State v. Michael Narcovich

February 12, 2021

Supreme Court

No. 2018-131-C.A.
(P2/15-2401ADV)

No. 2018-132-C.A.
(P2/15-2461A)

State :

v. :

Michael Narcovich. :

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. 2018-131-C.A.
(P2/15-2401ADV)

No. 2018-132-C.A.
(P2/15-2461A)

State :

v. :

Michael Narcovich. :

Present: Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.

OPINION

Justice Goldberg, for the Court. These consolidated cases came before the

Supreme Court on November 5, 2020, on appeal from a judgment of conviction

following a jury trial. The defendant, Michael Narcovich, was charged with eight

offenses. Five counts arose from a bar fight and its aftermath, when the defendant

drove his vehicle into two women, causing injury, and then fled the scene, in

violation of G.L. 1956 §§ 11-5-2, 31-26-1, and 31-27-1.2. Three counts arose from

violations of a no-contact order, in violation of G.L. 1956 §§ 12-29-4 and 12-29-5.

For the reasons set forth in this opinion, we vacate the judgment of conviction.

-1-
Facts and Travel

Because of the significant number of witnesses and the conflicting versions

of events presented, we recount the trial testimony in detail.

On January 13, 2015, defendant sent Facebook messages to his ex-girlfriend,

Lisa Spano, despite a previously issued no-contact order that prohibited him from

communicating with her. Spano reported this incident to the police, and an arrest

warrant issued. All of the remaining offenses occurred during the early morning

hours of January 23, 2015. Despite the no-contact order between defendant and

Spano, Spano; her daughter, Karina Blair;1 Karina’s then-boyfriend, David

Hedges; and defendant went to the American Legion (the Legion), a bar located in

the Riverside section of East Providence. The group, traveling in Spano’s vehicle,

arrived at 11 p.m., and everyone ordered a beer. As the evening progressed, a

physical altercation developed inside the establishment between defendant and

another patron, Joseph Whalen, and, soon thereafter, a larger melee among

numerous bar patrons escalated in the parking lot. Ultimately, defendant left the

scene, driving Spano’s car, and struck two women as he fled the parking lot.

The defendant was charged with two counts of assault and battery with a

dangerous weapon, to wit, a motor vehicle; one count of assault and battery

resulting in serious bodily injury; one count of leaving the scene of an accident

1
Spano’s daughter is referred to as both Karina and Katrina in the trial transcripts.
We shall simply refer to her as Karina.
-2-
resulting in physical injury; and one count of reckless driving to endanger resulting

in physical injury. Additionally, he was charged with violating a no-contact order

on January 13, 2015, and January 23, 2015, in East Providence, and on January 23,

2015, in Barrington.2

A jury trial commenced on June 13, 2017. Several witnesses testified and

gave differing versions of the events of that evening. The following facts are

gleaned from the testimony adduced at trial.

The state opened with testimony from Kyle Soderlund, a bar patron.

Soderlund arrived at the Legion between 8:30 and 9 p.m. on January 22, 2015, and,

he indicated, consumed three or four mixed drinks throughout the evening.

Around midnight, he observed a patron, identified as Steven Luthy, arguing with

defendant in the vicinity of the bar; Soderlund went over to intervene and

suggested that defendant “enjoy the night” and “let everything go[.]” After that, a

little after 1 a.m., a large group exited into the parking lot, and Soderlund observed

defendant proceeding from the back of the building towards the parking lot.

Soderlund testified that another argument broke out between defendant and patrons

from the larger group that also involved “some shoving.” At that point, defendant

2
The defendant was charged by two separate criminal informations. One criminal
information, P2/15-2401ADV, charged defendant with one count of violation of a
no-contact order for activity that occurred in Barrington, Rhode Island, on
January 23, 2015. The other criminal information, P2/15-2461A, contained the
remaining charges. These two separate cases were tried together in the Superior
Court and were consolidated on appeal.
-3-
entered the driver’s seat of a four-door Nissan, while some females located at the

rear passenger door of the Nissan were engaged in another altercation. Soderlund

attempted to separate the women. He testified that he believed the women

involved to be Spano, Karina, and a female named Angelica. Soderlund attempted

to push Spano and Karina into the vehicle “just to get them out of there,” and, with

the rear passenger door open, defendant accelerated the vehicle, throwing

Soderlund to the ground.

According to Soderlund, defendant drove the vehicle towards the back of the

parking lot—where there is no means of egress—and then proceeded towards the

front of the parking lot, where approximately fifteen bar patrons were blocking the

exit. Soderlund testified that people attempted to jump out of the way as defendant

drove through the crowd, and that two women, Katrina Esposito and Shanna

Medeiros, were struck by the vehicle. Soderlund recalled that defendant did not

stop but continued out towards the street and turned left; Soderlund then called

911. Later that night, Soderlund identified both the vehicle that struck the women

and defendant as the person who had been driving it.

Sergeant Joseph Stewart of the East Providence Police Department testified

that he was working on January 23, 2015, and, at approximately 1 a.m., he

received a high-priority call that pedestrians had been struck at the Legion and that

the suspect had fled the scene, possibly in the direction of Barrington. Soon

-4-
thereafter, he received a dispatch directing him to Spano’s home in Barrington.

When Sgt. Stewart arrived, he was accompanied by a Barrington police officer. As

the officers approached the home, he could hear “yelling and shouting” from

inside; the Barrington officer went to the front door, so Sgt. Stewart went around to

the back door, where, with the help of his flashlight, he noticed a large male hiding

under a pickup truck. Sergeant Stewart grabbed the man’s leg and pulled him out

from underneath the truck. The suspect identified himself as defendant, for whom

there was an outstanding arrest warrant.3 As he handcuffed defendant, Sgt. Stewart

noticed that there were cuts or blood on the palms of his hands and dried blood on

his face. The defendant told Sgt. Stewart that he was involved in a fight at the

Legion and was attacked by a large group of people; he explained that he left the

Legion before the police arrived because he knew about the arrest warrant.

The state next presented the testimony of Katrina Esposito, one of the

women injured during defendant’s flight from the Legion parking lot. She testified

that she remembered going to the Legion around 9 p.m. with her friend Angelica

Tetreault to have “some casual drinks.” She stated that she had approximately four

beers throughout the night. She recalled “a commotion happening at the other end

of the bar” when someone bumped into another patron. Although she was not

involved in that altercation, she testified, a bar employee instructed everyone to

3
Sergeant Stewart also made an in-court identification of defendant as the
individual hiding under the truck.
-5-
leave the bar. She testified that another fight broke out in the parking lot, but she

was not involved in that altercation. The next thing Esposito recalled was waking

up on the ground with no memory of how she ended up there. At that point, she

could not feel her legs and thought she was paralyzed. She remembered noticing

her friend, Shanna Medeiros, also lying on the ground, immobilized. An

ambulance transported Esposito to Rhode Island Hospital, where she remained for

over a week.

Esposito testified that she suffered two broken legs, a broken knee, a broken

ankle, and fractured pelvic and hip bones, requiring surgery on both legs. After

she was discharged from the hospital, she required treatment in a rehabilitation

facility for one month; she remained in a wheelchair for the entirety of her stay at

that facility. She returned home and was unable to walk for approximately three

months. Esposito testified that, at the time of the trial (about two and a half years

after the accident), she could not stand for long periods of time, had difficulty

walking down stairs, was unable to run, and could not play with her children.

Alexander LaSalle, another patron of the Legion, testified that he arrived

that night around 9 p.m. with his girlfriend, Kathryn Yergeau, to play pool. He

recalled that, around 12:30 or 1 a.m., there was a “loud commotion” at the bar,

involving “people yelling back and forth”; he did not get involved. When he and

Yergeau left the Legion, there was a second commotion in the parking lot

-6-
involving the same group of people who had been arguing inside the bar. He saw a

small four-door gray car with two men and two women inside. According to

LaSalle, there was “scuffling” inside and outside of the vehicle, and both Esposito

and Medeiros were involved and were trying to pull a woman out of the car.

LaSalle then testified that the male driving the vehicle started to take off from a

parked position and that Esposito and Medeiros fell out of the car as it rolled away.

The driver then made a U-turn, drove to the other side of the parking lot, and—

instead of driving out of the lot—he drove the car back through the area where it

was originally parked and directly towards the bar patrons. LaSalle testified that

he was able to move out of the car’s path as it headed towards him, but he threw a

beer bottle at the car.

LaSalle testified that he saw the vehicle hit Medeiros, sending her body into

the air and then back onto the pavement. Although he did not see the vehicle strike

Esposito, he saw her lying on the ground as “the car went over her” a second time.

He then saw the vehicle leave the parking lot.

Joseph Whalen, a participant in both the altercation inside the bar and the

fight in the parking lot, testified that he was at the Legion on January 22, 2015,

with some friends and was drinking mixed drinks. He testified that he consumed

“[p]robably a few more [drinks] than [he] should, but not too much.” He was

seated at the end of the bar when he heard defendant and someone else arguing, so

-7-
he tried to calm them down. Whalen explained that he and defendant exchanged

“some words” and, when defendant pushed him, he pushed back. The defendant

then punched him, and he punched back, sending defendant to the floor. Whalen

was then grabbed from behind and ejected from the Legion.

Soon thereafter, people began exiting the bar, including defendant. The two

men exchanged more than words. According to Whalen, defendant came running

at him and tried to tackle him. Whalen got defendant onto the ground and hit him

“a few times.” Whalen then walked over to where other people were congregated,

and defendant got into a vehicle. He further testified that defendant drove around

the parking lot, steering the vehicle close to the group of people, then drove around

the parking lot again and hit Esposito. He stated that defendant then backed up,

“kind of gunned it with his car,” and hit Medeiros, causing her to flip into the air.

The defendant drove off towards Barrington, according to Whalen.

Shanna Medeiros, the second woman who was injured during defendant’s

flight from the Legion, testified that she had consumed a few beers that evening.

She stated that she went outside and was standing in the Legion parking lot when

she was hit by a car, sustaining injuries. She was taken by ambulance to Rhode

Island Hospital, where she was treated for bruising all over her body, as well as

head trauma, requiring staples in her head and stitches in her scalp and forehead.

-8-
She did not remember the impact from the vehicle; she just remembered standing

in the parking lot and then waking up in the hospital.

Spano, defendant’s ex-girlfriend, testified that she and defendant were in a

romantic relationship for three years. As of January 13, 2015, she and defendant

had broken up, and there was a no-contact order in place that prohibited defendant

from contacting or speaking to her. Nevertheless, the two were arguing on that

day, and she believed that defendant had slashed her tires. After defendant denied

the allegations via Facebook messaging, Spano brought the communications to the

police.4 The messages resulted in one of the counts alleging a violation of the no-

contact order.

Notwithstanding her belief about the slashed tires and the outstanding arrest

warrant, Spano and defendant went to the Legion together on January 22, 2015,

along with her daughter Karina and Karina’s ex-boyfriend, David Hedges.

Although she and defendant “were trying to work things out,” Spano conceded that

the no-contact order was still in place on that day. The foursome arrived at the

Legion around 11 p.m., and Spano had two beers and she also “th[ought]

everybody had a beer.” According to Spano, a man she did not know walked by

and banged into defendant, and the two men exchanged some words. She stated

that another man then “ran over and started swinging at [defendant].” After a

4
The Facebook messages between defendant and Spano were introduced into
evidence as full exhibits.
-9-
“little scuffle” between the two, the bartender escorted her group out of the

establishment, through the back door. As Spano’s group approached her vehicle,

there was a large crowd surrounding the car; defendant took the keys and went to

the driver’s side of the vehicle. Spano testified that a woman from the crowd

punched Karina in the face as she was trying to get in the back seat. Karina and

two other women then engaged in a physical fight. Spano tried to pull the women

away from her daughter, but a man punched her in the face and hit her with what

she believed was a bottle. Hedges then attempted to drag a bleeding Spano into

the back seat, but people were pulling at her legs. With Spano’s legs still outside

the vehicle, defendant began driving.

According to Spano, defendant drove around the parking lot, to avoid hitting

a group of people who were on the side of the vehicle, and then drove out of the

parking lot and back to Spano’s house in Barrington. She testified that she had no

recollection of defendant hitting anyone, and she claimed that she did not learn of

injuries to any person until the police came to her house. By the time the police

arrived at her house, she testified, defendant had left because of the no-contact

order and because he and Karina were arguing. Spano eventually went to the

hospital and was treated for her injuries from the altercation at the Legion.

Alexander LaSalle’s girlfriend, Kathryn Yergeau, testified next. She stated

that she and LaSalle went to the Legion at approximately 8:30 p.m. to meet up with

- 10 -
friends and play pool, but she did not drink. She testified that she and her group of

friends left the Legion after 1 a.m.; and, while they were standing in the middle of

the parking lot, a group of people appeared from around the building, seemingly

headed to their car, but began fighting with her friends. Yergeau’s group included

Soderlund, Medeiros, and Esposito. Yergeau stated that, although she did not

know what the other group was upset about, they were yelling and throwing beer

bottles and punches.

Yergeau also testified that Medeiros and Esposito were alongside

defendant’s vehicle and engaged in an altercation as the vehicle began to move

away. She stated that the car initially moved towards an exit, but it made a U-turn,

circled the parking lot a few times, and then drove into Medeiros. She watched the

vehicle leave the parking lot and turn left, at which point she saw Esposito on the

ground.

The state then called Detective Matthew Robinson of the East Providence

Police Department; he testified that he was dispatched to the Legion at

approximately 1:30 a.m. on January 23, 2015. When he arrived on the scene, it

was “very, very chaotic[,]” with fifteen or twenty people “yelling, screaming,

swearing, crying, moving around, [and] running around.” There were two women

who were injured: one was face down in a pool of blood and the other was face up

about twenty feet or so away. He identified the two women as Medeiros and

- 11 -
Esposito. At the scene, Det. Robinson “learned that a vehicle had traveled through

the crowd and struck the two [female] victims[.]” He obtained a description of the

vehicle involved, and somebody mentioned that defendant was the driver.5 He

then conveyed that information to dispatch.

The state’s final witness, Christol Born, M.D., an orthopedic surgeon,

testified that she was working at Rhode Island Hospital on January 23, 2015, and

treated Esposito’s injuries, including “a dislocation of her foot on one side[,] * * *

a fracture on the upper part of her shin bone, the tibia, at the knee on one side, and

on the other side, * * * she had a fracture of the lower part of the shin bone just

above the ankle, and she also had a fracture of her hip socket.”

The state rested its case, and defendant called David Hedges to testify.

Hedges testified that he went to the Legion with defendant, Spano, and Karina

around 11 p.m. on January 22, 2015. The group sat at the bar and ordered beers.

When they were getting ready to leave, “a gentleman came by and shoved

[defendant] to the side[,]” and then the altercation “spread through the whole bar.”

A bar employee instructed Hedges’ group to exit through the side door because

there was a group of people blocking the front entrance. In the parking lot, they

encountered “a group of people with beer bottles * * * sitting by the cars.”

According to Hedges, a man struck Karina from behind on her way to the car,

5
Most of the information Det. Robinson received at the scene came from
Soderlund.
- 12 -
initiating a second altercation in the parking lot. As Karina was being “beat up[,]”

Spano attempted to intervene and help her daughter, but ended up in a fight with

two other women. Hedges testified that defendant was also being “beat up[,]” so

he helped him into the car and then ran over to help Spano and Karina. Amid all

the yelling, pushing, and punching, a man struck Spano with what Hedges believed

to be a beer bottle. Hedges eventually secured Spano and Karina into the car, but

people were trying to pull Karina out. As defendant attempted to drive away,

people were throwing bottles and trying to jump on the car.

Hedges testified that defendant tried to pull out of the parking lot, but his

path was blocked by a “chain of people” between the car and the main exit. The

defendant “drove around and * * * tried to go out the other side,” but people were

“circling the car and jumping on it.” He testified that they “eventually left the

parking lot and drove * * * to [Spano’s] house[,]” but he did not see anyone being

struck by the car.

The jury returned a verdict of guilty on all eight counts. The defendant filed

a motion for a new trial, which was heard and denied on September 14, 2017.6 At

the sentencing hearing, the trial justice found that count one (assault and battery

resulting in serious bodily injury to Esposito) and count two (assault and battery

6
The defendant’s motion for a new trial was not timely filed, because it was filed
on July 18, 2017, more than ten days after the finding of guilty by the jury on
June 22, 2019. See Super. R. Crim. P. 33.
- 13 -
with a dangerous weapon upon Esposito) arose from the same operative set of

facts. Accordingly, the trial justice dismissed count one. On the counts alleging

assault and battery with a dangerous weapon, defendant was sentenced to fifteen

years at the Adult Correctional Institutions, with six years to serve and the balance

suspended, with probation. On count four, leaving the scene of an accident

resulting in physical injury, defendant received six years to serve, with a two-year

loss of driving privileges. On the count alleging reckless driving resulting in

physical injury, defendant was sentenced to two years to serve, with a one-year

loss of license. On the three counts of violating a no-contact order, defendant was

sentenced to five years, with three years to serve and the remainder of the sentence

suspended, with probation, and mandatory completion of domestic-violence

counseling classes. All sentences were ordered to run concurrently. The defendant

timely appealed.

Before this Court, defendant proffers three arguments. First, he argues that

the trial justice committed reversible error when he instructed the jury that it was

entitled to consider whether or not defendant was intoxicated at the time of the

incident. Second, he contends that the trial justice erred by failing to declare that

the merger doctrine applied to two violations of the no-contact order. Lastly, he

assigns error to the denial of his motion for a new trial because, he contends, the

- 14 -
verdicts were against the weight of the evidence. We address each contention in

turn and will provide additional facts and procedural history as necessary.

The Jury Instructions

As part of the instructions to the jury, the trial justice outlined the requisite

elements to support the charge of reckless driving, resulting in injury. Included in

that instruction, the trial justice stated:

“The second element of the offense requires a showing
that the defendant was operating in a reckless disregard
of the safety of others. * * * In order to rise to the level
of recklessness, the defendant’s conduct must have
reflected a wanton disregard for the safety of others and a
heedless indifference for the consequences of his actions.
***
“In making that determination, you should consider the
totality of the circumstances, including, but not limited to
the weather, the lighting conditions, the condition of the
road, the presence of traffic and control signs and signals,
if any, in compliance or noncompliance with them. You
may also consider the speed of the defendant’s vehicle.
Although, I must caution you that speed, in and of itself,
is not necessarily determinative of recklessness. In
addition, you’re entitled to take into account the
condition of the defendant, including whether or not the
defendant was intoxicated and the level of any such
intoxication.” (Emphasis added.)

At a sidebar conference, defendant objected to that portion of the charge

instructing the jury that it could consider whether or not defendant was intoxicated.

The defendant argued that there was “zero evidence as to that,” and he did not

want the jurors to have it in their minds that defendant was intoxicated. He also

- 15 -
noted that this case did not contain an alcohol-related offense, and he requested

that the trial justice take that sentence out of the instructions. The prosecutor

responded that, although Spano’s testimony was that defendant had been drinking,

the state was not going to argue anything concerning defendant’s possible

intoxication; the state deferred to the trial justice on whether to strike that portion

of the instructions. Defense counsel responded that evidence of drinking is not

evidence of intoxication. The trial justice declined to amend his instructions,

stating that he would allow the parties to argue the issue but noted that “[i]t is a

standard instruction.”

On appeal, it is defendant’s contention that the trial justice erred when he

instructed the jury that it could consider defendant’s intoxication. Specifically,

defendant maintains that intoxication was not an issue at trial and that there was

insufficient evidence presented to conclude that defendant was intoxicated. The

defendant submits that this instruction injected the issue of defendant’s possible

intoxication into a case without any relevant evidence to support it. We agree.

Standard of Review

This Court engages in de novo review of challenged jury instructions. State

v. Hunt, 137 A.3d 689, 692 (R.I. 2016). In doing so, we “examine[] ‘the

instructions in their entirety to ascertain the manner in which a jury of ordinary

intelligent lay people would have understood them[.]” State v. Cardona, 969 A.2d

- 16 -
667, 674 (R.I. 2009) (quoting State v. Krushnowski, 773 A.2d 243, 246 (R.I.

2001)). “We examine the challenged portions of the jury instructions ‘in the

context in which they were rendered.’” State v. Lynch, 19 A.3d 51, 58 (R.I. 2011)

(quoting Cardona, 969 A.2d at 674). We are mindful that the trial justice’s jury

instructions “need only adequately cover the law.” Cardona, 969 A.2d at 674

(brackets omitted) (quoting Krushnowski, 773 A.2d at 246). Moreover, “an

erroneous charge warrants reversal only if it can be shown that the jury could have

been misled to the resultant prejudice of the complaining party.” Lynch, 19 A.3d at

58 (brackets omitted) (quoting State v. Sivo, 925 A.2d 901, 913 (R.I. 2007)).

Analysis

We begin by addressing defendant’s reliance on Handy v. Geary, 105 R.I.

419, 252 A.2d 435 (1969), and State v. Amaral, 109 R.I. 379, 285 A.2d 783 (1972),

as grounds for vacating the judgment. In Handy, this Court held that, whenever the

issue of intoxication is raised, before evidence of the consumption of intoxicants

may be presented to the jury, the trial justice must conduct a preliminary

evidentiary hearing on the issue, in the absence of the jury. Handy, 105 R.I. at

431, 252 A.2d at 441-42. In Amaral, we expanded the application of this

procedure to criminal cases. Amaral, 109 R.I. at 386-87, 285 A.2d at 787. The

defendant points to Handy and Amaral in support of his contention that the jury

should not have been instructed that it could consider whether he was intoxicated

- 17 -
unless intoxication was an issue in the case. In Amaral, the defendant faced

criminal charges for the operation of a motor vehicle “in reckless disregard of the

safety of others.” Id. at 387, 285 A.2d at 787. We noted that “proof of intoxication

is relevant for the jury to consider in determining whether defendant was operating

his vehicle in reckless disregard of the safety of others,” but that such evidence is

inadmissible absent a preliminary hearing on the issue of intoxication, outside the

presence of the jury. Id. at 387, 285 A.2d at 787, 788. Indeed, this Court explained

that “evidence of the consumption of an alcoholic beverage is not admissible for

the purpose of merely establishing that defendant consumed some before the

accident.” Id. at 387, 285 A.2d at 787. Notwithstanding, Handy, Amaral, and their

progeny grapple with the admissibility of evidence of the consumption of alcohol,

whereas the issue before this Court is a challenge to jury instructions, without

foundational evidence to support the instruction. As such, defendant’s reliance on

the Handy and Amaral protocol is misplaced. Our analysis on the jury-instruction

issue is straightforward.

It is well-settled that “[a] defendant charged with a crime ‘is entitled to

instructions that explain those propositions of law that relate to material issues of

fact that the evidence supports.’” State v. Ortiz, 824 A.2d 473, 485 (R.I. 2003)

(quoting State v. Fetzik, 577 A.2d 990, 996 (R.I. 1990)). To that end, it is

incumbent upon the trial justice to craft and deliver jury instructions in accordance

- 18 -
with the law that applies to each issue raised at trial and the evidence before the

jury. See Cardona, 969 A.2d at 674. In the case at bar, defendant’s level of

intoxication, if any, was not a material issue raised at trial and, critically, defendant

was not charged with any alcohol-related offense. Our careful review of the

extensive witness testimony elicited at trial, and set forth herein, confirms that

there was not a scintilla of evidence that defendant was intoxicated on the night in

question. The state concedes there was no evidence of intoxication and scant

evidence that defendant was even drinking.7 The only testimony that defendant

may have consumed an alcoholic drink is Spano’s testimony that she “th[ought]

everybody had a beer[,]” which is insufficient to establish intoxication. In the

absence of evidence of intoxication or an allegation of an alcohol-related offense,

whether defendant was intoxicated and the level of intoxication was not a material

issue in this case, and it was error to instruct the jury that it was entitled to consider

it.

By permitting the jury to consider whether defendant was intoxicated, the

trial justice injected the issue into the jury’s deliberations—to defendant’s

prejudice—and invited the jury to speculate about facts not in evidence and outside

of the scope of the dispute. We have recognized the need for great caution when

introducing the issue of intoxication to juries “because of the undue potential * * *

7
The state does not contest that the intoxication instruction was superfluous, but it
contends that the mistake should be deemed harmless.
- 19 -
to cause confusion and to be unfairly prejudicial[.]” State v. Rice, 755 A.2d 137,

149 (R.I. 2000) (quoting Amaral, 109 R.I. at 386, 285 A.2d at 788). Because we

cannot conclude with confidence that the erroneous instruction did not mislead the

jury or otherwise affect the verdict, we deem this reversible error.

Double Jeopardy

After the state rested its case, defendant moved for judgment of acquittal on

several counts pursuant to Rule 29 of the Superior Court Rules of Criminal

Procedure. We reach this issue because we are directing a new trial. The

defendant argues that two separate counts of violating a no-contact order on

January 23, 2015, should merge because the counts were alleged to have taken

place on the same night, within minutes of each other.8 One violation stemmed

from defendant’s presence with Spano at the Legion in East Providence, and the

other from defendant’s presence at Spano’s home in Barrington. The defendant

argues that the two counts must merge because, even though the activity spanned

two jurisdictions, it arose from the same occurrence.

In addressing the merger of these two counts, the trial justice found that one

count of violating the no-contact order occurred “sometime on January 23rd of

8
The defendant also argued before the trial justice that count one (assault and
battery resulting in serious bodily injury) and count two (assault and battery with a
dangerous weapon) must merge because they were based on the same operative
facts. He asserted that count six (reckless driving) must also merge with count
one. Those motions are not relevant to this appeal.
- 20 -
2015 in the early morning hours in the [City] of East Providence[,]” and the other

count “occurred several minutes later * * * a distance away in the Town of

Barrington[,] * * * after the * * * violation in East Providence on the same

morning.” The trial justice, citing State v. Scanlon, 982 A.2d 1268 (R.I. 2009),

concluded that the two incidents were “separate and apart” given the “separation of

incidents by both time and space, space being geographic scope,” and denied the

motion. The defendant renewed his motion at the close of the evidence,

incorporating the same arguments; the trial justice again denied the motion. The

defendant pressed his contentions for a third time at the sentencing hearing;

however, the trial justice proceeded to sentence defendant on both counts.

Although defendant’s objection was characterized at times as merger of the

counts, we previously have held that “[m]erger is essentially a double jeopardy

argument.” State v. Grayhurst, 852 A.2d 491, 500 (R.I. 2004). Accordingly, Rule

12(b)(2) of the Superior Court Rules of Criminal Procedure controls. Rule

12(b)(2) provides, in pertinent part: “The defense of double jeopardy * * * may be

raised only by motion before trial. * * * Failure to present any such defense or

objection as herein provided constitutes a waiver thereof, but the court for cause

shown may grant relief from the waiver.” (Emphasis added.) Here, our review of

the record shows that defendant did not raise his merger/double-jeopardy

contention in a pretrial motion pursuant to Rule 12(b)(2), and he delayed moving

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to dismiss until after the state had rested its case. However, despite defendant’s

failure to file a motion under Rule 12, the trial justice nevertheless entertained

argument on three separate occasions and ultimately ruled on the question,

erroneously we conclude. Although there is no doubt that this issue was not timely

raised, we set aside the procedural infirmity and reach defendant’s substantive

argument.

“A double-jeopardy situation arises when, for example, the state charges a

defendant with two crimes arising from the ‘same act or transaction’ and neither

crime charged requires proof of an element that the other does not.” State v. Haney,

842 A.2d 1083, 1084 (R.I. 2004) (quoting State v. Davis, 120 R.I. 82, 86, 384 A.2d

1061, 1064 (1978)). In determining whether two crimes arise from the same

transaction, we consider whether there was a break or stop in the behavior before it

began in another place. See id. at 1085 (finding no double-jeopardy violation

where the defendant assaulted the victim in one town and committed a second

assault upon the victim fifteen minutes later in another town); see also Scanlon,

982 A.2d at 1278 (concluding no double-jeopardy violation where two counts of

assault arose from different acts). In this case, the two violations charged on

January 23, 2015, flowed from defendant and Spano being at the Legion together

and then arriving at Spano’s home in Barrington shortly thereafter. Because there

was no intervening act or occurrence sufficient to break the continuity of contact

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between Spano and defendant that evening, the violation traveled along with the

vehicle’s occupants from one municipality to the next.

We therefore are satisfied that the conduct that predicated the no-contact

order violation in East Providence and the conduct that resulted in the violation in

Barrington was part of a single and continuous act. Accordingly, the trial justice

erred in ruling that the two violations did not merge.

Motion for a New Trial

The defendant’s final contention on appeal is that the trial justice erred in

denying his motion for a new trial because the guilty verdicts were against the

weight of the evidence. The defendant’s motion for a new trial was not timely

filed. However, because we vacate the judgment of conviction on other grounds,

we need not reach this issue.

Conclusion

For the reasons set forth in this opinion, we vacate the judgment of

conviction and remand the case to the Superior Court for a new trial.

Justice Flaherty participated in the decision but retired before its publication.

Justices Lynch Prata and Long did not participate.

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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. Michael Narcovich.

SU-2018-0131-C.A.
(P2/15-2401ADV)
Case Number
No. 2018-132-C.A.
(P2/15-2461A)

Date Opinion Filed February 12, 2021

Justices Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.

Written By Associate Justice Maureen McKenna Goldberg

Source of Appeal Providence County Superior Court

Judicial Officer from Lower Court Associate Justice William E. Carnes, Jr.

For State:

Owen Murphy
Department of Attorney General
Attorney(s) on Appeal
For Defendant:

Lara E. Montecalvo
Office of the Public Defender

SU-CMS-02A (revised June 2020)