State v. Mohapatra

880 A.2d 802, 2005 R.I. LEXIS 157, 2005 WL 1712265

• Court: Supreme Court of Rhode Island
• Decided: July 25, 2005
• Docket: 2004-21-C.A.
• Status: Published

Opinions

OPINION

WILLIAMS, Chief Justice.

The defendant, Kailash Mohapatra (defendant), appeals from a Superior Court conviction of one count of second-degree child molestation in violation of G.L.1956 § 11-37-8.3. This case came before the Supreme Court for oral argument on February 3, 2005, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After hearing the arguments of counsel and examining the memoranda filed by the parties, we are of the opinion that cause has not been shown, and proceed to decide the appeal at this time. We affirm the conviction.

I

Facts and Travel

At a jury trial in January 2003, the complainant, whom we will refer to as Ashley,¹ testified that defendant, a family friend, inappropriately had touched and kissed her on several occasions. The incident that gave rise to the criminal charges occurred in December 1997, when Ashley was thirteen years old. Ashley spent the night at a mutual friend’s home in Coventry. After the children had retired to bed and the adults started watching a movie, defendant woke Ashley to play a game of air hockey. But when the table would not work, Ashley returned to bed. The defendant laid down beside her in a twin-sized bunk bed. As Ashley lay on her side, facing the wall, defendant rubbed her breasts from behind and attempted to put his hands down her underpants — but she managed to prevent him from doing so by pressing against the wall and moving her body to evade his hand.

Ashley testified to additional incidents of inappropriate contact that occurred before the charged incident. In July 1997, defendant forcefully kissed her on the mouth with his tongue during a game of hide-and-seek at a party at Ashley’s home. In August 1997, defendant pulled her into a playroom during a birthday party at a different family friend’s house; kissed her again in a similar manner with his tongue, and also felt her vagina and buttocks over her clothes.

The trial justice admitted, over defendant’s objection, the testimony of Kim Bal-dino (Baldino), a young woman who had met defendant in early 1997 while she cared for his daughter at a child-care facility in Connecticut. The defendant invited Baldino and two of her coworkers to his house for dinner to thank them for their assistance. Although she was only eighteen- or nineteen-years-old at the time,² Baldino testified that defendant gave her and her coworkers several alcoholic beverages with dinner. After the coworkers left and defendant’s wife went upstairs after dinner, defendant persuaded her to spend the night.³ Baldino testified that defendant briefly played a pornographic tape on the television and gave her a change of clothes. Baldino began paging her coworkers with the number “9-1-1,” hoping they would return to defendant’s house. After she changed, defendant then returned to the room, reached under her shirt and bra and touched her breast. Baldino testified that her coworkers returned and she then left defendant’s home.

The jury convicted defendant on the single count of molesting Ashley. The defendant appeals, alleging several errors.

II

Analysis

A

Prior Sexual Misconduct Involving Baldino

The initial question presented on appeal is whether Baldino’s testimony concerning defendant’s prior sexual misconduct is admissible in a criminal trial charging him with child molestation. “ ‘[T]he 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.’” State v. Grayhurst, 852 A.2d 491, 504 (R.I.2004).

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

“Evidence of other crimes, wrongs, or acts is not admissible to prove the ehar-acter 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.”

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.” State v. Quattrocchi, 681 A.2d 879, 886 (R.I.1996). Instead, 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).⁴ State v. Jalette, 119 R.I. 614, 627, 382 A.2d 526, 533 (1978); accord State v. Brigham, 638 A.2d 1043, 1045 (R.I.1994). 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.” Brigham, 638 A.2d at 1045 (quoting State v. Pignolet, 465 A.2d 176, 181-82 (R.I. 1983)). Furthermore, the evidence is admissible “only when that exception is relevant to proving the charge lodged against the defendant,” and “only when reasonably necessary.” Jalette, 119 R.I. at 627, 382 A.2d at 533. Finally, the trial justice must instruct the jury on the limited purpose for which the evidence may be considered. State v. Hopkins, 698 A.2d 183, 185 (R.I.1997).

This court 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. See Brigham, 638 A.2d at 1045 (affirming the admission of evidence of prior sexual misconduct perpetrated against the victim’s sister by their stepfather because it was “probative of a plan or scheme by defendant to assault his stepdaughters prior to their thirteenth birthdays”); State v. Lamoureux, 623 A.2d 9, 10-13 (R.I.1993) (affirming the admission of evidence of prior sexual misconduct perpetrated by defendant against two different women whom he met at the same Providence nightclub, where he gained the confidence of the victims by discussing issues of common interest and then requested a ride home); State v. Cardoza, 465 A.2d 200, 203 (R.I.1983) (affirming the admission of evidence of prior sexual misconduct perpetrated against the victim’s sister during the same period of time and in the same place); State v. Pignolet, 465 A.2d at 181 (affirming the admission of evidence of prior sexual misconduct perpetrated against the victim’s sister by their stepfather because most of the events took place in the same period and all the events occurred in the same house, under the threat of violence, and while the victim’s mother was working evenings); see also Hopkins, 698 A.2d at 185-86 (affirming the admission of evidence of prior sexual misconduct perpetrated against boys of a similar age to the victim, even though the incidents of abuse occurred ten years apart, because the incidents were committed “in a like manner” against boys who “were under [defendant’s] control or influence”). In contrast, evidence of prior sexual misconduct committed against young girls other than the complainant was not admissible under Rule 404(b) because motive, intent and identity were not at issue in that particular case and “[t]he evidence had no independent relevance that was reasonably necessary in order to prove the elements of the crime charged.” Quattrocchi 681 A.2d at 887.

Turning to the case herein, defendant’s primary argument, that the age difference between Baldino and Ashley renders the two incidents dissimilar, must fail. To reiterate, the factors to be considered when comparing the charged incident and the prior sexual misconduct are “ ‘time, place, age, family relationships of the victims, and the form of the sexual acts.’ ” Brigham, 638 A.2d at 1045. We recently held in Hopkins, 698 A.2d at 185-86, that the lack of the time factor, specifically a lapse in time of ten years between the charged incident and the prior sexual misconduct, was insufficient to render evidence of that prior incident inadmissible. Here, although Baldino may have reached the age of majority at the time of the incident, similar age is but one of the factors to be analyzed when comparing the charged incident with the prior sexual misconduct.

When evaluating the remaining factors, the record supports the trial justice’s conclusion that the two incidents are “nonre-mote” and “similar.” Concerning time, both the Ashley incident and the Baldino incident occurred around 1997. Concerning place, both the charged Ashley incident and the Baldino incident occurred in a home, at night, in which young women had planned to spend the night and after members of the household had retired; a situation that afforded defendant access to and control over his victims. Concerning family relationship, both Ashley and Baldino were family friends of defendant: Ashley, through her parents’ friendship with defendant; and Baldino, through her service in caring for defendant’s children. Concerning the form of sexual act, defendant touched Ashley’s and Baldino’s breasts.⁵ Finally, though there is a meaningful difference between the age of Ashley and Baldino, their relative age, compared with 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. Furthermore, the age difference is less relevant when considering that defendant supplied alcohol to Baldino, who was under the legal drinking age.

In Hopkins, 698 A.2d at 185, we held that the defendant’s prior sexual misconduct was admissible under the Rule 404(b) common scheme or plan exception to show that when given the opportunity, Hopkins had a plan to abuse children “in a like manner to that in which he abused his stepson when they were under his control or influence.” Analogously, this defendant, seizing the opportunity presented by younger women spending the night in his presence, executed a common scheme or plan to assault two family friends in a like manner. Thus, we hold the trial justice acted within his discretion in allowing Bal-dino’s testimony to be admitted into evidence under the common plan exception to Rule 404(b).

Admissibility under Rule 404(b), however, does not end the inquiry. The evidence must be relevant to prove the crime charged. Jalette, 119 R.I. at 627, 382 A.2d at 533. To 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.” Section 11-37-1(7); see also State v. Tobin, 602 A.2d 528, 535 (R.I.1992). The fact that similar incidents occurred with different women tends to prove defendant’s intent to touch Ashley for the purpose of sexual gratification. Thus, Baldino’s testimony is relevant to prove the crime charged.⁶

The offered evidence also may be admitted only when “reasonably necessary.” Jalette, 119 R.I. at 627, 382 A.2d at 533. The defendant attacked Ashley’s credibility on cross-examination in an effort to convince the jury that the state had not proven its case beyond a reasonable doubt. When 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. Hopkins, 698 A.2d at 187. Thus, in light of defendant’s attack on Ashley’s credibility, Baldino’s testimony was reasonably necessary.

Finally, the trial justice instructed the jury in considerable detail, both after Bal-dino’s testimony and again in his final instructions, that the testimony could be used only for the limited purposes provided by Rule 404(b), and not for the general purpose of showing defendant’s propensity to commit criminal acts.⁷ In light of the preceding analysis and the trial justice’s clear instructions, we discern no abuse of discretion by the introduction of evidence of defendant’s prior sexual misconduct involving Baldino.

B

Uncharged Prior Sexual Misconduct Involving Complainant

The next question presented is whether the trial justice committed reversible error by failing to give a limiting instruction to the jury concerning uncharged sexual acts involving the complainant. Regardless of whether a defendant raises the issue at trial, the trial justice “has a sua sponte obligation ‘to offer a limiting instruction when admitting evidence of other [uncharged] sexual acts.’ ” State v. Lamphere, 658 A.2d 900, 904 (R.I.1995) (quoting State v. Toole, 640 A.2d 965, 971 (R.I.1994)). When a defendant objects to the introduction of the evidence, the trial justice’s failure to instruct constitutes reversible error. Id. at 906. When a defendant fails to object to the introduction of the evidence, however, the trial justice’s failure to instruct constitutes reversible error only if a defendant does not attempt to utilize the uncharged incidents to his or her advantage. Toole, 640 A.2d at 971.

Other than the charged incident, Ashley testified to two other incidents in which defendant touched and kissed her inappropriately: the hide-and-seek incident and the playroom incident. The trial justice failed to give a limiting instruction about either of these uncharged incidents. The defendant remained mute. Thus, this issue hinges on whether defendant utilized both incidents, either during cross-examination or in closing argument, to discredit Ashley’s testimony. An examination of the trial transcript clearly shows that defendant repeatedly utilized both incidents. When cross-examining Ashley, for example, counsel for defendant inquired as to why Ashley told her friends about both the hide-and-seek and playroom incident, but not the sleepover incident. During defendant’s closing argument, counsel for defendant argued that Ashley was not a credible witness because she may have been wrong about the specifics of the birthday party during the playroom incident and that the hide-and-seek incident occurred while others were trying to find them. Since defendant first failed to make a timely objection and then proceeded to use the prior uncharged incidents to discredit the complaining witness, we hold that the trial justice’s failure to give the limiting instruction did not constitute reversible error. See Toole, 640 A.2d at 971-72. The better practice, however, is for the trial justice to give a sua sponte instruction or, at least, to inquire whether defendant’s failure to object is an aspect' of his or her trial strategy.

C

Verdict Form

Finally, we briefly address defendant’s argument that use of the criminal information as the verdict form violated his constitutional rights. Our well settled raise-or-waive rule prevents us from addressing arguments not raised before the trial justice. See State v. Hazard, 785 A.2d 1111, 1116 (R.I.2001). The defendant’s counsel failed to object and, in fact, approved the use of the criminal information as the verdict form by saying: “I don’t see anything wrong with it the way it is.” Despite this clear acquiescence, defendant argues that the raise-or-waive rule does not apply because no rule of law existed at the time of trial on the particular issue and, thus, this issue was a “novel” one.

This is not the law. The mere fact that an issue has not yet been challenged in this jurisdiction “does not render these questions ‘novel’ for the purposes of the raise-or-waive rule.” Cronan ex rel. State v. Cronan, 774 A.2d 866, 878 (R.I.2001) (setting out the three-part test governing the exception to the raise-or-waive rule). A novel issue must be a rule of law that “ ‘counsel could not reasonably have known during the trial.’ ” Id. The defendant clearly was aware during the trial of both his constitutional right to a fair trial and the use of the criminal information as the verdict form. Thus, the defendant’s argument that the raise-or-waive rule does not apply is without merit.

Conclusion

For the reasons stated herein, we affirm the judgment of the Superior Court. The record shall be remanded to the Superior Court.

1 . This is a fictitious name.

2 . On this point, the record is less than clear. According to a police report found in the record, Baldino’s date of birth is October 22, 1977. Though she did not testify to her age at the time of the incident, she did testify that the incident occurred in the fall of 1996 or spring of 1997, which would make her either eighteen or nineteen at the time of the incident. Furthermore, the state does not dispute the fact that Baldino had reached the age of majority at the time of the incident. For these reasons, it seems evident that Baldino was either eighteen or nineteen at the time of the incident.

3 . Baldino testified that her consumption of alcohol was the primary reason she agreed to spend the night.

4 . It is helpful to clearly establish what law is not applicable to this precise issue. Related to, yet readily distinguishable from, the rule of law set out above is the "lewd disposition” exception, which governs only prior sexual misconduct committed against the "particular person,” referring to the victim. State v. Jalette, 119 R.I. 614, 627, 382 A.2d 526, 533 (1978) (citing to a California opinion clearly distinguishing the "lewd disposition” exception from the exception governing similar sexual offenses committed against persons other than the complainant). When asked to reconsider this exception after enacting the Rhode Island Rules of Evidence, we reiterated that the lewd disposition exception "is almost universally recognized in cases involving proof of prior incestuous relations between the defendant and the complaining victim.” State v. Tobin, 602 A.2d 528, 532 (R.I.1992) (quoting Getz v. State, 538 A.2d 726, 732 (Del.1988)) (emphasis added); accord State v. Chalk, 816 A.2d 413, 423 (R.I.2002).

Furthermore, we have refused to extend this exception to govern testimony of persons other than the victim. The dissenting justice in State v. Quattrocchi, 681 A.2d 879, 889 (R.I.1996), failed to convince the majority of the Court that evidence of prior sexual misconduct involving children other than the victim should be admitted "under the lewd- or lustful-disposition exception to the general rule prohibiting the introduction of uncharged bad acts as evidence of a defendant's character or propensity to commit the charged crime.”

5 . The defendant points to other differences between Baldino’s testimony and the charged incident, all of which we find unpersuasive. The defendant, for example, asserts that the fact Baldino testified to defendant’s use of alcohol is a meaningful difference. Rather, the alcohol simply was a means by which the defendant was able to convince Baldino to spend the night at his house. The fact that defendant did not need to serve Ashley alcohol, because she had already agreed to spend the night, does not render the two incidents dissimilar for the purposes of Rule 404(b) of the Rhode Island Rules of Evidence.

The defendant’s argument that there is a meaningful difference in the fact that Baldino did not testify that defendant attempted to touch her vagina, when Ashley did testify to such an attempt, stretches the bounds of credulity. The actual sexual contact need not be identical to be considered sufficiently similar to be admitted into evidence.

6 . The fact that the testimony was relevant for other purposes was the primary distinction between Hopkins and Quattrocchi. State v. Hopkins, 698 A.2d 183, 186 n. 3 (R.I.1997). Since the prior sexual misconduct to which Baldino testified clearly was relevant to the element of sexual gratification required in second-degree sexual assault, this case is distinguishable from the first-degree sexual assault charge in Quattrocchi, 681 A.2d at 879, which held evidence of prior sexual misconduct to be inadmissible.

7 . For example, the trial justice said in his final instructions to the jury:

“You have heard evidence in this trial from Kim Baldino that on another occasion the defendant allegedly was involved in other misconduct. Bear in mind that the only charge or offense before you is the offense with which this defendant is charged in this case involving [Ashley]. You may not draw any inference that this defendant committed, or is guilty of, the criminal offense with which he is charged, and for which he stands trial here before you because simply on a prior occasion he allegedly acted improperly. This is because the law says that the state cannot utilize this so-called other bad act or misconduct evidence to prove the character of a person in order to show that the person acted in conformity therewith. However, the state may introduce such evidence, and was allowed in this case to introduce such evidence, for other more limited purposes. To the extent that you decide to consider this evidence as evidence at all, it has been admitted for your consideration for the limited purpose of deciding whether the defendant acted for the purpose of sexual gratification; whether the defendant acted intentionally and not by mistake or accident; and whether the facts and circumstances of the other alleged misconduct and the offense with which the defendant is charged in this case are so similar that it is likely that the defendant committed both the other alleged misconduct and the offense with which he is charged in this case, so-called evidence of a modus operandi, or plan or scheme, which I think has been referred to as MO, modus operandi, you may not consider this evidence for any other purpose. I specifically charge you that you may not use this evidence as proof that the defendant is a bad person, and therefore probably committed the crime with which he is charged in this information. You may use it only for the limited purpose of determining if the defendant, as I've just previously instructed you, acted intentionally and for the purpose of sexual gratification in committing the offense with which he is charged or as evidence of a common plan, or scheme or modus operandi.”