                                                   Supreme Court

                                                   No. 2011-190-C.A.
                                                   (N2/09-257A)




    State                     :

     v.                       :

Mark Ceppi.                   :




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. 2011-190-C.A.
                                                                   (N2/09-257A)


                   State                     :

                    v.                       :

               Mark Ceppi.                   :


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


                                        OPINION

       Justice Robinson, for the Court. The defendant, Mark Ceppi, appeals from a judgment

of conviction on one count of domestic felony assault, pursuant to G.L. 1956 § 11-5-2 and G.L.

1956 § 12-29-5, and one count of domestic simple assault, pursuant to § 11-5-3 and § 12-29-5,

which judgment was entered on August 5, 2010, following a jury-waived trial in the Newport

County Superior Court. The defendant contends that the trial justice erred in denying his motion

to dismiss a criminal information, which motion invoked Rule 9.1 of the Superior Court Rules of

Criminal Procedure and G.L. 1956 § 12-12-1.7. The criminal information at issue contained two

counts, on both of which the defendant was eventually convicted; he posits that the criminal

information package was not sufficient to establish probable cause for either of the two counts.

He further contends that the trial justice committed a number of evidentiary errors during the

course of the trial. Those errors, according to the defendant, were as follows: (1) finding that

certain portions of the testimony of Newport Detective Christopher Hayes were not hearsay and

allowing improper bolstering of the testimony of Heather King (the complaining witness) by the




                                              -1-
testimony of Det. Hayes; (2) improperly allowing questioning of the defendant with respect to an

alleged past incident of violence involving his former wife; (3) impermissibly restricting the

defendant’s testimony with respect to Ms. King’s alleged intoxication; and (4) wrongly allowing

Stephanie Bacon, the complaining witness’s twin sister, to testify with respect to the complaining

witness’s injuries.

       For the reasons set forth in this opinion, we affirm the Superior Court’s judgment of

conviction.

                                                  I

                                         Facts and Travel

       On October 6, 2009, defendant was charged by criminal information with domestic

felony assault, pursuant to § 11-5-2 and § 12-29-5 (Count One), and domestic simple assault,

pursuant to § 11-5-3 and § 12-29-5 (Count Two). Prior to trial, defendant filed a motion to

dismiss the criminal information pursuant to Rule 9.1 and § 12-12-1.7, alleging that the criminal

information package “failed to establish probable cause.” On May 19, 2010, a hearing was held

in Superior Court, at the close of which the trial justice denied defendant’s motion to dismiss.1

In due course, a jury-waived trial was held over six days in July and August of 2010. We

summarize below the salient aspects of what transpired at trial.

                                                  A

                                      The Testimony at Trial

                      1.      The Testimony of the Complaining Witness

       Heather King, the complaining witness, testified first at the trial. Ms. King testified that

she had dated defendant from “either the end of July, 2007 or very early August, 2007” until

1
       A more detailed discussion of the contents of the criminal information, the documents
attached to it, and the hearing pertaining to the motion to dismiss is provided in Part II.A.1, infra.


                                                -2-
May 3, 2009. She further testified that she began living with defendant in January or February of

2009. According to Ms. King’s testimony, “a couple of days before” March 17, 2009, she and

defendant had an argument; she did not recall what that particular argument was about, but she

acknowledged that her arguments with defendant were “usually over jealousy or controlling

issues.” It was her testimony that, during the course of the March 2009 argument, defendant

“punched [her] twice in [her] rib cage.”2 She stated that she heard a “crack” when she was

punched in the ribs, and she added that it was confirmed that she had fractured a rib when she

eventually had x-rays taken in “early May” of 2009. The March 2009 incident formed the basis

of Count Two.

       Ms. King next testified that, on May 2, 2009, she and defendant attended a charity event

in Boston. It was her testimony that, during the drive home to their residence in Newport, they

“pulled over” at a location “close to [Boston],” at which time they were arguing; she added that

defendant “hit [her] in the head” in the course of their argument. Ms. King stated that the next

morning (May 3, 2009), before defendant woke up, she deleted from his phone the name and

phone number of a woman with whom defendant had been talking at the charity event which

they had attended the night before. It was her testimony that later that morning defendant asked

if she had deleted “numbers from [his] phone” and that she replied in the affirmative. She

further testified that, later that same day, after taking one of defendant’s sons out for breakfast,

she and defendant had a “conversation” about her deletion of the phone number. She stated that

“at one point, [she] got upset, [and] walked away and into the bathroom” but that defendant

“followed [her] into the bathroom,” “locked” the door, and “cornered” her. It was her testimony

that defendant “looked at [her] with these crazy eyes” and proceeded to “hit” her “in the
2
       Ms. King proceeded in her testimony to provide a very detailed account of the March
2009 argument, which we need not narrate for the purposes of this appeal.


                                               -3-
stomach, the arm, the leg, and then * * * [the] head;” she added that she was hit “five to seven”

times and that afterwards she felt as though her head was “going to explode.” It was this second

incident which formed the basis of Count One.

       According to Ms. King’s testimony, after the May 3 assault, she felt lethargic and was

just “lying in bed” “all day long;” she added, however, that the May 3 incident prompted her to

decide to leave defendant.3 With respect to her injuries, it was her testimony that the symptoms

worsened and that, on May 9, 2009, she “woke up, and * * * couldn’t lift [her] head up,” at

which time she went to Newport Hospital. She stated that personnel at Newport Hospital

indicated that she had a “brain bleed;” she further stated that she was also told by personnel at

Newport Hospital that she was “lucky to be alive” since most people with “the size of [her]

hematoma * * * die within twenty-four hours of that injury.” Ms. King added that she was told

that she would be “rush[ed]” to Rhode Island Hospital. It was her testimony that, at Rhode

Island Hospital, she was given the option of going home, which she did, leaving Rhode Island

Hospital “late” on May 9, 2009—only to return at 6 a.m. the next morning because she “couldn’t

stop throwing up.” At trial, she remembered spending “more than one day” at Rhode Island

Hospital before being released to stay with her sister, Stephanie Bacon, in Rutland,

Massachusetts.

       Ms. King testified that her symptoms continued to worsen4 while she was staying with

her sister; she stated that she ultimately called her “doctor [in] Rhode Island” and that he said:



3
       It was Ms. King’s testimony that, with the help of a friend, she found a place to live and
that, on May 4, 2009, she moved out of the residence which she had been sharing with
defendant. Jennifer Caffrey, Ms. King’s friend, testified at trial and confirmed that she helped
Ms. King on May 4, 2009.
4
       Specifically, Ms. King stated: “[M]y symptoms exacerbated, I was so violently ill, I
could not stop throwing up, I couldn’t sit [up], I couldn’t [lie down], I couldn’t do anything.”


                                              -4-
“‘Rush her to [the University of Massachusetts Medical Center] because it’s the only level one

trauma near you.’” It was her further testimony that, at the University of Massachusetts Medical

Center (U. Mass. Medical) located in Worcester, she was diagnosed with a “[s]ubdural

hematoma;” she added that she spent “more than a day” at U. Mass. Medical and thereafter

returned to work about one month after she was discharged.5

       We note that the prosecutor submitted into evidence Ms. King’s medical records

(including her records from Newport Hospital, Rhode Island Hospital, and U. Mass. Medical);

and defense counsel, rather than simply acquiescing to their admission by remaining silent,

specifically stated to the trial justice that he had no objection. We also note that, at trial, the

parties stipulated that Ms. King’s subdural hematoma constituted a “serious bodily injury” under

§ 11-5-2.

                          2.      The Testimony of Stephanie Bacon

       Stephanie Bacon, Ms. King’s identical twin sister, testified at trial that she visited Ms.

King in the hospital in Newport in May of 2009. In her testimony, Ms. Bacon confirmed that her

sister’s symptoms intensified while she was staying with her in Rutland. Specifically, Ms.

Bacon testified that Ms. King was “vomiting uncontrollably” and that her head was filled with

pressure “which now we know was the blood on the brain.” Her testimony went on to confirm

Ms. King’s testimony with respect to being admitted to U. Mass. Medical.

       During the course of Ms. Bacon’s testimony, the prosecutor asked her: “Did you come to

find out what kind of injury [your sister] sustained that she needed treatment at the hospital?”




5
       Ms. King’s testimony and the testimony of other witnesses at the trial referenced
incidences of violence between defendant and Ms. King other than the two for which defendant
was charged. For the purposes of this opinion we need not discuss that testimony.


                                               -5-
Ms. Bacon responded: “Yes. She had a brain bleed.” Defense counsel then said: “Objection to

the relevance.” The trial justice stated: “It’s all right.”

                        3.      The Testimony of Det. Christopher Hayes

        Detective Christopher Hayes of the Newport Police Department testified that on or about

May 9, 2009, he learned of an alleged assault on Ms. King; he added that he thereafter drove to

Worcester to speak with her while she was at U. Mass. Medical. It was his further testimony that

during his visit to U. Mass. Medical he spoke with one of Ms. King’s physicians, who told him

that Ms. King had a subdural hematoma and that the possibility of performing surgery on her

was being debated. During his testimony, Det. Hayes also indicated that Ms. King named

defendant as her assailant.

        After Det. Hayes had testified that one of Ms. King’s physicians told him she had a

subdural hematoma, the following exchange took place:

                “[The State]: Did you, during your investigation, have a chance to
                inquire as to what injuries she, Ms. King, was diagnosed with
                when you went to see her?

                “[Detective Hayes]: Yes.

                “[The State]: What injuries?

                “[Detective Hayes]: We were told by her physician –

                “[Defense Counsel]: Objection

                “[The Court]: There is going to be medical evidence, so you may
                answer, Detective Hayes.”

Detective Hayes proceeded to indicate in his testimony that, in addition to the just-referenced

statements made to him by Ms. King’s physician with respect to her medical condition, Ms. King

herself told him, when he took her statement at U. Mass. Medical, that, in addition to the




                                                  -6-
subdural hematoma, she had “sustained some fractured ribs.” The direct examination then

proceeded as follows:

               “[The State]: Did she give you a time frame or marker as to when
               allegedly this occurred?

               “[Defense Counsel]: Objection.

               “[The Court]: On that point, it’s all right. You may answer,
               Detective.

               “[Detective Hayes]: Within the last several months.

               “[The State]: And did she tell you as to how she sustained those
               injuries?

               “[Detective Hayes]: Yes.

               “[The State]: Did she tell you who did those injuries to her?

               “[Detective Hayes]: She said Mark had assaulted her.

               “[Defense Counsel]: Same objection, Your Honor.

               “[The Court]: Understood. So noted.”

                              4.      The Testimony of Defendant

       The defendant was the final witness to testify. He testified that, at some point in time

after about the first eight months of his relationship with Ms. King, she became very

“controlling” and “jealous.”       He replied in the affirmative when asked if “Ms. King’s

jealousy * * * manifest[ed] itself into anything physical against [him].”


        He proceeded to testify with respect to an incident between Ms. King and him that

allegedly took place at some time on the evening of September 11, 2008 or the early morning

hours of September 12 of that year (dates which do not relate to Count One or Count Two in the

instant case). Defense counsel asked: “Had you observed Ms. King become intoxicated from

alcohol before September 12th, 2008?” The prosecutor objected and the trial justice told defense


                                               -7-
counsel that he was asking defendant “for a conclusion” and that he needed to refine his

question. After a few more questions were posed, the following exchange took place:

               “[Defense Counsel]: Okay. And after consuming these vodka
               drinks, could you notice with Heather King, that evening, whether
               or not she was under the influence from alcohol.

               “[The State]: Objection.

               “[The Court]: It’s the same objection, asking for conclusion. What
               he observed, please.”

Subsequently, defendant testified that, after Ms. King consumed the above-referenced drinks on

September 11, 2008, she became “very aggressive,” “very controlling,” and “would easily get

mad about little things.”

       Defense counsel’s questioning eventually moved to the events in March of 2009 that

gave rise to the domestic simple assault charge. The defendant testified that he and Ms. King

had gone to a “restaurant/bar” across the street from their residence, where Ms. King started

arguing with a woman who she believed was “flirting with” defendant. It was defendant’s

testimony that he left the restaurant and returned to the residence which he shared with Ms. King.

He added that she also came back to the residence about five to ten minutes later and was

“yelling, [and] screaming”—only to leave again to return to the previously mentioned

bar/restaurant. It was defendant’s further testimony that, another five to ten minutes later, Ms.

King once again appeared at their residence. The defendant stated that, at that time, he was in

the “spare bedroom” and that he locked the door of that room. According to defendant’s

testimony, Ms. King started “yelling, screaming, and ramming the door;” he stated that she

rammed the door about ten times before he opened it.6 He added that the next day Ms. King

complained that her ribs were hurting. On cross-examination, defendant acknowledged that Ms.
6
       Ms. King, in her testimony, denied having rammed the door.


                                              -8-
King did not complain of shoulder, elbow, wrist, or arm pain, despite the fact that she had

allegedly sustained a fractured rib due to ramming the “spare room” door.

       Addressing next the events of May 2 and 3, 2009 which gave rise to the felony assault

charge, defendant testified that Ms. King had been drinking during the charity event in Boston

and became “angry” due to the fact that he talked to two women at the event and exchanged

phone numbers with one of them. He testified that, on the drive back to Newport, he and Ms.

King stopped at a McDonald’s to get some food and that, during a “struggle over the keys,” Ms.

King bit his thumb. The defendant acknowledged that the next day Ms. King complained of a

headache. However, he denied ever hitting Ms. King in the bathroom. 7 He stated that he spoke

to Ms. King on the phone on the night of May 3, 2009 and that he told her that they should not

see each other anymore; he added that Ms. King was “very upset” by what he said.

       During cross-examination, the prosecutor asked defendant: “And according to your

testimony is that [sic] you never laid a hand on Ms. King, right?” The defendant responded to

that question in the negative. The prosecutor then asked defendant if he was “not violent,” and

he replied that he was not violent. The prosecutor then proceeded to question defendant with

respect to an “altercation” that he once had with his former wife. The defendant admitted to the

altercation with his former wife. Defense counsel seasonably objected to the questions regarding

Mr. Ceppi’s “altercation” with his former wife and made a “general objection” to any

questioning related to any incidents of violence between defendant and his former wife, stating

that “there’s no [R.I. R. Evid.] 404(b) exception, I believe, that fits into this evidence.” Over

defense counsel’s objection, the trial justice permitted questions about the altercation as long as

they did not make reference to observations made by Mr. Ceppi’s two children. The prosecutor

7
      The defendant denied that any physical confrontation had taken place between him and
Ms. King on May 3, 2009.


                                               -9-
continued to question defendant regarding any arguments with his former wife which had

become physical. In answering those questions, defendant denied kicking or hitting his former

wife; he stated: “I never touched her in eighteen years.” On redirect, defendant stated that his

former wife was charged with assault and battery against him in connection with an altercation

that took place on March 10, 2009.

                                               B

                            The Ensuing Verdict and Sentencing

       On August 5, 2010, the trial justice issued her bench decision; she found Ms. King to be

“candid,” “forthright,” and “totally credible.” As a result, she found defendant guilty beyond a

reasonable doubt on both Count One and Count Two. On March 8, 2011, defendant was

sentenced on Count One to ten years with two years to serve and the remainder suspended, with

probation. The trial justice also sentenced him to a concurrent term of one year to serve on

Count Two. The defendant filed a notice of appeal on the same day. Judgment of conviction

was entered on March 29, 2011.

                                               II

                                           Analysis

                                               A

                        Motion to Dismiss the Criminal Information

 1.      The Criminal Information & The Trial Justice’s Denial of Defendant’s Motion to

                                           Dismiss

       The criminal information charged defendant with one count of “assault and battery upon

Heather King resulting in serious bodily injury” and one count of assaulting Ms. King. Attached

to the criminal information was a form entitled “CRIMINAL INFORMATION FACE SHEET,”




                                             - 10 -
which listed the exhibits attached to the criminal information. The list is typewritten except for

one notation which is written by hand in blue pen. The list appears in pertinent part as follows

(with the handwritten portion being indicated by the use of boldface type):

               “Exhibit No. 1 Affidavit Sworn to by
                                                        (Name of Officer)
               “Exhibit No. 2 Police Narrative

               “Exhibit No. 3 Statement of Heather King

               “Exhibit No. 4 Affidavit and Arrest Warrant Det. Hayes

               “Exhibit No. 5 Statement of Det. Christopher Hayes

               “Exhibit No. 6 Photographs of Victim

               “Exhibit No. 7 E-Mail Correspondence from Heather King

               “Exhibit No. 8 Medical Records—Copy given upon Defense request

               “Exhibit No. 9 Miscellaneous Police Reports”

With the exception of the medical records, all of the exhibits referenced in the above-quoted list

were attached to the criminal information. On October 20, 2009, defendant filed a motion to

dismiss Count One in the criminal information; his motion invoked Rule 9.1 of the Superior

Court Rules of Criminal Procedure8 and § 12-12-1.7.9 In that motion, defendant contended that



8
       Rule 9.1 of the Superior Court Rules of Criminal Procedure reads as follows:

               “A defendant who has been charged by information may, within
               thirty (30) days after he or she has been served with a copy of the
               information, or at such later time as the court may permit, move to
               dismiss on the ground that the information and exhibits appended
               thereto do not demonstrate the existence of probable cause to
               believe that the offense charged has been committed or that the
               defendant committed it. The motion shall be scheduled to be heard
               within a reasonable time.”
9
       General Laws 1956 § 12-12-1.7 reads in pertinent part as follows:



                                              - 11 -
“the state ha[d] failed to establish probable cause within the four corners of the information

package.” On November 13, 2009, defendant filed an amended motion to dismiss,10 in which he

contended that both counts in the criminal information should be dismissed because the state had

failed to establish probable cause. In his memorandum in support of his motion to dismiss,

defendant argued that the “nature and extent of the injuries specified in the information package

[did] not constitute ‘serious bodily injury,’” (which is required under § 11-5-2, the violation of

which was alleged in Count One). The defendant’s memorandum stated: “Even if [the court]

assumes that Ms. King sustained a subdural hematoma as a result of the alleged May 3, 2009

assault, there is nothing within the witness statements, police reports or medical records to

suggest that [that] injury constituted” serious bodily injury. 11 With respect to Count Two,

defendant argued that the criminal information package lacked any “reference to an assault

taking place on March 17, 2009” or any “eyewitness accounts.”

       The trial justice conducted a hearing on May 19, 2010, at which the attorneys for both the

state and defendant presented arguments; at the end of that hearing, the trial justice rendered a



                      “Within thirty (30) days after a defendant is served with a
               copy of an information charging him or her with an offense, he or
               she may move in the superior court to dismiss the information on
               the ground that the information and exhibits appended to it do not
               demonstrate the existence of probable cause to believe that the
               offense charged has been committed or that the defendant
               committed it.”
10
        Neither party has contested the timeliness vel non of the amended motion to dismiss; and,
therefore, we do not address that issue.
11
        In his memorandum in support of his motion to dismiss the criminal information,
defendant specifically referenced the medical records which he contends should have been
attached to the information. In that memorandum, he began his discussion of one particular issue
with the following introductory clause: “According to the medical records contained in Exhibit
8 * * * .” Thus, it is clear defendant had access to the medical records either when the criminal
information was filed or soon thereafter.


                                              - 12 -
decision from the bench denying defendant’s motion. In her thorough decision, the trial justice

began by observing that the “threshold to support probable cause is very low” and stating that

she must “draw inferences * * * in the light most favorable to the State.” She held, with respect

to Count Two, that there was “a substantial credibility issue” because the only account of the

alleged assault contained in the criminal information package was from Stephanie Bacon, the

sister of the complaining witness. However, according to the trial justice, “it is permissible for

an information package to include and to rely upon an assessment of probable cause hearsay

information from identified or otherwise reliable sources.” Accordingly, the trial justice denied

defendant’s motion to dismiss with respect to Count Two.

        Moving on to Count One, the trial justice, relying on this Court’s opinion in State v.

Clark, 974 A.2d 558 (R.I. 2009), stated that this Court has held that “factual matters must be

imposed [on] a factfinder who is hearing evidence.” She proceeded to deny defendant’s motion

to dismiss, ruling as follows:

               “So the [c]ourt feels that because of the dictates of the Supreme
               Court’s allocation of proof, if you will, and a determination that
               certain issues must be heard and can only be heard by the
               factfinder in an evidentiary setting, the [c]ourt is compelled to
               deny the motion to dismiss for lack of probable cause.”

        The defendant contends that the trial justice’s decision to deny his motion to dismiss was

in error.

                                  2.      Standard of Review

        When confronted with a motion to dismiss a criminal information, the Superior Court is

“‘required to examine the information and any attached exhibits to determine whether the state

has satisfied its burden to establish probable cause * * * .’” State v. Martini, 860 A.2d 689, 691

(R.I. 2004) (quoting State v. Fritz, 801 A.2d 679, 682 (R.I. 2002)); see State v. Reed, 764 A.2d




                                              - 13 -
144, 146 (R.I. 2001); State v. Jenison, 442 A.2d 866, 875 (R.I. 1982). In making a probable

cause determination, the trial justice is limited to the “four corners” of the criminal information

package and must “allow the state the benefit of every reasonable inference.”               State v.

Baillargeron, 58 A.3d 194, 197, 198 (R.I. 2013) (internal quotation marks omitted). “The

probable-cause standard to be applied is the same as that for arrest.” Jenison, 442 A.2d at 875

(internal quotation marks omitted). Under that standard, “[p]robable cause exists when the facts

and circumstances within the police officer’s knowledge and of which he has reasonably

trustworthy information are sufficient to warrant a reasonable person’s belief that a crime has

been committed and that the person to be arrested has committed the crime.” Baillargeron, 58

A.3d at 197-98 (internal quotation marks omitted).

       When reviewing a decision by a trial justice on a motion to dismiss a criminal

information, we determine whether the trial justice’s “findings are supported by the evidence or

whether, in making those findings, the [trial] justice misconceived or overlooked material

evidence.” Martini, 860 A.2d at 691 (internal quotation marks omitted); see State v. Ouimette,

415 A.2d 1052, 1053 (R.I. 1980). We accord “great weight to a trial justice’s probable-cause

findings; we will not set them aside ‘unless they are clearly erroneous or fail to do justice

between the parties.’” Reed, 764 A.2d at 146 (quoting State v. Aponte, 649 A.2d 219, 222 (R.I.

1994)). However, “we are required to make an independent examination of the record when

there is a possibility that the defendant’s constitutional rights have been violated.”12 Jenison, 442

A.2d at 875.




12
        The defendant seems to contend that his constitutional rights are implicated in this case
because the Fourth Amendment “requires that a neutral and detached magistrate make a
probable-cause determination before a defendant can be subjected to an extended restraint of
liberty following arrest.” (Internal quotation marks omitted.) However, in this case, a neutral


                                               - 14 -
                                        3.      Discussion

       The defendant posits that this Court should not review a motion to dismiss a criminal

information in the same manner in which it reviews a motion to dismiss a grand jury indictment,

and he avers that, unlike in cases involving a motion to dismiss a grand jury indictment, the fact

that he was ultimately found guilty on both counts charged in the criminal information in the

instant case should not render any errors in the criminal information harmless beyond a

reasonable doubt. The defendant relies heavily on State v. Aponte, 649 A.2d 219 (R.I. 1994) in

support of his contention.

       In order to properly address defendant’s argument, we deem it necessary to discuss the

well-established law in this jurisdiction relative to this Court’s review of a motion to dismiss a

grand jury indictment.       We have stated that “dismissal of an indictment on review is an

extraordinary sanction” and that, therefore, it is “reserved for very limited and extreme

circumstances.” State v. Simpson, 658 A.2d 522, 524 (R.I. 1995) (internal quotation marks

omitted); see State v. Huffman, 68 A.3d 558, 567 (R.I. 2013). Very importantly, however, we

have repeatedly held that a “conviction by a * * * jury[13] after a full trial on the merits renders

harmless any defect occurring during the grand jury proceedings.”14 Simpson, 658 A.2d at 524;



and detached Superior Court justice did make a probable cause determination when the trial
justice denied defendant’s motion to dismiss the criminal information.
13
        Although our case law references conviction following a jury trial, we can discern no
reason why the principles that we have articulated with respect to that context would not also
apply to cases such as this one where a jury-waived trial was conducted.
14
       It is worth noting that this rule is not absolute. As the United States Supreme Court noted
in United States v. Mechanik, 475 U.S. 66 (1986), certain errors or deficiencies in a grand jury
proceeding (none of which are at issue in this case), such as racial discrimination in the
composition of the grand jury, would not be rendered harmless beyond a reasonable doubt by a
subsequent guilty verdict. Id. at 70-71 n. 1; see also State v. Martin, 68 A.3d 467, 478 (R.I.
2013) (stating that “some fundamental flaws in the grand jury process, such as race and gender


                                               - 15 -
see State v. Martin, 68 A.3d 467, 478 (R.I. 2013); State v. Stone, 924 A.2d 773, 782 (R.I. 2007);

State v. Tempest, 660 A.2d 278, 280 (R.I. 1995). In so holding, we followed a conceptual route

that paralleled the one followed by the United States Supreme Court in United States v.

Mechanik, 475 U.S. 66, 70 (1986). In that decision the Supreme Court held that a subsequent

guilty verdict “means not only that there was probable cause to believe that the defendants were

guilty as charged, but also that they are in fact guilty as charged beyond a reasonable doubt” and

that, therefore, the guilty verdict rendered “any error in the grand jury proceeding * * * harmless

beyond a reasonable doubt.” Id.

       The state contends that our case law with respect to the dismissal of a grand jury

indictment should also be applied to a motion to dismiss a criminal information.               In our

judgment, the state’s argument in this regard is eminently sensible, and we shall hew to it. If, as

is the well-established rule, errors in a grand jury proceeding are rendered harmless beyond a

reasonable doubt by a subsequent guilty verdict on the same charge, it follows inexorably that

errors in a criminal information should be rendered harmless beyond a reasonable doubt by a

subsequent guilty verdict on the same charge. That conclusion seems even more appropriate in

light of the fact that a trial justice, ruling on a Rule 9.1 motion to dismiss a criminal information,

is performing essentially the same function as a grand jury—namely, assessing whether or not

there is probable cause to believe that the defendant committed the crime being charged. We are

convinced that, since the same function is being performed in each instance, the same legal

principles should be applicable.15



discrimination in the grand jury selection process, require automatic dismissal of an indictment”)
(internal quotation marks omitted).
15
      The defendant suggests that a motion to dismiss a criminal information is more aptly
compared to a motion to suppress evidence than to a motion to dismiss a grand jury indictment.


                                                - 16 -
       Our conclusion is not altered by the case on which defendant relies so heavily, State v.

Aponte, 649 A.2d 219 (R.I. 1994). Contrary to defendant’s contention, Aponte does not stand

for the proposition that a defect in a criminal information is not rendered harmless even when

there is a subsequent guilty verdict on the same charge following a trial. Id. at 222. In Aponte,

the defendant was charged by criminal information with assault with intent to rob and possession

of a weapon not a firearm, and eventually he was convicted on both charges after a jury trial. Id.

at 221. On appeal, the defendant argued that the trial justice erred by denying his Rule 9.1

motion to dismiss the charge of possession of a weapon not a firearm contained in the criminal

information filed against him. Aponte, 649 A.2d at 222. This Court quickly disposed of the

defendant’s contention (in a single paragraph) by holding that “[t]he evidence clearly established

probable cause.” Id. We made no determination in Aponte as to whether or not this Court’s

precedent with respect to a motion to dismiss a grand jury indictment and a subsequent guilty

verdict should be applied to a motion to dismiss a criminal information. Id. Consequently,

defendant’s reliance on Aponte is unavailing.

       Accordingly, it is our holding that any deficiency that may have existed in the criminal

information package (including a lack of medical records) in this case does not rise to the level

of an absence of probable cause and was harmless beyond a reasonable doubt—in light of the

fact that, following a trial, defendant was eventually found guilty on both counts charged in the

criminal information.16



However, we can perceive no reason why a comparison to a motion to suppress would be the
more appropriate analytical approach.
16
       The defendant also makes a number of arguments with respect to the alleged lack of
probable cause to support the criminal information. Given our holding that the guilty verdicts on
Count One and Count Two cured any defect in the criminal information package, we need not
examine the merits of the Superior Court’s probable cause determination.


                                                - 17 -
                                                 B

                                       Evidentiary Issues

       The defendant contends that there were a number of evidentiary rulings that were in error

at his trial. It is a general rule that “[w]e will not disturb a trial justice’s evidentiary ruling

without first determining that the ruling constitutes a clear abuse of his or her discretion.” State

v. Johnson, 13 A.3d 1064, 1066 (R.I. 2011); see State v. McManus, 990 A.2d 1229, 1234 (R.I.

2010); State v. Reyes, 984 A.2d 606, 614-15 (R.I. 2009); see also Votolato v. Merandi, 747 A.2d

455, 460 (R.I. 2000) (“[A] court by definition abuses its discretion when it makes an error of

law.”). Moreover, we “will not disturb the trial justice’s ruling unless the abuse of discretion

resulted in prejudicial error.” State v. St. Michel, 37 A.3d 95, 100 (R.I. 2012); see State v.

Gabriau, 696 A.2d 290, 294 (R.I. 1997).

       Bearing in mind our deferential standard of review, we shall address each of defendant’s

contentions in turn.

                       1.     The Testimony of Det. Christopher Hayes

       The defendant first contends that portions of the testimony of Det. Hayes were both

hearsay and impermissible bolstering. Specifically, he argues that it was error on the part of the

trial justice not to sustain defense counsel’s objection to the testimony of Det. Hayes with respect

to what Ms. King’s physician told him about her condition and with respect to what Ms. King

told him about who was responsible for the injuries she sustained as a result of the assault

forming the basis of Count Two.17




17
       We refer the reader to Part I.A.3, supra, for a detailed account of the testimony of Det.
Hayes that is being challenged by defendant.



                                               - 18 -
       The state counters that, although the statements by Det. Hayes with respect to what he

was told by Ms. King and her physician would “appear to constitute hearsay,” their admission

was “harmless error at best” because the same information was admitted as a part of Ms. King’s

testimony and was contained in her medical records, which were entered as an exhibit at trial.

The state also points out that the fact that this was a jury-waived trial “substantially diminished”

the risk of unfair prejudice. Moreover, the state argues that the testimony of Det. Hayes was

clearly not bolstering because he never testified regarding any determination on his part as to the

credibility of either Ms. King or her physician.18

       We address first the issue of hearsay. It has long been established in this jurisdiction that

“the admission of hearsay evidence is not prejudicial when the evidence is merely cumulative

and when defendant’s guilt is sufficiently established by proper evidence.” State v. Lynch, 854

A.2d 1022, 1032 (R.I. 2004) (internal quotation marks omitted); see State v. Micheli, 656 A.2d

980, 982 (R.I. 1995). We have defined “cumulative evidence as evidence that tends to prove the

same point to which other evidence has been offered.” State v. Lomba, 37 A.3d 615, 622 n. 7

(R.I. 2012) (internal quotation marks omitted). When assessing whether or not a piece of

evidence is cumulative, “the test is a retrospective one, administered at the close of all the

evidence to determine whether the admission of certain evidence was harmless in light of all the

evidence admitted on that point.” State v. Robinson, 989 A.2d 965, 979 (R.I. 2010).

       Our review of the record confirms the state’s contention that, even if the testimony of

Det. Hayes was hearsay, it was merely cumulative and therefore harmless. Ms. King herself

testified with respect to her injuries that resulted from the incident which formed the basis of

18
         The state argues that defendant may not raise the bolstering issue on appeal because at
trial his objections failed to mention bolstering, and it contends that defendant’s “non-specific”
objection was not sufficient to preserve the issue for appeal. We need not even address this
issue, given that Det. Hayes’s testimony was so clearly not improper bolstering.


                                               - 19 -
Count Two and with respect to the fact that defendant was the individual who she alleged

inflicted those injuries. Moreover, any testimony by Det. Hayes with respect to the statements of

Ms. King’s physicians was clearly cumulative since exactly the same information was admitted

when Ms. King’s medical records were entered as an exhibit. The state is also correct that any

potential prejudice would have been “substantially diminished” by the fact that this was a jury-

waived trial. State v. Medeiros, 996 A.2d 115, 121 (R.I. 2010).

       We next turn to the issue of bolstering. Impermissible bolstering occurs typically “when

one witness offers an opinion concerning the truthfulness of the testimony of another witness.”

State v. Hazard, 797 A.2d 448, 470 (R.I. 2002) (internal quotation marks omitted). However,

impermissible bolstering can also occur “[e]ven when a witness does not literally state an

opinion concerning the credibility of another witness but his or her testimony would have the

same substantive import.” State v. Richardson, 47 A.3d 305, 315 (R.I. 2012) (internal quotation

marks omitted). We recognize that a police officer’s testimony may be given more credence by

some jurors than the testimony of a lay person; however, we are simply unable to detect any

reason why the testimony of Det. Hayes in this case could be considered improper bolstering.

Detective Hayes merely repeated what was told to him by Ms. King and her physician. He did

not make any indication of any kind (even of the most minor variety) with respect to his personal

opinion about the veracity of their statements. Thus, we hold that no improper bolstering

occurred.

       Accordingly, defendant’s contentions of error with respect to the testimony of Det. Hayes

do not carry the day.




                                             - 20 -
                           2.      The Testimony of the Defendant

          i.     Questions Regarding Defendant’s Conduct with his Former Wife

       The defendant’s next contention is that he was improperly asked a number of questions

about an alleged past incident of violence involving his former wife. In order to properly assess

defendant’s contention, we must detail the pertinent exchange, which occurred during cross-

examination:

               “[The State]: And according to your testimony is [sic] that you
               never laid a hand on Ms. King, right?

               “[The Defendant]: No.

               “[The State]: Because you’re, I believe your words were, that
               you’re not violent, right?

               “[The Defendant]: I’m not.

               “[The State]: Well, this is – isn’t the first time that you were
               accused of hitting someone in the left side of the head, is it?

               “[Defense Counsel]: Objection, Your Honor.

               “[The Court]: Sustained.

               “[The State]: You never hit your ex-wife on the left side of the
               head, sir?

               “[Defense Counsel]: Objection

               “[The Defendant]: No.

               “[The Court]: He denied it.

               “[The State]: You never gave her a bloody nose, sir?

               “[Defense Counsel]: Objection, Your Honor.

               “[The Court]: He denied ever striking her.

               “[The State]: You never got into a physical altercation with your
               wife that your children had to pull you apart?



                                             - 21 -
               “[Defense Counsel]: Same objection, Your Honor.

               “[The Court]: An altercation, you may answer that, Mr. Ceppi.

               “[The Defendant]: Yes.

               “[The State]: In fact, it was an altercation that your – [sons] were
               present for, right?

               “[The Defendant]: Yes.

               “[Defense Counsel]: And they were pulling you and their mother
               apart, right?

               “[The Defendant]: Their mother.

               “[Defense Counsel]: They weren’t pulling you apart?

               “[The Defendant]: No.

               “[Defense Counsel]: So – so [one of your sons] would be wrong if
               he stated to the police – to Shrewsbury, Mass. You were
               antagonizing their mother?

               “[Defense Counsel]: Objection.

               “[The Court]: [State], do you have an offer of proof in this?”

The prosecutor then made an offer of proof by presenting a police incident report, and the trial

justice ruled on the objection as follows:

               “[The Court]: “[W]ith reference to the incident report, March
               10th, 2009, that report includes, under the introductory section,
               incidents on November 16th 2008, August 16th, 2008, followed by
               a nonspecific, a nonspecific date referenced to the bloody nose that
               you’re talking about. With reference to the March 10th incident,
               the report seems to indicate that the children reported to the
               officers that the wife – that Susan Ceppi became physical with Mr.
               Ceppi and started throwing things and that officers viewed a tape
               showing Susan, quote, becoming physically violent towards Mark
               and the children trying to restrain their mother, asking her to stop,
               followed by an admission by Susan Ceppi that she did become
               violent towards her husband, Mark.




                                              - 22 -
                      So with reference to your last question, the objection is
              sustained. With reference to – you need to separate the other
              references by Mrs. Ceppi that do not include your question about
              [both sons’] observations on this last date of March 10th.

              “[The State]: Thank you, Your Honor.

              “[Defense Counsel]: And if I may, Your Honor, just to -- just for
              the record, I would make a general objection to anything --

              “[The Court]: I understand.

              “[Defense Counsel]: -- any questioning related to these incidents.”

              “[The Court]: Sure.

              “[Defense Counsel]: For the mere fact that there’s no [Rule]
              404(b) exception, I believe, that fits into this evidence. Thank
              you.”

The prosecutor proceeded to ask questions with respect to whether defendant had ever “hit” or

“kicked” his former wife. The defendant avers that “[t]he prosecutor was in effect accusing

[him] of an assault on his former wife, even though the prosecution’s offer of proof included a

police report which contained an admission by the defendant’s former wife that she assaulted the

defendant.” He posits that the “impermissible implication that [defendant] had engaged in

violent conduct with his former wife” was inadmissible under Rule 404(b) of the Rhode Island

Rules of Evidence.

       In accordance with Rule 404(b), any evidence of “other crimes, wrongs, or acts”

committed by defendant was not admissible to prove that defendant had a certain character and

acted in accordance with his character (i.e., propensity evidence) when allegedly committing the

crimes with which he was charged.19 Our thorough review of the record indicates that, even if




19
       Rule 404(b) of the Rhode Island Rules of Evidence reads, in its entirety, as follows:



                                              - 23 -
the questions with respect to defendant’s former wife were in violation of Rule 404(b), such a

violation would have been harmless beyond a reasonable doubt. See State v. Clements, 83 A.3d

553, 563 (R.I. 2014) (concluding that, even if there had been a violation of Rule 404(b), it would

have been “harmless beyond a reasonable doubt”); see also State v. Bailey, 677 A.2d 407, 411

(R.I. 1996). No documents with respect to any altercation between defendant and his former

wife were admitted into evidence; and, in his testimony, defendant repeatedly denied ever

kicking or hitting his former wife. Importantly, defendant was also given an opportunity during

re-direct examination to testify that it was his then-wife, and not he, who was charged with

respect to the alleged violent confrontation at issue. Additionally, as the state points out, this

was a jury-waived trial—and the risk of prejudice is significantly reduced in that context. See

Medeiros, 996 A.2d at 121. Moreover, the above-quoted comments by the trial justice make it

clear that she understood that it was not defendant who had been charged with respect to the

incident involving his former wife. Taking all those facts into account, we hold that, even if the

questioning with respect to defendant’s former wife and any violent altercations between them

had been in violation of Rule 404(b), such error would have been harmless.

    ii.       The Opinion of Defendant as to the Intoxication of the Complaining Witness

          The defendant contends that the trial justice “erroneously refused to allow him to testify

that [Ms. King] was under the influence of alcohol” on direct examination. He refers specifically

to questions asked by defense counsel with respect to whether or not defendant had observed Ms.


                        “Other Crimes, Wrongs, or Acts. 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.”


                                                - 24 -
King become intoxicated in the past and whether she was under the influence of alcohol on a

particular evening.20 With respect to those questions the trial justice instructed defense counsel

to ask the witness about his observations, not his “conclusion[s].” The defendant avers that the

fact that he had been dating Ms. King for “ten months” was “adequate foundation” for the

questions, and he contends the following: “This Court has said lay opinions of intoxication are

permitted if the witness has had an adequate opportunity to observe the person about whom the

testimony is offered and is able to offer a [sic] sufficient detail for an opinion.”

       We note that the trial justice did not in fact exclude all testimony with regard to Ms.

King’s intoxication on various dates in question; rather, she simply required defendant to testify

with respect to what he observed about Ms. King, rather than simply offering a conclusory

statement that she was intoxicated. That requirement imposed by the trial justice was consistent

with the relevant case law from this Court cited by defendant. See State v. Bruskie, 536 A.2d

522, 524 (R.I. 1988); State v. Fogarty, 433 A.2d 972, 975-76 (R.I. 1981). In our decision in

Fogarty, we held that a lay witness may testify with respect to whether or not someone was

intoxicated if the witness “had an opportunity to observe the person and [can provide] the

concrete details on which the inference or description is founded.” Fogarty, 433 A.2d at 976.

The trial justice in the instant case was merely requiring defense counsel to ask about the

“concrete details” which formed the basis of his conclusion that Ms. King was intoxicated. Id.;

see also State v. Gomes, 604 A.2d 1249, 1258-59 (R.I. 1992) (holding that a portion of a

deposition which was not read into evidence at trial due to the fact that the trial justice sustained

the prosecutor’s objection to that portion, in which the witness stated that a certain individual




20
       See Part I.A.4, supra.



                                                - 25 -
was intoxicated, was properly excluded because the witness failed to provide any concrete

“details” on which his determination was based).

       Moreover, defense counsel was permitted to continue asking questions about defendant’s

observations of Ms. King’s behavior after she was drinking, and defendant was permitted to

testify with respect to Ms. King’s behavior when she had been drinking. Therefore, there is no

merit to defendant’s argument that the trial justice “erroneously refused to allow him to testify

that [Ms. King] was under the influence of alcohol.”

                           3.      The Testimony of Stephanie Bacon

       The defendant objects on appeal to the complaining witness’s sister having been

permitted to testify that Ms. King had a “brain bleed” because, according to defendant, that

statement was hearsay and was “not probative.”

       Any contention as to Ms. Bacon’s testimony constituting hearsay is not properly before

this Court since no objection on that basis was articulated before the trial justice.21 See State v.

Figuereo, 31 A.3d 1283, 1289 (R.I. 2011) (“This Court staunchly adheres to the ‘raise or waive’

rule, which requires parties to raise an issue first in the trial court before raising it on appeal.”).

Additionally, even if Ms. Bacon’s testimony was not relevant, it was quite clearly cumulative in

view of the fact that Ms. King’s medical records were admitted into evidence and Ms. King was

allowed to testify as to her injuries. See Lynch, 854 A.2d at 1032. As a result, the trial justice

did not abuse her discretion in allowing Ms. Bacon to testify regarding her sister’s injury.22


21
        Defense counsel specifically stated: “Objection to the relevance.” See Part I.A.2, supra,
for further details relative to the testimony by the complaining witness’s sister.
22
       The defendant has raised two additional contentions on appeal. The first contention
apparently urges that it was error for the trial justice to sustain an objection to a question by
defense counsel to Ms. King during cross-examination as to whether or not she “work[ed] out[.]”
However, only four lines in defendant’s brief address this contention. And in those four lines
defendant does not cite a single case, nor does he clearly articulate his argument concerning the


                                                - 26 -
       Thus, we hold that the trial justice did not commit any errors with respect to the

evidentiary rulings at trial which would merit reversal.

                                                III

                                            Conclusion

       For the reasons set forth in this opinion, we affirm the Superior Court’s judgment of

conviction. The record in this case may be remanded to that tribunal.




objected-to question. As such, this issue is waived. See Wilkinson v. State Crime Laboratory
Commission, 788 A.2d 1129, 1131 n. 1 (R.I. 2002) (“Simply stating an issue for appellate
review, without a meaningful discussion thereof or legal briefing of the issues, does not assist the
Court in focusing on the legal questions raised, and therefore constitutes a waiver of that issue.”);
see also Horton v. Portsmouth Police Department, 22 A.3d 1115, 1130 (R.I. 2011).
        The second contention is that the cumulative effect of the evidentiary errors supports
reversal. Given our conclusion that any evidentiary errors that may have occurred were
harmless, we need not address that contention. See Cheaters, Inc. v. United National Insurance
Co., 41 A.3d 637, 646 (R.I. 2012); see also Furlan v. Farrar, 982 A.2d 581, 585 (R.I. 2009).


                                               - 27 -
                           RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:       State v. Mark Ceppi.

CASE NO:             No. 2011-190-C.A.
                     (N2/09-257A)

COURT:               Supreme Court

DATE OPINION FILED: May 28, 2014

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

WRITTEN BY:          Associate Justice William P. Robinson III

SOURCE OF APPEAL:    Newport County Superior Court

JUDGE FROM LOWER COURT:

                     Associate Justice Melanie Wilk Thunberg

ATTORNEYS ON APPEAL:

                     For State: Christopher R. Bush
                                Department of Attorney General

                     For Defendant: Robert B. Mann, Esq.
