Supreme Court

No. 2019-112-C.A.

(P1/14-1880A)

State :

v. :

Curtis Maxie. :

NOTICE: This opinion is subject to formal revision 

before publication in the Rhode Island Reporter. Readers 

are requested to notify the Opinion Analyst, Supreme 

Court of Rhode Island, 250 Benefit Street, Providence, 

Rhode Island 02903, at Telephone (401) 222-3258 or 

Email opinionanalyst@courts.ri.gov, of any typographical 

or other formal errors in order that corrections may be 

made before the opinion is published.

November 2, 2020
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Supreme Court

No. 2019-112-C.A.

(P1/14-1880A)

State :

v. :

Curtis Maxie. :

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

O P I N I O N

Chief Justice Suttell, for the Court. The defendant, Curtis Maxie, appeals 

from the denial of his motion for a new trial. The defendant maintains that the trial

justice erred by denying his second motion for a new trial and in finding that he had 

failed to present newly discovered evidence that would have entitled him to a new 

trial. This case came before the Supreme Court 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 parties’ written and oral submissions and 

reviewing the record, we conclude that cause has not been shown and that this case 

may be decided without further briefing or argument. For the reasons set forth in 

this opinion, we affirm the order of the Superior Court. 
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I

Facts and Travel

The underlying facts in this case are set out in State v. Maxie, 187 A.3d 330 

(R.I. 2018), in which this Court vacated defendant’s conviction for sex trafficking 

of a minor in violation of G.L. 1956 § 11-67-6 and conspiring to do so,1and affirmed 

defendant’s conviction for three counts of first-degree sexual assault. Maxie, 187

A.3d at 331. At trial, the complaining witness, Emily,

2

testified over the course of 

three days regarding the events that allegedly took place in defendant’s apartment in 

April 2014.3

On June 18, 2014, a grand jury indicted defendant on three counts of 

first-degree sexual assault, counts 1, 2, and 3; one count of sex trafficking of a minor, 

count 4; and one count of conspiracy to commit the crime of sex trafficking of a 

minor, count 6. The defendant was then served with an habitual offender notice. 

On November 18, 2015, defendant filed a motion to dismiss count 4 on the 

basis that the statute under which defendant was charged was defective. The 

 

1 This Court found that G.L. 1956 § 11-67-6 was fatally defective by the absence of 

language setting forth a crime; at the time the issue initially reached this Court,

chapter 67 of title 11 of the general laws had been repealed by the Legislature. State 

v. Maxie, 187 A.3d 330, 331 (R.I. 2018); see P.L. 2017, ch. 232, § 1 (July 18, 2017); 

P.L. 2017, ch. 260, § 1 (July 19, 2017).

2 We use a pseudonym to protect the privacy of the minor victim.

3 For purposes of this opinion, a precise recitation of the sordid details of the acts 

allegedly committed by defendant is not necessary. Although the testimony was 

extensive, we do not deem it vital to delve into the details at this juncture.
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defendant later moved to dismiss count 6 on the same basis. These motions were 

denied by the trial justice, and the case proceeded to trial. 

On April 20, 2016, defendant was found guilty by the jury on all counts. On 

May 2, 2016, defendant filed a motion for a new trial, and argued at the hearing on 

the motion again that, as to counts 4 and 6, the statute under which he was convicted 

was defective. The trial justice denied the motion. 

On the first-degree sexual assault convictions, defendant was sentenced to 

three concurrent terms of forty-five years to serve at the Adult Correctional 

Institutions; on the sex trafficking conviction, defendant was sentenced to serve forty 

years at the ACI, to run consecutively; on the conspiracy conviction, defendant was 

sentenced to serve ten years at the ACI, to run concurrently with the sex-trafficking 

sentence but consecutively to the sexual assault sentences; and, as an habitual 

offender, defendant was sentenced to an additional fifteen years to serve at the ACI, 

consecutively to the other sentences. A judgment of conviction entered on 

September 13, 2016.

The defendant appealed his conviction to this Court. On appeal, defendant 

argued that the trial justice erred in denying his motion to dismiss as to counts 4 and 

6 of the indictment. Maxie, 187 A.3d at 336. We agreed with defendant and vacated 

his conviction as to counts 4 and 6; we also affirmed the judgment of conviction in 

all other respects. Id. at 341, 344.
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On June 30, 2018, defendant filed a second motion for a new trial. The 

defendant believed that the vacatur of his convictions on count 4 and count 6 

constituted newly available evidence, allowing him to file this motion. The 

defendant argued that, because counts 4 and 6 did not constitute crimes, the jury was 

improperly instructed to hear evidence regarding those counts. Thus, defendant 

asserted that the evidence that was admitted as to those counts was so prejudicial 

that defendant did not receive a fair trial on the sexual assault counts. 

The trial justice determined that all of the evidence regarding “how [Emily] 

got to Mr. Maxie’s apartment, the circumstances surrounding her appearance in his 

apartment, all of that background information * * * is factually connected to all of 

it.” Further, the trial justice decided that these surrounding facts went to the element 

of force or coercion as to the sexual assault counts. Thus, the trial justice denied 

defendant’s second motion for a new trial. The defendant then filed a timely notice 

of appeal.

II

Standard of Review

“When passing 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. Cerda, 957 A.2d 382, 385 (R.I. 2008) 

(quoting State v. Bergevine, 942 A.2d 974, 981 (R.I. 2008)). “The trial justice must 
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(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. Rivera, 987 A.2d 887, 902 (R.I. 2010) (brackets omitted) (quoting 

State v. Schloesser, 940 A.2d 637, 639 (R.I. 2007)). “Because a trial justice, when 

deciding a motion for a new trial, is in an especially good position to evaluate the 

facts and to judge the credibility of the witnesses, on appeal, this Court’s review is 

deferential.” State v. McDonald, 157 A.3d 1080, 1089 (R.I. 2017) (quoting State v. 

Watkins, 92 A.3d 172, 191 (R.I. 2014)). Thus, this Court “will not overturn the trial 

justice’s decision absent an indication that he or she overlooked or misconceived 

relevant and material evidence or was otherwise clearly wrong.” State v. Drew, 79 

A.3d 32, 37 (R.I. 2013) (quoting State v. Price, 66 A.3d 406, 418 (R.I. 2013)). 

III

Discussion

Generally, a motion for a new trial must be made within ten days after a 

verdict or guilty finding. Super. R. Crim. P. 33. However, a motion for a new trial 

based on newly discovered evidence can be made “within three (3) years after the 

entry of judgment by the court[.]” Id. “The time limit set forth in Rule 33 is 

jurisdictional and cannot be waived.” State v. Champion, 873 A.2d 92, 94 (R.I. 

2005).
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When trial courts consider a motion for a new trial based on newly discovered 

evidence pursuant to Rule 33, they utilize a two-pronged test. Drew, 79 A.3d at 38. 

“The first prong encompasses a four-part inquiry, 

requiring that the evidence is (1) newly discovered since 

trial, (2) not discoverable prior to trial with the exercise of 

due diligence, (3) not merely cumulative or impeaching 

but rather material to the issue upon which it is admissible, 

(4) of the type which would probably change the verdict 

at trial.” Id. (quoting Price, 66 A.3d at 417).

If the first prong is satisfied, the trial justice then turns to the second prong and 

“determine[s] if the evidence presented is credible enough to warrant a new trial.”

Id. (quoting Price, 66 A.3d at 417).

A

Timeliness of the Motion for a New Trial

The defendant was found guilty by the jury on April 20, 2016, and the 

judgment of conviction entered on September 13, 2016. The defendant filed the 

motion at issue here on June 30, 2018. Thus, this motion for a new trial was only 

timely filed if it was based on newly discovered evidence. See Super. R. Crim. P. 

33. The defendant argues that our holding in Maxie—vacating his conviction on 

counts 4 and 6—constitutes newly discovered evidence. 

This Court now addresses, for the first time, whether or not the vacating of a 

conviction on other counts of an indictment constitutes “evidence” for the purpose 

of newly discovered evidence under Rule 33 of the Superior Court Rules of Criminal 
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Procedure. When faced with this question, other courts have determined that a 

disposition on direct appeal is not “new evidence” justifying a new trial. See, e.g.,

United States v. Hough, 276 F.3d 884, 899 (6th Cir. 2002) (finding that “[t]his 

argument cannot be seriously entertained. It is patently absurd to regard disposition 

on direct appeal as ‘new evidence’ that would justify a new trial”); see also United 

States v. King, 735 F.3d 1098, 1108-09 (9th Cir. 2013) (finding that a change in the 

law does not constitute newly discovered evidence for purposes of Rule 33); State 

v. Gatcomb, 478 A.2d 1129, 1130 (Me. 1984) (adopting a strict definition of “newly 

discovered evidence” as evidence solely “which bears on the guilt or innocence of 

the accused”). 

Generally, “evidence” is defined as “[s]omething (including testimony, 

documents, and tangible objects) that tends to prove or disprove the existence of an 

alleged fact[.]” Black’s Law Dictionary 697 (11th ed. 2019). This Court has 

addressed a variety of evidence regarded as the kind that may justify a new trial if 

newly discovered. See State v. Messa, 593 A.2d 957, 959-60 (R.I. 1991) (testimony 

of a witness who allegedly heard the complaining witnesses discussing faking the 

crime of which the defendant was accused was newly discovered evidence that 

necessitated the granting of the motion for a new trial); see also Putnam v. MacLeod, 

23 R.I. 373, 378, 50 A. 646, 647 (1901) (relying solely on “transactions which have 

taken place since the trial of the case, tending to show a compromise and settlement 
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of the matter in litigation” was not newly discovered evidence); Johnson v. 

Blanchard, 5 R.I. 24, 26 (1857) (concluding that a post-trial recollection by a trial 

witness is not a discovery of new evidence). 

The defendant has been unable to direct us to any case wherein we, or any 

other court, have regarded a disposition on direct appeal as “new evidence” under 

Rule 33; we decline to do so now. Dispositions on direct appeal are unlike the types 

of evidence we have considered to be newly discovered under Rule 33. Our prior 

decision in Maxie did not uncover facts or circumstances regarding the guilt or 

innocence of the defendant as to counts 1, 2, and 3 of the indictment. See Gatcomb, 

478 A.2d at 1130. This “evidence” of a disposition on direct appeal is not of the 

kind that would bring those facts within the purview of Rule 33 as “newly discovered 

evidence.” Therefore, this motion for a new trial was filed outside of the ten-day

time limit set forth in Rule 33, which cannot be waived. See Champion, 873 A.2d at 

94. Accordingly, we affirm the order denying the defendant’s second motion for a

new trial.

IV

Conclusion

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

record shall be returned to the Superior Court. 
SU-CMS-02A (revised June 2020)

STATE OF RHODE ISLAND 

SUPREMECOURT– CLERK’S OFFICE

Licht Judicial Complex

250 Benefit Street

Providence, RI 02903

OPINION COVER SHEET

Title of Case State v. Curtis Maxie.

Case Number No. 2019-112-C.A.

(P1/14-1880A)

Date Opinion Filed November 2, 2020

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

Written By Chief Justice Paul A. Suttell

Source of Appeal Providence County Superior Court 

Judicial Officer from Lower Court Associate Justice Netti C. Vogel

Attorney(s) on Appeal

For State:

Owen Murphy

Department of Attorney General

For Defendant:

George J. West, Esq.