Justice ROBINSON for the Court.
On April 5, 2012, a Providence County Superior Court jury found the defendant, Elizabeth Mendez, guilty of possession of more than five kilograms of marijuana in violation of G.L.1956 § 21-28-4.01.2(a)(5).
On appeal, defendant contends: (1) that the trial justice erred in his supplemental jury instruction given in response to a question posed by the jury; (2) that the trial justice erred in denying defendant's motion for a new trial; and (3) that defendant's twenty-year sentence is violative of Article 1, Section 8 of the Rhode Island Constitution. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.
On January 20, 2011, defendant was charged by indictment with one count of possession of more than five kilograms of marijuana in violation of § 21-28-4.01.2(a)(5), (b) (Count 1); one count of conspiracy to possess more than five kilograms of marijuana in violation of § 21-28-4.08 (Count 2); and one count of possession of methylenedioxymethamphetamine (MDMA)
The defendant's criminal trial began in March of 2012, and the evidence presented therein included testimony from Trooper Marc Alboum of the Rhode Island State Police, Officer Diego Mello of the East Providence Police Department, Officer Raymond Reall of the North Providence Police Department, co-defendant Osvaldo German, and Jennysa Ayala, a friend of defendant who was present at the apartment of defendant on the night when defendant was later arrested.
The state began its case with the testimony of Trooper Alboum of the Rhode Island State Police. Trooper Alboum testified that, while he was on patrol in his cruiser on the night of July 26, 2010, he
Next, Trooper Alboum testified that, while he was standing in the Walgreens parking lot, he observed a black Nissan Maxima drive past. Trooper Alboum testified that he could see that the driver of the Nissan Maxima was a woman and that in the car there were two male passengers, both dark-skinned and wearing white T-shirts. Trooper Alboum also testified that the driver of the Nissan Maxima was "staring straight ahead" as she passed the Walgreens parking lot and that her two passengers were "slouching down," while also "looking straight ahead." Trooper Alboum further testified that the behavior of the occupants of that car stood out in contrast to what was transpiring in the other cars passing by, in that the occupants of the latter cars were turning their heads in the direction of what Trooper Alboum testified was a "large police presence" in the parking lot.
Trooper Alboum then testified that, after observing the occupants of the Nissan Maxima, he proceeded to "run an inquiry" on the vehicle's license plate and discovered that the license plate affixed to the Nissan Maxima "came back [registered to] a 2000 silver Toyota." Trooper Alboum stated that "the registration [did not] match the vehicle." It was Trooper Alboum's testimony that, after that discovery, he started his cruiser and began to follow the Nissan Maxima. He further testified that he "clock[ed]" it as traveling at 45 miles per hour in a 25 mile per hour zone. Trooper Alboum stated that the Nissan Maxima proceeded to enter Route 146 and that, as it did so, it entered "right behind [another] vehicle, nearly striking it." Trooper Alboum testified that, as he followed the Nissan Maxima onto Route 146, he activated his lights and siren; he added that the Nissan Maxima nonetheless continued without stopping. Trooper Alboum stated that it was only after another police cruiser passed the Nissan Maxima in the high speed lane, positioned itself in front of the vehicle, and slowed down, that the Nissan Maxima slowed and eventually stopped.
Trooper Alboum then testified that, after exiting his cruiser, he approached the Nissan Maxima and that, as he did so, he could smell "the odor of fresh marijuana" emanating from the back of that vehicle. He further testified that he approached the driver's side of the car and asked all of the occupants to "put their hands up;" Trooper Alboum stated that he made this request in order to "see everyone's hands to make sure they didn't have any weapons in their hands * * *." He testified that, although all of the occupants initially complied, he observed that Mr. Espinal, the passenger seated behind the driver's seat, was "starting to put his hands down."
Trooper Alboum testified that he then returned to the Nissan Maxima and approached the driver's side. It was Trooper Alboum's testimony that, at that point in time, he could detect the odor of burnt marijuana coming from inside the vehicle. He testified that he asked defendant, the driver of the car, for her license and that, when she began to reach toward the floor of the car, he asked her to step out of the car.
Trooper Alboum further testified that, after defendant stepped out of the car, he "sent her * * * towards the other troopers;" he added that he did not handcuff her himself, because his "set of handcuffs was on Mr. Espinal."
Trooper Alboum stated that, in the course of the more thorough search, he opened the trunk of the Nissan Maxima and immediately observed "two rectangular objects that had a clearish green plastic baggy on it [sic]." In addition, Trooper Alboum noted that the odor of fresh marijuana "increased * * * significant[ly]" once he had opened the trunk. According to Trooper Alboum's testimony, a complete search of the trunk yielded six such "rectangular objects" (which he described as "bales") covered in "greenish clear cellophane wrap." Later testimony at trial by one of the state's forensic scientists was to the effect that the bales contained marijuana and that the total weight of the marijuana was approximately thirty kilograms.
Trooper Alboum further testified that, on July 27, 2010 (the morning after the
Trooper Alboum first testified concerning the contents of Mr. German's unsigned statement. He stated that, in the course of his conversation with Mr. German about the events leading to defendant's arrest, Mr. German told him that defendant had come and picked up Mr. Espinal and Mr. German around 6 or 7 p.m. on what would be the night of the arrest. Trooper Alboum then testified that Mr. German said that a friend named Felix had called and told Mr. German that he had marijuana and wanted to know if Mr. German could "get rid of it." Trooper Alboum further testified that Mr. German also told him that Felix then said that he had "something for Elbe"
It was Trooper Alboum's further testimony that he asked Mr. German why defendant would be the one to "get rid" of the marijuana and that Mr. German replied: "Because she [(Ms. Mendez)] is the one that sells it." Trooper Alboum stated that Mr. German said that defendant was "fully aware" that there was a large amount of marijuana in her car on the night of her arrest. Finally, Trooper Alboum testified that, when he asked Mr. German whether he had anything to add to his first statement, Mr. German stated: "It was not my weed. It was Elizabeth's weed." Trooper Alboum testified that Mr. German refused to sign anything at that point in time.
Finally, Trooper Alboum testified that, after Mr. German opted not to sign the first statement (the unsigned statement), Trooper Alboum prepared another statement (the signed statement) in which he asked Mr. German the same series of questions, and Mr. German replied with exactly the same answers, with one exception. Trooper Alboum explained that, as he finished preparing the signed statement, he again asked Mr. German whether he had anything to add, and Mr. German replied: "The marijuana was all mine, and I am taking the hit for it all." Trooper Alboum stated that, after the just-quoted assertion by Mr. German as to the marijuana being "all his" was added, Mr. German signed the second statement.
Officer Diego Mello of the East Providence Police Department also testified for the state. He testified that, on the day of defendant's arrest, he was working as the Vice Unit sergeant in the North Main Street area of Providence and that he responded to a BOLO
Officer Mello further testified that he stayed at the scene and continued to pay attention to the ambient activity; in particular, he said that he could observe the cars that were passing by and that he "looked in every one." He indicated that it was a "sunny summer day" and that he could see the people inside the passing cars. He also testified that he was "able to see which way the drivers of those [passing] cars were looking[.]" Officer Mello added that there was a "heavy police presence" at the Walgreens parking lot; he specified that there were "about 12 police officers, [and] maybe a half dozen police cars [with] their lights on * * *."
Officer Mello next testified that he observed a Nissan Maxima pass by the parking lot and that he could see its occupants. He noted that the passengers were Hispanic males, matching the description in the BOLO that he had heard earlier. It was Officer Mello's testimony that the occupants of the Nissan Maxima acted in a way that "raised a major red flag" for him; he said that, as the Nissan Maxima approached the Walgreens parking lot, in which there was the above-described "heavy police presence," the occupants "were just fixated straight ahead." Officer Mello elaborated on this observation as follows:
Officer Mello proceeded to testify that he observed Trooper Alboum and Officer Reall depart to follow the Nissan Maxima, while he stayed at the scene and participated in a search of the Kia minivan.
Officer Raymond Reall of the North Providence Police Department also testified for the state. He stated that, on the night of defendant's arrest, he heard a
Officer Reall next testified that, after making that observation, he entered his police cruiser and attempted to catch up to the just-referenced vehicle so that he could stop and question its occupants. His testimony mirrored that of Trooper Alboum as he recounted the details of his pursuit of the Nissan Maxima and his eventual success at pulling the Nissan Maxima over into the breakdown lane of Route 146.
Officer Reall stated that, once the Nissan Maxima was on Route 146, it continued to travel "at a high rate of speed;" he added that he "went into the left lane * * * passed Trooper Alboum's car, passed the [Nissan] Maxima, and got in front of the [Nissan] Maxima and slowed it down * * *." He said that his cruiser and the Nissan Maxima "veered off into the breakdown lane," eventually coming to a stop. Officer Reall testified that he and Trooper Alboum exited their cruisers to approach the Nissan Maxima. It was Officer Read's testimony that he approached the Nissan Maxima on the passenger side and told the front-seat passenger and the other occupants of the car to "put their hands on the roof." Officer Reall testified that he later learned that the name of the front-seat passenger was Osvaldo German.
Officer Reall proceeded to testify that he took "the passenger [(Mr. German)] out" of the Nissan Maxima and searched him. He stated that, upon searching Mr. German, he discovered marijuana in Mr. German's front pocket.
Mr. German, one of the co-defendants, also testified as a witness for the state. He stated that defendant is the mother of his son, who was about two years old at the time of trial. Mr. German further testified about the events that took place on the night of defendant's arrest — July 26, 2010. Specifically, Mr. German testified that, on that night, he was a passenger in defendant's black Nissan Maxima; he said that they were traveling on Charles Street towards Route 146 and that, when the car reached the highway, he observed "cops behind [them] with the lights on." It was Mr. German's testimony that the Nissan Maxima eventually stopped on Route 146 because they were "getting pulled over." Mr. German stated that law enforcement officers approached the Nissan Maxima "with their guns drawn telling [him and the other occupants of the car] to get out, put [their] hands up." Mr. German further testified that the law enforcement officers "took [them] out of the car" and that he was searched — during which search "a small amount of weed" was discovered. It was Mr. German's testimony that, after that discovery, law enforcement officers "put the cuffs" on him and then put him into a police car.
Mr. German proceeded to testify concerning what took place at the Rhode Island State Police barracks, where he was taken after his arrest. He stated that, on the night of July 26, "there [were] a whole bunch of cops there [at the barracks] that [were] asking me questions;" he added, however, that he "didn't answer them."
Mr. German went on to testify that, on the morning of the next day, July 27, he was brought into a room and was asked "more questions." In particular, when asked whether he recalled speaking with any police officers, Mr. German testified that he thought he remembered speaking to Trooper Alboum, whom he identified sitting at counsel table,
Mr. German next stated that he did not remember what he and the officer talked about, but he added that he did remember that the officer "was typing" during their discussion. However, Mr. German added that the officer "wasn't typing what I was saying." Mr. German also stated that the officer "was just asking questions." When asked what the officer's questions "dealt with," Mr. German responded: "[F]irst they went from a van, then they went [to] the weed." The prosecutor's questions then turned to the details of "the weed," asking Mr. German: "And the five kilograms of weed, what did the [officer] ask you about it?" In response to that question, Mr. German testified that, when the officer had asked him whether the weed was his, he responded in the affirmative. However, when the prosecutor asked whether claiming the weed as his own was what Mr. German had "first told" the officer, Mr. German testified that he did not know what he first told the officer.
Yet when asked by the prosecutor about the second statement (the signed statement), which contained the above-referenced assertion by Mr. German that "the weed was all [his]," Mr. German testified that he did not remember what he (Mr. German) was talking about at that time. In addition, when asked by the prosecutor: "[I]s that exactly what you said, `The weed's all mine'?" Mr. German responded: "I don't remember what I said." Mr. German's testimony continued in that vein, with Mr. German frequently answering "I don't remember" to questions with respect to his discussion with the officer and with respect to the unsigned and signed statements.
Mr. German was then given the opportunity to review his signed statement, and he thereafter stated that he remembered "saying that the marijuana's all [his] and [he'll] take full responsibility for everything," but that he "didn't say [he'll] take the hit for it all." In Mr. German's testimony, he characterized the difference between what he said and what was reflected in the signed statement as "the same issue with the other paper [the unsigned statement], why [he] didn't sign; because [the officer] was typing, [Mr. German would] say one thing, [and the officer would] put another."
With respect to the events of the night of defendant's arrest, Mr. German testified that it was he who put the marijuana in the car and that, as far as he knew, defendant "didn't know anything about it." In addition, when engaged in a colloquy with the prosecutor concerning the details of his plea agreement, Mr. German indicated that he had believed at the time that he entered into the agreement that Ms. Mendez "was out of the indictment;" he said that he "would have signed [the plea agreement] as long as the charges [were] dropped against her." The following exchange between the prosecutor and Mr. German is in the same vein:
In sum, Mr. German's testimony at trial indicated that he remembered very little about the conversations that resulted in the unsigned and signed statements and that the only thing he remembered was stating that he would take "full responsibility" for the marijuana.
Following the conclusion of the state's case in chief, defense counsel moved, pursuant to Rule 29 of the Superior Court Rules of Criminal Procedure, for a judgment of acquittal, in light of what defense counsel characterized as the "inconsistent
The defense then put on its case. Jennysa Ayala was the sole witness for the defense. It was her testimony that she was with defendant at an apartment at 99 Rugby Street in Providence "all day" on the day of defendant's arrest. Ms. Ayala did testify, however, that defendant left the Rugby Street apartment that evening and did not return at all thereafter. She stated that, "a little bit before 8 o'clock at night," defendant had been preparing a meal when she received a phone call and then left the apartment, leaving her three-month-old son in Ms. Ayala's care for the evening. Following Ms. Ayala's testimony, the defense rested.
On April 4, 2012, after closing arguments were delivered by both sides, the trial justice instructed the jury. Those instructions included the following language relative to the crime of possession of a controlled substance:
Defense counsel raised no objection to the portion of the instructions quoted above nor to any other aspect of the jury instructions given during that initial charge to the jury.
After having been instructed, the jury deliberated for approximately two hours
Defense counsel objected to the proposed supplemental instruction, arguing that the trial justice should read to the jury only the first seven words thereof, without going any further — such that the instruction would read as follows: "You need to consider the Court's instructions." The trial justice considered defense counsel's objection, but ultimately rejected it; and he proceeded to give the supplemental instruction as he had originally proposed. The jury then returned to its deliberations.
The next morning, April 5, before the jury reconvened, defense counsel requested that the trial justice give an alternative instruction in response to the jury's question; counsel contended that his newly minted alternative instruction was preferable to the supplemental instruction that had been given by the trial justice the previous day. Specifically, defense counsel requested that the jury be instructed as follows:
The state objected, pointing to the fact that defense counsel had previously had the opportunity to review the court's jury instructions and the fact that the supplemental instruction simply referred back to the original jury instructions, which were not objected to. The trial justice declined defense counsel's alternative instruction, and the jury continued its deliberations.
Later on April 5, the same day that defense counsel had requested that the trial justice give the alternative instruction, the jury returned its verdict. The defendant was found guilty on the possession of marijuana charge (Count 1) and not guilty on the charges of conspiracy to possess marijuana (Count 2) and possession of MDMA (Count 4). Subsequently, the trial justice sentenced Ms. Mendez to twenty years of imprisonment, with five years to serve and fifteen years suspended with probation.
On April 13, 2012, defendant moved for a new trial pursuant to Rule 33 of the Superior Court Rules of Criminal Procedure. In her written submission to the trial court, she contended as follows:
At the hearing on the motion, defense counsel focused on the supplemental instruction that the trial justice gave in response to the jury's question, stating that the motion for a new trial was brought "first and foremost * * * over the concern with regard to the jury instruction." Defense counsel contended, inter alia, that the jury "may have been somewhat confused" with respect to the supplemental instruction given in response to the question concerning possession. Counsel pointed to the fact that the jury convicted defendant of possessing over five kilograms of marijuana while acquitting her of conspiracy to commit the same crime. He argued that, if the jury believed the evidence that was consistent with finding defendant guilty of the underlying crime of possession, it would not have been possible for the jury to simultaneously acquit her of conspiracy to commit that crime. Defense counsel contended that the court's supplemental instruction caused the jury to think that "as long as drugs were in [defendant's] car or found in that car, that's it," meaning that the jury would be required to find defendant guilty of the possession charge in spite of their findings with respect to the conspiracy charge. In addition, defendant argued that this Court's decision in State v. Berroa, 6 A.3d 1095 (R.I.2010), was authority for the proposition that the alternative instruction proposed by defendant was in fact the correct statement of the law as it related to possession (and presumably would have dispelled the jury's confusion). In the end, however, the trial justice denied the motion for a new trial. We shall in due course describe more fully the reasoning which underlay that denial.
On appeal, defendant contends: (1) that the trial justice erred in failing to provide the alternative instruction, which defendant contends would have been the "correct" supplemental instruction (as opposed to the supplemental instruction that was actually given); (2) that the trial justice erred in denying defendant's motion for a new trial; and (3) that defendant's twenty-year sentence is violative of Article 1, Section 8 of the Rhode Island Constitution. We shall address those arguments in the same order, referencing the applicable standard of review where necessary.
The defendant first argues on appeal that the trial justice erred in declining to give the alternative instruction that defendant proposed on the morning of April 5. The state responds that the trial justice did not err in this regard because a jury is presumed to understand instructions as given; the state further contends that, in view of the fact that the jury did not seek further clarification after having heard the trial justice's supplemental instruction, the jury should be presumed to have understood. For the reasons set forth below, we hold that defendant has waived any argument which she may have had relative to the trial justice's declining to give the alternative instruction because that argument was not raised in a timely
We have long abided by the principle that we may not "consider[] at the appellate level issues not properly presented before the trial court." State v. Merida, 960 A.2d 228, 236 (R.I.2008); see also State v. Clements, 83 A.3d 553, 564 (R.I. 2014); State v. Gomes, 881 A.2d 97, 113 (R.I.2005). That principle, commonly referred to as the raise or waive rule,
With respect to objections to jury instructions in particular, this Court has "consistently been exacting about applying the raise or waive rule." Ferris Avenue Realty, LLC v. Huhtamaki, Inc., 110 A.3d 267, 285 (R.I.2015); see also King v. Huntress, Inc., 94 A.3d 467, 483 (R.I.2014) (describing this Court as being "especially rigorous in the application of the [raise or waive] rule when considering objections to jury instructions") (internal quotation marks omitted); State v. Crow, 871 A.2d 930, 935 (R.I.2005) ("[I]f an objection to a jury instruction is not effectively raised below, it is waived on appeal.").
In addition, our law is demanding as to when an objection to a jury instruction should be made: pursuant to Rule 30 of the Superior Court Rules of Criminal Procedure, "[n]o party may assign as error any portion of the charge or omission therefrom unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the party's objection." (Emphasis added.) Accordingly, we have emphasized that "[c]ounsel's objection to the jury instruction must be made before the jury retires because once alerted to the perceived error in the instruction that has been given, the trial justice has an opportunity to cure the alleged deficiencies before the jury retires for deliberations." State v. Viveiros, 45 A.3d 1232, 1243-44 (R.I.2012) (emphasis added) (internal quotation marks omitted); see also State v. Palmer, 962 A.2d 758, 766 (R.I.2009); cf. DiFranco v. Klein, 657 A.2d 145, 147 (R.I.1995) (discussing parallel rule of civil procedure and describing the rationale for the rule as "allow[ing] the trial justice an opportunity to make any necessary corrections to his or her instructions before the jury begins its deliberations") (emphasis added). We note that the foregoing principles are equally applicable in the context of a trial justice giving a jury a supplemental instruction as distinguished from the initial charge to the jury. See, e.g., State v. Vega, 789 A.2d 896, 898 (R.I.2002) ("After giving both of these supplemental instructions, the trial justice asked the attorneys whether they had any objections to these charges. Both counsel replied in the negative and they also failed to suggest any different or supplemental instructions. * * * [B]y failing to object at trial to the above-referenced instructions, [the] defendant has failed to preserve any alleged inadequacies or errors relating to these supplemental instructions and he is precluded from raising such arguments for the first time on appeal"). We now turn to the instances in which defendant claims that she has properly preserved her objections.
The defendant first asserts that the alternative instruction was correct and that the jury deserved to have it presented to them; in addition, she contends that it "was preserved for direct appeal by [defense] counsel's timely objection," in the
The defendant argues that our opinion in State v. Fetzik, 577 A.2d 990 (R.I.1990), supports her contention that her objection (which came in the form of an alternative instruction) which was articulated on the day after the trial justice gave his supplemental instruction was sufficient to preserve the issue for appellate review. However, we are not persuaded by that argument. In Fetzik, 577 A.2d at 992-93, the defendant proposed an instruction with respect to the defendant's physical condition at the time of the crime to the trial justice before the trial justice charged the jury, albeit after the close of evidence. Pursuant to Rule 30 of the Superior Court Rules of Criminal Procedure, "when a defendant relies upon an affirmative defense or justification or a matter in mitigation he or she must advise the court no later than the close of evidence." Fetzik, 577 A.2d at 992 (emphasis added). However, we stated in Fetzik that, "[a]lthough the instruction was technically late, the trial justice appears to have had an adequate opportunity to consider this instruction" regarding the defendant's physical condition, especially in light of extensive testimony documenting said condition, and that "[t]he requested instruction was one that could easily have been included with those that were given." Id. at 993. Those circumstances are clearly distinguishable from those at issue in the instant case. Here, the trial justice had no opportunity to consider the substance of defense counsel's alternative instruction because the proposal did not arrive until the next morning, after the supplemental instruction had been given and the jury had resumed deliberations. For similar reasons, defendant's alternative instruction could not have easily been included with the supplemental instruction. Simply put, in the instant case, the objection (in the form of the alternative instruction) was not timely, and our opinion in Fetzik does not support the contention that the issue was somehow preserved.
The defendant argues that, even if the argument relative to the proposed alternative instruction was not preserved during the actual trial, it has been "preserved for
Third, defendant claims that the issue is "properly before the Court as the State failed to object to the timing of counsel's objection." We are not persuaded by this argument. The state did not need to present an objection to defendant's untimely proposal for an alternative instruction where the trial justice explicitly ruled against giving that instruction; defendant's argument in this regard is meritless, and we summarily reject it.
Finally, we note that a trial is one-directional in nature; it moves forward from beginning to end. And essential to the trial process is the requirement that objections be made at the time when an event occurs that counsel deems objectionable. See Rule 51 of the Superior Court Rules of Criminal Procedure ("Formal exceptions to rulings or orders of the court are unnecessary; but for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which the party desires the court to take or his or her objection to the action of the court * * *.") (emphasis added); see also In re Jazlyn P., 31 A.3d 1273, 1280 (R.I.2011) ("An issue is properly preserved — and, as a result, may be raised before this Court on appeal — if the litigant's objection was both' timely and appropriate.'") (emphasis added) (quoting State v. Brown, 9 A.3d 1240, 1245 (R.I. 2010)); see generally Thomas v. Ross, 477 A.2d 950, 953 (R.I.1984) ("Trial on an installment-plan basis cannot be countenanced * * *."). In addition, it is required that the objecting party not only voice the objection contemporaneously with the perceived error, but it is further required that all grounds for the objection be brought to the attention of the presiding judicial officer at that time. See State v. Hallenbeck, 878 A.2d 992, 1007 (R.I. 2005); see also State v. Figuereo, 31 A.3d 1283, 1289 (R.I.2011). In the instant case, as soon as the question posed by the jury had been addressed by the trial justice, the jury continued deliberating. For the court on the next morning to have given a further supplemental instruction might well have unduly been perceived by the jurors as a sort of red flag, causing them to infer that the trial justice was imparting some sort of cryptic message.
Accordingly, we hold that defendant has failed to preserve her objection to the supplemental jury instruction.
The defendant next argues on appeal that the trial justice erred when he denied her motion for a new trial. She contends: (1) that the trial justice erred in crediting Mr. German's unsigned statement, which was testified to by Trooper Alboum; and (2) that her conviction was based on insufficient evidence. Specifically, she claims that the jury did not find Mr. German's unsigned statement to the
Preliminarily, we note that defendant's appeal utilizes the language of both a motion for a new trial based on the weight of the evidence and a motion for a new trial based on the sufficiency of the evidence. As we have explained in State v. Perkins, 460 A.2d 1245, 1247 (R.I.1983), the two motions are different, and each requires its own distinct legal analysis. See also State v. Karngar, 29 A.3d 1232, 1235 (R.I.2011); State v. Clark, 974 A.2d 558, 569-71 (R.I. 2009). It is not entirely clear to this Court whether defendant intends to argue both bases for the motion. However, to the extent that she in fact seeks to raise both, we shall address each basis.
When a defendant moves for a new trial based on both the weight of the evidence and the sufficiency of the evidence, it is the practice of this Court to first address the motion based on the weight of the evidence. See State v. Robat, 49 A.3d 58, 72 (R.I.2012) (stating that this Court reviews a motion for a new trial before reviewing a motion for a judgment of acquittal); State v. Richardson, 47 A.3d 305, 317 (R.I.2012); see also Clark, 974 A.2d at 570 ("The difference in nomenclature of a motion for a new trial based on the insufficiency of the evidence and a motion for judgment of acquittal does not mean that courts must review these motions differently"). We proceed in that manner because a defendant seeking to prevail on a motion for a new trial based on the sufficiency of the evidence bears a heavier burden than does a defendant seeking to prevail on a weight of the evidence argument; unless a defendant can demonstrate that the evidence failed to support his or her conviction based on the weight of the evidence standard, he or she will necessarily be unable to establish entitlement to a new trial based on insufficient evidence. See Robat, 49 A.3d at 72.
When a trial justice considers whether a verdict is against the weight of the evidence, he or she "acts as a thirteenth juror and exercises independent judgment on the credibility of witnesses and on the weight of the evidence." State v. Barrios, 88 A.3d 1123, 1128 (R.I.2014) (internal quotation marks omitted); see also State v. Austin, 114 A.3d 87, 95, No. 2013-77-C.A., 2015 WL 1954726, at *6 (R.I. May 1, 2015); Robat, 49 A.3d at 70. In carrying out his or her role as the "thirteenth juror," it is incumbent upon the trial justice to "(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. Silva, 84 A.3d 411, 416 (R.I.2014) (internal quotation marks omitted); see also State v. Mitchell, 80 A.3d 19, 30 (R.I.2013). If, after carrying out that just-described analytical process, "the trial justice agrees
We have stated that the trial justice's decision to grant or deny a motion for a new trial "should reflect a few sentences of the justice's reasoning on each point." State v. DiCarlo, 987 A.2d 867, 870 (R.I.2010) (internal quotation marks omitted); see also Silva, 84 A.3d at 417. The trial justice "need not refer to all the evidence supporting [his or her] decision," but need only "cite evidence sufficient to allow this [C]ourt to discern whether the [trial] justice has applied the appropriate standards." Robat, 49 A.3d at 71 (internal quotation marks omitted).
In reviewing a motion for a new trial, this Court accords great weight to the trial justice's decision so long as he or she has "articulated sufficient reasoning in support of the ruling." Robat, 49 A.3d at 71 (internal quotation marks omitted); see also Hie, 93 A.3d at 975. Our case law is clear that "we will not disturb a trial justice's decision with respect to a motion for a new trial unless we determine that the trial justice committed clear error or that he or she overlooked or misconceived material and relevant evidence [relating] to a critical issue in the case." Hie, 93 A.3d at 975 (internal quotation marks omitted); see also Robat, 49 A.3d at 71. We defer to the trial justice's findings "because a trial justice, being present during all phases of the trial, is in an especially good position to evaluate the facts and to judge the credibility of the witnesses." Robat, 49 A.3d at 71 (internal quotation marks omitted); see also Austin, 114 A.3d at 96, 2015 WL 1954726 at *7.
In the instant case, the record makes clear that the trial justice properly performed the three-step weight of the evidence analysis. First, he considered the evidence in light of the jury charge regarding constructive possession of marijuana; he expressly noted that it was clear from his jury instruction that, "in order to find the defendant guilty * * * the State had to prove beyond a reasonable doubt that the defendant possessed the [marijuana], * * * and did so knowingly and intentionally." While the trial justice did not refer to every single piece of evidence, he focused on all of the evidence relevant to the issue of defendant's knowledge. See Robat, 49 A.3d at 71. That evidence consisted of the testimony of Mr. German and Trooper Alboum, and Mr. German's unsigned and signed police statements.
Proceeding to the second step of the analytical process, the trial justice independently assessed the credibility of the witnesses and weighed the relevant evidence. He began this second step of the process by focusing on Mr. German's credibility, noting that Mr. German was a "hostile" and "evasive" witness who sought to "undermine whatever he had put in writing at an earlier time." Nonetheless, the trial justice independently concluded that there was "some credibility" to Mr. German's unsigned statement, which indicated that the marijuana belonged to Ms. Mendez. In contrast, he stated on the record that he "specifically * * * disbelieve[d]"
The trial justice then carried out the remainder of the second analytical step by identifying several specific facts weighing in favor of the jury's verdict. Those facts included: (1) the "strong" smell and sheer "bulk" of the marijuana bales that the state introduced as evidence; (2) Trooper Alboum's testimony that Ms. Mendez did not look at the large police presence surrounding the carjacked van; and (3) Trooper Alboum's testimony regarding the efforts of Ms. Mendez to avoid being pulled over. With regard to the smell and size of the marijuana (the marijuana having been admitted as a full exhibit at trial), the trial justice noted:
The trial justice concluded that those facts, coupled with Mr. German's "statements [that] all allowed for a reasonable inference that [defendant] knew about the marijuana or knew that there was marijuana in the back of her car," clearly supported the jury's verdict.
Third and finally, the trial justice concluded the three-step analytical process by explicitly stating that he agreed with the jury's verdict. In light of the trial justice's proper execution of the three-step analysis and his agreement with the jury verdict, he was not required to do anything further. See Hie, 93 A.3d at 977.
The trial justice properly undertook the required steps to rule upon a motion for a new trial, but we pause to note that, in the course of making his ruling, the trial justice distinguished the instant case from two cases that defendant relied upon heavily in both her briefing and argument on the motion below and before this Court. The two cases are State v. Berroa, 6 A.3d 1095 (R.I.2010), and United States v. Chadwick, 393 F.Supp. 763 (D.Mass.1975), aff'd, 532 F.2d 773, 785 (1st Cir.1976), aff'd, 433 U.S. 1, 16, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). The defendant cited those opinions in support of her argument that the jury could not properly infer her knowledge of the marijuana because the evidence relied upon by the state to indicate that she had such knowledge was subject to equally plausible, noncriminal explanations. In the first case, Berroa, 6 A.3d at 1099, a defendant was found driving a car in which two passengers had concealed cocaine inside their purses. The defendant in that case then allegedly showed signs of nervousness while police investigated the car. Id. We vacated the judgment of conviction because the evidence "simply [was] not sufficient to affirm the conviction," even though the facts could have led to "speculation or conjecture" regarding the defendant's involvement with a sophisticated drug-trafficking scheme. Id. at 1102, 1104.
In the second case, Chadwick, 393 F.Supp. at 766, 768, a defendant was arrested on suspicion of drug trafficking because he was found in the presence of two people who possessed a footlocker containing marijuana. The United States District Court for the District of Massachusetts determined that the police did not have probable cause to arrest the defendant because "a non-criminal explanation * * * [was] at least as likely as one indicating that an offense [had] been or [was] being committed." Id. at 768 (internal quotation marks omitted).
We see no reason to disturb the trial justice's findings. He considered all of the relevant evidence as he applied the three-step analytical process and he articulated sufficient reasoning to support his decision to deny the motion.
In light of the fact that defendant could not successfully prevail on her motion for a new trial based on the weight of the evidence, we need not address her challenge to the sufficiency of the evidence. See Richardson, 47 A.3d at 317; Clark, 974 A.2d at 570. Accordingly, we affirm the trial justice's denial of defendant's motion for a new trial.
The defendant's final argument on appeal is that her twenty-year prison sentence is "manifestly excessive" and "violates the constitutional requirement that `all punishments ought to be proportioned to the offense.'" See R.I. Const, art. 1, sec. 8. We have consistently and repeatedly held that "review of a sentence must begin in the Superior Court pursuant to Rule 35 of the Superior Court Rules of Criminal Procedure." State v. Storey, 102 A.3d 641, 649 (R.I.2014); see also Lynch v. State, 86 A.3d 390, 390 n. 1 (R.I.2014) (mem.); Jaiman v. State, 55 A.3d 224, 232 (R.I.2012) ("[U]nder Rule 35(a) of the Superior Court Rules of Criminal Procedure, [t]he court may correct an illegal sentence at any time") (internal quotation marks omitted). The parties do not dispute that no Rule 35 motion was made below. Accordingly, the issue is not properly before this Court. See Lynch, 86 A.3d at 390 n. 1.
For the reasons set forth in this opinion, we affirm the judgment of the Superior Court. The record may be returned to that tribunal.
The transcript reveals that, on April 4, after the trial justice shared with counsel his proposed supplemental instruction in response to the jury question, defense counsel lodged an objection to "anything beyond" the first seven words of the instruction (i.e., anything beyond this directive to the jury: "`You need to consider the Court's instructions.'") When the trial justice asked what defense counsel found "prejudicial" in the remaining portion of the trial justice's proposed supplemental instruction, defense counsel responded as follows:
The trial justice proceeded to give a thoughtful and considered response to defense counsel's concern, and further cited his own concern that referencing the elements specifically may result in "cut[ting] out a great deal of the 26 pages of text" that comprised the jury instructions. The trial justice referred back to his earlier admonishment to the jury during his initial instructions: that the jurors ought to "consider the instructions in their entirety" and not to single out any one instruction. Following the above statements, the trial justice added that he would send "an additional six copies" of the jury instructions up to the jury deliberation room, in addition to the six copies which had been previously sent up to the jury.
We recount the above exchange between defense counsel and the trial justice to illustrate that defense counsel's objection was clearly on different grounds from those raised before this Court in the instant appeal.
Furthermore, to the extent that defendant argues before us that her April 4 objection on the above-referenced grounds — namely, that the trial justice erroneously gave the entire supplemental instruction, rather than just the seven words thereof as requested by defendant in her initial objection — we deem that argument to be waived. See Wilkinson v. State Crime Laboratory Commission, 788 A.2d 1129, 1131 n. 1 (R.I.2002). Although defendant alludes to the issue in her briefing before this Court, she makes no meaningful argument with respect to whether the trial justice erred in giving the entire supplemental instruction; instead, she limits herself to advocating for the alternative instruction, which she proposed on the morning of April 5. Our precedent requires more than an allusion to an issue for it to become the proper subject of appellate review. See id. ("Simply stating an issue for appellate review, without a meaningful discussion thereof or legal briefing of the issues, does not assist the Court in focusing on the legal questions raised, and therefore constitutes a waiver of that issue."); see also Hines Road, LLC v. Hall, 113 A.3d 924, 931 n. 6 (R.I.2015); State v. Day, 925 A.2d 962, 974 n. 19 (R.I.2007).
Finally, we note that we consider the alternative instruction later proposed by defendant to act as a further objection to the supplemental instruction, see Perry v. Alessi, 890 A.2d 463, 470 (R.I.2006) ("He then objected to the trial justice's failure to give eleven of his proposed instructions * * *."); Butera v. Boucher, 798 A.2d 340, 348 (R.I.2002), and it is this latter objection that we address more fully in our analysis of defendant's arguments on appeal.