Washington County Superior Court (W1/13-151A) Associate
Justice Melanie Wilk Thunberg
For
State: Virginia M. McGinn Department of Attorney General
For
Defendant: Susan B. Iannitelli, Esq.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
Indeglia, JJ.
OPINION
MAUREEN MCKENNA GOLDBERG, ASSOCIATE JUSTICE
This
case came before the Supreme Court on December 7, 2017, on
appeal by the defendant, Joshua Rathbun (defendant), from a
Superior Court judgment of conviction on two counts of
first-degree child molestation sexual assault involving his
biological daughter. The defendant received two concurrent
forty-year sentences, with twenty-five years to serve and the
remainder suspended with probation.
Before
this Court, defendant argues that the trial justice erred by:
(1) admitting the testimony of Natalie Kissoon, M.D., which
he contends amounted to improper bolstering that was admitted
without proper foundation; (2) refusing to grant
defendant's motion to pass the case; and (3) denying
defendant's motion for a new trial based upon newly
discovered evidence. For the reasons set forth herein, we
affirm the judgment of the Superior Court.
Facts
and Travel
The
defendant and his ex-wife, Michele Rathbun (Michele), were
living together at the time the couple's first child,
Megan, [1] was born on May 21, 1999. The couple
married in 2002, had a second child on November 11, 2003, and
divorced in November 2004. After their second child was born,
Michele was employed at a bank and worked longer hours than
defendant, which necessitated defendant picking up the
children at preschool, bathing them, feeding them, and
putting them to bed. After the couple divorced in 2004,
Michele began a relationship with Gary Benevides (Gary), who
became a father figure to her children and lived in the home
with Michele and the children. Similarly, defendant began
dating and eventually married Desiree Tasca; he resided at
his father's house, which was a short distance from
Michele's home.
In
2006, when Megan was approximately six or seven years old,
defendant and Desiree moved to Utah. The defendant and
Desiree subsequently had two children together; and,
according to Michelle, upon learning of this, Megan reacted
"[w]ith excitement" and she "liked the fact
[that] she had" younger siblings. Although Megan never
traveled to Utah to visit defendant, they remained in contact
over the telephone and occasionally over video chat.
In
2012, Desiree and her two children visited Michele and her
family. During this visit, Desiree and Michele had a
discussion in which Desiree stated that her oldest daughter
was very similar to Megan in the sense that she was
"extremely quiet and introverted[.]" Around the
same time, in 2012, Michele began noticing a change in Megan
that was concerning. She observed cuts on Megan's legs
that she described as "just cuts * * * just slices,
scratches, cuts * * * they were just lines." Megan's
behavior worsened after Desiree's visit; and according to
her mother, she became "[v]ery introverted, quiet,
depressed * * * unhappy[, ]" and her cuts "became
more obvious." When Michele confronted Megan with
bloodied tissues, scissors, razor blades, and tacks that she
had found in Megan's room, Megan initially denied that
she was cutting herself but eventually disclosed that she was
harming herself because, according to Michele, "she did
not like herself, that she thought she was ugly and
disgusting, that she hated herself." Michele took Megan
to her pediatrician, Russell Stokes, M.D., who referred Megan
to a therapist, Clare Sartori.
Shortly
thereafter, Michele found a notebook in Megan's room with
the words "I'm broken" written repeatedly on
every page. Michele confronted her daughter and asked her,
"Why are you so broken?" At this point, according
to Michele, Megan stated that "her father had hurt
her" and that "[m]y father touched me." Megan
further revealed to her mother that her father sodomized her
and performed oral sex on her. In light of these allegations,
Michele visited Megan's therapist, contacted the
Department of Children, Youth and Families (DCYF), and sat
for an interview with the Rhode Island State Police. Megan
underwent a physical exam at Hasbro Children's Hospital,
performed by Dr. Kissoon, a fellow in child-abuse pediatrics.
Megan also underwent interviews by DCYF, the State Police,
and a forensic psychologist.
On
March 22, 2013, defendant was indicted by a grand jury on two
counts of first-degree child molestation sexual assault, in
violation of G.L. 1956 § 11-37-8.1.[2] At trial, the
state presented Michele, Gary, Dr. Kissoon, and Megan as
witnesses. Michele testified in depth about Megan's
revelations. She testified that Megan told her "[t]hat
her father had * * * put his penis in her butt and that her
father had put his mouth on her private part * * * and had
touched her." Megan also testified at trial. She
testified that, when she was younger and lived with
defendant, he showered with her "almost every
time." On one occasion in particular, when she was
approximately four years old, Megan recalled defendant
telling her to put her hands on the wall of the shower and
subsequently sodomizing her. Megan testified with respect to
another incident that occurred after defendant and Michele
had divorced and defendant had moved out of the family home.
When Megan was seven years old, she visited defendant at her
grandfather's home, where defendant was residing at the
time. Megan awoke to the sound of defendant and Desiree
fighting, and recalled Desiree telling her, "[Y]our dad
and I were arguing. I'm going to put you in his
bed." Sometime thereafter, defendant joined Megan in his
bed and she was awakened again by "something very
uncomfortable down * * * near [her] private parts."
Megan attempted to stop the oral copulation by kicking
defendant, to no avail.
Also at
trial, Dr. Kissoon testified as an expert in child-abuse
pediatrics. She testified that Megan was brought to the Child
Protection Center at Hasbro Children's Hospital by her
mother "due to concerns for sexual abuse." Pursuant
to standard procedure, Dr. Kissoon performed a physical exam
on Megan and did not discover anything abnormal with respect
to Megan's physical condition. Doctor Kissoon testified
that, "even when we know that there's been
penetration, 90 to 95 percent of those children had a
completely normal physical exam, including a normal genital
exam." Finally, Dr. Kissoon stated that her final
assessment in Megan's case was "[t]hat her
disclosure was consistent with sexual abuse." At this
point, defendant moved to strike Dr. Kissoon's statement
pursuant to Rule 16 of the Superior Court Rules of Criminal
Procedure.[3] Defense counsel later, during Megan's
testimony, further argued that the doctor's statement
should be stricken because she had not reviewed Megan's
school records or her pediatric medical records and had based
her conclusion solely on what Michele had disclosed to her.
The court allowed the statement in question to stand;
however, on the following day, the court sustained the
objection, striking Dr. Kissoon's statement "[t]hat
her disclosure was consistent with sexual abuse."
Defense counsel then pressed his objection that Dr.
Kissoon's testimony should be stricken in its entirety;
the court refused to do so.
The
defendant then moved for a mistrial, arguing that "the
only corroboration of the victim's testimony in this case
comes from the now stricken answer of the * * *
[d]octor." The trial justice denied the motion for a
mistrial because corroboration was not required:
"[A]s we know, the statute for this type of offense
specifically addresses the fact * * * that the testimony
standing alone of the victim, if it constitutes proof beyond
a reasonable doubt, is sufficient to support conviction
without any corroborative or confirmatory evidence.
"So for that reason and the other reasons stated earlier
in the ruling on Dr. Kissoon's testimony, the [c]ourt
will deny the Motion for Mistrial."
At the
conclusion of the state's case, defendant moved for a
judgment of acquittal pursuant to Rule 29 of the Superior
Court ...