State v. Charles Kenner

June 17, 2022

Supreme Court

No. 2021-101-C.A.
(W1/12-298A)

No. 2021-102-C.A.
(W2/13-248A)

State :

v. :

Charles Kenner. :

NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
are requested to notify the Opinion Analyst, Supreme
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Supreme Court

No. 2021-101-C.A.
(W1/12-298A)

No. 2021-102-C.A.
(W2/13-248A)

State :

v. :

Charles Kenner. :

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

OPINION

Chief Justice Suttell, for the Court. In these consolidated appeals, the

defendant, Charles Kenner, appeals from two judgments of the Superior Court

finding him to be in violation of the terms of his probation and sentencing him to

serve portions of previously imposed suspended sentences. These cases came before

the Supreme Court pursuant to an order directing the parties to appear and show

cause why the issues raised in these appeals should not be summarily decided. After

considering the parties’ written and oral submissions and reviewing the record, we

conclude that cause has not been shown and that these appeals may be decided

without further briefing or argument. For the reasons stated in this opinion, we

affirm the judgments of the Superior Court.

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I

Facts and Travel

In 2012, defendant was charged with four counts of first-degree sexual assault,

four counts of first-degree child molestation sexual assault, and one count of

second-degree child molestation sexual assault (the 2012 case). In 2013, defendant

was charged with one count of entering a dwelling with felonious intent (the 2013

case). The defendant subsequently pled nolo contendere to one count of first-degree

sexual assault and one count of breaking and entering.1 In the 2012 case, defendant

was sentenced to fifteen years at the Adult Correctional Institutions, with eight years

to serve and the remaining seven years suspended, with probation. In the 2013 case,

defendant was sentenced to five years at the ACI with the entire sentence suspended,

with probation. The sentences were to run concurrently.

On December 21, 2020, the state filed notices of probation violation in both

underlying cases, pursuant to Rule 32(f) of the Superior Court Rules of Criminal

Procedure. On March 31, 2021, a justice of the Superior Court held a combined

violation and bail hearing for the new 2020 charge. The hearing was also

consolidated with a hearing on probation-violation charges against Jason Shepard,

who was alleged to have also been involved in the incident giving rise to the notices

1
The state voluntarily dismissed the remaining counts in the 2012 case pursuant to
Rule 48(a) of the Superior Court Rules of Criminal Procedure.
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of probation violation filed against defendant. During the hearing, two witnesses

testified about the incident and some of the following events. We now summarize

the salient evidence presented at the hearing.

The first witness to testify was Nicholas Dubois. Dubois testified that on

November 27, 2020, he agreed to meet with Shepard, known to him as Jay, to trade

shoes for drugs. Dubois stated that at around 11:30 a.m. he drove his vehicle to the

agreed-upon location, where he observed defendant, Shepard, and a woman arrive

together in a gray SUV. According to Dubois, defendant was familiar to him

because he had seen him “a couple of other times[,]” including on at least one

occasion as part of a prior drug transaction.

Dubois testified that defendant and Shepard then got into Dubois’s vehicle,

where defendant tried on the shoes. According to Dubois, after about ten minutes

of being in the car together, defendant, who was sitting behind Dubois, choked

Dubois with the crook of his elbow and held something—at times Dubois stated the

object was a knife—up to Dubois’s throat.2 Dubois initially testified that, while

2
As the hearing justice later noted, the testimony regarding what exactly defendant
held up to Dubois’s throat was “relatively inconsistent[.]” Initially Dubois testified
that defendant held a knife to his throat, but later he testified that he was not sure
whether it was a knife or another object. Dubois also testified that Shepard had a
knife, and when questioned, he stated that he was unsure if both defendant and
Shepard had knives.
Additionally, the second witness, Detective Robert Malaragno, presented a
version of events that did not include defendant having a knife. Detective Malaragno
testified that he prepared an affidavit in connection with this case based on
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defendant choked him, Shepard was in the passenger seat threatening to stab Dubois

if he moved; however, Dubois later testified that it was defendant who threatened to

stab him if he moved.

Dubois further testified that Shepard ultimately did stab him, in multiple

places, and hit him in the eye, and the state introduced as exhibits photographs of

Dubois’s injuries. According to Dubois, after being stabbed by Shepard, he began

fighting Shepard, and eventually he was pushed into the passenger seat, where

defendant again choked him from behind. Dubois testified that Shepard then began

driving Dubois’s vehicle and that, eventually, after some struggle, Dubois was able

to jump out of the vehicle. According to Dubois, defendant and Shepard then drove

away in Dubois’s car.

Dubois further testified that, after exiting his vehicle, he called 911 and

reported his vehicle as stolen. Dubois stated that, due to his injuries, he spent the

night at Rhode Island Hospital, where he spoke with detectives about the incident.

Dubois also testified that he identified both defendant and Shepard in a photographic

lineup.

information he obtained from Dubois. Detective Malaragno further testified that this
affidavit described only Shepard, and not defendant, as having a knife.
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Dubois further testified that he struggled with substance-abuse issues, and that

he had a criminal record. Dubois also testified that he was on probation when the

incident occurred.

The second and final witness to testify was Detective Robert Malaragno.

Detective Malaragno testified that he spoke with Dubois about the incident in his

capacity as a Providence police officer. Detective Malaragno further testified that,

based on the information Dubois provided him, he identified defendant and Shepard

as suspects. According to Det. Malaragno, he then put together a photographic array

that included defendant and Shepard, and Dubois identified both individuals as

having been involved in the incident.

The defendant rested without presenting any evidence. After hearing the

testimony, the hearing justice delivered a bench decision.

The hearing justice began by stating that the evidence was “relatively

straightforward.” He found that Dubois was a “frequent purchaser” of drugs around

the time of the incident and that he communicated with Shepard to set up a trade for

drugs. He further found that defendant and Shepard entered Dubois’s vehicle, and

that after they talked for a while, the “interaction * * * turned violent[.]”

With respect to defendant’s role, the hearing justice found that the testimony

was “relatively inconsistent” as to whether defendant had a knife. He found,

however, that defendant was present during the incident and did engage in some

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activity. The hearing justice found that defendant “choked [Dubois] with his arm

around his neck and said something like, ‘Don’t move or I’ll stab you.’” The hearing

justice further found that Dubois identified defendant in a photographic array, as

well as in court, and that the attack was corroborated by Dubois’s injuries as

memorialized in the photographic exhibits presented by the state. Ultimately, the

hearing justice held that the evidence was “straightforward” and “preponderant” that

defendant failed to keep the peace and be of good behavior.

The hearing justice ordered defendant to concurrently serve six years of his

suspended sentence in the 2012 case, with the remaining one-year balance

suspended, with probation, and five years of his suspended sentence in the 2013

case, representing the entirety of that suspended sentence. Separate judgments of

conviction on the probation violation entered in each case on April 21, 2021. These

appeals resulted.

II

Validity of Appeals

Initially, we must decide whether each appeal is properly before us. The

defendant filed a notice of appeal in the 2012 case on April 1, 2021. Although final

judgment did not enter until April 21, 2021, this Court has repeatedly held that “a

premature notice of appeal will be considered timely so long as a final judgment is

entered thereafter.” State v. Lamontagne, 231 A.3d 1132, 1138 n.2 (R.I. 2020)

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(quoting State v. Souto, 210 A.3d 409, 415 n.8 (R.I. 2019)). Therefore, defendant’s

appeal of the 2021 judgment in the 2012 case was timely and is properly before us.

However, no notice of appeal was ever filed in the 2013 case. Although the

notice of appeal filed in the 2012 case listed both cases as being appealed,

demonstrating an intention by defendant to appeal both probation-violation

convictions, defendant asserts that the notice of appeal was “inadvertently only

filed” in the 2012 case and was not filed in the 2013 case.3

This Court’s rules require a properly filed notice of appeal for each case, even

in consolidated cases. Article I, Rule 3 of the Supreme Court Rules of Appellate

Procedure; Martin v. Lilly, 505 A.2d 1156, 1159 (R.I. 1986). Nonetheless, “[i]n the

absence of statutory jurisdiction, this Court has discretion in determining whether to

grant petitions for certiorari.” State v. Bienaime, 263 A.3d 77, 83 (R.I. 2021)

(brackets omitted) (quoting Davis v. Rhode Island Board of Regents for Education,

3
The defendant does allege that, in February 2022, a clerk of the Washington County
Superior Court “corrected” the 2013 case’s docket “to reflect that the [n]otice of
[a]ppeal was filed on April 1, 2021.” The 2013 case’s docket now reflects this
“correction,” as it lists a notice of appeal filed on April 1, 2021. Importantly,
however, the notice-of-appeal document that corresponds to that entry is a copy of
the notice of appeal filed and stamped for the 2012 case; it does not contain a stamp
indicating it was ever filed in the 2013 case. Because defendant never alleges that
he transmitted a notice of appeal in the 2013 case such that it was filed, and because
there is no such notice of appeal properly stamped with the 2013 case’s information,
we determine that, despite the “correction” to the docket, defendant has in effect
conceded that there was never a notice of appeal filed in the 2013 case. See Article
X, Rule 1(c)(6) of the Supreme Court Rules Governing Electronic Filing.
-7-
121 R.I. 473, 477, 399 A.2d 1247, 1249 (1979)). Therefore, because defendant

clearly demonstrated an intent to appeal both cases in a timely fashion because both

case numbers were indeed listed on the notice of appeal filed in the 2012 case, we

will exercise our discretion and “nevertheless review this case as though defendant

had filed a common law petition for writ of certiorari so that we may avoid depriving

defendant of the opportunity to seek review of his criminal conviction.” State v.

Sanchez, 206 A.3d 115, 121 n.6 (R.I. 2019).

Accordingly, we proceed to the merits of defendant’s argument on both 2021

judgments, in the 2012 case and the 2013 case.

III

Conviction for Probation Violation

On appeal, defendant contends that the hearing justice erred in finding that he

failed to keep the peace and be of good behavior and therefore that he violated his

probation. Specifically, defendant argues that the testimony the hearing justice

relied on was inconsistent and that Dubois was not credible as a witness.

Additionally, defendant avers that the hearing justice erred by conflating defendant

with Shepard, as defendant asserts that there was enough evidence to find that

Shepard had violated his probation, but not enough evidence to find that defendant

had violated his probation.

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“At a probation-violation hearing, the sole issue for a hearing justice is

whether the defendant has breached a condition of his or her probation by failing to

keep the peace or remain on good behavior.” State v. Molina, 251 A.3d 485, 493

(R.I. 2021) (quoting Neufville v. State, 172 A.3d 161, 165 (R.I. 2017)). “[T]he

burden of proof at a probation-violation hearing is much lower than the standard of

beyond a reasonable doubt used at criminal trials.” Id. (quoting Neufville, 172 A.3d

at 165). To prove a violation, “the state must establish ‘by a fair preponderance of

the evidence’” that the defendant violated their probation. State v. Segrain, 243 A.3d

1055, 1061 (R.I. 2021) (emphasis omitted) (quoting State v. D’Amico, 200 A.3d

1068, 1071-72 (R.I. 2019)). “To determine whether the defendant has committed a

violation, the hearing justice weighs the evidence and assesses the credibility of the

witnesses.” Molina, 251 A.3d at 493 (quoting Neufville, 172 A.3d at 165).

“This Court’s review of a hearing justice’s decision in a probation-violation

proceeding is limited to considering whether the hearing justice acted arbitrarily or

capriciously in finding a violation.” State v. Chandler, 225 A.3d 946, 947 (R.I. 2020)

(brackets omitted) (quoting State v. Wiggins, 919 A.2d 987, 989 (R.I. 2007)).

“[D]eference should be accorded ‘to the assessment of the credibility of witnesses

made by a judicial officer who has had the opportunity to listen to live testimony

and to observe demeanor.’” Segrain, 243 A.3d at 1062 (quoting State v. Washington,

42 A.3d 1265, 1271 (R.I. 2012)). Accordingly, we “will not second-guess

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supportable credibility assessments of a hearing justice in a probation-revocation

hearing.” Molina, 251 A.3d at 493 (quoting Neufville, 172 A.3d at 165).

Here, the hearing justice’s reliance on Dubois’s testimony is supportable and

therefore deserves deference. In his assessment, the hearing justice recognized that

Dubois’s testimony had some inconsistencies and was not always entirely clear. The

hearing justice noted that perhaps Dubois’s testimony was “somewhat convoluted

* * * because of the nature of the event,” a violent robbery. The hearing justice also

stated that at least some inconsistencies could be explained, in a way that “is not

hard to believe given the circumstances,” by Dubois not being calm when he initially

spoke with police or by his being “reluctant to identify” the suspects at that time.

Indeed, Dubois’s testimony indicated that he was on probation at the time of the

incident, and that participating with a police investigation of the robbery necessarily

meant admitting that he was involved in seeking drugs.

However, the hearing justice also found that the majority of the evidence

presented at the hearing was “relatively straightforward.” Notably, Dubois never

wavered in his testimony that defendant was present in the vehicle both during the

violent altercation and when Shepard drove the vehicle away, and that defendant

choked him. Thus, the hearing justice’s reliance on Dubois’s testimony, after

recognizing its faults and commenting on possible explanations for those faults, was

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not arbitrary or capricious, and we will not, on review, second-guess the hearing

justice’s findings based on that testimony.

Additionally, we note that the hearing justice also relied on evidence outside

of Dubois’s testimony, including photographs of Dubois’s injuries and Det.

Malaragno’s testimony, in concluding that the state had met its burden for

demonstrating evidence of a probation violation.

Furthermore, although defendant is correct that the hearing justice referred to

defendants together in stating his finding that both defendant and Shepard committed

probation violations, throughout his analysis the hearing justice considered

defendant’s and Shepard’s actions separately. The hearing justice found that

defendant was present in the car, choked Dubois around the neck, and threatened

him. The hearing justice attributed separate actions to Shepard, such as stabbing

Dubois and hitting him in the eye. The hearing justice also clearly noted that Dubois

identified both defendant and Shepard through a photographic array. Thus, we

cannot conclude that the hearing justice committed any error in regard to conflating

defendant and Shepard, as he mentioned them together for the sole purpose of

issuing his ultimate conclusion.

Lastly, we find no support for defendant’s contention that there was not

enough evidence to support a finding that defendant failed to keep the peace and

remain of good behavior. Although much of Dubois’s testimony focused on

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Shepard, there was also sufficient evidence to support the hearing justice’s findings

that defendant was involved in the incident, such as Dubois’s consistent testimony

that defendant choked him, his identification of defendant in a photographic lineup

as the person who choked him, and his identification of defendant in court. Based

on Dubois’s testimony, we simply cannot agree with defendant’s assertions that he

was “barely mentioned in the testimony” given at the hearing, that Dubois “guessed”

at defendant’s presence in the vehicle, and that defendant’s involvement in the

incident “was questionable and unclear.”

Importantly, even without a finding that the defendant held up a knife to

Dubois’s throat, the actions the hearing justice did find that the defendant engaged

in are more than adequate to support a conclusion that the defendant violated his

probation. “[T]his Court has stated that there is no requirement that conduct be

criminal in nature in order to amount to a failure to keep the peace and remain of

good behavior.” Molina, 251 A.3d at 493. Certainly, participating in a

drug-trade-turned-robbery is not, under any definition of the term, good behavior.

Accordingly, the defendant’s argument that there was insufficient evidence to

support a finding that he violated his probation is unavailing.

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IV

Conclusion

For the reasons stated herein, we affirm the judgments of the Superior Court.

The records shall be returned to the Superior Court.

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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. Charles Kenner.

No. 2021-101-C.A.
(W1/12-298A)
Case Number
No. 2021-102-C.A.
(W2/13-248A)

Date Opinion Filed June 17, 2022

Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.

Written By Chief Justice Paul A. Suttell

Source of Appeal Washington County Superior Court

Judicial Officer from Lower Court Associate Justice Luis M. Matos

For State:

Virginia M. McGinn
Attorney(s) on Appeal Department of Attorney General
For Defendant:

Ferenc Karoly, Esq.

SU-CMS-02A (revised June 2020)