Providence County Superior Court K1/15-742A Associate Justice
Brian P. Stern
State: Christopher R. Bush Department of Attorney General
Defendant: Lara E. Montecalvo Office of the Public Defender
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
Maureen McKenna Goldberg Associate Justice
defendant, Henry Bozzo, appeals from a judgment of conviction
following a jury verdict of guilty on one count of
first-degree child molestation sexual assault, in violation
of G.L. 1956 § 11-37-8.1. The trial justice sentenced
the defendant to forty-five years at the Adult Correctional
Institutions, with eighteen years to serve and the balance
suspended, with probation. The defendant timely appealed. For
the reasons set forth in this opinion, we vacate the judgment
of conviction and remand the case to the Superior Court for a
August 2015, the complainant, Veronica,  was seven years
old. Her parents, Antonio Pina (Pina) and Kathryn Johnson
(Kathryn), who never married, lived separately. On Tuesdays
and Thursdays, Veronica stayed with her father, who lived
across the street from defendant and his common-law wife,
Denise Jones (Jones).
testimony at trial revealed that Pina and defendant were
friends and shared a common interest in automobiles. Veronica
testified that she also thought of defendant as her friend,
and that defendant would hug her every time he saw her. Pina
stated that Veronica would often walk across the street to
defendant's house, and, whenever Veronica saw defendant
or Jones, "she would run over to them" and
"give them a hug and a kiss on the cheek, just being
August 4, 2015, Veronica and her father were playing in
Pina's front yard when Jones stopped and gave Veronica a
flower. Veronica and Pina then walked across the street to
talk to defendant, who was standing in his yard. Veronica
hugged defendant. The defendant then sat on a pile of
shingles, and Veronica sat on his lap. According to Veronica,
she sat on defendant's left leg with her legs inside
defendant's legs and defendant's left hand against
her back. When her father went to look at defendant's
Chevrolet El Camino, which was parked in his driveway, out of
defendant's sight, defendant put his right hand under
Veronica's skirt and touched her vagina, over her
underwear. Veronica testified that defendant
"tapped" her vagina and then she felt his finger go
inside of her. Veronica testified that she was scared and
uncomfortable, and she devised an excuse to get off
defendant's lap. According to Veronica, defendant smiled
at her but said nothing.
did not immediately tell Pina about the assault because she
thought he would be upset. Later that evening, Veronica told
her grandmother, Helene Johnson (Helene), about the incident
because it was easier to talk to her grandmother and Veronica
did not think that the disclosure would upset her. Helene
called Kathryn at work and told her what happened. Kathryn
left work and went to Helene's house to talk to
Veronica-who, according to Kathryn, appeared scared and
confused. Kathryn did not have an exhaustive discussion with
Veronica at that time, because she was frightened and
uncertain about what to say to her daughter. Kathryn did not
report the assault to the police. She called Pina, but when
she began to explain what happened, he "flipped out on
[her, ]" and she was unable to tell him everything that
Veronica had revealed to her.
next day, Veronica went to Pina's house and told him
about the assault. Pina did not call the police, however,
"[b]ecause the way I asked [Veronica], she agreed with
the way I asked her and to me I took it as it was a mistake.
It was an accident." Veronica testified that initially
she thought the touching could be an accident, but after
meeting with her counselor, she realized that it was not
September 2015, about a month after the assault, Pina
witnessed a raid at defendant's house by multiple state
troopers; he later learned on social media that it was a
police investigation into defendant for possession of child
pornography. Pina called Kathryn and told her about the raid,
and that prompted her to report the assault to the Warwick
November 17, 2015, a grand jury indicted defendant for one
count of first-degree child molestation sexual assault, in
violation of § 11-37-8.1. The defendant was convicted
following a jury trial in October 2016. On January 20, 2017,
the trial justice sentenced defendant to forty-five years at
the Adult Correctional Institutions, with eighteen years to
serve and the balance suspended, with probation. The
defendant filed a timely appeal.
this Court, defendant advances four assignments of error. The
defendant argues that the trial justice erred: (1) in denying
defendant's motion for a mistrial based on a police
officer's reference during his testimony to a polygraph
examination; (2) in denying defendant's motion for a
mistrial based on the prosecutor's comments during
closing argument about defendant's courtroom demeanor at
trial; (3) in admitting testimony about the arrest and
prosecution of defendant for possession of child pornography;
and (4) in failing to safeguard defendant's right to a
fair trial based on various claims related to the presence of
members of a motorcycle group known as "Bikers Against
Child Abuse" (BACA) in the courtroom during trial. We
address each contention in turn, and we will provide
additional facts and procedural history as necessary.
to Pass the Case
ruling on a motion to pass, the trial justice must assess the
prejudicial impact of the statement in question on the jury
and determine whether the evidence was of such a nature as to
cause the jurors to become so inflamed that their attention
was distracted from the issues submitted to them."
State v. Lastarza, 203 A.3d 1159, 1165 (R.I. 2019)
(quoting State v. Cipriano, 21 A.3d 408, 428 (R.I.
2011)). "The trial justice makes this determination by
examining the witness's statement or remark in its
factual context." Id. (quoting State v.
Werner, 830 A.2d 1107, 1113 (R.I. 2003)).
"Moreover, we previously have held that even prejudicial
remarks do not necessarily require the granting of a motion
to pass." Id. (quoting Roma v.
Moreira, 126 A.3d 447, 449 (R.I. 2015)).
trial justice's decision on a motion to pass the case is
addressed to the sound discretion of the trial justice, and
this Court will not disturb the ruling on such a motion
absent an abuse of discretion." Lastarza, 203
A.3d at 1165 (quoting State v. Rosado, 139 A.3d 419,
423 (R.I. 2016)). "We give great deference to the trial
justice in this regard because he or she has a front-row seat
at the trial and is in the best position to determine whether
a defendant has been unfairly prejudiced." Id.
(quoting Rosado, 139 A.3d at 423).
to the Polygraph Examination
the facts of this case were known to the Warwick police,
defendant was interviewed by the police on two occasions
concerning the child pornography investigation. During the
second interview at the state police barracks, defendant
underwent a polygraph examination. The circumstances of the
police interviews and an inadvertent reference to the
polygraph examination by a witness at trial are issues in
trial, defendant filed a motion in limine to
preclude evidence of the polygraph examination at trial.
During a hearing on that motion, the court recognized that
the state had "agreed on the record to * * * redacting
out anything that makes reference to a polygraph
examination." Indeed, the prosecutor stated: "The
state does not intend to introduce any evidence related to
the polygraph. I have no issue redacting anything * * *
relating to a polygraph or any mention thereof[.]" At
trial, however, Detective Kevin Petit, the police officer who
had administered the polygraph examination to defendant,
referenced the polygraph while testifying on
cross-examination. Detective Petit testified that he
initially interviewed defendant at his home, and then
conducted a follow-up interview at the state police barracks.
Defense counsel then asked Det. Petit how long the follow-up
interview lasted, and the following colloquy ensued:
"[DEFENSE COUNSEL]: Do you know how long that interview
"[DETECTIVE PETIT]: A couple of [sic] three
hours I believe. In the interim there was a polygraph exam
given so I didn't have-
"[DEFENSE COUNSEL]: Objection.
"THE COURT: Sustained. The jury will disregard."
counsel requested a sidebar and immediately moved to pass the
case, arguing that the polygraph reference warranted a
mistrial, and that a curative instruction would not be
sufficient to cure the prejudice caused by its reference. The
state argued that a curative instruction would be sufficient
because Det. Petit did not reveal the results of the
polygraph examination, but only that one had been
administered to defendant.
trial justice declined to grant a mistrial, stating:
"Counsel, the [c]ourt is going to decline your motion to
pass. You have preserved the record at this point. The
[c]ourt will at some point give a curative instruction and
has instructed the jury to disregard the answer."
defendant did not object to the failure to give an immediate
cautionary instruction, nor did he proffer any suggestions
about the substance of the instruction. After the
cross-examination, redirect, and recross of Det. Petit
concluded, the trial justice gave the following curative
instruction to the jury:
"[A]t the very beginning of the trial I told you that
when the [c]ourt has an objection and will overrule or
sustain it. When I overrule an objection, it's very easy.
You can consider the answer as evidence. If I sustain an
objection to a question that was not answered, you're
never hearing the answer so there is no evidence to consider,
and, as I told you, you can't read into the question
itself. There have been times during this witness'
testimony and others where the witness said something, there
was an objection afterwards and I sustained the objection. I
want to remind the jury again, as I did initially, you cannot
consider either the question or the answer given by the
witness. It cannot have any weight or any evidentiary value
one way or another. You can't make any inferences as to
what you heard. You ...