June 29, 2018




                                                                   Supreme Court

                                                                   No. 2016-352-C.A.
                                                                   (P1/10-1155A)


                     State                    :

                      v.                      :

                Michael Patino.               :




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

                                                                  No. 2016-352-C.A.
                                                                  (P1/10-1155A)


                    State                       :

                     v.                         :

              Michael Patino.                   :


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

                                           OPINION

       Justice Flaherty, for the Court.         The defendant, Michael Patino, appeals from a

judgment of conviction for second-degree murder, in violation of G.L. 1956 § 11-23-1, after a

jury found him guilty of murdering his girlfriend’s six-year-old son. For that crime, he was

sentenced to a term of life imprisonment. On appeal, the defendant claims that he is entitled to a

new trial because the trial justice made three errors, two of which relate to the trial justice’s jury

instructions and one of which arises from the admission of certain testimony at trial. For the

reasons set forth in this opinion, we affirm the judgment of conviction.

                                                    I

                                         Facts and Travel

       A little after five o’clock in the evening on Sunday, October 4, 2009, a six-year-old boy

named Marco Nieves was pronounced dead at Hasbro Children’s Hospital. According to the

autopsy performed by then-Chief Medical Examiner of the State of Rhode Island, Thomas

Gilson, M.D., the cause of death was peritonitis, which is a medical term that describes



                                                -1-
inflammation around the stomach cavity. The manner of death was deemed to be homicide. In

Dr. Gilson’s opinion, the peritonitis that led to Marco’s death was the result of the infliction of a

substantial amount of blunt force to the abdomen.         As a string of text messages between

defendant and his girlfriend, Trisha Oliver, later revealed, that blunt force came from defendant’s

fist. 1

          At some point in the afternoon of October 3, Ms. Oliver’s son, Marco, began vomiting.

Despite the boy’s distress, Ms. Oliver brought him to church, where a number of people told her

that Marco did not look well. The defendant, meanwhile, was spending the evening hanging out

at his friend’s car shop. He had been with Marco and his daughter, Ms. Oliver’s other child,

while Ms. Oliver ran errands that morning. 2 The defendant did not return to Ms. Oliver’s

Cranston apartment until the early morning hours of October 4. However, between the time that

he left and the time that he returned to his girlfriend’s apartment, defendant and Ms. Oliver

exchanged a series of damning text messages that revealed in stark and vulgar terms what had

happened to Marco Nieves.

          At about a quarter to five o’clock on the afternoon of October 3, after texting with

defendant over an unrelated issue, Ms. Oliver sent defendant the following text message: “of

course [Marco] is gonna be all hurt and cryin cuz u f****n beat the crap out of him im not wit

that sh*t[.]” Minutes later, defendant responded, with his feelings emphasized by all capital

letters: “I PUNCH DAT LIL B***H 3 TIMES AND DAT WAS IT. DA HARDEST 1 WAS ON



1
  Of note, this is not defendant’s first foray into this Court’s docket. In 2014, this Court vacated
in part and affirmed in part a pretrial ruling of a justice of the Superior Court suppressing a host
of text messages found on defendant’s girlfriend’s cell phone. See State v. Patino, 93 A.3d 40
(R.I. 2014). The text messages that were the subject of that decision were admitted into evidence
and used extensively throughout defendant’s trial.
2
  The defendant’s parental rights with respect to his and Ms. Oliver’s daughter have been
terminated. See In re Jazlyn P., 31 A.3d 1273 (R.I. 2011).


                                                -2-
HIS STOMACH CUZ HE MOVED. BUT LET HIM B A MAN AND NOT A LIL B***H

LIKE U[.]” The defendant then issued a follow-up message, again in all capital letters: “WAT

KIND OF DISCIPLINE OR ANYTHIN U GONNA KNO[.]”                             Ms. Oliver responded

immediately, informing defendant that Marco had not complained to her about being in pain;

rather, as she texted, he was just throwing up. She, too, issued a follow-up: “idk wat u did but u

hurt [h]is stomach real bad[.]” The defendant’s response: “I TOLD U. I WENT 2 PUNCH HIM

ON HIS BACK AGAIN AND HE MOVED AND I HIT HIM ON HIS STOMACH.”

       After sending that text, defendant attempted to offer an alternative explanation for why

Marco might be sick to his stomach. The defendant wrote to Ms. Oliver: “ITS PROLLY SINCE

HE HAD ATE DATS Y. MY BAD IM REALY SORRY ABOUT DAT[.]” Ms. Oliver texted

defendant back, stating that Marco was making sounds and throwing up a foamy substance; she

also informed defendant that the boy’s eyes were rolling toward the back of his head. At this

point, it was just after 5 p.m. on Saturday, October 3. It was clear to defendant’s girlfriend that

her son Marco was in terrible distress.

       But while Marco’s condition continued to worsen, the couple contented themselves with

text messages. Their text chain shows that Ms. Oliver was becoming increasingly concerned

with Marco; he was still throwing up, his stomach was “madd tight[,]” and after briefly falling

asleep, he had vomited on the bed sheets. The defendant suggested a solution: She should leave

Marco alone for a while and let settle whatever food that he had eaten. Meanwhile, Ms. Oliver

noted that her son’s vomit was dark and that his blanket needed to be washed. The defendant,

though, was undeterred as he proposed cures for Marco’s distress.

       The defendant suggested, first, that Ms. Oliver should give Marco some water. After

being informed that Marco had thrown up again, defendant offered a twist: Ms. Oliver should




                                               -3-
awaken Marco and give him water with lemon. Then, defendant suggested that she should rub

Marco’s stomach. When notified that the stomach rub had failed, defendant again asked Ms.

Oliver to give Marco a drink of water. Time wore on, and his proposed remedies were to no

avail. At about six o’clock that evening, defendant texted: “MAKE HIM LIKE EXERCISE[.]”

Exasperated, Ms. Oliver responded: “yes mike idk wat else 2 do[.]”

       She then sent defendant the following text: “mike he is in madd pain u had 2 hit him real

hard mike wtf[.]” The defendant responded: “I HIT HIM DA SAME WAY EVERYWHERE

BUT ITS DAT HE MOVED AND I HIT HIM BAD[.]” Ms. Oliver queried: “wat if somethin

happened 2 him his eyes r rolin he cant even talk he says he is doin reall badd[.]” The defendant

then implored his girlfriend to relax and calm down. Ms. Oliver’s response was to ask defendant

to come to her home and help take care of Marco; defendant agreed to do so. And, apparently

recognizing her predicament, Ms. Oliver ominously typed out one more message to defendant:

“wat if i got2 take him 2 da hospi[ta]l wat will i say and dos marks on his neck omg[.]” 3

       Despite his agreement to do so, defendant did not return to Ms. Oliver’s home until hours

later, around three or four in the morning. While Ms. Oliver continued texting with defendant,

and as Marco continued to suffer, defendant whiled away the evening enjoying drinks and

hanging around his friend’s car shop in Central Falls, alternating between drinking with his

friends and by himself at his mother’s home.

       Early the next morning, October 4, a dispatcher at the Cranston Fire Department received

a distressing emergency call. On the other end of the line was Trisha Oliver, and she related

disturbing news: her son was not breathing. Within minutes, a crew of four men from the

Cranston Fire Department arrived at Ms. Oliver’s apartment. Private David Brouillard, an

3
 As this Court previously has noted, this text message “was never actually delivered” because of
“a lack of funds on [Ms.] Oliver’s phone[.]” Patino, 93 A.3d at 44 n.3.


                                               -4-
emergency medical technician, was one of the first to respond to the scene. Upon rushing into

Ms. Oliver’s apartment, Pvt. Brouillard first observed a young boy on the couch. The boy was

unresponsive. Private Brouillard also encountered a woman, who he later confirmed was Ms.

Oliver, and another child. Ms. Oliver, Pvt. Brouillard noted, “appeared nervous and upset.”

There was also another person in the apartment; a man who Pvt. Brouillard noticed was “quiet,

standing in the corner, not saying anything.” That man, it turned out, was defendant.

       As soon as Pvt. Brouillard entered the apartment, he went to the boy on the couch. The

boy “was not breathing and he had no pulse.” While Pvt. Brouillard continued checking for a

pulse, Ms. Oliver, upset and nervous, told him that the boy “had been up all night vomiting and

complaining of stomach pain.” Two of the other responders, Privates Christopher Coutu and

Mark Bouchard, also hurried over to the boy to administer aid. The fourth firefighter on the

scene, Lieutenant James Woyciechowski, radioed in the boy’s status to the incoming rescue

personnel.

       With time of the essence, Pvt. Brouillard began “working on the [boy’s] airway,” while

Pvt. Coutu continued to search for a pulse. As Pvt. Brouillard searched for any obstructions in

the boy’s airway, he opened a breathing bag to ventilate him. Private Bouchard also readied an

automated external defibrillator (AED), which is a device designed to check the heart’s rhythm

and, if needed, deliver electric shocks to reset it. However, after Pvt. Bouchard pushed the

button marked “analyze” on the AED, it read: “no shock advised.” Neither Pvt. Brouillard nor

Pvt. Coutu found a pulse.

       As Pvt. Brouillard and Pvt. Coutu ventilated the boy and continued administering CPR,

the rescue arrived at the scene. Lieutenant Thomas Rimoshytus, who arrived with the rescue

personnel and who had been informed that the boy was not responding to aid, instructed: “Scoop




                                              -5-
him up and let’s go.” With the AED pads still attached to the boy’s body, Pvt. Coutu cradled the

child and rushed him out to the just-arrived ambulance. Inside the ambulance, the boy was

placed on a stretcher, and the rescuers administered CPR and reconnected the AED. Still, as Pvt.

Brouillard testified, the boy’s body looked “limp and totally lifeless.”

       During all of this commotion, with his girlfriend hysterical, his girlfriend’s son

unresponsive, and a number of firefighters and rescue personnel rushing about, defendant

appeared to be calm and quiet. As a number of the firefighters observed, defendant remained off

to the side, standing in the hallway, with his hands in his pockets.

       En route to the hospital, the rescue personnel applied the AED again. This time, pushing

the analyze button resulted in a reading of “shock advise[d].” As Lt. Rimoshytus later testified,

“[w]e shocked him, and he was still pulseless and not breathing * * *.”

       Just before 6:30 a.m., the rescue arrived at Hasbro Children’s Hospital in Providence.

Medical records reveal that the boy did not regain a documented pulse until 7:20 a.m. Linda

Snelling, M.D., the Chief of Pediatric Critical Care and Medical Director of the Pediatric

Intensive Care Unit at Hasbro Children’s Hospital, was the boy’s attending physician that

morning. She described his condition as “[g]rave.” The boy underwent CT scans of his brain

and abdomen, and he was later moved to the Pediatric Intensive Care Unit.

       As Dr. Snelling testified, the CT scans showed that there was the presence of “free air” in

the boy’s abdomen. Free air, Dr. Snelling explained, indicates an “abdominal perforation,

usually an intentional perforation.” While the free “air itself hurts,” she testified that “the bigger

problem is that if you have a perforation or a hole in your intestine, what is inside the intestines

spills out into the abdominal cavity and it’s full of bacteria.” That, according to Dr. Snelling,

“can cause a lot of irritation, * * * infection, and it can cause a lot of tissue swelling. It can




                                                -6-
change the blood flow to the organs, and depending upon where in the intestine the hole is

located, it can also spill acids from the digestive system into the abdominal contents.”

        Over the course of the next several hours, the boy’s condition did not improve. As the

morning turned to afternoon, according to Dr. Snelling, he was on “[e]very kind of life support

system except for a heart bypass machine. He had adrenaline to make his heart beat. He had a

ventilator to breathe for him. * * * He had blood products. He was getting a lot of resuscitation.”

However, despite the heroic efforts of medical personnel, Marco Nieves was later pronounced

dead.

        Back at the apartment, Lieutenant (then-sergeant) Matthew Kite of the Cranston Police

Department had arrived just as the rescue left for the hospital. He approached the apartment and

spoke with Ms. Oliver, who was visibly upset and was pacing outside her apartment building.

Ms. Oliver then agreed to walk him through her apartment. Once inside, Lt. Kite observed two

individuals, defendant and the infant daughter of defendant and Ms. Oliver. The defendant,

according to Lt. Kite, was seated calmly on the couch. Lieutenant Kite then walked with Ms.

Oliver room by room, observing that one bed had been stripped of its sheets, which were piled

on the floor. He also spotted “a white waste basket with a coffee ground type substance visible

in the bottom.” In the bathroom, he viewed the same “brown coffee grind type substance in the

toilet.” The object of his search, Lt. Kite explained, was to find the cause of Marco’s injury,

which he initially suspected was “an ingestion of a toxic substance” such as a “household

cleaner.”

        After the apartment walk-through, Ms. Oliver left for the hospital. Lieutenant Kite, now

in the kitchen area, began making small talk with defendant, who was standing near the kitchen.

As Lt. Kite scanned the living room, he noticed that there were a number of cell phones lying




                                               -7-
about. Then, the home phone, a landline, rang, and defendant answered it. After he hung up,

defendant, apparently recognizing that he would soon be leaving, changed his daughter’s diaper

and began packing a diaper bag. Meanwhile, a cell phone on the kitchen counter caught Lt.

Kite’s attention, either by making a sound or vibration, or because the screen lit up. The

defendant, who had finished packing the diaper bag, sat back down on the couch and did not

respond to the cell phone. When Lt. Kite picked up the cell phone from the counter, its screen

indicated that a new message had been received. After a few clicks, he read the message but

quickly returned the cell phone to the counter. The information that Lt. Kite gleaned from that

text message was incriminating and it gave him cause to contact police headquarters. Although

he had initially been searching for household items that Marco may have ingested, the text

message indicated that there was a different, more malicious cause of injury. 4

       The defendant was transported to the Cranston police station, where he agreed to speak

with two detectives. In his interview with the detectives, defendant did not have much to offer.

He confirmed that he had been out the evening and night of Saturday, October 3, and that he had

returned to Ms. Oliver’s apartment sometime between three and four o’clock in the morning.

The defendant also said that Ms. Oliver had informed him that Marco had been vomiting. 5

       On April 2, 2010, close to six months after Marco Nieves died, defendant was indicted by

a grand jury for Marco Nieves’s murder, in violation of §§ 11-23-1 and 11-23-2. After a trial in

the Superior Court held in April 2015, defendant was convicted of murder in the second degree.

Thereafter, the trial justice sentenced defendant to life imprisonment. The defendant appealed,

arguing that the trial justice erred (1) in instructing the jury with respect to second-degree felony



4
  Later, the police obtained a warrant to search and seize the cell phone Lt. Kite had picked up.
See Patino, 93 A.3d at 45.
5
  The questioning was video recorded, a recording that the jury would later view at trial.


                                                -8-
murder; (2) in instructing the jury with respect to causation; and (3) by admitting testimony

about prior bruising that had been observed on Marco’s body.

                                                 II

                                      The Jury Instructions

       The defendant’s first two assignments of error arise out of the trial justice’s jury

instructions. He first argues that the trial justice erred with respect to her instruction on second-

degree felony murder in three respects: (1) that the instruction on second-degree felony murder

deprived him of due process because, even though the indictment charged him with murder in

violation of § 11-23-1, it included neither a charge of second-degree felony murder nor a charge

of the predicate felony to second-degree felony murder, felony child abuse; (2) that there should

have been no instruction on second-degree felony murder at all because, under the merger

doctrine, the predicate felony for second-degree felony murder—in this case, felony child

abuse—should have merged into the homicide; and (3) that the trial justice erred by describing

the injury required to establish felony child abuse as one that was “however slight.”

       The defendant also takes issue with the trial justice’s instruction on causation. According

to defendant, the instruction on proximate cause did not sufficiently explain to the jury the

lynchpin of his defense—that is, whether Marco Nieves’s death was proximately caused by

defendant, as the state had argued, or by Ms. Oliver’s failure to obtain medical care for the child,

as defendant maintained.

                                                  A

                                       Standard of Review

       We review jury instructions de novo. State v. Delestre, 35 A.3d 886, 891 (R.I. 2012).

“In conducting that review, ‘it is our role to examine the instructions in their entirety to ascertain




                                                -9-
the manner in which a jury of ordinary intelligent lay people would have understood them

* * *.’” Id. (quoting State v. John, 881 A.2d 920, 929 (R.I. 2005)). As we have explained, we

“will not examine a single sentence apart from the rest of the instructions, but rather the

challenged portions must be examined in the context in which they were rendered.” Id. (quoting

State v. Kittell, 847 A.2d 845, 849 (R.I. 2004)). Moreover, “[a]n erroneous charge warrants

reversal only if it can be shown that the jury could have been misled to the resultant prejudice of

the complaining party.”     State v. Florez, 138 A.3d 789, 793 (R.I. 2016) (quoting State v.

Burnham, 58 A.3d 889, 897 (R.I. 2013)).           As long as the trial justice’s jury instructions

“adequately cover[ed] the law[,]” “we will uphold them[.]” Delestre, 35 A.3d at 891 (quoting

State v. Ensey, 881 A.2d 81, 95 (R.I. 2005)).

                                                  B

                                 Second-Degree Felony Murder

       The trial justice began her charge to the jury with a definition of murder: “Murder,

whether murder in the first degree or murder in the second degree, is the unlawful killing of a

human being with malice aforethought.” Accordingly, the trial justice explained, to convict

defendant of murder, either in the first or second degree, the jury had to find that the state proved

beyond a reasonable doubt: (1) “that the [d]efendant willfully caused the death of another

human”; and (2) “that the [d]efendant acted with malice aforethought.”

       The trial justice then distinguished between murder in the first degree and murder in the

second degree. To find defendant guilty of first-degree murder, the trial justice told the jurors,

they needed to conclude that defendant “acted with premeditation[,]” meaning an “intent to kill

* * * which * * * existed for more than a mere moment.” If, the trial justice explained, a




                                                - 10 -
defendant “commits a murder but does not act with premeditation having a duration of more than

a mere moment, * * * [he] is guilty of murder in the second degree * * *.”

       The trial justice then turned to that with which defendant has taken issue on appeal: the

instruction on second-degree felony murder. She explained that if the jury did not find defendant

guilty of first-degree murder, or if the jury did not find that the state had proven that defendant

acted with the requisite intent to kill for second-degree murder, then the jury still had to

“consider whether the [s]tate has proven [d]efendant guilty of second degree felony murder.” As

the trial justice clarified for the jury, “[t]hat’s murder in the second degree also, but it’s on a

different theory.”

       She first summarized the doctrine of second-degree felony murder:

                         “Under our law, the criminal offense of second degree
               murder may also be established under what is known as the Felony
               Murder Rule. If a [d]efendant kills someone in the course of or in
               attempting to commit an inherently dangerous felony, then that
               killing is by law considered second degree murder even if the
               [d]efendant did not intend to kill another human being.
                         “Under this doctrine the [s]tate need not prove malice or
               intent to kill. So you can still find the [d]efendant guilty of second
               degree murder even if the [s]tate does not prove malice or intent to
               kill, if the Doctrine of Felony Murder applies.”

The trial justice then explained that:

                       “In order to convict [d]efendant of second degree murder
               under the Felony Murder Doctrine, the [s]tate must prove the
               following elements beyond a reasonable doubt: Number l, that the
               [d]efendant caused the death of Marco Nieves; and Number 2, that
               he did so while committing or attempting to commit an inherently
               dangerous felony. In order to convict the [d]efendant of second
               degree murder under the Felony Murder Doctrine, the [s]tate does
               not have to prove that the [d]efendant acted with malice
               aforethought or even that he intended to kill anybody.
                       “* * *
                       “The only intent required is that the [d]efendant intended to
               commit the underlying felony, the one that is inherently dangerous
               * * *.”



                                               - 11 -
       In this case, the predicate felony for the trial justice’s second-degree felony murder

instruction was felony child abuse, a violation of G.L. 1956 § 11-9-5.3—which is also known as

“Brendan’s Law.” The trial justice described Brendan’s Law as follows:

                      “I instruct you that under Rhode Island law, where a person
               having care of a child knowingly or intentionally inflicts any
               physical injury upon the child, however slight, he or she is guilty of
               a felony * * *.” (Emphasis added.)

She then explained that Brendan’s Law contained an exception: “If the injury inflicted does not

constitute a serious bodily injury and the injury arises from the imposition of non-excessive

corporal punishment, then the person has not committed a felony.”

       Significantly, as the trial justice neared the end of her instruction on second-degree felony

murder, she noted that: “The decision as to whether the felony is inherently dangerous or reflects

conscious disregard for the risk to human life rests on [the] fact[s] of the case.” And, as she told

the jury, in determining whether the child abuse alleged in this case constituted an inherently

dangerous felony, “you should consider all of the facts and circumstances proven at trial,

including the nature and severity of the alleged punishment, the size and age of the child, as well

as any disparity in size and strength between the victim and the [d]efendant.”

       The trial justice also imparted an instruction on involuntary manslaughter. In doing so,

she reiterated that “it is unlawful for a person having care of a child to knowingly or intentionally

inflict physical injury on the child however slight the injury.” Drawing on her earlier instruction

on felony child abuse, she then instructed the jury that there were only two “circumstances

pertinent to this case where you could determine that the [d]efendant is guilty of involuntary

manslaughter due to criminal negligence”: (1) when “the injury does not constitute serious




                                               - 12 -
bodily injury”; and (2) when “the injury results from the imposition of non-excessive corporal

punishment.” With that, the trial justice concluded her instructions to the jury.

       But before sending the jury out for a recess, the trial justice summoned the attorneys for a

sidebar. After briefly clarifying an instruction on an issue irrelevant to defendant’s appeal, the

trial justice turned to defendant’s attorney, inquiring whether he had any objections to the jury

instructions. He began by lodging the following objection:

               “Judge, I think the first issue that comes to my mind is that felony
               murder rule that was not charged in the Indictment, and my
               understanding on the felony murder rule is a typical situation
               where a person goes into a bank, robs a bank and then one of the
               people shoots the security guard, so even though in that particular
               case if the driver of the car didn’t go into the bank he would be
               liable because of that shooting. And I think the facts of this case
               [are] very different. Felony murder rule doesn’t apply in this
               particular case.”

However, the trial justice disagreed, explaining that: “I do think that it does. I think there’s case

law to that effect, and I think it only makes sense because the [d]efendant requested a charge on

manslaughter, actually requested an involuntary manslaughter[] charge.” This, according to the

trial justice, had created a dilemma. If she did not instruct the jury on second-degree felony

murder, she explained, there would be “a huge gap” in the jury instructions with respect to the

jury’s decision regarding defendant’s intent.       The trial justice explained that, because an

instruction on voluntary manslaughter was clearly unwarranted, if she gave instructions on first-

degree murder, second-degree murder, and involuntary manslaughter, but did not give an

instruction on second-degree felony murder, then the jury “could determine that [defendant]

acted unlawfully” in a manner that “rose to the level of [a] felony * * * in violation of

Brend[a]n’s Law” but also find him not guilty of involuntary manslaughter. “So[,]” the trial

justice reasoned, “we would have a situation where [defendant] would be convicted if he acted




                                               - 13 -
lawfully but criminally negligent and acquitted if he acted unlawfully amounting to a felony

* * *.” That, the trial justice concluded, made no sense. Accordingly, she overruled defendant’s

objection.

       On appeal, defendant argues that the trial justice’s instruction on second-degree felony

murder was erroneous in three ways, any of which, in his view, warrants a new trial. First,

defendant contends that that instruction deprived him of his due process rights—namely, his

right to fair notice and his right to present a meaningful defense—because the indictment was

silent as to second-degree felony murder or as to felony child abuse, which the trial justice used

as the predicate felony for the second-degree felony murder instruction in this case.

       As we have explained, “[m]urder is defined by § 11-23-1 as ‘[t]he unlawful killing of a

human being with malice aforethought.’” State v. Diaz, 46 A.3d 849, 861 (R.I. 2012). Under

§ 11-23-1, “first-degree murder is ‘[e]very murder perpetrated by poison, lying in wait, or any

other kind of willful, deliberate, malicious, and premeditated killing’ or any murder committed

during the commission of certain enumerated felonies.” Id. (quoting § 11-23-1). Second-degree

murder, on the other hand, is “any killing of a human being committed with malice aforethought

that is not defined by statute as first-degree murder.” Id. at 862 (quoting State v. Parkhurst, 706

A.2d 412, 421 (R.I. 1998)). Of particular relevance to this case, it is well settled that “[t]his

Court has recognized three possible ‘theories of second-degree murder, each grounded in a

different aspect of malice aforethought.’” Id. (quoting State v. Gillespie, 960 A.2d 969, 976 (R.I.

2008)). We have distilled those theories of second-degree murder to the following formulation:

               “The first theory involves those killings in which the defendant
               formed a momentary intent to kill contemporaneous with the
               homicide. * * * The second theory includes felony murder for
               inherently dangerous felonies that are not expressly listed within
               the statutory definition of first-degree murder. * * * The third
               theory of second-degree murder involves those killings in which



                                              - 14 -
               the defendant killed with wanton recklessness or conscious
               disregard for the possibility of death or of great bodily harm.” Id.
               (internal quotation marks omitted).

       It is true that the indictment in this case did not expressly charge defendant with second-

degree felony murder or with felony child abuse, but only that he caused the death of Marco

Nieves, in violation of § 11-23-1, which proscribes murder in both the first and second degree.

However, based on our caselaw describing the three ways in which the state can prove second-

degree murder, see Diaz, 46 A.3d at 862, we cannot say that the trial justice’s jury instructions

deprived defendant of fair notice of the charges asserted against him. Second-degree felony

murder is a well-established theory of proving the requisite intent for second-degree murder, and,

in this case, there was overwhelming evidence adduced at trial that could lead a jury to conclude

that defendant’s physical abuse of six-year-old Marco Nieves constituted felony child abuse, in

violation of Brendan’s Law—just as the trial justice instructed. Although it appears that the trial

justice sua sponte instructed the jury regarding felony child abuse, it is significant that she did

not instruct the jury that he could be convicted of it as a standalone criminal offense. Rather, the

trial justice instructed that felony child abuse could serve as the predicate felony for second-

degree felony murder. Accordingly, we reject defendant’s contention that he was deprived of

fair notice and an opportunity to present a meaningful defense solely because the trial justice

gave an instruction on second-degree felony murder based on felony child abuse. 6

       Next, defendant contends that, based on the doctrine of merger, there should not have

been an instruction on second-degree felony murder and, he argues, the trial justice erred when

she gave such an instruction. As a threshold matter, we have grave reservations as to whether

6
  Moreover, our review of the evidence in this case also demonstrates that the jury could just
have easily determined that defendant’s conduct amounted to “wanton recklessness or conscious
disregard for the possibility of death or of great bodily harm[,]” another theory of second-degree
murder. State v. Diaz, 46 A.3d 849, 862 (R.I. 2012).


                                               - 15 -
this issue is properly before us, given the rather broad objection that defendant made to the

instruction at sidebar. See State v. Crow, 871 A.2d 930, 935 (R.I. 2005). Nonetheless, even if

the objection were properly preserved, it is our opinion that the trial justice did not err on this

issue.

         As defendant has correctly indicated, the doctrine of merger, as articulated by the

California Supreme Court in People v. Ireland, 450 P.2d 580 (Cal. 1969), provides “that a

second degree felony-murder instruction may not properly be given when it is based upon a

felony which is an integral part of the homicide and which the evidence produced by the

prosecution shows to be an offense included in fact within the offense charged.” Ireland, 450

P.2d at 590. However, we note that this doctrine has evolved since Ireland was decided, in part

because of confusion surrounding the interplay between merger and second-degree felony

murder. For instance, in People v. Sarun Chun, 203 P.3d 425 (Cal. 2009), the California

Supreme Court, in an effort to clarify that confusion, reframed its merger doctrine:

               “When the underlying felony is assaultive in nature, * * * we now
               conclude that the felony merges with the homicide and cannot be
               the basis of a felony-murder instruction. An ‘assaultive’ felony is
               one that involves a threat of immediate violent injury. * * * In
               determining whether a crime merges, the court looks to its
               elements and not the facts of the case. Accordingly, if the
               elements of the crime have an assaultive aspect, the crime merges
               with the underlying homicide even if the elements also include
               conduct that is not assaultive.” Sarun Chun, 203 P.3d at 443.

         In Rhode Island, however, we have eschewed the California approach and have taken a

different approach to second-degree felony murder. Rather than have “the court look[] to [the]

elements [of the predicate felony] and not the facts of the case[,]” Sarun Chun, 203 P.3d at 443,

we leave it to the factfinder “to consider the facts and circumstances of the particular case to

determine if [a] felony was inherently dangerous in the manner and the circumstances in which it




                                              - 16 -
was committed * * *.” 7 State v. Stewart, 663 A.2d 912, 919 (R.I. 1995). If the factfinder

determines that a defendant committed an inherently dangerous felony, then that felony may

serve as the predicate felony for second-degree felony murder. Id.

       We have considered this approach to be more straightforward than the merger doctrine,

and it avoids the potential for confusion that has resulted from its adoption elsewhere. See, e.g.,

Sarun Chun, 203 P.3d at 427. But see State v. Jones, 155 A.3d 492, 508 (Md. 2017) (adopting

the merger doctrine “to maintain the integrity of the different levels of culpability of murder and

manslaughter and to ameliorate its perceived harshness”).       Our jurisdiction’s check on the

harshness of the felony murder rule is the requirement that “[t]o serve as a predicate felony to a

charge of second-degree murder, a felony that is not specifically enumerated in § 11-23-1 must

* * * be an inherently dangerous felony.” Stewart, 663 A.2d at 918. If the factfinder concludes

that the underlying felony was in fact inherently dangerous, then “[t]he intent to commit the

underlying felony will be imputed to the homicide, and a defendant may thus be charged with

[and convicted of] murder on the basis of the intent to commit the underlying felony.” Id. at 920;

see also Diaz, 46 A.3d at 862. Nothing defendant has raised in this case has persuaded us to alter

that approach.

       In the record before us, there is substantial evidence upon which the jury could have

relied to determine that defendant committed an inherently dangerous felony. The defendant, a

two-hundred-twenty-pound adult man, punched Marco Nieves, a six-year-old boy standing four-

feet-one and weighing seventy-six pounds, with such force that the blow ruptured Marco’s

intestine. It is difficult to fathom how those facts do not demonstrate the commission of an

7
  In State v. Stewart, 663 A.2d 912 (R.I. 1995), we expressly “decline[d] [the] defendant’s
invitation to adopt the California approach in determining whether a felony is inherently
dangerous to life and thus capable of serving as a predicate to a charge of second-degree felony
murder.” Stewart, 663 A.2d at 919.


                                              - 17 -
inherently dangerous felony, in violation of Brendan’s Law. Because we decline to adopt the

merger doctrine as it has been formulated by the California Supreme Court, the question of

whether a felony is inherently dangerous in Rhode Island remains in the hands of the factfinder,

not the court. Stewart, 663 A.2d at 919, 920.

       The final issue that defendant presses on appeal with respect to the instruction on second-

degree felony murder arises out of the trial justice’s use of the phrase “however slight” when she

was discussing Brendan’s Law. Again, despite the preservation problem relating to this issue,

we will briefly address why defendant’s argument misses the mark.

       Brendan’s Law provides, in pertinent part, that:

               “(b) Whenever a person having care of a child, as defined by § 40-
               11-2(2), whether assumed voluntarily or because of a legal
               obligation, including any instance where a child has been placed
               by his or her parents, caretaker, or licensed or governmental child
               placement agency for care or treatment, knowingly or
               intentionally:
               “(1) Inflicts upon a child serious bodily injury, shall be guilty of
               first degree child abuse.
               “(2) Inflicts upon a child any other physical injury, shall be guilty
               of second degree child abuse.” Section 11-9-5.3(b).

Despite the nature of the injury inflicted, it is a felony to commit either first-degree child

abuse—which requires proof of a “serious bodily injury”—or second-degree child abuse—which

requires proof of merely “any other physical injury[.]” Sections 11-9-5.3(b), (e). A “serious

bodily injury” is one that:

               “(1) Creates a substantial risk of death;
               “(2) Causes protracted loss or impairment of the function of any
               bodily parts, member or organ, including any fractures of any
               bones;
               “(3) Causes serious disfigurement; or
               “(4) Evidences subdural hematoma, intercranial hemorrhage and/or
               retinal hemorrhages as signs of ‘shaken baby syndrome’ and/or
               ‘abusive head trauma.’” Section 11-9-5.3(c).




                                                - 18 -
The term “other physical injury” is “any injury, other than a serious bodily injury, which arises

other than from the imposition of nonexcessive corporal punishment.” Section 11-9-5.3(d).

          Here, in instructing the jury on Brendan’s Law, the trial justice stated that, save for the

exception regarding nonexcessive corporal punishment, “under Rhode Island law, where a

person having care of a child knowingly or intentionally inflicts any physical injury upon the

child, however slight, he or she is guilty of a felony * * *.” (Emphasis added.) Later, the trial

justice reiterated that “it is unlawful for a person having care of a child to knowingly or

intentionally inflict physical injury on the child however slight the injury.” However, although

the descriptor “however slight” may have deviated to some extent from the statutory definition of

any “other physical injury” set forth in Brendan’s Law, we are of the opinion that the trial

justice’s jury instruction, when viewed in its entirety, was not erroneous. See Delestre, 35 A.3d

at 891.

          When she instructed the jury, the trial justice quoted directly from Brendan’s Law in

defining “serious bodily injury.” 8 It follows, then, that anything other than a “serious bodily

injury”—meaning any “other physical injury”—could be understood as a physical injury

“however slight” inflicted upon a child. Although those are not the precise words set forth in the

statute, in our view, the trial justice’s characterization of “any other physical injury” as being

synonymous with an injury “however slight” did not so distort the statute’s language as to

mislead or confuse the jury. See Florez, 138 A.3d at 793. As we have said on innumerable

occasions, it is not our role to pick apart single phrases from the rest of the jury instructions and

search for error; rather, it is our task to examine the jury instructions “in the context in which

8
  The trial justice explained that: “For purposes of [Brendan’s] [L]aw, the term ‘serious bodily
injury’ means physical injury that creates a substantial risk of death or causes protracted loss or
impairment of the function of any body parts, member or organ, including any fractures of any
bones[,] or causes serious disfigurement.”


                                                - 19 -
they were rendered.” Delestre, 35 A.3d at 891 (quoting Kittell, 847 A.2d at 849). Viewed

through that prism, it is clear to us that the trial justice’s instruction to the jury on second-degree

felony murder, using Brendan’s Law as the predicate felony, on the whole, was detailed and

thorough, and more than adequately covered the law. Id.

                                                  C

                                             Causation

       We turn now to what was defendant’s primary defense at trial: whether his conduct was

the proximate cause of Marco Nieves’s death. He contends that the trial justice’s instruction on

that issue was erroneous.

       At trial, the thrust of defendant’s case was that, although his punch may have injured

Marco, it was Marco’s mother, Ms. Oliver, who ultimately caused the child’s death because she

failed to get Marco the medical care that, defendant argued, would have saved his life. To

support that defense, defendant proffered expert testimony from Elizabeth Laposata, M.D., who

specializes in forensic pathology and who once served as Rhode Island’s chief medical examiner.

Doctor Laposata testified that, in her opinion, Marco’s injury was “a survivable injury[,]” and

that, had he been brought to the hospital within hours of his being injured, “surgery could have

been performed to sew up the hole [in his duodenum] * * *.” But, Dr. Laposata explained,

because “the time period” from when Marco was injured to when he was brought to the

hospital—which she estimated was fifteen or sixteen hours—“was so long[,] he went into shock

and could not be revived.” Of note, Dr. Laposata also testified that Marco Nieves “died from

peritonitis due to an untreated perforation of the duodenum due to blunt force trauma.”

       In support of his causation defense, defendant also pointed to a text message that Ms.

Oliver sent to him in the midst of their lengthy exchange on October 3, 2009. At 5:17 p.m., after




                                                - 20 -
writing that Marco’s stomach was tight, his eyes were rolling, and he was still vomiting, Ms.

Oliver sent defendant the following text message: “please tell me wea my blunt is cuz im stress

like wtf i cut down a whole lot mike like seriously i take 1 or 2 hits and it relaxxes me[.]” 9

       Based on Dr. Laposata’s testimony and Ms. Oliver’s concern about obtaining marijuana,

which apparently outweighed her concerns for medical care for Marco, defendant argued that the

proximate cause of Marco’s death was not his own conduct, but rather Ms. Oliver’s failure to get

Marco medical treatment. The trial justice included an instruction on the doctrine of intervening

causation in her charge to the jury. As she described it,

                       “The Doctrine of Independent Intervening Cause
               recognizes that a person’s misconduct may not be a proximate
               cause of the death of another if it’s rendered remote in the causal
               sense because of an intervening act or acts of a third person.
               However, for an intervening act or omission of a third person to
               relieve a [d]efendant of criminal responsibility for causing a death,
               the intervening act must be the sole proximate cause of the death.”

       On appeal, defendant argues, as he did to the trial justice, that the instructions to the jury

on causation were insufficient because they did not require the jury to consider whether Ms.

Oliver’s failure to obtain medical treatment was an unforeseeable, intervening cause of Marco

Nieves’s death. In other words, defendant contends that the trial justice erred in explaining the

circumstances under which Ms. Oliver’s conduct could replace his own as the proximate cause

of Marco’s death. We do not agree.

       Although independent intervening cause is a doctrine that most often arises in the arena

of civil cases, e.g., Contois v. Town of West Warwick, 865 A.2d 1019, 1027 (R.I. 2004), we are

not wholly without precedent in other contexts. In In re Leon, 122 R.I. 548, 410 A.2d 121



9
  “Blunt” is slang for a cigar filled with marijuana. As we recently explained, “[i]f one empties
the contents of a cigar, it can be filled with marijuana and resealed. The finished product is a
blunt.” State v. Blandino, 171 A.3d 21, 25 n.6 (R.I. 2017).


                                                - 21 -
(1980), the respondent, who had been adjudicated to be delinquent by reason of second-degree

murder after he helped set a fatal fire in a youth correctional facility, argued that the youth

facility’s lack of training regarding fire emergencies, coupled with the fire department’s delayed

response to the fire, served as an intervening cause which superseded and replaced the

foreseeable consequences of his fire-starting conduct. In re Leon, 122 R.I. at 550, 555-56, 410

A.2d at 123, 125, 126. However, this Court rejected that argument, affirming the trial justice’s

decision to exclude evidence regarding the facility’s training on fire emergencies and the fire

department’s response time. Id. at 556, 557, 410 A.2d at 126.

       Analogizing the respondent’s argument in that case “to those raised in situations in which

the victim of a violent act has sought medical treatment which” does not “cur[e] * * * his

wounds” or save his life, In re Leon, 122 R.I. at 556, 410 A.2d at 126, we explained that:

                       “An injury from which the victim bleeds to death is the
               proximate cause of the decease even if the loss of blood might
               have been stopped had medical aid been promptly obtained.
               Obviously the fact that a doctor was not at hand to render
               immediate aid cannot be regarded as a superseding cause; but the
               result is not dependent upon unavailability. The question is not
               what would have happened, but what did happen[] and there can be
               no break in the legally-recognized chain of causation by reason of
               a possibility of intervention which did not take place, because a
               negative act is never superseding. Moreover, an injury is the
               proximate cause of resulting death although the deceased would
               have recovered had he been treated by the most approved surgical
               methods, or by more skil[l]ful methods, or with more prudent care,
               or with a different diet and better nursing, or with proper caution
               and attention.” Id. at 556-57, 410 A.2d at 126 (emphasis added)
               (quoting Perkins, Criminal Law 715-16 (2d ed. 1969)).

Therefore, “proximate cause is not superseded, nor the act that produced it excused, by the

failure on the part of those who might have assisted, cured, or rescued the victim to exercise a

higher quality of skill or efficiency or a more appropriate response in the face of emergency

when their actions might have favorably affected the result.” Id.



                                              - 22 -
       The Supreme Judicial Court in our sister state of Massachusetts has explained the

doctrine in this way: “The general rule is that the intervening conduct of a third party will relieve

a defendant of culpability only if such an intervening response was not reasonably foreseeable.”

Commonwealth v. Garcia, 18 N.E.3d 654, 668 (Mass. 2014) (quoting Commonwealth v. Rosado,

747 N.E.2d 156, 163 (Mass. 2001)). Nonetheless, “[i]f ‘death follows as a consequence of [an

individual’s] felonious and wicked act, it does not alter its nature or diminish its criminality to

prove that other causes cooperated in producing the fatal result.’” Id. (quoting Commonwealth v.

McLeod, 477 N.E.2d 972, 985 (Mass. 1985)). We embrace that analysis here.

       With that in mind, after carefully examining the trial justice’s instructions to the jury

regarding causation in their entirety, it is our opinion that they adequately and correctly covered

the law. See Delestre, 35 A.3d at 891. It is clear to us that the jurors were properly informed

about the law of proximate cause and the doctrine of intervening causation and that they were

availed of the opportunity to find that, as defendant had argued, Ms. Oliver’s conduct superseded

defendant’s as the proximate cause of Marco Nieves’s death. After listening to the competing

experts presented by defendant and by the state, 10 and after absorbing the trial justice’s thorough

instructions on this issue, the jury determined that the physical beating inflicted by defendant had

proximately caused Marco’s death.

       Indeed, based on the evidence in this case, it is difficult for us to fathom how the punch

of a two-hundred-twenty-pound adult male to the stomach of a small child—so forceful in its

impact that it ruptured the child’s duodenum—could be replaced by that child’s mother’s



10
   As noted above, Dr. Thomas Gilson testified that the cause of Marco’s death was peritonitis
and that the manner of death was homicide. Similarly, Dr. Linda Snelling, who treated Marco,
testified that, although Marco could have survived had he been brought to the hospital while he
was still alive, he nonetheless died from “an out-of-hospital cardiac arrest as a result of his
abdominal injury, and that prolonged arrest led to his multiple organ failure and his death.”


                                               - 23 -
delayed call to emergency services as the proximate cause of death. To borrow from what the

Supreme Judicial Court of Massachusetts wrote in Garcia, Marco Nieves’s “death follow[ed] as

a consequence of [defendant’s] felonious and wicked act, [and] it does not alter its nature or

diminish its criminality to prove that other causes cooperated in producing the fatal result.”

Garcia, 18 N.E.3d at 668 (quoting McLeod, 477 N.E.2d at 985). The focus for the jury in this

case was on “not what would have happened, but what did happen * * *.” In re Leon, 122 R.I. at

556, 410 A.2d at 126 (quoting Perkins, supra, at 715-16). As the trial justice correctly informed

the jury, Ms. Oliver’s failure to seek medical treatment for her son until nearly a day after

defendant’s assault on her son did not necessarily break the chain of proximate cause.

       Furthermore, what defendant’s argument overlooks is that he, too, had a duty to care for

Marco. The trial justice described precisely that point of law to the jury:

               “[I]f you find that the [s]tate has met all of the other elements of
               the crime charged, even if you find that the failure to obtain
               medical treatment was a cause of Marco’s death, that finding will
               not preclude a verdict of guilty. You may also consider whether
               the [d]efendant himself had a duty to assist Marco in getting
               medical treatment and whether Marco died because he breached
               that duty. One person can have a legal duty to assist a victim in
               getting medical treatment. There are certain situations in which a
               duty is created to render aid, to obtain medical assistance for
               another if needed.”

One of those situations, as the trial justice explained, occurs when a “duty [is] imposed” based on

“the person’s relationship to the injured party, such as the custodial parent of a sick child.” The

trial justice instructed that Marco’s mother, Ms. Oliver, fell into that category. 11 The other




11
  See State v. Robat, 49 A.3d 58, 80 (R.I. 2012) (citing State v. McLaughlin, 621 A.2d 170, 175
(R.I. 1993), as “expressly recognizing [that] the parent-child relationship * * * constitut[es] an
exception to the rule that there is ‘no general duty of care imposed on a person to protect, render
assistance, or to otherwise be responsible for another’s safety and welfare’ and * * * that a
‘parent may be guilty of criminal homicide for failure to call a doctor for his [or her] sick


                                               - 24 -
situation is when a “duty [is] imposed upon the person who created the peril * * *.” It is here

that defendant’s duty of care came into play.

       In the case of a person who “caused the injury that necessitated the medical treatment[,]”

the trial justice explained, the duty arises “so long as”: “First, the perpetrator is aware that the

victim needs medical assistance for the injury”; “second, the perpetrator is aware that the victim

is not receiving that assistance”; “[a]nd third, the perpetrator has an opportunity * * * to render

aid * * * [or] to obtain that medical treatment.” Finally, the trial justice stated, “If you find these

facts to be proven, then as a matter of law [d]efendant, along with Marco’s mother, had a duty to

assist Marco in getting medical treatment.”

       The trial justice appropriately explained to the jury how Ms. Oliver, as Marco’s mother,

and defendant, as the perpetrator of Marco’s injury, could have each had a duty to seek medical

treatment for him. And as the trial justice correctly told the jury, even if Ms. Oliver breached her

duty to her son, if the jury nonetheless found that defendant breached his duty to Marco, then he

could not “escape criminal responsibility * * *.” Here, just as “[a]n injury from which the victim

bleeds to death is the proximate cause of the decease even if the loss of blood might have been

stopped had medical aid been promptly obtained[,]” In re Leon, 122 R.I. at 556, 410 A.2d at 126

(emphasis added) (quoting Perkins, supra, at 715-16), so too is it true that defendant’s punch

could have served as the proximate cause of Marco’s death even if Ms. Oliver could have

potentially obtained medical care that might have saved the child’s life.

       Therefore, in this case, we perceive no error in the trial justice’s jury instructions on

causation. Having been properly charged, the jury found that Ms. Oliver’s conduct did not

absolve defendant of the consequences of his own acts.


child’”). In May 2016, Ms. Oliver pleaded guilty to manslaughter and received a twenty-year
sentence of imprisonment, with 105 months to serve and the remainder suspended.


                                                - 25 -
                                               III

                              The Testimony about Prior Bruising

        The defendant’s final argument is that the trial justice erred when she allowed Alexandra

Correia, the girlfriend of Marco Nieves’s father, Rafael Nieves, to testify about an incident in

which she observed a softball-sized bruise on Marco’s back. The defendant argues that this

“other acts” evidence was inadmissible under Rule 404(b) of the Rhode Island Rules of

Evidence, and, even if it were admissible, it should have been excluded under Rule 403 of the

Rhode Island Rules of Evidence because its relevance was substantially outweighed by its

prejudicial impact on the jury. On the other hand, the state contends that, not only was the

testimony admissible under Rule 404(b) and not unfairly prejudicial under Rule 403, but it also

became relevant because of a question defendant himself asked of Guida Andrade, Ms. Correia’s

mother. As a result, the state argues, defendant “opened the door” to Ms. Correia’s testimony.

        In our opinion, the record establishes that defendant did indeed open the door to Ms.

Correia’s testimony. Prior to trial, the state had filed, but later withdrew, a motion in limine to

introduce testimony from Ms. Correia. As noted above, Ms. Correia is the girlfriend of Marco’s

father and also is the daughter of Ms. Andrade. She was prepared to testify to an incident where

she observed bruising on Marco’s back; however, before trial, the state decided not to pursue that

line of inquiry.

        During the cross-examination of Ms. Andrade, who had testified for the state, the

following exchange took place between her and defense counsel:

                   “[DEFENSE COUNSEL:] When [Marco] would come for
                   Sunday dinner, what time would he be taken home?
                   “[MS. ANDRADE:] Marco would go home between five p.m. or
                   eight p.m.
                   “[DEFENSE COUNSEL:] Did he take a bath before he left to
                   go home?



                                              - 26 -
                “[MS. ANDRADE:] No.
                “[DEFENSE COUNSEL:] Never took a bath at your house?
                “[MS. ANDRADE:] No, not to my recollection. I’ve never given
                him a bath, no.
                “[DEFENSE COUNSEL:] Okay. Did you ever see any bruises
                on him?
                “[MS. ANDRADE:] No.” (Emphasis added.)

When defendant asked Ms. Andrade whether she had ever seen any bruises on Marco’s body,

Ms. Correia’s once marginally relevant testimony about seeing prior bruising became far more

relevant. The trial justice recounted the events as follows:

                “On cross-examination it was the defense attorney who explored
                [Ms. Andrade’s] opportunities to observe the boy’s body and
                elicited testimony from her that she had those opportunities and
                never saw any bruises.
                        “As I understood it, there had been previous rulings or
                agreements that [Ms. Correia], the daughter of this woman, could
                not offer testimony that she observed bruises when she bathed the
                boy because, frankly, bruises on the boy could mean any number
                of things. They’re not connected necessarily to this [d]efendant.
                Whether she saw bruises on the boy in January of ‘09 or December
                of ‘08 does not in any way lead to the reasonable inference that
                they were caused by [d]efendant. Not at all. So it wasn’t coming
                in.
                        “Then [defense counsel] asked [Ms. Andrade] if she
                observed bruises, as though that was relevant, and she said no.
                Now, [the prosecutor] said, ‘Ah, ha. You opened the door. I want
                to be able to call [Ms. Correia] and ask if she saw bruises.’”

Ultimately, over defendant’s objection, the trial justice allowed the state to put Ms. Correia on

the stand. 12

        According to Ms. Correia, sometime in late December 2008 or early January 2009,

Marco visited Ms. Correia and his father, Rafael, 13 at her apartment. During that visit, Rafael

bathed Marco. At some point during that bath, Rafael called Ms. Correia into the bathroom.

12
   The trial justice also decided that she would give a cautionary instruction to the jury, which
she provided after Ms. Correia testified.
13
   We refer to Rafael Nieves by first name to avoid confusion. In doing so, we intend no
disrespect.


                                               - 27 -
When she entered the bathroom, she noticed bruising on Marco’s back. From her vantage point

of only a few inches away, Ms. Correia described what she observed as a bruise that was “[t]he

size of a softball.” When Rafael asked Marco how he had gotten the bruise, the boy initially said

that he had fallen. But, upon further prompting from his father, Marco told Rafael and Ms.

Correia, “Mommy’s boyfriend hit me.” Ms. Correia testified that, when Marco admitted this, he

appeared “upset” and “sad.” 14

                                                    A

                                          Standard of Review

          “We have long held that ‘decisions concerning the admissibility of evidence are within

the sound discretion of the trial justice, and this Court will not interfere with the trial justice’s

decision unless a clear abuse of that discretion is apparent.’” State v. Martinez, 59 A.3d 73, 85

(R.I. 2013) (quoting State v. Gaspar, 982 A.2d 140, 147 (R.I. 2009)).

                                                    B

                                               Discussion

          The defendant argues that Ms. Correia’s testimony was inadmissible under Rule 404(b),

and, alternatively, even if it were admissible under that rule, that it should have been excluded

under Rule 403. In defendant’s view, because Ms. Correia did not specify who Marco was

referring to when he said “Mommy’s boyfriend hit me[,]” the testimony was speculative and not

relevant to defendant’s intent in this case. The crux of defendant’s argument is that, because the

relevance of this speculative reference was low and the potential for undue prejudice was high,

the testimony should have been excluded under Rule 403. Based on the recitation of events at

trial, however, it is our opinion that the trial justice did not err when she allowed Ms. Correia to



14
     At this juncture, the trial justice gave a cautionary instruction; there was no objection.


                                                  - 28 -
testify. The defendant, by interrogating Ms. Andrade about bruising, did indeed open the door to

the relevancy of Ms. Correia’s testimony. Accordingly, it is our opinion that the trial justice was

well within the considerable bounds of her discretion when she allowed the testimony.

       Rule 404(b) provides, in pertinent part, that “[e]vidence 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.” However, such evidence “may * * * be admissible” if it is offered “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.” R.I. R. Evid. 404(b).

       We conclude that the trial justice was correct in finding that Ms. Correia’s testimony was

relevant to show defendant’s intent and lack of mistake or accident. From the outset of the trial,

defendant’s intent was at issue. Indeed, defendant, who sought and received from the trial justice

an instruction on involuntary manslaughter, argued to the jury that he had not intentionally killed

Marco. Rather, defendant argued, the evidence supported a finding that he, at most, accidentally

injured Marco while administering a form of corporal punishment to the child. However, Ms.

Correia’s testimony tended to show that Marco had been beaten and bruised before, squarely

addressing the questions of intent and lack of mistake or accident. We perceive no error with the

admission of that evidence in this case. See State v. Brown, 900 A.2d 1155, 1162 (R.I. 2006)

(affirming the trial justice’s admission of “intent-related Rule 404(b) evidence” because the

“defendant opened the door by declaring to the jury in his opening statement that [the victim’s]

injuries resulted from an accident and that [the] defendant never intended to hurt her”).

       The defendant next maintains that, even if Ms. Correia’s testimony were admissible

under Rule 404(b), it nonetheless should have been excluded under Rule 403. Again, we




                                               - 29 -
disagree. Pursuant to Rule 403, “[a]lthough relevant, evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of time, or needless presentation

of cumulative evidence.” But when defendant elicited from Ms. Andrade that she had not

observed bruising on Marco’s body, the relevance of Ms. Correia’s perhaps once marginally

relevant testimony increased, and it was no longer substantially outweighed by the concerns

delineated in Rule 403. In other words, the balancing analysis prescribed by Rule 403 tilted in

the state’s favor after defendant opened the door. 15 Moreover, despite the fact that, as defendant

points out, Ms. Correia did not specifically identify defendant as “Mommy’s boyfriend[,]” we

agree with the trial justice that this testimony did not mislead the jury. Accordingly, in our view,

the trial justice did not err in allowing Ms. Correia’s testimony once defendant opened the door

to its relevancy.

                                                  IV

                                           Conclusion

        For the reasons set forth in this opinion, the judgment of conviction is affirmed. The

papers shall be returned to the Superior Court.




15
   With respect to Rule 403, “[w]e have said that ‘[u]nless evidence is of limited or marginal
relevance and enormously prejudicial, the trial justice should not act to exclude it.’” State v.
Graham, 941 A.2d 848, 862 (R.I. 2008) (quoting Wells v. Uvex Winter Optical, Inc., 635 A.2d
1188, 1193 (R.I. 1994)); see also State v. Patel, 949 A.2d 401, 412-13 (R.I. 2008) (“It is only
evidence that is marginally relevant and enormously prejudicial that must be excluded.”).


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STATE OF RHODE ISLAND AND                                   PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        State v. Michael Patino.
                                     No. 2016-352-C.A.
Case Number
                                     (P1/10-1155A)
Date Opinion Filed                   June 29, 2018
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice Francis X. Flaherty

Source of Appeal                     Providence County Superior Court

Judicial Officer From Lower Court    Associate Justice Netti C. Vogel
                                     For State:

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

                                     George J. West, Esq.




SU-CMS-02A (revised June 2016)
