State v. Ramon Espinal

Supreme Court
No. 2007-38-C.A.
(P2/05-1070A)
State 	:
v.
Ramon Espinal. 	:
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 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published

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Supreme Court
No. 2007-38-C.A.
(P2/05-1070A)
State 	:
v.
Ramon Espinal. 	:
Present: Williams, C.J., Goldberg, Flaherty, Suttell, and Robinson, JJ.
O P I N I O N
Justice Robinson for the Court. 	On May 8, 2006, a jury found the defendant, Ramon
Espinal, guilty of one count of felony assault in violation of G.L. 1956 § 11-5-2. Thereafter, on
July 19, 2006, he was sentenced to a five-year suspended sentence and to a term of five years of
probation. In addition, the defendant was ordered to make restitution and to have no contact with
the victim.
The defendant has appealed to this Court, contending: (1) that the trial justice erred in
denying the motion for a new trial because the only evidence in the record tending to show that
he committed a felony assault consisted of prior inconsistent statements, which evidence
defendant contends is legally insufficient to sustain the conviction; and (2) that the trial justice
erred in denying defendant’s motion to exclude evidence regarding the fact that defendant had
apologized to one of the alleged victims.
This case came before this Court for oral argument on December 4, 2007, pursuant to an
order directing the parties to appear and show cause why the issues raised in this appeal should
not be summarily decided. After considering the record, the briefs submitted by the parties, and

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the oral arguments of counsel, we are of the opinion that cause has not been shown and that the
case should be decided at this time. 	For the reasons set forth below, we deny the appeal and
affirm the judgment of the Superior Court.
Facts and Travel
On the night of December 5, 2004, Wilton Marine and his sister, Ylonka Marine, were
together at a restaurant located on Broad Street in Providence; defendant was also at that same
restaurant. 	Mr. Marine testified that, while he was sitting with his sister at a table, he “heard a
guy behind my left side saying bad words to my sister.” Mr. Marine further testified that, when
he turned around to confront the person making comments to his sister, that person stood up and
struck him on the left side of his face before he was able to confront him. At trial, Mr. Marine
identified Mr. Espinal as the person who had struck him. Mr. Marine testified that, after he was
struck by defendant, he “blacked out” for approximately ten to thirty seconds. It was further his
testimony that, after he recovered, he quickly “drag[ged]” his sister out of the restaurant. 	Mr.
Marine further testified that, once outside the restaurant, he noticed that his sister was bleeding
from a cut on her forehead. Three days later, on December 8, 2004, Mr. Marine gave a statement
to the police. In that statement, he told the police that Mr. Espinal had assaulted him with a beer
bottle.
According to the trial testimony of Mr. Marine, at some point during the week after the
incident occurred, he met with Mr. Espinal at a mutual friend’s home. Mr. Marine testified that,
on that occasion, Mr. Espinal apologized and “said he was ashamed of what happened over there
when he saw my face.” 	Mr. Marine also testified that Mr. Espinal admitted to him that he did
strike Mr. Marine in the face, but that he did not do so with a bottle. Mr. Marine testified that,
subsequent to the meeting with defendant, he filed a victim impact statement with the Attorney

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General’s office, in which he stated that he would be amenable to an amendment of the criminal
charge to that of disorderly conduct. 1 He also stated that he would not object to defendant’s
being sentenced to only probation as punishment. It was further Mr. Marine’s testimony that he
spoke with defendant approximately ten times between the time of the December 5, 2004
incident and the time of trial.
Although Mr. Marine had informed the police in December of 2004 that Mr. Espinal had
hit him with a bottle, at trial he testified that he did not know what object had been used to hit
him at the time of the assault. On cross-examination, Mr. Marine testified that he never saw Mr.
Espinal with a beer bottle in his hand and that he did not actually see Mr. Espinal hit him with
anything.
Ylonka Marine testified at the criminal trial that, on the night of December 5, 2004, she
began arguing with a friend of defendant’s; Ms. Marine referred to defendant’s friend as “Polo,”
and she said that the argument took place when Polo started “saying too many bad words to her
[friend].” 	Ms. Marine testified that Mr. Espinal intervened and told her not to pay attention to
Polo because he was drunk. 	It was further her testimony that her brother had thought that she
and Mr. Espinal were arguing; she said that, for that reason, her brother stood up and confronted
Mr. Espinal. 	She testified that at that point Mr. Espinal hit her brother; she testified that she
thought Mr. Espinal hit her brother with his hand. She further testified that she then pushed Mr.
Espinal and that Polo then took a chair and hit her brother with it a few times. 	Ms. Marine
testified that, when she saw Polo hitting her brother with a chair, she threw a bottle at Polo and
that she was then hit in the head with something. 	It was further her testimony that she was
1 The felony assault charges against defendant are described more fully in a later paragraph
of this “Facts and Travel” narrative. It appears that in actuality those initial charges were never
amended.

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injured “because somebody hit me with a bottle,” but that she “didn’t know exactly” who hit her
with the bottle. At the trial, Ms. Marine also acknowledged that she informed the police shortly
after the incident that Mr. Espinal had struck her and her brother with a beer bottle.2
Two other persons who were present at the restaurant on the evening of December 5,
2004 testified to the effect that they did not see Mr. Espinal commit any assault.
On April 18, 2005, defendant was charged by criminal information with one count of
felony assault upon Mr. Marine and one count of felony assault upon Ms. Marine pursuant to
§ 11-5-2.3 The criminal information charged that defendant assaulted Mr. and Ms. Marine “with
a dangerous weapon, to wit, a beer bottle * * *.”
A jury trial commenced on May 5, 2006 and continued for two days. At the close of the
prosecution’s case, defense counsel moved for a judgment of acquittal pursuant to Rule 29 of the
Superior Court Rules of Criminal Procedure, asserting that the in-court testimony of the alleged
victims failed to establish that defendant committed an assault with a dangerous weapon.
Defense counsel stated: “[T]here is nobody simply that places the dangerous weapon, to wit, a
beer bottle, in [Mr.] Espinal’s hands.” In response, the prosecutor pointed out to the trial justice
that the prior inconsistent statements of the alleged victims constituted substantive evidence to
2 Both Marine siblings testified that, at the time they made their statements to the police
(which statements would become the “prior inconsistent statements” referred to later in this
opinion), the police officer asked them whether they were making a true and accurate statement,
and they both answered in the affirmative. 	They also testified that they signed the bottom of
their respective written police statements.
3 General Laws 1956 § 11-5-2(a) provides:
“Every person who shall make an assault or battery, or both, with a
dangerous weapon, or with acid or other dangerous substance, or
by fire, or an assault or battery which results in serious bodily
injury, shall be punished by imprisonment for not more than
twenty (20) years.”

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prove that Mr. Espinal assaulted the victims with a bottle. 	The trial justice denied the motion,
giving particular emphasis to the prior inconsistent statements made by the alleged victims to the
police.
At the close of the defense’s case, counsel renewed his motion for a judgment of
acquittal, reiterating his earlier argument. 	The trial justice reserved making a decision with
respect to that motion.
At the conclusion of the trial on May 8, 2006, the jury acquitted defendant of the charge
of felony assault upon Ylonka Marine, but found him guilty of felony assault upon Wilton
Marine. 	At that point, the trial justice denied defendant’s motion for a judgment of acquittal,
ruling that there was sufficient evidence to support a conviction for felony assault with respect to
Mr. Marine.
On July 19, 2006, the Superior Court sentenced defendant to a five-year suspended
sentence and to a term of five years of probation. The court also ordered that Mr. Espinal should
have no contact with Mr. Marine and that he was to make restitution.
Prior to the date of sentencing, on May 11, 2006, defendant filed a motion for a new trial
pursuant to Rule 33 of the Superior Court Rules of Criminal Procedure. 	Directing the trial
justice’s attention to the Advisory Committee’s Notes concerning Rule 801 of the Rhode Island
Rules of Evidence, defense counsel quoted the following language from the Notes:
“Because of the elevated burden of proof in criminal cases, a trial
court may properly direct a verdict of acquittal where a prior
inconsistent statement is the only source of support for the central
allegations of the charge.”
Defense counsel further argued:
“There simply was no direct testimony, other than the prior
inconsistent statement that was disavowed by both witnesses on
the stand when they talked about them, disavowed by them.

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There’s been no evidence a bottle was used at all by Mr. Espinal,
when [Mr.] Marine was struck.”
Defense counsel candidly acknowledged that he had not cited the Advisory Committee’s
Notes as support in his motions for a judgment of acquittal, and he apologized for not having
brought the above-quoted language from those Notes to the trial justice’s attention at that time.
Defense counsel explained that he had been troubled when the trial justice had relied on the prior
inconsistent statements as his basis for denying the motion for a judgment of acquittal, but that it
was only after the trial when he “actually had time to calmly reflect” that he “realized what [he]
thought was wrong with it.” 	Nevertheless, defense counsel maintained that the court could
correct errors of law made during the trial in the interest of justice when ruling on a new trial
motion.
The trial justice denied the motion based on the fact that, in addition to other evidence
that corroborated the prior statements that the alleged victims had made to police, there was
independent evidence that Mr. Marine had been struck with a bottle. In denying the motion, the
trial justice made the following finding:
“[C]ertainly, there was not only this substantive evidence [the prior
inconsistent statements], but perhaps even more, because we know
from the testimony of Wilton Marine that, in fact, there were some
marks to his body and face, especially, that would be consistent
with some kind of an object hitting him. 	There may have been
other objects involved, but certainly there was at least some
consistency between his injuries and a bottle.”
The trial justice noted that it was the role of the jury to weigh the prior inconsistent statements
against the statements made at trial and to determine which were more believable. 	He also
remarked that the prior statements were perhaps more reliable as they were made to an authority
figure and were “made closest to the incident [and] [a]s we all know, memories fade and people
start to be impacted by other things that may cause them to forget certain things.”

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Mr. Espinal filed a notice of appeal on July 28, 2006.4 On appeal to this Court, Mr.
Espinal argues: (1) that the trial justice erred in denying his motion for a new trial based on the
fact that the only evidence on the record tending to show that defendant committed a felony
assault consisted of prior inconsistent statements,5 which evidence defendant contends is legally
insufficient to sustain a conviction; and (2) that the trial justice erred in denying defendant’s
motion to exclude testimony concerning the fact that defendant had apologized to one of the
alleged victims.
Analysis
I
Motion for a New Trial
In his appeal, defendant contends that the sole evidence presented during the trial that he
committed a felony assault—i.e., that he struck Mr. Marine with a bottle—consisted of the prior
inconsistent statements made to the police by Ylonka Marine and Wilton Marine. The defendant
further argues that, because prior inconsistent statements “even when admitted substantively, are
incapable, by themselves, of constituting proof beyond a reasonable doubt,” such evidence is
legally insufficient to sustain the conviction. The defendant points to the Advisory Committee’s
Notes concerning Rule 801(d)(1)(A) of the Rhode Island Rules of Evidence as support for his
contention. Those Notes read in pertinent part as follows:
4 The judgment of conviction was not entered until September 5, 2006. 	The defendant’s
premature notice of appeal is sufficient, however, since judgment was in fact thereafter entered.
See Article I, Rule 4(b) of the Supreme Court Rules of Appellate Procedure (“A notice of appeal
filed after the announcement of a decision, sentence or order but before entry of the judgment or
order shall be treated as filed after such entry and on the day thereof.”); see also State v. Menard,
888 A.2d 57, 59 n.2 (R.I. 2005); State v. Disla, 874 A.2d 190, 192 n.2 (R.I. 2005).
5 It is undisputed that both Wilton Marine and Ylonka Marine had made statements to the
police that were inconsistent with their trial testimony as to whether or not defendant used a
bottle in committing the alleged assault.

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“It 	is 	important 	to 	distinguish 	between 	the 	substantive
admissibility of prior inconsistent statements and their sufficiency
(or weight). For example, even though admissible substantively, a
prior inconsistent statement may not be sufficient in itself to
sustain a conviction. 	Because of the elevated burden of proof in
criminal cases, a trial court may properly direct a verdict of
acquittal where a prior inconsistent statement is the only source of
support for the central allegations of the charge.” 	Advisory
Committee’s Notes to Rule 801 of the Rhode Island Rules of
Evidence, Rhode Island Court Rules Annotated 1079 (2007 ed.)
(internal citations omitted) [hereinafter Advisory Notes].
A
Standard of Review
When deciding whether to grant or deny a motion for a new trial, “the trial justice acts as
a thirteenth juror.” State v. Imbruglia, 913 A.2d 1022, 1028 (R.I. 2007); see also State v. Woods,
936 A.2d 195, 197 (R.I. 2007); State v. Abreu, 899 A.2d 473, 477 (R.I. 2006). In considering a
motion for a new trial, “the trial justice must (1) consider the evidence in light of the jury charge,
(2) independently assess the credibility of the witnesses and the weight of the evidence, and then
(3) determine whether he or she would have reached a result different from that reached by the
jury.” 	State v. Morales, 895 A.2d 114, 121 (R.I. 2006). 	“If the trial justice concludes that
reasonable minds could differ as to the result or if the trial justice reaches the same conclusion as
the jury did, the verdict should be affirmed and the motion for a new trial denied.” State v. Day,
925 A.2d 962, 984 (R.I. 2007); see also Imbruglia, 913 A.2d at 1028.
On review, we accord great weight to a trial justice’s ruling on a motion for a new trial if
he or she has articulated sufficient reasoning in support of the ruling. See Day, 925 A.2d at 983-
84; Imbruglia, 913 A.2d at 1028; State v. Hallenbeck, 878 A.2d 992, 1011 (R.I. 2005).
Accordingly, we will not overturn a trial justice’s decision with respect to such a motion unless
we determine that the trial justice committed clear error or that he or she “overlooked or

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misconceived material and relevant evidence [relating] to a critical issue in the case.” 	State v.
Bolduc, 822 A.2d 184, 187 (R.I. 2003); see also Day, 925 A.2d at 984.
B
The Waiver Contention
Before 	addressing 	the 	substantive 	issue, 	we 	must 	first 	address 	the 	prosecution’s
contention that defendant’s argument with respect to the prior inconsistent statements has been
waived. The state points out that, when defense counsel moved for a judgment of acquittal,6 he
failed to present to the trial justice the argument that prior inconsistent statements are insufficient
as a matter of law to sustain a criminal conviction. 	Accordingly, the prosecution argues that
defendant has waived that argument for the purposes of his motion for a new trial as well as on
appeal to this Court. We disagree.
Although defense counsel did not explicitly point to the language in the Advisory Notes
with respect to prior inconsistent statements when he argued in favor of acquittal, he certainly
challenged the sufficiency of the evidence at that time. Defense counsel pointed to the fact that
there was no evidence at trial, other than the prior inconsistent statements of the alleged victims,
that defendant had assaulted either alleged victim with a bottle. Defense counsel made it clear to
the trial justice that his motion for a judgment of acquittal was based on the insufficiency of the
evidence. 	During the hearing on the motion for a new trial, rather than asserting a new and
independent legal argument, defense counsel simply provided further legal support for his earlier
contention that the evidence was insufficient to sustain a conviction.
We conclude that, in the course of making his motion for a judgment of acquittal, defense
counsel adequately outlined for the trial justice the essence of his argument with respect to the
6 It will be recalled that defense counsel moved twice for a judgment of acquittal—once at
the close of the prosecution’s case and then again at the close of all the evidence.

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insufficiency of the evidence. 	In our judgment, he has preserved the issue for appeal.
Accordingly, we now proceed to address the issue of whether or not there was sufficient
evidence to sustain a conviction of felony assault.
C
Prior Inconsistent Statements
At common law, the prior inconsistent statements of a witness could not be admitted as
substantive evidence; they were only admitted in order to impeach a witness’s testimony at trial.
See, e.g., 4 Clifford S. Fishman, 	Jones on Evidence, Civil and Criminal, §26:2 at 309 (7th ed.
2000); see also State v. Coppola, 502 A.2d 802, 804 (R.I. 1985); State v. Isaac, 477 A.2d 62, 66
(R.I. 1984). 	The logic undergirding that approach was that such statements constituted
inadmissible hearsay because “when the statement was made, [it] was not (1) under oath, (2) in
the presence of the trier, or (3) subject to cross-examination.” 2 McCormick on Evidence, § 251
at 148 (Kenneth S. Broun, 6th ed. 2006).
In more recent times, however, the logic of the common law rule has been challenged.7
7 Even in its heyday, the common law rule barring the use of prior inconsistent statements
as substantive evidence was not exempt from criticism. 	For example, in Di Carlo v. United
States, 6 F.2d 364 (2d Cir. 1925), no less eminent a jurist than Judge Learned Hand cogently
observed:
“If, from all that the jury see of the witness, they conclude that
what he says now is not the truth, but what he said before, they are
none the less deciding from what they see and hear of that person
and in court. There is no mythical necessity that the case must be
decided only in accordance with the truth of words uttered under
oath in court.” Id. at 368.
Similarly, the late Justice Alfred Joslin of this Court, while not departing from the
common law rule, explicitly made the following observation in a 1967 opinion:
“[T]here 	are 	eminent 	scholars 	who 	believe 	that 	the 	earlier
statement being closer to the events is superior in trustworthiness
and should therefore have substantive value and be considered as

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Many legal scholars have focused on the utility of cross-examination of the witness as the
principal method of guarding against the fears sought to be allayed by the common law rule.
See, e.g., 3A John H. Wigmore, Evidence in Trials at Common Law, § 1018 at 996 (Chadbourn
rev. 1970) (“Here, however, by hypothesis the witness is present and subject to cross-
examination. 	There is ample opportunity to test him as to the basis for his former statement.
The whole purpose of the hearsay rule has been already satisfied.”); see also State v. Mancine,
590 A.2d 1107, 1117 (N.J. 1991).8 As one respected treatise on the law of evidence stated in an
edition published before the enactment of our Rules of Evidence in 1987:
“[T]he witness who has told one story aforetime and another today
has opened the gates to all the vistas of truth which the common
law 	practice 	of 	cross-examination 	and 	re-examination 	was
invented to explore. The two questioners will lay bare the sources
of the change of face, in forgetfulness, carelessness, pity, terror, or
greed, and thus cast light on which is the true story and which the
false. 	It is hard to escape the view that evidence of a previous
inconsistent statement, when declarant is on the stand to explain it
if 	he 	can, 	has 	in 	high 	degree 	the 	safeguards 	of 	examined
testimony.” 	McCormick’s Handbook of the Law of Evidence, §
251 at 603-04 (E. Cleary 2d ed. 1972).
An additional consideration that militated against continued adherence to the common
law rule is “the general proposition that recency aids memory;” in accordance with that “general
proposition,” prior statements may possess a “superior trustworthiness.” 2 McCormick on
Evidence, § 251 at 149. Prior statements are always made “nearer and usually very much nearer
to the event than is the [in court] testimony [and] [t]he fresher the memory, the fuller and more
accurate it is.” Id.
proof 	of 	the 	facts 	which 	appear 	therein 	* 	* 	*.” 	State 	v.
Quattrocchi, 103 R.I. 115, 123, 235 A.2d 99, 104 (1967) (citing
scholarly publications).
8 As to the relationship between well-conducted cross-examination and the assessment of
credibility by the finders of fact, see generally State v. Tiernan, 941 A.2d 129 (R.I. 2008).

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In light of the foregoing considerations, the majority of American jurisdictions, including
our own, have moved away from the common law rule. See Annotation, Use or Admissibility of
Prior Inconsistent Statements of Witness as Substantive Evidence of Facts to Which They Relate
in Criminal Case—Modern State Cases, 30 A.L.R. 4th 414, 426-28 (1984 & Supp. 2007).
Pursuant to Rule 801(d)(1)(A) of the Rhode Island Rules of Evidence,9 prior inconsistent
statements may be admitted as substantive evidence “as long as the declarant testifies at trial and
is available for cross-examination.” 	State v. Pusyka, 592 A.2d 850, 853 (R.I. 1991); see also
State v. Bettencourt, 723 A.2d 1101, 1111 (R.I. 1999); State v. Morey, 722 A.2d 1185, 1191
(R.I. 1999); State v. Doctor, 644 A.2d 1287, 1290 (R.I. 1994). 	We observe, however, that
pursuant to Rule 801(d)(1)(A), a trial justice’s determination as to whether or not to admit one or
more prior inconsistent statements as substantive evidence in the course of the trial is separate
and distinct from the determination as to whether or not the statement or statements suffice in
and of themselves as the basis upon which the trier of fact may properly render a verdict.10
We return now to the above-quoted language from the Advisory Notes concerning Rule
801. Even if that language does accurately state what the law in this jurisdiction should be with
respect to the sufficiency for conviction of a bald prior inconsistent statement without more, an
9 Rule 801(d) of the Rhode Island Rules of Evidence provides in pertinent part:
“(d) Statements Which Are Not Hearsay. 	A statement is not
hearsay if:
“(1) Prior Statement by Witness. The declarant testifies at the
trial or hearing and is subject to cross-examination concerning the
statement, 	and 	the 	statement 	is 	(A) 	inconsistent 	with 	the
declarant’s testimony* * * .”
10 We are in complete agreement with the Advisory Committee’s Note concerning Rule
801(d) to the effect that “[t]he important point is not to confuse the decision to admit such
statements substantively with their sufficiency to establish the point for which they are offered.”
Advisory Notes to Rule 801 at 1079.

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issue upon which we need not and do not rule today,11 we conclude that in this case there is
sufficient evidence in the record to sustain a conviction for felony assault.
First, as the trial justice noted, the injuries sustained by Mr. Marine were consistent with
being struck by a bottle. 	This not only corroborates the prior statements of both Wilton and
Ylonka Marine, but it constitutes additional independent evidence that Mr. Espinal committed a
felony assault.
In addition, there is ample evidence that corroborates the substance of the prior
inconsistent statements of both Marine siblings. 	First, both statements were made to a police
officer and were consistent with each other in that both Wilton Marine and Ylonka Marine said
that defendant had used a bottle to strike Mr. Marine. 	There was also substantial evidence
tending to prove the existence of a friendly relationship between defendant and the Marine
siblings and the occurrence of several meetings between defendant and Wilton Marine; those
factors may have “clouded” or influenced the victims’ memories and eventual testimony
concerning what occurred at the Broad Street restaurant on December 5, 2004. 	As the trial
justice noted:
11 Courts in other jurisdictions have reached differing conclusions as to this issue. Compare
United States v. Orrico, 599 F.2d 113, 119 (6th Cir. 1979) (adopting a per se rule against the use
of a prior inconsistent statement as the sole substantive evidence supporting a conviction);
Brower v. State, 728 P.2d 645, 648 (Alaska Ct. App. 1986) (ruling that prior inconsistent
statements of a witness which are repudiated at trial are insufficient, standing alone, to permit a
conviction); and State v. White Water, 634 P.2d 636, 639 (Mont. 1981) (holding that a
conviction cannot rest solely on prior inconsistent statements); with State v. Newsome, 682 A.2d
972, 983-84 (Conn. 1996) (rejecting a per se rule and requiring some degree of corroboration
before a prior inconsistent statement will be found to be sufficiently reliable to support a
conviction); State v. Mancine, 590 A.2d 1107, 1117-19, 1119 (N.J. 1991) (rejecting a per se rule
and ruling that a prior inconsistent statement alone is sufficient to uphold a conviction “provided
that the statement was made under circumstances supporting its reliability and the defendant has
the opportunity to cross-examine the declarant”); and State v. Robar, 601 A.2d 1376, 1380 (Vt.
1991) (adopting the approach employed by the New Jersey Supreme Court in Mancine).

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“It’s possible that memories do become clouded. 	And as they
acknowledged, they were friendly with the defendant; perhaps to
some extent that friendship, the fact that they were willing to
essentially have this case be decided with the probationary period,
even a disorderly conduct[,] might cause them to some extent [to]
not fully remember what happened that night.”
Additional indicia of reliability and credibility may be found in the fact that the statements by the
Marine siblings were made closer to the time of the incident in question than their in-court
testimony. 12 The alleged victims also made the statements to an authority figure—a police
officer—and thus those statements were arguably more reliable than if the statements had been
made to a friend or other interested party. In denying the motion for a new trial, the trial justice,
pointing to the reliability of the prior statements, observed:
“As we all know, memories fade and people start to be impacted
by other things that may cause them to forget certain things. * * *
[T]he advantage, as far as credibility, believability is concerned, is
that you speak right after the incident to an authority, there’s a
strong possibility that that’s a better recollection of what happened
that night than a year-and-a-half later.”
This is quite definitely not a case where the only evidence supporting the central
allegations of a charge consisted of a prior inconsistent statement alone. In the instant case, there
was independent evidence that Mr. Marine had been hit with a beer bottle (i.e., the physical
injuries he sustained), and the prior inconsistent statements of both Wilton and Ylonka Marine
were corroborated by other evidence tending to strengthen the reliability and credibility of the
earlier statements. 13
12 It will be recalled that the incident that resulted in the instant criminal prosecution
occurred in December of 2004, whereas the trial did not begin until May of 2006.
13 We observe that there were two prior inconsistent statements that placed a beer bottle in
the hands of defendant. Further, those two statements were consistent with each other.

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For these reasons, we perceive no error in the trial justice’s denial of the motion for a new
trial.
II
Motion to Exclude Evidence
On appeal, defendant also contends that the trial justice erred in denying his motion to
exclude evidence relative to an apology made by defendant to Mr. Marine. 	Specifically,
defendant points to his statements to Mr. Marine to the effect that he was ashamed of what had
happened and that he “didn’t mean to do that to [Mr. Marine’s] face.” Defense counsel contends
that, in violation of Rule 16 of the Superior Court Rules of Criminal Procedure,14 the prosecutor
withheld information concerning the alleged apology; he also represents that the defense was not
made aware of the statements until the night before the criminal trial began.
14 Rule 16 of the Superior Court Rules of Criminal Procedure provides in pertinent part:
“(a) Discovery by Defendant. Upon written request by a defendant,
the attorney for the State shall permit the defendant to inspect or
listen to and copy or photograph any of the following items within
the possession, custody, or control of the State, the existence of
which is known, or by the exercise of due diligence may become
known to the attorney for the State:
“(1) 	all 	relevant 	written 	or 	recorded 	statements 	or
confessions, signed or unsigned, or written summaries of oral
statements 	or 	confessions 	made 	by 	the 	defendant, 	or 	copies
thereof;
“* * *
“(6) a written summary of testimony that the State intends
to use * * * during its case-in-chief at trial, which describes the
witness’ opinions, the bases and reasons for those opinions, and the
witness’ qualifications * * *.
“* * *
“(h) 	Continuing 	Duty 	to 	Disclose. 	If, 	subsequent 	to
compliance with a request for discovery or with an order issued
pursuant to this rule, and prior to or during trial, a party discovers
additional 	material 	previously 	requested 	which 	is 	subject 	to
discovery or inspection under this rule, he or she shall promptly
notify the other party of the existence thereof.”

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A
Standard of Review
The standard of review applicable to a trial justice’s determination of whether or not there
was a Rule 16 violation is extremely narrow: we will overturn a trial justice’s ruling only if he
or she has committed clear error. See State v. Motyka, 893 A.2d 267, 280 (R.I. 2006); State v.
Briggs, 886 A.2d 735, 755 (R.I. 2005).
When considering the proper sanctions for nondisclosure of discovery material, there are
four relevant factors that a trial justice is called upon to examine: “(1) the reason for
nondisclosure, (2) the extent of prejudice to the opposing party, (3) the feasibility of rectifying
that prejudice by a continuance, and (4) any other relevant factors.” 	State v. Coelho, 454 A.2d
241, 245 (R.I. 1982); see also State v. Horton, 871 A.2d 959, 970 (R.I. 2005); State v. Pona, 810
A.2d 245, 248 (R.I. 2002). Because the trial justice is in the best position to determine whether
or not to impose sanctions for noncompliance with discovery obligations, this Court will not
overturn a trial justice’s ruling on the appropriate sanctions absent a clear abuse of discretion.
See Pona, 810 A.2d at 248; see also Horton, 871 A.2d at 970.
The fact that defense counsel did not receive the information about defendant’s apology
until the night before defendant’s criminal trial began is uncontroverted. Significantly, however,
the prosecution has at all relevant times represented that, as soon as it was made aware of the
apology, it provided that information to defense counsel; the credibility of that representation has
not been challenged.
Two days prior to the start of trial, defense counsel filed a motion in limine, in which he
sought to preclude the state from introducing evidence that payments had been made by

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defendant to the alleged victims.15 After that motion was filed, the prosecution set about
conducting further interviews with the alleged victims in order to become better informed “as to
what happened regarding the payment and regarding the meetings with the defendant.” It was at
that time, as the prosecution has consistently represented, that the information about the apology
came to light and that it shared the information with defense counsel.16
In making his determination that there was no prejudice to defendant as a result of the
late disclosure, the trial justice agreed that the information came to light late in the discovery
process, but he reasoned that, because defense counsel was “aware of the compromise [i.e., the
monetary payments], it would almost seem * * * that [defendant] would be aware there had to be
conversations.” 	The trial justice accepted the prosecution’s explanation that it did not delay in
providing the information to defense counsel, but rather only became aware of the apology just
shortly before trial.
In light of the factors considered by the trial justice and his reasoning with respect to
same, we conclude that he most assuredly did not abuse his discretion when he decided not to
sanction the prosecution for the late disclosure. 	Indeed, in view of the above-described
circumstances, we are hard-pressed to perceive any Rule 16 violation, let alone one calling for a
sanction. 	For these reasons, we affirm the ruling of the trial justice with regard to the alleged
Rule 16 violation.
15 The defendant’s motion in limine was granted.
16 We note that defense counsel chose not to move for a continuance after he became aware
of the information concerning an apology made by defendant. Such a motion, if granted, would
have afforded counsel an opportunity to alter his trial strategy in light of the apology. See State
v. Briggs, 886 A.2d 735, 757 n.10 (R.I. 2005).

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Conclusion
For the reasons set forth in this opinion, we deny the appeal and affirm the judgment of
the Superior Court. The papers in the case may be remanded to the Superior Court.

- 1 -
COVER SHEET
TITLE OF CASE: 	State v. Ramon Espinal
DOCKET SHEET NO.: 	2007-38-A
COURT: 	Supreme
DATE OPINION FILED: 	March 28, 2008
Appeal from
SOURCE OF APPEAL: 	Superior 	County: Providence
JUDGE FROM OTHER COURT: 	Judge Gilbert V. Indeglia
JUSTICES: 	Williams, CJ., Goldberg, Flaherty, Suttell, and Robinson, JJ.
WRITTEN BY: 	Justice William P. Robinson, III, for the Court
ATTORNEYS:
For Plaintiff: 	Aaron L. Weisman, Esq.
ATTORNEYS:
For Defendant: 	Janice M. Weisfeld, Esq.