May 18, 2018   May 18, 2018




                                                                                Supreme Court

                                                                                No. 2017-173-C.A.
                                                                                (W1/13-151A)


                                   State                     :

                                    v.                       :

                              Joshua Rathbun.                :




                               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. 2017-173-C.A.
                                                                  (W1/13-151A)


                   State                      :

                     v.                       :

             Joshua Rathbun.                  :


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

                                         OPINION

       Justice Goldberg, for the Court.           This case came before the Supreme Court on

December 7, 2017, on appeal by the defendant, Joshua Rathbun (defendant), from a Superior

Court judgment of conviction on two counts of first-degree child molestation sexual assault

involving his biological daughter. The defendant received two concurrent forty-year sentences,

with twenty-five years to serve and the remainder suspended with probation.

       Before this Court, defendant argues that the trial justice erred by: (1) admitting the

testimony of Natalie Kissoon, M.D., which he contends amounted to improper bolstering that

was admitted without proper foundation; (2) refusing to grant defendant’s motion to pass the

case; and (3) denying defendant’s motion for a new trial based upon newly discovered evidence.

For the reasons set forth herein, we affirm the judgment of the Superior Court.

                                        Facts and Travel

       The defendant and his ex-wife, Michele Rathbun (Michele), were living together at the

time the couple’s first child, Megan,1 was born on May 21, 1999. The couple married in 2002,



1
 We will utilize a pseudonym in referring to the complaining witness, who, at the time of these
proceedings, was a minor.
                                               -1-
had a second child on November 11, 2003, and divorced in November 2004. After their second

child was born, Michele was employed at a bank and worked longer hours than defendant, which

necessitated defendant picking up the children at preschool, bathing them, feeding them, and

putting them to bed. After the couple divorced in 2004, Michele began a relationship with Gary

Benevides (Gary), who became a father figure to her children and lived in the home with

Michele and the children. Similarly, defendant began dating and eventually married Desiree

Tasca; he resided at his father’s house, which was a short distance from Michele’s home.

       In 2006, when Megan was approximately six or seven years old, defendant and Desiree

moved to Utah.     The defendant and Desiree subsequently had two children together; and,

according to Michelle, upon learning of this, Megan reacted “[w]ith excitement” and she “liked

the fact [that] she had” younger siblings. Although Megan never traveled to Utah to visit

defendant, they remained in contact over the telephone and occasionally over video chat.

       In 2012, Desiree and her two children visited Michele and her family. During this visit,

Desiree and Michele had a discussion in which Desiree stated that her oldest daughter was very

similar to Megan in the sense that she was “extremely quiet and introverted[.]” Around the same

time, in 2012, Michele began noticing a change in Megan that was concerning. She observed

cuts on Megan’s legs that she described as “just cuts * * * just slices, scratches, cuts * * * they

were just lines.” Megan’s behavior worsened after Desiree’s visit; and according to her mother,

she became “[v]ery introverted, quiet, depressed * * * unhappy[,]” and her cuts “became more

obvious.” When Michele confronted Megan with bloodied tissues, scissors, razor blades, and

tacks that she had found in Megan’s room, Megan initially denied that she was cutting herself

but eventually disclosed that she was harming herself because, according to Michele, “she did

not like herself, that she thought she was ugly and disgusting, that she hated herself.” Michele



                                               -2-
took Megan to her pediatrician, Russell Stokes, M.D., who referred Megan to a therapist, Clare

Sartori.

           Shortly thereafter, Michele found a notebook in Megan’s room with the words “I’m

broken” written repeatedly on every page. Michele confronted her daughter and asked her,

“Why are you so broken?” At this point, according to Michele, Megan stated that “her father

had hurt her” and that “[m]y father touched me.” Megan further revealed to her mother that her

father sodomized her and performed oral sex on her. In light of these allegations, Michele

visited Megan’s therapist, contacted the Department of Children, Youth and Families (DCYF),

and sat for an interview with the Rhode Island State Police. Megan underwent a physical exam

at Hasbro Children’s Hospital, performed by Dr. Kissoon, a fellow in child-abuse pediatrics.

Megan also underwent interviews by DCYF, the State Police, and a forensic psychologist.

           On March 22, 2013, defendant was indicted by a grand jury on two counts of first-degree

child molestation sexual assault, in violation of G.L. 1956 § 11-37-8.1.2 At trial, the state

presented Michele, Gary, Dr. Kissoon, and Megan as witnesses. Michele testified in depth about

Megan’s revelations. She testified that Megan told her “[t]hat her father had * * * put his penis

in her butt and that her father had put his mouth on her private part * * * and had touched her.”

Megan also testified at trial. She testified that, when she was younger and lived with defendant,

he showered with her “almost every time.” On one occasion in particular, when she was

approximately four years old, Megan recalled defendant telling her to put her hands on the wall

of the shower and subsequently sodomizing her. Megan testified with respect to another incident



2
    General Laws 1956 § 11-37-8.1 provides:

                  “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.”
                                                 -3-
that occurred after defendant and Michele had divorced and defendant had moved out of the

family home. When Megan was seven years old, she visited defendant at her grandfather’s

home, where defendant was residing at the time. Megan awoke to the sound of defendant and

Desiree fighting, and recalled Desiree telling her, “[Y]our dad and I were arguing. I’m going to

put you in his bed.” Sometime thereafter, defendant joined Megan in his bed and she was

awakened again by “something very uncomfortable down * * * near [her] private parts.” Megan

attempted to stop the oral copulation by kicking defendant, to no avail.

       Also at trial, Dr. Kissoon testified as an expert in child-abuse pediatrics. She testified

that Megan was brought to the Child Protection Center at Hasbro Children’s Hospital by her

mother “due to concerns for sexual abuse.”        Pursuant to standard procedure, Dr. Kissoon

performed a physical exam on Megan and did not discover anything abnormal with respect to

Megan’s physical condition. Doctor Kissoon testified that, “even when we know that there’s

been penetration, 90 to 95 percent of those children had a completely normal physical exam,

including a normal genital exam.” Finally, Dr. Kissoon stated that her final assessment in

Megan’s case was “[t]hat her disclosure was consistent with sexual abuse.” At this point,

defendant moved to strike Dr. Kissoon’s statement pursuant to Rule 16 of the Superior Court

Rules of Criminal Procedure.3 Defense counsel later, during Megan’s testimony, further argued

that the doctor’s statement should be stricken because she had not reviewed Megan’s school

records or her pediatric medical records and had based her conclusion solely on what Michele

had disclosed to her. The court allowed the statement in question to stand; however, on the

following day, the court sustained the objection, striking Dr. Kissoon’s statement “[t]hat her


3
  The defendant based his objection on the fact that his Rule 16 request for discovery and
inspection had not been complied with because Dr. Kissoon’s opinion was not included in the
report defendant received.

                                               -4-
disclosure was consistent with sexual abuse.” Defense counsel then pressed his objection that

Dr. Kissoon’s testimony should be stricken in its entirety; the court refused to do so.

       The defendant then moved for a mistrial, arguing that “the only corroboration of the

victim’s testimony in this case comes from the now stricken answer of the * * * [d]octor.” The

trial justice denied the motion for a mistrial because corroboration was not required:

               “[A]s we know, the statute for this type of offense specifically
               addresses the fact * * * that the testimony standing alone of the
               victim, if it constitutes proof beyond a reasonable doubt, is
               sufficient to support conviction without any corroborative or
               confirmatory evidence.

               “So for that reason and the other reasons stated earlier in the ruling
               on Dr. Kissoon’s testimony, the [c]ourt will deny the Motion for
               Mistrial.”

At the conclusion of the state’s case, defendant moved for a judgment of acquittal pursuant to

Rule 29 of the Superior Court Rules of Criminal Procedure; the motion was denied.

       As trial proceeded, defendant testified on his own behalf. He acknowledged that he often

helped Megan with her shower and that he would “get the water running for her and * * * she’d

get in and * * * do her little play thing in the shower, and then [he would] reach in from the

outside and shampoo her head.” When asked if he ever got into the shower with Megan without

his clothes on or if he had sodomized her, defendant replied, “Absolutely not.” The defendant

further stated that he was not aware of Megan’s abuse allegations until he received a phone call

from her in August 2012.

       On June 24, 2015, defendant was found guilty of two counts of first-degree child

molestation sexual assault. Thereafter, defendant moved for a new trial based upon the newly

discovered evidence that, after the trial, Michele filed a complaint seeking protection from




                                                -5-
domestic abuse by Gary and obtained a restraining order against him.4 It was defendant’s

argument that this newly discovered evidence would refute the state’s contention at trial that,

because Megan’s home life had been stable, the only possible explanation for her self-harm was

abuse by her father when she was a young child. The court denied defendant’s motion for a new

trial, and defendant timely appealed.

                                              Analysis

       On appeal, defendant argues that: (1) the trial justice abused her discretion by refusing to

strike the entire testimony of Dr. Kissoon for lack of foundation; (2) the trial justice abused her

discretion by refusing to pass the case after Dr. Kissoon testified that Megan’s disclosures were

consistent with sexual abuse; and (3) the trial justice abused her discretion by refusing to grant

defendant’s second motion for a new trial on the basis of newly discovered evidence.

                                        The Motion to Strike

                                        Standard of Review

       It is well settled that “[t]he admissibility of evidence is a question addressed to the sound

discretion of the trial justice and will not be disturbed on appeal absent a clear abuse of that

discretion.” State v. Lynch, 854 A.2d 1022, 1031 (R.I. 2004) (quoting State v. Momplaisir, 815

A.2d 65, 72 (R.I. 2003)). Moreover, “[t]rial justices have wide discretion in connection with the

admission of expert testimony.” State v. Griffin, 691 A.2d 556, 558 (R.I. 1997). This Court will

not disturb a trial justice’s evidentiary ruling unless that ruling was clearly erroneous. See id.

                                             Discussion

       The defendant argues that Dr. Kissoon’s testimony should have been stricken in its

entirety because it was riddled with improper bolstering. The defendant further contends that

4
  The defendant had previously unsuccessfully moved for a new trial on the basis of the
sufficiency of the evidence.
                                                -6-
Dr. Kissoon’s testimony served no purpose other than to bolster Megan’s allegations. We are of

the opinion that the trial justice considered Dr. Kissoon’s testimony carefully and instructed the

jury not to consider the doctor’s statement “[t]hat [Megan’s] disclosure was consistent with

sexual abuse[,]” in light of this Court’s holding in State v. Watkins, 92 A.3d 172 (R.I. 2014), in

which we recognized our prior holding that repeated references to “sexual abuse recovery” and

offering an opinion on a victim’s truth or credibility constituted improper bolstering.       See

Watkins, 92 A.3d at 190 (quoting State v. Haslam, 663 A.2d 902, 906 (R.I. 1995)). This Court

has held that a witness’s “‘opinion regarding the truthfulness or accuracy of another witness’[s]

testimony’ is considered to be impermissible ‘bolstering’ or ‘vouching.’” State v. Huffman, 68

A.3d 558, 570 (R.I. 2013) (quoting State v. Arroyo, 844 A.2d 163, 169 (R.I. 2004)). Similar to

the instant case, the expert witness in Huffman testified that the complainant’s diagnosis was

“consistent with ‘acute penetrating vaginal trauma.’” Id. In Huffman, this Court was tasked with

determining whether the expert witness’s statement “ha[d] the same substantive import as

bolstering[,]” id. (quoting State v. Richardson, 47 A.3d 305, 315 (R.I. 2012)); we determined

that the testimony at issue “did not improperly vouch for or bolster” the testimony of the

complainant because “it did not address—either directly or indirectly—the credibility or

truthfulness of other fact witnesses.” Id.; see also Arroyo, 844 A.2d at 169-70.

       As we previously have articulated, trial justices have “wide discretion” to admit or

exclude expert testimony. See Griffin, 691 A.2d at 558. It is incumbent upon a trial justice to

determine the relevancy of expert testimony; “a trial justice must consider whether the testimony

sought is relevant, within the witness’s expertise, and based on an adequate factual foundation.”

State v. Botelho, 753 A.2d 343, 347 (R.I. 2000) (quoting State v. Bettencourt, 723 A.2d 1101,

1112 (R.I. 1999)). Once a trial justice is satisfied that the testimony in question is relevant,



                                               -7-
within the witness’s expertise, and is founded in fact, “the evidence generally ought to be

admitted.” Id.

       In the case at bar, the trial justice was satisfied that the remainder of Dr. Kissoon’s

testimony—in which she merely recounted what she learned during Megan’s evaluation—did

not rise to the level of impermissible bolstering. See Watkins, 92 A.3d at 189-90; Huffman, 68

A.3d at 570. At the outset, the trial justice struck the potentially prejudicial portion of Dr.

Kissoon’s testimony from the record prior to ruling that the remainder of her testimony did not

constitute improper bolstering. After scouring the record, we cannot point to a single instance in

which Dr. Kissoon commented on “the truthfulness or credibility of [Megan].” Huffman, 68

A.3d at 570.

       Before this Court, both parties address the effect of the stricken statement in light of the

remainder of Dr. Kissoon’s testimony. However, in addition to striking the prejudicial statement

from the record, the trial justice also gave the jury a cautionary instruction:

                         “I need to inform you that the [c]ourt has granted a motion
                 to strike a very small portion of testimony furnished yesterday by
                 Dr. Natalie Kissoon.
                         “Members of the Jury, you must recognize that when a
                 [c]ourt does strike evidence or testimony from the record, it’s your
                 solemn obligation, in accordance with your oath, not to utilize that
                 evidence in any way or to refer to it or to speculate as to why it has
                 vanished and been removed from the record. And I know it’s, we
                 call this process unringing a bell, and as difficult as that might
                 seem, the rules are that you cannot consider it.
                         “So I’m going to, you have to pretend that you never heard
                 it basically. Okay. So the last two questions on direct examination
                 that were posed to Dr. Natalie Kissoon are being stricken from the
                 record. The questions are as follows: Question by the prosecutor,
                 ‘Were you able to make an assessment in [Megan’s] case?’ The
                 answer of Dr. Kissoon was, ‘Yes.’ And the next and last question,
                 ‘What was your assessment?’ Answer, ‘That her disclosure was
                 consistent with sexual abuse.’ Those two questions, those two
                 answers in their entirely are off the record. They are gone. You
                 have to pretend that you never heard them, basically, and they

                                                 -8-
                cannot formulate any part of your deliberations, conversations, or
                speculation.”

        This Court has held that “if the trial justice provides the jury with an adequate cautionary

instruction, this Court assumes that the jury followed it unless ‘some indication exists that the

jury was unable to comply with the instruction.’” State v. Dubois, 36 A.3d 191, 197 (R.I. 2012)

(quoting State v. Barkmeyer, 949 A.2d 984, 1007 (R.I. 2008)). The trial justice’s cautionary

instruction was more than sufficient, as she repeatedly iterated that the jury was forbidden to

consider the stricken statements. Moreover, when considered in connection with Dr. Kissoon’s

remaining testimony that “[Megan’s] physical exam was normal with the exception of an

abrasion that she had on her chest, which she said occurred [when] she was removing * * * a

temporary tattoo,” and “[Megan] does not have any findings on physical exam indicating that

she’s been sexually abused[,]” we are satisfied that the potential for prejudice was eliminated.

Further, the stricken testimony was not accusatory and did not implicate defendant.

        We see nothing in the record to suggest that the trial justice abused her discretion in

refusing to strike Dr. Kissoon’s testimony. We note that defendant first alleged a Rule 16

discovery violation as the basis for the exclusion of the evidence; he later renewed his motion to

strike the testimony. The trial justice carefully assessed Dr. Kissoon’s testimony and the relevant

caselaw, and instructed the jury not to consider that part of the testimony that the trial justice

believed might be prejudicial to defendant. The trial justice found that Dr. Kissoon’s testimony

did not violate the standard set forth in Watkins, and stated that Dr. Kissoon’s stricken statement

did “not render [infirm] in any way * * * the rest of Dr. Kissoon’s testimony * * * which [the

trial justice] believe[d] ha[d] been proper[.]” See Watkins, 92 A.3d at 190. Accordingly, we

hold that the trial justice did not abuse her discretion in refusing to strike Dr. Kissoon’s

testimony in its entirety.

                                                -9-
                                            Motion to Pass

                                         Standard of Review

          “It is well settled that a decision to pass a case and declare a mistrial are matters left to

the sound discretion of the trial justice.” Dubois, 36 A.3d at 197 (quoting Barkmeyer, 949 A.2d

at 1007). This Court consistently has held that “the trial justice has a front row seat during the

trial so that [he or she] can best evaluate the effects of any prejudice on the jury.” Id. (quoting

Barkmeyer, 949 A.2d at 1007). Moreover, “a trial justice’s decision on a motion to pass the case

is addressed to the sound discretion of the trial justice, and this Court will not disturb the ruling

on such a motion absent an abuse of discretion.” State v. Rosado, 139 A.3d 419, 423 (R.I. 2016)

(quoting State v. Tully, 110 A.3d 1181, 1190-91 (R.I. 2015)).

                                              Discussion

          The defendant argues to this Court that the trial justice erred in refusing to pass the case

because, even though her statement was stricken, the jury still heard Dr. Kissoon’s statement

“[t]hat [Megan’s] disclosure was consistent with sexual abuse.” A trial justice should pass the

case if the challenged testimony inflames the passions of the jury and is “so flagrantly

impermissible that even a precautionary instruction would have been insufficient to dispel the

prejudice in the jurors’ minds and to assure defendant a fair and impartial trial.” State v.

Ordway, 619 A.2d 819, 826 (R.I. 1992) (quoting State v. Collazo, 446 A.2d 1006, 1010 (R.I.

1982)).

          In the case at bar, after the trial justice granted defendant the relief he requested and

struck the potentially prejudicial testimony of Dr. Kissoon, defendant then moved for a mistrial

on other grounds. The motion to pass the case was based on the remainder of Dr. Kissoon’s

testimony because, defendant argued, he did not “see the probative value, if any, * * * of the



                                                 - 10 -
other things she had to say[,]” and he claimed that “the only corroboration of the victim’s

testimony in this case comes from the now stricken answer of the * * * [d]octor.” The trial

justice correctly relied on G.L. 1956 § 11-37-115 and stated that “the testimony standing alone of

the victim, if it constitutes proof beyond a reasonable doubt, is sufficient to support conviction

without any corroborative or confirmatory evidence.” This Court has explicitly eliminated any

requirement of independent corroboration for sex-offense cases because the corroboration

requirement “arbitrarily singles out victims of sex offenses as a class whose credibility is

immediately suspect. By its adoption of [§] 11-37-11, the General Assembly has rejected this

concept as a discredited anachronism * * *.” State v. Cabral, 122 R.I. 623, 628, 410 A.2d 438,

441 (1980).

       Moreover, “[a] trial justice’s ruling on the admissibility of an expert witness’s proffered

testimony ‘will be sustained provided the discretion has been soundly and judicially exercised

* * *.’” Owens v. Silvia, 838 A.2d 881, 890 (R.I. 2003) (quoting Morra v. Harrop, 791 A.2d

472, 476-77 (R.I. 2002)). Whether or not expert testimony possesses probative value is a

question for the jury, and “the jury is free to accept or to reject it, or to accord to the expert’s

testimony any probative value it deems appropriate.” State v. Benton, 413 A.2d 104, 112 (R.I.

1980). In the instant case, the trial justice properly admitted the remainder of Dr. Kissoon’s

testimony, determining that it was both relevant and not prejudicial to defendant. The amount of

probative value to accord to Dr. Kissoon’s testimony was within the exclusive purview of the

jury, and thus defendant’s argument that the trial justice erred in refusing to pass the case

because her testimony did not have probative value is of no moment.



5
 General Laws 1956 § 11-37-11, entitled “Corroboration of victim’s testimony unnecessary[,]”
provides: “The testimony of the victim need not be corroborated in prosecutions under this
chapter.”
                                               - 11 -
       Based on our careful review of the record, we are satisfied that the trial justice

appropriately denied defendant’s motion to pass the case. Accordingly, we hold that the trial

justice did not abuse her discretion in refusing to pass the case.

                Motion for a New Trial Based on Newly Discovered Evidence

                                        Standard of Review

       A motion for a new trial based on newly discovered evidence “should not be granted

unless the evidence produced to support the motion satisfies a two-part, multifaceted test.” State

v. DiPetrillo, 922 A.2d 124, 138 (R.I. 2007); see State v. Firth, 708 A.2d 526, 532 (R.I. 1998).

The first prong of the two-part test involves a “four-part inquiry that requires that the evidence be

(1) newly discovered since trial, (2) not discoverable prior to trial with the exercise of due

diligence, (3) not merely cumulative or impeaching but rather material to the issue upon which it

is admissible, (4) of the type which would probably change the verdict at trial.” Id. (quoting

Firth, 708 A.2d at 532). “Once this first prong is satisfied, the second prong calls for the hearing

justice to determine if the evidence presented is credible enough to warrant a new trial.” Id. at

138-39 (quoting Firth, 708 A.2d at 532).

                                             Discussion

       The defendant argues that a new trial was warranted based on what he submits was newly

discovered evidence that, after the trial had concluded, Michele filed a police report against Gary

in which she stated that Gary was “extremely violent towards [her] when [they] were together

including breaking [her] jaw a few years ago.” The defendant avers that this discord in Michele

and Gary’s relationship could serve to explain Megan’s concerning behavior and self-harm, as

opposed to sexual abuse by defendant.




                                                - 12 -
       Turning to the first prong set forth by this Court in Firth, the police report was not

discoverable during or prior to trial because it did not exist—defendant was found guilty on

June 24, 2015, and the police report was not filed until October 7, 2015. See Firth, 708 A.2d at

532. Nonetheless, we are not convinced that evidence of violence in Gary and Michele’s

relationship was not discoverable prior to trial with the exercise of due diligence. Both Michele

and Gary testified in this case and disclosed that the relationship had broken down by the time of

trial; defendant could have explored this further through the exercise of due diligence.        A

thorough cross-examination of both witnesses could have elicited testimony consistent with

physical violence as alleged in the police report.

       Furthermore, the trial justice determined, and we agree, that evidence of a tumultuous

relationship between Gary and Michele, if admitted, would be “merely impeaching” of the

testimony by Michele and Gary, and that it would not have impacted the verdict. Specifically, if

admitted, this new evidence could impeach the testimony that Megan had a pleasant home life.

However, the connection between the newly discovered evidence of the police report and

whether or not the defendant sexually abused Megan as a young child is so far attenuated to the

issues before the jury as to have no impact on the verdict in this case. We conclude that the

defendant has failed to satisfy the four-part inquiry set forth in the first prong under Firth;

therefore, we need not address the second prong, which asks “if the evidence presented is

credible enough to warrant a new trial.” DiPetrillo, 922 A.2d at 139 (quoting Firth, 708 A.2d at

532). Accordingly, we hold that the trial justice was correct in denying the defendant’s motion

for a new trial based on newly discovered evidence.




                                               - 13 -
                                          Conclusion

       For the reasons set forth herein, we uphold the Superior Court’s denial of the defendant’s

motion to strike Dr. Kissoon’s testimony in its entirety, the defendant’s motion to pass the case,

and the defendant’s motion for a new trial based on newly discovered evidence. We affirm the

judgment of conviction. The papers may be remanded to the Superior Court.




                                              - 14 -
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        State v. Joshua Rathbun.
                                     SU-2017-173-C.A.
Case Number
                                     (W1/13-151A)
Date Opinion Filed                   May 18, 2018
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice Maureen McKenna Goldberg

Source of Appeal                     Washington County Superior Court

Judicial Officer From Lower Court    Associate Justice Melanie Wilk Thunberg
                                     For State:

                                     Virginia M. McGinn
                                     Department of Attorney General
Attorney(s) on Appeal
                                     For Defendant:

                                     Susan B. Iannitelli, Esq.




SU-CMS-02A (revised June 2016)
