January 9, 2019



                                                                   Supreme Court

                                                                   No. 2016-136-C.A.
                                                                   (K1/14-568A)


                      State                     :

                       v.                       :

                   Jose Colon.                  :




                  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 (401) 222-
                  3258 of any typographical or other formal errors in order that
                  corrections may be made before the opinion is published.
                                                                  Supreme Court

                                                                  No. 2016-136-C.A.
                                                                  (K1/14-568A)


                   State                       :

                     v.                        :

                Jose Colon.                    :


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

                                          OPINION

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

November 8, 2018, on appeal by the defendant, Jose Colon (defendant), from a judgment of

conviction entered in the Superior Court following a jury trial at which he was found guilty of

one count of first-degree child molestation sexual assault.

       Before this Court, defendant argues that the Superior Court justice committed reversible

error in: (1) allowing testimony concerning other alleged incidents of sexual assault, in violation

of Rules 403 and 404(b) of the Rhode Island Rules of Evidence; (2) limiting defense counsel’s

cross-examination of a witness; and (3) allowing hearsay testimony into evidence, which,

defendant argues, amounted to improper bolstering. For the reasons set forth herein, we affirm

the judgment of conviction.

                                        Facts and Travel

       On April 19, 2013, the complaining witness, Chris (Chris or complainant),1 then a young

adult, contacted the police department in Warwick, Rhode Island, to report that defendant, her



1
 The name of the complainant has been changed to protect her privacy. Likewise, we also use
pseudonyms for the complainant’s sister and cousin.
                                               -1-
uncle, had sexually abused her when she was six years old. 2 According to her testimony at trial,

Chris was motivated to file a complaint at that time because she “didn’t want anyone else to get

hurt.” On September 17, 2014, an indictment was returned, charging defendant with one count

of first-degree child molestation sexual assault, in violation of G.L. 1956 §§ 11-37-8.1 and 11-

37-8.2.

          The conduct giving rise to the indictment occurred during a sleepover at defendant’s

home in August 2001.          Chris, who was six years old, and her cousin―defendant’s

daughter―Kara, who was four years old at the time, were sleeping in Kara’s bed, which was

located in defendant’s bedroom. Chris testified that defendant, wearing only a towel around his

waist, entered the room, locked the door, and then proceeded to remove Chris’s pants, “lick his

fingers and then started touching” her, putting his fingers “[i]n [her] vagina.” When Chris’s aunt

Marilyn Colon (Marilyn), defendant’s wife, knocked on the door, defendant stopped, quickly

threw a bedsheet over Chris, and opened the door. Chris testified that she pretended to be asleep

while defendant was touching her, but that she “was confused” and “didn’t really know what was

going on.” Initially, Chris did not tell anyone what happened, and years would pass before she

began speaking about the incident, first with her cousins, then her mother, and eventually, to the

police.

          When she was between ten and twelve years old, Chris disclosed the assault to her

cousins, Kara and Kara’s sister, but she decided not to tell her mother because she “didn’t want

for [her cousins] to lose their dad and for the whole family to just destroy.” According to Chris,

the family was very close and defendant was “basically [her] father” when she was growing up.



2
 The individuals involved in this case are members of defendant’s family: Kara is defendant’s
daughter; sisters Chris and Zoe are defendant’s nieces by his marriage to Marilyn Colon; Marilyn
Colon’s sister is Chris and Zoe’s mother.
                                              -2-
A few years later, when she was fourteen, Chris confided in her then-boyfriend, Angel Vigo

(Vigo), who, unbeknownst to Chris, told a family friend about what Chris had told him. The

family friend relayed this information to Chris’s mother, who confronted her daughter; Chris

confirmed the allegation. Chris’s mother convened a family meeting to confront Marilyn and

defendant with the abuse allegation. Marilyn and defendant denied the accusation, and the

families subsequently became estranged. The police were not contacted at that time.

       Time passed, Kara and Chris eventually reconnected, and Chris learned from Kara that

defendant had sexually abused her as well as Chris’s younger sister, Zoe. This information was

the catalyst that initiated a chain of events which culminated in this prosecution.

       Prior to trial, on October 15, 2015, the trial justice heard several motions in limine,

including the state’s motion to allow the testimony of Kara and Zoe under Rule 404(b); the state

argued that the evidence established defendant’s “common plan or scheme” to molest young

female relatives.3 The state also contended that the Rule 404(b) evidence was necessary for the

prosecution because the allegations by Zoe and Kara were so inextricably interwoven with the

crime alleged and explained the circumstances surrounding Chris’s belated, but eventual,

disclosure of the abuse by defendant. Defense counsel countered that the Rule 404(b) evidence

was not necessary to satisfy the state’s burden of proof and was unfairly prejudicial. The trial

justice granted the state’s motion in limine, but explicitly notified counsel that he would be

prepared to revisit the issue at trial and invited defense counsel to renew his objections

accordingly. The trial justice noted:




3
  The defendant also filed a motion in limine seeking to conduct an individual voir dire of Zoe
prior to her testifying before the jury. Although the trial justice ruled that an individual voir dire
of Zoe was unnecessary, we submit that, in the context of this case, a voir dire of this witness
may have been helpful.
                                                -3-
                  “But I want to be very clear, barring that I’m going to grant the
                  [s]tate’s motion with a couple of caveats. First of all, you can raise
                  the issue again after the complaining witness testifies. And,
                  number two, depending on what is said on the witness stand, the
                  [c]ourt will be willing to review, because once there is evidence in,
                  it may be another determination for the next witness in terms of
                  whether the prejudicial effect is outweighed.”

When Kara and Zoe later testified at trial regarding allegations that defendant had also touched

them inappropriately, defendant failed to raise any objection.

          Before Zoe took the stand to testify at trial, the trial justice instructed the jury that the

conduct about which the witness would testify was not to be used as propensity evidence and

was admissible “for the limited purpose of this defendant’s intent, motive, opportunity,

preparation, plan, knowledge, identity with respect to this case, but for no other purpose.”4 Zoe

was asked on direct examination by the prosecutor to recall an incident that occurred when she

was eight or nine years old, during a New Year’s Eve party at defendant’s house. Zoe testified

that she and Kara, who was eleven or twelve years old at the time, were asleep in defendant’s

bedroom when defendant entered, pulled down Zoe’s pants, and “started touching [her] private
4
    The trial justice’s full instruction to the jury stated:

                  “Ladies and gentlemen of the jury, again we are back to a witness
                  that may have certain direct testimony in terms of what she saw,
                  heard, or observed with respect to the case that is before you.
                  There also would be a fair amount of evidence, which, again, is not
                  propensity evidence, which is not if you believe it, it does not
                  necessarily mean that this incident occurred.

                  “Again, as I told you before, you can consider that evidence for the
                  limited purpose of this defendant’s intent, motive, opportunity,
                  preparation, plan, knowledge, identity with respect to this case, but
                  for no other purpose.

                  “Again, I gave you the example of a bank robber very early on.
                  Just because there is other evidence cannot be used for the jury
                  [sic] that because someone may have done something or is alleged
                  to have done something before that he absolutely did it in this
                  case.”
                                                     -4-
spot.” She testified that, while this was happening, she reached for Kara’s hand and the two held

hands. After defendant left, Kara pleaded with Zoe not to say anything. It was not until several

years later, when Chris confronted her, that Zoe confirmed the incident. Chris testified that it

was this disclosure that prompted her to notify the police, so that no one else could be hurt.

       Kara, on the other hand, testified that, although she previously had made statements to

police indicating that defendant had touched Zoe at the New Year’s Eve party, she recanted those

statements to defense counsel on the eve of trial. She admitted that “someone” had gotten into

the bed, laid down, and touched Zoe “in a very inappropriate way” that night, but claimed that it

was not her father. According to Kara’s testimony, she merely reported what Chris told her had

occurred. Kara explained that she initially stated that it was defendant because that was “what

[her] cousin had told [her.]” Kara similarly recanted an allegation she had made to police that

defendant had molested her when she was five or six years old. On cross-examination, defense

counsel asked Kara why she fabricated these stories. She responded, “From what I was told,”

and she was subsequently asked, “By whom?” The state objected, and the trial justice sustained

the objection but allowed Kara’s response “From what I was told” to remain on the record.

Defense counsel later returned to this line of questioning when he asked Kara why she made

false allegations against defendant to her physician.          Kara began to answer, but the state

objected. The trial justice sustained the state’s objection.

       The state also called Chris’s former boyfriend, Vigo, and asked him to recall what Chris

had confessed to him when she was fourteen years old regarding her uncle. The defendant

objected, and the state responded by asserting that the statement was admissible as a “prior

inconsistent statement” of the complainant. The defendant’s objection was overruled, and Vigo

testified that “[t]he confession was she was molested by her uncle.”



                                                -5-
       After a five-day jury trial, defendant was found guilty of one count of first-degree child

molestation sexual assault. The trial justice denied defendant’s motion for a new trial and

sentenced defendant to a term of fifty years in prison, with thirty-five years to serve and the

balance suspended, with probation. The defendant timely appealed.

                                            Analysis

                            Testimony of Other Sexual Misconduct

       Before this Court, defendant argues that the trial justice erred by allowing evidence of

other alleged sexual misconduct by defendant to be presented to the jury through the testimony

of Zoe, in violation of Rules 403 and 404(b). We disagree.

       It is well established that “Rule 404(b)[ ] generally prohibits the use of evidence of prior

bad acts, wrongs, or crimes ‘to show the defendant’s propensity to commit the crime with which

he is currently charged.’” State v. Dubois, 36 A.3d 191, 199 (R.I. 2012) (quoting State v. John,

881 A.2d 920, 926 (R.I. 2005)). However, it is also well recognized that “[e]vidence of other

conduct, even of a criminal nature, may be received if it is interwoven with the current charge in

a way that tends to establish guilty knowledge, intent, motive, design, plan, scheme, system, or

the like.” Id. (quoting John, 881 A.2d at 926). This Court has “permitted the introduction of

other crimes evidence when crimes are interwoven or in instances when introduction is necessary

for a trier of fact to hear a complete and * * * coherent story so as to make an accurate

determination of guilt or innocence.” State v. Ciresi, 45 A.3d 1201, 1214 (R.I. 2012) (quoting

State v. Pona, 948 A.2d 941, 950 (R.I. 2008)).

       Accordingly, “it is within the sound discretion of the trial justice to determine ‘whether

this type of evidence should be admitted, excluded, or limited.’” State v. Buchanan, 81 A.3d

1119, 1125 (R.I. 2014) (quoting Dubois, 36 A.3d at 200). In exercising that discretion, the trial

justice balances the relevance of the evidence against its potential prejudicial effect on the
                                                 -6-
factfinder. See Ciresi, 45 A.3d at 1211. When the scale tips in favor of admitting testimony of

other sexual acts into evidence, “the trial justice must offer a limiting instruction to guide the

jury’s consideration of the evidence * * * and caution that it not be used to prove defendant is a

bad person or that he acted in conformity with the evidence.” Dubois, 36 A.3d at 201.

Correspondingly, this Court will not disturb a trial justice’s ruling on the admissibility of Rule

404(b) evidence unless the probative value was substantially outweighed by the prejudicial effect

of the evidence and there was a clear abuse of discretion. See Ciresi, 45 A.3d at 1211.

       As noted above, the state filed a motion in limine seeking to introduce evidence of

allegations of sexual misconduct committed by defendant against Zoe. Although the trial justice

granted the state’s motion, his ruling was not final. This Court has firmly held that a trial

justice’s rulings on motions in limine are preliminary in nature. See Buchanan, 81 A.3d at 1126

(recognizing that “the grant or denial of a motion in limine is by no means a final ruling on the

admissibility of the evidence addressed in the motion”). “[T]he inherent purpose of a motion in

limine ‘is to prevent the proponent of potentially prejudicial matter from displaying it to the jury

* * * in any manner until the trial court has ruled upon its admissibility in the context of the trial

itself[.]’” Id. (quoting Ciresi, 45 A.3d at 1212). As such, “an in limine ruling is not final and a

trial justice is vested with broad discretion to reconsider the ruling as the trial unfolds.” Id.

Accordingly, it is incumbent upon counsel to raise “timely and appropriate” evidentiary

objections throughout the trial in order to preserve the issues for appeal. Ciresi, 45 A.3d at 1212

(quoting In re Jazlyn P., 31 A.3d 1273, 1280 (R.I. 2011)).

       In this case, when ruling on the state’s motion in limine, the trial justice explicitly stated

that he would be willing to review his ruling on the motion at trial, and he invited defendant to

raise the issue again during the trial testimony, signifying the preliminary nature of his ruling.



                                                -7-
However, although defendant had objected to and argued against the state’s motion during the

pretrial proceedings, he failed to object when statements referencing the other alleged acts of

molestation against Zoe were introduced into evidence, and he failed to object when Zoe testified

that defendant had touched her on New Year’s Eve when she was eight or nine years old.5

       A careful review of the trial transcripts discloses that, after Zoe had testified, the state

called Amy P. Goldberg, M.D. (Dr. Goldberg), who testified as an expert in child-abuse

pediatrics. Defense counsel objected to testimony relating to Zoe’s medical history obtained by

Dr. Goldberg. Defense counsel told the trial justice:

               “Your Honor, at this point I think I will forward an objection based
               upon the fact that we are intertwining [Chris] and [Zoe]. With
               regard to [Zoe], your Honor, I believe, I still have a 403 objection
               and I believe that at this time I will enforce that 403 objection with
               regard to this witness.”

A sidebar conference was held, at which defense counsel argued:

               “* * * You have been clear about the 403 with regard to [Zoe],
               with regard to [Kara] and their testimony, your Honor, but at this
               point now we’re having a third person testifying about the same
               incidents. * * * The [s]tate has been able to explore this through
               direct testimony. Now, they’re getting additional testimony.”6

We are therefore satisfied that defendant’s objection with respect to any Rule 404(b) evidence

was not preserved for appeal.

       Further, it is apparent that Zoe’s allegations were so intertwined with the complainant’s

allegations and the circumstances surrounding the complainant’s inevitable disclosure to the

5
  Before Zoe testified, a sidebar conference occurred that was not recorded. There is nothing
before us to suggest that defendant at that time renewed his Rule 404(b) objection with respect to
any of Zoe’s testimony.
6
  The trial justice ultimately ruled that the probative value of Zoe’s medical history outweighed
its prejudicial effect and admitted the evidence. Following direct examination of Dr. Goldberg,
the trial justice administered a cautionary instruction to the jury on the limited purpose for which
Dr. Goldberg’s testimony could be considered.
                                               -8-
police that the evidence was necessary for a coherent chronology of the events in this case.

Correspondingly, an examination of the record shows that the trial justice, on six separate

occasions, including immediately before Zoe testified, complied with his obligation to provide

the jury with a limiting instruction about the use of such evidence. See Dubois, 36 A.3d at 201.

The defendant did not object to the instructions, nor did he renew his Rule 404(b) argument

during the trial. Moreover, Zoe’s testimony proved fruitful grounds for defendant’s closing

argument, during which defense counsel relied on Zoe’s testimony to attempt to undermine the

credibility of the complainant.

       Accordingly, because there was no objection to the proffered testimony, we deem

defendant’s argument waived. See Ciresi, 45 A.3d at 1212 (noting that “the ‘raise-or-waive’ rule

precludes a litigant from arguing an issue on appeal that has not been articulated at trial”)

(quoting State v. Brown, 9 A.3d 1240, 1245 (R.I. 2010)).

                                  Limited Witness Testimony

       Next, defendant argues that the trial justice erred when he sustained the state’s objections

to questions posed to Kara by defense counsel on cross-examination that pertained to her initial

allegations and later recantation about abuse by her father. On appeal, defendant suggests that he

was attempting to proceed on a theory that someone else had influenced Kara to make the initial

false reports. This argument is without merit.

        “This Court repeatedly has recognized the well-established, constitutionally-protected

right of a criminal defendant to effective cross-examination of the prosecution’s witnesses.”

Dubois, 36 A.3d at 198. However, “[t]his right is not absolute[.]” Id. “When we review a

contention that a defendant’s right to cross-examination erroneously was limited by the trial

justice, we look to whether the trial justice clearly abused his or her discretion when limiting the



                                                 -9-
scope of the cross-examination.” State v. Moore, 154 A.3d 472, 485 (R.I. 2017) (quoting State v.

Alston, 47 A.3d 234, 249 (R.I. 2012)).

       Here, defendant asserts that the jury was confronted with two discrete questions—

namely, why Kara made the false reports and, correspondingly, who influenced her to make

them. Yet, an inspection of the record reveals that, when the state objected to defense counsel’s

questioning of Kara as to why she made the reports in the first instance, defendant failed to

rephrase the questions or make an offer of proof that the testimony he intended to elicit would

have led to relevant evidence, and instead simply moved on. See Moore, 154 A.3d at 485

(upholding the trial justice’s limitation of cross-examination because the defendant failed to

make an offer of proof that further cross-examination would have elicited relevant evidence);

Alston, 47 A.3d at 249 (same). In any event, we are hard-pressed to see how this evidence was

relevant and important to defendant at trial because, instead of specifying the purpose for which

he was asking these questions or attempting to rephrase the questions, defense counsel simply

moved on to another line of inquiry. See State v. Hazard, 785 A.2d 1111, 1116 (R.I. 2001)

(holding that the defendant had failed to preserve his objection to evidentiary rulings for this

Court’s review where defense counsel “simply moved on to his next cross-examination question

without even indicating what answers he expected to receive”). Accordingly, defendant has

failed to preserve his objection to these evidentiary rulings for our review on appeal.

       We pause to note, however, that an exception to the raise-or-waive rule exists for issues

involving a basic constitutional right. Accordingly, even if the trial justice’s decision to limit

cross-examination was erroneous, it nonetheless would not constitute reversible error “if the

error was harmless beyond a reasonable doubt.” Hazard, 785 A.2d at 1116. In determining

harmless error, this Court looks to the following factors: “the importance of the witness’s



                                               - 10 -
testimony; whether the testimony was cumulative; the presence or absence of evidence

corroborating or contradicting the witness’s testimony on material points; the extent of cross-

examination otherwise permitted; and the overall strength of the prosecution’s case.” Id.

       Were we to conclude that the trial justice erred in the present case, such error would have

been harmless beyond a reasonable doubt because, although Kara was prevented from expressly

identifying Chris as the alleged catalyst for her disclosure, this fact was readily apparent from

Kara’s earlier testimony. For example, when Kara was asked whether she told the police what

she remembered, she responded, “I told them what [Chris] had told me when I was younger.”

When similarly asked about a statement she gave to a doctor, Kara responded, “[Chris] told me

what had happened to me so I repeated it to the doctor.”7 Notably, in his closing argument,

defense counsel outwardly exploited this inference, stating that Kara had “incorporated the story

that [Chris] had developed because [Chris] told her that’s what happened.” For this reason, we

hold that, even if defendant had properly preserved his objections, the evidence defendant sought

to elicit from Kara was merely cumulative.

                  Rule 801(d)(1)(A) of the Rhode Island Rules of Evidence

       Lastly, defendant contends that the trial justice erred when he permitted Chris’s former

boyfriend, Vigo, to testify about the complainant’s disclosure that she was molested by her

uncle. Specifically, defendant argues that the trial justice committed reversible error when he

allowed Vigo to recount Chris’s disclosure after the prosecutor indicated that the evidence was

offered as a prior inconsistent statement of the complainant under Rule 801(d)(1)(A). The

defendant argues that this evidence amounted to improper bolstering. We disagree.




7
  The bracketed alterations here indicate instances where Kara used the complainant’s actual
name, and we have substituted the pseudonym.
                                              - 11 -
          As explicated above, “we review a trial justice’s evidentiary rulings under an abuse of

discretion rubric, and will not overturn a trial justice’s decision with respect to evidentiary issues

unless it constitutes an abuse of that discretion and prejudices the complaining party.” State v.

Florez, 138 A.3d 789, 793 (R.I. 2016). We are “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)).

          We conclude that this argument was also not properly preserved for appellate review. On

direct examination, the prosecutor asked Vigo what Chris had confessed to him about her uncle

when she was approximately fourteen years old. At that point, defense counsel stated,

“Objection, your Honor.” Counsel failed to articulate any ground for the objection and simply

proffered a general objection to the question. It was the prosecutor who responded with a non-

hearsay ground for admissibility, stating, “Judge, prior inconsistent statement.” Defense counsel

never indicated why the question was improper and, in particular, failed to assert at the trial level

what defendant now contends on appeal, that it was impermissible bolstering.

          In accordance with our well-settled “‘raise or waive rule,’ a litigant must make a timely

and appropriate objection during the lower court proceedings before this Court will indulge the

issue on appeal.” State v. Grant, 840 A.2d 541, 546 (R.I. 2004) (quoting State v. Toole, 640 A.2d

965, 972 (R.I. 1994)).      Furthermore, when an evidentiary issue is raised on appeal, Rule

103(a)(1) of the Rhode Island Rules of Evidence explicitly provides that a finding of error must

be based upon “a timely objection or motion to strike * * * of record, stating the specific ground

of objection, if the specific ground was not apparent from the context.” State v. Feliciano, 901

A.2d 631, 646 (R.I. 2006) (emphasis added). On several occasions we have held that “issues that



                                                - 12 -
were not preserved by a 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.” State v.

Bettencourt, 723 A.2d 1101, 1107 (R.I. 1999) (quoting Toole, 640 A.2d at 972-73); see State v.

Cook, 45 A.3d 1272, 1279 (R.I. 2012); State v. Merced, 933 A.2d 172, 174 (R.I. 2007). As such,

“[g]eneral objections to the admissibility of evidence, when the context does not supply the

specific ground for the objection, are thus insufficient to preserve the issue under Rule

103(a)(1).” Feliciano, 901 A.2d at 646.

       In the case at bar, the defendant’s general objection failed to adequately alert the trial

justice as to the basis for his concern regarding the admissibility of Vigo’s testimony. Similarly,

the context surrounding the defendant’s objection also failed to supply the specific ground for the

objection. For this reason, the objection was insufficient to preserve the argument for appeal.

Accordingly, we deem the defendant’s argument waived.

                                           Conclusion

       For the reasons set forth above, we affirm the Superior Court’s judgment of conviction.

The papers in this case may be remanded to the Superior Court.




                                              - 13 -
STATE OF RHODE ISLAND AND                                   PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        State v. Jose Colon.
                                     No. 2016-136-C.A.
Case Number
                                     (K1/14-568A)
Date Opinion Filed                   January 9, 2019
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice Maureen McKenna Goldberg

Source of Appeal                     Kent County Superior Court

Judicial Officer From Lower Court    Associate Justice Brian P. Stern
                                     For State:

                                     Owen Murphy
Attorney(s) on Appeal                Department of Attorney General
                                     For Defendant:

                                     Thomas M. Dickinson, Esq.




SU-CMS-02A (revised June 2016)
