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State v. Rainey

Supreme Court of Rhode Island

January 11, 2018

John Rainey.

         Providence County Superior Court (P1/12-463A) William E. Carnes, Jr. Associate Justice

          For State: Jane M. McSoley Department of Attorney General.

          For Defendant: Kara J. Maguire Office of the Public Defender.

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


          Gilbert V. Indeglia Associate Justice.

         The defendant, John Rainey (defendant or Rainey), is before this Court on a writ of certiorari[1] after a Providence County jury found him guilty of two counts of first-degree child molestation and one count of second-degree child molestation. The defendant was sentenced to sixty years, with fifty to serve and ten suspended, on each count of first-degree child molestation, and fifteen years to serve on the second-degree count; all sentences are set to run concurrently. For the reasons set forth herein, we affirm the judgment of the Superior Court.

         I Facts and Travel

         In the fall of 2011, Anna, [2] then an adult, disclosed to authorities that she had been sexually assaulted on multiple occasions by defendant when she was a child; he was her mother's boyfriend at the time. On February 2, 2012, a Providence County grand jury returned a true bill charging defendant with the following counts: (1) between October 1, 1987 and August 22, 1988, sexual penetration, to wit, penile/vaginal penetration, with Anna, a person fourteen years of age or under, in violation of G.L. 1956 §§ 11-37-8.1 and 11-37-8.2; (2) between January 1, 1990 and December 31, 1990, sexual penetration, to wit, penile/vaginal penetration, with Anna, a person fourteen years of age or under, in violation of §§ 11-37-8.1 and 11-37-8.2; and (3) between April 1, 1992 and August 30, 1992, sexual contact, to wit, hand to breast, with Anna, a person fourteen years of age or under, in violation of §§ 11-37-8.3 and 11-37-8.4. At the time of defendant's trial in 2013, Anna was thirty-four years old; she testified that he had committed the above crimes when she was between the ages of eight and thirteen.

         At defendant's trial, Anna recounted those traumatic events from her childhood.[3] When Anna was eight years old, defendant came to live with her and her mother at their home on Manton Avenue in Providence. Without a father figure in her life, Anna was happy to call defendant "Dad." However, defendant and Anna's mother drank heavily together, impacting Anna and her mother's relationship. Soon, Anna's initially pleasant relationship with defendant began to change. Her mother would often leave Anna alone with defendant when he was not working, and he was usually intoxicated. One night, when Anna was in bed, defendant- completely naked-entered her bedroom and lay down next to her. Scared, Anna pretended to be asleep for the couple of minutes that defendant remained there.[4] The next morning, Anna relayed to her mother what had happened. Her mother told her that defendant had simply been drunk and had gone into the wrong room. At that time, her mother was pregnant with defendant's child.

         Before Anna's half-sister was born on August 22, 1988, defendant imposed himself on Anna once again. That day, Anna was home alone with defendant. She was sitting on the couch, curled up in the fetal position, in her pajamas watching cartoons. The defendant approached her and asked if she wanted to do something fun; as an eight- or nine-year old, Anna believed that defendant was referring to a game and answered affirmatively. At that point, defendant pulled her legs down and laid her flat on the couch. He proceeded to climb on top of her, straddled over her with his legs on either side of her body. As he removed her pants, Anna told him that she did not like what was happening. Undeterred, defendant took off his pants. He then rubbed his penis against her vagina. Anna testified that, during this encounter, defendant put his penis inside her "labia."[5] She did not tell anyone because she was scared, and she did not think her mother would believe her this time, just as she had not believed her previously.

         The next incident occurred mere months after Anna's half-sister was born, just before Christmas of 1988. The defendant brought Anna, then nine years old, to the mall so she could buy a Christmas gift for her mother. Upon arriving in the mall parking lot, defendant told Anna he would give her money to purchase her mother's gift if she would first do something for him. The defendant then unzipped his pants, grabbed Anna's head, and placed her mouth on his penis, all the while directing her actions. After ejaculating in her mouth, defendant gave Anna the money he had promised her, and she went into the mall and bought a gift for her mother.[6] Again, Anna told no one what had happened. Her self-described "awkward" relationship with defendant persisted, although she "didn't know what was happening was wrong."

         In the spring of 1989, defendant and Anna's mother moved Anna and her infant half-sister to Kentucky, where defendant had accepted a job. Shortly thereafter, the four of them moved to Chicago for the same reason. By that point, the drinking by defendant and Anna's mother had become "excessive, " according to Anna. One evening, when Anna's mother was passed out-"inebriated to the point where [she couldn't] function"-defendant said to Anna, "I want you to watch what I'm going to do to your mom." He then made Anna hide behind a chair and watch him have sex with her mother.[7] By this point, Anna thought of defendant as "a very scary guy."

         Eventually, Anna's mother decided to leave defendant, and she, Anna, and Anna's half-sister moved back to Rhode Island without him. They stayed with Anna's grandparents in Warwick until just after Christmas of 1989. In the beginning of 1990, they moved to Sterling Avenue in Providence. There, Anna learned that her mother was pregnant with defendant's child yet again. Shortly before Anna's second half-sister was born on May 21, 1990, defendant came back into their lives, moving into the Sterling Avenue home. However, his return was shortlived; he left soon after the baby's birth.

         Despite his abbreviated return, yet another incident occurred during the short time defendant lived with Anna. On a day when Anna's mother was out of the house, after Anna's eleventh birthday, defendant again molested her. In defendant and her mother's bedroom, defendant forcefully pushed Anna onto the bed. After completely undressing her and removing his own clothes, defendant lay "[f]ully on top of [Anna], between [her] legs." Anna testified that "[h]e proceeded to put his penis into [her] vagina again" and then ejaculated on her stomach.[8]When he got up, according to Anna, defendant threatened to "beat the hell out of [her] mother" if Anna ever told anyone what he had done.

         For reasons unrelated to the abuse, Anna's mother kicked defendant out of the house a few months later. In 1992, defendant expressed his desire to spend a weekend with his daughters, Anna's half-sisters. Anna's mother made Anna, who was then thirteen years old, go and "keep an eye on the girls." Anna's grandfather dropped her and her half-sisters off at a parking lot, where defendant was waiting to pick them up. Anna fastened her half-sisters into the back seat of the car before climbing in through the rear driver's side door. The defendant, standing at the open driver's door, reached back and grabbed Anna's breast.[9] He told her that she was "filling out very nicely." Anna testified that, by this point, she was no longer afraid of defendant, so she slapped his hand away and told him never to touch her again.

         When Anna was sixteen years old, a high-school health class discussion about sexual harassment motivated her to finally reveal to her mother defendant's repeated abuse. After telling her mother, Anna was met by her mother's blank stare, followed by her mother telling her that she had heard defendant had moved out of state, so there was nothing they could do about the abuse. Anna felt that her mother did not believe her.

         In 2011, Anna reported the abuse to the Providence police. Prompting Anna's disclosure was her half-sister's Facebook post, from which Anna learned that defendant had been arrested for similar crimes. Anna testified that, had she not received that information, she would not have come forward with her own allegations against defendant.

         In the case Anna learned about on Facebook, the alleged victim was defendant's biological daughter (by a woman other than Anna's mother), Beth.[10] However, those charges against defendant had been dropped because of Beth's unwillingness to testify when she was sixteen years old. Two years later, Beth expressed interest in Anna's case because of Beth's relationship to defendant. She texted the prosecutor on the eve of defendant's trial, which was set to start on May 30, 2013, to check on its progress. Apparently emboldened by the time that had passed since she was reluctant to testify as to her own allegations, Beth agreed to testify in Anna's case as a witness for the state. Due to the last-minute discovery revealed to defense counsel on Thursday, May 30, 2013-last-minute as to both the existence of Beth as an expected witness and the anticipated contents of her testimony-the trial justice directed the state to wait until the following Monday, June 3, 2013, to call Beth to the stand, thereby giving defense counsel the weekend to prepare.

         On that Monday, Beth testified to a sexual assault that defendant, her biological father, attempted on her in 2003, when she was eight years old. Beth recounted that she went to visit her father at his single-room apartment in Cumberland for the first time since he had moved there. The defendant was angry for reasons unknown to Beth and asked her to sit on the bed. She did so, and he walked over to her yelling and calling her names. As Beth sat on the edge of the bed, defendant pushed her back on the bed with one hand and began taking his and her clothes off; Beth struggled to get up, but was unable to do so. The defendant climbed on top of her, and, because she was trying to push him away, he wrapped her arms in his belt and put them above her head. He then grounded his arms and legs on either side of Beth, straddling her. The defendant called her names, while simultaneously claiming to be trying to help her. Beth testified that defendant "tried to put [his penis] in [her]." She continued to explain that his penis actually touched her vagina, but, because of her struggling, he was unsuccessful in penetrating her. The defendant eventually gave up and walked away. He got dressed and went outside; she untied her hands, got dressed, called her mother to pick her up, and waited inside. Beth and defendant said nothing to one another before she left, and she told no one what had happened for approximately six years.

         Like Anna, it took Beth years to reveal what defendant had done to her. She did not disclose the assault until she was fourteen years old, after which defendant was charged. While Beth was hesitant to testify against her father regarding her own allegations, leading to their dismissal, she did testify at the trial in this case. The defendant was found guilty on all three counts of molesting Anna.

         The crux of defendant's appeal is that the trial justice should not have allowed Beth to testify. In support of this contention, defendant argues: (1) that the trial justice abused his discretion by failing to exclude Beth's testimony as a result of the state's violation of Rule 16 of the Superior Court Rules of Criminal Procedure; (2) that the trial justice erred by admitting her testimony pursuant to Rule 404(b) of the Rhode Island Rules of Evidence; and (3) that, even if Beth's testimony was admissible under Rule 404(b), the trial justice should have excluded it under Rule 403 of the Rhode Island Rules of Evidence. Additionally, defendant argues that the trial justice erred when he denied his motions for judgment of acquittal and for a new trial.

         II Discussion

         A. Rule 16

         1. Standard of Review

         In reviewing whether a Rule 16 violation occurred, "[t]his Court affords great deference to a trial justice's decision * * *, and it 'will not disturb that ruling on appeal unless he or she has committed clear error.'" State v. Diefenderfer, 970 A.2d 12, 23 (R.I. 2009) (quoting State v. McManus, 941 A.2d 222, 229 (R.I. 2008)). The standard of review in determining whether there has been a Rule 16 violation is "extremely narrow." State v. Espinal, 943 A.2d 1052, 1062 (R.I. 2008). Moreover, in analyzing whether the trial justice fashioned an appropriate remedy for a Rule 16 violation, we "will overturn a trial justice's ruling only upon a showing of a clear abuse of discretion." State v. Ramos, 553 A.2d 1059, 1068 (R.I. 1989).

         2. Analysis

         When a defendant requests discovery from the state, Rule 16(a)(7), (8) obligates the state to provide a list of witnesses it expects to call, as well as summaries of their expected testimony. "The overarching purpose of Rule 16 is 'to ensure that criminal trials are fundamentally fair.'" State v. Briggs, 886 A.2d 735, 754 (R.I. 2005) (quoting State v. Gordon, 880 A.2d 825, 832 (R.I. 2005)). After all, "[i]n our adversary system, based as it is upon a single trial held on a single occasion, it is imperative that the defense come to trial as well equipped as possible to raise reasonable doubt in the minds of one or more of the jurors." State v. Concannon, 457 A.2d 1350, 1352-53 (R.I. 1983). In that sense, then, the rule serves "to eliminate surprise at trial and to ensure that both parties receive the fullest possible presentation of the facts prior to trial." State v. Langstaff, 994 A.2d 1216, 1219 (R.I. 2010) (quoting State v. Garcia, 643 A.2d 180, 186 (R.I. 1994)); see also Concannon, 457 A.2d at 1353. Therefore, "[f]ailure to cooperate with the spirit and letter of Rule 16 undermines the judicial process and subjects the noncompliant party to possible sanctioning." State v. Stravato, 935 A.2d 948, 951 (R.I. 2007) (quoting Ramos, 553 A.2d at 1067). In considering the proper sanction for such a failure to comply, "the trial justice should take into account: (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).

         In the present case, it was not until the morning of May 30, 2013, after a jury had already been chosen and was about to be sworn, that the state supplemented its response to defendant's request for discovery. The state then moved to introduce evidence pursuant to Rule 404(b) in the form of Beth's testimony. The state explained that it had not listed Beth in discovery because she had been unwilling to testify against her father before unexpectedly expressing a desire to do so, and thus the state had not intended to call her as a witness. The trial justice accepted the state's reason and agreed that this did not appear to be an instance of intentional withholding.[11]

         Understandably surprised by the eleventh-hour disclosure, defense counsel strenuously objected to Beth's testimony. He cited his lack of time to prepare for her testimony and asked that she be excluded as a witness. In response, the trial justice forbade the state from calling Beth to the stand before Monday, June 3, 2013, giving defense counsel the weekend to review the material as related to her. Nevertheless, the trial justice indicated that he would allow Beth to testify on that date.

         The state argues that there was no Rule 16 violation because that rule only "mandates disclosure of statements made by those persons whom the State expects to call as witnesses, " and here the prosecution did not expect to call Beth until she agreed in the final moments before trial to testify. We briefly address this argument only to say that we reject the state's characterization of Rule 16. If this Court adopted the state's purported interpretation of Rule 16, its intended purpose of "eliminat[ing] surprise at trial and * * * ensur[ing] that both parties receive the fullest possible presentation of the facts prior to trial, " Langstaff, 994 A.2d at 1219 (quoting Garcia, 643 A.2d at 186), would be eviscerated and its protection rendered ineffective because parties could simply wait until the eve of trial to contact witnesses, framing their testimony as "unexpected." With that said, we hold that the trial justice did not clearly err in determining that there was indeed a Rule 16 violation here.[12]

         We next address the remedy that the trial justice adopted to cure this violation. Notably, after objecting to the trial justice's ruling allowing Beth's surprise testimony, defense counsel never objected to the remedy fashioned by the trial justice-that is, the trial justice's decision to allow her to testify on June 3, giving defense counsel three days to prepare.[13] Even more importantly, defense counsel made no indication on the day Beth was to testify that he was not prepared. He never expressed any reluctance in proceeding after either his initial objection or after he received the material the following day.

         We have recognized scenarios where, based on the clear adverse disposition of the trial justice, we do not fault counsel for failing to press the issue further. This is not such a scenario. But see State v. Mead, 544 A.2d 1146, 1150 (R.I. 1988) (holding that a request for a cautionary instruction would have been futile where the trial justice had twice "summarily overruled defendant's objections"). The trial justice had accommodated defense counsel, and counsel's failure to raise the issue again did not stem from any failure of the trial justice. Therefore, it is our opinion that the trial justice did not abuse his discretion in failing to craft an alternative remedy when there was no notice given to him that his original remedy might be inadequate.

         Still, defendant maintains on appeal that Beth's testimony should have been excluded altogether. At the outset, we remark "that the sanction of excluding testimony is an extreme and drastic remedy which should be exercised with caution and restraint." Ramos, 553 A.2d at 1067. The defendant analogizes this case to Langstaff, 994 A.2d at 1220, wherein we held that the trial justice incorrectly allowed the prosecution to introduce Rule 404(b) evidence that it presented to the defense and the court on the morning of the second day of trial. There, we agreed with the prosecution that there was no proof that it deliberately withheld the evidence, but nevertheless determined that it was improper "for the trial justice to have permitted the introduction of this evidence for any purpose just a few short hours after [the] defendant was apprised of it." Langstaff, 994 A.2d at 1220.

         However, Langstaff is distinguishable. Rather than permitting the evidence "a few short hours" after it came to light, the trial justice gave defense counsel until June 3 to prepare for Beth's testimony. See Langstaff, 994 A.2d at 1220. We have previously stated that "[i]n light of * * * unexpected and crucial piece[s] of evidence, * * * the court should * * * impose[] a remedy that might at least * * * place[] the defendant in as favorable a position as he would have been had the information been furnished in [a] timely fashion." State v. Darcy, 442 A.2d 900, 903 (R.I. 1982). As evidence of the prejudice he suffered, defendant emphasized that "there was no mention of [Beth] during his opening statement * * *, only a brief reference during closing argument * * *, and his cross-examination of [Beth] did nothing to probe her truthfulness or her potential bias or motive to lie." And yet, defense counsel chose not to request a continuance; and, while "acceptance or rejection of a continuance is not the standard to determine if Rule 16 is violated, " it is relevant as to whether defendant was prejudiced, which is the "primary factor" we consider in determining the appropriate remedy for a Rule 16 violation. State v. Olsen, 610 A.2d 1099, 1103 (R.I. 1992) ("[the] defendant undercuts his argument that he was prejudiced by the state's nondisclosure" in his decision to reject the trial justice's offer of a continuance); see also Espinal, 943 A.2d at 1063 n.16 ("We note that defense counsel chose not to move for a continuance after he became aware of the information * * *. Such a motion, if granted, would have afforded counsel an opportunity to alter his trial strategy in light of the apology.").

         Defense counsel asks us to infer that, where his "cross-examination of [Beth] was noticeably meager, " the allowable suggestion is that he "did not, in fact, have sufficient time to prepare, " and thus was prejudiced. We decline to take such a leap. We are hesitant to make inferences from what very well might have been a strategic decision of counsel;[14] and, because we decline to make such an inference of prejudice, we cannot say that it was an abuse of discretion for the trial justice to give defense counsel three days to "adequately prepare for trial and to plan trial strategy with his or her client." State v. Small, 735 A.2d 216, 218 (R.I. 1999) (mem.).

         "[W]e have acknowledged that the trial justice is in the best position to fashion a proper remedy for noncompliance with the discovery rule, " and we are satisfied that the trial justice here did just that. Ramos, 553 A.2d at 1068; but see Coelho, 454 A.2d at 245 (holding that "it would be unreasonable to expect defense counsel to proceed to trial that afternoon" based on the large amount of discovery material presented that morning). Therefore, the trial justice did not abuse his discretion in giving defense counsel the weekend to prepare for Beth's impending testimony.

         B. Rule 404(b)

         1. Standard of Review

         When the issue before us concerns a trial justice's decision to either admit or exclude evidence, we examine that issue under an abuse-of-discretion standard. State v. Husband, 162 A.3d 646, 655 (R.I. 2017). If the evidence was admitted under Rule 404(b), then "this Court is 'disinclined to perceive an abuse of discretion so long as the record contains some grounds for supporting the trial justice's decision * * *.'" State v. Cavanaugh, 158 A.3d 268, 279 (R.I. 2017) (quoting State v. Clay, 79 A.3d 832, 838 (R.I. 2013)).

         2. Analysis

         Although other crimes are usually inadmissible to prove the guilt of a present crime, "it is generally conceded that evidence of other acts, representations, and conduct at different times, even of a criminal nature, may be received when they are interwoven with the offense for which the defendant is being tried * * *." State v. Colangelo, 55 R.I. 170, 173-74, 179 A. 147, 149 (1935). "In molestation or sexual assault cases, evidence of a defendant's prior sexual misconduct cannot be admitted to prove that 'defendant is a bad man, and that he has a propensity toward sexual offenses and, therefore, probably committed the offenses with which he is charged.'" State v. Mohapatra, 880 A.2d 802, 806 (R.I. 2005) (quoting State v. Quattrocchi, 681 A.2d 879, 886 (R.I. 1996)).

         Nevertheless, under Rule 404(b), when the evidence is of prior sexual misconduct with a person other than the complainant, "'nonremote similar sexual offenses' are admissible under [its] exceptions * * *." Mohapatra, 880 A.2d at 806 (quoting State v. Jalette, 119 R.I. 614, 627, 382 A.2d 526, 533 (1978)). Further, the evidence "is admissible 'only when that exception is relevant to proving the charge lodged against the defendant, ' and 'only when reasonably necessary.'" Id. (quoting Jalette, 119 R.I. at 627, 382 A.2d at 533). Last, if the trial justice allows the evidence, he or she "must instruct the jury on the limited purpose for which the evidence may be considered." Id.

         a. Remoteness and Similarity

         Turning first to the question of remoteness and similarity, we start by saying that, when a defendant's prior sexual misconduct against persons besides the complainant is introduced, it "must be sufficiently similar and contemporaneous to support a ruling of admissibility by the trial justice." Mohapatra, 880 A.2d at 806. Both the similarity and contemporaneousness of the acts are required for a common purpose: to "establish[] a close relationship between the evidence of other bad acts and the crime charged * * *." State v. Brigham, 638 A.2d 1043, 1045 (R.I. 1994). Our case law does not consider "nonremote" and "similar" to be distinct requirements, and instead the two are born from the same concept and proven in the same manner; that is, "[o]ffenses will be considered sufficiently 'nonremote' and 'similar' when they are 'closely related in time, place, age, family relationships of the victims, and the form of the sexual acts.'" Mohapatra, 880 A.2d at 806 (quoting Brigham, 638 A.2d at 1045).

         We are satisfied here that defendant's offenses against Anna and Beth fall within this spectrum and are "nonremote" and "similar." To start, each of defendant's indiscretions were directed against, for all intents and purposes, daughters in his life: in Anna's case, the daughter of a girlfriend who called him "Dad, " and in Beth's case, his biological daughter. Each victim was around eight years old when the abuse first occurred, and away from their mother's supervision. Although the exact locations differed, the majority of the abuse occurred in what was at the time defendant's residence, where he had direct access to the victims: in Anna's case, the home he shared with her mother (with only two exceptions), and with Beth, an apartment in which he lived alone. Moreover, the manner of abuse was similar with each victim in that both cases involved penetration, successful or otherwise. See State v. Hopkins, 698 A.2d 183, 185 n.2, 186 n.4 (R.I. 1997) (affirming trial justice's decision that probative value outweighed unfair prejudice where the victims were abused in generally the same location, in the same manner, and at the same age by the defendant, with whom they had a similar relationship).

         The defendant contends that the manner of abuse varies between the victims because Beth's abuse involved attempted penetration, while Anna's involved actual penetration. Further, Beth testified that defendant bound her, while Anna did not. As such, defendant asserts that "[t]he incidents were not alleged to take place under the same circumstances, in the same location, or in the same pattern; nor did they contain uncannily similar facts." However, in reviewing a trial justice's admittance of Rule 404(b) evidence, "this Court is 'disinclined to perceive an abuse of discretion so long as the record contains some grounds for supporting the trial justice's decision * * *.'" Cavanaugh, 158 A.3d at 279 (quoting Clay, 79 A.3d at 838). Thus, we are not concerned with whether the incidents were exactly the same, nor with whether they contained "uncannily similar facts." That said, based on the aforementioned numerous chilling similarities between the indiscretions the two victims alleged, we cannot say that the trial justice abused his discretion in determining that they were sufficiently similar. See State v. Coningford, 901 A.2d 623, 628 (R.I. 2006) (upholding the trial justice's decision that "remoteness of the prior acts was outweighed by the probative value of the evidence" to show a common scheme, plan, or modus operandi to molest young boys).

         Additionally, the length of time that spans between defendant's alleged abuse against Beth and Anna does not alter our holding. Beth testified that the assault on her took place in 2003, which was approximately eleven years after the last incident to which Anna testified. Moreover, the first assault on Anna occurred approximately fifteen years before Beth's alleged assault. Thus, the time frame between the two acts is between eleven and fifteen years. The defendant acknowledges that we have previously held that spans ranging from seven to eleven years, Coningford, 901 A.2d at 628; State v. Toole, 640 A.2d 965, 969, 971 (R.I. 1994), and ten years, Hopkins, 698 A.2d at 186, were permissible in a Rule 404(b) analysis. When compared to the durations we have previously upheld, the trial justice's determination that the eleven to fifteen years here was permissible was not an abuse of discretion.

         What is more, we emphasize that "[r]emoteness is relative, depending upon the circumstances and the conduct in question." State v. Pignolet, 465 A.2d 176, 181 (R.I. 1983). When we consider the circumstances of the abuse alleged-that each victim was around eight years old the first time defendant molested, or attempted to molest, them-in light of the length of time between the acts, the eleven to fifteen years appears neither remote nor dissimilar. See id. at 181-82 ("[W]here the similar acts involved sexual abuse of young girls * * * the incident that occurred three years before the trial date is not remote, rather it is a part of a continuing practice of sexually abusing these girls."). Instead, mindful that remoteness is relative depending upon defendant's conduct, that eleven to fifteen years does not appear so vast where the second alleged victim was another eight-year-old girl, over whom he also exercised supervision and with whom he had a familial relationship.

         Accordingly, the trial justice's finding that Beth's testimony was nonremote and similar was not an abuse of his discretion.[15]

         b. Rule 404(b) Exceptions

         Having been satisfied with the trial justice's determination that Beth's testimony was nonremote and similar, we next must examine the appropriateness of the Rule 404(b) exception under which he allowed the state to admit Beth's testimony. In allowing Beth's testimony, the trial justice explained that "[a]lthough the words 'modus operandi' don't pertain to this rule, in this particular case the Court finds this is enormously relevant in light of the nature of these crimes of child molestation, sexual assault." In his limiting instruction to the jury, the trial justice told it to consider the evidence only pertaining to defendant's "motive, his opportunity, his intent, preparation, his plan as it relates to the testimony given * * * by [Anna]."[16]

         Beth's testimony fits comfortably within a Rule 404(b) exception to show plan to abuse young girls of a similar age with whom he had a similar relationship.[17] State v. Merida, 960 A.2d 228 (R.I. 2008), then, is helpful. In Merida, 960 A.2d at 232, we held that the trial justice did not abuse his discretion in finding that the Rule 404(b) evidence was "part of a common scheme or plan and * * * relevant to show motive, intent, and plan to abuse children of similar age in a somewhat similar manner." In so finding, the trial justice in that case considered the following: "both * * * [girls] * * * alleged digital penetration; * * * the ages of both girls at the time [of] the alleged [abuse] * * * were similar (both being young girls above toddler age and below adolescence); * * * both girls had a family relationship with [the] defendant; * * * and * * * both had had unsupervised contact with [the] defendant in his * * * residence." Id. Moreover, the Rule 404(b) witness there testified to abuse that occurred between 1994 and 1998 (eight to twelve years prior to trial), while the complaining witness testified to abuse between 2001 and 2004 (two to five years prior to trial). Merida, 960 A.2d at 230, 231, 232.

         The similarities between that case and the present one lead us to determine that the trial justice did not abuse his discretion in finding the "common scheme or plan" exception applicable here.[18] See Merida, 960 A.2d at 232. Both Anna and Beth allege that defendant attempted to penetrate them, although he was unsuccessful with Beth due to her resistance. Moreover, Anna and Beth were approximately the same age when the abuse began, each viewed defendant as a father figure (whether biological or otherwise), and both were left alone with defendant. Considered together, Anna's and Beth's testimony have at least the same amount of similarities as the accounts in Merida. Id.; see also Mohapatra, 880 A.2d at 808 (holding that the trial justice acted within his discretion by admitting evidence as Rule 404(b) "common scheme or plan" exception where defendant sexually assaulted two family friends in a similar manner); see also State v. Cardoza, 465 A.2d 200, 203 (R.I. 1983) (affirming the trial justice's finding that the Rule 404(b) evidence "was part of [the] defendant's continuing behavioral pattern of sexually abusing his stepdaughters within the same time period").

         Furthermore, it is of no consequence that Beth's alleged abuse occurred fifteen years after the charged crime. Rule 404(b) and its exceptions refer only to "other" crimes, without distinguishing between previous and subsequent crimes, and we will not read such language into that rule today.

         Therefore, the trial justice did not abuse his discretion in determining that the evidence fit within a Rule 404(b) exception.

         c. Relevance and Reasonable Necessity

         Next, to be admissible under Rule 404(b), "the evidence must [also] be 'relevant' to the crime charged and 'reasonably necessary.'" Coningford, 901 A.2d at 628-29 (quoting Jalette, 119 R.I. at 627, 382 A.2d at 533).

         1. Relevance

         We have previously articulated that "Rule 401 of the Rhode Island Rules of Evidence defines 'relevant evidence' as 'evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.'" State v. Perez, 161 A.3d 487, 497 (R.I. 2017). Also significant to our analysis, "Rule 402 of the Rhode Island Rules of Evidence indicates that '[a]ll relevant evidence is admissible.'" Perez, 161 A.3d at 497. Thus, "the relevancy bar * * * is quite low." Id.

         Beth's testimony "was indicative of '[the] defendant's lecherous conduct toward' * * * [girls] 'over whom he exercised discipline, control, and supervision.'" Perez, 161 A.3d at 497 (quoting Pignolet, 465 A.2d at 182). Despite defendant's urging otherwise, we do not quibble with the trial justice's declaration that "[t]he [c]ourt finds that this is relevant in light of the high burden of proof to the [s]tate and in light of the fact that the only witness's testimony in this particular case with regard to what happened is [Anna] herself * * *." The trial justice did not allow Beth's testimony to bolster Anna's testimony, as defendant suggests, but rather to show a larger pattern of behavior adverse to young girls, demonstrating a plan. See id. Thus, the trial justice did not abuse his discretion in concluding that Beth's testimony was in fact relevant.

         2. Reasonable Necessity

         As for whether Beth's testimony was "reasonably necessary, " "[w]hen charges of sexual abuse hinge upon a credibility contest between [the] defendant and child complainant, relevant evidence of prior sexual misconduct is reasonably necessary to support the complainant's testimony." Mohapatra, 880 A.2d at 808. Although Anna alleges abuse that occurred when she was a child, she testified when she was thirty-four years old. Therefore, we will not extend to Anna the same latitude we do to child complainants. Still, even without such latitude, we conclude that the trial justice did not abuse his discretion in determining that Beth's testimony was "reasonably necessary" under Rule 404(b).

         In Cavanaugh, 158 A.3d at 280, we addressed the reasonable necessity of Rule 404(b) testimony of a sexual assault other than the one for which the defendant was on trial. There, we analogized Mohapatra, recalling how we recognized in that case "that prior incidents of sexual assault are reasonably necessary to the state's case when the victim's credibility is placed at issue." Cavanaugh, 158 A.3d at 280. We continued that:

"We are cognizant that this is a case in which the evidence revealed a crime committed in private with a significant lapse of time between the sexual assaults and the prosecution. The credibility of the complainant was placed at center stage. We therefore are persuaded that this evidence meets the test of relevancy and ...

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