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Defendant David Dubois was convicted of five counts of second-degree child molestation. The Supreme Court affirmed, holding that the trial justice (1) properly weighed the potential impact of potentially inflammatory statements from witnesses and did not exceed the bounds of his discretion in denying Defendant's motions for a mistrial; (2) did not abuse his discretion in limiting defense counsel's direct examination of two witnesses as the disallowed evidence was irrelevant and inadmissible; and (3) erred in listing lewd disposition as one of the grounds for which the jury could consider testimony concerning uncharged incidents of sexual assault, but did not err in instructing the jury that the testimony was admissible for the limited purpose of demonstrating Defendant's sexual intent.
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publication in the Rhode Island Reporter. Readers are requested to
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Present: Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.
Justice Goldberg, for the Court.
This case came before the Supreme Court on
October 26, 2011, on appeal by the defendant, David Dubois (defendant or Dubois), from a
judgment of conviction for five counts of second-degree child molestation. He was sentenced to
five concurrent terms of thirty years at the Adult Correctional Institutions, twelve years to serve
and the balance suspended, with probation. On appeal to this Court, Dubois contends that the
trial justice erred by: (1) denying the defendant‟s motions for a mistrial; (2) limiting defense
counsel‟s direct examination of two witnesses; and (3) allowing testimony concerning several
uncharged incidents of sexual assault in violation of Rules 403 and 404(b) of the Rhode Island
Rules of Evidence. For the reasons set forth in this opinion, we affirm the judgment of the
Facts and Travel
On April 18, 2007, a six-count criminal information was filed against Dubois in Superior
Court, alleging one count of second-degree sexual assault under G.L. 1956 § 11-37-4, and five
counts of second-degree child molestation in violation of § 11-37-8.3. The information charged
that the offenses occurred between 1992 and 1998.1 The complainants named in the information
were members of defendant‟s family: two sisters, Sarah and Lauren, are defendant‟s nieces by
his marriage to Dorinne Dubois (Dorinne); Emily, a cousin through defendant‟s marriage to
Dorinne; and Natalie, defendant‟s niece by his marriage to Dorinne.2 The complaining witnesses
ranged in age from approximately five to eleven years old at the time of the alleged assaults.3
The second-degree sexual assault charge, in which Natalie was the complainant, was dismissed
by the state pursuant to Rule 48(a) of the Superior Court Rules of Criminal Procedure, based on
the statute of limitations. However, the trial justice permitted Natalie to testify as a Rule 404(b)
witness for the state.
Prior to trial, the trial justice ruled on several motions in limine, including the state‟s
motion to allow testimony in accordance with Rule 404(b). The state sought to introduce the
testimony of defendant‟s niece, Natalie—the subject of count 1 of the criminal information,
which had been dismissed on statute of limitations grounds. Specifically, the state sought to
utilize evidence of three incidents of sexual misconduct: an event in a swimming pool; a second
incident in which defendant allegedly played a game of “show me yours, I‟ll show you mine;”
and a third incident—when Natalie was fourteen years old—in which defendant touched her
breasts under her shirt. The state argued that a nexus existed between the first two incidents and
Although the events occurred during the mid-1990s, all but one incident remained undisclosed
for approximately a decade.
The names of the complainants have been changed to protect their privacy.
The criminal information charged defendant with the following counts: count 1, violation of
G.L. 1956 § 11-37-4 by engaging in sexual contact by force or coercion with Natalie on diverse
dates between 1997 and 1998; count 2, violation of § 11-37-8.3 by engaging in sexual contact
with Emily on diverse dates between 1994 and 1996; counts 3, 4, and 5 all pertained to
defendant‟s violation of § 11-37-8.3 by engaging in sexual contact with Lauren on diverse dates
between 1992 and 1996; and count 6, violation of § 11-37-8.3 by engaging in sexual contact with
Sarah on diverse dates between 1993 and 1996.
those alleged by other complainants, and that the third incident was corroborative and thus
served as probative evidence.
In a careful ruling, the trial justice found that the incident when Natalie was fourteen
years old was inadmissible on the grounds that the conduct was not sufficiently similar to the
other complainants‟ allegations that were set forth in the criminal information. However, the
trial justice ruled that testimony pertaining to the two other incidents that occurred when Natalie
was a young child were admissible under Rules 403 and 404(b) because this conduct, if believed,
showed defendant‟s “intent or lewd disposition toward [Natalie] and, as a result, toward the
named complaining witnesses.” The trial justice further elaborated on the admissibility of the
uncharged incidents, stating:
“It just seems to me that as far as [Natalie] is concerned, that there
is such a connection, the same kinds of acts, playfulness, games
and so forth, the relationship with the other children, the fact that it
seems to be taking place at the defendant‟s house would all suggest
that this is the kind of household situation that you would see as
cases where [Rule] 404(b) evidence can be utilized.”
At trial, complainants Sarah and Lauren testified that defendant had acted inappropriately
toward them on several occasions when they were between the ages of five and eleven.4 Sarah
testified that defendant‟s wife, Dorinne, occasionally would babysit the girls. On one such
occasion, when Sarah was seven or eight, she was playing upstairs with Lauren, defendant and
his stepdaughter, Julie, when defendant suggested that they play hide-and-seek. Sarah testified
that when defendant opened the closet door where she was hiding, he was not wearing pants; he
told Sarah that since he had shown her his private parts, she needed to show him her “stuff.”
Sarah refused, but defendant, still pantless, told the three girls to touch each other and to touch
him. The defendant had Sarah pull down her pants and he touched her vagina, underneath her
At the time of trial, Sarah was twenty-two years old and Lauren was twenty-one years old.
underwear. Sarah also stated that she saw defendant touch Lauren‟s “boob” and that “he made
[Lauren] touch his penis.” Several months later, Sarah disclosed the incident to her uncle Ross,
but he “shrugged” it off. Years would pass before Sarah told anyone else.
Lauren testified about two separate incidents that occurred when she was between ages
five and six. In the first incident, defendant had Lauren, along with Julie, play a sexual game in
which they each went into different rooms. When defendant entered the room that Lauren was
in, he exposed his erect penis and told her to touch it and say “ooh” so the girls in the other room
could hear. About a month later, defendant played a similar hide-and-seek game with Lauren,
Julie, and Sarah, in which defendant exposed himself, had Lauren touch his penis, and he
touched Lauren‟s chest area. Lauren did not reveal the sexual misconduct until she was a
It was Sarah who first disclosed the abuse, thereby initiating a chain of events
culminating in this prosecution. At her mother‟s urging, Lauren went to work with defendant
over the summer when she was approximately fifteen years old. Lauren testified that she did not
want to work with defendant that summer, but finally did so. Therefore, it fell upon Sarah to
explain to their father that the likely reason for Lauren‟s reluctance to work with defendant was
that defendant had sexually molested Sarah when she was younger and that Lauren would not
want to have defendant expose himself to her. Their father relayed the information to their
mother, who confronted Lauren, who then confirmed the allegations. After Sarah and Lauren
had revealed their experiences, other female family members came forward about similar
incidents involving defendant. The family then convened a meeting to confront defendant about
the abuse allegations. Sarah testified that during the confrontation defendant admitted exposing
himself, but he stated that he had seen a doctor and was on medication; he denied touching any
of the girls. After the meeting, the police were contacted, and an investigation and prosecution
At trial, the state revealed at a sidebar conference that Lauren was expected to testify
about a sexual advance defendant made toward her during the summer she worked with him, and
that the incident caused Lauren‟s relationship with defendant to sour. The trial justice prohibited
Lauren from testifying about this uncharged encounter. When the questioning continued, the
prosecutor asked Lauren what her relationship with defendant was after the summer she spent
living at his house, to which she responded that she “hated Dave.” The defendant objected and
moved for a mistrial; because Lauren had just testified that she had a good relationship with
Dubois prior to that summer, defense counsel argued that her statement that she hated him could
have implied the occurrence of an additional sexual encounter, which the trial justice had just
ruled inadmissible. The defendant argued that a cautionary instruction would not negate the
prejudicial impact of this statement. The trial justice disagreed and decided that he would give a
cautionary instruction, directing the jury to disregard Lauren‟s response about her feelings
The trial justice instructed the jury:
“Ladies and gentlemen, you recall yesterday when I gave you the
preliminary instructions, I told you that there would be times when there would be
certain responses that might be given to a question and I would have to make a
ruling and I might tell you at some point that the question is one that -- or the
answer is one that‟s going to be stricken from the record and the jury is to
disregard it. Do you remember I gave you the analogy to an unringing of a bell,
do you all recall that yesterday? And essentially, that‟s where we‟re going right
now because I‟m going to ask you to follow that guidance and that instruction as I
tell you that with regard to this witness‟ response to the question as to what her
relationship was, what her relationship with the defendant was, you are to totally
disregard her response and it is stricken from the record.”
Later in the trial, Natalie, the Rule 404(b) witness, who is defendant‟s niece by marriage,
testified for the state. Natalie was asked to recall any incidents concerning defendant that
occurred when she was approximately ten years old and that changed her relationship with
Dubois. During her direct examination, the state asked for a cautionary instruction. The trial
justice instructed the jury to bear in mind that defendant was not charged with any offense
stemming from conduct about which the witness would testify, and that the evidence was
admitted for the “limited purpose * * * of determining the defendant‟s intent or lewd
A sidebar conference ensued in which defense counsel argued that evidence of uncharged
acts that occurred when Natalie was between ten and twelve years old should be excluded
because they were too remote in time to show intent, lewd disposition, or continuity. The trial
The trial justice‟s full instruction to the jury stated:
“Earlier this morning, ladies and gentlemen, you recall I gave you an
instruction, and at this time I‟m going to repeat it, because you recall that I was
speaking about the police officer‟s testimony as it pertained to [Natalie]. I‟m
going to repeat that instruction to you now as [Natalie] begins her testimony.
“You‟re going to be hearing that on other occasions, the defendant
allegedly was involved in other misconduct and it‟s going to be involving this
particular witness. Bear in mind that he‟s not been charged with any offense
arising out of that misconduct and you may not draw the inference that the
defendant committed the criminal offenses he‟s on trial for simply because on
prior occasions he may have acted improperly. However, the State may introduce
such evidence for other more-limited purposes.
“To the extent that you decide to consider this evidence, it is admitted for
your consideration for the limited purpose of indicating the defendant‟s intent or
lewd disposition. You may not consider this evidence for any other purpose.
“I specifically charge that you may not use this evidence as proof that the
defendant is a bad person and, therefore, probably committed the crime or crimes
with which he is charged in this information. You may use it only for the limited
purpose, if you decide to use it at all, of determining the defendant‟s intent or
justice disagreed and reiterated that his prior in limine ruling was based on Rule 404(b)
considerations. The trial justice found that there was a nexus between the incidents because “the
acts are the same or similar acts, the locations are the same or similar locations and, obviously, a
time frame is a factor they have to take into consideration.” The trial justice concluded that this
evidence was admissible to establish either intent or a lewd disposition on the part of defendant.
However, the trial justice refused to permit Natalie to testify about the third incident that
occurred when she was fourteen years old.
Natalie then recounted two incidents involving Dubois. The first occurred when she was
ten or eleven years old, when she, Julie, and defendant were watching television on defendant‟s
bed when Dubois asked the girls, “If I show you mine, will you show me yours?” Natalie
understood this to mean that defendant was asking to see her vagina and that he would show his
penis. The second incident occurred when Natalie was approximately ten years old, while
swimming in a pool at a family party, defendant swam between her legs, blew bubbles between
her legs, and pushed his nose against her vagina. Natalie revealed this incident many years later,
when her mother asked her if anything inappropriate ever happened with defendant.
At the start of the defense case and before defendant‟s brothers-in-law, Ross and
Normand,7 testified, the state sought to limit defendant‟s examination of the witnesses to exclude
inquiry into any biases they might harbor against defendant or why they might have reason to
dislike defendant or want to testify against him. The defendant responded that the defense in this
case was based, in part, on the defense‟s contention that there was collusion among the family
Ross and Normand are Dorinne‟s brothers, and Normand is the father of Sarah and Lauren.
members against defendant.8 The defendant argued that the defense was entitled to make liberal
inquiry into the bias of a witness—either by cross-examination or otherwise—when it sought to
establish a “general scheme to make false charges of claims.” The trial justice ruled that the
witnesses could testify on some matters, such as verifying or countering facts that came out in
the state‟s case, but they could not testify “to suggest that there was some kind of a plan or
scheme without any substantiation * * *.” In the absence of a record showing, the trial justice
refused to allow “any kind of suggestion that [these witnesses] may be somehow conspiring or
scheming to go after this defendant and that they used this plan to influence these complaining
witnesses [to falsely testify].” Faced with this ruling, defendant failed to make any offer of
The defense called defendant‟s brother-in-law, Ross, who testified that when his niece,
Sarah, was around seven or eight years old she told him that defendant had exposed himself to
her. He further testified that defendant was his friend at the time and he just shrugged off the
disclosure because he did not believe it. It was only years later, when Ross began hearing about
other accusations against defendant by family members, that he became “devastated to find out
that I had five of them that were molested.” The defendant objected to this statement because
there were only three complaining witnesses at that point and the statement suggested the
existence of two more victims. The response was stricken from the record. The trial justice
denied defendant‟s motion to pass the case.
The jury returned a guilty verdict against defendant on all five remaining counts. The
defendant‟s motion for a new trial was denied, he was sentenced, and a judgment of conviction
entered on May 20, 2009. The defendant timely appealed.
The defendant sought to advance a theory that Ross and Normand jointly conspired to coach
the girls into making false charges of sexual assault against defendant as a result of a fight over
their mother‟s decision to name Dorinne and defendant as administrators of her estate.
Motions to Pass
The defendant assigns error to the decision of the trial justice denying defendant‟s
motions for a mistrial. “It is well settled that a decision to pass a case and declare a mistrial are
matters left to the sound discretion of the trial justice.” State v. Barkmeyer, 949 A.2d 984, 1007
(R.I. 2008) (quoting State v. Suero, 721 A.2d 426, 429 (R.I. 1998)). We often have stated that
“the trial justice has a „front row seat‟ during the trial so that he can best evaluate the effects of
any prejudice on the jury.” Id. (quoting State v. Tempest, 651 A.2d 1198, 1207 (R.I. 1995)).
“The ruling of the trial justice * * * is accorded great weight and will not be disturbed on appeal
unless clearly wrong.” Id. (quoting State v. Mello, 472 A.2d 302, 304 (R.I. 1984)).
Furthermore, if the trial justice provides the jury with an adequate cautionary instruction,
this Court assumes that the jury followed it unless “some indication exists that the jury was
unable to comply with the instruction.” Barkmeyer, 949 A.2d at 1007 (citing State v. Powers,
566 A.2d 1298, 1304 (R.I. 1989)). However, no cautionary instruction can cure a remark that the
trial justice finds “so inflames the passions of the jury as to prevent [its] calm and dispassionate
examination of the evidence.” Id. (quoting State v. Brown, 522 A.2d 208, 211 (R.I. 1987)). In
order to determine whether the remark is prejudicial, the trial justice “must evaluate the probable
effect of the statement on the outcome of the case by examining the remark in its factual
context.” State v. Yelland, 676 A.2d 1335, 1337 (R.I. 1996) (quoting State v. Ware, 524 A.2d
1110, 1112 (R.I. 1987)).
The defendant argued that Lauren‟s statement that she “hated Dave,” made in response to
the state‟s inquiry into her relationship with defendant after the summer she spent living and
working with him, was so inflammatory that it warranted a mistrial. When a trial justice
considers a motion for a mistrial, he or she must assess the potential prejudicial impact of that
statement on the jury and whether it will cause the jury to “become so inflamed that their
attention [is] distracted from the issues submitted to them.” State v. Gautier, 950 A.2d 400, 417
(R.I. 2008) (quoting State v. Bolduc, 822 A.2d 184, 186 (R.I. 2003)).
The record discloses that Lauren had described the two incidents that changed the nature
of her relationship with defendant before she testified that she hated him. Lauren already had
testified that defendant played sexual games with her; in one such instance defendant had her
touch his penis, and on another occasion he touched her breast area. It is difficult to conclude
that Lauren‟s statement that she “hated Dave,” an opinion that reasonably could be inferred from
her prior testimony, would be so harmful or prejudicial as to inflame the passions of the jury
sufficient to warrant a mistrial. The sting of the remark further was diminished by the trial
justice‟s cautionary instruction to the jury to disregard the response.
Accordingly, we are
satisfied that the trial justice properly assessed the probable effect of the remark and provided
adequate cautionary instructions. Further, there is no suggestion in this record that the jury was
unable to adhere to the trial justice‟s instruction.
The defendant also argued that the trial justice erred in refusing to grant a mistrial after
Ross‟s statement that “I was devastated to find out that I had five of them that were molested,”
when there were less than five complainants in the counts that were submitted to the jury. The
defendant‟s motion to strike this testimony was granted. At a sidebar conference, the trial justice
noted that “I told [the jury] to disregard it, but * * * if they were counting on their fingers,
they‟ve heard from five people” (with whom defendant allegedly had inappropriate contact).
Clearly, the trial justice adequately assessed the potential impact of the statement on the jury and
concluded that the jury would not be so inflamed as to be distracted by the issues before it. The
trial justice also made it clear to the jury that it was to disregard the witness‟s response.
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Based on our careful review of the record, we are satisfied that the trial justice properly
weighed the potential impact of the statements from these witnesses, and that he did not exceed
the bounds of his discretion in denying defendant‟s motions for a mistrial.
Limited Witness Testimony
The defendant asserts that the trial justice erred in limiting his examination of Ross and
Normand, and frustrated defendant‟s attempt to proceed on a theory that these two family
members were acting in collusion in order to have defendant falsely accused of these charges.
This allegation is without merit.
This Court repeatedly has recognized the well-established, constitutionally-protected
right of a criminal defendant to effective cross-examination of the prosecution‟s witnesses. State
v. Brown, 709 A.2d 465, 473 (R.I. 1998); State v. Doctor, 690 A.2d 321, 327 (R.I. 1997). The
defendant also has the right to present a defense in a criminal case and to pose leading questions
to adverse witnesses. See Doctor, 690 A.2d at 327 (concluding that effective cross-examination
is integral to the presentation of a full and fair defense under the state and federal constitutions);
State v. Casiano, 667 A.2d 1233, 1241 (R.I. 1995) (stating that the “compulsory process clause
of the Sixth Amendment to the United States Constitution guarantees the right of a criminal
defendant to offer the testimony of witnesses on her or his behalf and to compel the testimony of
such witnesses if necessary”); State v. Veluzat, 578 A.2d 93, 94 (R.I. 1990) (holding that
effective cross-examination is an essential element of presenting a full and fair defense). This
right is not absolute, however. See Veluzat, 578 A.2d at 95 (“[T]he scope of cross-examination,
even for the purpose of exposing bias, is not unlimited.”). “While this [C]ourt has said that
fishing on cross-examination is permitted, the trial justice may ask the fisherperson to
demonstrate that there is a reasonable possibility there are fish in the pond before the license is
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issued.” State v. Bowden, 473 A.2d 275, 279 (R.I. 1984) (quoting State v. Eckhart, 117 R.I. 431,
437, 367 A.2d 1073, 1076 (1977)); see also State v. Brennan, 527 A.2d 654, 657 (R.I. 1987).
The defendant failed to make even a threshold showing that this line of questioning
regarding family collusion was tethered to a meritorious defense. The defendant did not make an
offer of proof that the examination he intended to embark upon could lead to relevant evidence.
See Brown, 709 A.2d at 474 (holding that failure to make an adequate offer of proof to indicate
that additional cross-examination would have developed probative evidence of bias was
sufficient grounds for the trial justice to terminate that line of questioning). In the absence of a
showing that there was a good-faith factual basis for this inquiry, the trial justice was vested with
the discretion to limit it.
The record discloses that defendant was afforded ample opportunity to cross-examine the
various witnesses at trial.
The trial justice noted that, notwithstanding defense counsel‟s
vigorous cross-examination of the complainants, nothing was produced that would tend to show
that the complaining witnesses were affected or influenced in any way by these elder family
members. The trial justice also expressed his concern that this line of inquiry could cause the
trial to stray into areas unrelated to the crimes alleged in the information.
We are of the opinion that the trial justice did not abuse his discretion in disallowing this
line of questioning. The trial justice‟s finding that defendant had failed to make any showing to
support such a theory was correct, and therefore the evidence was irrelevant and inadmissible.
Testimony of Uncharged Sexual Misconduct
The defendant avers that the trial justice erred by allowing testimony about uncharged
incidents of sexual assault in violation of Rules 403 and 404(b). This Court consistently has
declared that the admissibility of evidence is a decision within the sound discretion of the trial
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justice, and will not be disturbed “unless there has been a clear abuse of discretion and the
evidence was both prejudicial and irrelevant.” State v. Merida, 960 A.2d 228, 237 (R.I. 2008);
see also State v. Mohapatra, 880 A.2d 802, 805 (R.I. 2005).
Rule 404(b)9 generally prohibits the use of evidence of prior bad acts, wrongs, or crimes
“to show the defendant‟s propensity to commit the crime with which he is currently charged.”
State v. John, 881 A.2d 920, 926 (R.I. 2005). However, “[e]vidence of other conduct, even of a
criminal nature, may be received if it is interwoven with the current charge in a way that tends to
establish „guilty knowledge, intent, motive, design, plan, scheme, system, or the like.‟” Id.
(quoting State v. Woodson, 551 A.2d 1187, 1193 (R.I. 1988)).
This Court recognizes that “[t]he line between Rule 404(b) evidence presented for the
impermissible purpose of demonstrating propensity and Rule 404(b) evidence presented for one
of the specific non-propensity exceptions is „both a fine one to draw and an even more difficult
one for judges and juries to follow.‟” State v. Rodriguez, 996 A.2d 145, 150 (R.I. 2010) (quoting
State v. Brown, 900 A.2d 1155, 1160 (R.I. 2006)). However difficult the task, the trial justice
must exercise his or her sound discretion in fixing that line and deciding whether this type of
evidence should be admitted, excluded, or limited. See State v. Hopkins, 698 A.2d 183, 186
(R.I. 1997) (noting that admission of Rule 404(b) evidence is within the trial justice‟s discretion).
The trial justice also must balance the relevance of the evidence against its remoteness and the
Rule 404(b) of the Rhode Island Rules of Evidence states:
“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.”
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potential for improper prejudicial impact. Id. In passing on these issues, we look to the trial
justice‟s reasons that underlie the ruling.
In this case, the trial justice clearly articulated the test for admissibility of evidence under
Rule 404(b) and carefully considered the testimony proffered by the state regarding uncharged
conduct involving Natalie and Lauren. The trial justice noted:
“And the test, obviously, with [Rule] 404(b) is, especially in these
areas, is how close in time it is, the nature of the act, the
relationship with the party involved; for example, if it‟s the same
person or a sibling, those are critical factors; place is also a factor,
and then, of course, you have to do a full [Rule] 403 analysis to
decide whether or not it‟s still so highly prejudicial that it can‟t
After listening to the anticipated testimony, the trial justice allowed only two of the three
uncharged incidents into evidence. The trial justice allowed Natalie to testify that when she was
ten or eleven years old and lying on defendant‟s bed with defendant and Julie, defendant asked
“[i]f I show you mine, will you show me yours?” He also permitted testimony about the pool
incident, during which defendant swam beneath Natalie‟s legs, blew bubbles between her legs,
and pushed his nose against her vagina. The trial justice noted that at the time the incidents
occurred, Natalie was of a similar age as the other complainants, had a familial relationship with
defendant (her uncle) and the other complainants, the incidents occurred at either defendant‟s
house or a family home, and the incidents were all similarly playful in nature. Based on these
similarities, the trial justice found that there was a sufficient nexus to allow the testimony to
come into evidence in accordance with Rule 404(b) to show “this defendant‟s intent and his
disposition toward these youngsters.”
After making this determination under Rule 404(b), the trial justice then proceeded to
conduct a Rule 403 analysis of Natalie‟s expected testimony. The trial justice concluded that the
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testimony was relevant as corroborative of the anticipated testimony from two of the
complainants, Emily and Lauren, and that the probative value outweighed its prejudicial effect.
Significantly, the trial justice refused to allow testimony about the third incident that
occurred when Natalie was fourteen years old, when defendant allegedly came up behind her,
gave her a back rub, and touched her breasts. Under a Rule 404(b) analysis, the trial justice
found that this incident was not sufficiently similar to the charged offenses because it was remote
in time, lacked the playful or game-like nature of the crimes on trial, and that no other
complaining witnesses were present. In accordance with Rule 403, the trial justice found that the
relevance of this evidence, if any, would be substantially outweighed by the danger of unfair
prejudice. As a result, he excluded it.
The trial justice also acknowledged his responsibility to provide the jury with a
“cautionary instruction as to * * * the purpose of [this testimony].” When admitting other sexual
acts into evidence the trial justice must offer a limiting instruction to guide the jury‟s
consideration of the evidence, State v. Lamphere, 658 A.2d 900, 904 (R.I. 1995), and caution
that it not be used to prove defendant is a bad person or that he acted in conformity with the
evidence. See Mohapatra, 880 A.2d at 806. Before Natalie testified about the uncharged
incidents, the trial justice gave the jury clear instructions regarding the limited purpose of her
testimony. The trial justice explained that the evidence was admitted for the “limited purpose of
indicating the defendant‟s intent or lewd disposition,” and he declared that the jury may not
consider the evidence for the purpose of proving that “defendant is a bad person and, therefore,
probably committed the crime * * *.”
We are of the opinion that this testimony was not admissible for purposes of
demonstrating defendant‟s “lewd disposition” in this case because such evidence is limited to
prior acts of sexual misconduct involving the complaining victim and not others.
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Mohapatra, 880 A.2d at 806 n.4 (stating that the “lewd disposition” exception may only apply to
“prior sexual misconduct committed against the „particular person,‟ referring to the victim”
(quoting State v. Jalette, 119 R.I. 614, 627, 382 A.2d 526, 533 (1978))); State v. Bernier, 491
A.2d 1000, 1004 (R.I. 1985). At this point in the trial, Natalie was no longer a complaining
witness. However, although we are satisfied that the trial justice erred in listing lewd disposition
as one of the grounds for which the jury could consider Natalie‟s testimony, he did not err in
instructing the jury that the testimony was admissible for the limited purpose of demonstrating
defendant‟s sexual intent.
Second-degree child molestation sexual assault is a specific intent crime, and requires
that the defendant‟s contact with the victim was done “for the purpose of sexual arousal,
gratification, or assault.” 10 State v. Coningford, 901 A.2d 623, 629 (R.I. 2006) (quoting G.L.
1956 §§ 11-37-1(7) and 11-37-8.3); Mohapatra, 880 A.2d at 808; State v. Tobin, 602 A.2d 528,
534, 535 (R.I. 1992). The state bears the burden of proving the defendant‟s specific intent
beyond a reasonable doubt.
See Tobin, 602 A.2d at 535.
Natalie‟s testimony about the
swimming pool incident and the “[i]f I show you mine, will you show me yours?” game is
conduct that is suggestive of the defendant‟s intent to commit acts for purposes of sexual arousal
or gratification. Based on this record, and mindful that the question of admissibility of the
evidence at trial is an exercise of discretion on the part of the trial justice, we cannot say that the
trial justice abused his discretion in admitting this testimony. Additionally, we are satisfied that
Section 11-37-8.3 states in pertinent part that “[a] person is guilty of a second degree child
molestation sexual assault if he or she engages in sexual contact with another person fourteen
(14) years of age or under.” And § 11-37-1(7) defines “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.”
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the trial justice‟s limiting instruction to the jury that the evidence was admissible on the question
of the defendant‟s intent was correct.
For the reasons set forth above, we affirm the Superior Court‟s judgment of conviction.
The papers in this case may be remanded to the Superior Court.
Justice Indeglia did not participate.
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RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE:
State v. David Dubois.
DATE OPINION FILED: February 20, 2012
Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.
Associate Justice Maureen McKenna Goldberg
SOURCE OF APPEAL:
Providence County Superior Court
JUDGE FROM LOWER COURT:
Associate Justice Gilbert V. Indeglia
ATTORNEYS ON APPEAL:
Lauren S. Zurier
Department of Attorney General
For Defendant: John R. Grasso, Esq.