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Full Opinion
Supreme Court
No. 2023-92-C.A.
(P1/20-3378A)
(Concurrence begins on Page 50)
(Dissent begins on Page 58)
State :
v. :
Miguel Montero. :
NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
are requested to notify the Opinion Analyst, Supreme
Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Telephone (401) 222-3258 or
Email: opinionanalyst@courts.ri.gov, of any
typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2023-92-C.A.
(P1/20-3378A)
(Concurrence begins on Page 50)
(Dissent begins on Page 58)
State :
v. :
Miguel Montero. :
Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
OPINION
Justice Goldberg, for the Court. The defendant Miguel Montero (defendant
or Montero) was charged with two counts of first-degree child molestation sexual
assault, viz., fellatio, in violation of G.L. 1956 §§ 11-37-8.1 and 11-37-8.2, and two
counts of second-degree child molestation sexual assault, viz., penis to vagina, in
violation of §§ 11-37-8.3 and 11-37-8.4. After a jury trial, Montero was convicted
on one count of first-degree child molestation sexual assault and acquitted on the
remaining charges. Montero raises five issues for our consideration. We affirm the
judgment of conviction.
-1-
Factual Background
At the time of trial, defendant was the father to at least nine children, eight of
whom were between the ages of nine and fifteen years old. One child—Anne, the
complainant1—was born to Elaine in October 2011. After a hearing on a motion in
limine, see infra, Elaine testified that she was thirteen years old when she began a
“romantic relationship” with defendant, who, at the time, was approximately
twenty-eight years old. Elaine explained that defendant began engaging in sexual
intercourse with her at the age of thirteen, she became pregnant with Anne at the age
of fourteen, and she gave birth to Anne at the age of fifteen. From the time of her
birth until she was approximately three to five years old, Anne lived with Elaine in
the Dominican Republic. According to travel records admitted as a full exhibit over
defendant’s objection, Anne came to the United States on January 22, 2015, at which
time she moved to Pawtucket, Rhode Island and resided with defendant. Elaine
remained in the Dominican Republic.
Anne lived in a three-story multi-residence building. Neighbors resided on
the first floor; Montero, his then-wife, Dorothy, and their three children occupied
the second floor; and Anne lived on the third floor with defendant’s mother. In
September 2016, Dorothy and her children vacated the residence and Anne relocated
1
The names of all persons, except defendant, are fictitious for the purpose of
preserving their privacy.
-2-
to the second floor, where defendant continued to reside. At trial, Anne was ten
years old and in the fourth grade. Although she testified concerning six separate
incidents of sexual misconduct involving defendant—beginning when she was in
kindergarten or the first grade—the indictment charged four episodes, all of which
occurred on the second floor of defendant’s residence.
On one occasion, defendant steered Anne into her brother’s room, removed
his pants, positioned himself on top and, according to Anne, “rubbed his private part
on mine.” Anne clarified that the portion of the female anatomy she was referencing
was used “[t]o pee,” and that defendant also “put his mouth on my private part.”2
Anne also described a separate but similar incident when defendant positioned
himself on top of her, “did the same thing,” and “went up and down.” This second
incident occurred on the bed in defendant’s bedroom. Anne was unable to recall
how old she was when either event transpired.
A third incident transpired in a bathroom when defendant was wearing a mask
due to having contracted COVID-19. On this occasion, Anne and defendant were
behind a closed door with the bathroom lights turned off when defendant removed
his pants, hoisted himself on top of the sink, and forced his penis into Anne’s mouth.
2
Anne’s testimony that defendant performed cunnilingus was not charged in the
indictment. Anne testified that she had not told anyone about this incident until she
disclosed it to prosecutors the day before her testimony because, according to Anne,
“I don’t like talking about that because it’s scary and I don’t like talking about it.”
-3-
This episode ended after defendant ejaculated into Anne’s mouth. Anne testified
that she was eight or nine years old when this incident occurred.
The fourth charged event occurred in the late evening hours of September 11,
2020, or the early morning hours of September 12, 2020, after defendant returned
from a trip to the Dominican Republic. Anne related that she was on the third floor
of the residence with other family members when defendant returned home late in
the evening or the early morning. After affectionately greeting defendant, Anne
testified that she went downstairs to the second floor hoping to go to sleep but soon
found herself in defendant’s bedroom. Montero closed and locked the bedroom
door, removed his pants, and according to Anne, “put his private part in my mouth”
until “white stuff came out.” Anne clarified that the portion of the male anatomy
she was referencing was used “[t]o pee.”
The above-described sordid episodes comprised the indictment, see infra, but
Anne also testified to two uncharged episodes of sexual misconduct involving
defendant. Anne testified that during a family vacation to Virginia, she was in a
room with other family members of approximately the same age when defendant
“put his private part in my mouth,” and similarly, during a trip to the Dominican
Republic, when defendant “put his private part in my mouth.” Anne estimated that
the Virginia incident occurred when she was eight or nine years old, but she did not
specify when the Dominican Republic incident occurred.
-4-
Anne did not suffer in silence. When she was five years old (approximately
2016 or 2017) Anne confided in Christine, an older stepsister who was then nine
years old. After describing what defendant had done to her, Christine informed Anne
that she had been “raped.” At this point, the trial testimony is unclear whether
Christine informed defendant’s brother or Anne notified defendant’s brother and
sister; in any event, it is apparent that neither defendant’s brother nor sister assisted
Anne.
Shortly after the September 11-12, 2020 incident, Christine sensed a “weird
vibe” emanating from Anne and asked, “[W]hat’s wrong?” Anne again confided in
Christine, who in turn notified defendant’s sister. When defendant’s sister provided
no help, Christine notified a stepsister, Beth, who alerted her mother and defendant’s
ex-wife, Dorothy.
The next morning, Dorothy drove to defendant’s residence and gathered the
three children at that location, including Anne, under the ruse of an early birthday
celebration for Beth. Dorothy drove to her residence where two of the children
disembarked, leaving Dorothy and Anne alone in the vehicle. Dorothy testified that
she asked Anne to tell her about the conversation she had with Christine concerning
what “was going on in her dad’s house.” At trial, defendant objected to this inquiry
on hearsay grounds; and, after a lengthy sidebar, the trial justice overruled the
objection. Dorothy testified that Anne “told me that, um, her dad was making her
-5-
do things that she didn’t want to” and that Anne “said that her dad was putting his
private part on her mouth and making her swallow white things coming out of it and
she said it was nasty.” Dorothy’s testimony further described that Anne “said that
he used to, um, put his private part in her private part and move up and down” and
that the last incident occurred in September 2020, after her father returned from the
Dominican Republic. As a result of the conversation she had with Anne, Dorothy
notified the Department of Children, Youth, and Families (DCYF).
On September 18, 2020, a DCYF Child Protective Investigator responded to
Dorothy’s residence and conducted several interviews, including with Dorothy,
Christine, and Anne. At the conclusion of these interviews, DCYF implemented a
forty-eight-hour protective hold, effectively removing Anne from defendant’s
residence and placing Anne in Dorothy’s temporary custody. Anne was later
interviewed by DCYF, the Pawtucket Police Department, and the Office of the
Attorney General; subsequently, Anne was examined by Amy Goldberg, M.D., an
attending pediatrician at Hasbro Children’s Hospital subspecializing in the area of
child-abuse pediatrics. Doctor Goldberg testified to a reasonable degree of medical
certainty that her evaluation of Anne was consistent with child sexual abuse.
On November 23, 2020, a grand jury returned a four-count indictment. As set
forth on the verdict form, defendant was charged with committing the following acts
against Anne: count 1, on or about September 11, 2020, first-degree child
-6-
molestation sexual assault, viz., fellatio, in the second-floor bedroom at his
residence; count 2, between January 1, 2015, and September 18, 2020, first-degree
child molestation sexual assault, viz., fellatio, in the second-floor bathroom at his
residence; count 3, between January 1, 2015, and September 18, 2020,
second-degree child molestation sexual assault, viz., penis to vagina, in the
second-floor bedroom at his residence; and count 4, between January 1, 2015, and
September 18, 2020, second-degree child molestation sexual assault, viz., penis to
vagina, in a second-floor bedroom at his residence. A jury found defendant guilty
on count 2, and not guilty on counts 1, 3, and 4. The trial justice sentenced defendant
to sixty years at the Adult Correctional Institutions, with thirty years to serve and the
balance suspended, with probation. This appeal ensued.
Additional relevant facts will be set forth as needed.
Analysis
I
Evidence Admitted Pursuant to Rule 404(b)
The defendant posits that the trial justice erred when he permitted testimony
concerning certain uncharged sexual misconduct: specifically that (1) defendant
engaged in sexual intercourse with Elaine when she was thirteen years old and that
Elaine was fifteen years old when she gave birth to Anne; and (2) defendant
-7-
committed acts of sexual misconduct against Anne during visits to Virginia and the
Dominican Republic. The defendant was not charged with these events.
Issues concerning a trial justice’s decision to admit or exclude evidence are
examined under an abuse-of-discretion standard. See State v. Rainey, 175 A.3d 1169,
1182 (R.I. 2018). “If the evidence was admitted under Rule 404(b), then ‘this Court
is disinclined to perceive an abuse of discretion so long as the record contains some
grounds for supporting the trial justice’s decision.’” Id. (deletion omitted) (quoting
State v. Cavanaugh, 158 A.3d 268, 279 (R.I. 2017)).
Rule 404(b) of the Rhode Island Rules of Evidence provides:
“Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show that the person acted in conformity therewith. It
may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake or accident, or to
prove that defendant feared imminent bodily harm and that
the fear was reasonable.”
It is well settled that “Rule 404(b) prohibits the admission of evidence of other
crimes, wrongs, or acts ‘to show the defendant’s propensity to commit the crime
with which he or she is currently charged.’” State v. Mitchell, 80 A.3d 19, 28 (R.I.
2013) (brackets omitted) (quoting State v. Dubois, 36 A.3d 191, 199 (R.I. 2012)).
Thus, “the state may not offer evidence of a defendant’s other sexual misconduct ‘to
prove that the defendant is a bad man, and that he has a propensity toward sexual
offenses and, therefore, probably committed the offenses with which he is charged.’”
-8-
Id. (brackets omitted) (quoting State v. Mohapatra, 880 A.2d 802, 806 (R.I. 2005)).
However, Rule 404(b) permits “the introduction of evidence of other bad acts if
offered for other purposes, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake.” Id. In situations involving
uncharged allegations of sexual misconduct, this Court has “consistently
distinguished evidence of other sexual misconduct involving the complainant from
that involving different victims.” Id. at 29 n.8; see also State v. Coningford, 901
A.2d 623, 627 n.5 (R.I. 2006) (“This Court has refused to extend the ‘lewd
disposition’ exception to admit testimony of persons other than the victim in a
particular case.”); Mohapatra, 880 A.2d at 806 n.4 (noting that “the lewd disposition
exception ‘is almost universally recognized in cases involving proof of prior
incestuous relations between the defendant and the complaining victim’”) (quoting
State v. Tobin, 602 A.2d 528, 532 (R.I. 1992)). Accordingly, we adhere to our
precedent and separately examine the Rule 404(b) appellate issues in light of the
foregoing principles.
A
Uncharged Sexual Misconduct Involving Elaine
During a motion in limine, the state sought to admit testimony concerning
defendant’s uncharged sexual escapades with three young girls, pursuant to Rule
404(b). Specifically, the state sought to procure testimony from Elaine that
-9-
defendant engaged in sexual intercourse with her in 2007 or 2008, when she was
eleven or twelve years old and defendant was twenty-six or twenty-seven years old;3
from Dorothy that defendant engaged in sexual intercourse with her in 2003, when
she was thirteen years old and defendant was approximately twenty-two years old;
and from another woman that defendant engaged in sexual intercourse with her in
2004, when she was fourteen years old and defendant was approximately
twenty-three years old. Relatedly, the state also sought to introduce testimony that
Elaine was fifteen years old when she gave birth to Anne. All three lurid
indiscretions occurred in jurisdictions where the age of consent was at least sixteen
years of age.
The state proffered that defendant’s past sexual exploits were sufficiently
similar and nonremote to the charges in the indictment, and that the uncharged sexual
misconduct demonstrated “a common plan or scheme with young girls to sexually
gratify himself by penetrating the vagina of these other women.” The state also
argued that second-degree child molestation sexual assault required the state to
demonstrate that defendant committed the assault for purposes of sexual
gratification.
3
During the trial, Elaine testified that she was about thirteen years old when
defendant engaged in sexual intercourse with her.
- 10 -
The defendant objected and asserted that the past sexual encounters were not
sufficiently similar to the charged sexual misconduct. In particular, defendant
argued that Anne was at most eight years old when the charged sexual misconduct
occurred, but that the uncharged sexual misconduct occurred with girls who were in
their “double digits,” meaning as applied to this matter, between the ages of eleven
and fourteen. The defendant averred that unlike Anne, who is his biological
daughter, the uncharged encounters all resulted from romantic relationships that
eventually resulted in children. Montero also maintained that the nature of the sexual
acts was dissimilar—the indictment charged sexual touching and fellatio—but the
uncharged sexual misconduct involved sexual intercourse only. Finally, defendant
suggested that the uncharged sexual misconduct occurred in 2003, 2004, and 2010,
but the indictment charged sexual misconduct during the time period between
January 1, 2015, and September 18, 2020. Accordingly, defendant argued that the
sexual misconduct charged in the indictment was too remote and dissimilar and that
the testimony should be excluded pursuant to Rules 403 and 404(b).
After hearing arguments, the trial justice allowed Elaine’s testimony, reserved
decision on Dorothy’s testimony,4 and precluded testimony regarding the third
encounter. In so doing, the trial justice noted the similarities between the charged
4
During its case in chief, the state called Dorothy as a witness but did not attempt to
elicit testimony concerning defendant’s sexual encounters with her.
- 11 -
and the uncharged sexual misconduct, observing that “there’s a significant nexus
between someone who is 5 to 8 years old and someone who is 11 to 12 years old.
They’re both extremely young.” The trial justice continued that Anne is Elaine’s
daughter, a family member, and found that the nature of the misconduct allegedly
committed against Anne was “similar enough,” and that Elaine was going to testify
in this case. With respect to this latter point, the trial justice reasoned that jurors will
be able to observe Elaine’s youthful appearance when she testifies and jurors will be
able “to compute what her age would have been at the date of [Anne’s] birth,
therefore her sexual intercourse.” Defense counsel renewed the objection during
trial, which the trial justice overruled.
When considering the propriety of Rule 404(b) evidence concerning
uncharged sexual misconduct with someone other than the complainant, this Court
requires a three-step inquiry. First, “when the evidence offered proves prior sexual
misconduct with someone other than the complainant, ‘nonremote similar sexual
offenses’ are admissible under the exceptions of Rule 404(b).” Mohapatra, 880 A.2d
at 806 (quoting State v. Jalette, 119 R.I. 614, 627, 382 A.2d 526, 533 (1978)).
Second, the uncharged evidence “is admissible only when that exception is relevant
to proving the charge lodged against the defendant, and only when reasonably
necessary.” Rainey, 175 A.3d at 1182 (quoting Mohapatra, 880 A.2d at 806). Third,
“if the trial justice allows the evidence, he or she ‘must instruct the jury on the limited
- 12 -
purpose for which the evidence may be considered.’” Id. (quoting Mohapatra, 880
A.2d at 806).5 “In deciding whether to allow the jury to hear Rule 404(b) evidence,
the trial justice has to balance relevance against remoteness and the potential for
improper prejudicial impact.” State v. Perez, 161 A.3d 487, 495 (R.I. 2017) (brackets
and deletion omitted) (quoting State v. Hopkins, 698 A.2d 183, 186 (R.I. 1997)).
Nonremoteness and Similarity
This Court has declared that “when a defendant’s prior sexual misconduct
against persons besides the complainant is introduced, it ‘must be sufficiently similar
and contemporaneous to support a ruling of admissibility by the trial justice.’”
Rainey, 175 A.3d at 1182 (quoting Mohapatra, 880 A.2d at 806). “Both the
similarity and contemporaneousness of the acts are required for a common purpose:
5
This three-part inquiry is not a newly minted test, but rather, as our opinion
indicates, the analysis is taken directly from this Court’s precedent. To be sure, prior
to the adoption of the Rules of Evidence in 1987, this Court adhered to the common
law. See, e.g., State v. Jalette, 119 R.I. 614, 624, 382 A.2d 526, 531-32 (1978); State
v. Pignolet, 465 A.2d 176, 179-80 (R.I. 1983). However, in the nearly forty
intervening years, the common-law principles discussed in cases that preceded the
adoption of the Rules of Evidence, such as Jalette and Pignolet, have been abrogated
and replaced with Rule 404(b) of the Rhode Island Rules of Evidence, as interpreted
by this Court. As discussed infra, in this case, the trial justice determined that
Elaine’s testimony was admissible pursuant to certain textual exceptions recognized
in Rule 404(b) and we likewise conclude that Elaine’s testimony was admissible “to
show a common scheme, plan, or modus operandi to molest young [girls].” State v.
Coningford, 901 A.2d 623, 628 (R.I. 2006). Any suggestion that we have departed
from our Rule 404(b) jurisprudence or allowed Elaine’s testimony to be admitted
despite recognizing a Rule 404(b) exception is misplaced.
- 13 -
to ‘establish a close relationship between the evidence of other bad acts and the crime
charged.’” Id. (brackets and deletion omitted) (quoting State v. Brigham, 638 A.2d
1043, 1045 (R.I. 1994)). We have also expressed that “[o]ur case law does not
consider ‘nonremote’ and ‘similar’ to be distinct requirements, and instead the two
are born from the same concept and proven in the same manner; that is, ‘offenses
will be considered sufficiently nonremote and similar when they are closely related
in time, place, age, family relationships of the victims, and the form of the sexual
acts.’” Id. (brackets omitted) (quoting Mohapatra, 880 A.2d at 806). After carefully
reviewing the record, we are satisfied that the trial justice did not abuse his discretion
when he determined that the limited testimony concerning defendant’s uncharged
sexual intercourse with Elaine when she was about thirteen years old satisfied the
nonremote and similar test.
As the trial justice astutely observed, Anne and Elaine were both
extraordinarily young at the time of defendant’s actions; Elaine testified that she was
about thirteen years old when defendant engaged in sexual intercourse, and Anne
was eight years old at the time the last charged assault allegedly occurred in
September 2020. Although the trial justice supportably concluded that Anne’s and
Elaine’s ages were “pretty close” when defendant committed the sexual misconduct,
we are in full agreement with the trial justice that the ages in both situations were
similar because “[t]hey’re both extremely young.” See State v. Perry, 182 A.3d 558,
- 14 -
569-70 (R.I. 2018) (“The victims were of similar ages, between nine and twelve
years old, when defendant’s sexual abuse occurred.”); Coningford, 901 A.2d at 628
(“Although Roger [approximately fourteen years old] was slightly older than the
other two boys [seven and eight years old] at the time of his encounter with
defendant, all three boys were at what may be considered a vulnerable age that would
possibly make them less resistant to defendant’s unwelcome advances and less likely
to report the incidents to the authorities.”).
The nature of the uncharged and charged sexual misconduct, while not
identical, was similar in that the uncharged act involved penile penetration of Elaine
while the charged act concerned defendant positioning himself on top of Anne and
rubbing his penis on her vagina—just short of penetration. In considering this aspect
of the Rule 404(b) analysis, “we are not concerned with whether the incidents were
exactly the same, nor with whether they contained uncannily similar facts.” Perry,
182 A.3d at 570 (quoting Rainey, 175 A.3d at 1183); see also Mohapatra, 880 A.2d
at 807-08 n.5 (“The actual sexual contact need not be identical to be considered
sufficiently similar to be admitted into evidence.”).
Here, defendant engaged in sexual intercourse with Elaine and forced Anne
to perform fellatio until he ejaculated. The defendant also positioned himself on top
of Anne and rubbed his penis on his daughter’s vagina. It suffices that in both the
uncharged and charged situations, defendant’s penis touched the vagina of a young
- 15 -
girl and penetrated her mouth or vagina. See Rainey, 175 A.3d at 1183 (“[T]he
manner of abuse was similar with each victim in that both cases involved
penetration, successful or otherwise.”).6
Finally, contrary to defendant’s argument, the time period between the
uncharged and charged events is sufficiently nonremote. “Remoteness is relative,
depending upon the circumstances and the conduct in question.” State v. Baptista,
894 A.2d 911, 915 (R.I. 2006) (quoting State v. Pignolet, 465 A.2d 176, 181 (R.I.
1983)). The defendant’s sexual encounters with Elaine began in approximately
2009, six years before the onset of the time period charged in the indictment when
his daughter was just over three years old. We have previously held that time spans
between charged and uncharged misconduct ranging from approximately ten years,
see Hopkins, 698 A.2d at 186, eleven to fifteen years, see Rainey, 175 A.3d at 1183,
and thirteen to nineteen years, see Perry, 182 A.3d at 569 n.6, satisfied the
6
Although defendant’s prior sexual exploits with Elaine did not involve an incestual
relationship, we recognize that a trial justice’s Rule 404(b) determination must be
based on the totality of circumstances. Here, among other similarities, the sexual
misconduct involving Anne and Elaine “suggest[s] a predilection for much younger
females who may be both less resistant to his unwelcome advances and less likely
to report the incidents to authorities.” State v. Mohapatra, 880 A.2d 802, 808 (R.I.
2005); see also State v. Rainey, 175 A.3d 1169, 1183 (R.I. 2018) (concluding that
based on the totality of circumstances sexual misconduct involving defendant’s
daughter and the daughter of defendant’s girlfriend were sufficiently similar and
nonremote). We are satisfied that the trial justice did not abuse his discretion in
determining otherwise.
- 16 -
remoteness inquiry. We are satisfied that the trial justice issued a carefully limited
ruling concerning this evidence and did not abuse his discretion when he determined
that the sexual misconduct perpetrated upon Elaine and Anne was sufficiently
similar and nonremote.
Relevant and Reasonably Necessary
To be admissible under Rule 404(b), “the evidence must also be relevant to
the crime charged and reasonably necessary.” Perry, 182 A.3d at 570 (brackets
omitted) (quoting Rainey, 175 A.3d at 1185). Pursuant to Rule 401, “relevant
evidence” is “evidence having any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.” Rainey, 175 A.3d at 1185-86 (quoting Perez,
161 A.3d at 497). Rule 402 also provides that “all relevant evidence is admissible.”
Id. at 1186 (brackets omitted) (quoting Perez, 161 A.3d at 497). Accordingly, “the
relevancy bar is quite low.” Id. (deletion omitted) (quoting Perez, 161 A.3d at 497).
This Court has often recognized that “when a defendant is charged with
second-degree molestation, similar incidents involving other victims are admissible
to demonstrate the defendant’s intent to sexually gratify.” Perry, 182 A.3d at 570
(quoting Mitchell, 80 A.3d at 29). This is so because “[t]o be found guilty of
second-degree child molestation, defendant’s contact with the victim must be
committed with the purpose of ‘sexual arousal, gratification, or assault.’”
- 17 -
Mohapatra, 880 A.2d at 808 (quoting § 11-37-1(7)); see § 11-37-1(7) (defining
“sexual contact” as “the intentional touching of the victim’s or accused’s intimate
parts, clothed or unclothed, if that intentional touching can be reasonably construed
as intended by the accused to be for the purpose of sexual arousal, gratification, or
assault”). Indeed, we have “held that evidence of a defendant’s prior sexual
misconduct may be necessary for the state to show that the defendant’s intent in
touching the victim was for sexual gratification and to disprove that the improper
touching was accidental or innocent.” Coningford, 901 A.2d at 629.
Here, Montero was charged with two counts of second-degree child
molestation sexual assault; as such, Elaine’s testimony that defendant previously
engaged in similar acts of sexual misconduct with a similarly-aged young girl was
“relevant to demonstrate [his] specific intent to self-gratify.” Perry, 182 A.3d at 570.
This conclusion accords with our precedent. See, e.g., Mitchell, 80 A.3d at 29
(“Although defendant asserts that intent was not at issue in this case, defendant was
charged with five counts of second-degree child molestation. Second-degree
molestation is a specific-intent crime that requires the state to prove beyond a
reasonable doubt that the defendant touched the victim ‘for the purpose of sexual
arousal, gratification, or assault.’”) (quoting Coningford, 901 A.2d at 630);
Coningford, 901 A.2d at 629 (“[T]he jury could infer, from the evidence of similar
incidents involving two other young boys, that defendant’s intent in touching [the
- 18 -
complainant] was for the purpose of sexual arousal or gratification.”); Mohapatra,
880 A.2d at 808 (“The fact that similar incidents occurred with different women
tends to prove defendant’s intent to touch [the complainant] for the purpose of sexual
gratification.”).
Additionally, Elaine’s testimony fits comfortably within the Rule 404(b)
exception “to show a common scheme, plan, or modus operandi to molest young
[girls].” Coningford, 901 A.2d at 628. In Hopkins, we concluded that the
defendant’s prior sexual misconduct was admissible pursuant to multiple Rule
404(b) exceptions and demonstrated that “when given the opportunity, [the
defendant] had a motive, an intent, and a plan to abuse children of like age in a like
manner to that in which he abused his stepson when they were under his control or
influence.” Hopkins, 698 A.2d at 185; see also Pignolet, 465 A.2d at 182 (observing
that uncharged sexual acts committed by the defendant were “relevant, material, and
highly probative of defendant’s lecherous conduct toward these young girls over
whom he exercised discipline, control, and supervision”).
Since Hopkins, this Court has remained steadfast in its determination that
nonremote and similar sexual misconduct is relevant “to show a larger pattern of
behavior adverse to young girls, demonstrating a plan.” Rainey, 175 A.3d at 1186.
For example, we recognized that “all three boys were at what may be considered a
vulnerable age that would possibly make them less resistant to defendant’s
- 19 -
unwelcome advances and less likely to report the incidents to the authorities,”
Coningford, 901 A.2d at 628, and that the difference in complainants’ ages
compared with the defendant’s age “does suggest a predilection for much younger
females who may be both less resistant to his unwelcome advances and less likely
to report the incidents to authorities,” Mohapatra, 880 A.2d at 808. See also Rainey,
175 A.3d at 1186 (“[T]estimony ‘was indicative of the defendant’s lecherous
conduct toward girls over whom he exercised discipline, control, and supervision.’”)
(brackets and deletion omitted) (quoting Perez, 161 A.3d at 497). Thus, the trial
justice did not abuse his discretion when he concluded that Elaine’s testimony was
relevant.
With respect to whether Elaine’s testimony was reasonably necessary, this
Court has recognized that “[w]hen charges of sexual abuse hinge upon a credibility
contest between defendant and child complainant, relevant evidence of prior sexual
misconduct is reasonably necessary to support the complainant’s testimony.”
Mohapatra, 880 A.2d at 808. We later elucidated that
“this is a case in which the evidence revealed a crime
committed in private with a significant lapse of time
between the sexual assaults and the prosecution. The
credibility of the complainant was placed at center stage.
We therefore are persuaded that this evidence meets the
test of relevancy and necessity to the state’s case. It is not
cumulative.” Cavanaugh, 158 A.3d at 280.
- 20 -
In the case at bar, we are faced with circumstances similar to those presented
in Hopkins, Rainey, Perez, Cavanaugh, Mohapatra, and others. Anne testified to
sexual misconduct committed by her father, defendant. The indictment charged four
separate acts of sexual misconduct, three of which occurred during the expansive
time period between January 1, 2015, and September 18, 2020, a span that coincides
with when Anne was between three and eight years old. No physical evidence or
third-party eyewitness testimony corroborated Anne’s testimony and, critically, the
defense theory in this case “was that the sexual assaults never occurred.” Perez, 161
A.3d at 497; see also Rainey, 175 A.3d at 1186 (“Anna’s credibility, then, is at
‘center stage,’ and Beth’s testimony corroborates Anna’s rendition that defendant
engaged in a pattern of sexual abuse of girls to whom he was a father figure.”);
Mitchell, 80 A.3d at 29 (“[T]he evidence of defendant’s touching Selina was
reasonably necessary to support Hannah’s credibility.”); Hopkins, 698 A.2d at 187
(“[T]he trial justice was entitled to conclude that the uncharged acts of sexual
misconduct that were offered * * * were ‘reasonably necessary’ to prove the
prosecution’s case, which largely turned on a credibility battle between [the
defendant] and his stepson.”). Because defendant placed Anne’s credibility at
“center-stage,” we discern no abuse of discretion with the trial justice’s
determination that Elaine’s testimony was reasonably necessary.
- 21 -
Limiting Instruction
The Rule 404(b) analysis further requires that “when such evidence is
admitted, the trial justice must instruct the jury on the limited purpose for which the
evidence may be considered.” Rainey, 175 A.3d at 1187 (quoting State v. Merida,
960 A.2d 228, 239 (R.I. 2008)). “We undergo a review of jury instructions on a de
novo basis.” State v. Thibedau, 157 A.3d 1063, 1072 (R.I. 2017) (quoting State v.
Martin, 68 A.3d 467, 473 (R.I. 2013)).
Here, after overruling defendant’s Rule 404(b) objection, the trial justice
immediately instructed the jury:
“But ladies and gentlemen, I want to let you know that
you’re about to hear -- you have heard testimony
concerning the conduct, more testimony about conduct for
which Mr. Montero is not charged.
“Mr. Montero is before you only for incidents allegedly
occurring with [Anne], we know that. He is not on trial
for incidents that may have occurred earlier with this
woman, [Elaine]. The conduct for which, the conduct
which you are hearing and which you’re likely to hear if
this goes on, is to be considered by you only for a specific
purpose, and it’s up to you as to whether or not you wish
to consider it at all. You must consider it only, if at all, to
show that the defendant’s motive, conduct, opportunity,
preparation or plan, if any, as it relates to acts with
[Anne], as described in her testimony. You may consider
this testimony for no other purpose than that limited
purpose as I had instructed you.
“Again, Mr. Montero is not on trial for the particular acts
which he may have had with [Elaine], which are being
described.” (Emphasis added.)
- 22 -
The defendant objected to this instruction, claiming that it was inaccurate, which the
trial justice overruled. The defendant also moved to pass the case, which the trial
justice denied.
On appeal, Montero suggests that the instruction failed to comply with Jalette,
in which this Court instructed that “[i]n its charge the trial court should not take a
scatter-shot approach and list all of the exceptions to the exclusionary rule. Rather,
it shall designate with particularity the specific exceptions to which the ‘other
crimes’ evidence is relevant and delete from its charge the remaining exceptions.”
Jalette, 119 R.I. at 627-28, 382 A.2d at 533.
While defendant suggests that the trial justice’s instruction was overly broad
in its inclusion of five Rule 404(b) exceptions, we have perceived no error in the use
of a similar instruction. See Rainey, 175 A.3d at 1187 (“[Y]ou may consider the
testimony only as it relates to defendant’s motive, his opportunity, his intent,
preparation, [or] his plan * * *.”) (brackets and deletion omitted). In light of the trial
justice’s compliance with the relevant restrictions on admitting Rule 404(b)
evidence, we conclude that the admission of Elaine’s testimony was not error. See
Thibedau, 157 A.3d at 1073 (“[The trial justice] properly informed the jury that it
could not consider the uncharged acts of sexual misconduct as evidence of
defendant’s bad character or his propensity to commit sexual acts. He then
- 23 -
delineated four specific uses for which the evidence might be considered, all of
which are permissible uses under Rule 404(b).”).
Rule 403
Rule 403 provides that “[a]lthough relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative evidence.” (Emphasis added.)
When examining evidence pursuant to Rule 403, a trial justice must “not only
examine the evidence in the context of the case on trial, but * * * balance the
evidence to determine whether its probative force is substantially outweighed by the
danger of unfair prejudice.” Rainey, 175 A.3d at 1188 (deletion omitted) (quoting
Cavanaugh, 158 A.3d at 281).
On appeal, we employ the same abuse-of-discretion standard as recited above;
“the admissibility of evidence is within the sound discretion of the trial justice, and
this Court will not interfere with the trial justice’s decision unless a clear abuse of
discretion is apparent.” Perry, 182 A.3d at 571 (brackets omitted) (quoting Rainey,
175 A.3d at 1187). This Court has also recognized “that a trial justice’s discretion
to exclude evidence under Rule 403 must be used sparingly, and it is only when
evidence is marginally relevant and enormously prejudicial that a trial justice must
- 24 -
exclude it.” Id. at 572 (brackets omitted) (quoting State v. McDonald, 157 A.3d
1080, 1092 (R.I. 2017)); see also Thibedau, 157 A.3d at 1073.
The defendant claims that Elaine’s testimony was irrelevant and precluded by
Rule 403 because it “was all but certain to lead the jury to conclude that Mr. Montero
had a history of engaging in sexual activity with underage girls and risk[ed] him
being convicted based on impermissible propensity evidence.”7 As discussed,
Elaine’s testimony was highly relevant, probative, and reasonably necessary due to
the similarity and nonremoteness in the sexual misconduct perpetrated by defendant.
When faced with similar circumstances, we rejected the defendant’s Rule 403
argument and recognized that “the implication that defendant had a predilection for
girls of this age * * * is enormously relevant to his common scheme or plan of
abusing young girls.” Rainey, 175 A.3d at 1188.
7
Separately, defendant claims that the trial justice violated Rule 403 of the Rhode
Island Rules of Evidence when his decision to allow Elaine’s testimony was partially
motivated by his comment that “every time you use one of these rules you hide the
truth from the jury, and how much should the jury know about the real facts.” The
defendant overlooks the context of the trial justice’s statement and, importantly, the
next sentence in which the trial justice acknowledged “[i]f it’s inherently prejudicial,
of course it shouldn’t come in.” In any event, defense counsel failed to object to the
trial justice’s remark, which would have brought the issue to the forefront and
permitted the trial justice the opportunity to elucidate on the comment. Accordingly,
this asserted issue is waived and we have no occasion to consider it. See, e.g., State
v. Tavares, 312 A.3d 449, 458 (R.I. 2024) (“As we have said on innumerable
occasions, a litigant cannot raise an objection or advance a new theory on appeal if
it was not raised before the trial court.”) (quoting State v. Barros, 148 A.3d 168, 172
(R.I. 2016)).
- 25 -
We note at the outset of this analysis that the trial justice minimized the unfair
prejudice by restricting the Rule 404(b) evidence to a single witness—Elaine—the
child’s mother; articulating limiting instructions on the use of Rule 404(b) evidence,
including an instruction that the uncharged sexual misconduct could not be used as
a basis for a guilty verdict; and providing the jury with a detailed verdict form, which
specified that all charges brought against defendant involved Anne, arose between
January 1, 2015, and September 18, 2020, and occurred on the second floor of
defendant’s residence. As both the trial justice and defense counsel recognized, the
actual impact of Elaine’s testimony that she was a young girl when defendant
engaged in sexual intercourse and when she became pregnant with Anne was
obvious in her youthful appearance from the witness stand.8
8
The trial justice’s remark that the jury could glean from Elaine’s youthful
appearance that she was a young girl when she became pregnant with Anne was set
forth earlier in this opinion. During Elaine’s testimony, defense counsel
acknowledged at sidebar:
“The longer this witness is on the stand with her
appearance, and I would note for the record that she
appears very young, and I’ve learned informally through
the [s]tate that she’s approximately 25 years old, because
she gave birth to [Anne] when she was 15, and [Anne] is
now ten years old.
“So the longer she’s on the stage with the witness stand, it
hurts the defendant * * *.”
- 26 -
Finally, in light of the jury’s acquittal on three of the four charges set forth in
the indictment, we are not persuaded that defendant’s conviction was based on
unfairly prejudicial evidence. See Perry, 182 A.3d at 572 (observing that “most
evidence offered at trial is inherently prejudicial * * * only unfairly prejudicial
evidence is barred under Rule 403”) (brackets omitted) (quoting State v. Cook, 45
A.3d 1272, 1280 (R.I. 2012)). For these reasons, we are satisfied that the trial justice
did not abuse his discretion in determining that the probative value of Elaine’s
testimony was not substantially outweighed by unfair prejudice.
B
Uncharged Sexual Misconduct Involving Anne
During a motion in limine, the state sought to admit testimony from Anne that
defendant committed additional uncharged acts of sexual misconduct against her
during a family vacation to Virginia and while she was in the Dominican Republic.
According to the state, the uncharged sexual misconduct occurred during the time
span identified in the indictment, provided context concerning the charges set forth
in the indictment, demonstrated a common plan or scheme, and evidenced
defendant’s lewd disposition toward Anne. The state also submitted that the
uncharged sexual misconduct evidence was necessary to prove defendant committed
second-degree child molestation and that such actions were committed for purposes
of sexual gratification.
- 27 -
Montero objected to the admissibility of this evidence and argued that the
uncharged sexual misconduct evidence was unnecessary due to the nature of the
charges set forth in the indictment and that the uncharged sexual misconduct did not
fall within a Rule 404(b) exception. The defendant also asserted that the uncharged
sexual misconduct was inadmissible pursuant to Rule 403.
The trial justice allowed the state to submit evidence pertaining to uncharged
sexual misconduct against Anne in Virginia and the Dominican Republic, but
expressly limited such evidence to the time period set forth in the indictment and
instructed that the evidence be used sparingly and limited to “a brief discussion of
several sentences.” In so doing, the trial justice determined that the uncharged sexual
misconduct was necessary to establish defendant’s lewd disposition toward Anne
and also demonstrated a common scheme, intent, and predilection on behalf of
defendant. Defense counsel twice renewed this objection during trial—separately
when testimony concerning the incidents in Virginia and the Dominican Republic
were elicited—which the trial justice overruled.
Under Rule 404(b), “evidence of other not too remote sex crimes with the
particular person concerned in the crime on trial may be introduced to show the
accused’s lewd disposition or intent towards the person.” In re Andrey G., 796 A.2d
452, 457 (R.I. 2002) (deletion omitted) (quoting State v. Gomes, 690 A.2d 310, 316
(R.I. 1997)). Such evidence is subject to additional considerations:
- 28 -
“First, the evidence should be used sparingly and only
when reasonably necessary. Jalette, 119 R.I. at 627, 382
A.2d at 533. Other-acts evidence should be excluded if it
is merely cumulative. Id. Second, the evidence is only to
be admitted when the exception is relevant to proving the
charges lodged against the [defendant]. Id. Finally, a trial
court should designate with particularity the specific
exception to which the evidence is relevant and instruct
the jury concerning the limited use for which the evidence
is to be considered. Id. at 627-28, 382 A.2d at 533.” Id. at
457-58 (quoting Gomes, 690 A.2d at 316-17).
We conclude that the trial justice did not abuse his discretion when he declared that
these prerequisites were satisfied.
First, the trial justice expressly recognized the need to use the uncharged
sexual misconduct evidence “sparingly.” He limited reference to the uncharged
episodes occurring in Virginia and the Dominican Republic during the period of the
indictment—between January 1, 2015, and September 18, 2020—and instructed the
state to limit its examination on this topic to “several sentences.” The state complied
with these directives.
This evidence was also reasonably necessary and not cumulative. This Court
has stated that “in the context of sexual assault cases, ‘when charges of sexual abuse
hinge upon a credibility contest between defendant and a child complainant, relevant
evidence of prior sexual misconduct is reasonably necessary to support the
complainant’s testimony.’” State v. Watkins, 92 A.3d 172, 184 (R.I. 2014) (brackets
omitted) (quoting Mitchell, 80 A.3d at 29). We have also recognized that “evidence
- 29 -
of other not too remote sex crimes with the particular person concerned in the crime
on trial may be introduced to show the accused’s lewd disposition or intent towards
the person.” In re Andrey G., 796 A.2d at 457 (deletion omitted) (quoting Gomes,
690 A.2d at 316); see also State v. Morey, 722 A.2d 1185, 1189 (R.I. 1999)
(observing “an almost universally recognized exception to Rule 404(b) for the
admission of evidence of uncharged sexual misconduct to show lustful disposition
or sexual propensity”) (quoting State v. Toole, 640 A.2d 965, 971 (R.I. 1994)); State
v. Mulcahey, 762 A.2d 1214, 1217 (R.I. 2000) (“Since Jalette, this Court has upheld
the admission of uncharged acts of sexual misconduct against the victim to establish
the perpetrator’s ‘lewd disposition’ toward that victim under circumstances that are
relevant to proving the charged act of sexual misconduct.”). The uncharged sexual
misconduct was not cumulative but rather established defendant’s common scheme,
plan, intent, and lewd disposition toward Anne.
Second, the trial justice explained the relevancy of the uncharged sexual
misconduct:
“[T]his evidence for [Anne] [is] necessary in order to show
a scheme, in order to show defendant’s intent,
predilection. They may prove, they are likely to prove the
propensity for lewdness, depending on the credibility of
the witness and they also go to show the credibility of the
witness * * *.”
As noted supra, the trial justice’s recognition concerning the relevancy of this type
of evidence comports with our precedent.
- 30 -
Finally, the trial justice identified the relevant Rule 404(b) exceptions and
properly instructed the jury. As the state was about to solicit testimony that
defendant penetrated Anne’s mouth with his penis during a family vacation in
Virginia, the trial justice instructed the jury:
“You’re about to hear some testimony or you may hear
some testimony about conduct in which Mr. Montero was
not charged. He was charged for events in Rhode Island.
He is not on trial for other events. And therefore, you are
to consider his conduct and his testimony in Rhode Island,
and it’s up to you to determine, as you hear the other
testimony you must consider this testimony only for
limited reasons. You must consider this evidence only to
show if the defendant has another motive * * *. What the
defendant’s motive may be, his intent, opportunity,
preparation and his plan, if any. The [c]ourt is not saying
that there is any motive, opportunity or preparation.”
(Emphasis added.)
When the state later questioned Anne concerning the uncharged sexual misconduct
committed in the Dominican Republic, the trial justice rendered a similar instruction:
“[W]e are again getting into areas that are uncharged.
[The defendant] is not charged for any acts that occurred
in the Dominican Republic. The defendant is not charged.
I’m going to allow this for the limited purpose that I
indicated to you before.
“Please consider this evidence only to show the
defendant’s motive, intent, opportunity, preparation and
plan, if there is any.” (Emphasis added.)
After the close of evidence, the trial justice again instructed:
“Prior uncharged acts, * * * [Anne] talked about other
incidents with her father for which he is not charged, those
- 31 -
prior uncharged acts should not be used to show the
defendant’s propensity, but you may use those prior acts
to show motive, intent, opportunity, preparation or plan,
if any.”9 (Emphasis added.)
The trial justice’s thrice-given cautionary instruction ably complied with our
precedent. See Thibedau, 157 A.3d at 1073 (“[The trial justice] properly informed
the jury that it could not consider the uncharged acts of sexual misconduct as
evidence of defendant’s bad character or his propensity to commit sexual acts. He
then delineated four specific uses for which the evidence might be considered, all of
which are permissible uses under Rule 404(b).”); Baptista, 894 A.2d at 916 (“When
a trial justice complies with the rules set out in Jalette, the admission of uncharged
sexual conduct is highly discretionary.”). Furthermore, although defendant contends
that the trial justice failed to designate with particularity the relevant Rule 404(b)
9
After the close of evidence, the trial justice initially provided a jury instruction that
did not state that “those prior uncharged acts should not be used to show the
defendant’s propensity.” The defendant objected to the absence of this verbiage and
the trial justice re-instructed the jury, including the above-quoted language. After
rendering the revised final jury instructions, a sidebar ensued during which neither
party posed an objection to the revised jury instructions. Based on our review of the
entire transcript, we do not view defendant’s failure to object as waiving the
argument that the trial justice’s instructions failed to comply with our admonition
that “in its charge the trial court should not take a scatter-shot approach and list all
of the exceptions to the exclusionary rule. Rather, it shall designate with
particularity the specific exceptions to which the other crimes evidence is relevant
and delete from its charge the remaining exceptions.” State v. Thibedau, 157 A.3d
1063, 1072 (R.I. 2017) (brackets omitted) (quoting Jalette, 119 R.I. at 627-28, 382
A.2d at 533). Throughout the transcript, it is clear that this argument was preserved.
- 32 -
exceptions and instead instructed the jury on “a slew of possible options,” as we
explained supra, we discern no error in the trial justice’s designation of five Rule
404(b) exceptions.
Rule 403
Montero also ascribes that the uncharged sexual misconduct testimony
describing the Virginia and the Dominican Republic incidents contravened Rule
403.10 We disagree.
Contrary to defendant’s suggestion, Anne’s testimony that defendant
perpetrated other uncharged acts of sexual misconduct in Virginia and the
Dominican Republic, including fellatio, was not unfairly prejudicial, did not have
only “marginal probative value,” and did not endanger confusing the jury. Rather,
as discussed herein, this uncharged sexual misconduct “served to display
defendant’s lewd disposition or intent toward the very person alleging the acts with
which he was charged.” Baptista, 894 A.2d at 915. This evidence was highly
probative of defendant’s lewd predilection toward Anne, see Thibedau, 157 A.3d at
10
The defendant maintains that “[i]nstead of balancing, the trial justice did the
opposite when he declared [for a second time that]: ‘[A]lthough the rules don’t
encourage it, the [c]ourt always prefers, particularly that the witness in chief, tell as
much of the story as is relevant. That we get the entire story from her to the best of
her ability.’” The defendant failed to object to the trial justice’s remark, which
would have brought the issue to the forefront and permitted the trial justice to
elucidate on the comment. Accordingly, this asserted issue is waived and we have
no occasion to consider it. See, e.g., Tavares, 312 A.3d at 458.
- 33 -
1072, and that his conduct was for purposes of sexual arousal and gratification.
Additionally, we have recognized that “in the context of sexual assault cases, ‘when
charges of sexual abuse hinge upon a credibility contest between defendant and a
child complainant, relevant evidence of prior sexual misconduct is reasonably
necessary to support the complainant’s testimony.’” Watkins, 92 A.3d at 184
(brackets omitted) (quoting Mitchell, 80 A.3d at 29).
Here, the uncharged sexual misconduct was relevant to proving defendant’s
“lewd disposition” toward Anne as well as her credibility, particularly in light of
Montero’s defense that he never committed the charged acts of sexual misconduct.
The Rule 404(b) evidence was used sparingly and only as reasonably necessary. See
supra; see also Rainey, 175 A.3d at 1188 (“[T]he implication that defendant had a
predilection for girls of this age * * * is enormously relevant to his common scheme
or plan of abusing young girls.”). We are satisfied that the trial justice did not abuse
his discretion when he admitted evidence of the uncharged sexual misconduct that
occurred in Virginia and the Dominican Republic.
II
Prior Consistent Statements
Montero avers that the trial justice erred when he permitted testimony
concerning certain prior consistent statements despite the absence of any claims of
recent fabrication. The defendant directs our attention to Christine’s and Dorothy’s
- 34 -
testimony, both of whom were permitted to repeat the allegations as related to them
by Anne. Although defendant timely objected and asserted that neither Christine’s
nor Dorothy’s testimony was permissible pursuant to Rule 801(d)(1)(B) of the
Rhode Island Rules of Evidence, it is undisputed that defendant did not—at the time
that the testimony was given—rely upon the temporal requirement of recent
fabrication as the basis for the objections. Dorothy completed her testimony that
day, and Christine completed her testimony the following day. At the conclusion of
Christine’s testimony, defense counsel moved to pass the case and argued—for the
first time—that Christine’s and Dorothy’s testimony was precluded under Rule
801(d)(1)(B) due to the absence of evidence that Anne’s allegations were motivated
by a recent fabrication. The defendant maintained that “[a]t all times the defense in
this case has been that the fabrication started right at the beginning, or that there’s
something not credible about [Anne], right from the beginning.” As such, Montero
asserted that the putative motivation to fabricate the allegations of sexual misconduct
preceded the prior consistent statements and that, therefore, Christine’s and
Dorothy’s testimony was impermissible and the motion to pass should have been
granted.11
11
Having not raised the temporal requirement at the time the testimony was elicited,
we assume that this issue is properly before the Court in the context of the trial
justice’s denial of the motion to pass. We note that the state has not developed an
argument that this issue is waived. See Drew v. State, 198 A.3d 528, 530 (R.I. 2019)
- 35 -
With respect to evidentiary issues, “questions as to the admissibility vel non
of evidence are confided to the sound discretion of the trial justice.” State v. Aponte,
317 A.3d 745, 749 (R.I. 2024) (quoting State v. Mercurio, 89 A.3d 813, 818 (R.I.
2014)). It is also “within the sound discretion of a trial justice to grant or to deny a
motion for a mistrial.” Gomes, 690 A.2d at 317. “When a trial justice rules on such
a motion, his or her denial is accorded great weight by this [C]ourt and will not be
overturned on appeal unless it is clearly wrong.” Id.
“It is well settled that out-of-court statements offered for their truth are
inadmissible unless a recognized exemption or exception applies.” Aponte, 317 A.3d
at 750. Rule 801(d)(1)(B) provides, in relevant part, “that a statement is excluded
from the definition of hearsay if ‘the declarant testifies at the trial or hearing and is
subject to cross-examination concerning the statement, and the statement is * * *
consistent with the declarant’s testimony and is offered to rebut an express or
implied charge against the declarant of recent fabrication or improper influence or
motive * * *.’” Id. (emphasis added) (brackets omitted) (quoting R.I. R. Evid.
801(d)(1)(B)).
As this Court has observed, “Rule 801(d)(1)(B) ‘does not accord weighty,
nonhearsay status to all prior consistent statements,’ a witness’s ‘prior consistent
(mem.) (observing that failure to meaningfully develop an appellate argument
constitutes waiver).
- 36 -
statements may not be admitted to counter all forms of impeachment or to bolster
the witness merely because she has been discredited.’” Aponte, 317 A.3d at 750
(quoting State v. Briggs, 886 A.2d 735, 751 (R.I. 2005)). “Instead, the recent
fabrication language in Rule 801 creates a temporal requirement: the consistent
statements must have been made before the alleged influence, or motive to fabricate,
arose.” Id. (emphasis added) (quoting Briggs, 886 A.2d at 751).
In State v. Kholi, 672 A.2d 429 (R.I. 1996), we examined certain out-of-court
statements, which the defendant argued were inadmissible hearsay. Kholi, 672 A.2d
at 437-38. Specifically, the defendant suggested multiple motivations for the false
accusation: (1) the declarant’s desire that her mother remain in Rhode Island, (2) the
declarant’s wish that she not reside with her biological father, (3) the declarant’s
hope that her mother would divorce the defendant, and (4) the declarant’s intent to
file a civil action against the defendant in order to receive compensation from a state
fund. See id. at 438. We concluded that the first three motivations preceded the
declarant’s utterance, “rendering them ineffective in qualifying the statements as
admissible.” Id. The fourth asserted motivation to fabricate, however, postdated the
out-of-court declaration. Id. Because the out-of-court statement “rebutted the
defendant’s charge and predated any purported motive to seek compensation,” we
determined that the declaration satisfied the temporal requirement of Rule
801(d)(1)(B) and the prior consistent statement was properly admitted. Id.; see also
- 37 -
Briggs, 886 A.2d at 751 (“[T]he ‘recent fabrication’ language in Rule 801 creates a
temporal requirement: ‘The consistent statements must have been made before the
alleged influence, or motive to fabricate, arose.’”) (brackets omitted) (quoting Tome
v. United States, 513 U.S. 150, 158 (1995)).
Here, defendant asserts that no evidence was submitted that suggests a recent
motivation for Anne to fabricate the allegations of sexual misconduct. Rather,
Montero is steadfast that Anne’s motivation to fabricate the sexual misconduct
allegations preceded the out-of-court disclosures to Christine and Dorothy and
emanates from being separated from her mother and brought to the United States.
The defendant maintains that he “never suggested that a new, intervening motive to
fabricate her claim arose after she reported the alleged abuse to [Christine] and
[Dorothy] * * *.” The record does not support defendant’s claim.
Contrary to defendant’s proposal, it is apparent that he asserted a new
motivation to fabricate in the days before trial, and well after Anne’s out-of-court
statements to Christine and Dorothy. For example, during cross-examination,
defense counsel questioned Anne concerning meeting with the prosecution days
earlier in an effort to prepare for trial. Anne was also questioned concerning a gift—
Play-Doh—that this ten-year-old received from one of the prosecutors in the days
leading to trial. While lengthy, we reference an excerpt from defendant’s closing
- 38 -
argument to dispel any notion that he had not argued that Anne’s allegations were
motivated by recent fabrications:
“Also, not for nothing, she’s clearly rehearsed and
rehearsed well. * * * So the prosecutor spoon fed [Anne]
her testimony so she would say the words that the
prosecution wanted you to hear. She told you, [Anne] told
you that she had gone over the questions with the
prosecutor at least three times before she testified.
“* * *
“And think about it, what [Anne] has experienced since
she made this complaint, right? Any time she’s been asked
to repeat the answers to the questions, she’s probably
gotten a good girl, right? I know, I know this is hard for
you, good girl. Right? Just imagine the special treatment
she gets from every adult that she encounters. Not to
mention now she lives in the Dominican with who? Her
mom.
“And this started immediately after [Christine] and [Beth]
talked to [Dorothy] and continuing right up until last
week. She’s a special girl. Now, I’m not saying she’s a
bad person. But it is extremely possible that these
allegations come from something other than sexual
assault, and you have no way to tell the difference.”
(Emphases added.)
Under similar circumstances alleging a motive for recent fabrication, we
expressed that
“we are satisfied that the trial justice did not err when he
found that defendant’s cross-examination of Jane
suggested the potential for improper influence in
preparation for trial. The record discloses that defense
counsel both directly and indirectly implied that Jane was
coached by the prosecution and the police. Because it is
undisputed that Jane’s statements to [the DCYF
- 39 -
investigator] preceded her meetings with the prosecution
and police, the trial justice correctly ruled that the
statement came within the purview of Rule 801(d)(1)(B)
and was, therefore, admissible.” State v. Barkmeyer, 949
A.2d 984, 1005-06 (R.I. 2008).
Our holding in Barkmeyer is equally applicable in this matter because Christine and
Dorothy both testified concerning Anne’s out-of-court declarations of charged
sexual misconduct, which preceded at least one putative motivation to fabricate. See
Kholi, 672 A.2d at 438. The trial justice did not abuse his discretion when he denied
the motion to pass.
III
Admissibility of the Travel Records
The defendant challenges the trial justice’s decision to admit international
travel records from the United States Department of Homeland Security, which, in
pertinent part, detail the date and time Montero and Anne entered or departed the
United States through Customs. According to defendant, the state admitted the
travel records into evidence without presenting the official who prepared the travel
records in violation of the right to confrontation protected by the Sixth Amendment
to the United States Constitution and article I, section 10 of the Rhode Island
Constitution. We disagree.
“When a criminal defendant claims on appeal that the introduction of certain
evidence violated his constitutional rights of confrontation and cross-examination,
- 40 -
we review such an evidentiary ruling in a de novo manner.” State v. Roscoe, 198
A.3d 1232, 1244 (R.I. 2019) (quoting State v. Moten, 64 A.3d 1232, 1238 (R.I.
2013)). “Both the Sixth Amendment to the United States Constitution (through the
Fourteenth Amendment) and article 1, section 10, of the Rhode Island Constitution
guarantee individuals accused of criminal charges the right to confront and
cross-examine any adverse witnesses who testify against them.” Id. at 1244-45
(quoting State v. Dorsey, 783 A.2d 947, 950 (R.I. 2001)).
In Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme
Court departed from its precedent concerning the Confrontation Clause. The
Supreme Court held that the Confrontation Clause bars admission of testimonial
hearsay in a criminal case unless the declarant is unavailable and the accused has
had a prior opportunity for cross-examination. Crawford, 541 U.S. at 68. As this
Court later recognized, “[a] statement is testimonial if it is ‘a solemn declaration or
affirmation made for the purpose of establishing or proving some fact.’” State v.
Ramirez, 936 A.2d 1254, 1266 (R.I. 2007) (quoting Davis v. Washington, 547 U.S.
813, 824 (2006)). In the years after Crawford, the Supreme Court elucidated the
testimonial or nontestimonial distinction in the context of a police interrogation and
relied upon what has become known as the primary purpose test:
“Statements are nontestimonial when made in the course
of police interrogation under circumstances objectively
indicating that the primary purpose of the interrogation is
to enable police assistance to meet an ongoing emergency.
- 41 -
They are testimonial when the circumstances objectively
indicate that there is no such ongoing emergency, and that
the primary purpose of the interrogation is to establish or
prove past events potentially relevant to later criminal
prosecution.” Davis, 547 U.S. at 822.
In Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), a defendant charged
with drug offenses challenged several “certificates of analysis,” which verified that
the seized substance had been tested and determined to be cocaine. See
Melendez-Diaz, 557 U.S. at 308. At trial, the defendant objected to the admission
of the certificates and asserted that the Confrontation Clause required the analysts to
appear in person and testify. Id. at 309. The Supreme Court agreed and explained
that “[t]he documents at issue * * * while denominated by Massachusetts law
‘certificates,’ are quite plainly affidavits: ‘declarations of facts written down and
sworn to by the declarant before an officer authorized to administer oaths.’” Id. at
310 (brackets omitted) (quoting Black’s Law Dictionary 62 (8th ed. 2004)). Relying
upon its precedent, the Supreme Court added that “[t]he ‘certificates’ are
functionally identical to live, in-court testimony, doing ‘precisely what a witness
does on direct examination’” and that the certificates were “made under
circumstances which would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial[.]” Id. at 310-11 (first quoting
Davis, 547 U.S. at 830; then quoting Crawford, 541 U.S. at 52).
- 42 -
In this respect, it is crucial that the United States Supreme Court has indicated
that business and public records are generally not considered testimonial because
they are “created for the administration of an entity’s affairs and not for the purpose
of establishing or proving some fact at trial * * *.” Melendez-Diaz, 557 U.S. at 324.
However, if a business or public record is “prepared specifically for use at * * *
trial,” it is testimonial. Id. Thus, the Supreme Court in Melendez-Diaz made clear
that it did “not hold, and it is not the case, that anyone whose testimony may be
relevant in establishing the chain of custody, authenticity of the sample, or accuracy
of the testing device, must appear in person as part of the prosecution’s case.” Id. at
311 n.1.
After Melendez-Diaz, the Supreme Court further expounded upon its
Confrontation Clause jurisprudence, recognizing that when
“the primary purpose of an interrogation is to respond to
an ‘ongoing emergency,’ its purpose is not to create a
record for trial and thus is not within the scope of the
Clause. But there may be other circumstances, aside from
ongoing emergencies, when a statement is not procured
with a primary purpose of creating an out-of-court
substitute for trial testimony. In making the primary
purpose determination, standard rules of hearsay, designed
to identify some statements as reliable, will be relevant.
Where no such primary purpose exists, the admissibility
of a statement is the concern of state and federal rules of
evidence, not the Confrontation Clause.” Michigan v.
Bryant, 562 U.S. 344, 358-59 (2011).
- 43 -
As the Supreme Court later summarized, “[i]n the end, the question is whether, in
light of all the circumstances, viewed objectively, the ‘primary purpose’ of the
conversation was to ‘create an out-of-court substitute for trial testimony.’”12 Ohio v.
Clark, 576 U.S. 237, 245 (2015) (brackets omitted) (quoting Bryant, 562 U.S. at
358); see id. at 240 (“Because neither the child nor his teachers had the primary
purpose of assisting in [the] prosecution, the child’s statements do not implicate the
Confrontation Clause and therefore were admissible at trial.”); State v. Lopez, 45
A.3d 1, 12 (R.I. 2012) (“Although the United States Supreme Court has not
definitively or exhaustively articulated the definition of a testimonial statement, it
recently has indicated that a document created primarily or ‘solely for an evidentiary
purpose, * * * made in aid of a police investigation, ranks as testimonial.’”) (footnote
omitted) (quoting Bullcoming v. New Mexico, 564 U.S. 647, 664 (2011)). We deem
this limitation determinative of the issue before us.
In the case at bar, defendant ignores the primary purpose test, heavily relies
upon Melendez-Diaz, and posits that the state’s failure to present the official(s)
12
The United States Supreme Court warned that “the primary purpose test is a
necessary, but not always sufficient, condition for the exclusion of out-of-court
statements under the Confrontation Clause.” Ohio v. Clark, 576 U.S. 237, 246
(2015). For instance, the Supreme Court has “recognized that the Confrontation
Clause does not prohibit the introduction of out-of-court statements that would have
been admissible in a criminal case at the time of the founding.” Id.
- 44 -
responsible for creating the travel records deprived him of his right to confrontation.
The defendant is mistaken.
Special Agent Michael Polouski’s testimony unequivocally demonstrates that
the travel records were primarily “created for the administration of an entity’s affairs
and not for the purpose of establishing or proving some fact at trial—they are not
testimonial.” Melendez-Diaz, 557 U.S. at 324. Special Agent Polouski explained
that he had been an agent with the Department of Homeland Security since its
inception in March 2003. He detailed that “when individuals enter the United States
and depart the United States, U.S. Customs and Border Protection documents those
instances in their databases,” that he was familiar with how travel records are
maintained, and that “for the past couple decades [travel records] have been
maintained in computer databases.” Special Agent Polouski added that when a
traveler “appl[ies] for entry at a port of entry, they’re examined by [a] United States
Customs Officer, and the passport is examined * * * and [if] they are found to have
a bona fide reason, that application is granted, then the documents and passports are
scanned into the Department of Homeland Security database; the date, the place that
they enter or exited and the classification under which they were granted entry or
- 45 -
exit.” Importantly, Special Agent Polouski testified that this process is
“automatic.”13
Based upon our careful review, we are satisfied that defendant proffers no
evidence or argument, nor does the record contain such evidence, that the travel
records were “created for * * * the purpose of establishing or proving some fact at
trial * * *.” Melendez-Diaz, 557 U.S. at 324; see, e.g., United States v. Noria, 945
F.3d 847, 857 (5th Cir. 2019) (“[W]e agree with the Ninth and Eleventh Circuits that
the forms’ primary purpose is administrative, not investigative or prosecutorial.
After all, immigration agents prepare an I-213 every time they encounter an alien
suspected of being removable, regardless of whether that alien is ever criminally
prosecuted or civilly removed.”). Accordingly, we discern no error in the trial
justice’s determination that defendant’s right to confrontation was not violated.14
13
Special Agent Polouski’s testimony also establishes that the travel records were
excluded from the hearsay rule and admissible pursuant to Rule 803(6) of the Rhode
Island Rules of Evidence, the “business-records exception.” The trial testimony
details that the travel records were “regularly maintained in the course of a regularly
conducted business activity,” “the source of the information [was] a person with
knowledge,” “the information [was] recorded contemporaneously with the event or
occurrence,” and “the party introducing the record * * * provide[d] adequate
foundation testimony.” State v. Adams, 161 A.3d 1182, 1199 (R.I. 2017) (quoting
Martin v. Lawrence, 79 A.3d 1275, 1282 (R.I. 2013)); see also R.I. R. Evid. 803(6).
14
The defendant also contends that the trial justice predetermined his guilt in midtrial
as evidenced by the trial justice’s comment during a colloquy on the admission of
the travel records that “[w]e all know you can prove [c]ount 1.” This remark appears
to be in the context of proving the date on which count 1 occurred, but in any event,
defendant failed to object to the trial justice’s remark, which would have brought the
- 46 -
IV
The So-Called Batson Challenge
The defendant contends that the trial justice erred when he excused a
prospective juror for cause. The prospective juror, whom defendant describes as
Hispanic, alerted the jury commissioner on the first day of jury selection and advised
that her ten-year-old daughter tested positive for COVID-19 the prior day. During
a sidebar, the prospective juror indicated that her daughter was symptomatic, she
was the sole caregiver, another household member (her boyfriend) had also tested
positive for COVID-19, and another household member (a daughter) had not tested
positive. At the time of the sidebar, the prospective juror had not tested positive.
The trial justice overruled defendant’s objection and excused the prospective juror
for cause, explaining that the court had the responsibility to ensure the health and
safety of other prospective jurors.
Immediately after excusing the prospective juror, defense counsel renewed
the objection and argued that the court “should make every effort to keep people
who are non Caucasian on the jury for the benefit of diversity * * *.” The trial justice
responded that defendant’s argument raised the specter of Batson v. Kentucky, 476
U.S. 79 (1986), but the trial justice nonetheless recognized that neither party had
issue to the forefront and permitted the trial justice to elucidate on the comment.
Accordingly, this asserted issue is waived and we have no occasion to consider it.
See, e.g., Tavares, 312 A.3d at 458.
- 47 -
exercised a peremptory challenge based upon ethnicity or national origin but rather,
the court excused the prospective juror for cause. The trial justice added that at the
time he was notified about the COVID-19 concern, he was unaware of the
prospective juror’s background and “the overriding concern of the [c]ourt at this
point has to be for the safety and health of the other jurors * * *.” Accordingly, the
trial justice overruled defendant’s Batson-styled objection.
On appeal, Montero argues that this issue must be viewed through a Batson
framework and that because the prospective juror was not ill, had been vaccinated,
and neither party was seeking to excuse the prospective juror, the trial justice erred.
The defendant maintains that because the trial justice’s reasons for excusing the
prospective juror were not sufficient, “a racial motive was driving”; in other words,
the excusal was racially motivated. We reject this contention.
As a threshold matter, multiple United States Circuit Courts of Appeals have
determined that Batson does not apply to a trial justice’s excusal for cause. See
Infante v. Martel, 953 F.3d 560, 564-65 (9th Cir. 2020) (“Batson’s three-step
framework was never intended to assess a judge’s decision to remove a juror for
cause. If Infante’s defense counsel had raised a Batson objection, it would have
compelled the judge to perform the impracticable task of ruling on whether his own
jury strike was racially discriminatory.”); United States v. Elliott, 89 F.3d 1360,
1364-65 (8th Cir. 1996) (“Batson applies only to peremptory strikes. We know of
- 48 -
no case that has extrapolated the Batson framework to for-cause strikes. There is
simply no legal basis for this argument, which fails to recognize that peremptory
strikes, for which no reasons need be given (absent a Batson challenge), are different
from challenges for cause, which by definition require a showing of cause.”); United
States v. Blackman, 66 F.3d 1572, 1575 n.3 (11th Cir. 1995) (“But, no authority
suggests Batson extends to the area of challenges for cause.”); United States v.
Bergodere, 40 F.3d 512, 515-16 (1st Cir. 1994) (“Next, the defendant must show
that the challenge was peremptory rather than for cause, thus bringing into play the
Supreme Court’s admonition that ‘peremptory challenges constitute a jury selection
practice that permits those to discriminate who are of a mind to discriminate.’”)
(quoting Batson, 476 U.S. at 96). We likewise conclude that a Batson challenge
does not apply to a trial justice’s decision to excuse a juror for cause.
Despite the foregoing conclusion, we nonetheless observe that “[t]he
determination of the disqualification of a juror for cause is left to the discretion of
the trial justice.” State v. Hazard, 785 A.2d 1111, 1122 (R.I. 2001). It should be
carefully exercised. Considering the circumstances before us, we are satisfied that
the trial justice did not abuse his discretion when he excused the prospective juror in
an effort to protect the health and safety of other prospective jurors and court staff
from the effects of COVID-19.
- 49 -
Conclusion
For the reasons stated, we affirm the judgment of conviction. The papers in
this case are remanded to the Superior Court.
Justice Long, concurring. I concur with the disposition of this appeal as
decided by my colleagues in the majority. However, I write separately because I
conclude that the trial justice abused his discretion in admitting Elaine’s testimony
regarding prior uncharged acts of sexual misconduct involving Mr. Montero, yet the
error was harmless. I also write separately to express my concerns with the state of
this Court’s jurisprudence concerning Rule 404(b) of the Rhode Island Rules of
Evidence, which are similar to those expressed by Justice Robinson.
The Advisory Committee Notes adopted in 1987 alongside our Rules of
Evidence describe Rule 404(b) as a “rule of exclusion.” The rule is subject to certain
narrow exceptions derived either from the text of the rule or from our caselaw. See
generally State v. Jalette, 119 R.I. 614, 382 A.2d 526 (1978). Our caselaw has
modestly expanded the typical rules barring evidence of other crimes, wrongs, or
acts in cases of sexual abuse. See id. at 627, 382 A.2d at 533. This Court’s seminal
case, State v. Jalette, recognized the common-law tradition that “evidence which in
any way shows or tends to indicate that the accused has committed another crime
completely independent of that for which he is on trial, even though it be a crime of
- 50 -
the same type, is irrelevant and inadmissible.” Id. at 624, 382 A.2d at 531. Evidence
of other sexual behavior is admissible, however, “when it tends to show one of the
exceptions [such as intent or motive] and only when that exception is relevant to
proving the charge lodged against the defendant.” Id. at 627, 382 A.2d at 533.
Notwithstanding the liberalization of the Court’s exclusionary rule in Jalette, the
Court was “extremely conscious that the indiscriminate use of ‘other crimes’
evidence poses a substantial risk to an accused’s right to a fair trial.” Id. (emphasis
added). Consequently, the Court warned that trial justices should admit the evidence
“sparingly * * * and only when reasonably necessary.” Id.
Several years after this Court’s decision in Jalette, we decided State v.
Pignolet, 465 A.2d 176 (R.I. 1983). That case adopted a modest expansion of the
Jalette exception in instances where the state seeks to introduce evidence of an
uncharged crime involving a person other than the complainant, when the uncharged
crime is similar to the charged act; we reasoned that such evidence is admissible
when it tends to show the defendant’s ongoing pattern of behavior and lewd
disposition toward the complainant. Pignolet, 465 A.2d at 180-82; State v.
Quattrocchi, 681 A.2d 879, 886 (R.I. 1996). That expansion, though at the time
characterized by the author of Jalette as the death of Jalette, see Pignolet, 465 A.2d
at 184 (Kelleher, J., dissenting), was later recognized as
“the extreme beyond which [this Court was] unwilling to
extend the other-crimes * * * exception because of its
- 51 -
overwhelming prejudice to defendant and its tendency to
be viewed by the trier of fact as evidence that defendant is
a bad man, and that he has a propensity toward sexual
offenses and, therefore, probably committed the offense
with which he is charged.” Quattrocchi, 681 A.2d at 886
(reversing trial court’s admission of evidence of prior
sexual behavior where the evidence was irrelevant to
prove one of the recognized exceptions to Rule 404(b)).
Notwithstanding the historically narrow understanding of the circumstances
under which evidence of sexual conduct involving persons other than the
complainant is admissible, and the narrow contexts under which the rule would be
modified to admit probative evidence of other sexual acts, our law has slowly
retreated from strict adherence to the exclusionary principles embodied in Rule
404(b). In State v. Hopkins, 698 A.2d 183 (R.I. 1997), one year after having decided
Quattrocchi, the Court recast the rule and its exclusionary purpose; rather than
circumscribing the admission of this evidence to protect against the prejudice
warned of in Jalette, Pignolet, and Quattrocchi, the Court held that evidence of
uncharged acts of alleged sexual abuse is admissible “for any relevant ‘other
purpose’ besides proving ‘the character of [the accused],’” subject to a limiting
instruction. Hopkins, 698 A.2d at 185. Although the majority in Hopkins
nevertheless assessed whether the evidence in that case fit within any of the
recognized 404(b) exceptions, it liberalized the close connection that the
Jalette-Pignolet rule required between a recognized 404(b) exception and
other-crimes evidence. See id.
- 52 -
That liberalization ultimately leads to today’s description of a three-part
inquiry to determine the admissibility of this evidence; this newly described test
allows evidence of nonremote, similar uncharged sexual offenses to be admitted as
long as they are relevant to proving the charged crime and “reasonably necessary[,]”
even if the evidence does not meet one of the recognized exceptions under Rule
404(b). That rule seems, to me, circular and confusing. Today’s opinion continues
to expand the “other purpose[s]” for which such evidence is admissible,
transforming Rule 404(b) into a rule of inclusion. The Court’s continued weakening
of the close connection that Jalette, Pignolet, and Quattrocchi required between
evidence of an uncharged act and a recognized exception under 404(b) fails to
protect the interests that underpin the purpose of Rule 404(b)’s exclusionary rule—
namely, that “evidence of other sexual behavior is, by its very nature, uniquely apt
to arouse the jury’s hostility” and, as a result, lead to a verdict guided by animosity
rather than evidence. Jalette, 119 R.I. at 627, 382 A.2d at 533.
While Hopkins and cases after it have paid lip service to the exclusionary
principle embodied in Jalette, Pignolet, Quattrocchi, and Rule 404(b), I am
compelled to conclude that the Court’s continued weakening of the close connection
between an uncharged act and a recognized Rule 404(b) exception, and replacement
of that protection with a rule of reasonable necessity, has resulted, and will continue
to result, in far more evidence of this type being admitted than the
- 53 -
Jalette-Pignolet-Quattrocchi Courts would have allowed. See Hopkins, 698 A.2d at
186. The majority declares in footnote 5 that Jalette and its progeny have been
abrogated by Rule 404(b), as interpreted by this Court. Quattrocchi, however, was
decided after the rules were adopted and yet relied on Jalette and Pignolet to warn
against further liberalization of the standards surrounding prior bad act evidence in
sexual assault cases. See Quattrocchi, 681 A.2d at 886. Against this backdrop and
given this Court’s historical reliance on Jalette in myriad cases discussing Rule
404(b), including those cited by the majority, I cannot agree that we have abrogated
any of Jalette’s principles, common law or otherwise.
The majority provides citations to certain exceptions to Rule 404(b) that it
believes justifies the admission of Elaine’s testimony, but I fail to see how admitting
her testimony under those exceptions avoids the propensity-type reasoning that Rule
404(b) is designed to avoid. The majority states that the evidence was “reasonably
necessary” to prove the state’s case, namely by showing a “common scheme” or
“plan” to molest young girls. But analysis of the final step of the three-part inquiry—
showing why evidence of a “common scheme” or “plan” is relevant to proving the
charge lodged against defendant—is absent from the analysis. The majority
nevertheless shores up its necessity analysis by declaring that the “common scheme”
or “plan” evidence is relevant to credibility and assists in showing a larger pattern
of abusive treatment toward young girls, but, to me, that assessment simply
- 54 -
encourages use of the evidence for a purpose prohibited under Rule 404(b). R.I. R.
Evid. 404(b) (stating that evidence of other acts “is not admissible to prove the
character of a person in order to show that the person acted in conformity
therewith”). It is no surprise that evidence of other sexual assaults is, broadly
speaking, “reasonably necessary” to prove a present charge of sexual assault, but I
believe that the cases which form the foundation of our exclusionary rule in this
context require a stronger connection between the other crimes evidence and the case
at bar—I do not believe the connection has been adequately established in this case.
The Court’s test adopts a version of the admissibility standard for
sexual-assault evidence contained in the Federal Rules of Evidence, but without
employing the process for formally adopting a modification to our rules. See Fed.
R. Evid. 413, 414 (allowing courts to admit evidence of prior instances of sexual
assault or child molestation in cases involving claims of the same and permitting that
evidence to be considered on any matter to which it is relevant). But if this Court
wants to amend our Rules of Evidence to deem evidence of uncharged acts in
sexual-assault cases categorically or presumptively admissible, it is free to do so on
its own accord. See G.L. 1956 § 8-6-2. In fact, adopting the Court’s current test
and/or sexual-assault-case specific Rule 404(b) exceptions through the rulemaking
process would provide relevant stakeholders a meaningful say in the modification of
evidentiary rules and would lend those rules an element of finality that this Court’s
- 55 -
evolving understanding of Rule 404(b) lacks. Absent such a step, however, I believe
we are bound to keep the exclusionary purpose of this rule in mind and remember
the narrow permissible uses of this evidence under the Jalette and Pignolet cases.
See Hopkins, 698 A.2d at 190 (Weisberger, C.J., dissenting).
Applying that more-cabined approach to the evidence presented in this case,
I would conclude that Elaine’s testimony was improperly admitted. Adhering to a
narrow view of the rule that is one of exclusion, evidence of uncharged acts of sexual
assault is admissible only when the uncharged acts are nonremote from the charged
crime, similar to the charged crime, and relevant to prove an exception recognized
under Rule 404(b), which itself must be relevant to prove the charged crime. See
Quattrocchi, 681 A.2d at 885-86; Jalette, 119 R.I. at 627, 382 A.2d at 533. Here,
Elaine’s testimony was too dissimilar to the charged crime and thus not admissible
under Rule 404(b). See Hopkins, 698 A.2d at 186 (recognizing that, as the similarity
between the uncharged act and the charged crime decreases, the effectiveness of the
evidence to show propensity increases). The events happened at another time, in a
starkly different geographic location, to a child of a relevantly dissimilar age, who
was in a significantly different relationship with defendant than the complainant and
involved different types of sexual acts. See State v. Brigham, 638 A.2d 1043, 1045
(R.I. 1994) (holding that uncharged acts are admissible if they are “closely related
in time, place, age, family relationships of the victims, and the form of the sexual
- 56 -
acts”) (quoting Pignolet, 465 A.2d at 181-82); see also Quattrocchi, 681 A.2d at
885-86. But see Pignolet, 465 A.2d at 180-81 (detailing the similarity of the acts).
Because that evidence is too dissimilar to the charged crime, it fails to assist in
establishing any of the recognized exceptions to Rule 404(b) and serves primarily to
arouse the jury’s hostility. See Jalette, 119 R.I. at 627, 382 A.2d at 533; see also
Hopkins, 698 A.2d at 186. To my mind, the failure of Elaine’s testimony to clear
the similarity bar or meet a recognized Rule 404(b) exception compels its exclusion.
Despite my belief that the admission of Elaine’s testimony was error,
however, I concede that the error was harmless. State v. DeCosta, 293 A.3d 297, 303
(R.I. 2023) (applying harmless-error analysis to admission of Rule 404(b) evidence).
That is because, in my review of the record, I believe that the complaining witness’s
consistent and detailed testimony, in the face of rigorous cross-examination, was
sufficient for the jury to find Mr. Montero guilty of the charged crime. See State v.
Rathbun, 184 A.3d 211, 218 (R.I. 2018) (holding that, in sexual assault cases, there
is no independent requirement for corroboration of the victim’s testimony).
For this reason, I concur with the majority of the Court only with respect to
the disposition of the defendant’s specified error concerning the admission of
Elaine’s testimony.
- 57 -
Justice Robinson, dissenting. I think it appropriate to begin this dissenting
opinion by quoting some especially insightful words from a significant law review
article which was published several decades ago. The passage of time has not
diminished the potency of those words; they remain as pertinent and
thought-provoking today as they were when the article was first published:
“Strongly entrenched among many American traditions is
the concept that man should not be judged strenuously by
reference to the awesome spectre of his past life. When
one faces trial for a specific crime, he should not be held
to answer for the scandal that his earlier vices would most
certainly produce. * * * Evidence of other crimes and
misdeeds is not excluded because of an inherent lack of
probative value, but is withheld as a precaution against
inciting prejudice.”1
I believe that those wise words provide a helpful background for the points that I
wish to make in this dissent.
1
M.C. Slough & J. William Knightly, Other Vices, Other Crimes, 41 Iowa L.
Rev. 325, 325 (1956); see also United States v. McCourt, 925 F.2d 1229, 1235-36
(9th Cir. 1991) (referring to “a deep seated notion that our system of justice should
not permit the trier of fact to infer that because someone was a bad guy once, he is
likely to be a bad guy again”); United States v. Foskey, 636 F.2d 517, 523 (D.C. Cir.
1980) (“It is fundamental to American jurisprudence that a defendant must be tried
for what he did, not for who he is.”) (internal quotation marks omitted); State v.
Jalette, 119 R.I. 614, 627, 382 A.2d 526, 533 (1978) (“We are extremely conscious
that the indiscriminate use of ‘other crimes’ evidence poses a substantial risk to an
accused’s right to a fair trial.”).
- 58 -
While I genuinely appreciate the prodigious amount of thought and hard work
that have gone into the composition of the majority opinion in this difficult and
troubling2 case and while I have made a sincere effort to appreciate the reasoning of
my colleagues in the majority, in the end I have concluded that I would not be true
to myself if I were to join in that opinion. Accordingly, I am filing this respectful
dissent. It is my strongly held view that the trial justice committed reversible error
when he ruled that Elaine could testify pursuant to one of the exceptions mentioned
in Rule 404(b) of the Rhode Island Rules of Evidence. That ruling allowed Elaine
to testify about defendant having engaged in acts of sexual intercourse with her in
the Dominican Republic when she was a young teenager and he was in his twenties.3
I will now proceed to explain as succinctly and as cogently as possible my strongly
held view that Elaine should not have been allowed to testify about those acts.
2
One of the many reasons why I find this case troubling is that the jury found
defendant not guilty of the two counts alleging penis/vagina contact and not guilty
of one of the two counts alleging fellatio with which he was charged in the
indictment. In other words, he was found not guilty of all but one of the four counts
in the indictment. Jury verdicts of this sort often cause me to recall Churchill’s
description of Soviet Russia as being “a riddle wrapped in a mystery inside an
enigma.” Winston Churchill, The Russian Enigma, BBC Broadcast (Oct. 1, 1939),
available at https://winstonchurchill.org/resources/quotes/russia-2 (last visited Aug.
14, 2025).
3
As the majority opinion points out, Elaine eventually became pregnant; and
at the age of fifteen she gave birth to Anne, who is the complaining witness in this
quite unusual case.
- 59 -
I think it worthwhile first to take a step back to remind ourselves of the
profoundly important jurisprudential policy that underlies Rule 404(b)—namely, the
avoidance of criminal cases being decided on the basis of propensity. See State v.
Mohapatra, 880 A.2d 802, 806 (R.I. 2005) (“In molestation or sexual assault cases,
evidence of a defendant’s prior sexual misconduct cannot be admitted to prove that
defendant is a bad man, and that he has a propensity toward sexual offenses and,
therefore, probably committed the offenses with which he is charged.”) (internal
quotation marks omitted); State v. Brigham, 638 A.2d 1043, 1044 (R.I. 1994) (“As
a general rule, in the prosecution of a specific crime, evidence of past, unconnected,
uncharged criminal behavior is not admissible to prove a defendant’s propensity to
commit the crime charged. * * * The basis for excluding such evidence of other
crimes is the belief that the potential for creating prejudice in the minds of the jurors
outweighs its probative value.”) (internal quotation marks omitted); State v.
Lamoureux, 623 A.2d 9, 13 (R.I. 1993) (Weisberger, J.) (“In our prior cases we have
pointed out that evidence of criminal activity on the part of the accused, other than
the crime with which he or she is charged, is normally inadmissible because it is
irrelevant to prove the charge save by its indication that the defendant is a bad man
- 60 -
or woman who would therefore be predisposed to commit the crime with which he
or she is charged.”).4
I also consider it important to remain acutely mindful of the actual language
of Rule 404(b), which reads as follows:
“Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show that the person acted in conformity therewith. It
may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake or accident, or to
prove that defendant feared imminent bodily harm and that
the fear was reasonable.”
I consider it significant that Rule 404(b) begins with a broad statement as to the
non-admissibility of “[e]vidence of other crimes, wrongs, or acts” and only then
indicates that there “may” be other purposes for which such evidence could be
admitted.5 One of the potential exceptions to Rule 404(b)’s general prohibitory
4
While some may consider it conceited to quote oneself, I nevertheless wish to
direct the reader’s attention to my concurring and dissenting opinion in the case of
State v. Mohapatra, 880 A.2d 802 (R.I. 2005). In that opinion, I wrote at some
length in order to emphasize that the purpose of Rule 404(b) of the Rhode Island
Rules of Evidence and of analogous rules elsewhere is “to exclude evidence of a
defendant’s alleged propensity to commit crime * * *.” Mohapatra, 880 A.2d at 811
(Robinson, J., concurring in part and dissenting in part). I also noted in that opinion
that “our system seeks to focus the attention of the finders of fact on the evidence
pertinent to the particular crime of which the defendant is presently charged.” Id.
5
Although this Court’s cases are not consistent as to the point, it is my firm
belief that Rule 404(b) is a rule of exclusion, not inclusion. See, e.g., State v. Merida,
960 A.2d 228, 232 n.8 (R.I. 2008) (“It should at all times be remembered * * * that
Rule 404(b) is fundamentally a rule of exclusion.”); State v. Garcia, 743 A.2d 1038,
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language is when the purpose for which admissibility is sought is to prove “plan.”
That was the exception invoked by the state in the instant case.6 See State v.
Gallagher, 654 A.2d 1206, 1210 (R.I. 1995) (noting that “[e]vidence of other prior
crimes may be allowed if it tends to establish the defendant’s * * * plan * * * with
respect to the offense charged”) (internal quotation marks omitted). However,
before such evidence of other prior crimes may be admitted into evidence, it is
required that those crimes be sufficiently similar to the crime(s) with which the
defendant has been charged. See Mohapatra, 880 A.2d at 806 (“This court
1050 (R.I. 2000) (referring to “the general exclusionary rule of Rule 404(b)”); State
v. Gallagher, 654 A.2d 1206, 1210 (R.I. 1995) (discussing the exceptions “to this
exclusionary rule”); State v. Chartier, 619 A.2d 1119, 1122 (R.I. 1993); State v.
Lemon, 497 A.2d 713, 721 (R.I. 1985); Jalette, 119 R.I. at 624-28, 382 A.2d at
531-33. See generally Spencer v. Texas, 385 U.S. 554, 560 (1967) (stating that
evidence of prior offenses is “generally recognized to have potentiality for
prejudice” and noting that it is usually excluded except where a specific recognized
exception applies).
It is my belief that both the general principle of non-admissibility which is so
clearly articulated in the first sentence of Rule 404(b) as well as the Rule’s
recognition of the possibility of exceptions to that general principle play an
important role in an ordered system of criminal (or civil) justice. I would simply
emphasize the need for profound reflection by all judicial officers whenever a Rule
404(b) decision must be made. The decision whether to exclude evidence pursuant
to Rule 404(b) or to admit that evidence pursuant to one of the exceptions can have
a case-determinative effect, and caution should be the watchword.
6
The majority opinion states that “[t]he state proffered that defendant’s past
sexual exploits were sufficiently similar and nonremote to the charges in the
indictment, and that the uncharged sexual misconduct demonstrated ‘a common plan
or scheme with young girls to sexually gratify himself * * *.’”
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repeatedly has held that prior sexual misconduct, perpetrated by a defendant against
persons other than the complainant, must be sufficiently similar and
contemporaneous to support a ruling of admissibility by the trial justice.”) (emphasis
added); see also State v. Rainey, 175 A.3d 1169, 1182 (R.I. 2018).
The majority in Mohapatra discussed the similarity requirement in the
following significant sentence:
“Offenses will be considered sufficiently ‘nonremote’ and
‘similar’ when they are ‘closely related in time, place, age,
family relationships of the victims, and the form of the
sexual acts.’” Mohapatra, 880 A.2d at 806 (emphasis
added) (quoting Brigham, 638 A.2d at 1045).
In my view, the above-quoted reference to “the form of the sexual acts” is of
particular importance with respect to the similarity requirement in this case.
I am completely unable to agree with the majority that the acts of sexual
intercourse in which defendant and Elaine engaged and concerning which she was
allowed to testify were, as the majority has concluded, “sufficiently similar” to the
sexual acts referred to in the four counts of the indictment.7
It is clear to me that there is no meaningful similarity between the acts of
sexual intercourse that Elaine testified took place in the Dominican Republic
7
Several other cases have likewise explicitly referred to “the form of the sexual
acts” when listing factors to be scrutinized in considering the similarity requirement.
See, e.g., State v. Perez, 161 A.3d 487, 494 (R.I. 2017); State v. Pignolet, 465 A.2d
176, 181 (R.I. 1983); State v. Cardoza, 465 A.2d 200, 203 (R.I. 1983).
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beginning when she was thirteen years old8 and the sexual acts which defendant was
charged with having committed vis-à-vis his own daughter in this country several
years later.9
It should be clear to any adult that “the form of the sexual acts” to which
Elaine testified (viz., sexual intercourse) is patently not “sufficiently similar” to the
sexual acts with which defendant was charged in the indictment. It is clear from the
record that in the instant case “the form of the sexual acts” to which Elaine testified
differed greatly from those which defendant was accused of having committed. See
Mohapatra, 880 A.2d at 806. Accordingly, it is my opinion that Elaine’s testimony
should not have been admitted pursuant to the common plan or scheme exception to
Rule 404(b)’s exclusionary language.
8
I am aware, as the majority opinion points out, that the age of consent in the
Dominican Republic is eighteen. Accordingly, I am fully cognizant of the fact that,
even though Elaine characterized her relationship with defendant as having been
“romantic,” it was nonetheless in violation of the law of that country. However, that
fact is irrelevant to the evidentiary point at issue here—viz., what I consider to be
the great dissimilarity between the non-forceful acts of sexual intercourse about
which Elaine testified and the very different criminal sexual acts which defendant
was charged with having committed in this country. Moreover, as I wish to
emphasize, the relationship between defendant and Elaine was not even remotely
incestuous—whereas the sexual acts which the indictment in the instant case charged
defendant with having committed would have been inherently incestuous in nature.
9
It will be recalled that the indictment charged defendant with two counts of
fellatio and two counts of penis/vagina contact.
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In addition to the fact that the acts of sexual intercourse described by Elaine
differed from the charged acts (none of which involved intercourse), an even more
glaring difference is the fact that Anne is defendant’s daughter. In view of what was
charged, the state was required to prove that defendant engaged in sexual activity
with his own daughter. I completely fail to see how Elaine’s testimony about
defendant’s sexual intercourse with her, with there being absolutely no indication
that they were then related to one another, surmounts the similarity hurdle. As
inappropriate and violative of the law of the Dominican Republic as was the sexual
activity which Elaine testified that defendant engaged in with her when she was in
her early teen years, the reality is that she was not defendant’s daughter or other
blood relative. By contrast, the sexual activities referenced in the four charges in
this case were incestuous in nature. To my mind, that difference is enormous and is
a further powerful indication that there was not any similarity between the acts about
which Elaine testified and those for which defendant was indicted.10
It is true that this Court has “held on more than one occasion that, when a
defendant is charged with second-degree molestation, similar incidents involving
10
The fact that Anne was defendant’s daughter radically differentiates the
sexual activity which he was accused of engaging in with her from the sexual activity
which Elaine testified he engaged in with her. Elaine was not related to defendant
when they engaged in sexual intercourse. It strikes me as fundamentally unfair to
use the testimony of Elaine about non-incestuous sexual conduct in an attempt to
convince the jury that defendant violated not only the positive law, but also the
widely recognized social taboo against incestuous conduct.
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other victims are admissible to demonstrate the defendant’s intent to sexually
gratify.” State v. Mitchell, 80 A.3d 19, 29 (R.I. 2013); see also State v. Perry, 182
A.3d 558, 570 (R.I. 2018). And it is also true that this defendant was charged with
two counts of second-degree molestation. However, as I have tried to make clear, it
is my strongly held view that the acts of sexual intercourse about which Elaine
testified are simply not similar to the perverted and incestuous deeds with which
defendant was accused of having committed. How the prosecution should have
sought to prove that the two alleged acts of penis to vagina contact were performed
by defendant with the intent to self-gratify is an issue with which I need not grapple.
What I do know is that Elaine’s testimony should not have been admitted for that or
any other prosecutorial purpose.
It is further my view that the admission of Elaine’s testimony was definitely
not harmless error. See State v. Mercurio, 89 A.3d 813, 822-23 (R.I. 2014). It is
clear to me that Elaine’s testimony portrayed defendant as being a sort of predator
with a predilection for young females. I cannot comprehend why her testimony
about sexual intercourse (albeit illegal) when she was a young teenager could be
considered similar to the vile deeds which defendant was accused of having
committed years later vis-à-vis his own young daughter. I simply do not believe that
the state can be said to have proven “beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.” Mercurio, 89 A.3d at 822
- 66 -
(quoting State v. Smith, 446 A.2d 1035, 1036 (R.I. 1982)); see also State v. Aponte,
317 A.3d 745, 754-55 (R.I. 2024); State v. Quattrocchi, 681 A.2d 879, 887 (R.I.
1996).11
I realize that some might possibly consider this to be a close case—one that
falls within the ambit of the trial justice’s discretion.12 While I do not consider the
instant case to be close, I would respectfully suggest to those who are inclined to
believe that there is sufficient similarity between the sexual acts at issue to make this
a close case that we should follow the example of the Supreme Court of Washington,
which has held that “in doubtful cases the scale should be tipped in favor of the
defendant and exclusion of the evidence.” State v. Smith, 106 Wash. 2d 772, 776,
11
Because I believe that the trial court committed reversible error when allowing
Elaine to testify pursuant to Rule 404(b), I see no need to discuss at length the
pertinence of Rule 403 of the Rhode Island Rules of Evidence. Nevertheless, I feel
obliged to summarily indicate my conviction that Elaine’s testimony should have
been barred by Rule 403 even if it had somehow surmounted the Rule 404(b) hurdle.
I also believe that her testimony did not qualify as being “relevant” pursuant to Rule
401. See Cardoza, 465 A.2d at 204; Jalette, 119 R.I. at 625, 382 A.2d at 532.
12
I am well aware that trial justices are accorded considerable discretion with
respect to their evidentiary rulings. See, e.g., State v. Aponte, 317 A.3d 745, 754 (R.I.
2024) (“It is well established that the decision to admit or exclude evidence rests in
the sound discretion of the trial justice.”); Perez, 161 A.3d at 493; Mohapatra, 880
A.2d at 805; State v. Breen, 767 A.2d 50, 58 (R.I. 2001). Nevertheless, while being
acutely appreciative of how challenging it is for a trial justice to wrestle with difficult
evidentiary issues in the context of a hotly contested case such as this one, I am
convinced that it was an abuse of discretion to have allowed Elaine to testify on the
basis of the trial justice’s conclusion that the acts about which she testified were
“similar enough” to the misconduct allegedly committed against Anne.
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725 P.2d 951, 953 (1986) (brackets omitted) (quoting State v. Bennett, 36 Wash.
App. 176, 180, 672 P.2d 772 (1983)). Even more pertinent are the following words
of this Court in State v. Costa, 111 R.I. 602, 306 A.2d 36 (1973): “[W]e are frank to
acknowledge that the question is close, but close questions in criminal cases must
ordinarily be resolved in favor of the accused, in light of the latter’s entitlement to
the benefit of a reasonable doubt.” Costa, 111 R.I. at 611, 306 A.2d at 40-41. See
generally United States v. Santos, 553 U.S. 507, 514 (2008) (“Under a long line of
our decisions, the tie must go to the defendant.”). I see wisdom in adhering to those
principles whenever a criminal case is deemed to present a close question.
As I near the conclusion of this dissent, I wish to summarize my opinion that
it was reversible error to have admitted the testimony of Elaine for two separate and
independent reasons: (1) the sexual acts to which Elaine testified were not
sufficiently similar to the sexual acts alleged in the indictment; and (2) the sexual
acts in which defendant and Elaine participated in the Dominican Republic were not
incestuous in any sense, whereas each of the four counts in the indictment alleged
conduct that would be completely incestuous and therefore radically dissimilar to
the acts about which Elaine testified. For each of those reasons viewed separately
and, a fortiori, when the two reasons are viewed as a totality, the admission of
Elaine’s testimony was reversible error.
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I conclude this dissent by again expressing my sincere admiration for the
workmanlike nature of the majority’s comprehensive opinion. Nevertheless, I
remain convinced that Rule 404(b), as I understand it, should have constituted an
absolute bar to Elaine’s testimony.13 My strong disagreement with the majority as
to that important point has resulted in this respectful dissent.
13
Since I believe that the admission of Elaine’s testimony constitutes reversible
error in and of itself, I see no reason to comment, one way or another, on defendant’s
other claims of error.
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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903
OPINION COVER SHEET
Title of Case State v. Miguel Montero.
No. 2023-92-C.A.
Case Number
(P1/20-3378A)
Date Opinion Filed August 18, 2025
Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.
Written By Associate Justice Maureen McKenna Goldberg
Source of Appeal Providence County Superior Court
Judicial Officer from Lower Court Associate Justice Jeffrey A. Lanphear
For State:
Virginia M. McGinn
Attorney(s) on Appeal Department of Attorney General
For Defendant:
George J. West, Esq.
Case Information
- Court
- R.I.
- Decision Date
- August 18, 2025
- Status
- Precedential