State v. Keith Schloesser

Supreme Court
No. 2006-257-C.A.
(P1/04-3388A)
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-
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corrections may be made before the opinion is published.
State 	:
v. 	:
Keith Schloesser. 	:

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Supreme Court
No. 2006-257-C.A.
(P1/04-3388A)
Present: Williams, C.J., Goldberg, Flaherty, Suttell, and Robinson, JJ.
O P I N I O N
Justice Suttell, for the Court. 	The defendant, Keith Schloesser, appeals from a
judgment of conviction on three counts of first-degree child molestation and one count of
second-degree child molestation for the sexual assault of his son, whom we shall refer to as
Jason, a fictitious name. The defendant argues that the trial justice erred in denying his motion
for a new trial. Contending that the jury verdict was against the weight of the evidence presented
at trial and failed to do substantial justice, the defendant maintains that the trial justice
improperly analyzed the evidence in deciding the motion for a new trial. 	After reviewing the
record and considering the written and oral submissions of the parties, we are satisfied that the
trial justice appropriately discharged his responsibilities in considering the motion for a new trial.
Accordingly, we affirm the judgment of conviction.
Facts and Procedural History
The defendant was charged with four counts of molestation committed on three separate
occasions over a two-year period. 	The state presented only two witnesses at trial, Jason and
Christine Barron, M.D., a forensic pediatrician. 	We report the pertinent facts as recounted by
Jason in his testimony.
State 	:
v. 	:
Keith Schloesser. 	:

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Jason testified that the first incident of sexual abuse occurred when he was nine years old.
He said that defendant called him into the living room, demanded that he take off his clothes, and
threatened to kill his mother if he told anyone. 	Standing in front of Jason, defendant began to
rub Jason’s penis. Jason testified that defendant then moved to stand behind him and “[h]e stuck
his penis up my butt.” Jason described his body posture as “[s]lightly hunched over” and said he
could not see defendant, but he remembered defendant grabbing Jason’s shoulders. Jason, who
was fourteen years old and five feet six inches tall at the time of trial, could not say how tall he
was at the time of the incident. Jason testified that similar acts of sexual abuse occurred once or
twice a week for the next two years, but he recounted only two such similar incidents—one when
he was ten years old and the other in May 2003.
Doctor Barron, the director of the Child Protection Program at Hasbro Children’s
Hospital, testified as a pediatric forensic expert. 	She testified that a staff physician with the
Child Protection Program at Hasbro Children’s Hospital examined Jason in June 2004 using a
colposcope to magnify and document any trauma to Jason’s genitals. 	The examination showed
that Jason had a flattening of the bumps around the anus, called “rugae,” and two scars on his
anus. Although the medical examination could not determine when or how the abuse occurred,
the examination was consistent with a history of chronic anal penetration and trauma.
On April 28, 2006, the jury returned verdicts of guilty on three counts of first-degree
child molestation and one count of second-degree child molestation. The defendant’s motion for
a new trial was denied on June 26, 2006, and on July 21, 2006, the trial justice sentenced
defendant to forty years on each first-degree child molestation charge, with twenty years to

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serve, and thirty years on the second-degree child molestation charge, with ten years to serve, the
sentences to be served concurrently. The defendant filed his appeal on July 24, 2006.1
Standard of Review
The responsibility of a trial justice in considering a motion for a new trial is well known.
“In ruling on a motion for a new trial, ‘the trial justice acts as a thirteenth juror and exercises
independent judgment on the credibility of witnesses and on the weight of the evidence.’” State
v. Hallenbeck, 878 A.2d 992, 1011 (R.I. 2005) (quoting State v. Lynch, 854 A.2d 1022, 1046
(R.I. 2004)). “In fulfilling this role, 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) (citing State v.
Banach, 648 A.2d 1363, 1367 (R.I. 1994)). 	“If, after conducting this independent review, the
trial justice agrees with the jury’s verdict or if the evidence is such that reasonable minds could
differ as to the outcome, the motion for a new trial should be denied.” State v. Gomez, 848 A.2d
221, 234 (R.I. 2004) (quoting State v. Otero, 788 A.2d 469, 472 (R.I. 2002)).
On review, we afford substantial deference to the ruling of the trial justice, “the man [or
woman] in the arena.”2 “Provided that the trial justice has ‘articulated an adequate rationale for
denying a motion,’ a trial justice’s ruling on a new trial motion is entitled to great weight.”
Lynch, 854 A.2d at 1046 (quoting State v. Rieger, 763 A.2d 997, 1002 (R.I. 2001)). 	“A trial
justice’s ruling on a new-trial motion will not be overturned unless the trial justice was clearly
1 Although a judgment of conviction was not entered until November 5, 2007, we treat
defendant’s appeal as timely. Alessio v. State, 924 A.2d 751, 752 n.1 (R.I. 2007).
2 “It is not the critic who counts; not the man who points out how the strong man stumbles, or
where the doer of deeds could have done them better. The credit belongs to the man in the arena,
whose face is marred by dust and sweat and blood * * *.” Theodore Roosevelt in a speech
entitled “Citizenship in a Republic” delivered at the Sorbonne in Paris, France on April 23, 1910.

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wrong or unless he or she overlooked or misconceived material and relevant evidence that
related to a critical issue in the case.” Id. (quoting State v. Bolduc, 822 A.2d 184, 187 (R.I.
2003)).
Discussion
On appeal, defendant argues that the trial justice was deficient in performing his function
of assessing the credibility and weight of the material evidence and then determining the proper
inferences that may be drawn therefrom. 	Specifically, he contends the trial justice failed to
consider the “physical impossibility” of the penetration occurring while both defendant and his
nine-year-old son were in a standing position. 	The defendant also asserts that the fact that
neither Jason nor his mother ever detected any blood in the boy’s underwear seriously
undermines Jason’s credibility. 	Moreover, defendant argues that the medical evidence was
ambiguous in that a physical examination of Jason in June 2003, shortly after the alleged acts of
sexual molestation had ended, revealed no evidence of penetration. 	These inconsistencies,
coupled with Jason’s numerous memory lapses, defendant says, strongly indicate that the trial
justice did not undertake the independent analysis of evidence required in deciding a motion for
a new trial. See State v. Luanglath, 749 A.2d 1, 4 (R.I. 2000).
In exercising our appellate role, we have carefully examined the trial justice’s ruling and
are well-satisfied that he performed his duties appropriately. 	The trial justice summarized the
evidence presented and found that “the State has produced sufficient evidence” to prove
defendant’s guilt. He considered Jason’s emotional problems and learning difficulties, and said
“[t]he fact that [Jason] might have, on various occasions, said ‘I don’t remember,’ I think, is still
somewhat consistent with a person who is still of tender years and who may have had some
learning disabilities at various points in his life.” 	The trial justice also discussed Jason’s

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credibility, stating that Jason was being “forthright with the Court when he described the
incidents in question.”3 Significantly, the trial justice found the medical evidence to be
consistent with a “past history of repeated anal penetration,” noting that the first physical
examination was cursory but that the second examination used a colposcope. 	The trial justice
said that with the testimony of Jason and Dr. Barron, “the State presented two very credible
witnesses in support of its position.” 	After reviewing the evidence in light of the instructions
given to the jury, the trial justice concluded by finding that “the controversy presented to the jury
for its determination was one which reasonable minds couldn’t differ as to the conclusion that it
would reach. And as a further point, the [c]ourt adds that it would not have differed in any way
from what the jury returned as a verdict.”
Although the trial justice did not specifically address the defendant’s argument that it was
physically impossible for the acts of penetration to occur as Jason testified, such an omission is
not fatal. We first note, as did the trial justice, that Jason testified he could not see the defendant,
who was behind Jason. Secondly, the record is devoid of any expert testimony suggesting that it
would have been physically impossible for the acts to have occurred as Jason testified. Both the
jury and the trial justice had the opportunity to observe the disparity in size between Jason and
the defendant, and both apparently concluded that the physical act was indeed possible. Further,
as the trial justice noted, Jason’s testimony “is almost certainly verified by the medical reports.
It showed just the type of injury to the complaining witness that would have resulted from the
behavior that was described by him.” 	We are satisfied that the trial justice articulated an
adequate rationale for denying the motion for a new trial.
3 “One of the functions of a trial justice in passing upon a motion for a new trial is to exercise
‘independent judgment on the credibility of witnesses * * *.’” State v. Morales, 895 A.2d 114,
122 n.5 (R.I. 2006) (quoting State v. Banach, 648 A.2d 1363, 1367 (R.I. 1994)).

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Conclusion
We are of the opinion the trial justice neither overlooked nor misconceived material
evidence, nor was he clearly wrong. 	Accordingly, we affirm the judgment of conviction and
return the papers to the Superior Court.

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COVER SHEET
TITLE OF CASE: 	State v. Keith Schloesser
DOCKET SHEET NO.:2006-257-C.A.
COURT:Supreme
DATE OPINION FILED:December 7, 2007
Appeal from
SOURCE OF APPEAL:SuperiorCounty: Providence
JUDGE FROM OTHER COURT: 	Judge Gilbert V. Indeglia
JUSTICES:Williams, CJ., Goldberg, Flaherty, Suttell, and Robinson, JJ.
WRITTEN BY:Justice Paul A. Suttell, for the Court
ATTORNEYS:
For Plaintiff:Lauren S. Zurier, Esq.
ATTORNEYS:
For Defendant: Christopher S. Gontarz, Esq.