January 11, 2018




                                                                      Supreme Court

                                                                      No. 2014-348-M.P.
                                                                      (P1/12-463A)

                       State                     :

                        v.                       :

                   John Rainey.                  :



                   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
                   222-3258 of any typographical or other formal errors in order that
                   corrections may be made before the opinion is published.
                                                                    Supreme Court

                                                                    No. 2014-348-M.P.
                                                                    (P1/12-463A)
                                                                    Dissent begins on Page 33
                                                                    Dissent begins on Page 48
                      State                   :

                       v.                     :

               John Rainey.                   :


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

                                         OPINION

       Justice Indeglia, for the Court. The defendant, John Rainey (defendant or Rainey), is

before this Court on a writ of certiorari1 after a Providence County jury found him guilty of two

counts of first-degree child molestation and one count of second-degree child molestation. The

defendant was sentenced to sixty years, with fifty to serve and ten suspended, on each count of

first-degree child molestation, and fifteen years to serve on the second-degree count; all

sentences are set to run concurrently. For the reasons set forth herein, we affirm the judgment of

the Superior Court.

                                                  I

                                        Facts and Travel

       In the fall of 2011, Anna,2 then an adult, disclosed to authorities that she had been

sexually assaulted on multiple occasions by defendant when she was a child; he was her

mother’s boyfriend at the time. On February 2, 2012, a Providence County grand jury returned a



1
 The defendant’s trial counsel failed to file a notice of appeal.
2
 To protect the privacy of the complaining witness, who now has a family of her own, we follow
our customary practice of giving child victims in these cases fictitious names.


                                               -1-
true bill charging defendant with the following counts: (1) between October 1, 1987 and August

22, 1988, sexual penetration, to wit, penile/vaginal penetration, with Anna, a person fourteen

years of age or under, in violation of G.L. 1956 §§ 11-37-8.1 and 11-37-8.2; (2) between January

1, 1990 and December 31, 1990, sexual penetration, to wit, penile/vaginal penetration, with

Anna, a person fourteen years of age or under, in violation of §§ 11-37-8.1 and 11-37-8.2; and

(3) between April 1, 1992 and August 30, 1992, sexual contact, to wit, hand to breast, with Anna,

a person fourteen years of age or under, in violation of §§ 11-37-8.3 and 11-37-8.4. At the time

of defendant’s trial in 2013, Anna was thirty-four years old; she testified that he had committed

the above crimes when she was between the ages of eight and thirteen.

       At defendant’s trial, Anna recounted those traumatic events from her childhood.3 When

Anna was eight years old, defendant came to live with her and her mother at their home on

Manton Avenue in Providence. Without a father figure in her life, Anna was happy to call

defendant “Dad.” However, defendant and Anna’s mother drank heavily together, impacting

Anna and her mother’s relationship. Soon, Anna’s initially pleasant relationship with defendant

began to change. Her mother would often leave Anna alone with defendant when he was not

working, and he was usually intoxicated. One night, when Anna was in bed, defendant—

completely naked—entered her bedroom and lay down next to her. Scared, Anna pretended to



3
 Three of those events were the basis for the present charges against defendant; still others were
admitted as evidence pursuant to Rule 404(b) of the Rhode Island Rules of Evidence. Rule
404(b) 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.”


                                              -2-
be asleep for the couple of minutes that defendant remained there.4 The next morning, Anna

relayed to her mother what had happened. Her mother told her that defendant had simply been

drunk and had gone into the wrong room.          At that time, her mother was pregnant with

defendant’s child.

       Before Anna’s half-sister was born on August 22, 1988, defendant imposed himself on

Anna once again. That day, Anna was home alone with defendant. She was sitting on the couch,

curled up in the fetal position, in her pajamas watching cartoons. The defendant approached her

and asked if she wanted to do something fun; as an eight- or nine-year old, Anna believed that

defendant was referring to a game and answered affirmatively. At that point, defendant pulled

her legs down and laid her flat on the couch. He proceeded to climb on top of her, straddled over

her with his legs on either side of her body. As he removed her pants, Anna told him that she did

not like what was happening. Undeterred, defendant took off his pants. He then rubbed his

penis against her vagina. Anna testified that, during this encounter, defendant put his penis

inside her “labia.”5 She did not tell anyone because she was scared, and she did not think her

mother would believe her this time, just as she had not believed her previously.

       The next incident occurred mere months after Anna’s half-sister was born, just before

Christmas of 1988. The defendant brought Anna, then nine years old, to the mall so she could

buy a Christmas gift for her mother. Upon arriving in the mall parking lot, defendant told Anna

he would give her money to purchase her mother’s gift if she would first do something for him.

The defendant then unzipped his pants, grabbed Anna’s head, and placed her mouth on his penis,

all the while directing her actions. After ejaculating in her mouth, defendant gave Anna the



4
  This evidence was admitted pursuant to Rule 404(b), and it is not contested on appeal.
5
  This testimony formed the basis for count 1, which we shall refer to as the Manton Avenue
incident.


                                               -3-
money he had promised her, and she went into the mall and bought a gift for her mother.6 Again,

Anna told no one what had happened. Her self-described “awkward” relationship with defendant

persisted, although she “didn’t know what was happening was wrong.”

          In the spring of 1989, defendant and Anna’s mother moved Anna and her infant half-

sister to Kentucky, where defendant had accepted a job. Shortly thereafter, the four of them

moved to Chicago for the same reason. By that point, the drinking by defendant and Anna’s

mother had become “excessive,” according to Anna. One evening, when Anna’s mother was

passed out—“inebriated to the point where [she couldn’t] function”—defendant said to Anna, “I

want you to watch what I’m going to do to your mom.” He then made Anna hide behind a chair

and watch him have sex with her mother.7 By this point, Anna thought of defendant as “a very

scary guy.”

          Eventually, Anna’s mother decided to leave defendant, and she, Anna, and Anna’s half-

sister moved back to Rhode Island without him. They stayed with Anna’s grandparents in

Warwick until just after Christmas of 1989. In the beginning of 1990, they moved to Sterling

Avenue in Providence. There, Anna learned that her mother was pregnant with defendant’s child

yet again. Shortly before Anna’s second half-sister was born on May 21, 1990, defendant came

back into their lives, moving into the Sterling Avenue home. However, his return was short-

lived; he left soon after the baby’s birth.

          Despite his abbreviated return, yet another incident occurred during the short time

defendant lived with Anna. On a day when Anna’s mother was out of the house, after Anna’s

eleventh birthday, defendant again molested her. In defendant and her mother’s bedroom,

defendant forcefully pushed Anna onto the bed. After completely undressing her and removing

6
    This evidence was admitted pursuant to Rule 404(b), and it is not contested on appeal.
7
    This evidence was admitted pursuant to Rule 404(b), and it is not contested on appeal.


                                                 -4-
his own clothes, defendant lay “[f]ully on top of [Anna], between [her] legs.” Anna testified that

“[h]e proceeded to put his penis into [her] vagina again” and then ejaculated on her stomach.8

When he got up, according to Anna, defendant threatened to “beat the hell out of [her] mother” if

Anna ever told anyone what he had done.

       For reasons unrelated to the abuse, Anna’s mother kicked defendant out of the house a

few months later.    In 1992, defendant expressed his desire to spend a weekend with his

daughters, Anna’s half-sisters. Anna’s mother made Anna, who was then thirteen years old, go

and “keep an eye on the girls.” Anna’s grandfather dropped her and her half-sisters off at a

parking lot, where defendant was waiting to pick them up. Anna fastened her half-sisters into the

back seat of the car before climbing in through the rear driver’s side door. The defendant,

standing at the open driver’s door, reached back and grabbed Anna’s breast.9 He told her that

she was “filling out very nicely.” Anna testified that, by this point, she was no longer afraid of

defendant, so she slapped his hand away and told him never to touch her again.

       When Anna was sixteen years old, a high-school health class discussion about sexual

harassment motivated her to finally reveal to her mother defendant’s repeated abuse. After

telling her mother, Anna was met by her mother’s blank stare, followed by her mother telling her

that she had heard defendant had moved out of state, so there was nothing they could do about

the abuse. Anna felt that her mother did not believe her.

       In 2011, Anna reported the abuse to the Providence police. Prompting Anna’s disclosure

was her half-sister’s Facebook post, from which Anna learned that defendant had been arrested




8
  This testimony formed the basis for count 2, which we shall refer to as the Sterling Avenue
incident.
9
  This testimony formed the basis for count 3.


                                               -5-
for similar crimes. Anna testified that, had she not received that information, she would not have

come forward with her own allegations against defendant.

          In the case Anna learned about on Facebook, the alleged victim was defendant’s

biological daughter (by a woman other than Anna’s mother), Beth.10 However, those charges

against defendant had been dropped because of Beth’s unwillingness to testify when she was

sixteen years old. Two years later, Beth expressed interest in Anna’s case because of Beth’s

relationship to defendant. She texted the prosecutor on the eve of defendant’s trial, which was

set to start on May 30, 2013, to check on its progress. Apparently emboldened by the time that

had passed since she was reluctant to testify as to her own allegations, Beth agreed to testify in

Anna’s case as a witness for the state. Due to the last-minute discovery revealed to defense

counsel on Thursday, May 30, 2013—last-minute as to both the existence of Beth as an expected

witness and the anticipated contents of her testimony—the trial justice directed the state to wait

until the following Monday, June 3, 2013, to call Beth to the stand, thereby giving defense

counsel the weekend to prepare.

          On that Monday, Beth testified to a sexual assault that defendant, her biological father,

attempted on her in 2003, when she was eight years old. Beth recounted that she went to visit

her father at his single-room apartment in Cumberland for the first time since he had moved

there. The defendant was angry for reasons unknown to Beth and asked her to sit on the bed.

She did so, and he walked over to her yelling and calling her names. As Beth sat on the edge of

the bed, defendant pushed her back on the bed with one hand and began taking his and her

clothes off; Beth struggled to get up, but was unable to do so. The defendant climbed on top of

her, and, because she was trying to push him away, he wrapped her arms in his belt and put them



10
     We again use a fictitious name in the interest of anonymity.


                                                 -6-
above her head. He then grounded his arms and legs on either side of Beth, straddling her. The

defendant called her names, while simultaneously claiming to be trying to help her. Beth

testified that defendant “tried to put [his penis] in [her].” She continued to explain that his penis

actually touched her vagina, but, because of her struggling, he was unsuccessful in penetrating

her. The defendant eventually gave up and walked away. He got dressed and went outside; she

untied her hands, got dressed, called her mother to pick her up, and waited inside. Beth and

defendant said nothing to one another before she left, and she told no one what had happened for

approximately six years.

       Like Anna, it took Beth years to reveal what defendant had done to her. She did not

disclose the assault until she was fourteen years old, after which defendant was charged. While

Beth was hesitant to testify against her father regarding her own allegations, leading to their

dismissal, she did testify at the trial in this case. The defendant was found guilty on all three

counts of molesting Anna.

       The crux of defendant’s appeal is that the trial justice should not have allowed Beth to

testify. In support of this contention, defendant argues: (1) that the trial justice abused his

discretion by failing to exclude Beth’s testimony as a result of the state’s violation of Rule 16 of

the Superior Court Rules of Criminal Procedure; (2) that the trial justice erred by admitting her

testimony pursuant to Rule 404(b) of the Rhode Island Rules of Evidence; and (3) that, even if

Beth’s testimony was admissible under Rule 404(b), the trial justice should have excluded it

under Rule 403 of the Rhode Island Rules of Evidence. Additionally, defendant argues that the

trial justice erred when he denied his motions for judgment of acquittal and for a new trial.




                                                -7-
                                                  II

                                             Discussion

                                             A. Rule 16

                                       1. Standard of Review

       In reviewing whether a Rule 16 violation occurred, “[t]his Court affords great deference

to a trial justice’s decision * * *, and it ‘will not disturb that ruling on appeal unless he or she has

committed clear error.’” State v. Diefenderfer, 970 A.2d 12, 23 (R.I. 2009) (quoting State v.

McManus, 941 A.2d 222, 229 (R.I. 2008)). The standard of review in determining whether there

has been a Rule 16 violation is “extremely narrow.” State v. Espinal, 943 A.2d 1052, 1062 (R.I.

2008). Moreover, in analyzing whether the trial justice fashioned an appropriate remedy for a

Rule 16 violation, we “will overturn a trial justice’s ruling only upon a showing of a clear abuse

of discretion.” State v. Ramos, 553 A.2d 1059, 1068 (R.I. 1989).

                                             2. Analysis

       When a defendant requests discovery from the state, Rule 16(a)(7),(8) obligates the state

to provide a list of witnesses it expects to call, as well as summaries of their expected testimony.

“The overarching purpose of Rule 16 is ‘to ensure that criminal trials are fundamentally fair.’”

State v. Briggs, 886 A.2d 735, 754 (R.I. 2005) (quoting State v. Gordon, 880 A.2d 825, 832 (R.I.

2005)). After all, “[i]n our adversary system, based as it is upon a single trial held on a single

occasion, it is imperative that the defense come to trial as well equipped as possible to raise

reasonable doubt in the minds of one or more of the jurors.” State v. Concannon, 457 A.2d

1350, 1352-53 (R.I. 1983). In that sense, then, the rule serves “to eliminate surprise at trial and

to ensure that both parties receive the fullest possible presentation of the facts prior to trial.”

State v. Langstaff, 994 A.2d 1216, 1219 (R.I. 2010) (quoting State v. Garcia, 643 A.2d 180, 186




                                                 -8-
(R.I. 1994)); see also Concannon, 457 A.2d at 1353. Therefore, “[f]ailure to cooperate with the

spirit and letter of Rule 16 undermines the judicial process and subjects the noncompliant party

to possible sanctioning.” State v. Stravato, 935 A.2d 948, 951 (R.I. 2007) (quoting Ramos, 553

A.2d at 1067). In considering the proper sanction for such a failure to comply, “the trial justice

should take into account: (1) the reason for nondisclosure, (2) the extent of prejudice to the

opposing party, (3) the feasibility of rectifying that prejudice by a continuance, and (4) any other

relevant factors.” State v. Coelho, 454 A.2d 241, 245 (R.I. 1982).

       In the present case, it was not until the morning of May 30, 2013, after a jury had already

been chosen and was about to be sworn, that the state supplemented its response to defendant’s

request for discovery. The state then moved to introduce evidence pursuant to Rule 404(b) in the

form of Beth’s testimony. The state explained that it had not listed Beth in discovery because

she had been unwilling to testify against her father before unexpectedly expressing a desire to do

so, and thus the state had not intended to call her as a witness. The trial justice accepted the

state’s reason and agreed that this did not appear to be an instance of intentional withholding.11

       Understandably surprised by the eleventh-hour disclosure, defense counsel strenuously

objected to Beth’s testimony. He cited his lack of time to prepare for her testimony and asked

that she be excluded as a witness. In response, the trial justice forbade the state from calling

Beth to the stand before Monday, June 3, 2013, giving defense counsel the weekend to review




11
    We decline to accept defendant’s submission at oral argument that the prosecution’s
undeniably late disclosure could fairly be characterized as intentional. We glean no evidence
from the record to suggest that the prosecution withheld the testimony intentionally, especially in
light of the state’s insistence that, when Beth agreed to testify, it informed the court and the
defense the next morning. But see State v. Stravato, 935 A.2d 948, 955 (R.I. 2007) (holding that
the trial justice committed clear error in determining that, although the state intentionally
withheld the victim-impact statement, its good-faith basis for doing so made the nondisclosure
unintentional).


                                                -9-
the material as related to her. Nevertheless, the trial justice indicated that he would allow Beth to

testify on that date.

        The state argues that there was no Rule 16 violation because that rule only “mandates

disclosure of statements made by those persons whom the State expects to call as witnesses,” and

here the prosecution did not expect to call Beth until she agreed in the final moments before trial

to testify. We briefly address this argument only to say that we reject the state’s characterization

of Rule 16. If this Court adopted the state’s purported interpretation of Rule 16, its intended

purpose of “eliminat[ing] surprise at trial and * * * ensur[ing] that both parties receive the fullest

possible presentation of the facts prior to trial,” Langstaff, 994 A.2d at 1219 (quoting Garcia,

643 A.2d at 186), would be eviscerated and its protection rendered ineffective because parties

could simply wait until the eve of trial to contact witnesses, framing their testimony as

“unexpected.” With that said, we hold that the trial justice did not clearly err in determining that

there was indeed a Rule 16 violation here.12

        We next address the remedy that the trial justice adopted to cure this violation. Notably,

after objecting to the trial justice’s ruling allowing Beth’s surprise testimony, defense counsel

never objected to the remedy fashioned by the trial justice—that is, the trial justice’s decision to

allow her to testify on June 3, giving defense counsel three days to prepare.13 Even more



12
   While the trial justice did not explicitly say that the state had committed a violation of Rule 16
of the Superior Court Rules of Criminal Procedure, we infer that, because he issued a Rule 16
remedy, he determined that one had occurred.
13
   The trial justice, after ruling on the admissibility of Beth’s testimony and determining that it
must wait until Monday, told defense counsel, “I’ll note your exception.” That statement does
not change our determination that defense counsel failed to object to the remedy. Defense
counsel’s initial objection related only to the admissibility of Beth’s testimony under Rule
404(b), not to the remedy that the trial justice made to cure the Rule 16 violation, leading us to
the conclusion that, even if the exception applied to the trial justice’s remedy, counsel failed to
tailor an objection specific enough to preserve the record. See State v. Lyons, 725 A.2d 271, 273
(R.I. 1999) (reiterating that under the “raise-or-waive” rule, “issues that were not preserved by a


                                                - 10 -
importantly, defense counsel made no indication on the day Beth was to testify that he was not

prepared. He never expressed any reluctance in proceeding after either his initial objection or

after he received the material the following day.

        We have recognized scenarios where, based on the clear adverse disposition of the trial

justice, we do not fault counsel for failing to press the issue further. This is not such a scenario.

But see State v. Mead, 544 A.2d 1146, 1150 (R.I. 1988) (holding that a request for a cautionary

instruction would have been futile where the trial justice had twice “summarily overruled

defendant’s objections”). The trial justice had accommodated defense counsel, and counsel’s

failure to raise the issue again did not stem from any failure of the trial justice. Therefore, it is

our opinion that the trial justice did not abuse his discretion in failing to craft an alternative

remedy when there was no notice given to him that his original remedy might be inadequate.

        Still, defendant maintains on appeal that Beth’s testimony should have been excluded

altogether. At the outset, we remark “that the sanction of excluding testimony is an extreme and

drastic remedy which should be exercised with caution and restraint.” Ramos, 553 A.2d at 1067.

The defendant analogizes this case to Langstaff, 994 A.2d at 1220, wherein we held that the trial

justice incorrectly allowed the prosecution to introduce Rule 404(b) evidence that it presented to

the defense and the court on the morning of the second day of trial. There, we agreed with the

prosecution that there was no proof that it deliberately withheld the evidence, but nevertheless

determined that it was improper “for the trial justice to have permitted the introduction of this



specific objection at trial, sufficiently focused so as to call the trial justice’s attention to the basis
for said objection, may not be considered on appeal.” (quoting State v. Toole, 640 A.2d 965, 972-
73 (R.I. 1994) (emphasis added))).
        Moreover, after “not[ing] [his] exception,” the trial justice gave both counsel the
opportunity to put “anything else [on] the record,” an invitation each declined. As such, defense
counsel could not rely on the trial justice’s given “exception” to preserve his objection to the trial
justice’s chosen remedy for the state’s Rule 16 violation.


                                                  - 11 -
evidence for any purpose just a few short hours after [the] defendant was apprised of it.”

Langstaff, 994 A.2d at 1220.

       However, Langstaff is distinguishable. Rather than permitting the evidence “a few short

hours” after it came to light, the trial justice gave defense counsel until June 3 to prepare for

Beth’s testimony. See Langstaff, 994 A.2d at 1220. We have previously stated that “[i]n light of

* * * unexpected and crucial piece[s] of evidence, * * * the court should * * * impose[] a remedy

that might at least * * * place[] the defendant in as favorable a position as he would have been

had the information been furnished in [a] timely fashion.” State v. Darcy, 442 A.2d 900, 903

(R.I. 1982). As evidence of the prejudice he suffered, defendant emphasized that “there was no

mention of [Beth] during his opening statement * * *, only a brief reference during closing

argument * * *, and his cross-examination of [Beth] did nothing to probe her truthfulness or her

potential bias or motive to lie.” And yet, defense counsel chose not to request a continuance;

and, while “acceptance or rejection of a continuance is not the standard to determine if Rule 16 is

violated,” it is relevant as to whether defendant was prejudiced, which is the “primary factor” we

consider in determining the appropriate remedy for a Rule 16 violation. State v. Olsen, 610 A.2d

1099, 1103 (R.I. 1992) (“[the] defendant undercuts his argument that he was prejudiced by the

state’s nondisclosure” in his decision to reject the trial justice’s offer of a continuance); see also

Espinal, 943 A.2d at 1063 n.16 (“We note that defense counsel chose not to move for a

continuance after he became aware of the information * * *. Such a motion, if granted, would

have afforded counsel an opportunity to alter his trial strategy in light of the apology.”).

       Defense counsel asks us to infer that, where his “cross-examination of [Beth] was

noticeably meager,” the allowable suggestion is that he “did not, in fact, have sufficient time to

prepare,” and thus was prejudiced. We decline to take such a leap. We are hesitant to make




                                                - 12 -
inferences from what very well might have been a strategic decision of counsel;14 and, because

we decline to make such an inference of prejudice, we cannot say that it was an abuse of

discretion for the trial justice to give defense counsel three days to “adequately prepare for trial

and to plan trial strategy with his or her client.” State v. Small, 735 A.2d 216, 218 (R.I. 1999)

(mem.).

       “[W]e have acknowledged that the trial justice is in the best position to fashion a proper

remedy for noncompliance with the discovery rule,” and we are satisfied that the trial justice here

did just that. Ramos, 553 A.2d at 1068; but see Coelho, 454 A.2d at 245 (holding that “it would

be unreasonable to expect defense counsel to proceed to trial that afternoon” based on the large

amount of discovery material presented that morning). Therefore, the trial justice did not abuse

his discretion in giving defense counsel the weekend to prepare for Beth’s impending testimony.

                                         B. Rule 404(b)

                                     1. Standard of Review

       When the issue before us concerns a trial justice’s decision to either admit or exclude

evidence, we examine that issue under an abuse-of-discretion standard. State v. Husband, 162

A.3d 646, 655 (R.I. 2017). 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 * * *.’” State v. Cavanaugh, 158 A.3d 268, 279 (R.I. 2017)

(quoting State v. Clay, 79 A.3d 832, 838 (R.I. 2013)).




14
  The state offered an alternative reason for defense counsel’s brief cross-examination of Beth:
the “remarkable consistency” between her various accounts. While we do not conclude which
explanation is most persuasive, we do note that both possible reasons for defense counsel’s
brevity are plausible.


                                               - 13 -
                                              2. Analysis

          Although other crimes are usually inadmissible to prove the guilt of a present crime, “it is

generally conceded that evidence of other acts, representations, and conduct at different times,

even of a criminal nature, may be received when they are interwoven with the offense for which

the defendant is being tried * * *.” State v. Colangelo, 55 R.I. 170, 173-74, 179 A. 147, 149

(1935).     “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.’” State v. Mohapatra, 880 A.2d 802, 806 (R.I. 2005) (quoting State v. Quattrocchi,

681 A.2d 879, 886 (R.I. 1996)).

          Nevertheless, under Rule 404(b), when the evidence is of prior sexual misconduct with a

person other than the complainant, “‘nonremote similar sexual offenses’ are admissible under

[its] exceptions * * *.” Mohapatra, 880 A.2d at 806 (quoting State v. Jalette, 119 R.I. 614, 627,

382 A.2d 526, 533 (1978)). Further, the evidence “is admissible ‘only when that exception is

relevant to proving the charge lodged against the defendant,’ and ‘only when reasonably

necessary.’” Id. (quoting Jalette, 119 R.I. at 627, 382 A.2d at 533). Last, if the trial justice

allows the evidence, he or she “must instruct the jury on the limited purpose for which the

evidence may be considered.” Id.

   a. Remoteness and Similarity

          Turning first to the question of remoteness and similarity, we start by saying 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.” Mohapatra, 880 A.2d at 806. Both the similarity and contemporaneousness of the




                                                 - 14 -
acts are required for a common purpose:        to “establish[] a close relationship between the

evidence of other bad acts and the crime charged * * *.” State v. Brigham, 638 A.2d 1043, 1045

(R.I. 1994).   Our 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, “[o]ffenses 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 (quoting Brigham, 638 A.2d at 1045).

       We are satisfied here that defendant’s offenses against Anna and Beth fall within this

spectrum and are “nonremote” and “similar.” To start, each of defendant’s indiscretions were

directed against, for all intents and purposes, daughters in his life: in Anna’s case, the daughter

of a girlfriend who called him “Dad,” and in Beth’s case, his biological daughter. Each victim

was around eight years old when the abuse first occurred, and away from their mother’s

supervision. Although the exact locations differed, the majority of the abuse occurred in what

was at the time defendant’s residence, where he had direct access to the victims: in Anna’s case,

the home he shared with her mother (with only two exceptions), and with Beth, an apartment in

which he lived alone. Moreover, the manner of abuse was similar with each victim in that both

cases involved penetration, successful or otherwise. See State v. Hopkins, 698 A.2d 183, 185

n.2, 186 n.4 (R.I. 1997) (affirming trial justice’s decision that probative value outweighed unfair

prejudice where the victims were abused in generally the same location, in the same manner, and

at the same age by the defendant, with whom they had a similar relationship).

       The defendant contends that the manner of abuse varies between the victims because

Beth’s abuse involved attempted penetration, while Anna’s involved actual penetration. Further,

Beth testified that defendant bound her, while Anna did not. As such, defendant asserts that




                                              - 15 -
“[t]he incidents were not alleged to take place under the same circumstances, in the same

location, or in the same pattern; nor did they contain uncannily similar facts.” However, in

reviewing a trial justice’s admittance of Rule 404(b) evidence, “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 * * *.’” Cavanaugh, 158 A.3d at 279 (quoting Clay, 79 A.3d at 838).

Thus, we are not concerned with whether the incidents were exactly the same, nor with whether

they contained “uncannily similar facts.” That said, based on the aforementioned numerous

chilling similarities between the indiscretions the two victims alleged, we cannot say that the trial

justice abused his discretion in determining that they were sufficiently similar. See State v.

Coningford, 901 A.2d 623, 628 (R.I. 2006) (upholding the trial justice’s decision that

“remoteness of the prior acts was outweighed by the probative value of the evidence” to show a

common scheme, plan, or modus operandi to molest young boys).

       Additionally, the length of time that spans between defendant’s alleged abuse against

Beth and Anna does not alter our holding. Beth testified that the assault on her took place in

2003, which was approximately eleven years after the last incident to which Anna testified.

Moreover, the first assault on Anna occurred approximately fifteen years before Beth’s alleged

assault. Thus, the time frame between the two acts is between eleven and fifteen years. The

defendant acknowledges that we have previously held that spans ranging from seven to eleven

years, Coningford, 901 A.2d at 628; State v. Toole, 640 A.2d 965, 969, 971 (R.I. 1994), and ten

years, Hopkins, 698 A.2d at 186, were permissible in a Rule 404(b) analysis. When compared to

the durations we have previously upheld, the trial justice’s determination that the eleven to

fifteen years here was permissible was not an abuse of discretion.




                                               - 16 -
       What is more, we emphasize that “[r]emoteness is relative, depending upon the

circumstances and the conduct in question.” State v. Pignolet, 465 A.2d 176, 181 (R.I. 1983).

When we consider the circumstances of the abuse alleged—that each victim was around eight

years old the first time defendant molested, or attempted to molest, them—in light of the length

of time between the acts, the eleven to fifteen years appears neither remote nor dissimilar. See

id. at 181-82 (“[W]here the similar acts involved sexual abuse of young girls * * * the incident

that occurred three years before the trial date is not remote, rather it is a part of a continuing

practice of sexually abusing these girls.”). Instead, mindful that remoteness is relative depending

upon defendant’s conduct, that eleven to fifteen years does not appear so vast where the second

alleged victim was another eight-year-old girl, over whom he also exercised supervision and with

whom he had a familial relationship.

       Accordingly, the trial justice’s finding that Beth’s testimony was nonremote and similar

was not an abuse of his discretion.15



15
   State v. Pereira, 973 A.2d 19 (R.I. 2009), is also instructive here. In that case, we addressed
Rule 8(a) of the Superior Court Rules of Criminal Procedure, which allows the state to charge a
defendant with numerous offenses in one indictment where the offenses are “of the same or
similar character or are based on the same act or transaction or on two (2) or more acts or
transactions connected together or constituting parts of a common scheme or plan.” Pereira, 973
A.2d at 25 (quoting Rule 8(a)). “When analyzing whether offenses charged are properly joined
under Rule 8(a), as a ‘same or similar character’ offense, we examine the base offenses charged,
the location and time of the offenses, whether the offenses occurred within a close time span, the
similarity of the victims, and the modus operandi of the offenses.” Pereira, 973 A.2d at 25. The
time span is a particularly important consideration, but is not, in and of itself, determinative. Id.
at 25-26.
        The joined sexual assault charges in Pereira, 973 A.2d at 26, 27, were “separated by a
very considerable length of time,”—sixteen to twenty-one years—which certainly troubled the
Court. Nevertheless, we held that, balancing all the factors, “the similarities in the statutory
offenses, the similarities of the victims both in age and blood relationship to the defendant, and
the similarities in the manner of operation of defendant’s actions overc[a]me the undeniable
temporal remoteness.” Id. at 27. Analogizing that case to the one before us now, it reinforces
our holding today that the eleven-to-fifteen-year time span, when balanced against the similarity
of the offenses, was not too damning where “remoteness” is only one factor to consider.


                                               - 17 -
     b. Rule 404(b) Exceptions

        Having been satisfied with the trial justice’s determination that Beth’s testimony was

nonremote and similar, we next must examine the appropriateness of the Rule 404(b) exception

under which he allowed the state to admit Beth’s testimony. In allowing Beth’s testimony, the

trial justice explained that “[a]lthough the words ‘modus operandi’ don’t pertain to this rule, in

this particular case the Court finds this is enormously relevant in light of the nature of these

crimes of child molestation, sexual assault.” In his limiting instruction to the jury, the trial

justice told it to consider the evidence only pertaining to defendant’s “motive, his opportunity,

his intent, preparation, his plan as it relates to the testimony given * * * by [Anna].”16

        Beth’s testimony fits comfortably within a Rule 404(b) exception to show plan to abuse

young girls of a similar age with whom he had a similar relationship.17 State v. Merida, 960

A.2d 228 (R.I. 2008), then, is helpful. In Merida, 960 A.2d at 232, we held that the trial justice

did not abuse his discretion in finding that the Rule 404(b) evidence was “part of a common

scheme or plan and * * * relevant to show motive, intent, and plan to abuse children of similar

age in a somewhat similar manner.” In so finding, the trial justice in that case considered the

following: “both * * * [girls] * * * alleged digital penetration; * * * the ages of both girls at the

time [of] the alleged [abuse] * * * were similar (both being young girls above toddler age and

below adolescence); * * * both girls had a family relationship with [the] defendant; * * * and

* * * both had had unsupervised contact with [the] defendant in his * * * residence.” Id.

16
   While the trial justice instructed the jury on motive, opportunity, intent, preparation, and plan,
we focus only on what we perceive to be the most pertinent exception—plan. See Sobanski v.
Donahue, 792 A.2d 57, 58-59 (R.I. 2002) (“Although on appeal this Court will consider only
those issues that have been raised before the trial court, in rendering our decisions we are free to
decide the case on grounds other than those relied upon by the lower-court judge.”).
17
   We appreciate that Beth’s testimony is not admissible under the Rule 404(b) exception of
“lewd disposition” because Beth is not the complaining witness in the case. See State v. Dubois,
36 A.3d 191, 201 (R.I. 2012).


                                                - 18 -
Moreover, the Rule 404(b) witness there testified to abuse that occurred between 1994 and 1998

(eight to twelve years prior to trial), while the complaining witness testified to abuse between

2001 and 2004 (two to five years prior to trial). Merida, 960 A.2d at 230, 231, 232.

       The similarities between that case and the present one lead us to determine that the trial

justice did not abuse his discretion in finding the “common scheme or plan” exception applicable

here.18 See Merida, 960 A.2d at 232. Both Anna and Beth allege that defendant attempted to

penetrate them, although he was unsuccessful with Beth due to her resistance. Moreover, Anna

and Beth were approximately the same age when the abuse began, each viewed defendant as a

father figure (whether biological or otherwise), and both were left alone with defendant.

Considered together, Anna’s and Beth’s testimony have at least the same amount of similarities

as the accounts in Merida. Id.; see also Mohapatra, 880 A.2d at 808 (holding that the trial

justice acted within his discretion by admitting evidence as Rule 404(b) “common scheme or

plan” exception where defendant sexually assaulted two family friends in a similar manner); see

also State v. Cardoza, 465 A.2d 200, 203 (R.I. 1983) (affirming the trial justice’s finding that the

Rule 404(b) evidence “was part of [the] defendant’s continuing behavioral pattern of sexually

abusing his stepdaughters within the same time period”).

       Furthermore, it is of no consequence that Beth’s alleged abuse occurred fifteen years after

the charged crime.     Rule 404(b) and its exceptions refer only to “other” crimes, without

distinguishing between previous and subsequent crimes, and we will not read such language into

that rule today.




18
   While the trial justice did not specifically reference “common scheme or plan,” he did
acknowledge the “plan” exception, and we remark that “common scheme or plan” and “plan”
have been used interchangeably. See State v. Hopkins, 698 A.2d 183, 186 (R.I. 1997).


                                               - 19 -
        Therefore, the trial justice did not abuse his discretion in determining that the evidence fit

within a Rule 404(b) exception.

    c. Relevance and Reasonable Necessity

        Next, to be admissible under Rule 404(b), “the evidence must [also] be ‘relevant’ to the

crime charged and ‘reasonably necessary.’” Coningford, 901 A.2d at 628-29 (quoting Jalette,

119 R.I. at 627, 382 A.2d at 533).

        1. Relevance

        We have previously articulated that “Rule 401 of the Rhode Island Rules of Evidence

defines ‘relevant evidence’ as ‘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.’”         State v. Perez, 161 A.3d 487, 497 (R.I. 2017).            Also

significant to our analysis, “Rule 402 of the Rhode Island Rules of Evidence indicates that ‘[a]ll

relevant evidence is admissible.’” Perez, 161 A.3d at 497. Thus, “the relevancy bar * * * is

quite low.” Id.

        Beth’s testimony “was indicative of ‘[the] defendant’s lecherous conduct toward’ * * *

[girls] ‘over whom he exercised discipline, control, and supervision.’” Perez, 161 A.3d at 497

(quoting Pignolet, 465 A.2d at 182). Despite defendant’s urging otherwise, we do not quibble

with the trial justice’s declaration that “[t]he [c]ourt finds that this is relevant in light of the high

burden of proof to the [s]tate and in light of the fact that the only witness’s testimony in this

particular case with regard to what happened is [Anna] herself * * *.” The trial justice did not

allow Beth’s testimony to bolster Anna’s testimony, as defendant suggests, but rather to show a

larger pattern of behavior adverse to young girls, demonstrating a plan. See id. Thus, the trial

justice did not abuse his discretion in concluding that Beth’s testimony was in fact relevant.




                                                 - 20 -
       2. Reasonable Necessity

       As for whether Beth’s testimony was “reasonably necessary,” “[w]hen charges of sexual

abuse hinge upon a credibility contest between [the] 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. Although Anna alleges abuse that occurred when she

was a child, she testified when she was thirty-four years old. Therefore, we will not extend to

Anna the same latitude we do to child complainants. Still, even without such latitude, we

conclude that the trial justice did not abuse his discretion in determining that Beth’s testimony

was “reasonably necessary” under Rule 404(b).

       In Cavanaugh, 158 A.3d at 280, we addressed the reasonable necessity of Rule 404(b)

testimony of a sexual assault other than the one for which the defendant was on trial. There, we

analogized Mohapatra, recalling how we recognized in that case “that prior incidents of sexual

assault are reasonably necessary to the state’s case when the victim’s credibility is placed at

issue.” Cavanaugh, 158 A.3d at 280. We continued that:

              “We are cognizant 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.”
              Id. (emphasis added).

Such a sentiment is applicable to the present case. The abuse of Anna occurred more than two

decades ago. See Perez, 161 A.3d at 497 (“In this case, there was no physical evidence or third-

party eyewitness testimony presented at trial.”). The trial justice recognized that “the only

witness’s testimony in this particular case with regard to what happened is [Anna] herself.”

Because it is defendant’s contention that no abuse occurred, there is in effect a “credibility




                                             - 21 -
contest” between the two. See, e.g., id. (holding that Rule 404(b) testimony was reasonably

necessary where it turned on the complainant’s testimony, which the defendant attacked).

          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.    See Hopkins, 698 A.2d at 187 (concluding that the trial justice did not abuse his

discretion where he held Rule 404(b) was “reasonably necessary” to “prove the prosecution’s

case, which largely turned on a credibility battle”). The reasonable necessity of Beth’s testimony

was further heightened by the length of time that had passed since defendant was alleged to have

assaulted Anna. We conclude, therefore, that the trial justice did not abuse his discretion in

determining that Beth’s testimony was reasonably necessary to the state’s case. But see State v.

Haslam, 663 A.2d 902, 912 (R.I. 1995) (determining that the trial justice improperly instructed

the jury that Rule 404(b) evidence was relevant solely on the issue of credibility).19

     d. Limiting Instruction

          We briefly address the final requirement under a Rule 404(b) analysis: that “when such

evidence is admitted, the trial justice must instruct the jury on the limited purpose for which the

evidence may be considered.” Merida, 960 A.2d at 239. The trial justice acknowledged that he

must give a limiting instruction; and, in relaying that instruction to the jury, he said:




19
   The defendant emphasizes that it only “dawned on” the prosecution the night before trial to
call Beth to the stand. Conversely, before the trial justice, the state characterized Beth as “not a
last-minute witness, but a witness the [s]tate felt was not prepared to go to any type of hearing
against [defendant] * * * it is not a last-minute issue that has come up in the factual outline of
this case.” Based on the state’s submission that it did not proceed to trial without Beth’s
testimony by its own choosing, defendant’s characterization of Beth’s testimony does not
convince us that it was not of reasonable necessity. Had Beth offered to testify at trial and the
state declined, our determination today might be different. But because that is not the situation
presented before us now, we do not disturb the trial justice’s finding that Beth’s testimony was
reasonably necessary to the state’s case.


                                                - 22 -
               “Ladies and gentlemen, you’re about to hear some testimony about
               some conduct [with] which * * * [d]efendant is not charged. He is
               not on trial for this conduct in this particular trial, and if you
               consider this testimony at all - - and the decision to consider the
               testimony is solely one of the jurors’ prerogative - - but you may
               consider the testimony only as it relates to * * * [d]efendant’s
               motive, his opportunity, his intent, preparation, his plan as it relates
               to the testimony given to you by [Anna] last week. You may
               consider this testimony for no other purpose other than that limited
               ability to consider it for the reasons I just gave you. The
               [d]efendant is not on trial at this time in this case for this particular
               conduct.”

Because the trial justice used language derived directly from Rule 404(b) to instruct the jury, and

because we presume that the jury heeded that instruction, we believe his limiting instruction was

sufficient. See Mazzaro v. Narragansett Improvement Co., 109 R.I. 244, 250, 283 A.2d 887, 891

(1971) (acknowledging the assumption that a jury follows instructions given by the trial justice).

       Therefore, having reviewed all of the Rule 404(b) requirements and being satisfied that

each was met, we hold that the trial justice did not abuse his discretion in allowing Beth’s

testimony.

                                            C. Rule 403

                                       1. Standard of Review

       Before addressing defendant’s argument concerning Rule 403 of the Rhode Island Rules

of Evidence, we repeat that “[t]he 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.” Mohapatra, 880 A.2d at 805 (quoting State v. Grayhurst, 852 A.2d

491, 504 (R.I. 2004)).

                                             2. Analysis

       A trial justice’s analysis of Rule 403 “requires [him or her] to not only examine the

evidence in the context of the case on trial, but to balance the evidence to determine whether its



                                                - 23 -
probative force ‘is substantially outweighed by the danger of unfair prejudice * * *.’”

Cavanaugh, 158 A.3d at 281 (quoting State v. Patel, 949 A.2d 401, 413 (R.I. 2008) and Rule

403). The defendant argues that the unfair prejudice of Beth’s testimony clearly outweighs any

probative value, especially because it involves a victim other than the complaining witness in the

case.   He submits that Beth’s testimony was cumulative, as well as irrelevant, because it

described attempted penetration (as opposed to successful penetration) and also elucidated his

attempt to bind her, which Anna did not allege occurred with her. The trial justice acknowledged

that there was “cumulative effect,” but nonetheless concluded that Beth’s testimony goes to

“motive, intent, opportunity, and plan.”       In ruling, the trial justice emphasized that he

“understand[s] there is a large segment of prejudice, but [Beth’s testimony] is enormously

relevant.”

        The defendant relies on State v. Gaspar, 982 A.2d 140 (R.I. 2009), to support his

argument that the trial justice should have excluded Beth’s testimony under Rule 403, but that

case is distinguishable. In Gaspar, the trial justice allowed testimony of a prior consensual

sexual relationship with the defendant involving rough or aggressive, but nonetheless largely

consensual, sex, under Rule 404(b). Gaspar, 982 A.2d at 149. We held that the introduction of

that defendant’s “consensual and alleged nonconsensual sexual encounters * * * was very likely

to confuse the jury and invite an emotional response.” Id. While we agree that Beth’s testimony

was sure to invoke an emotional response where she alleged sexual abuse by defendant, her

biological father, we nonetheless agree with the trial justice that the emotional response did not

amount to unfair prejudice outweighing its probative value. Unfair prejudice does not arise

solely because defendant is Beth’s biological father; in fact, defendant’s relationship to Beth

makes her testimony only more relevant in that the familial relationship falls within his pattern of




                                               - 24 -
abuse. See Hopkins, 698 A.2d at 186 (holding that the alleged remoteness of Rule 404(b)

evidence was outweighed by potential probative value of victims of a similar age and

relationship to the defendant, constituting “a modus operandi that bore [the defendant’s]

signature” (quoting State v. Lamoureux, 623 A.2d 9, 13 (R.I. 1993))).

       Moreover, in Hopkins, 698 A.2d at 186, we acknowledged that the remoteness of

evidence is a proper consideration for its potential probative value.          In so weighing the

remoteness of Beth’s testimony under Rule 403, we believe that the trial justice did not abuse his

discretion in determining that it did not diminish the testimony’s probative value in comparison

to its unfair prejudice. As we accepted above, Beth’s testimony describes a sexual assault

against a victim of the same age and gender, a similar familial relationship, and in largely the

same manner as the sexual assault against Anna. The age of Anna and Beth is particularly

relevant because both girls were approximately the same age when the alleged abuse occurred;

the implication that defendant had a predilection for girls of this age—evidenced by Beth’s

testimony that defendant abused her at the same age as he did Anna—is enormously relevant to

his common scheme or plan of abusing young girls. Thus, we agree that the length of time that

separates the two assaults is substantially outweighed by the probative value exemplified through

the similarities between Anna and Beth’s accounts.

       Accordingly, we conclude that the trial justice did not abuse his discretion in admitting

this evidence under Rule 403.

                                    D. Motion for New Trial

                                      1. Standard of Review

       A motion for new trial pursuant to Rule 33 of the Superior Court Rules of Criminal

Procedure requires the trial justice to place “himself or herself in the role of a ‘thirteenth juror’




                                               - 25 -
and then exercise[] his or her independent judgment as to the credibility of the witnesses and the

weight of the evidence.” State v. Grantley, 149 A.3d 124, 131 (R.I. 2016) (quoting State v.

Matthews, 111 A.3d 390, 398 (R.I. 2015)). In doing so, the trial justice then “must (1) consider

the evidence in light of the jury charge, (2) independently assess the credibility of the witnesses

and the weight of the evidence, and * * * (3) determine whether he or she would have reached a

result different from that reached by the jury.” Id. (quoting Matthews, 111 A.3d at 398). In our

review of a trial justice’s decision as to a motion for new trial “[w]e accord great deference * * *

‘because a trial justice, being present during all phases of the trial, is in an especially good

position to evaluate the facts and to judge the credibility of the witnesses.’” State v. Whitaker, 79

A.3d 795, 804 (R.I. 2013) (quoting State v. Rosario, 35 A.3d 938, 948 (R.I. 2012)). Therefore,

“[w]e ‘will not overturn a trial justice’s ruling on a motion for * * * new trial unless he was

clearly wrong or overlooked or misconceived material and relevant evidence that related to a

critical issue in the case.’” Id. at 803 (quoting State v. St. Michel, 37 A.3d 95, 102 (R.I. 2012)).

                                             2. Analysis

       The defendant argues that the trial justice erred in denying his motion for new trial where

the trial justice overlooked inconsistencies pertaining to Anna’s trial testimony and her grand

jury testimony, her testimony at defendant’s bail hearing, and her statements to the police. The

defendant points to numerous examples.         Regarding the Manton Avenue incident, he cites

Anna’s inconsistencies as to (1) the clothing she wore at the time of the abuse; (2) her exchange

of words with defendant during the incident; (3) its duration; (4) whether defendant ejaculated

during the abuse; and (5) the dynamic of her and defendant’s relationship after the abuse. In

relation to the Sterling Avenue incident, defendant discusses Anna’s inconsistences as to (1) how

it began; (2) her statements during it; and (3) defendant’s statements during the encounter. The




                                                - 26 -
defendant specifically takes issue with Anna’s inconsistent statement as to whether defendant

ejaculated during the Manton Avenue incident, arguing that “[e]jaculation is not the type of

minor detail that a complaining witness might waver on; this was integral to the sexual assault

itself.” Finally, defendant raises concern with the trial justice’s acceptance of Anna’s reason for

her delayed disclosure of the abuse, as well as the trial justice’s characterization of Beth’s

testimony.

       In denying defendant’s motion for new trial, the trial justice commented that the

defense’s cross-examination of Anna “was excellent with regard to every inconsistency.”

Acknowledging Anna’s inconsistencies, the trial justice explained that “[t]here were a number of

inconsistencies, and every single one, the defense counsel was able to bring out. * * * For the

most part, not a hundred percent, but for the most part [Anna] didn’t even attempt to offer an

explanation, except one time * * *.”       He determined that Anna was “a credible witness,

notwithstanding all the inconsistencies. The main thrust of her testimony, that she was molested

on the occasions as described in the indictment, [was] consistent.”

       We have stated that “inconsistencies in a witness’s testimony do not ‘preclude a

determination that the witness[] w[as] credible.’” State v. Diaz, 159 A.3d 1053, 1064 (R.I. 2017)

(quoting State v. Lopez, 129 A.3d 77, 85 (R.I. 2016)). Moreover, while Anna’s testimony did

contain disparities, “they reflect no more than minor details.” State v. Moore, 154 A.3d 472, 483

(R.I. 2017), cert. denied, No. 16-9373, 2017 WL 2342727 (U.S. Oct. 2, 2017); see Rosario, 35

A.3d at 948 (affirming the trial justice’s decision where he emphasized that “[e]ven if there were

inconsistencies, the thrust or the nub of the testimony was clearly consistent, in my mind, clearly

believable”). Further, we reject defendant’s contention that Anna’s inconsistent statements

regarding defendant’s ejaculation during the Manton Avenue incident concerns a detail “integral




                                              - 27 -
to the sexual assault itself.” Ejaculation is not required for a conviction of first-degree child

molestation. See State v. Pablo, 925 A.2d 894, 901 (R.I. 2007) (“absence of seminal fluid

certainly is not mutually exclusive with an act of penetration”). As such, the trial justice was

well within his discretion to deny defendant’s motion for new trial.

       The defendant next argues that Anna’s delayed disclosure substantially undermined her

credibility and that the trial justice was clearly wrong in accepting her reason for the delay. At

the motion for new-trial hearing, the trial justice recounted that:

               “This was a young lady, * * * eight-years old at the time this
               happened. And the dynamics of what occurred between [Anna]
               and her mother * * * was such that the only person - - the Court
               draws an inference, the only individual that [Anna] could have
               relied on for safety and protection failed to live up to that role as a
               mother in the case. The Court is reasonably satisfied that [Anna]
               may have been reluctant to go to her grandfather to make these
               kinds of disclosures.”

Giving the trial justice his due “great deference,” we cannot say that he was clearly wrong in

accepting Anna’s reasoning for her reluctance to disclose defendant’s abuse. See Whitaker, 79

A.3d at 804.

       Last, defendant argues that the trial justice improperly considered Beth’s testimony as

evidence of defendant’s bad character. The defendant points to two statements the trial justice

made regarding Beth’s testimony:

                      “The [c]ourt also had an opportunity to consider [defense
               counsel’s] motion to suppress all references to any other
               convictions for which [defendant] had been convicted of. * * *
               Those convictions pale in comparison. They don’t go to his
               honesty or his integrity, and they pale in comparison to the [Rule]
               404(b) evidence which the [c]ourt allowed.”

The second statement defendant references reads: “And any inferences the jury could have

drawn as to [defendant’s] ability to stay of good behavior and follow the law and keep his




                                                - 28 -
conduct in conformance with the law certainly paled when one considers those convictions in

light of * * *, or standing next to[,] the [Rule] 404(b) evidence.”

       We are unpersuaded by defendant’s argument that, in making these two statements, the

trial justice misconceived law and fact. At the motion for new-trial hearing, the trial justice

explicitly stated the purpose for which he allowed Beth’s testimony—“as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity[,] or the absence of mistake or

accident.” The statements that defendant isolates do not show that the trial justice considered

Beth’s testimony for any purpose other than those on which he instructed the jury.

       Therefore, we conclude that the trial justice neither clearly erred, nor did he overlook or

misconceive material evidence in analyzing defendant’s motion for new trial.

                              E. Motion for Judgment of Acquittal

                                      1. Standard of Review

       When addressing a motion for judgment of acquittal, this Court and the trial justice both

“weigh the evidence in the light most favorable to the prosecution, give full credibility to the

prosecution’s witness, and draw from the evidence every reasonable inference consistent with

guilt.” Darcy, 442 A.2d at 901. The motion “may be granted only if the evidence, viewed in the

light most favorable to the prosecution, is insufficient to establish the defendant’s guilt beyond a

reasonable doubt.” State v. Lynch, 19 A.3d 51, 56 (R.I. 2011).

                                            2. Analysis

       The defendant argues that the trial justice erred in denying his motion for judgment of

acquittal as to the first two counts of the indictment, each charging first-degree child molestation.

Specifically, count 1 charged that defendant engaged in penile/vaginal penetration with Anna

sometime between October 1, 1987, and August 22, 1988; and count 2 charged that he engaged




                                               - 29 -
in penile/vaginal penetration with Anna on a date between January 1, 1990, and December 31,

1990. The defendant maintains that the conduct he engaged in did not amount to penetration as

defined by statute.

       “A person is guilty of first[-]degree child molestation sexual assault if he or she engages

in sexual penetration with a person fourteen (14) years of age or under.” Section 11-37-8.1.

“Sexual penetration” is defined as “sexual intercourse, cunnilingus, fellatio, and anal intercourse,

or any other intrusion, however slight, by any part of a person’s body or by any object into the

genital or anal openings of another person’s body, or the victim’s own body upon the accused’s

instruction, but emission of semen is not required.” Section 11-37-1(8) (emphasis added). In

light of this definition, we analyze defendant’s argument as to each count.

       1. Count 1

       The Manton Avenue incident formed the basis for count 1. At trial, Anna testified that,

as she sat on the couch and watched television, defendant asked her if she wanted to do

something fun. She recalled agreeing, resulting in defendant laying her on the couch and moving

on top of her. Removing both of their pants, he straddled her. Her testimony proceeded as

follows:

               “Q: What happened next?
               “A: He proceeded to lay down on top of me.
               “Q: When he laid down on top of you, what part of his body was
               — strike that. Was any part of his body touching your body?
               “A: His penis was rubbing up against my vagina.
               ***
               “Q: So when you say his penis was rubbing up against you, did it
               at some point go inside of you?
               “A: Technically, yes.
               “Q: When you say, ‘technically, yes,’ what do you mean?
               “A: It was explained to me that even if it was on my labia it was
               still ——
               “[Defense Counsel]: Objection.
               “THE COURT: Sustained.



                                               - 30 -
                “Q: Did you feel his penis inside of you?
                “A: Yes.
                ***
                “Q: When you say inside of you, what part of your body was his
                penis in?
                “A: My labia.
                “Q: Which is what part of your body?
                “A: Vagina.
                “Q: Do you know how long it lasted?
                “A: About thirty seconds.
                ***
                “Q: But for that [thirty] seconds, you felt his penis in your vagina?
                “A: Yes.
                ***
                “Q: The act of penetration happened for about [thirty] seconds.
                How long do you think the entire act happened?
                “A: Total, about two minutes.”

The defendant’s contention that Anna’s testimony was tainted by her statement that “technically”

defendant’s penis was in her “labia,” which she thereafter testified meant her vagina, is

unconvincing.     In his brief, defendant concedes that “had [Anna’s] testimony been clear

regarding intrusion into the labia, it would have been sufficient to establish intrusion into a

genital area, and thus, sexual penetration.” Based on the entire colloquy between Anna and the

prosecutor, we are satisfied that Anna’s testimony as to the Manton Avenue incident shows that

defendant vaginally penetrated her. Even if initially unclear, Anna affirmatively agreed with the

prosecutor three times when questioned about when defendant was “inside” her. But see In the

Matter of B.H., 138 A.3d 774, 782 (R.I. 2016) (holding that the use of the word “butt” was too

imprecise and vague to convey whether there was an intrusion, however slight, into the anal

opening of each complainant).




                                               - 31 -
       Anna’s testimony, in light of her clarification, was sufficiently “precise” and “specific” to

prove penetration beyond a reasonable doubt.20 See State v. McDonald, 602 A.2d 923, 924, 925

(R.I. 1992) (requiring “precise and specific testimony” to prove the “serious allegation” of first-

degree sexual penetration). Accordingly, viewing Anna’s testimony in the light most favorable

to the prosecution, there was sufficient evidence of defendant’s guilt beyond a reasonable doubt

as to count 1. See Lynch, 19 A.3d at 56.

       2. Count 2

       The defendant also alleges that the trial justice erred in denying his motion for judgment

of acquittal as to the Sterling Avenue incident, which formed the basis for count 2. Anna

testified at trial that, while living at Sterling Avenue when she was eleven years old, defendant

again sexually assaulted her. She testified that, when she visited defendant at his apartment,

defendant pushed her onto the bed, undressed her, and took off his pants before lying on top of

her. Anna testified as follows:

               “Q: When he is on top of you, what does he do next?
               “A: He attempts to have intercourse with me.
               “Q: When you say ‘attempts to have intercourse’ with you, what
               do you mean?
               “A: He proceeded to put his penis into my vagina again.
               “Q: And you felt his penis in your vagina?
               “A: Yes.
               ***
               “Q: So his penis goes into your vagina, how long do you think that
               lasts?
               “A: I can’t —— I can’t answer.
               “Q: But you felt it inside of you?
               “A: Yes.
               “Q: And this time you have no clothes on, he has no clothes on?

20
   Because we are satisfied that there was sufficient evidence in light of our conclusion that
Anna’s statement that “technically” defendant was inside her did not taint the remainder of her
testimony, we need not address defendant’s assertion that “touching of external female
genitalia—‘on’ the labia, as [Anna] initially testified—is not sexual intercourse or an intrusion,
however slight, into a genital opening.”


                                              - 32 -
               “A: Correct.
               “Q: What happens after —— strike that. Does he eventually take
               his penis out of your vagina?
               “A: Yes.”

The defendant takes issue with Anna’s assertion that defendant “attempt[ed] to have intercourse”

with her, which he argues does not sufficiently prove penetration. If her testimony had stopped

there, we would be inclined to agree. However, after making that statement, Anna immediately

clarified that, by “attempt to have intercourse,” she meant that he “proceeded to put his penis into

[her] vagina again.” Anna’s subsequent clarification was “precise” and “specific” as to vaginal

penetration; and, viewing the evidence in the light most favorable to the prosecution, it was

adequate to prove penetration beyond a reasonable doubt. See McDonald, 602 A.2d at 925.

       The trial justice, therefore, did not err in denying the defendant’s motion for judgment of

acquittal on counts 1 and 2.

                                                III

                                           Conclusion

       For the foregoing reasons, we affirm the judgment of the Superior Court. The record

may be returned to that tribunal.



       Justice Flaherty, with whom Justice Robinson joins, dissenting.

               “In a very real sense a defendant starts his life afresh when he
               stands before a jury, a prisoner at the bar.” People v. Zackowitz,
               172 N.E. 466, 468 (N.Y. 1930) (Cardozo, C.J.).

       I respectfully dissent from the holding of the majority in this case. I do so because I

conclude that the testimony of Beth was not properly admitted under Rule 404(b) of the Rhode

Island Rules of Evidence. To be sure, our jurisprudence has deemed the admission of other-bad-




                                               - 33 -
acts evidence to be a flexible concept. But it is my opinion that, in this case, the elasticity of the

rule has been stretched beyond the breaking point.

       We have in this jurisdiction a well-established body of case law with respect to the

admissibility of 404(b) evidence of a defendant’s sexual offenses against a person other than the

complaining witness. For such evidence to be properly admitted, we have said, time and time

again, that it must be (1) nonremote and similar to the charged conduct; (2) admitted only to

prove a Rule 404(b) exception that is relevant to proving the crime charged; and (3) reasonably

necessary to prove the crime charged. See State v. Cavanaugh, 158 A.3d 268, 280 (R.I. 2017);

State v. Mitchell, 80 A.3d 19, 28-29 (R.I. 2013); State v. Merida, 960 A.2d 228, 237, 239 (R.I.

2008); State v. Coningford, 901 A.2d 623, 627 (R.I. 2006); State v. Mohapatra, 880 A.2d 802,

806 (R.I. 2005); State v. Hopkins, 698 A.2d 183, 185-87 (R.I. 1997); State v. Davis, 670 A.2d

786, 789, 790, 791 (R.I. 1996); State v. Cardoza, 465 A.2d 200, 204 (R.I. 1983); State v. Jalette,

119 R.I. 614, 627, 382 A.2d 526, 533 (1978).1 In my opinion, Beth’s testimony falls short in all

three respects. I will address each in turn.




1
  To be clear, these cases do not include those relying on the so-called “lewd-disposition”
exception to Rule 404(b) of the Rhode Island Rules of Evidence. See State v. Jalette, 119 R.I.
614, 627, 382 A.2d 526, 533 (1978) (adopting the holding that “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”). It is important to note that
the lewd-disposition exception is applicable to 404(b) evidence of uncharged sexual acts against
only the complainant, not another victim. See State v. Mitchell, 80 A.3d 19, 29 n.8 (R.I. 2013);
State v. Coningford, 901 A.2d 623, 627 n.5 (R.I. 2006); State v. Mohapatra, 880 A.2d 802, 806
n.4 (R.I. 2005). In State v. Pignolet, 465 A.2d 176 (R.I. 1983), this Court extended the lewd-
disposition exception solely to admit the “testimony of siblings of tender years” where the
“similar but uncharged sexual conduct [was] closely related in time, place, age, and family
relationships of victims [and] where it was relevant, material, and highly probative of an
accused’s lecherous conduct toward the victims over whom the defendant exercised discipline,
control, and supervision.” State v. Bernier, 491 A.2d 1000, 1004-05 (R.I. 1985) (clarifying the
“very narrow” holding in Pignolet); see Pignolet, 465 A.2d at 181-82. In fact, we later said that



                                                - 34 -
                                                 1

                                     Nonremote and Similar

       It is well-settled law that, for purposes of Rule 404(b), sexual “[o]ffenses 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 (quoting State v. Brigham, 638 A.2d 1043, 1045 (R.I. 1994)). My quarrel here is with the

temporal factor.2 I cannot agree that the incidents to which Anna and Beth testified are “closely

related in time” whatsoever. Id. (quoting Brigham, 638 A.2d at 1045).




               “Pignolet represented the extreme beyond which we are unwilling
               to extend the other-crimes (or bad-acts) exception because of its
               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.” State
               v. Quattrocchi, 681 A.2d 879, 886 (R.I. 1996).

I find it noteworthy that the author of the Jalette opinion vigorously dissented in Pignolet,
decrying, “the rationale that led to Jalette has been laid to its eternal rest without benefit of so
much as a eulogy.” Pignolet, 465 A.2d at 184 (Kelleher, J., joined by Bevilacqua, C.J.,
dissenting); see also Quattrocchi, 681 A.2d at 886 (stating that “[t]here is no question that
Pignolet expanded the Jalette doctrine insofar as it related to two stepdaughters in the same
household but went beyond the narrow exceptions set forth in Jalette”).
        Nonetheless, the majority has seemingly relied on the lewd-disposition exception in
explaining how Beth’s testimony was relevant to proving the crime that defendant was charged
with committing against Anna. The majority, quoting prior case law, writes in its opinion that
Beth’s testimony “was indicative of ‘[the] defendant’s lecherous conduct toward’ * * * [girls]
‘over whom he exercised discipline, control, and supervision.’” State v. Perez, 161 A.3d 487,
497 (R.I. 2017) (quoting Pignolet, 465 A.2d at 182). Again, the “very narrow” (Bernier, 491
A.2d at 1004) holding in Pignolet only “expanded the Jalette doctrine insofar as it related to two
stepdaughters in the same household[,]” and it “represented the extreme beyond which we are
unwilling to extend the other-crimes (or bad-acts) exception * * *.” Quattrocchi, 681 A.2d at
886.
2
  I do not disagree that the Manton Avenue and Sterling Avenue incidents involving Anna and
the incident that Beth described are similar. But I am of the opinion that nonremoteness and
similarity are distinct inquiries, as discussed infra.


                                               - 35 -
       To be sure, this Court previously has approved the admission of evidence of uncharged

sexual offenses against victims other than the complainants, even though the misdeeds were

several years removed from the charged crimes. See Merida, 960 A.2d at 230-31, 232, 239 (six

years at shortest interval, ten years at longest); Coningford, 901 A.2d at 628 (seven and eleven

years, respectively, for two victims); Hopkins, 698 A.2d at 186 (ten years); Davis, 670 A.2d at

790 (nine years).3 “However, there is a point beyond which such remoteness may not go.” State

v. Schlak, 111 N.W.2d 289, 292 (Iowa 1961) (holding five years too remote). I believe this case

has passed that point, and I believe, respectfully, that with this holding, the Court has written the

temporal aspect of Rule 404(b) jurisprudence out of the law.

       Count 1 charged defendant with first-degree child molestation that occurred sometime at

the end of 1987 or the beginning of 1988. That charge involved defendant’s laying eight-year-

old Anna, his girlfriend’s daughter with whom he lived, flat on the couch; climbing on top of

her; straddling her; removing her pants and underwear; rubbing his penis against her vagina; and

penetrating her labia. Count 2 charged defendant with first-degree child molestation at some

point in 1990.    That charge alleged that defendant forcefully pushed Anna onto his bed,

completely undressed her, lay fully on top of her, with his legs between hers, and penetrated her

vagina. Count 3 charged defendant with second-degree child molestation sometime between

April 1, 1992 and August 30, 1992. That charge alleged that defendant grabbed Anna’s breast.

3
  Again, I cite no cases relying on the lewd-disposition exception. This is so because, in a given
case where the Rule 404(b) testimony concerns the complaining witness, I may feel it
appropriate to analyze the remoteness factor differently than I do in this case. For instance, in
State v. Toole, 640 A.2d 965 (R.I. 1994), the defendant challenged the admission of the child
complainant’s testimony of uncharged offenses committed against her by the defendant seven to
eleven years prior to the charged offenses. Id. at 969. There, because the evidence that the
defendant had molested his biological daughter beginning when she was four years old was
permitted for the purpose of showing his lewd disposition toward that particular girl throughout
her childhood, id. at 971, I would agree that its admission was proper in that case
notwithstanding that, at first blush, eleven years seems remote in the plainest sense of the word.


                                               - 36 -
       As evidence that defendant committed these crimes against Anna, Beth was permitted to

testify to a sexual assault that defendant, her biological father whom she rarely saw, attempted in

2003, when she was eight years old. Beth said that, as she sat on the edge of defendant’s bed in

his single-room apartment, defendant pushed her back on the bed and began taking his and her

clothes off; all the while, Beth was struggling to get up. According to Beth, defendant climbed

on top of her, and, because she was trying to push him away, he wrapped her arms in his belt and

put them above her head. He then put his arms and legs on either side of Beth, straddling her.

Beth testified that defendant tried to put his penis in her vagina. According to Beth, his penis

actually touched her vagina, but because of her kicking him away as she struggled to get up, he

was unsuccessful in his efforts to penetrate her.

       Beth’s testimony alleging prior acts by defendant could be considered similar to the

charges set out in counts 1 and 2, which predate the 404(b) evidence by fifteen years and thirteen

years, respectively.4   Whether we use fifteen or thirteen years as the operative period for

analyzing the remoteness of the 404(b) evidence in this case, the amount of time that passed here

is simply too great to be considered nonremote under any commonsense definition of the word.

There was no indication that the charges involving Anna and the incident about which Beth

testified were part of some continuing course of conduct by defendant; rather, as they appeared at

trial, they were completely isolated incidents. See Tyson v. State, 503 S.E.2d 640, 641 (Ga. Ct.

App. 1998); State v. Ray, 882 P.2d 1013, 1015-16 (Mont. 1994); State v. Jones, 369 S.E.2d 822,

824 (N.C. 1988); State v. Chapman, 168 N.E.2d 14, 16 (Ohio Ct. App. 1959); see also

Commonwealth v. Hanlon, 694 N.E.2d 358, 367 (Mass. App. Ct. 1998) (allowing subsequent



4
 Count 3, which bears no resemblance at all to the incident Beth described, involved an incident
which occurred eleven years earlier. I acknowledge that the interval between count 3 and the
404(b) evidence is one this Court has affirmed in the past. See Coningford, 901 A.2d at 628.


                                               - 37 -
“evidence that the defendant was abusing altar boys from his own parish almost continually over

a decade * * * because it demonstrates the ongoing nature of [his] behavior” (emphasis added)).

       Of course, as the majority notes, “[r]emoteness is relative, depending upon the

circumstances and the conduct in question.” State v. Pignolet, 465 A.2d 176, 181 (R.I. 1983).

Therefore, I by no means suggest imposing a bright-line temporal cutoff when it comes to

analyzing remoteness for purposes of Rule 404(b). See Ray, 882 P.2d at 1016 (declining to set

arbitrary time limits for admitting prior-acts evidence). “It is, however, never to be lost sight of

that the defendant is entitled to be tried upon competent evidence and only for the offense

charged * * *.” Hall v. United States, 235 F. 869, 870 (9th Cir. 1916) (emphasis added); see

also id. at 871 (holding that evidence of assault on another victim three years earlier was too

remote); State v. Nicks, 332 P.2d 904, 904, 906 (Mont. 1958) (holding that similar crimes in

another state four years earlier were too remote); State v. Moubray, 81 S.E.2d 117, 122 (W. Va.

1954) (holding that the last prior bad act which “occurred more than three years before the

commission of the specific offense charged” was too remote). In my opinion, the event Beth

described was simply too far removed in time to be used as evidence against defendant in this

trial on these charges, and it should have been excluded.

       The Court today recasts the rule to the extent that, as long as the 404(b) evidence is

sufficiently similar to the charged conduct, it need not be sufficiently nonremote. The majority

rationalizes this conclusion by saying that temporal relation is but one of many factors to be

considered. See Mohapatra, 880 A.2d at 806 (holding that, for purposes of Rule 404(b), sexual

“[o]ffenses 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’”

(quoting Brigham, 638 A.2d at 1045)). It is my view, however, that the nonremoteness and




                                               - 38 -
similarity inquiries should not be conflated. Of the five factors set forth in Mohapatra, 880 A.2d

at 806, four address similarities and one squarely addresses temporal proximity. I fail to see how

satisfaction of some of those factors obviates the need for satisfaction of the others. If the

majority’s reasoning is correct, then we have effectively eliminated the requirement that 404(b)

evidence of sexual offenses must be “closely related in time,” id. (quoting Brigham, 638 A.2d at

1045), as that language now has been rendered utterly meaningless.

                                                 2

                                Relevant Rule 404(b) Exception

       Rule 404(b) permits evidence of a defendant’s other crimes, wrongs, or acts to be

admitted for the purpose of proving motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.5           Although there has been flexibility in the

interpretation of the rule, it is beyond dispute that the rule bars such evidence when offered to

prove the defendant’s character in order to show that he acted in conformity therewith.6

Accordingly, “[i]n 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.’” Mohapatra, 880 A.2d at 806 (quoting State v. Quattrocchi, 681 A.2d 879, 886

(R.I. 1996)). Thus, for Beth’s testimony to have been properly admitted, it must have been

5
  Although we have recognized that the list of exceptions set forth in the second sentence of Rule
404(b) is not exhaustive, see State v. Cavanaugh, 158 A.3d 268, 280 (R.I. 2017), none of the
other exceptions which have been developed through our case law could possibly apply in this
case. See, e.g., State v. Pona, 948 A.2d 941, 950 (R.I. 2008) (evidence also admissible when
other crimes, wrongs, or acts “are interwoven or in instances when introduction is necessary for
‘a trier of fact to hear a complete and, it is to be hoped, coherent story so as to make an accurate
determination of guilt or innocence’” (quoting State v. Gomes, 690 A.2d 310, 316 (R.I. 1997)));
Jalette, 119 R.I. at 627, 382 A.2d at 533 (adopting the lewd-disposition exception).
6
  This is precisely the reason why those permissible purposes outlined in Rule 404(b) are widely
recognized as “exceptions” to the character evidence rule.


                                               - 39 -
offered to prove one of the aforementioned permissible Rule 404(b) exceptions, and that

exception must also have been relevant to proving the charges against defendant.             And,

importantly, it remains our law that “any doubt as to the relevancy of such evidence should be

resolved in favor of the accused.” Jalette, 119 R.I. at 627, 382 A.2d at 533.

       The majority shoehorns Beth’s testimony into the plan exception under Rule 404(b). I

cannot agree. As I have addressed earlier in this dissent, the earlier charges concerning Anna

and the later incident that involved Beth were separated by well over a decade and were

completely unconnected incidents in the context of the evidence presented at trial. There was no

demonstration by the state that the later sexual misconduct was “part and parcel” of a common

scheme or plan by defendant, or that the subsequent act and the charges were “linked as integral

components of * * * defendant’s common purpose or plan to commit the current charge[s,]”

State v. Aakre, 46 P.3d 648, 655 (Mont. 2002), so I can reach no other conclusion than that the

plan exception under Rule 404(b) is wholly inapplicable to Beth’s testimony. “Th[is] random

and remote act[] [in 2003 was] not relevant in establishing that [defendant] acted according to an

explicit and premeditated plan in [1988 and 1990].” Commonwealth v. Bradley, 364 A.2d 944,

946-47 (Pa. Super. Ct. 1976) (other bad acts occurred almost three years after the crime

charged).

       Yet, the majority reasons that evidence of defendant’s molestation of Beth was

admissible to prove his “plan,” thirteen to fifteen years earlier, to commit first-degree child

molestation against Anna. Ironically, the plan exception under Rule 404(b) is the one most

closely related to the threshold remoteness inquiry. See Aakre, 46 P.3d at 654 (“Indeed, for Rule

404(b) purposes we conclude that proof of mere similarity of crimes is insufficient, on a stand

alone basis, to demonstrate a ‘common purpose or plan that results in the repeated commission of




                                              - 40 -
the same offense.’    Rather, application of this definition of common scheme also requires

showing that the crimes occurred within a time frame that supports the conclusion that the

similar offenses were committed to achieve a common purpose or plan related to the commission

of the current charge.”); State v. Winter, 648 A.2d 624, 629 (Vt. 1994) (“[T]emporal proximity is

a prerequisite to admission in plan or scheme cases.”). In that sense, the majority now approves

of a thirteen- to fifteen-year interval as both nonremote and part of a common plan. I am unable

to concur with such a holding.

       In essence, the Court’s holding today “allow[s] a common scheme to be proven by the

simple expedient of aggregating similar criminal acts without regard to the time frame within

which those acts occurred and without regard to whether those acts were actually part of a

common purpose or plan to commit the offense at issue.” Aakre, 46 P.3d at 654. The majority

plainly writes that “Anna’s and Beth’s testimony have at least the same amount of similarities as

the accounts in Merida[,]” 960 A.2d at 232, to be admitted as proof of a plan. But it is

fundamental that “[e]vidence of other crimes must be connected by point of time and

circumstance. Through this commonality, proof of one act may reasonably prove a second.

However, the passage of time between the commission of the two acts slowly erodes the

commonality between them.” Jones, 369 S.E.2d at 824. Despite this erosion, the majority

declares that “the length of time that spans between defendant’s alleged abuse against Beth and

Anna does not alter our holding.” By aggregating the incidents concerning Anna and Beth

without considering the decade-plus interval separating them, “the limited purpose for allowing

common scheme evidence under Rule 404(b) [is] effectively nullified.” Aakre, 46 P.3d at 654.

After all, logic dictates that both similarity and proximity in time are prerequisites to inferring

the existence of a plan because “admission of uncharged misconduct evidence to show a plan




                                              - 41 -
‘comes perilously close’ to using such evidence to show propensity * * *.” Winter, 648 A.2d at

629 (quoting State v. Catsam, 534 A.2d 184, 194 (Vt. 1987)). Accordingly, I firmly believe that

“[t]he period of [thirteen to fifteen] years ‘substantially negate[s] the plausibility of the existence

of an ongoing and continuous plan to engage persistently in such deviant activities[,]’” and, “[a]s

such, the reasoning that gave birth to Rule 404(b) exceptions is lost.” Jones, 369 S.E.2d at 824

(quoting State v. Shane, 285 S.E.2d 813, 821 (N.C. 1982)).

       Additionally, when giving the jury the requisite limiting instruction, see State v. Garcia,

743 A.2d 1038, 1052 (R.I. 2000), the trial justice is required to specify the particular Rule

404(b) exception for which the evidence is being introduced. See State v. Sorel, 746 A.2d 704,

707 (R.I. 2000); State v. Gomes, 690 A.2d 310, 317 (R.I. 1997); State v. Brown, 626 A.2d 228,

234 (R.I. 1993); Jalette, 119 R.I. at 627, 382 A.2d at 533. The Seventh Circuit has cogently

explained the reason for this necessity:

               “Because other-act evidence can serve several purposes at once,
               evidentiary disputes under Rule 404(b) often raise the following
               question: Does a permissible ultimate purpose (say, proof of the
               defendant’s knowledge or intent) cleanse an impermissible
               subsidiary purpose (propensity)? On the surface the rule seems to
               permit this. But if * * * the rule allows the admission of other bad
               acts whenever they can be connected to the defendant’s
               knowledge, intent, or identity (or some other plausible non-
               propensity purpose), then the bar against propensity evidence
               would be virtually meaningless.” United States v. Gomez, 763
               F.3d 845, 855 (7th Cir. 2014); accord United States v. Miller, 673
               F.3d 688, 696-97 (7th Cir. 2012) (explaining that the “list of
               exceptions in Rule 404(b), if applied mechanically, would
               overwhelm the central principle” of the rule because “[a]lmost any
               bad act evidence simultaneously condemns by besmirching
               character and by showing one or more of” the permissible purposes
               (quoting United States v. Beasley, 809 F.2d 1273, 1279 (7th Cir.
               1987))).

In an effort “[t]o resolve this inherent tension in the rule,” the trial justice is called upon to

examine “the chain of reasoning that supports the non-propensity purpose for admitting the



                                                - 42 -
evidence.” Gomez, 763 F.3d at 856; see also Jalette, 119 R.I. at 627, 382 A.2d at 533 (“In

seeking to attain this particular goal [that the applicable exception is relevant to proving the

charge lodged against the defendant], the trial court may insist that the prosecutor point to the

specific exception on which he relies and show how that exception relates to the pending

charge.”). The evidence should be excluded under Rule 404(b) “if its relevance to ‘another

purpose’ is established only through the forbidden propensity inference.” Gomez, 763 F.3d at

856. To that end, the trial justice “should not just ask whether the proposed other-act evidence is

relevant to a non-propensity purpose but how exactly the evidence is relevant to that purpose—or

more specifically, how the evidence is relevant without relying on a propensity inference.” Id.

       Here, the trial justice listed the following exceptions when he instructed the jury as to the

limited purposes for Beth’s testimony: motive, opportunity, intent, preparation, and plan. The

majority now designates but one of those exceptions (plan) as the permissible basis for admitting

Beth’s testimony. I do not believe that any of these exceptions applies, let alone all of them. It

seems obvious that neither motive nor intent was “at issue” in this case, and therefore, Beth’s

testimony could not have been admitted to shed light on those issues. Quattrocchi, 681 A.2d at

886; see also United States v. Lee, 724 F.3d 968, 976 (7th Cir. 2013) (“Simply because a subject

like intent is formally at issue when the defendant has claimed innocence and the government is

obliged to prove his intent as an element of his guilt [it] does not automatically open the door to

proof of the defendant’s other wrongful acts for purposes of establishing his intent.”); Freeman

v. State, 486 P.2d 967, 977 (Alaska 1971) (“Manifestly, where there is no dispute as to the issue

of the accused’s intent, evidence going merely to intent will be superfluous, and its only possible

effect will be a deleterious one.”). Notwithstanding the irrelevance, and thus inapplicability, of

these exceptions, I also fail to fathom how the motive, opportunity, intent, preparation, or plan to




                                               - 43 -
commit the charged acts could be demonstrated by alleged misconduct that did not occur until a

decade and a half later. In other words, how could something that defendant did in 2003 have

any tendency to prove his motive, intent, etc., in 1988?7

       But, even assuming there were a single permissible Rule 404(b) exception, I believe that

the trial justice’s instruction did not specify the particular, limited purpose for which the jury

could use Beth’s testimony.8 See Jalette, 119 R.I. at 627-28, 382 A.2d at 533 (“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.”).

Instead, the trial justice broadly listed multiple grounds for the admission of Beth’s testimony,

and this Court has now selected the one that it believes best fits the facts of the case (even though

it does not). In my opinion, this is not a sufficient basis for the admission of this testimony.

After all, “the grounds for admission specified in Rule 404(b) are not magic words, the utterance

of which automatically admits all uncharged misconduct evidence.” Winter, 648 A.2d at 627.

Yet this Court now sanctions a situation where the trial justice can simply list all Rule 404(b)

exceptions when he imparts a “limiting” instruction to the jury. On appeal, this Court (if it hews



7
  I do not suggest that none of the Rule 404(b) exceptions could ever apply to a subsequent bad
act, but it seems clear to me that only very limited and unusual facts and circumstances would
allow for the use of such evidence. For example, a subsequent act that is part of a continuing
course of conduct or larger plan or scheme might be admitted as tending to prove the
commission of the earlier crime charged. See, e.g., Commonwealth v. Hanlon, 694 N.E.2d 358,
367 (Mass. App. Ct. 1998) (“Although the last witness claimed to have been abused in 1990 and
1991, nine years after the last charged act, this testimony was not too remote, given the
continuing nature of the pattern, and the striking similarity of each incident to the charged acts.”
(Emphasis added.)). Of course, as in the instance of prior acts, if “subsequent acts are too
remotely related to the act upon which the prosecution is based, in point of time, to be without
probative force, such evidence should not be admitted.” Harrison v. State, 178 So. 458, 459
(Ala. 1937).
8
  I acknowledge that there was no objection raised to the trial justice’s cautionary instruction.


                                               - 44 -
to the majority’s approach) may simply opine as to whether any one of them applies. By this

decision, the trial justice is now relieved of the burden to examine the “chain of reasoning” to

discern whether the evidence’s “relevance to ‘another purpose’ is established only through the

forbidden propensity inference.” Gomez, 763 F.3d at 856.

       In this case, none of the purposes listed by the trial justice were even “genuinely in

issue.” Winter, 648 A.2d at 627. And again, even taking the enunciated exceptions at face

value, the fact that the 404(b) evidence consisted of an incident so many years after the crimes

charged simply precludes its use for those purposes. This conclusion is buttressed by examining

“how exactly the evidence [was] relevant to [those] purpose[s]—or more specifically, how the

evidence [was] relevant without relying on a propensity inference.” Gomez, 763 F.3d at 856. It

seems clear to me that defendant’s later sexual abuse of Beth “was relevant to his motive, intent,

[and] plan * * * with respect to the acts for which he was tried only insofar as the [subsequent]

sexual abuse tended to show a propensity to commit such acts. Rule 404(b) flatly proscribes the

admission of other act evidence for this purpose.” United States v. Fawbush, 634 F.3d 420, 422

(8th Cir. 2011); see also State v. Kirsch, 662 A.2d 937, 943 (N.H. 1995) (“Whether nominally

labeled motive, intent or common plan, the ostensible purpose for which the prosecution sought

to admit evidence of a multitude of other uncharged sexual assaults was to show the defendant’s

predilection for molesting young females * * *. At most, this is evidence of the defendant’s

disposition to commit the offenses with which he was charged, impermissible under Rule 404(b).

Because it was not relevant for a permissible purpose, the evidence should have been excluded,

and its introduction was an abuse of discretion.”).

       To quote the articulate admonitory words of the late Chief Justice Weisberger: “In sum

the only purpose of this testimony was to show propensity. * * * This result Rule 404(b) will not




                                               - 45 -
permit by its express terms. * * * I fear that the opinion of the majority would cause the

exceptions set forth in Rule 404(b) * * * to swallow the rule and render it a nullity.” Hopkins,

698 A.2d at 190-91 (Weisberger, C.J., dissenting). Although “[t]he line between Rule 404(b)

evidence presented for the impermissible purpose of demonstrating propensity and Rule 404(b)

evidence presented for one of the specific non-propensity exceptions is ‘both a fine one to draw

and an even more difficult one for judges and juries to follow[,]’” State v. Brown, 900 A.2d

1155, 1160 (R.I. 2006) (quoting Garcia, 743 A.2d at 1052), we must draw the line somewhere so

as not to eviscerate the rule.

                                                  3

                                      Reasonably Necessary

        Even assuming that the 404(b) evidence were nonremote and similar, and further

assuming it was admitted only to prove a relevant Rule 404(b) exception, it would have been

admissible only if it were reasonably necessary to prove the crimes charged. “In determining

whether evidence is necessary to establish the state’s prima facie case, ‘the test we must apply is

what appeared to be reasonably necessary to the trial justice at the time [the testimony is

offered].’” Brigham, 638 A.2d at 1046 (quoting Pignolet, 465 A.2d at 182). As a preliminary

matter, I do find it significant that the state did not find Beth’s testimony to be necessary to prove

its case until the eve of trial—when Beth texted the prosecutor, and not the other way around. In

other words, the state was fully prepared to go to trial without her. Thus, at the time the

testimony was offered, see id., I believe the trial justice should have taken this lack of need into

account.

        I agree with the statement of the majority that, because she was an adult when she

testified, Anna should not have been afforded the same latitude as child complainants. See




                                                - 46 -
Mohapatra, 880 A.2d at 808 (“When 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.” (Emphasis added.)). But, in my

opinion, the Court is now extending that latitude to her anyway. The majority reasons that

Beth’s testimony was necessary because the case was entirely a credibility contest between

defendant and Anna.9 This is precisely the rationale that underlies the child complainant cases

cited by the majority. See State v. Perez, 161 A.3d 487, 497 (R.I. 2017); Mohapatra, 880 A.2d

at 808; Hopkins, 698 A.2d at 187. But see Cavanaugh, 158 A.3d at 281 (involving a late

disclosure by an adult complaining witness and quoting Mohapatra, 880 A.2d at 808, for the

proposition that “[w]hen charges of sexual abuse hinge upon a credibility contest between [a]

defendant and [child] complainant, relevant evidence of prior sexual misconduct is reasonably

necessary to support the complainant’s testimony”).

          As the majority sees it, any case prompted by a late disclosure or without physical

evidence (be it a sexual assault or molestation case or otherwise) is nothing more than a

credibility contest in which evidence of a defendant’s other bad acts can be admitted to bolster

the complainant’s testimony. There is no longer any regard for whether the complaining witness

is a child, who may be unable to handle the pressures of testifying and accurately recount

traumatic events, or an adult. In fact, a defendant need not even testify to render a trial a

credibility contest; the sole fact that the defendant goes to trial is apparently enough. Mere

cross-examination of a complaining witness to test the veracity of his or her testimony

transforms a trial on only those crimes charged into a free-for-all whereby the state can show that

the defendant is a bad person who should be convicted.



9
    It is noteworthy that defendant did not testify.


                                                  - 47 -
       “Mere weakness of the prosecution’s case is insufficient reason to admit irrelevant and

prejudicial evidence.” State v. Lamoureux, 623 A.2d 9, 13 (R.I. 1993). Yet the majority

approves of the trial justice’s allowing Beth to testify simply because the state had the burden of

proof and had no evidence other than the testimony of Anna. I do not agree that those reasons

make Beth’s testimony reasonably necessary to prove the charges against defendant.

                                           Conclusion

       Even a defendant charged with the most despicable of acts is entitled to be tried with

evidence that is relevant and which does not highlight his propensity for criminal acts. Because I

believe that the testimony of Beth was improperly admitted, I most respectfully dissent from the

Court’s holding in this case and would vacate the conviction and remand the matter to the

Superior Court for a new trial.

       Justice Robinson, dissenting. While I join in Justice Flaherty’s thoughtful dissent,

which is predicated on Rule 404(b) considerations, it is my further view that, even if Rule 404(b)

did not require exclusion of the evidence relative to defendant’s purported actions vis-à-vis Beth,

that evidence should definitely have been excluded pursuant to Rule 403 of the Rhode Island

Rules of Evidence. See State v. Gaspar, 982 A.2d 140, 147-49 (R.I. 2009).




                                              - 48 -
STATE OF RHODE ISLAND AND                                    PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        State v. John Rainey.
                                     No. 2014-348-M.P.
Case Number
                                     (P1/12-463A)
Date Opinion Filed                   January 11, 2018
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice Gilbert V. Indeglia

Source of Appeal                     Providence County Superior Court

Judicial Officer From Lower Court    Associate Justice William E. Carnes, Jr.
                                     For State:

                                     Jane M. McSoley
                                     Department of Attorney General
Attorney(s) on Appeal
                                     For Defendant:

                                     Kara J. Maguire
                                     Office of the Public Defender




SU-CMS-02A (revised June 2016)
