State v. Rushlow, 2011 R.I. LEXIS 140

Background

Rushlow was convicted of domestic first-degree sexual assault (vaginal-penile penetration) and domestic assault with intent to commit sexual assault stemming from an incident with Frances Rushlow on June 18–19, 2008.
A no-contact order against Rushlow was in place at the time based on an outstanding charge; Frances testified that the order existed and had been issued by the police, which defense sought to exclude.
The defense argued the no-contact-order testimony was prejudicial and that a second prosecution witness (Lt. Louro) improperly bolstered Frances’s credibility, warranting a pass of the case.
Frances testified about the alleged assault, the ensuing medical exam, and the police investigation; Rushlow admitted being with Frances but claimed consensual conduct and that he lied initially about the incident due to the no-contact order.
The trial court sustained evidentiary rulings, issued cautionary instructions, and denied both motions to pass; the jury acquitted on two counts but convicted on the two charged offenses.
The Rhode Island Supreme Court summarily affirmed, holding no abuse of discretion in denying the passes and affirming the conviction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the no-contact order testimony warranted passing the case	Rushlow argues the remark tainted the jury and required a mistrial	Rushlow contends it was prejudicial and cannot be cured by instruction	No abuse of discretion; cautionary instructions sufficed
Whether Lt. Louro's bolstering of Frances’s credibility required passing the case	Rushlow asserts improper bolstering undermined credibility	Rushlow argues prejudice given credibility issue hinge	No abuse of discretion; brief remark and instructions adequate

Key Cases Cited

State v. Suero, 721 A.2d 426 (R.I. 1998) (discretion to pass or mistrial on prejudicial matters respected)
State v. Lynch, 19 A.3d 51 (R.I. 2011) (abuse of discretion standard applied to passing decisions)
State v. Tempest, 651 A.2d 1198 (R.I. 1995) (front-row-seat deference to trial court on passing motions)
State v. Pailin, 114 R.I. 725, 339 A.2d 253 (R.I. 1975) (prejudice assessment for improperly admitted evidence)
State v. Nelson, 982 A.2d 602 (R.I. 2009) (prejudice and evidentiary impact reviewed on appeal)
State v. Rosario, 14 A.3d 206 (R.I. 2011) (prejudicial impact analyzed in no-pass context)
State v. LaPlante, 962 A.2d 63 (R.I. 2009) (contextual evaluation of potentially prejudicial evidence)
State v. Barbosa, 908 A.2d 1000 (R.I. 2006) (instruction effectiveness to mitigate prejudice)
State v. Mendoza, 889 A.2d 153 (R.I. 2005) (jury instructions and adherence presumed)
State v. Gallagher, 654 A.2d 1206 (R.I. 1995) (relevance of prior misconduct considerations in passing issues)
State v. Ordway, 619 A.2d 819 (R.I. 1992) (credibility and passing issues context)
State v. Pugliese, 117 R.I. 21, 362 A.2d 124 (R.I. 1976) (historical consideration of passing and prejudice rules)
State v. Lassiter, 836 A.2d 1096 (R.I. 2003) (bolstering analysis in credibility disputes limited by trial record)
State v. Higham, 865 A.2d 1040 (R.I. 2004) (vouching/bolstering in child-molestation context; brief remark insufficient to overturn denial of pass)
State v. Miller, 679 A.2d 867 (R.I. 1996) (improper bolstering evaluated in prejudice context)
State v. Enos, 21 A.3d 326 (R.I. 2011) (police testimony implying culpability may be mitigated by timely cautionary instruction)