearly, in the context of this case, it is reasonable to assume the witness was referring to sexual relations. Sexual intimacy, however, may consist of casual sex or sex for convenience. It may or may not indicate a serious relationship; “human experience teaches that sexual intimacy does not necessarily reflect a romantic interest, * * * and a romantic relationship need not involve sexual intimacy.” Oriola v. Thaler, 84 Cal.App.4th 397, 100 Cal.Rptr.2d 822, 831 (2000).

The majority concludes that a reasonable juror could infer from Mary’s testimony that she and defendant “saw one another on a regular basis over a period of six months.” I am not convinced. Additionally, the majority finds that Mary’s testimony that she and defendant were “intimate,” constitutes sufficient evidence about “the nature of the interactions between the parties.” Although I agree that the statute does not require a specific showing on each of the enumerated factors set forth in § 12-29-2, in my opinion, Mary’s scant testimony does not reasonably support the dual inferences that she and defendant saw each other on a regular basis and that the relationship was of a serious nature. The drawing of these inferences would stretch the evidence beyond its breaking point. “This Court is not in the business of supplying essential elements of a felony offense by implication.” State v. Carter, 827 A.2d 636, 643 (R.I.2003).13

*336Further, and critically in my opinion, the trial justice did not address the factors set forth in the statute, but concluded that it was a question for the jury. In response to defendant’s motion for judgment of acquittal, the state argued that Mary’s testimony established a substantive dating relationship; the state’s argument consisted of the following:

“[The defendant and Mary] met on a dating website called Match.com. She testified that [they] dated for six months, that they had been intimate during that relationship, that the [defendant had terminated the relationship within a couple of weeks preceding [the alleged assault] and that they had com-municat[ed] since the breakup relative to affairs of the heart, the return of the jewelry, winding down their relationship.”

The trial justice’s ruling was as follows:

“Given the evidence that was just outlined by [the state], this [c]ourt cannot say as a matter of law that the [s]tate could not prove this to be a domestic offense beyond a reasonable doubt. I believe it’s a question for the jury pursuant to the statute and I intend to instruct them and submit that question to them.” (Emphasis added.)

I am of the opinion that the trial justice’s failure to consider the factors enumerated in § 12-29-2 was error. The statute explicitly provides that the factors are for the court’s consideration.

Unquestionably, our sister states have struggled to determine the factors that characterize a dating relationship. Notably, our statute requires a substantive dating relationship. The California Court of Appeals has stated that a dating relationship:

“[I]s a social relationship between two individuals who have or have had a reciprocally amorous and increasingly exclusive interest in one another, and shared expectation of the growth of that mutual interest, that has endured for such a length of time and stimulated such frequent interactions that the relationship cannot be deemed to have been casual.” Oriola, 100 Cal.Rptr.2d at 832-33.

The Superior Court of New Jersey, Chancery Division, considers a minimum of six factors in determining the existence of a dating relationship, including “the parties’ ongoing expectations with respect to the relationship, either individually or jointly[,]” and whether “the parties demonstrated an affirmation of their relationship before others by statement or conduct[.]” Andrews v. Rutherford, 363 N.J.Super. 252, 832 A.2d 379, 383, 384 (Ch.Div.2003). Although these factors may vary slightly from our own, the underlying principle is clear; a “substantive dating relationship” simply does not equate with casual dating or casual sex. To trigger the provisions of the Domestic Violence statute, there must be more. The nature of the relationship must establish mutual affection, shared expectations or a growing expectancy, and a frequency of interaction that reflects substance and meaning. The record before us does not contain sufficient evidence to make any such determination. It is thus my view that the trial justice erred in denying the defendant’s motion for a judgment of acquittal.

I concur in the Court’s conclusion with respect to the trial justice’s decision denying the defendant’s motion for a mistrial.

. Of note, this Court has not yet been confronted with a challenge to G.L.1956 § 12-29-2 on vagueness grounds.

. This is not the first time this Court has addressed the piecemeal fashion in which this state’s domestic violence legislative scheme has been crafted. In State v. Carter, 827 A.2d 636, 642 n. 8 (R.I.2003), this Court noted:

"We remain concerned about the inconsistencies in the Domestic Abuse Protection Act, chapter 15 of title 15, the Domestic
Assault Act, G.L.1956 chapter 8.1 of title 8, and the Domestic Violence Prevention Act, title 29 of chapter . 12. This statutory scheme, enacted by the General Assembly over a period of years, contains troubling jurisdictional inconsistencies and contradictions and reflects a patchwork approach to *336one of society’s most serious ills. It warrants comprehensive revision.”