County Superior Court (K1/14-568A) Associate Justice Brian P.
State: Owen Murphy Department of Attorney General
Defendant: Thomas M. Dickinson, Esq.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
MAUREEN MCKENNA GOLDBERG, ASSOCIATE JUSTICE
case came before the Supreme Court on November 8, 2018, on
appeal by the defendant, Jose Colon (defendant), from a
judgment of conviction entered in the Superior Court
following a jury trial at which he was found guilty of one
count of first-degree child molestation sexual assault.
this Court, defendant argues that the Superior Court justice
committed reversible error in: (1) allowing testimony
concerning other alleged incidents of sexual assault, in
violation of Rules 403 and 404(b) of the Rhode Island Rules
of Evidence; (2) limiting defense counsel's
cross-examination of a witness; and (3) allowing hearsay
testimony into evidence, which, defendant argues, amounted to
improper bolstering. For the reasons set forth herein, we
affirm the judgment of conviction.
April 19, 2013, the complaining witness, Chris (Chris or
complainant),  then a young adult, contacted the police
department in Warwick, Rhode Island, to report that
defendant, her uncle, had sexually abused her when she was
six years old. According to her testimony at trial, Chris
was motivated to file a complaint at that time because she
"didn't want anyone else to get hurt." On
September 17, 2014, an indictment was returned, charging
defendant with one count of first-degree child molestation
sexual assault, in violation of G.L. 1956 §§
11-37-8.1 and 11-37-8.2.
conduct giving rise to the indictment occurred during a
sleepover at defendant's home in August 2001. Chris, who
was six years old, and her cousin―defendant's
daughter―Kara, who was four years old at the time, were
sleeping in Kara's bed, which was located in
defendant's bedroom. Chris testified that defendant,
wearing only a towel around his waist, entered the room,
locked the door, and then proceeded to remove Chris's
pants, "lick his fingers and then started touching"
her, putting his fingers "[i]n [her] vagina." When
Chris's aunt Marilyn Colon (Marilyn), defendant's
wife, knocked on the door, defendant stopped, quickly threw a
bedsheet over Chris, and opened the door. Chris testified
that she pretended to be asleep while defendant was touching
her, but that she "was confused" and
"didn't really know what was going on."
Initially, Chris did not tell anyone what happened, and years
would pass before she began speaking about the incident,
first with her cousins, then her mother, and eventually, to
she was between ten and twelve years old, Chris disclosed the
assault to her cousins, Kara and Kara's sister, but she
decided not to tell her mother because she "didn't
want for [her cousins] to lose their dad and for the whole
family to just destroy." According to Chris, the family
was very close and defendant was "basically [her]
father" when she was growing up. A few years later, when
she was fourteen, Chris confided in her then-boyfriend, Angel
Vigo (Vigo), who, unbeknownst to Chris, told a family friend
about what Chris had told him. The family friend relayed this
information to Chris's mother, who confronted her
daughter; Chris confirmed the allegation. Chris's mother
convened a family meeting to confront Marilyn and defendant
with the abuse allegation. Marilyn and defendant denied the
accusation, and the families subsequently became estranged.
The police were not contacted at that time.
passed, Kara and Chris eventually reconnected, and Chris
learned from Kara that defendant had sexually abused her as
well as Chris's younger sister, Zoe. This information was
the catalyst that initiated a chain of events which
culminated in this prosecution.
to trial, on October 15, 2015, the trial justice heard
several motions in limine, including the state's
motion to allow the testimony of Kara and Zoe under Rule
404(b); the state argued that the evidence established
defendant's "common plan or scheme" to molest
young female relatives. The state also contended that the Rule
404(b) evidence was necessary for the prosecution because the
allegations by Zoe and Kara were so inextricably interwoven
with the crime alleged and explained the circumstances
surrounding Chris's belated, but eventual, disclosure of
the abuse by defendant. Defense counsel countered that the
Rule 404(b) evidence was not necessary to satisfy the
state's burden of proof and was unfairly prejudicial. The
trial justice granted the state's motion in
limine, but explicitly notified counsel that he would be
prepared to revisit the issue at trial and invited defense
counsel to renew his objections accordingly. The trial
"But I want to be very clear, barring that I'm going
to grant the [s]tate's motion with a couple of caveats.
First of all, you can raise the issue again after the
complaining witness testifies. And, number two, depending on
what is said on the witness stand, the [c]ourt will be
willing to review, because once there is evidence in, it may
be another determination for the next witness in terms of
whether the prejudicial effect is outweighed."
Kara and Zoe later testified at trial regarding allegations
that defendant had also touched them inappropriately,
defendant failed to raise any objection.
Zoe took the stand to testify at trial, the trial justice
instructed the jury that the conduct about which the witness
would testify was not to be used as propensity evidence and
was admissible "for the limited purpose of this
defendant's intent, motive, opportunity, preparation,
plan, knowledge, identity with respect to this case, but for
no other purpose." Zoe was asked on direct examination by
the prosecutor to recall an incident that occurred when she
was eight or nine years old, during a New Year's Eve
party at defendant's house. Zoe testified that she and
Kara, who was eleven or twelve years old at the time, were
asleep in defendant's bedroom when defendant entered,
pulled down Zoe's pants, and "started touching [her]
private spot." She testified that, while this was
happening, she reached for Kara's hand and the two held
hands. After defendant left, Kara pleaded with Zoe not to say
anything. It was not until several years later, when Chris
confronted her, that Zoe confirmed the incident. Chris
testified that it was this disclosure that prompted her to
notify the police, so that no one else could be hurt.
on the other hand, testified that, although she previously
had made statements to police indicating that defendant had
touched Zoe at the New Year's Eve party, she recanted
those statements to defense counsel on the eve of trial. She
admitted that "someone" had gotten into the bed,
laid down, and touched Zoe "in a very inappropriate
way" that night, but claimed that it was not her father.
According to Kara's testimony, she merely reported what
Chris told her had occurred. Kara explained that she
initially stated that it was defendant because that was
"what [her] cousin had told [her.]" Kara similarly
recanted an allegation she had made to police that defendant
had molested her when she was five or six years old. On
cross-examination, defense counsel asked Kara why she
fabricated these stories. She responded, "From what I
was told," and she was subsequently asked, "By
whom?" The state objected, and the trial justice
sustained the objection but allowed Kara's response
"From what I was told" to remain on the record.
Defense counsel ...