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State v. Rathbun

Supreme Court of Rhode Island

May 18, 2018

Joshua Rathbun

          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.



         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 ...

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