State v. Miguel Montero

• Court: Supreme Court of Rhode Island
• Decided: August 18, 2025
• Docket: 2023-0092-C.A.
• Status: Published

Opinion

Supreme Court

No. 2023-92-C.A. (P1/20-3378A)

(Concurrence begins on Page 50) (Dissent begins on Page 58)

State :

v. :

Miguel Montero. :

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 (401) 222-3258 or Email: opinionanalyst@courts.ri.gov, of any typographical or other formal errors in order that corrections may be made before the opinion is published. Supreme Court

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

OPINION

Justice Goldberg, for the Court. The defendant Miguel Montero (defendant

or Montero) was charged with two counts of first-degree child molestation sexual

assault, viz., fellatio, in violation of G.L. 1956 §§ 11-37-8.1 and 11-37-8.2, and two

counts of second-degree child molestation sexual assault, viz., penis to vagina, in

violation of §§ 11-37-8.3 and 11-37-8.4. After a jury trial, Montero was convicted

on one count of first-degree child molestation sexual assault and acquitted on the

remaining charges. Montero raises five issues for our consideration. We affirm the

judgment of conviction.

-1- Factual Background

At the time of trial, defendant was the father to at least nine children, eight of

whom were between the ages of nine and fifteen years old. One child—Anne, the

complainant1—was born to Elaine in October 2011. After a hearing on a motion in

limine, see infra, Elaine testified that she was thirteen years old when she began a

“romantic relationship” with defendant, who, at the time, was approximately

twenty-eight years old. Elaine explained that defendant began engaging in sexual

intercourse with her at the age of thirteen, she became pregnant with Anne at the age

of fourteen, and she gave birth to Anne at the age of fifteen. From the time of her

birth until she was approximately three to five years old, Anne lived with Elaine in

the Dominican Republic. According to travel records admitted as a full exhibit over

defendant’s objection, Anne came to the United States on January 22, 2015, at which

time she moved to Pawtucket, Rhode Island and resided with defendant. Elaine

remained in the Dominican Republic.

Anne lived in a three-story multi-residence building. Neighbors resided on

the first floor; Montero, his then-wife, Dorothy, and their three children occupied

the second floor; and Anne lived on the third floor with defendant’s mother. In

September 2016, Dorothy and her children vacated the residence and Anne relocated

1 The names of all persons, except defendant, are fictitious for the purpose of preserving their privacy. -2- to the second floor, where defendant continued to reside. At trial, Anne was ten

years old and in the fourth grade. Although she testified concerning six separate

incidents of sexual misconduct involving defendant—beginning when she was in

kindergarten or the first grade—the indictment charged four episodes, all of which

occurred on the second floor of defendant’s residence.

On one occasion, defendant steered Anne into her brother’s room, removed

his pants, positioned himself on top and, according to Anne, “rubbed his private part

on mine.” Anne clarified that the portion of the female anatomy she was referencing

was used “[t]o pee,” and that defendant also “put his mouth on my private part.”2

Anne also described a separate but similar incident when defendant positioned

himself on top of her, “did the same thing,” and “went up and down.” This second

incident occurred on the bed in defendant’s bedroom. Anne was unable to recall

how old she was when either event transpired.

A third incident transpired in a bathroom when defendant was wearing a mask

due to having contracted COVID-19. On this occasion, Anne and defendant were

behind a closed door with the bathroom lights turned off when defendant removed

his pants, hoisted himself on top of the sink, and forced his penis into Anne’s mouth.

2 Anne’s testimony that defendant performed cunnilingus was not charged in the indictment. Anne testified that she had not told anyone about this incident until she disclosed it to prosecutors the day before her testimony because, according to Anne, “I don’t like talking about that because it’s scary and I don’t like talking about it.” -3- This episode ended after defendant ejaculated into Anne’s mouth. Anne testified

that she was eight or nine years old when this incident occurred.

The fourth charged event occurred in the late evening hours of September 11,

2020, or the early morning hours of September 12, 2020, after defendant returned

from a trip to the Dominican Republic. Anne related that she was on the third floor

of the residence with other family members when defendant returned home late in

the evening or the early morning. After affectionately greeting defendant, Anne

testified that she went downstairs to the second floor hoping to go to sleep but soon

found herself in defendant’s bedroom. Montero closed and locked the bedroom

door, removed his pants, and according to Anne, “put his private part in my mouth”

until “white stuff came out.” Anne clarified that the portion of the male anatomy

she was referencing was used “[t]o pee.”

The above-described sordid episodes comprised the indictment, see infra, but

Anne also testified to two uncharged episodes of sexual misconduct involving

defendant. Anne testified that during a family vacation to Virginia, she was in a

room with other family members of approximately the same age when defendant

“put his private part in my mouth,” and similarly, during a trip to the Dominican

Republic, when defendant “put his private part in my mouth.” Anne estimated that

the Virginia incident occurred when she was eight or nine years old, but she did not

specify when the Dominican Republic incident occurred.

-4- Anne did not suffer in silence. When she was five years old (approximately

2016 or 2017) Anne confided in Christine, an older stepsister who was then nine

years old. After describing what defendant had done to her, Christine informed Anne

that she had been “raped.” At this point, the trial testimony is unclear whether

Christine informed defendant’s brother or Anne notified defendant’s brother and

sister; in any event, it is apparent that neither defendant’s brother nor sister assisted

Anne.

Shortly after the September 11-12, 2020 incident, Christine sensed a “weird

vibe” emanating from Anne and asked, “[W]hat’s wrong?” Anne again confided in

Christine, who in turn notified defendant’s sister. When defendant’s sister provided

no help, Christine notified a stepsister, Beth, who alerted her mother and defendant’s

ex-wife, Dorothy.

The next morning, Dorothy drove to defendant’s residence and gathered the

three children at that location, including Anne, under the ruse of an early birthday

celebration for Beth. Dorothy drove to her residence where two of the children

disembarked, leaving Dorothy and Anne alone in the vehicle. Dorothy testified that

she asked Anne to tell her about the conversation she had with Christine concerning

what “was going on in her dad’s house.” At trial, defendant objected to this inquiry

on hearsay grounds; and, after a lengthy sidebar, the trial justice overruled the

objection. Dorothy testified that Anne “told me that, um, her dad was making her

-5- do things that she didn’t want to” and that Anne “said that her dad was putting his

private part on her mouth and making her swallow white things coming out of it and

she said it was nasty.” Dorothy’s testimony further described that Anne “said that

he used to, um, put his private part in her private part and move up and down” and

that the last incident occurred in September 2020, after her father returned from the

Dominican Republic. As a result of the conversation she had with Anne, Dorothy

notified the Department of Children, Youth, and Families (DCYF).

On September 18, 2020, a DCYF Child Protective Investigator responded to

Dorothy’s residence and conducted several interviews, including with Dorothy,

Christine, and Anne. At the conclusion of these interviews, DCYF implemented a

forty-eight-hour protective hold, effectively removing Anne from defendant’s

residence and placing Anne in Dorothy’s temporary custody. Anne was later

interviewed by DCYF, the Pawtucket Police Department, and the Office of the

Attorney General; subsequently, Anne was examined by Amy Goldberg, M.D., an

attending pediatrician at Hasbro Children’s Hospital subspecializing in the area of

child-abuse pediatrics. Doctor Goldberg testified to a reasonable degree of medical

certainty that her evaluation of Anne was consistent with child sexual abuse.

On November 23, 2020, a grand jury returned a four-count indictment. As set

forth on the verdict form, defendant was charged with committing the following acts

against Anne: count 1, on or about September 11, 2020, first-degree child

-6- molestation sexual assault, viz., fellatio, in the second-floor bedroom at his

residence; count 2, between January 1, 2015, and September 18, 2020, first-degree

child molestation sexual assault, viz., fellatio, in the second-floor bathroom at his

residence; count 3, between January 1, 2015, and September 18, 2020,

second-degree child molestation sexual assault, viz., penis to vagina, in the

second-floor bedroom at his residence; and count 4, between January 1, 2015, and

September 18, 2020, second-degree child molestation sexual assault, viz., penis to

vagina, in a second-floor bedroom at his residence. A jury found defendant guilty

on count 2, and not guilty on counts 1, 3, and 4. The trial justice sentenced defendant

to sixty years at the Adult Correctional Institutions, with thirty years to serve and the

balance suspended, with probation. This appeal ensued.

Additional relevant facts will be set forth as needed.

Analysis

I

Evidence Admitted Pursuant to Rule 404(b)

The defendant posits that the trial justice erred when he permitted testimony

concerning certain uncharged sexual misconduct: specifically that (1) defendant

engaged in sexual intercourse with Elaine when she was thirteen years old and that

Elaine was fifteen years old when she gave birth to Anne; and (2) defendant

-7- committed acts of sexual misconduct against Anne during visits to Virginia and the

Dominican Republic. The defendant was not charged with these events.

Issues concerning a trial justice’s decision to admit or exclude evidence are

examined under an abuse-of-discretion standard. See State v. Rainey, 175 A.3d 1169,

1182 (R.I. 2018). “If the evidence was admitted under Rule 404(b), then ‘this Court

is disinclined to perceive an abuse of discretion so long as the record contains some

grounds for supporting the trial justice’s decision.’” Id. (deletion omitted) (quoting

State v. Cavanaugh, 158 A.3d 268, 279 (R.I. 2017)).

Rule 404(b) of the Rhode Island Rules of Evidence provides:

“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.”

It is well settled that “Rule 404(b) prohibits the admission of evidence of other

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

with which he or she is currently charged.’” State v. Mitchell, 80 A.3d 19, 28 (R.I.

2013) (brackets omitted) (quoting State v. Dubois, 36 A.3d 191, 199 (R.I. 2012)).

Thus, “the state may not offer evidence of a defendant’s other sexual misconduct ‘to

prove that the defendant is a bad man, and that he has a propensity toward sexual

offenses and, therefore, probably committed the offenses with which he is charged.’” -8- Id. (brackets omitted) (quoting State v. Mohapatra, 880 A.2d 802, 806 (R.I. 2005)).

However, Rule 404(b) permits “the introduction of evidence of other bad acts if

offered for other purposes, such as proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake.” Id. In situations involving

uncharged allegations of sexual misconduct, this Court has “consistently

distinguished evidence of other sexual misconduct involving the complainant from

that involving different victims.” Id. at 29 n.8; see also State v. Coningford, 901

A.2d 623, 627 n.5 (R.I. 2006) (“This Court has refused to extend the ‘lewd

disposition’ exception to admit testimony of persons other than the victim in a

particular case.”); Mohapatra, 880 A.2d at 806 n.4 (noting that “the lewd disposition

exception ‘is almost universally recognized in cases involving proof of prior

incestuous relations between the defendant and the complaining victim’”) (quoting

State v. Tobin, 602 A.2d 528, 532 (R.I. 1992)). Accordingly, we adhere to our

precedent and separately examine the Rule 404(b) appellate issues in light of the

foregoing principles.

A

Uncharged Sexual Misconduct Involving Elaine

During a motion in limine, the state sought to admit testimony concerning

defendant’s uncharged sexual escapades with three young girls, pursuant to Rule

404(b). Specifically, the state sought to procure testimony from Elaine that

-9- defendant engaged in sexual intercourse with her in 2007 or 2008, when she was

eleven or twelve years old and defendant was twenty-six or twenty-seven years old;3

from Dorothy that defendant engaged in sexual intercourse with her in 2003, when

she was thirteen years old and defendant was approximately twenty-two years old;

and from another woman that defendant engaged in sexual intercourse with her in

2004, when she was fourteen years old and defendant was approximately

twenty-three years old. Relatedly, the state also sought to introduce testimony that

Elaine was fifteen years old when she gave birth to Anne. All three lurid

indiscretions occurred in jurisdictions where the age of consent was at least sixteen

years of age.

The state proffered that defendant’s past sexual exploits were sufficiently

similar and nonremote to the charges in the indictment, and that the uncharged sexual

misconduct demonstrated “a common plan or scheme with young girls to sexually

gratify himself by penetrating the vagina of these other women.” The state also

argued that second-degree child molestation sexual assault required the state to

demonstrate that defendant committed the assault for purposes of sexual

gratification.

3 During the trial, Elaine testified that she was about thirteen years old when defendant engaged in sexual intercourse with her. - 10 - The defendant objected and asserted that the past sexual encounters were not

sufficiently similar to the charged sexual misconduct. In particular, defendant

argued that Anne was at most eight years old when the charged sexual misconduct

occurred, but that the uncharged sexual misconduct occurred with girls who were in

their “double digits,” meaning as applied to this matter, between the ages of eleven

and fourteen. The defendant averred that unlike Anne, who is his biological

daughter, the uncharged encounters all resulted from romantic relationships that

eventually resulted in children. Montero also maintained that the nature of the sexual

acts was dissimilar—the indictment charged sexual touching and fellatio—but the

uncharged sexual misconduct involved sexual intercourse only. Finally, defendant

suggested that the uncharged sexual misconduct occurred in 2003, 2004, and 2010,

but the indictment charged sexual misconduct during the time period between

January 1, 2015, and September 18, 2020. Accordingly, defendant argued that the

sexual misconduct charged in the indictment was too remote and dissimilar and that

the testimony should be excluded pursuant to Rules 403 and 404(b).

After hearing arguments, the trial justice allowed Elaine’s testimony, reserved

decision on Dorothy’s testimony,4 and precluded testimony regarding the third

encounter. In so doing, the trial justice noted the similarities between the charged

4 During its case in chief, the state called Dorothy as a witness but did not attempt to elicit testimony concerning defendant’s sexual encounters with her. - 11 - and the uncharged sexual misconduct, observing that “there’s a significant nexus

between someone who is 5 to 8 years old and someone who is 11 to 12 years old.

They’re both extremely young.” The trial justice continued that Anne is Elaine’s

daughter, a family member, and found that the nature of the misconduct allegedly

committed against Anne was “similar enough,” and that Elaine was going to testify

in this case. With respect to this latter point, the trial justice reasoned that jurors will

be able to observe Elaine’s youthful appearance when she testifies and jurors will be

able “to compute what her age would have been at the date of [Anne’s] birth,

therefore her sexual intercourse.” Defense counsel renewed the objection during

trial, which the trial justice overruled.

When considering the propriety of Rule 404(b) evidence concerning

uncharged sexual misconduct with someone other than the complainant, this Court

requires a three-step inquiry. First, “when the evidence offered proves prior sexual

misconduct with someone other than the complainant, ‘nonremote similar sexual

offenses’ are admissible under the exceptions of Rule 404(b).” Mohapatra, 880 A.2d

at 806 (quoting State v. Jalette, 119 R.I. 614, 627, 382 A.2d 526, 533 (1978)).

Second, the uncharged evidence “is admissible only when that exception is relevant

to proving the charge lodged against the defendant, and only when reasonably

necessary.” Rainey, 175 A.3d at 1182 (quoting Mohapatra, 880 A.2d at 806). Third,

“if the trial justice allows the evidence, he or she ‘must instruct the jury on the limited

- 12 - purpose for which the evidence may be considered.’” Id. (quoting Mohapatra, 880

A.2d at 806).5 “In deciding whether to allow the jury to hear Rule 404(b) evidence,

the trial justice has to balance relevance against remoteness and the potential for

improper prejudicial impact.” State v. Perez, 161 A.3d 487, 495 (R.I. 2017) (brackets

and deletion omitted) (quoting State v. Hopkins, 698 A.2d 183, 186 (R.I. 1997)).

Nonremoteness and Similarity

This Court has declared that “when a defendant’s prior sexual misconduct

against persons besides the complainant is introduced, it ‘must be sufficiently similar

and contemporaneous to support a ruling of admissibility by the trial justice.’”

Rainey, 175 A.3d at 1182 (quoting Mohapatra, 880 A.2d at 806). “Both the

similarity and contemporaneousness of the acts are required for a common purpose:

5 This three-part inquiry is not a newly minted test, but rather, as our opinion indicates, the analysis is taken directly from this Court’s precedent. To be sure, prior to the adoption of the Rules of Evidence in 1987, this Court adhered to the common law. See, e.g., State v. Jalette, 119 R.I. 614, 624, 382 A.2d 526, 531-32 (1978); State v. Pignolet, 465 A.2d 176, 179-80 (R.I. 1983). However, in the nearly forty intervening years, the common-law principles discussed in cases that preceded the adoption of the Rules of Evidence, such as Jalette and Pignolet, have been abrogated and replaced with Rule 404(b) of the Rhode Island Rules of Evidence, as interpreted by this Court. As discussed infra, in this case, the trial justice determined that Elaine’s testimony was admissible pursuant to certain textual exceptions recognized in Rule 404(b) and we likewise conclude that Elaine’s testimony was admissible “to show a common scheme, plan, or modus operandi to molest young [girls].” State v. Coningford, 901 A.2d 623, 628 (R.I. 2006). Any suggestion that we have departed from our Rule 404(b) jurisprudence or allowed Elaine’s testimony to be admitted despite recognizing a Rule 404(b) exception is misplaced.

- 13 - to ‘establish a close relationship between the evidence of other bad acts and the crime

charged.’” Id. (brackets and deletion omitted) (quoting State v. Brigham, 638 A.2d

1043, 1045 (R.I. 1994)). We have also expressed that “[o]ur case law does not

consider ‘nonremote’ and ‘similar’ to be distinct requirements, and instead the two

are born from the same concept and proven in the same manner; that is, ‘offenses

will be considered sufficiently nonremote and similar when they are closely related

in time, place, age, family relationships of the victims, and the form of the sexual

acts.’” Id. (brackets omitted) (quoting Mohapatra, 880 A.2d at 806). After carefully

reviewing the record, we are satisfied that the trial justice did not abuse his discretion

when he determined that the limited testimony concerning defendant’s uncharged

sexual intercourse with Elaine when she was about thirteen years old satisfied the

nonremote and similar test.

As the trial justice astutely observed, Anne and Elaine were both

extraordinarily young at the time of defendant’s actions; Elaine testified that she was

about thirteen years old when defendant engaged in sexual intercourse, and Anne

was eight years old at the time the last charged assault allegedly occurred in

September 2020. Although the trial justice supportably concluded that Anne’s and

Elaine’s ages were “pretty close” when defendant committed the sexual misconduct,

we are in full agreement with the trial justice that the ages in both situations were

similar because “[t]hey’re both extremely young.” See State v. Perry, 182 A.3d 558,

- 14 - 569-70 (R.I. 2018) (“The victims were of similar ages, between nine and twelve

years old, when defendant’s sexual abuse occurred.”); Coningford, 901 A.2d at 628

(“Although Roger [approximately fourteen years old] was slightly older than the

other two boys [seven and eight years old] at the time of his encounter with

defendant, all three boys were at what may be considered a vulnerable age that would

possibly make them less resistant to defendant’s unwelcome advances and less likely

to report the incidents to the authorities.”).

The nature of the uncharged and charged sexual misconduct, while not

identical, was similar in that the uncharged act involved penile penetration of Elaine

while the charged act concerned defendant positioning himself on top of Anne and

rubbing his penis on her vagina—just short of penetration. In considering this aspect

of the Rule 404(b) analysis, “we are not concerned with whether the incidents were

exactly the same, nor with whether they contained uncannily similar facts.” Perry,

182 A.3d at 570 (quoting Rainey, 175 A.3d at 1183); see also Mohapatra, 880 A.2d

at 807-08 n.5 (“The actual sexual contact need not be identical to be considered

sufficiently similar to be admitted into evidence.”).

Here, defendant engaged in sexual intercourse with Elaine and forced Anne

to perform fellatio until he ejaculated. The defendant also positioned himself on top

of Anne and rubbed his penis on his daughter’s vagina. It suffices that in both the

uncharged and charged situations, defendant’s penis touched the vagina of a young

- 15 - girl and penetrated her mouth or vagina. See Rainey, 175 A.3d at 1183 (“[T]he

manner of abuse was similar with each victim in that both cases involved

penetration, successful or otherwise.”).6

Finally, contrary to defendant’s argument, the time period between the

uncharged and charged events is sufficiently nonremote. “Remoteness is relative,

depending upon the circumstances and the conduct in question.” State v. Baptista,

894 A.2d 911, 915 (R.I. 2006) (quoting State v. Pignolet, 465 A.2d 176, 181 (R.I.

1983)). The defendant’s sexual encounters with Elaine began in approximately

2009, six years before the onset of the time period charged in the indictment when

his daughter was just over three years old. We have previously held that time spans

between charged and uncharged misconduct ranging from approximately ten years,

see Hopkins, 698 A.2d at 186, eleven to fifteen years, see Rainey, 175 A.3d at 1183,

and thirteen to nineteen years, see Perry, 182 A.3d at 569 n.6, satisfied the

6 Although defendant’s prior sexual exploits with Elaine did not involve an incestual relationship, we recognize that a trial justice’s Rule 404(b) determination must be based on the totality of circumstances. Here, among other similarities, the sexual misconduct involving Anne and Elaine “suggest[s] a predilection for much younger females who may be both less resistant to his unwelcome advances and less likely to report the incidents to authorities.” State v. Mohapatra, 880 A.2d 802, 808 (R.I. 2005); see also State v. Rainey, 175 A.3d 1169, 1183 (R.I. 2018) (concluding that based on the totality of circumstances sexual misconduct involving defendant’s daughter and the daughter of defendant’s girlfriend were sufficiently similar and nonremote). We are satisfied that the trial justice did not abuse his discretion in determining otherwise.

- 16 - remoteness inquiry. We are satisfied that the trial justice issued a carefully limited

ruling concerning this evidence and did not abuse his discretion when he determined

that the sexual misconduct perpetrated upon Elaine and Anne was sufficiently

similar and nonremote.

Relevant and Reasonably Necessary

To be admissible under Rule 404(b), “the evidence must also be relevant to

the crime charged and reasonably necessary.” Perry, 182 A.3d at 570 (brackets

omitted) (quoting Rainey, 175 A.3d at 1185). Pursuant to Rule 401, “relevant

evidence” is “evidence having any tendency to make the existence of any fact that

is of consequence to the determination of the action more probable or less probable

than it would be without the evidence.” Rainey, 175 A.3d at 1185-86 (quoting Perez,

161 A.3d at 497). Rule 402 also provides that “all relevant evidence is admissible.”

Id. at 1186 (brackets omitted) (quoting Perez, 161 A.3d at 497). Accordingly, “the

relevancy bar is quite low.” Id. (deletion omitted) (quoting Perez, 161 A.3d at 497).

This Court has often recognized that “when a defendant is charged with

second-degree molestation, similar incidents involving other victims are admissible

to demonstrate the defendant’s intent to sexually gratify.” Perry, 182 A.3d at 570

(quoting Mitchell, 80 A.3d at 29). This is so because “[t]o be found guilty of

second-degree child molestation, defendant’s contact with the victim must be

committed with the purpose of ‘sexual arousal, gratification, or assault.’”

- 17 - Mohapatra, 880 A.2d at 808 (quoting § 11-37-1(7)); see § 11-37-1(7) (defining

“sexual contact” as “the intentional touching of the victim’s or accused’s intimate

parts, clothed or unclothed, if that intentional touching can be reasonably construed

as intended by the accused to be for the purpose of sexual arousal, gratification, or

assault”). Indeed, we have “held that evidence of a defendant’s prior sexual

misconduct may be necessary for the state to show that the defendant’s intent in

touching the victim was for sexual gratification and to disprove that the improper

touching was accidental or innocent.” Coningford, 901 A.2d at 629.

Here, Montero was charged with two counts of second-degree child

molestation sexual assault; as such, Elaine’s testimony that defendant previously

engaged in similar acts of sexual misconduct with a similarly-aged young girl was

“relevant to demonstrate [his] specific intent to self-gratify.” Perry, 182 A.3d at 570.

This conclusion accords with our precedent. See, e.g., Mitchell, 80 A.3d at 29

(“Although defendant asserts that intent was not at issue in this case, defendant was

charged with five counts of second-degree child molestation. Second-degree

molestation is a specific-intent crime that requires the state to prove beyond a

reasonable doubt that the defendant touched the victim ‘for the purpose of sexual

arousal, gratification, or assault.’”) (quoting Coningford, 901 A.2d at 630);

Coningford, 901 A.2d at 629 (“[T]he jury could infer, from the evidence of similar

incidents involving two other young boys, that defendant’s intent in touching [the

- 18 - complainant] was for the purpose of sexual arousal or gratification.”); Mohapatra,

880 A.2d at 808 (“The fact that similar incidents occurred with different women

tends to prove defendant’s intent to touch [the complainant] for the purpose of sexual

gratification.”).

Additionally, Elaine’s testimony fits comfortably within the Rule 404(b)

exception “to show a common scheme, plan, or modus operandi to molest young

[girls].” Coningford, 901 A.2d at 628. In Hopkins, we concluded that the

defendant’s prior sexual misconduct was admissible pursuant to multiple Rule

404(b) exceptions and demonstrated that “when given the opportunity, [the

defendant] had a motive, an intent, and a plan to abuse children of like age in a like

manner to that in which he abused his stepson when they were under his control or

influence.” Hopkins, 698 A.2d at 185; see also Pignolet, 465 A.2d at 182 (observing

that uncharged sexual acts committed by the defendant were “relevant, material, and

highly probative of defendant’s lecherous conduct toward these young girls over

whom he exercised discipline, control, and supervision”).

Since Hopkins, this Court has remained steadfast in its determination that

nonremote and similar sexual misconduct is relevant “to show a larger pattern of

behavior adverse to young girls, demonstrating a plan.” Rainey, 175 A.3d at 1186.

For example, we recognized that “all three boys were at what may be considered a

vulnerable age that would possibly make them less resistant to defendant’s

- 19 - unwelcome advances and less likely to report the incidents to the authorities,”

Coningford, 901 A.2d at 628, and that the difference in complainants’ ages

compared with the defendant’s age “does suggest a predilection for much younger

females who may be both less resistant to his unwelcome advances and less likely

to report the incidents to authorities,” Mohapatra, 880 A.2d at 808. See also Rainey,

175 A.3d at 1186 (“[T]estimony ‘was indicative of the defendant’s lecherous

conduct toward girls over whom he exercised discipline, control, and supervision.’”)

(brackets and deletion omitted) (quoting Perez, 161 A.3d at 497). Thus, the trial

justice did not abuse his discretion when he concluded that Elaine’s testimony was

relevant.

With respect to whether Elaine’s testimony was reasonably necessary, this

Court has recognized that “[w]hen charges of sexual abuse hinge upon a credibility

contest between defendant and child complainant, relevant evidence of prior sexual

misconduct is reasonably necessary to support the complainant’s testimony.”

Mohapatra, 880 A.2d at 808. We later elucidated that

“this is a case in which the evidence revealed a crime committed in private with a significant lapse of time between the sexual assaults and the prosecution. The credibility of the complainant was placed at center stage. We therefore are persuaded that this evidence meets the test of relevancy and necessity to the state’s case. It is not cumulative.” Cavanaugh, 158 A.3d at 280.

- 20 - In the case at bar, we are faced with circumstances similar to those presented

in Hopkins, Rainey, Perez, Cavanaugh, Mohapatra, and others. Anne testified to

sexual misconduct committed by her father, defendant. The indictment charged four

separate acts of sexual misconduct, three of which occurred during the expansive

time period between January 1, 2015, and September 18, 2020, a span that coincides

with when Anne was between three and eight years old. No physical evidence or

third-party eyewitness testimony corroborated Anne’s testimony and, critically, the

defense theory in this case “was that the sexual assaults never occurred.” Perez, 161

A.3d at 497; see also Rainey, 175 A.3d at 1186 (“Anna’s credibility, then, is at

‘center stage,’ and Beth’s testimony corroborates Anna’s rendition that defendant

engaged in a pattern of sexual abuse of girls to whom he was a father figure.”);

Mitchell, 80 A.3d at 29 (“[T]he evidence of defendant’s touching Selina was

reasonably necessary to support Hannah’s credibility.”); Hopkins, 698 A.2d at 187

(“[T]he trial justice was entitled to conclude that the uncharged acts of sexual

misconduct that were offered * * * were ‘reasonably necessary’ to prove the

prosecution’s case, which largely turned on a credibility battle between [the

defendant] and his stepson.”). Because defendant placed Anne’s credibility at

“center-stage,” we discern no abuse of discretion with the trial justice’s

determination that Elaine’s testimony was reasonably necessary.

- 21 - Limiting Instruction

The Rule 404(b) analysis further requires that “when such evidence is

admitted, the trial justice must instruct the jury on the limited purpose for which the

evidence may be considered.” Rainey, 175 A.3d at 1187 (quoting State v. Merida,

960 A.2d 228, 239 (R.I. 2008)). “We undergo a review of jury instructions on a de

novo basis.” State v. Thibedau, 157 A.3d 1063, 1072 (R.I. 2017) (quoting State v.

Martin, 68 A.3d 467, 473 (R.I. 2013)).

Here, after overruling defendant’s Rule 404(b) objection, the trial justice

immediately instructed the jury:

“But ladies and gentlemen, I want to let you know that you’re about to hear -- you have heard testimony concerning the conduct, more testimony about conduct for which Mr. Montero is not charged.

“Mr. Montero is before you only for incidents allegedly occurring with [Anne], we know that. He is not on trial for incidents that may have occurred earlier with this woman, [Elaine]. The conduct for which, the conduct which you are hearing and which you’re likely to hear if this goes on, is to be considered by you only for a specific purpose, and it’s up to you as to whether or not you wish to consider it at all. You must consider it only, if at all, to show that the defendant’s motive, conduct, opportunity, preparation or plan, if any, as it relates to acts with [Anne], as described in her testimony. You may consider this testimony for no other purpose than that limited purpose as I had instructed you.

“Again, Mr. Montero is not on trial for the particular acts which he may have had with [Elaine], which are being described.” (Emphasis added.) - 22 - The defendant objected to this instruction, claiming that it was inaccurate, which the

trial justice overruled. The defendant also moved to pass the case, which the trial

justice denied.

On appeal, Montero suggests that the instruction failed to comply with Jalette,

in which this Court instructed that “[i]n its charge the trial court should not take a

scatter-shot approach and list all of the exceptions to the exclusionary rule. Rather,

it shall designate with particularity the specific exceptions to which the ‘other

crimes’ evidence is relevant and delete from its charge the remaining exceptions.”

Jalette, 119 R.I. at 627-28, 382 A.2d at 533.

While defendant suggests that the trial justice’s instruction was overly broad

in its inclusion of five Rule 404(b) exceptions, we have perceived no error in the use

of a similar instruction. See Rainey, 175 A.3d at 1187 (“[Y]ou may consider the

testimony only as it relates to defendant’s motive, his opportunity, his intent,

preparation, [or] his plan * * *.”) (brackets and deletion omitted). In light of the trial

justice’s compliance with the relevant restrictions on admitting Rule 404(b)

evidence, we conclude that the admission of Elaine’s testimony was not error. See

Thibedau, 157 A.3d at 1073 (“[The trial justice] properly informed the jury that it

could not consider the uncharged acts of sexual misconduct as evidence of

defendant’s bad character or his propensity to commit sexual acts. He then

- 23 - delineated four specific uses for which the evidence might be considered, all of

which are permissible uses under Rule 404(b).”).

Rule 403

Rule 403 provides that “[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.” (Emphasis added.)

When examining evidence pursuant to Rule 403, a trial justice must “not only

examine the evidence in the context of the case on trial, but * * * balance the

evidence to determine whether its probative force is substantially outweighed by the

danger of unfair prejudice.” Rainey, 175 A.3d at 1188 (deletion omitted) (quoting

Cavanaugh, 158 A.3d at 281).

On appeal, we employ the same abuse-of-discretion standard as recited above;

“the admissibility of evidence is 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

discretion is apparent.” Perry, 182 A.3d at 571 (brackets omitted) (quoting Rainey,

175 A.3d at 1187). This Court has also recognized “that a trial justice’s discretion

to exclude evidence under Rule 403 must be used sparingly, and it is only when

evidence is marginally relevant and enormously prejudicial that a trial justice must

- 24 - exclude it.” Id. at 572 (brackets omitted) (quoting State v. McDonald, 157 A.3d

1080, 1092 (R.I. 2017)); see also Thibedau, 157 A.3d at 1073.

The defendant claims that Elaine’s testimony was irrelevant and precluded by

Rule 403 because it “was all but certain to lead the jury to conclude that Mr. Montero

had a history of engaging in sexual activity with underage girls and risk[ed] him

being convicted based on impermissible propensity evidence.”7 As discussed,

Elaine’s testimony was highly relevant, probative, and reasonably necessary due to

the similarity and nonremoteness in the sexual misconduct perpetrated by defendant.

When faced with similar circumstances, we rejected the defendant’s Rule 403

argument and recognized that “the implication that defendant had a predilection for

girls of this age * * * is enormously relevant to his common scheme or plan of

abusing young girls.” Rainey, 175 A.3d at 1188.

7 Separately, defendant claims that the trial justice violated Rule 403 of the Rhode Island Rules of Evidence when his decision to allow Elaine’s testimony was partially motivated by his comment that “every time you use one of these rules you hide the truth from the jury, and how much should the jury know about the real facts.” The defendant overlooks the context of the trial justice’s statement and, importantly, the next sentence in which the trial justice acknowledged “[i]f it’s inherently prejudicial, of course it shouldn’t come in.” In any event, defense counsel failed to object to the trial justice’s remark, which would have brought the issue to the forefront and permitted the trial justice the opportunity to elucidate on the comment. Accordingly, this asserted issue is waived and we have no occasion to consider it. See, e.g., State v. Tavares, 312 A.3d 449, 458 (R.I. 2024) (“As we have said on innumerable occasions, a litigant cannot raise an objection or advance a new theory on appeal if it was not raised before the trial court.”) (quoting State v. Barros, 148 A.3d 168, 172 (R.I. 2016)). - 25 - We note at the outset of this analysis that the trial justice minimized the unfair

prejudice by restricting the Rule 404(b) evidence to a single witness—Elaine—the

child’s mother; articulating limiting instructions on the use of Rule 404(b) evidence,

including an instruction that the uncharged sexual misconduct could not be used as

a basis for a guilty verdict; and providing the jury with a detailed verdict form, which

specified that all charges brought against defendant involved Anne, arose between

January 1, 2015, and September 18, 2020, and occurred on the second floor of

defendant’s residence. As both the trial justice and defense counsel recognized, the

actual impact of Elaine’s testimony that she was a young girl when defendant

engaged in sexual intercourse and when she became pregnant with Anne was

obvious in her youthful appearance from the witness stand.8

8 The trial justice’s remark that the jury could glean from Elaine’s youthful appearance that she was a young girl when she became pregnant with Anne was set forth earlier in this opinion. During Elaine’s testimony, defense counsel acknowledged at sidebar:

“The longer this witness is on the stand with her appearance, and I would note for the record that she appears very young, and I’ve learned informally through the [s]tate that she’s approximately 25 years old, because she gave birth to [Anne] when she was 15, and [Anne] is now ten years old.

“So the longer she’s on the stage with the witness stand, it hurts the defendant * * *.” - 26 - Finally, in light of the jury’s acquittal on three of the four charges set forth in

the indictment, we are not persuaded that defendant’s conviction was based on

unfairly prejudicial evidence. See Perry, 182 A.3d at 572 (observing that “most

evidence offered at trial is inherently prejudicial * * * only unfairly prejudicial

evidence is barred under Rule 403”) (brackets omitted) (quoting State v. Cook, 45

A.3d 1272, 1280 (R.I. 2012)). For these reasons, we are satisfied that the trial justice

did not abuse his discretion in determining that the probative value of Elaine’s

testimony was not substantially outweighed by unfair prejudice.

B

Uncharged Sexual Misconduct Involving Anne

During a motion in limine, the state sought to admit testimony from Anne that

defendant committed additional uncharged acts of sexual misconduct against her

during a family vacation to Virginia and while she was in the Dominican Republic.

According to the state, the uncharged sexual misconduct occurred during the time

span identified in the indictment, provided context concerning the charges set forth

in the indictment, demonstrated a common plan or scheme, and evidenced

defendant’s lewd disposition toward Anne. The state also submitted that the

uncharged sexual misconduct evidence was necessary to prove defendant committed

second-degree child molestation and that such actions were committed for purposes

of sexual gratification.

- 27 - Montero objected to the admissibility of this evidence and argued that the

uncharged sexual misconduct evidence was unnecessary due to the nature of the

charges set forth in the indictment and that the uncharged sexual misconduct did not

fall within a Rule 404(b) exception. The defendant also asserted that the uncharged

sexual misconduct was inadmissible pursuant to Rule 403.

The trial justice allowed the state to submit evidence pertaining to uncharged

sexual misconduct against Anne in Virginia and the Dominican Republic, but

expressly limited such evidence to the time period set forth in the indictment and

instructed that the evidence be used sparingly and limited to “a brief discussion of

several sentences.” In so doing, the trial justice determined that the uncharged sexual

misconduct was necessary to establish defendant’s lewd disposition toward Anne

and also demonstrated a common scheme, intent, and predilection on behalf of

defendant. Defense counsel twice renewed this objection during trial—separately

when testimony concerning the incidents in Virginia and the Dominican Republic

were elicited—which the trial justice overruled.

Under Rule 404(b), “evidence of other not too remote sex crimes with the

particular person concerned in the crime on trial may be introduced to show the

accused’s lewd disposition or intent towards the person.” In re Andrey G., 796 A.2d

452, 457 (R.I. 2002) (deletion omitted) (quoting State v. Gomes, 690 A.2d 310, 316

(R.I. 1997)). Such evidence is subject to additional considerations:

- 28 - “First, the evidence should be used sparingly and only when reasonably necessary. Jalette, 119 R.I. at 627, 382 A.2d at 533. Other-acts evidence should be excluded if it is merely cumulative. Id. Second, the evidence is only to be admitted when the exception is relevant to proving the charges lodged against the [defendant]. Id. Finally, a trial court should designate with particularity the specific exception to which the evidence is relevant and instruct the jury concerning the limited use for which the evidence is to be considered. Id. at 627-28, 382 A.2d at 533.” Id. at 457-58 (quoting Gomes, 690 A.2d at 316-17).

We conclude that the trial justice did not abuse his discretion when he declared that

these prerequisites were satisfied.

First, the trial justice expressly recognized the need to use the uncharged

sexual misconduct evidence “sparingly.” He limited reference to the uncharged

episodes occurring in Virginia and the Dominican Republic during the period of the

indictment—between January 1, 2015, and September 18, 2020—and instructed the

state to limit its examination on this topic to “several sentences.” The state complied

with these directives.

This evidence was also reasonably necessary and not cumulative. This Court

has stated that “in the context of sexual assault cases, ‘when charges of sexual abuse

hinge upon a credibility contest between defendant and a child complainant, relevant

evidence of prior sexual misconduct is reasonably necessary to support the

complainant’s testimony.’” State v. Watkins, 92 A.3d 172, 184 (R.I. 2014) (brackets

omitted) (quoting Mitchell, 80 A.3d at 29). We have also recognized that “evidence

- 29 - of other not too remote sex crimes with the particular person concerned in the crime

on trial may be introduced to show the accused’s lewd disposition or intent towards

the person.” In re Andrey G., 796 A.2d at 457 (deletion omitted) (quoting Gomes,

690 A.2d at 316); see also State v. Morey, 722 A.2d 1185, 1189 (R.I. 1999)

(observing “an almost universally recognized exception to Rule 404(b) for the

admission of evidence of uncharged sexual misconduct to show lustful disposition

or sexual propensity”) (quoting State v. Toole, 640 A.2d 965, 971 (R.I. 1994)); State

v. Mulcahey, 762 A.2d 1214, 1217 (R.I. 2000) (“Since Jalette, this Court has upheld

the admission of uncharged acts of sexual misconduct against the victim to establish

the perpetrator’s ‘lewd disposition’ toward that victim under circumstances that are

relevant to proving the charged act of sexual misconduct.”). The uncharged sexual

misconduct was not cumulative but rather established defendant’s common scheme,

plan, intent, and lewd disposition toward Anne.

Second, the trial justice explained the relevancy of the uncharged sexual

misconduct:

“[T]his evidence for [Anne] [is] necessary in order to show a scheme, in order to show defendant’s intent, predilection. They may prove, they are likely to prove the propensity for lewdness, depending on the credibility of the witness and they also go to show the credibility of the witness * * *.”

As noted supra, the trial justice’s recognition concerning the relevancy of this type

of evidence comports with our precedent. - 30 - Finally, the trial justice identified the relevant Rule 404(b) exceptions and

properly instructed the jury. As the state was about to solicit testimony that

defendant penetrated Anne’s mouth with his penis during a family vacation in

Virginia, the trial justice instructed the jury:

“You’re about to hear some testimony or you may hear some testimony about conduct in which Mr. Montero was not charged. He was charged for events in Rhode Island. He is not on trial for other events. And therefore, you are to consider his conduct and his testimony in Rhode Island, and it’s up to you to determine, as you hear the other testimony you must consider this testimony only for limited reasons. You must consider this evidence only to show if the defendant has another motive * * *. What the defendant’s motive may be, his intent, opportunity, preparation and his plan, if any. The [c]ourt is not saying that there is any motive, opportunity or preparation.” (Emphasis added.)

When the state later questioned Anne concerning the uncharged sexual misconduct

committed in the Dominican Republic, the trial justice rendered a similar instruction:

“[W]e are again getting into areas that are uncharged. [The defendant] is not charged for any acts that occurred in the Dominican Republic. The defendant is not charged. I’m going to allow this for the limited purpose that I indicated to you before.

“Please consider this evidence only to show the defendant’s motive, intent, opportunity, preparation and plan, if there is any.” (Emphasis added.)

After the close of evidence, the trial justice again instructed:

“Prior uncharged acts, * * * [Anne] talked about other incidents with her father for which he is not charged, those - 31 - prior uncharged acts should not be used to show the defendant’s propensity, but you may use those prior acts to show motive, intent, opportunity, preparation or plan, if any.”9 (Emphasis added.)

The trial justice’s thrice-given cautionary instruction ably complied with our

precedent. See Thibedau, 157 A.3d at 1073 (“[The trial justice] properly informed

the jury that it could not consider the uncharged acts of sexual misconduct as

evidence of defendant’s bad character or his propensity to commit sexual acts. He

then delineated four specific uses for which the evidence might be considered, all of

which are permissible uses under Rule 404(b).”); Baptista, 894 A.2d at 916 (“When

a trial justice complies with the rules set out in Jalette, the admission of uncharged

sexual conduct is highly discretionary.”). Furthermore, although defendant contends

that the trial justice failed to designate with particularity the relevant Rule 404(b)

9 After the close of evidence, the trial justice initially provided a jury instruction that did not state that “those prior uncharged acts should not be used to show the defendant’s propensity.” The defendant objected to the absence of this verbiage and the trial justice re-instructed the jury, including the above-quoted language. After rendering the revised final jury instructions, a sidebar ensued during which neither party posed an objection to the revised jury instructions. Based on our review of the entire transcript, we do not view defendant’s failure to object as waiving the argument that the trial justice’s instructions failed to comply with our admonition that “in its charge the trial court should not take a scatter-shot approach and list all of the exceptions to the exclusionary rule. Rather, it shall designate with particularity the specific exceptions to which the other crimes evidence is relevant and delete from its charge the remaining exceptions.” State v. Thibedau, 157 A.3d 1063, 1072 (R.I. 2017) (brackets omitted) (quoting Jalette, 119 R.I. at 627-28, 382 A.2d at 533). Throughout the transcript, it is clear that this argument was preserved.

- 32 - exceptions and instead instructed the jury on “a slew of possible options,” as we

explained supra, we discern no error in the trial justice’s designation of five Rule

404(b) exceptions.

Montero also ascribes that the uncharged sexual misconduct testimony

describing the Virginia and the Dominican Republic incidents contravened Rule

403.10 We disagree.

Contrary to defendant’s suggestion, Anne’s testimony that defendant

perpetrated other uncharged acts of sexual misconduct in Virginia and the

Dominican Republic, including fellatio, was not unfairly prejudicial, did not have

only “marginal probative value,” and did not endanger confusing the jury. Rather,

as discussed herein, this uncharged sexual misconduct “served to display

defendant’s lewd disposition or intent toward the very person alleging the acts with

which he was charged.” Baptista, 894 A.2d at 915. This evidence was highly

probative of defendant’s lewd predilection toward Anne, see Thibedau, 157 A.3d at

10 The defendant maintains that “[i]nstead of balancing, the trial justice did the opposite when he declared [for a second time that]: ‘[A]lthough the rules don’t encourage it, the [c]ourt always prefers, particularly that the witness in chief, tell as much of the story as is relevant. That we get the entire story from her to the best of her ability.’” The defendant failed to object to the trial justice’s remark, which would have brought the issue to the forefront and permitted the trial justice to elucidate on the comment. Accordingly, this asserted issue is waived and we have no occasion to consider it. See, e.g., Tavares, 312 A.3d at 458. - 33 - 1072, and that his conduct was for purposes of sexual arousal and gratification.

Additionally, we have recognized that “in the context of sexual assault cases, ‘when

charges of sexual abuse hinge upon a credibility contest between defendant and a

child complainant, relevant evidence of prior sexual misconduct is reasonably

necessary to support the complainant’s testimony.’” Watkins, 92 A.3d at 184

(brackets omitted) (quoting Mitchell, 80 A.3d at 29).

Here, the uncharged sexual misconduct was relevant to proving defendant’s

“lewd disposition” toward Anne as well as her credibility, particularly in light of

Montero’s defense that he never committed the charged acts of sexual misconduct.

The Rule 404(b) evidence was used sparingly and only as reasonably necessary. See

supra; see also Rainey, 175 A.3d at 1188 (“[T]he implication that defendant had a

predilection for girls of this age * * * is enormously relevant to his common scheme

or plan of abusing young girls.”). We are satisfied that the trial justice did not abuse

his discretion when he admitted evidence of the uncharged sexual misconduct that

occurred in Virginia and the Dominican Republic.

II

Prior Consistent Statements

Montero avers that the trial justice erred when he permitted testimony

concerning certain prior consistent statements despite the absence of any claims of

recent fabrication. The defendant directs our attention to Christine’s and Dorothy’s

- 34 - testimony, both of whom were permitted to repeat the allegations as related to them

by Anne. Although defendant timely objected and asserted that neither Christine’s

nor Dorothy’s testimony was permissible pursuant to Rule 801(d)(1)(B) of the

Rhode Island Rules of Evidence, it is undisputed that defendant did not—at the time

that the testimony was given—rely upon the temporal requirement of recent

fabrication as the basis for the objections. Dorothy completed her testimony that

day, and Christine completed her testimony the following day. At the conclusion of

Christine’s testimony, defense counsel moved to pass the case and argued—for the

first time—that Christine’s and Dorothy’s testimony was precluded under Rule

801(d)(1)(B) due to the absence of evidence that Anne’s allegations were motivated

by a recent fabrication. The defendant maintained that “[a]t all times the defense in

this case has been that the fabrication started right at the beginning, or that there’s

something not credible about [Anne], right from the beginning.” As such, Montero

asserted that the putative motivation to fabricate the allegations of sexual misconduct

preceded the prior consistent statements and that, therefore, Christine’s and

Dorothy’s testimony was impermissible and the motion to pass should have been

granted.11

11 Having not raised the temporal requirement at the time the testimony was elicited, we assume that this issue is properly before the Court in the context of the trial justice’s denial of the motion to pass. We note that the state has not developed an argument that this issue is waived. See Drew v. State, 198 A.3d 528, 530 (R.I. 2019) - 35 - With respect to evidentiary issues, “questions as to the admissibility vel non

of evidence are confided to the sound discretion of the trial justice.” State v. Aponte,

317 A.3d 745, 749 (R.I. 2024) (quoting State v. Mercurio, 89 A.3d 813, 818 (R.I.

2014)). It is also “within the sound discretion of a trial justice to grant or to deny a

motion for a mistrial.” Gomes, 690 A.2d at 317. “When a trial justice rules on such

a motion, his or her denial is accorded great weight by this [C]ourt and will not be

overturned on appeal unless it is clearly wrong.” Id.

“It is well settled that out-of-court statements offered for their truth are

inadmissible unless a recognized exemption or exception applies.” Aponte, 317 A.3d

at 750. Rule 801(d)(1)(B) provides, in relevant part, “that a statement is excluded

from the definition of hearsay if ‘the declarant testifies at the trial or hearing and is

subject to cross-examination concerning the statement, and the statement is * * *

consistent with the declarant’s testimony and is offered to rebut an express or

implied charge against the declarant of recent fabrication or improper influence or

motive * * *.’” Id. (emphasis added) (brackets omitted) (quoting R.I. R. Evid.

801(d)(1)(B)).

As this Court has observed, “Rule 801(d)(1)(B) ‘does not accord weighty,

nonhearsay status to all prior consistent statements,’ a witness’s ‘prior consistent

(mem.) (observing that failure to meaningfully develop an appellate argument constitutes waiver). - 36 - statements may not be admitted to counter all forms of impeachment or to bolster

the witness merely because she has been discredited.’” Aponte, 317 A.3d at 750

(quoting State v. Briggs, 886 A.2d 735, 751 (R.I. 2005)). “Instead, the recent

fabrication language in Rule 801 creates a temporal requirement: the consistent

statements must have been made before the alleged influence, or motive to fabricate,

arose.” Id. (emphasis added) (quoting Briggs, 886 A.2d at 751).

In State v. Kholi, 672 A.2d 429 (R.I. 1996), we examined certain out-of-court

statements, which the defendant argued were inadmissible hearsay. Kholi, 672 A.2d

at 437-38. Specifically, the defendant suggested multiple motivations for the false

accusation: (1) the declarant’s desire that her mother remain in Rhode Island, (2) the

declarant’s wish that she not reside with her biological father, (3) the declarant’s

hope that her mother would divorce the defendant, and (4) the declarant’s intent to

file a civil action against the defendant in order to receive compensation from a state

fund. See id. at 438. We concluded that the first three motivations preceded the

declarant’s utterance, “rendering them ineffective in qualifying the statements as

admissible.” Id. The fourth asserted motivation to fabricate, however, postdated the

out-of-court declaration. Id. Because the out-of-court statement “rebutted the

defendant’s charge and predated any purported motive to seek compensation,” we

determined that the declaration satisfied the temporal requirement of Rule

801(d)(1)(B) and the prior consistent statement was properly admitted. Id.; see also

- 37 - Briggs, 886 A.2d at 751 (“[T]he ‘recent fabrication’ language in Rule 801 creates a

temporal requirement: ‘The consistent statements must have been made before the

alleged influence, or motive to fabricate, arose.’”) (brackets omitted) (quoting Tome

v. United States, 513 U.S. 150, 158 (1995)).

Here, defendant asserts that no evidence was submitted that suggests a recent

motivation for Anne to fabricate the allegations of sexual misconduct. Rather,

Montero is steadfast that Anne’s motivation to fabricate the sexual misconduct

allegations preceded the out-of-court disclosures to Christine and Dorothy and

emanates from being separated from her mother and brought to the United States.

The defendant maintains that he “never suggested that a new, intervening motive to

fabricate her claim arose after she reported the alleged abuse to [Christine] and

[Dorothy] * * *.” The record does not support defendant’s claim.

Contrary to defendant’s proposal, it is apparent that he asserted a new

motivation to fabricate in the days before trial, and well after Anne’s out-of-court

statements to Christine and Dorothy. For example, during cross-examination,

defense counsel questioned Anne concerning meeting with the prosecution days

earlier in an effort to prepare for trial. Anne was also questioned concerning a gift—

Play-Doh—that this ten-year-old received from one of the prosecutors in the days

leading to trial. While lengthy, we reference an excerpt from defendant’s closing

- 38 - argument to dispel any notion that he had not argued that Anne’s allegations were

motivated by recent fabrications:

“Also, not for nothing, she’s clearly rehearsed and rehearsed well. * * * So the prosecutor spoon fed [Anne] her testimony so she would say the words that the prosecution wanted you to hear. She told you, [Anne] told you that she had gone over the questions with the prosecutor at least three times before she testified. “* * * “And think about it, what [Anne] has experienced since she made this complaint, right? Any time she’s been asked to repeat the answers to the questions, she’s probably gotten a good girl, right? I know, I know this is hard for you, good girl. Right? Just imagine the special treatment she gets from every adult that she encounters. Not to mention now she lives in the Dominican with who? Her mom. “And this started immediately after [Christine] and [Beth] talked to [Dorothy] and continuing right up until last week. She’s a special girl. Now, I’m not saying she’s a bad person. But it is extremely possible that these allegations come from something other than sexual assault, and you have no way to tell the difference.” (Emphases added.) Under similar circumstances alleging a motive for recent fabrication, we

expressed that

“we are satisfied that the trial justice did not err when he found that defendant’s cross-examination of Jane suggested the potential for improper influence in preparation for trial. The record discloses that defense counsel both directly and indirectly implied that Jane was coached by the prosecution and the police. Because it is undisputed that Jane’s statements to [the DCYF - 39 - investigator] preceded her meetings with the prosecution and police, the trial justice correctly ruled that the statement came within the purview of Rule 801(d)(1)(B) and was, therefore, admissible.” State v. Barkmeyer, 949 A.2d 984, 1005-06 (R.I. 2008).

Our holding in Barkmeyer is equally applicable in this matter because Christine and

Dorothy both testified concerning Anne’s out-of-court declarations of charged

sexual misconduct, which preceded at least one putative motivation to fabricate. See

Kholi, 672 A.2d at 438. The trial justice did not abuse his discretion when he denied

the motion to pass.

III

Admissibility of the Travel Records

The defendant challenges the trial justice’s decision to admit international

travel records from the United States Department of Homeland Security, which, in

pertinent part, detail the date and time Montero and Anne entered or departed the

United States through Customs. According to defendant, the state admitted the

travel records into evidence without presenting the official who prepared the travel

records in violation of the right to confrontation protected by the Sixth Amendment

to the United States Constitution and article I, section 10 of the Rhode Island

Constitution. We disagree.

“When a criminal defendant claims on appeal that the introduction of certain

evidence violated his constitutional rights of confrontation and cross-examination,

- 40 - we review such an evidentiary ruling in a de novo manner.” State v. Roscoe, 198

A.3d 1232, 1244 (R.I. 2019) (quoting State v. Moten, 64 A.3d 1232, 1238 (R.I.

2013)). “Both the Sixth Amendment to the United States Constitution (through the

Fourteenth Amendment) and article 1, section 10, of the Rhode Island Constitution

guarantee individuals accused of criminal charges the right to confront and

cross-examine any adverse witnesses who testify against them.” Id. at 1244-45

(quoting State v. Dorsey, 783 A.2d 947, 950 (R.I. 2001)).

In Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme

Court departed from its precedent concerning the Confrontation Clause. The

Supreme Court held that the Confrontation Clause bars admission of testimonial

hearsay in a criminal case unless the declarant is unavailable and the accused has

had a prior opportunity for cross-examination. Crawford, 541 U.S. at 68. As this

Court later recognized, “[a] statement is testimonial if it is ‘a solemn declaration or

affirmation made for the purpose of establishing or proving some fact.’” State v.

Ramirez, 936 A.2d 1254, 1266 (R.I. 2007) (quoting Davis v. Washington, 547 U.S.

813, 824 (2006)). In the years after Crawford, the Supreme Court elucidated the

testimonial or nontestimonial distinction in the context of a police interrogation and

relied upon what has become known as the primary purpose test:

“Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. - 41 - They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Davis, 547 U.S. at 822.

In Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), a defendant charged

with drug offenses challenged several “certificates of analysis,” which verified that

the seized substance had been tested and determined to be cocaine. See

Melendez-Diaz, 557 U.S. at 308. At trial, the defendant objected to the admission

of the certificates and asserted that the Confrontation Clause required the analysts to

appear in person and testify. Id. at 309. The Supreme Court agreed and explained

that “[t]he documents at issue * * * while denominated by Massachusetts law

‘certificates,’ are quite plainly affidavits: ‘declarations of facts written down and

sworn to by the declarant before an officer authorized to administer oaths.’” Id. at

310 (brackets omitted) (quoting Black’s Law Dictionary 62 (8th ed. 2004)). Relying

upon its precedent, the Supreme Court added that “[t]he ‘certificates’ are

functionally identical to live, in-court testimony, doing ‘precisely what a witness

does on direct examination’” and that the certificates were “made under

circumstances which would lead an objective witness reasonably to believe that the

statement would be available for use at a later trial[.]” Id. at 310-11 (first quoting

Davis, 547 U.S. at 830; then quoting Crawford, 541 U.S. at 52).

- 42 - In this respect, it is crucial that the United States Supreme Court has indicated

that business and public records are generally not considered testimonial because

they are “created for the administration of an entity’s affairs and not for the purpose

of establishing or proving some fact at trial * * *.” Melendez-Diaz, 557 U.S. at 324.

However, if a business or public record is “prepared specifically for use at * * *

trial,” it is testimonial. Id. Thus, the Supreme Court in Melendez-Diaz made clear

that it did “not hold, and it is not the case, that anyone whose testimony may be

relevant in establishing the chain of custody, authenticity of the sample, or accuracy

of the testing device, must appear in person as part of the prosecution’s case.” Id. at

311 n.1.

After Melendez-Diaz, the Supreme Court further expounded upon its

Confrontation Clause jurisprudence, recognizing that when

“the primary purpose of an interrogation is to respond to an ‘ongoing emergency,’ its purpose is not to create a record for trial and thus is not within the scope of the Clause. But there may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony. In making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant. Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.” Michigan v. Bryant, 562 U.S. 344, 358-59 (2011).

- 43 - As the Supreme Court later summarized, “[i]n the end, the question is whether, in

light of all the circumstances, viewed objectively, the ‘primary purpose’ of the

conversation was to ‘create an out-of-court substitute for trial testimony.’”12 Ohio v.

Clark, 576 U.S. 237, 245 (2015) (brackets omitted) (quoting Bryant, 562 U.S. at

358); see id. at 240 (“Because neither the child nor his teachers had the primary

purpose of assisting in [the] prosecution, the child’s statements do not implicate the

Confrontation Clause and therefore were admissible at trial.”); State v. Lopez, 45

A.3d 1, 12 (R.I. 2012) (“Although the United States Supreme Court has not

definitively or exhaustively articulated the definition of a testimonial statement, it

recently has indicated that a document created primarily or ‘solely for an evidentiary

purpose, * * * made in aid of a police investigation, ranks as testimonial.’”) (footnote

omitted) (quoting Bullcoming v. New Mexico, 564 U.S. 647, 664 (2011)). We deem

this limitation determinative of the issue before us.

In the case at bar, defendant ignores the primary purpose test, heavily relies

upon Melendez-Diaz, and posits that the state’s failure to present the official(s)

12 The United States Supreme Court warned that “the primary purpose test is a necessary, but not always sufficient, condition for the exclusion of out-of-court statements under the Confrontation Clause.” Ohio v. Clark, 576 U.S. 237, 246 (2015). For instance, the Supreme Court has “recognized that the Confrontation Clause does not prohibit the introduction of out-of-court statements that would have been admissible in a criminal case at the time of the founding.” Id. - 44 - responsible for creating the travel records deprived him of his right to confrontation.

The defendant is mistaken.

Special Agent Michael Polouski’s testimony unequivocally demonstrates that

the travel records were primarily “created for the administration of an entity’s affairs

and not for the purpose of establishing or proving some fact at trial—they are not

testimonial.” Melendez-Diaz, 557 U.S. at 324. Special Agent Polouski explained

that he had been an agent with the Department of Homeland Security since its

inception in March 2003. He detailed that “when individuals enter the United States

and depart the United States, U.S. Customs and Border Protection documents those

instances in their databases,” that he was familiar with how travel records are

maintained, and that “for the past couple decades [travel records] have been

maintained in computer databases.” Special Agent Polouski added that when a

traveler “appl[ies] for entry at a port of entry, they’re examined by [a] United States

Customs Officer, and the passport is examined * * * and [if] they are found to have

a bona fide reason, that application is granted, then the documents and passports are

scanned into the Department of Homeland Security database; the date, the place that

they enter or exited and the classification under which they were granted entry or

- 45 - exit.” Importantly, Special Agent Polouski testified that this process is

“automatic.”13

Based upon our careful review, we are satisfied that defendant proffers no

evidence or argument, nor does the record contain such evidence, that the travel

records were “created for * * * the purpose of establishing or proving some fact at

trial * * *.” Melendez-Diaz, 557 U.S. at 324; see, e.g., United States v. Noria, 945

F.3d 847, 857 (5th Cir. 2019) (“[W]e agree with the Ninth and Eleventh Circuits that

the forms’ primary purpose is administrative, not investigative or prosecutorial.

After all, immigration agents prepare an I-213 every time they encounter an alien

suspected of being removable, regardless of whether that alien is ever criminally

prosecuted or civilly removed.”). Accordingly, we discern no error in the trial

justice’s determination that defendant’s right to confrontation was not violated.14

13 Special Agent Polouski’s testimony also establishes that the travel records were excluded from the hearsay rule and admissible pursuant to Rule 803(6) of the Rhode Island Rules of Evidence, the “business-records exception.” The trial testimony details that the travel records were “regularly maintained in the course of a regularly conducted business activity,” “the source of the information [was] a person with knowledge,” “the information [was] recorded contemporaneously with the event or occurrence,” and “the party introducing the record * * * provide[d] adequate foundation testimony.” State v. Adams, 161 A.3d 1182, 1199 (R.I. 2017) (quoting Martin v. Lawrence, 79 A.3d 1275, 1282 (R.I. 2013)); see also R.I. R. Evid. 803(6). 14 The defendant also contends that the trial justice predetermined his guilt in midtrial as evidenced by the trial justice’s comment during a colloquy on the admission of the travel records that “[w]e all know you can prove [c]ount 1.” This remark appears to be in the context of proving the date on which count 1 occurred, but in any event, defendant failed to object to the trial justice’s remark, which would have brought the - 46 - IV

The So-Called Batson Challenge

The defendant contends that the trial justice erred when he excused a

prospective juror for cause. The prospective juror, whom defendant describes as

Hispanic, alerted the jury commissioner on the first day of jury selection and advised

that her ten-year-old daughter tested positive for COVID-19 the prior day. During

a sidebar, the prospective juror indicated that her daughter was symptomatic, she

was the sole caregiver, another household member (her boyfriend) had also tested

positive for COVID-19, and another household member (a daughter) had not tested

positive. At the time of the sidebar, the prospective juror had not tested positive.

The trial justice overruled defendant’s objection and excused the prospective juror

for cause, explaining that the court had the responsibility to ensure the health and

safety of other prospective jurors.

Immediately after excusing the prospective juror, defense counsel renewed

the objection and argued that the court “should make every effort to keep people

who are non Caucasian on the jury for the benefit of diversity * * *.” The trial justice

responded that defendant’s argument raised the specter of Batson v. Kentucky, 476

U.S. 79 (1986), but the trial justice nonetheless recognized that neither party had

issue to the forefront and permitted the trial justice to elucidate on the comment. Accordingly, this asserted issue is waived and we have no occasion to consider it. See, e.g., Tavares, 312 A.3d at 458. - 47 - exercised a peremptory challenge based upon ethnicity or national origin but rather,

the court excused the prospective juror for cause. The trial justice added that at the

time he was notified about the COVID-19 concern, he was unaware of the

prospective juror’s background and “the overriding concern of the [c]ourt at this

point has to be for the safety and health of the other jurors * * *.” Accordingly, the

trial justice overruled defendant’s Batson-styled objection.

On appeal, Montero argues that this issue must be viewed through a Batson

framework and that because the prospective juror was not ill, had been vaccinated,

and neither party was seeking to excuse the prospective juror, the trial justice erred.

The defendant maintains that because the trial justice’s reasons for excusing the

prospective juror were not sufficient, “a racial motive was driving”; in other words,

the excusal was racially motivated. We reject this contention.

As a threshold matter, multiple United States Circuit Courts of Appeals have

determined that Batson does not apply to a trial justice’s excusal for cause. See

Infante v. Martel, 953 F.3d 560, 564-65 (9th Cir. 2020) (“Batson’s three-step

framework was never intended to assess a judge’s decision to remove a juror for

cause. If Infante’s defense counsel had raised a Batson objection, it would have

compelled the judge to perform the impracticable task of ruling on whether his own

jury strike was racially discriminatory.”); United States v. Elliott, 89 F.3d 1360,

1364-65 (8th Cir. 1996) (“Batson applies only to peremptory strikes. We know of

- 48 - no case that has extrapolated the Batson framework to for-cause strikes. There is

simply no legal basis for this argument, which fails to recognize that peremptory

strikes, for which no reasons need be given (absent a Batson challenge), are different

from challenges for cause, which by definition require a showing of cause.”); United

States v. Blackman, 66 F.3d 1572, 1575 n.3 (11th Cir. 1995) (“But, no authority

suggests Batson extends to the area of challenges for cause.”); United States v.

Bergodere, 40 F.3d 512, 515-16 (1st Cir. 1994) (“Next, the defendant must show

that the challenge was peremptory rather than for cause, thus bringing into play the

Supreme Court’s admonition that ‘peremptory challenges constitute a jury selection

practice that permits those to discriminate who are of a mind to discriminate.’”)

(quoting Batson, 476 U.S. at 96). We likewise conclude that a Batson challenge

does not apply to a trial justice’s decision to excuse a juror for cause.

Despite the foregoing conclusion, we nonetheless observe that “[t]he

determination of the disqualification of a juror for cause is left to the discretion of

the trial justice.” State v. Hazard, 785 A.2d 1111, 1122 (R.I. 2001). It should be

carefully exercised. Considering the circumstances before us, we are satisfied that

the trial justice did not abuse his discretion when he excused the prospective juror in

an effort to protect the health and safety of other prospective jurors and court staff

from the effects of COVID-19.

- 49 - Conclusion

For the reasons stated, we affirm the judgment of conviction. The papers in

this case are remanded to the Superior Court.

Justice Long, concurring. I concur with the disposition of this appeal as

decided by my colleagues in the majority. However, I write separately because I

conclude that the trial justice abused his discretion in admitting Elaine’s testimony

regarding prior uncharged acts of sexual misconduct involving Mr. Montero, yet the

error was harmless. I also write separately to express my concerns with the state of

this Court’s jurisprudence concerning Rule 404(b) of the Rhode Island Rules of

Evidence, which are similar to those expressed by Justice Robinson.

The Advisory Committee Notes adopted in 1987 alongside our Rules of

Evidence describe Rule 404(b) as a “rule of exclusion.” The rule is subject to certain

narrow exceptions derived either from the text of the rule or from our caselaw. See

generally State v. Jalette, 119 R.I. 614, 382 A.2d 526 (1978). Our caselaw has

modestly expanded the typical rules barring evidence of other crimes, wrongs, or

acts in cases of sexual abuse. See id. at 627, 382 A.2d at 533. This Court’s seminal

case, State v. Jalette, recognized the common-law tradition that “evidence which in

any way shows or tends to indicate that the accused has committed another crime

completely independent of that for which he is on trial, even though it be a crime of - 50 - the same type, is irrelevant and inadmissible.” Id. at 624, 382 A.2d at 531. Evidence

of other sexual behavior is admissible, however, “when it tends to show one of the

exceptions [such as intent or motive] and only when that exception is relevant to

proving the charge lodged against the defendant.” Id. at 627, 382 A.2d at 533.

Notwithstanding the liberalization of the Court’s exclusionary rule in Jalette, the

Court was “extremely conscious that the indiscriminate use of ‘other crimes’

evidence poses a substantial risk to an accused’s right to a fair trial.” Id. (emphasis

added). Consequently, the Court warned that trial justices should admit the evidence

“sparingly * * * and only when reasonably necessary.” Id.

Several years after this Court’s decision in Jalette, we decided State v.

Pignolet, 465 A.2d 176 (R.I. 1983). That case adopted a modest expansion of the

Jalette exception in instances where the state seeks to introduce evidence of an

uncharged crime involving a person other than the complainant, when the uncharged

crime is similar to the charged act; we reasoned that such evidence is admissible

when it tends to show the defendant’s ongoing pattern of behavior and lewd

disposition toward the complainant. Pignolet, 465 A.2d at 180-82; State v.

Quattrocchi, 681 A.2d 879, 886 (R.I. 1996). That expansion, though at the time

characterized by the author of Jalette as the death of Jalette, see Pignolet, 465 A.2d

at 184 (Kelleher, J., dissenting), was later recognized as

“the extreme beyond which [this Court was] unwilling to extend the other-crimes * * * exception because of its - 51 - overwhelming prejudice to defendant and its tendency to be viewed by the trier of fact as evidence that defendant is a bad man, and that he has a propensity toward sexual offenses and, therefore, probably committed the offense with which he is charged.” Quattrocchi, 681 A.2d at 886 (reversing trial court’s admission of evidence of prior sexual behavior where the evidence was irrelevant to prove one of the recognized exceptions to Rule 404(b)).

Notwithstanding the historically narrow understanding of the circumstances

under which evidence of sexual conduct involving persons other than the

complainant is admissible, and the narrow contexts under which the rule would be

modified to admit probative evidence of other sexual acts, our law has slowly

retreated from strict adherence to the exclusionary principles embodied in Rule

404(b). In State v. Hopkins, 698 A.2d 183 (R.I. 1997), one year after having decided

Quattrocchi, the Court recast the rule and its exclusionary purpose; rather than

circumscribing the admission of this evidence to protect against the prejudice

warned of in Jalette, Pignolet, and Quattrocchi, the Court held that evidence of

uncharged acts of alleged sexual abuse is admissible “for any relevant ‘other

purpose’ besides proving ‘the character of [the accused],’” subject to a limiting

instruction. Hopkins, 698 A.2d at 185. Although the majority in Hopkins

nevertheless assessed whether the evidence in that case fit within any of the

recognized 404(b) exceptions, it liberalized the close connection that the

Jalette-Pignolet rule required between a recognized 404(b) exception and

other-crimes evidence. See id. - 52 - That liberalization ultimately leads to today’s description of a three-part

inquiry to determine the admissibility of this evidence; this newly described test

allows evidence of nonremote, similar uncharged sexual offenses to be admitted as

long as they are relevant to proving the charged crime and “reasonably necessary[,]”

even if the evidence does not meet one of the recognized exceptions under Rule

404(b). That rule seems, to me, circular and confusing. Today’s opinion continues

to expand the “other purpose[s]” for which such evidence is admissible,

transforming Rule 404(b) into a rule of inclusion. The Court’s continued weakening

of the close connection that Jalette, Pignolet, and Quattrocchi required between

evidence of an uncharged act and a recognized exception under 404(b) fails to

protect the interests that underpin the purpose of Rule 404(b)’s exclusionary rule—

namely, that “evidence of other sexual behavior is, by its very nature, uniquely apt

to arouse the jury’s hostility” and, as a result, lead to a verdict guided by animosity

rather than evidence. Jalette, 119 R.I. at 627, 382 A.2d at 533.

While Hopkins and cases after it have paid lip service to the exclusionary

principle embodied in Jalette, Pignolet, Quattrocchi, and Rule 404(b), I am

compelled to conclude that the Court’s continued weakening of the close connection

between an uncharged act and a recognized Rule 404(b) exception, and replacement

of that protection with a rule of reasonable necessity, has resulted, and will continue

to result, in far more evidence of this type being admitted than the

- 53 - Jalette-Pignolet-Quattrocchi Courts would have allowed. See Hopkins, 698 A.2d at

186. The majority declares in footnote 5 that Jalette and its progeny have been

abrogated by Rule 404(b), as interpreted by this Court. Quattrocchi, however, was

decided after the rules were adopted and yet relied on Jalette and Pignolet to warn

against further liberalization of the standards surrounding prior bad act evidence in

sexual assault cases. See Quattrocchi, 681 A.2d at 886. Against this backdrop and

given this Court’s historical reliance on Jalette in myriad cases discussing Rule

404(b), including those cited by the majority, I cannot agree that we have abrogated

any of Jalette’s principles, common law or otherwise.

The majority provides citations to certain exceptions to Rule 404(b) that it

believes justifies the admission of Elaine’s testimony, but I fail to see how admitting

her testimony under those exceptions avoids the propensity-type reasoning that Rule

404(b) is designed to avoid. The majority states that the evidence was “reasonably

necessary” to prove the state’s case, namely by showing a “common scheme” or

“plan” to molest young girls. But analysis of the final step of the three-part inquiry—

showing why evidence of a “common scheme” or “plan” is relevant to proving the

charge lodged against defendant—is absent from the analysis. The majority

nevertheless shores up its necessity analysis by declaring that the “common scheme”

or “plan” evidence is relevant to credibility and assists in showing a larger pattern

of abusive treatment toward young girls, but, to me, that assessment simply

- 54 - encourages use of the evidence for a purpose prohibited under Rule 404(b). R.I. R.

Evid. 404(b) (stating that evidence of other acts “is not admissible to prove the

character of a person in order to show that the person acted in conformity

therewith”). It is no surprise that evidence of other sexual assaults is, broadly

speaking, “reasonably necessary” to prove a present charge of sexual assault, but I

believe that the cases which form the foundation of our exclusionary rule in this

context require a stronger connection between the other crimes evidence and the case

at bar—I do not believe the connection has been adequately established in this case.

The Court’s test adopts a version of the admissibility standard for

sexual-assault evidence contained in the Federal Rules of Evidence, but without

employing the process for formally adopting a modification to our rules. See Fed.

R. Evid. 413, 414 (allowing courts to admit evidence of prior instances of sexual

assault or child molestation in cases involving claims of the same and permitting that

evidence to be considered on any matter to which it is relevant). But if this Court

wants to amend our Rules of Evidence to deem evidence of uncharged acts in

sexual-assault cases categorically or presumptively admissible, it is free to do so on

its own accord. See G.L. 1956 § 8-6-2. In fact, adopting the Court’s current test

and/or sexual-assault-case specific Rule 404(b) exceptions through the rulemaking

process would provide relevant stakeholders a meaningful say in the modification of

evidentiary rules and would lend those rules an element of finality that this Court’s

- 55 - evolving understanding of Rule 404(b) lacks. Absent such a step, however, I believe

we are bound to keep the exclusionary purpose of this rule in mind and remember

the narrow permissible uses of this evidence under the Jalette and Pignolet cases.

See Hopkins, 698 A.2d at 190 (Weisberger, C.J., dissenting).

Applying that more-cabined approach to the evidence presented in this case,

I would conclude that Elaine’s testimony was improperly admitted. Adhering to a

narrow view of the rule that is one of exclusion, evidence of uncharged acts of sexual

assault is admissible only when the uncharged acts are nonremote from the charged

crime, similar to the charged crime, and relevant to prove an exception recognized

under Rule 404(b), which itself must be relevant to prove the charged crime. See

Quattrocchi, 681 A.2d at 885-86; Jalette, 119 R.I. at 627, 382 A.2d at 533. Here,

Elaine’s testimony was too dissimilar to the charged crime and thus not admissible

under Rule 404(b). See Hopkins, 698 A.2d at 186 (recognizing that, as the similarity

between the uncharged act and the charged crime decreases, the effectiveness of the

evidence to show propensity increases). The events happened at another time, in a

starkly different geographic location, to a child of a relevantly dissimilar age, who

was in a significantly different relationship with defendant than the complainant and

involved different types of sexual acts. See State v. Brigham, 638 A.2d 1043, 1045

(R.I. 1994) (holding that uncharged acts are admissible if they are “closely related

in time, place, age, family relationships of the victims, and the form of the sexual

- 56 - acts”) (quoting Pignolet, 465 A.2d at 181-82); see also Quattrocchi, 681 A.2d at

885-86. But see Pignolet, 465 A.2d at 180-81 (detailing the similarity of the acts).

Because that evidence is too dissimilar to the charged crime, it fails to assist in

establishing any of the recognized exceptions to Rule 404(b) and serves primarily to

arouse the jury’s hostility. See Jalette, 119 R.I. at 627, 382 A.2d at 533; see also

Hopkins, 698 A.2d at 186. To my mind, the failure of Elaine’s testimony to clear

the similarity bar or meet a recognized Rule 404(b) exception compels its exclusion.

Despite my belief that the admission of Elaine’s testimony was error,

however, I concede that the error was harmless. State v. DeCosta, 293 A.3d 297, 303

(R.I. 2023) (applying harmless-error analysis to admission of Rule 404(b) evidence).

That is because, in my review of the record, I believe that the complaining witness’s

consistent and detailed testimony, in the face of rigorous cross-examination, was

sufficient for the jury to find Mr. Montero guilty of the charged crime. See State v.

Rathbun, 184 A.3d 211, 218 (R.I. 2018) (holding that, in sexual assault cases, there

is no independent requirement for corroboration of the victim’s testimony).

For this reason, I concur with the majority of the Court only with respect to

the disposition of the defendant’s specified error concerning the admission of

Elaine’s testimony.

- 57 - Justice Robinson, dissenting. I think it appropriate to begin this dissenting

opinion by quoting some especially insightful words from a significant law review

article which was published several decades ago. The passage of time has not

diminished the potency of those words; they remain as pertinent and

thought-provoking today as they were when the article was first published:

“Strongly entrenched among many American traditions is the concept that man should not be judged strenuously by reference to the awesome spectre of his past life. When one faces trial for a specific crime, he should not be held to answer for the scandal that his earlier vices would most certainly produce. * * * Evidence of other crimes and misdeeds is not excluded because of an inherent lack of probative value, but is withheld as a precaution against inciting prejudice.”1 I believe that those wise words provide a helpful background for the points that I

wish to make in this dissent.

1 M.C. Slough & J. William Knightly, Other Vices, Other Crimes, 41 Iowa L. Rev. 325, 325 (1956); see also United States v. McCourt, 925 F.2d 1229, 1235-36 (9th Cir. 1991) (referring to “a deep seated notion that our system of justice should not permit the trier of fact to infer that because someone was a bad guy once, he is likely to be a bad guy again”); United States v. Foskey, 636 F.2d 517, 523 (D.C. Cir. 1980) (“It is fundamental to American jurisprudence that a defendant must be tried for what he did, not for who he is.”) (internal quotation marks omitted); State v. Jalette, 119 R.I. 614, 627, 382 A.2d 526, 533 (1978) (“We are extremely conscious that the indiscriminate use of ‘other crimes’ evidence poses a substantial risk to an accused’s right to a fair trial.”).

- 58 - While I genuinely appreciate the prodigious amount of thought and hard work

that have gone into the composition of the majority opinion in this difficult and

troubling2 case and while I have made a sincere effort to appreciate the reasoning of

my colleagues in the majority, in the end I have concluded that I would not be true

to myself if I were to join in that opinion. Accordingly, I am filing this respectful

dissent. It is my strongly held view that the trial justice committed reversible error

when he ruled that Elaine could testify pursuant to one of the exceptions mentioned

in Rule 404(b) of the Rhode Island Rules of Evidence. That ruling allowed Elaine

to testify about defendant having engaged in acts of sexual intercourse with her in

the Dominican Republic when she was a young teenager and he was in his twenties.3

I will now proceed to explain as succinctly and as cogently as possible my strongly

held view that Elaine should not have been allowed to testify about those acts.

2 One of the many reasons why I find this case troubling is that the jury found defendant not guilty of the two counts alleging penis/vagina contact and not guilty of one of the two counts alleging fellatio with which he was charged in the indictment. In other words, he was found not guilty of all but one of the four counts in the indictment. Jury verdicts of this sort often cause me to recall Churchill’s description of Soviet Russia as being “a riddle wrapped in a mystery inside an enigma.” Winston Churchill, The Russian Enigma, BBC Broadcast (Oct. 1, 1939), available at https://winstonchurchill.org/resources/quotes/russia-2 (last visited Aug. 14, 2025). 3 As the majority opinion points out, Elaine eventually became pregnant; and at the age of fifteen she gave birth to Anne, who is the complaining witness in this quite unusual case. - 59 - I think it worthwhile first to take a step back to remind ourselves of the

profoundly important jurisprudential policy that underlies Rule 404(b)—namely, the

avoidance of criminal cases being decided on the basis of propensity. See State v.

Mohapatra, 880 A.2d 802, 806 (R.I. 2005) (“In molestation or sexual assault cases,

evidence of a defendant’s prior sexual misconduct cannot be admitted to prove that

defendant is a bad man, and that he has a propensity toward sexual offenses and,

therefore, probably committed the offenses with which he is charged.”) (internal

quotation marks omitted); State v. Brigham, 638 A.2d 1043, 1044 (R.I. 1994) (“As

a general rule, in the prosecution of a specific crime, evidence of past, unconnected,

uncharged criminal behavior is not admissible to prove a defendant’s propensity to

commit the crime charged. * * * The basis for excluding such evidence of other

crimes is the belief that the potential for creating prejudice in the minds of the jurors

outweighs its probative value.”) (internal quotation marks omitted); State v.

Lamoureux, 623 A.2d 9, 13 (R.I. 1993) (Weisberger, J.) (“In our prior cases we have

pointed out that evidence of criminal activity on the part of the accused, other than

the crime with which he or she is charged, is normally inadmissible because it is

irrelevant to prove the charge save by its indication that the defendant is a bad man

- 60 - or woman who would therefore be predisposed to commit the crime with which he

or she is charged.”).4

I also consider it important to remain acutely mindful of the actual language

of Rule 404(b), which reads as follows:

“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.” I consider it significant that Rule 404(b) begins with a broad statement as to the

non-admissibility of “[e]vidence of other crimes, wrongs, or acts” and only then

indicates that there “may” be other purposes for which such evidence could be

admitted.5 One of the potential exceptions to Rule 404(b)’s general prohibitory

4 While some may consider it conceited to quote oneself, I nevertheless wish to direct the reader’s attention to my concurring and dissenting opinion in the case of State v. Mohapatra, 880 A.2d 802 (R.I. 2005). In that opinion, I wrote at some length in order to emphasize that the purpose of Rule 404(b) of the Rhode Island Rules of Evidence and of analogous rules elsewhere is “to exclude evidence of a defendant’s alleged propensity to commit crime * * *.” Mohapatra, 880 A.2d at 811 (Robinson, J., concurring in part and dissenting in part). I also noted in that opinion that “our system seeks to focus the attention of the finders of fact on the evidence pertinent to the particular crime of which the defendant is presently charged.” Id. 5 Although this Court’s cases are not consistent as to the point, it is my firm belief that Rule 404(b) is a rule of exclusion, not inclusion. See, e.g., State v. Merida, 960 A.2d 228, 232 n.8 (R.I. 2008) (“It should at all times be remembered * * * that Rule 404(b) is fundamentally a rule of exclusion.”); State v. Garcia, 743 A.2d 1038, - 61 - language is when the purpose for which admissibility is sought is to prove “plan.”

That was the exception invoked by the state in the instant case.6 See State v.

Gallagher, 654 A.2d 1206, 1210 (R.I. 1995) (noting that “[e]vidence of other prior

crimes may be allowed if it tends to establish the defendant’s * * * plan * * * with

respect to the offense charged”) (internal quotation marks omitted). However,

before such evidence of other prior crimes may be admitted into evidence, it is

required that those crimes be sufficiently similar to the crime(s) with which the

defendant has been charged. See Mohapatra, 880 A.2d at 806 (“This court

1050 (R.I. 2000) (referring to “the general exclusionary rule of Rule 404(b)”); State v. Gallagher, 654 A.2d 1206, 1210 (R.I. 1995) (discussing the exceptions “to this exclusionary rule”); State v. Chartier, 619 A.2d 1119, 1122 (R.I. 1993); State v. Lemon, 497 A.2d 713, 721 (R.I. 1985); Jalette, 119 R.I. at 624-28, 382 A.2d at 531-33. See generally Spencer v. Texas, 385 U.S. 554, 560 (1967) (stating that evidence of prior offenses is “generally recognized to have potentiality for prejudice” and noting that it is usually excluded except where a specific recognized exception applies). It is my belief that both the general principle of non-admissibility which is so clearly articulated in the first sentence of Rule 404(b) as well as the Rule’s recognition of the possibility of exceptions to that general principle play an important role in an ordered system of criminal (or civil) justice. I would simply emphasize the need for profound reflection by all judicial officers whenever a Rule 404(b) decision must be made. The decision whether to exclude evidence pursuant to Rule 404(b) or to admit that evidence pursuant to one of the exceptions can have a case-determinative effect, and caution should be the watchword. 6 The majority opinion states that “[t]he state proffered that defendant’s past sexual exploits were sufficiently similar and nonremote to the charges in the indictment, and that the uncharged sexual misconduct demonstrated ‘a common plan or scheme with young girls to sexually gratify himself * * *.’” - 62 - repeatedly has held that prior sexual misconduct, perpetrated by a defendant against

persons other than the complainant, must be sufficiently similar and

contemporaneous to support a ruling of admissibility by the trial justice.”) (emphasis

added); see also State v. Rainey, 175 A.3d 1169, 1182 (R.I. 2018).

The majority in Mohapatra discussed the similarity requirement in the

following significant sentence:

“Offenses will be considered sufficiently ‘nonremote’ and ‘similar’ when they are ‘closely related in time, place, age, family relationships of the victims, and the form of the sexual acts.’” Mohapatra, 880 A.2d at 806 (emphasis added) (quoting Brigham, 638 A.2d at 1045). In my view, the above-quoted reference to “the form of the sexual acts” is of

particular importance with respect to the similarity requirement in this case.

I am completely unable to agree with the majority that the acts of sexual

intercourse in which defendant and Elaine engaged and concerning which she was

allowed to testify were, as the majority has concluded, “sufficiently similar” to the

sexual acts referred to in the four counts of the indictment.7

It is clear to me that there is no meaningful similarity between the acts of

sexual intercourse that Elaine testified took place in the Dominican Republic

7 Several other cases have likewise explicitly referred to “the form of the sexual acts” when listing factors to be scrutinized in considering the similarity requirement. See, e.g., State v. Perez, 161 A.3d 487, 494 (R.I. 2017); State v. Pignolet, 465 A.2d 176, 181 (R.I. 1983); State v. Cardoza, 465 A.2d 200, 203 (R.I. 1983).

- 63 - beginning when she was thirteen years old8 and the sexual acts which defendant was

charged with having committed vis-à-vis his own daughter in this country several

years later.9

It should be clear to any adult that “the form of the sexual acts” to which

Elaine testified (viz., sexual intercourse) is patently not “sufficiently similar” to the

sexual acts with which defendant was charged in the indictment. It is clear from the

record that in the instant case “the form of the sexual acts” to which Elaine testified

differed greatly from those which defendant was accused of having committed. See

Mohapatra, 880 A.2d at 806. Accordingly, it is my opinion that Elaine’s testimony

should not have been admitted pursuant to the common plan or scheme exception to

Rule 404(b)’s exclusionary language.

8 I am aware, as the majority opinion points out, that the age of consent in the Dominican Republic is eighteen. Accordingly, I am fully cognizant of the fact that, even though Elaine characterized her relationship with defendant as having been “romantic,” it was nonetheless in violation of the law of that country. However, that fact is irrelevant to the evidentiary point at issue here—viz., what I consider to be the great dissimilarity between the non-forceful acts of sexual intercourse about which Elaine testified and the very different criminal sexual acts which defendant was charged with having committed in this country. Moreover, as I wish to emphasize, the relationship between defendant and Elaine was not even remotely incestuous—whereas the sexual acts which the indictment in the instant case charged defendant with having committed would have been inherently incestuous in nature. 9 It will be recalled that the indictment charged defendant with two counts of fellatio and two counts of penis/vagina contact. - 64 - In addition to the fact that the acts of sexual intercourse described by Elaine

differed from the charged acts (none of which involved intercourse), an even more

glaring difference is the fact that Anne is defendant’s daughter. In view of what was

charged, the state was required to prove that defendant engaged in sexual activity

with his own daughter. I completely fail to see how Elaine’s testimony about

defendant’s sexual intercourse with her, with there being absolutely no indication

that they were then related to one another, surmounts the similarity hurdle. As

inappropriate and violative of the law of the Dominican Republic as was the sexual

activity which Elaine testified that defendant engaged in with her when she was in

her early teen years, the reality is that she was not defendant’s daughter or other

blood relative. By contrast, the sexual activities referenced in the four charges in

this case were incestuous in nature. To my mind, that difference is enormous and is

a further powerful indication that there was not any similarity between the acts about

which Elaine testified and those for which defendant was indicted.10

It is true that this Court has “held on more than one occasion that, when a

defendant is charged with second-degree molestation, similar incidents involving

10 The fact that Anne was defendant’s daughter radically differentiates the sexual activity which he was accused of engaging in with her from the sexual activity which Elaine testified he engaged in with her. Elaine was not related to defendant when they engaged in sexual intercourse. It strikes me as fundamentally unfair to use the testimony of Elaine about non-incestuous sexual conduct in an attempt to convince the jury that defendant violated not only the positive law, but also the widely recognized social taboo against incestuous conduct. - 65 - other victims are admissible to demonstrate the defendant’s intent to sexually

gratify.” State v. Mitchell, 80 A.3d 19, 29 (R.I. 2013); see also State v. Perry, 182

A.3d 558, 570 (R.I. 2018). And it is also true that this defendant was charged with

two counts of second-degree molestation. However, as I have tried to make clear, it

is my strongly held view that the acts of sexual intercourse about which Elaine

testified are simply not similar to the perverted and incestuous deeds with which

defendant was accused of having committed. How the prosecution should have

sought to prove that the two alleged acts of penis to vagina contact were performed

by defendant with the intent to self-gratify is an issue with which I need not grapple.

What I do know is that Elaine’s testimony should not have been admitted for that or

any other prosecutorial purpose.

It is further my view that the admission of Elaine’s testimony was definitely

not harmless error. See State v. Mercurio, 89 A.3d 813, 822-23 (R.I. 2014). It is

clear to me that Elaine’s testimony portrayed defendant as being a sort of predator

with a predilection for young females. I cannot comprehend why her testimony

about sexual intercourse (albeit illegal) when she was a young teenager could be

considered similar to the vile deeds which defendant was accused of having

committed years later vis-à-vis his own young daughter. I simply do not believe that

the state can be said to have proven “beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained.” Mercurio, 89 A.3d at 822

- 66 - (quoting State v. Smith, 446 A.2d 1035, 1036 (R.I. 1982)); see also State v. Aponte,

317 A.3d 745, 754-55 (R.I. 2024); State v. Quattrocchi, 681 A.2d 879, 887 (R.I.

1996).11

I realize that some might possibly consider this to be a close case—one that

falls within the ambit of the trial justice’s discretion.12 While I do not consider the

instant case to be close, I would respectfully suggest to those who are inclined to

believe that there is sufficient similarity between the sexual acts at issue to make this

a close case that we should follow the example of the Supreme Court of Washington,

which has held that “in doubtful cases the scale should be tipped in favor of the

defendant and exclusion of the evidence.” State v. Smith, 106 Wash. 2d 772, 776,

11 Because I believe that the trial court committed reversible error when allowing Elaine to testify pursuant to Rule 404(b), I see no need to discuss at length the pertinence of Rule 403 of the Rhode Island Rules of Evidence. Nevertheless, I feel obliged to summarily indicate my conviction that Elaine’s testimony should have been barred by Rule 403 even if it had somehow surmounted the Rule 404(b) hurdle. I also believe that her testimony did not qualify as being “relevant” pursuant to Rule 401. See Cardoza, 465 A.2d at 204; Jalette, 119 R.I. at 625, 382 A.2d at 532. 12 I am well aware that trial justices are accorded considerable discretion with respect to their evidentiary rulings. See, e.g., State v. Aponte, 317 A.3d 745, 754 (R.I. 2024) (“It is well established that the decision to admit or exclude evidence rests in the sound discretion of the trial justice.”); Perez, 161 A.3d at 493; Mohapatra, 880 A.2d at 805; State v. Breen, 767 A.2d 50, 58 (R.I. 2001). Nevertheless, while being acutely appreciative of how challenging it is for a trial justice to wrestle with difficult evidentiary issues in the context of a hotly contested case such as this one, I am convinced that it was an abuse of discretion to have allowed Elaine to testify on the basis of the trial justice’s conclusion that the acts about which she testified were “similar enough” to the misconduct allegedly committed against Anne.

- 67 - 725 P.2d 951, 953 (1986) (brackets omitted) (quoting State v. Bennett, 36 Wash.

App. 176, 180, 672 P.2d 772 (1983)). Even more pertinent are the following words

of this Court in State v. Costa, 111 R.I. 602, 306 A.2d 36 (1973): “[W]e are frank to

acknowledge that the question is close, but close questions in criminal cases must

ordinarily be resolved in favor of the accused, in light of the latter’s entitlement to

the benefit of a reasonable doubt.” Costa, 111 R.I. at 611, 306 A.2d at 40-41. See

generally United States v. Santos, 553 U.S. 507, 514 (2008) (“Under a long line of

our decisions, the tie must go to the defendant.”). I see wisdom in adhering to those

principles whenever a criminal case is deemed to present a close question.

As I near the conclusion of this dissent, I wish to summarize my opinion that

it was reversible error to have admitted the testimony of Elaine for two separate and

independent reasons: (1) the sexual acts to which Elaine testified were not

sufficiently similar to the sexual acts alleged in the indictment; and (2) the sexual

acts in which defendant and Elaine participated in the Dominican Republic were not

incestuous in any sense, whereas each of the four counts in the indictment alleged

conduct that would be completely incestuous and therefore radically dissimilar to

the acts about which Elaine testified. For each of those reasons viewed separately

and, a fortiori, when the two reasons are viewed as a totality, the admission of

Elaine’s testimony was reversible error.

- 68 - I conclude this dissent by again expressing my sincere admiration for the

workmanlike nature of the majority’s comprehensive opinion. Nevertheless, I

remain convinced that Rule 404(b), as I understand it, should have constituted an

absolute bar to Elaine’s testimony.13 My strong disagreement with the majority as

to that important point has resulted in this respectful dissent.

13 Since I believe that the admission of Elaine’s testimony constitutes reversible error in and of itself, I see no reason to comment, one way or another, on defendant’s other claims of error. - 69 - STATE OF RHODE ISLAND SUPREME COURT – CLERK’S OFFICE Licht Judicial Complex 250 Benefit Street Providence, RI 02903

OPINION COVER SHEET

Title of Case State v. Miguel Montero.

No. 2023-92-C.A. Case Number (P1/20-3378A)

Date Opinion Filed August 18, 2025

Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Justices Long, JJ.

Written By Associate Justice Maureen McKenna Goldberg

Source of Appeal Providence County Superior Court

Judicial Officer from Lower Court Associate Justice Jeffrey A. Lanphear

For State:

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

George J. West, Esq.