November 27, 2018
          November 27, 2018




                                                                                 Supreme Court

                                                                                 No. 2017-306-C.A.
                                                                                 (N2/16-192A)

                                    State                      :

                                      v.                       :

                                James Dalton.                  :




                              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-
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                                                                     Supreme Court

                                                                     No. 2017-306-C.A.
                                                                     (N2/16-192A)

                      State                        :

                       v.                          :

                  James Dalton.                    :

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

                                          OPINION

       Chief Justice Suttell, for the Court. The defendant, James Dalton, appeals from a

Superior Court judgment of conviction on one count of second-degree sexual assault, for which

the trial justice sentenced the defendant to ten years, with the entirety of the sentence suspended,

with probation. On appeal, the defendant asserts that the trial justice erred when he allowed

testimony by the responding officer in which he commented on the complaining witness’s

credibility, arguing that this testimony was impermissible bolstering or vouching of the witness’s

credibility. This case came before the Supreme Court pursuant to an order directing the parties

to appear and show cause why the issues raised in this appeal should not be summarily decided.

After considering the parties’ written and oral submissions and reviewing the record, we

conclude that cause has not been shown and that this case may be decided without further

briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the

Superior Court.




                                               -1-
                                                   I

                                  Facts and Procedural History

       On the morning of September 5, 2015, Jonathan,1 his girlfriend Amanda, and eight to ten

friends drove from Connecticut to Newport to celebrate Amanda’s birthday. At the time, twenty-

four-year-old Jonathan worked part-time as security at a hospital, attended school for HVAC

technician training, and was a member of the Army National Guard. When the group of friends

left for Newport at around 8 a.m., Jonathan had just ended a shift at the hospital, which had

started at midnight.

       The group arrived in Newport around 11 a.m. and went to lunch at a local restaurant.

After lunch, the group split up; the women went shopping, and the men went to an Irish pub a

couple of blocks away. A few hours later, the group convened again and decided to drive to a

nearby beach. Amanda drove Jonathan and three other friends. On the way, Jonathan and

Amanda quarreled. Jonathan testified that, when the car stopped at a red light, he “exited the

vehicle to cool down.” Not familiar with the area, he started walking “aimlessly” because he did

not know where he was and then stopped at a liquor store and bought a beer and a “nip” of

alcohol.

       Around 3 p.m., Jonathan sat down to cool off in a park. Jonathan testified that families

and dogs were running around in the park and people were playing tennis at courts nearby. He

drank the nip and the beer, which brought his total alcohol consumption that day to

approximately six drinks. Tired from his late-night hospital security shift, Jonathan pulled his

hat over his head and fell asleep under a tree.




1
 We will refer to the complaining witness and his girlfriend by their first names to protect their
privacy; no disrespect is intended.
                                                  -2-
       When Jonathan woke up, it was nighttime. He explained that he felt a bit hazy at first,

but that he quickly became clearheaded. Jonathan testified that when he awoke, a man was

hovering over him with his hands down Jonathan’s shorts, fondling Jonathan’s genitals and

muttering repeatedly, “Yeah, motherfucker.” At trial, Jonathan identified defendant as the man

who had touched him in the park.

       Jonathan testified that he pushed defendant away from him. As he shoved defendant,

Jonathan saw that defendant had been touching his genitals, with his hands in his own pants,

while fondling Jonathan.2 Jonathan testified that defendant began to run away from him, towards

the tennis courts. Jonathan tackled defendant to the ground, punched him in the head several

times, and yelled, “Call the cops.” Jonathan testified that defendant was trying to talk to him,

telling Jonathan that he was just trying to wake him up. Two people playing tennis at the nearby

court heard Jonathan and called the police.

       A few minutes later, the police arrived, one of whom was Russell Carlone, who was at

that time a captain with the Newport Police Department.3 Jonathan told the police officers what

had happened at the park, and he was brought to the police station to write a witness statement.

Carlone testified that, when he and a fellow police officer first arrived at the scene, he initially

heard yelling, and then as he got closer, he observed a younger man holding down an older man.

As the officers approached the two men, Carlone testified, the younger man was “very, very

upset” and was “crying and screaming[.]” Carlone and the other officer separated the two men.

Carlone spoke with Jonathan. Carlone testified that Jonathan said repeatedly, “He touched me.”



2
  The transcript indicates that Jonathan testified that defendant had his “hands” down Jonathan’s
shorts, and also that defendant had his “hands” down his own pants. No explanation for the use
of the plural is given.
3
  Although he was still on the job at the time of defendant’s arrest, Carlone was retired from the
police department when he testified at trial.
                                               -3-
When Carlone asked Jonathan what happened, Jonathan said he was sleeping in the park and

woke up to defendant “on top of him” with “his hand down his pants” and said continually, “Oh

yeah, mother[fucker].”

       Carlone also questioned defendant at the scene. From that conversation, Carlone learned

that defendant had seen a person lying down in the park, left his car to check on the person, tried

giving the person verbal commands, and when that was unsuccessful, tried to wake the person by

shaking him. The defendant also told Carlone that, when Jonathan woke up, Jonathan attacked

defendant, placed him in a headlock, and pinned him to the ground. The defendant, in his

conversation with Carlone, denied touching Jonathan inappropriately or putting his hands down

Jonathan’s pants. After speaking to defendant, Carlone asked Jonathan to tell his story once

again. Carlone testified that Jonathan’s second telling was consistent with the first. Carlone

testified that, although Jonathan was emotional the entire time they were speaking, Carlone was

able to understand his story.

       After a two-day trial, the jury found defendant guilty on the single count charged:

second-degree sexual assault, in violation of G.L. 1956 § 11-37-4. On January 18, 2017, the trial

justice denied defendant’s motion for a new trial. On April 6, 2017, the trial justice sentenced

defendant to ten years, suspended, with probation, and ordered defendant to register as a sex

offender and receive appropriate counseling. The defendant filed a timely notice of appeal from

his conviction on April 25, 2017.

                                                 II

                                       Standard of Review

       Issues concerning the admission or exclusion of testimonial evidence reside within the

bailiwick of the trial justice, and we shall not ascribe error thereto absent an abuse of discretion.



                                                -4-
State v. Peltier, 116 A.3d 150, 153 (R.I. 2015). Because the determination of a witness’s

credibility “lies within the exclusive province of the jury[,]” however, testimony by one witness

that bolsters or vouches for the truthfulness or accuracy of another witness’s testimony is

impermissible. State v. Adefusika, 989 A.2d 467, 476 (R.I. 2010). Testimony is bolstering or

vouching if “the opinion testimony has the same substantive import as if it squarely addressed

and bolstered another witness’s credibility * * *.” Jaiman v. State, 55 A.3d 224, 231-32 (R.I.

2012) (quoting State v. Rushlow, 32 A.3d 892, 899 (R.I. 2011)). We review a trial justice’s

admission of impermissible “bolstering” or “vouching” to “determine whether the admission of

the testimony constituted prejudicial error with respect to the defendant.” Adefusika, 989 A.2d at

476.

                                               III

                                           Discussion

       The sole issue on appeal is whether the trial justice erroneously permitted Captain

Carlone to offer an opinion on the credibility of the complaining witness. The defendant argues

that the following testimony by Carlone, highlighted in italics, constituted impermissible

bolstering or vouching:

               “[THE STATE:]                 Now, you said that [Jonathan] told
                                             you he had some drinks. Did you
                                             detect anything on him with regard
                                             to alcohol?

               “[CARLONE:]                   I did not smell any alcohol on his
                                             breath. I was clearly looking to see
                                             his condition when he gave me this
                                             story, and it was my judgment that he
                                             had just woken up from a deep sleep
                                             and been assaulted—

               “[DEFENSE COUNSEL:]           Objection.



                                              -5-
               “THE COURT:                   Overruled. You may finish your
                                             answer.

               “[CARLONE:]                   And had woke [sic] up to this
                                             ongoing assault and was emotional
                                             and upset but not intoxicated.

               “[THE STATE:]                 No further questions, Judge.”

       The defendant argues that Carlone’s testimony should be considered impermissible

vouching or bolstering of Jonathan’s testimony because Carlone offered his opinion as to

Jonathan’s truthfulness. Testimony is considered impermissible vouching or bolstering when

“one witness offer[s] an opinion regarding the truthfulness or accuracy of another witness’[s]

testimony.” State v. Lassiter, 836 A.2d 1096, 1107 (R.I. 2003) (internal quotations omitted)

(quoting State v. Webber, 716 A.2d 738, 742 (R.I. 1998)). The witness need not “literally state

an opinion concerning the credibility of another witness’s testimony” for the court to consider

the statement impermissible bolstering. Id. Rather, the statement is inadmissible if it has the

same “substantive import” as bolstering or vouching for another witness’s credibility. Id.; see

also Adefusika, 989 A.2d at 476.

       The state argues that, in the first instance, defendant failed to properly preserve this

objection for appeal because defendant did not provide a specific basis for the objection at trial.

For his part, defendant, pointing to Rule 103(a)(1) of the Rhode Island Rules of Evidence, avers

that a stated specific basis is required only “if the specific ground [for objection] was not

apparent from the context[.]” R.I. R. Evid. 103(a)(1).

       Under this Court’s well-established “raise-or-waive” rule, a specific objection is required

to preserve an issue for appellate review. State v. Perry, 182 A.3d 558, 573 n.8 (R.I. 2018).

That is, if an issue was not preserved at trial by “specific objection,” then this Court may not

consider the issue on appeal. State v. Pona, 66 A.3d 454, 468 (R.I. 2013) (quoting State v.

                                               -6-
McManus, 990 A.2d 1229, 1237 (R.I. 2010)). This Court “require[s] a specific objection so that

the allegation of error can be brought to the attention of the trial justice, who will then have an

opportunity to rule on it.” Id.

       Carlone testified that it was his “judgment that [Jonathan] had just woken up from a deep

sleep and been assaulted[.]” The defendant objected to this statement, but failed to provide any

specificity as to the nature of his objection. The defendant argues that the nature of his objection

was clear from the context because he objected at the precise moment that bolstering or vouching

occurred.

       After reviewing the record, however, we are of the opinion that the basis for defendant’s

objection was not clear from the context of the state’s questioning. Merely objecting at the

precise point of testimony at which the alleged impermissible bolstering or vouching occurred—

without more—does not sufficiently alert a trial justice to a potentially prejudicial evidentiary

issue. See Pona, 66 A.3d at 469; but cf. State v. Offley, 131 A.3d 663, 670 (R.I. 2016) (finding

counsel’s repeated attempts to explain his objection’s rationale, despite never actually

articulating them, to be sufficiently focused in context of that case to preserve evidentiary

objections for review).

       Here, defendant objected after Carlone had responded, “it was my judgment that he had

just woken up from a deep sleep and been assaulted[,]” to the state’s unrelated question, “Did

you detect anything on him with regard to alcohol?” Significantly, following his objection,

defendant did not move to strike Carlone’s answer or pass the case. If a general objection at a

precise moment were sufficient to constitute a “specific objection,” a trial justice would be

required to divine the reason for the objection, essentially reading the mind of the objecting

counsel. Also, if every well-timed “Objection” could be considered as a specific objection, the



                                               -7-
specificity requirement would be rendered meaningless. We therefore conclude that defendant’s

mere “Objection,” without providing any detail as to its basis, did not suffice to preserve the

issue of the admissibility of Carlone’s testimony for our substantive review.

       Even if the issue had been properly preserved, however, we would conclude that the

admission of Carlone’s testimony did not constitute prejudicial error.          As noted above, to

successfully challenge a trial justice’s admission of evidence as impermissibly bolstering or

vouching, a party must demonstrate not only that such bolstering or vouching actually occurred,

but also that it “constituted prejudicial error with respect to the defendant.” State v. Kausel, 68

A.3d 524, 532 (R.I. 2013) (quoting Adefusika, 989 A.2d at 476).

       Assuming without deciding that Carlone’s testimony constituted impermissible bolstering

or vouching, we are convinced that the admission of this testimony did not amount to prejudicial

error in this case. The statement at issue was brief and without follow-up.       Unlike in State v.

Brash, 512 A.2d 1375 (R.I. 1986), where the bolstering testimony of two witnesses, an FBI agent

and a state police lieutenant, was pointedly “offered for the purpose of supporting [the witness’s]

credibility,” Brash, 512 A.2d at 1381, here, Carlone’s brief statement was a non-responsive

answer to the state’s inquiry as to whether Carlone smelled alcohol on Jonathan’s breath. The

state was not asking whether Carlone thought Jonathan had been assaulted.

       Moreover, Jonathan was subject to intense cross-examination at trial, providing the jury

with its own opportunity to assess Jonathan’s credibility. See Rushlow, 32 A.3d at 900 (holding

that the admission of impermissible vouching or bolstering was not prejudicial error because of

“the jurors’ sufficient opportunity to judge [the complaining witness’s] truthfulness” through

cross-examination).   Also, the trial justice provided detailed jury instructions, including a

reference to Carlone’s testimony, with specific instructions that the jury not afford a police



                                               -8-
officer’s testimony “any more credibility or less credibility merely because that person is a police

officer.”   Thus, the jury had “ample opportunity to form an independent opinion about

[Jonathan’s] credibility[.]” State v. Higham, 865 A.2d 1040, 1046 (R.I. 2004). We conclude

that, even if this issue had been properly preserved for appellate review, no reversible error

occurred in the admission of this testimony.

                                                IV

                                           Conclusion

        For the reasons stated in this opinion, we affirm the judgment of conviction. We remand

the papers in the case to the Superior Court.




                                                -9-
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        State v. James Dalton.
                                     No. 2017-306-C.A.
Case Number
                                     (N2/16-192A)
Date Opinion Filed                   November 27, 2018
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia JJ.
Written By                           Chief Justice Paul A. Suttell

Source of Appeal                     Newport County Superior Court

Judicial Officer From Lower Court    Associate Justice Stephen P. Nugent
                                     For State of Rhode Island:

                                     Christopher R. Bush
                                     Department of the Attorney General
Attorney(s) on Appeal
                                     For Defendant:

                                     Angela M. Yingling
                                     Office of the Public Defender




SU-CMS-02A (revised June 2016)
