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State v. Colon

Supreme Court of Rhode Island

January 9, 2019

Jose Colon.

          Kent County Superior Court (K1/14-568A) Associate Justice Brian P. Stern

          For State: Owen Murphy Department of Attorney General

          For Defendant: Thomas M. Dickinson, Esq.

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



         This 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.

         Before 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.

         Facts and Travel

         On April 19, 2013, the complaining witness, Chris (Chris or complainant), [1] 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.[2] 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.

         The 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 the police.

         When 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.

         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.

         Prior 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.[3] 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 justice noted:

"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."

         When Kara and Zoe later testified at trial regarding allegations that defendant had also touched them inappropriately, defendant failed to raise any objection.

         Before 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."[4] 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.

         Kara, 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 ...

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