Lead Opinion
OPINION
for the Court.
The defendant, John Rainey (defendant or Rainey), is before this Court on a writ of certiorari
I
Facts and Travel
In the fall of 2011, Anna,
At defendant’s trial, Anna recounted those traumatic events, from- her childhood.
Before Anna’s half-sister was born on August 22, 1988, defendant imposed himself on Anna once again. That day, Anna was home alone with defendant. She was sitting on the couch, curled up in the fetal position, in her pajamas watching cartoons. The defendant approached her and asked if she wanted to do something fun; as an eight- or nine-year old, Anna believed that defendant was referring to a game and answered affirmatively. At that point, defendant pulled her legs down and laid her flat on the couch. He proceeded to climb on top of her, straddled over her with his legs on either side of her body. As he removed her pants, Anna told him that she did not like what was happening. Undeterred, defendant took off his pants. He then rubbed his penis against her vagina. Anna testified that, during this encounter, defendant put his penis inside her “labia.”
The next incident occurred mere months after Anna’s half-sister was born, just before Christmas of 1988. The defendant brought Anna, then nine years old, to the mall so she could buy a Christmas gift for her mother. Upon arriving in the mall parking lot, defendant told Anna he would give her money to purchase her mother’s gift if she would first do something for him. The defendant then unzipped his pants, grabbed Anna’s head, and placed her mouth on his penis, all the while directing her actions. After ejaculating in her mouth, defendant gave Anna the money he had promised her, and she went into the mall and bought a gift for her mother.
In the spring of 1989, defendant and Anna’s mother moved Anna and her infant half-sister to Kentucky, where defendant had accepted a job. Shortly thereafter, the four of them moved to Chicago for the same reason. By that point, the drinking by defendant and Anna’s mother had become “excessive,” according to Anna. One evening, when Anna’s mother was passed out — “inebriated to the point where [she couldn’t] function” — defendant said to Anna, “I want you to watch what I’m going to do to your mom.” He then made Anna hide behind a chair and watch him have sex with her mother.
Eventually, Anna’s mother decided to leave defendant, and she, Anna, and Anna’s half-sister moved back to Rhode Island without him. They stayed with Anna’s grandparents in Warwick until just after Christmas of 1989. In the beginning of 1990, they moved to Sterling Avenue in Providence. There, Anna learned that her mother was pregnant with defendant’s child yet again. Shortly before Anna’s second half-sister was born on May 21, 1990, defendant came back into their lives, moving into the Sterling Avenue home. However, his return was short-lived; he left soon after the baby’s birth.
Despite his abbreviated return, yet another incident occurred during the short time defendant lived with Anna. On , a day when Anna’s mother was out of the house, after Anna’s eleventh birthday, defendant again molested her. In defendant and her mother’s bedroom, defendant forcefully pushed Anna onto the bed. After completely undressing her and removing his own clothes, defendant lay “[f]ully on top of [Anna], between [her] legs.” Anna testified that “[h]e proceeded to put his penis into [her] vagina again” and then ejaculated on her stomach.
For reasons unrelated to the abuse, Anna’s mother kicked defendant out of the house a few months later. In 1992, defendant expressed his desire to spend a weekend with his daughters, Anna’s half-sisters. Anna’s mother made Anna, who was then thirteen years old, go and “keep an eye on the girls.” Anna’s grandfather dropped her and her half-sisters off at a parking lot, where defendant was waiting to pick them up. Anna fastened her half-sisters into the back seat of the car before climbing in through the rear driver’s side door. The defendant, standing at the open driver’s door, reached back and grabbed Anna’s breast.
When Anna was sixteen years old, a high-school health class discussion about sexual harassment motivated her to finally reveal to her mother defendant’s repeated abuse. After telling her mother, Anna was met by her mother’s blank stare, followed by her mother telling her that she had heard defendant had moved out of state, so there was nothing they could do about the abuse. Anna felt that her mother did not believe her.
In 2011, Anna reported the abuse to the Providence police. Prompting Anna’s disclosure was her half-sister’s Facebook post, from which Anna learned that defendant had been arrested for similar crimes. Anna testified that, had she not received that information, she would not have come forward with her own allegations against defendant.
In the case Anna learned about on Face-book, the alleged victim was defendant’s biological daughter (by a woman other than Anna’s mother), Beth.
On that Monday, Beth testified to a sexual assault that defendant, her biological father, attempted on her in 2003, when she was eight years old. Beth recounted that she went to visit her father at his single-room apartment in Cumberland for the first time since he had moved there. The defendant was angry for reasons un-. known to Beth and asked her to sit on the bed. She did so, and he walked over to her yelling and calling her names. As Beth sat on the edge of the bed, defendant pushed her back on the bed with one hand and began taking his and her clothes off; Beth struggled to get up, but was unable to do so. The defendant climbed on top of her, and, because she was trying to push him away, he wrapped her arms in his belt and put them above her head. He then grounded hid arms and legs on either side of Beth, straddling her. The defendant called her names, while simultaneously claiming to be trying to help her. Beth testified that defendant “tried to put [his penis] in [her].” She' continued to explain that his penis actually touched her vagina, but, because of her struggling, he was unsuccessful in penetrating her. The defendant eventually gave up and walked away. He got dressed and went outside; she untied her hands, got dressed, called her mother to pick her up, and waited inside. Beth and defendant said nothing to one another before she left,, and she told no one what had happened for approximately six years.
Like Anna, it took Beth years to reveal what defendant had done to her. She did not disclose the assault until she was fourteen years old, after which defendant was charged. While Beth was hesitant to testify against her father regarding her own 'allegations, leading to'their dismissal, she did testify at the trial in this case. The defendant was found guilty on all three counts of molesting Anna.
The crux of defendant’s appeal is that the trial justice should not have allowed Beth to testify. In support of this contention, defendant argues: (1) that the trial justice abused his discretion by failing to excldde Beth’s testimony as a result of the state’s violation of Rule 16 of the Superior Court Rules.of Criminal Procedure; (2) that the trial justice erred by admitting her testimony pursuant to Rule 404(b) of the Rhode Island Rules of Evidence; and (3) that, even if Beth’s testimony was admissible under Rule 404(b), the trial justice should have excluded it under Rule 403 of the Rhode Island Rules of Evidence. Additionally, defendant. argues that the trial justice erred when he denied his motions for judgment of acquittal and for a new trial.
II
Discussion
A. Rule Í6
1.. Standard of Review
In reviewing whether a Rule 16 violation occurred, “[t]his Court affords great deference to a trial justice’s decision * * ⅜, and it ‘will not disturb that ruling on appeal unless he or she has committed clear error.’” State v. Diefenderfer,
2. Analysis
When a defendant requests discovery from the state, Rule 16(a)(7),(8) obligates the state to provide a list of witnesses it expects to call, as well as summaries of their expected testimony. “The overarching purpose of Rule 16 is ‘to ensure that criminal trials are fundamentally fair.’ ” State v. Briggs,
In the present case, it was not until the morning of May 30, 2013, after a jury had already been chosen and was about to be sworn, that the state supplemented its response to defendant’s request for discovery. The state then moved to introduce evidence pursuant to Rule 404(b) in the form of Beth’s testimony. The state explained that it had not listed Beth in discovery because she had been unwilling to testify against her father before unexpectedly expressing a desire to do so, and thus the state had not intended to call her as a witness. The trial justice accepted the state’s reason and agreed that this did not appear to be an instance of intentional withholding.
Understandably surprised by the eleventh-hour disclosure, defense counsel strenuously objected to Beth’s testimony. He cited his lack of time to prepare for her testimony and asked that she be excluded as a witness. In response, the trial justice forbade the state from calling Beth to the stand before Monday, June 3, 2013, giving defense counsel the weekend to review the material as related to her. Nevertheless, the trial justice indicated that he would allow Beth to testify on that date.
The state argues that there was no Rule 16 violation because that rule only “mandates disclosure of statements made by those persons whom the State expects to call as witnesses,” and here the prosecution did not expect to call Beth until she agreed in the final moments before trial to testify. We briefly address this argument only to say that we reject the state’s characterization of Rule 16. If this Court adopted the state’s purported interpretation of Rule 16, its intended purpose of “eliminat[ing] surprise at tidal and * * * ensuring] that both parties receive the fullest possible presentation of the facts prior to trial,” Langstaff,
We next address the remedy that .the trial justice adopted to cure this violation. Notably, after objecting to the trial justice’s ruling allowing Beth’s surprise testimony, defense counsel never objected to the remedy fashioned by the trial justice — that is, the trial justice’s decision to allow her to testify on June 3, giving defense counsel three days to prepare.
We have recognized scenarios where, based on the clear adverse disposition of the trial justice, we do not fault counsel for failing to press the issue further. This is not such a scenario. But see State v. Mead,
Still, defendant maintains on appeal that Beth’s testimony should have been excluded altogether. At the outset, we remark “that the sanction of excluding testimony is an extreme and drastic remedy which should be exercised with caution and restraint.” Ramos,
However, Langstaff is distinguishable. Rather than permitting the evidence “a few short hours” after it came to light, the trial justice gave defense counsel until June 3 to prepare for Beth’s testimony. See Langstaff,
Defense counsel asks us to infer that, where his “cross-examination of [Beth] was noticeably meager,” the allowable suggestion is that he “did not, in fact, have sufficient time to prepare,” and thus was prejudiced. We decline to take such a leap. We are hesitant to make inferences from what very well might have been a strategic decision of counsel;
“[W]e have acknowledged that the trial justice is in the best position to fashion a proper remedy for noncompliance with the discovery rule,” and we are satisfied that the trial justice here did just that. Ramos,
B. Rule 404(b)
. 1. Standard of Review
When the issue before us concerns a trial'justice’s decision to either admit or exclude evidence, we examine that issue under ah abuse-of-discretion’ standard. State v. Husband,
2. Analysis
Although other crimes are usually inadmissible to prove the guilt of a present crime, “it is generally conceded that evidence of other acts, representations, and conduct at different times, even of a criminal nature, may be received when they are interwoven with the offense for which the defendant is being tried "* * State v. Colangelo,
Nevertheless, ■ under Rule 404(b), when the evidence is of prior sexual misconduct with á person other than the complainant, “‘nonremote similar sexual offenses’ are admissible under [its] exceptions * * Mohapatra,
a. Remoteness and Similarity
Turning first to the question of remoteness and similarity, we start by saying that, when a defendant’s prior sexual misconduct against persons besides the complainant is introduced, it “must be. sufficiently similar and contemporaneous to support ruling of admissibility by the trial justice.” Mohapatra,
We are satisfied here that defendant’s offenses against Anna and Beth fall within this spectrum and are “nonremote” and “similar.” To start, each of defendant’s indiscretions were directed against, for all intents and purposes, daughters in his life: in Anna’s case, the daughter of a girlfriend who called him “Dad,” and in Beth’s case, his biological daughter. Each victim was around eight .years old when the abuse first occurred, and away, from their mother’s supervision. Although the exact locations differed, the majority of the abuse occurred in what was at the time defendant’s residence, where he had direct access to the victims: in Anna’s case, the home he shared with her mother (with only two exceptions), and with Beth, an apartment in which he lived alone. Moreover, the manner of abuse was similar with éach victim in that both cases involved penetration, successful or otherwise. See State v. Hopkins,
The defendant contends that the manner of abuse varies between the victims because Beth’s abuse involved attempted penetration, while Anna’s involved actual penetration. Further, Beth testified that defendant bound her, while Anna did not. As such, defendant asserts that “[t]he incidents were not alleged to take place under the same circumstances, in the same location, or in the same pattern; nor did they contain uncannily similar facts.” However, in reviewing a trial justice’s admittance of Rule 404(b) evidence, “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 * * *_>» Cavanaugh,
Additionally, the. length of time that spans between defendant’s alleged abuse against Beth and Anna does not alter our holding. Beth testified that the assault on her took place in 2003, which was approximately eleven years after the last incident to which Anna testified. Moreover, the first assault on Anna occurred approximately fifteen years before Beth’s alleged assault. Thus, the time frame between the two acts • is between eleven and fifteen years. The defendant acknowledges that we have previously held that spans ranging from seven to eleven years, Coning-ford,
What is more, we emphasize that “[r]e-moteness is relative, depending upon the circumstances and the conduct in question.” State v. Pignolet, 465 A.2d .176, 181 (R.I. 1983). When we consider the circumstances of the abuse alleged — that each victim was around eight years old the first time defendant molested, or attempted to molest, them — in light of the length of time between the acts, the eleven to fifteen years appears neither remote nor dissimilar. See id. at 181-82 (“[W]here the similar acts involved sexual abuse of young girls * * * the incident that occurred three years before the trial date is not remote, rather it is a part of a continuing practice of sexually abusing these girls.”). Instead, mindful that remoteness is relative depending upon defendant’s conduct, that eleven to fifteen years does not appear so vast where the second alleged victim was another eight-year-old girl, over whom he also exercised supervision and with whom he had a familial relationship.
Accordingly, the trial justice’s finding that Beth’s testimony was nonremote and similar was not an abuse of his discretion.
b. Rule 404(b) Exceptions
Having been satisfied with the trial justice’s determination that Beth’s testimony was nonremote and similar, we next must examine the appropriateness of the Rule 404(b) exception under which he allowed the state to admit Beth’s testimony. In allowing Beth’s testimony, the trial justice explained that “[a]lthough the words ‘modus operandi’ don’t pertain to this rule, in this particular case the Court finds this is enormously relevant in light of the nature of these crimes of child molestation, sexual assault.” In his limiting instruction to the jury, the trial justice told it to consider the evidence only pertaining to defendant’s “motive, his opportunity, his intent, preparation, his plan as it relates to the testimony given * * * by [Anna].”
Beth’s testimony fits comfortably within a Rule 404(b) exception to show plan to abuse young girls of a similar age with whom he had a similar relationship.
The similarities between that case and the present one lead us to determine that the trial justice did not abuse his discretion in finding the “common scheme or plan” exception applicable here.
Furthermore, it is of no consequence that Beth’s alleged abuse occurred fifteen years after the charged crime. Rule 404(b) and its exceptions refer only to “other” crimes, without distinguishing between previous and subsequent crimes, and we will not read such language into that rule today.
Therefore, the trial justice did not abuse his discretion in determining that the evidence fit within a Rule 404(b) exception.
c. Relevance and Reasonable Necessity
Next, to be admissible under Rule 404(b), “the evidence must [also] be ‘relevant’ to the crime charged and ‘reasonably necessary.’ ” Coningford,
1. Relevance
We have previously articulated that “Rule 401 of the Rhode Island Rules of Evidence defines ‘relevant evidence’ as ‘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.’ ” State v. Perez,
Beth’s testimony “was indicative of ‘[the] defendant’s lecherous conduct toward’ * * * [girls] ‘over whom he exercised discipline, control, and supervision.’ ” Perez,
2. Reasonable Necessity
As for whether Beth’s testimony was “reasonably necessary,” “[w]hen charges of sexual abuse hinge upon a credibility contest between [the] defendant and child complainant, relevant evidence of pri- or sexual misconduct is reasonably necessary to support the complainant’s testimony.” Mohapatra,
In Cavanaugh,
“We are cognizant- 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.” Id (emphasis added).
Such a sentiment is applicable to the present case. The abuse of Anna - occurred more than two decades ago. See Perez,
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. See Hopkins,
d. Limiting Instruction
We briefly address the final requirement under a Rule 404(b) analysis: that “when such evidence is admitted, the trial justice must instruct the jury on the limited purpose for which the evidence may be. considered.” Merida,
“Ladies and gentlemen, you’re about to hear some testimony about some conduct [with] which * * * [defendant is not charged. He is, not on trial for this ■ conduct in this particular trial, and if you consider this testimony at all — and the decision to consider the testimony is solely one of the jurors’ prerogative— but you may consider the testimony only as it relates to * * * [defendant's mo? tive, his opportunity, his intent, preparation, his plan as it relates to the testimony given to you by [Anna] last week. You may consider this testimony for no other purpose other than that limited ability to consider it for the reasons I just gave you. The [defendant is not on trial at this time in this case for this particular conduct.”
Because the trial justice used language derived directly from Rule 404(b) to instruct the jury, and because we presume that the jury heeded that instruction, we believe his limiting instruction was sufficient. See Mazzaro v. Narragansett Improvement Co.,
Therefore, having reviewed all, of the Rule 404(b) requirements and being satisfied that each was met, we hold that the trial-justice did not abuse his discretion in allowing Beth’s testimony.
C. Rule 403
1. Standard of Review
Before addressing defendant’s argument concerning Rule 403 of the Rhode Island Rules of Evidence, we repeat that “[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.” Mohwpatra,
2. Analysis
A trial justice’s analysis of Rule 403 “requires [him or her] to not only examine the evidence in the context of the case on trial, but to balance the evidence to determine whether its probative force ‘is substantially outweighed by the danger of unfair prejudice * * ” Cavanaugh,
The defendant relies on State v. Gaspar,
Moreover, in Hopkins,
Accordingly, we conclude that the trial justice did not abuse his discretion in admitting this evidence under Rule 403.
D. Motion for New Trial
1. Standard of Review
A motion for new trial pursuant to Rule 33 of the Superior Court Rules of Criminal Procedure requires the trial justice to place “himself or herself in the role of a ‘thirteenth juror’ and then exercise[ ] his or her independent judgment as to the credibility of the witnesses and the weight of the evidence.” State v. Grantley,
2. Analysis
The defendant argues that the trial justice erred in denying his motion for hew trial where the trial justice overlooked inconsistencies pertaining to Anna’s trial testimony and her grand jury testimony, her testimony at defendant’s bail hearing, and her statements to the police. The defendant points to numerous examples. Regarding the Mantón Avenue incident, he cites Anna’s inconsistencies as to (1) the clothing she wore at the time of the abuse; (2) her exchange of words with defendant during the incident; (3) its duration; (4) whether defendant ejaculated during the abuse; and (5) the dynamic of her and defendant’s relationship after the abuse. In relation to the Sterling Avenue incident, defendant discusses Anna’s inconsistences as to (1) how it began; (2) her statements during it; and (3) -defendant’s statements during the encounter. The defendant specifically takes issue with Anna’s- inconsistent statement as to whether defendant ejaculated during the Mantón Avenue incident, arguing that “[ejaculation is not the type of -minor' detail that a complaining witness might waver on; this was integral to the’ sexual assault itself.” Finally, defendant raises concern with the trial justice’s acceptance of Anna’s reason for her delayed disclosure of the abuse, as well' as the trial justice’s characterization of Beth’s testimony.
In denying defendant’s motion for new trial, the trial justice commented that the defense’s cross-examination of- Anna “was excellent with regard to every inconsistency.” Acknowledging Anna’s inconsistencies, the trial justice explained that “[tjheré were a number of inconsistencies, and every single one, the defense counsel was able to bring out. * * * For the most part, not a hundred percent, but for the most part [Anna] didn’t even attempt to offer an explanation, except one time * * He determined that Anna was “a credible witness, notwithstanding all the inconsistencies. The main thrust of her testimony, that she was molested on the occasions as .described in the indictment, [was] consistent.”
■ We have stated that “inconsistencies in a witness’s testimony do not ‘preclude a determination that the witness[] w[as] credible.’” State v. Diaz,
The defendant next argues that Anna’s delayed disclosure substantially undermined her credibility and that the trial justice was clearly wrong in accepting her reason for the delay. At the .motion for new-trial hearing, the trial justice recounted that:
“This was a young lady, * * * eight-years old at the time this happened. And the dynamics of what occurred between [Anna] and her mother * * * was such that the only person — the Court draws an inference, the only individual that [Anna] could have relied on for safety and protection failed to live up to that role as a mother in the case. The Court is reasonably satisfied that [Anna] may have been reluctant to go to her grandfather to make these kinds of disclosures.”
Giving the trial justice his due “great deference,” we cannot say that he was clearly wrong in accepting Anna’s reasoning for her reluctance to disclose defendant’s abuse. See Whitaker,
Last, defehdant argues that the trial justice improperly considered Beth’s testimony as evidence of defendant’s bad character. The defendant points to two statements the trial justice made regarding Beth’s testimony:
“The [c]ourt also had an opportunity to consider [defense counsel’s] motion to suppress all references to any other convictions for which [defendant], had been convicted of. * * * Those convictions pale in comparison. They don’t go to his honesty or his integrity, and they pale in comparison to the [Rule] 404(b) evidence which the [cjourt allowed.”
The second statement defendant references reads: “And any inferences the jury could have drawn , as to [defendant’s] ability to stay of good behavior and follow the law and keep his conduct in conformance with the law certainly paled when one considers those convictions in light of * * *, or standing next to[,] the [Rule] 404(b) evidence.”
We are unpersuaded by defendant’s argument that, in making these two statements, the trial justice • misconceived law and fact, At the motion for new-trial hearing, the trial justice. explicitly stated the purpose for which he allowed Beth’s testimony — “as proof of motive, opportunity, intent, preparation, plan, knowledge, identity!;,] or the absence of mistake or accident.” The statements that defendant isolates do not show that the trial justice considered Beth’s testimony for any purpose other than those on which he instructed the jury.
Therefore, we conclude that the trial justice neither clearly erred, nor did he overlook or misconceive material evidence in analyzing defendant’s motion for new trial.
E. Motion for Judgment of Acquittal
1. Standard of Review
When addressing a motion for judgment of acquittal, this Court and the trial justice both “weigh the evidence in the light most favorable to the prosecution, give full credibility to the prosecution’s witness, and draw from the evidence every reasonable inference consistent with guilt.” Darcy,
2. Analysis
The defendant argues that the trial justice erred in denying his motion for judgment of acquittal as to the first two counts of the indictment, each charging first-degree child molestation. Specifically, count 1 charged that defendant engaged in penile/vaginal penetration with Anna sometime between October 1, 1987, and August 22, 1988; and count 2 charged that he engaged in penile/vaginal penetration with Anna on a date between January 1, 1990, and December 31, 1990. The defendant maintains that the conduct he engaged in did not amount to penetration' as defined by statute.
“A person is guilty of first[-]degree child molestation sexual assault if he or she engages in sexual penetration with a person fourteen (14) years of age or under.” Section 11-37-8.1. “Sexual penetration” is defined as “sexual intercourse, cunnilingus, fellatio, and anal intercourse, or any other intrusion, however slight, by any part of a person’s body or .by any object into the genital or anal openings of another person’s body, or the victim’s own body upon the accused’s instruction, but emission of semen is not required.” Section 11-37-1(8) (emphasis added). In light of this definition, we analyze defendant’s argument as to each count.
1. Count 1
The Mantón Avenue incident formed the basis for count 1. At trial, Anna testified that, as she sat on the couch and watched television, defendant asked her if she wanted to do something fun. She recalled agreeing, resulting in defendant laying her on the couch and moving on top of her. Removing both of their pants, he straddled her. Her testimony proceeded as follows:
“Q: What happened next?
“A: He proceeded to lay down on top of me.
“Q: When he laid down on top of you, what part of his body was — strike that. Was any part of his body touching your body? *
“A: His penis was rubbing up against my vagina.
* * *
“Q: So when you say his penis was rubbing up against you, did it at some point go inside of you?
“A: Technically, yes.
“Q: When you say,. ‘technically, yes,’ what .do you mean?
“A: It was explained to me that even if it was on my labia it was still—
“[Defense Counsel]: Objection.
“THE COURT: Sustained.
“Q: Did you feel his penis inside of you?
“A: Yes.
[[Image here]]
“Q: When you say inside of you, what part of your body was his penis in?
“A: My labia.
“Q: Which is what part of your body?
“A: Vagina.
“Q: Do you know how long it lasted?
“A: About thirty seconds.
[[Image here]]
“Q: But for that [thirty] seconds, you felt his penis in your vagina?
“A: Yes.
[[Image here]]
“Q: The act of penetration happened for about [thirty] seconds. How long do you think the entire act happened?
“A: Total, about two minutes.”
The defendant’s contention that Anna’s testimony was tainted by her statement that “technically” defendant’s penis was in her “labia,” which she thereafter testified meant her vagina, is unconvincing. In his brief, defendant concedes that “had [Anna’s] testimony been clear regarding intrusion into the labia, it would have been sufficient to establish intrusion into a genital area, and thus, sexual penetration.” Based on the entire colloquy between Anna and the prosecutor, we are satisfied that Anna’s testimony as to the Mantón Avenue incident shows that defendant vaginally penetrated her. Even if initially unclear, Anna affirmatively agreed with the prosecutor three times when questioned about when defendant was “inside” her. But see In the Matter of B.H.,
Anna’s testimony, in light of her clarification, was sufficiently “precise” and “specific” to prove penetration beyond a reasonable doubt.
2. Count 2
The defendant also alleges that the trial justice erred in denying his motion for judgment of acquittal as to the Sterling Avenue incident, which formed the basis for count 2. Anna testified at trial that, while living at Sterling Avenue when she was eleven years old, defendant again sexually assaulted her. She testified that, when she visited defendant at his apartment, defendant pushed her onto the bed, undressed her,. and took off his pants before lying on top of her. Anna testified as follows:
“Q: When he is on top of you, what does he do next?
“A: He attempts to have intercourse with me.
“Q: When you say ‘attempts to have intercourse’ with you, what do you mean?
“A: He proceeded to put his penis into my vagina again.
“Q: And you felt his penis in your vagina?
“A: Yes.
[[Image here]]
“Q: So his penis goes into your vagina, how long do you think that lasts?
“A: I can’t — I can’t answer.
“Q: But you felt it inside of you?
“A: Yes.
“Q: And this time you have no clothes on, he has no clothes on?
“A: Correct.
“Q: What happens after — strike that. Does he eventually take his penis out of your vagina?
“A: Yes.”
The defendant takes issue with Anna’s assertion that defendant “attempt[ed] to have intercourse” with her, which he argues does not sufficiently prove penetration. If her testimony had stopped there, we would be inclined to agree. However, after making that statement, Anna immediately clarified that, by “attempt to have intercourse,” she meant that he “proceeded to put his penis into [her] vagina again.” Anna’s subsequent clarification was “precise” and “specific” as to vaginal penetration; and, viewing the evidence in the light most favorable to the prosecution, it was adequate to prove penetration beyond a reasonable doubt. See McDonald,
The trial justice, therefore, did not err in denying the defendant’s motion for judgment of acquittal on counts 1 and 2.
Ill
Conclusion
For the foregoing reasons, we affirm the judgment of the Superior Court. The record may be returned to that tribunal.
Notes
. The defendant’s trial counsel failed to file a notice of appeal,
. To protect the privacy of the complaining witness, who now has a family of her own, we follow our customary practice of giving child victims in these cases fictitious names.
. Three of those events were the basis for the present charges against defendant; still others were admitted as evidence pursuant to Rule 404(b) of the Rhode Island Rules of Evidence. Rule 404(b) 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,”
. This evidence was admitted pursuant to Rule 404(b), and it is not contested on appeal.
. This testimony formed the basis for count 1, which we shall refer to as the Mantón Avenue incident.
. This evidence was admitted pursuant to Rule 404(b), and it is not contested on appeal.
. This evidence was admitted pursuant to Rule 404(b), and it is not contested on appeal.
. This testimony formed the basis for count 2, which we shall refer to as the Sterling Avenue incident.
. This testimony formed the basis for count 3.
.We again use a fictitious name in the interest of anonymity.
. We decline to accept defendant's submission at oral argument that the prosecution’s undeniably late disclosure could fairly be characterized as intentional. We glean no evidence from the record to suggest that the prosecution withheld the testimony intentionally, especially in light of the state's insistence that, when Beth agreed to testify, it informed the court and the defense the next morning. But see State v. Stravato,
. While the trial justice did not explicitly say that the state had committed a violation of Rule 16 of the Superior Court Rules of Criminal Procedure, we infer that, because he issued a Rule 16 remedy, he determined that one had occurred.
. The trial justice, after ruling on the admissibility of Beth’s testimony and determining that it must wait until Monday, told defense counsel, "I'll note your exception.” That statement does not change our determination that defense counsel failed to object to the remedy. Defense counsel's initial objection related only to the admissibility of Beth’s testimony under Rule 404(b), not to the remedy that the trial justice made to cure the Rule 16 violation, leading us to the conclusion that, even if the exception applied to the trial justice’s remedy, counsel failed to tailor an objection specific enough to preserve the record. See State v. Lyons,
Moreover, after "not[ing] [his] exception,” the trial justice gave both counsel the opportunity to put "anything else [on] the record,” an invitation each declined. As such, defense counsel could not rely on the trial justice's given "exception” to preserve his objection to the trial justice’s chosen remedy for the state’s Rule 16 violation.
. The state offered an alternative reason for defense counsel's brief cross-examination of Beth: the "remarkable consistency” between her various accounts. While we do not con-elude yvhich explanation is most persuasive, we do note that both possible reasons for defense counsel’s brevity are plausible.
. State v. Pereira,
The joined sexual assault charges in Pereira,
. While the trial justice instructed the jury on motive, opportunity, intent, preparation, and plan, we focus only on what we perceive to be the most pertinent exception — plan. See Sobanski v. Donahue,
. We appreciate that Beth’s testimony is not admissible under the Rule 404(b) exception of "lewd disposition” because Beth is not the complaining witness in the case. See State v. Dubois,
. While the trial justice did not specifically reference "common scheme or plan,” he did acknowledge the "plan” exception, and wé remark that "common scheme or plan” and "plan” have been used interchangeably. See State v. Hopkins,
. The defendant emphasizes that it only "dawned on” the prosecution the night before trial to call Beth to the stand. Conversely, before the trial justice, the state characterized Beth as "not a last-minute witness, but a witness the [s]tate felt was not prepared to go to any type of hearing against [defendant] * * * it is not a last-minute issue that has come up in the factual outline of this case.” Based on the state’s submission that it did not proceed to trial without Beth’s testimony by its own choosing, defendant’s characterization of Beth’s testimony does not convince us that it was not of reasonable necessity, Had Beth offered to testify at trial and the state declined, our determination today might be different, But because that is not the situation presented before us now, we do not disturb the trial justice’s finding that Beth’s testimony was, reasonably necessary to the state’s case.
. Because we are satisfied that there was sufficient evidence in light of our conclusion that Anna's statement that "technically” defendant was inside her did not taint the remainder of her testimony, we need not address defendant's assertion that "touching of external female genitalia — ‘on’ the labia, as [Anna] initially testified — is not sexual intercourse or an intrusion, however slight, into a genital opening.”
Dissenting Opinion
with whom Justice Robinson joins, dissenting.
“In a very real sense a defendant starts his life afresh when he stands before a jury, a prisoner at the bar.” People v. Zackowitz,254 N.Y. 192 ,172 N.E. 466 , 468 (1930) (Cardozo, C.J.).
I respectfully dissent from the holding of the majority in this case. I do so because I conclude that the testimony of Beth was not properly admitted under Rule 404(b) of the Rhode Island Rules of Evidence. To be sure, our jurisprudence has deemed the admission of other-bad-acts evidence to be a flexible concept. But it is my opinion that, in this case, the elasticity of the rule has been stretched beyond the breaking point.
We have in this jurisdiction a well-established body of case law with respect to the admissibility of 404(b) evidence of a defendant’s sexual offenses against a person other than the complaining witness. For such evidence to be properly admitted, we have said, time and time again, that it must be (1) nonremote and similar to the charged conduct; (2) admitted only to prove a Rule 404(b) exception that is relevant to proving the crime charged; and (3) reasonably necessary to prove the crime charged. See State v. Cavanaugh,
1
Nonremote and Similar
It is well-settled law that, for purposes of Rule 404(b), sexual “[o]ffenses 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,
To be sure, this Court previously has approved the admission of evidence of uncharged sexual offenses against victims other than the complainants, even though the misdeeds were several years removed from the charged crimes. See Merida,
Count 1 charged defendant with first-degree child molestation that occurred sometime at the end of 1987 or the beginning of 1988. That charge involved defendant’s laying eight-year-old Anna, his girlfriend’s daughter with whom he lived, flat on the couch; climbing on top of her; straddling her; removing her pants and underwear; rubbing his penis against her vagina; and penetrating her labia. Count 2 charged defendant with first-degree child molestation at some point in 1990. That charge alleged that defendant forcefully pushed Anna onto his bed, completely undressed her, lay fully on top of her, with his legs between hers, and penetrated her vagina. Count 3 charged defendant with second-degree child molestation sometime between April 1,1992 and August 30,1992. That charge .alleged that defendant grabbed Anna’s breast.
As evidence that defendant committed these crimes against Anna, Beth was permitted to testify to a .sexual assault that defendant, her biological father whom she rarely saw,, attempted in 2003, when she was eight years old. Beth said that, as she sat on the edge of defendant’s bed in his single-room apartment, defendant pushed her back on the bed and began taking his and her clothes off; all the while, Beth was struggling to get up. According to Beth, defendant climbed on top of her, and, because she was trying to push him away, he wrapped her arms in his belt and put them above her head. He then put his arms and legs on either side of Beth, straddling her. Beth testified that defendant tried to put his penis in her vagina. According to Beth, his penis actually touched her vagina, but because of her kicking him away as she struggled to get up, he was unsuccessful in his efforts to penetrate her.
Beth’s testimony alleging prior’ acts by defendant could be considered similar to the charges set out in- counts 1 and 2, which predate the 404(b) evidence by fifteen years and thirteen years, respectively.
Of course, as the majority notes, “[remoteness is relative, depending upon the circumstances and the conduct in question.” State v. Pignolet,
The Court today recasts the rule to the extent that, as long as the 404(b) evidence is sufficiently similar to the charged conduct, it need not be sufficiently nonremote. The majority rationalizes this conclusion by saying that temporal relation is but one of many factors to be considered. See Mo-hapatra,
2
Relevant Rule 404(b) Exception
Rule 404(b) permits evidence of a defendant’s other crimes, wrongs, or acts to be admitted for the purpose of proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The majority shoehorns Beth’s testimony into the' plan exception under Rule 404(b). I cannot agree. As I have addressed earlier in this dissent, the earlier charges concerning Anna and the later incident that involved Beth were separated by-well over a decade and were completely unconnected incidents in the context of the evidence presented at trial. There was no demonstration by the state that the later sexual misconduct was “part and parcel” of a common scheme or plan by defendant, or that the subsequent act and the charges were “linked as integral components of * * * defendant’s common purpose or plan to commit the current charge[s,]” State v. Aakre,
Yet, the majority reasons that evidence of defendant’s molestation of Beth was admissible to prove his “plan,” thirteen to fifteen years earlier, to commit first-degree child molestation, against Anna. Ironically, the plan exception under Rule 404(b) is the one most closely related to the threshold remoteness inquiry. See Aakre,
In essence, the Court’s holding today “allowfe] a common scheme to be proven by the simple expedient of aggregating similar criminal acts without regard to the time frame within which those acts occurred and without regard to whether those acts were actually part of a common purpose or plan to commit the offense at issue.” Aakre,
Additionally, when giving the jury the requisite limiting instruction, see State v. Garcia,
“Because other-act evidence can serve several purposes at once, evidentiary disputes under Rule 404(b) often raise, the following question: Does a permissible ultimate purpose (say, proof of the defendant’s knowledge or intent) cleanse • an impermissible subsidiary purpose (propensity)? On the surface the rule seems to permit this. But if * * * the rule allows the admission of other bad acts whenever they can be connected to ' the defendant’s knowledge, intent, or identity, (or some other plausible non-propensity purpose), then the bar against propensity evidence would be virtually meaningless.” United States v. Gomez, 763 F.3d:-845, 855 (7th Cir. •2014); accord United States v. Miller,673 F.3d 688 , 696-97 (7th Cir. 2012) (explaining that the “list of exceptions in Rule 404(b), if applied mechanically, would overwhelm the central principle” of the rule because “[a]lmost any bad act evidence simultaneously condemns by besmirching character and by showing one or more of’ the permissible purposes (quoting United States v. Beasley,809 F.2d 1273 , 1279 (7th Cir. 1987))).
In an effort “[t]o resolve this inherent tension in the rule,” the trial justice is called upon to examine “the chain of reasoning that supports the non-propensity purpose for admitting the evidence.” Gomez,
Here, the trial justice listed the following exceptions when he instructed the jury as to the limited purposes for Beth’s .testimony: motive, opportunity, intent, preparation, and plan. The majority now designates but one of those exceptions (plan) as the permissible basis for admitting Beth’s testimony. I do not believe that any of these exceptions applies, let alone all of them. It seems obvious that neither motive nor, intent was “at issue” in this case, and therefore, Beth’s testimony could not have been admitted to shed light on those issues. Quattrocchi,.
But, even assuming there were a single permissible Rule 404(b) exception, I believe that the trial justice’s instruction did not specify the particular, limited purpose for which the jury could use Beth’s testimony.
In this case, none of the purposes listed by the trial justice were even “genuinely in issue.” Winter,
To quote the articulate admonitory words of the late Chief Justice Weisber-ger: “In sum the only purpose of this testimony was to show propensity. * * * This result Rule 404(b) will not permit by its express terms. * * * I fear that the opinion of the majority would cause the exceptions set forth in Rule 404(b) * * * to swallow the rule and render it a nullity.” Hopkins,
3
Reasonably Necessary
Even assuming that the 404(b) evidence were nonremote and similar, and further assuming it was admitted only to prove a relevant Rule 404(b) exception, it would have been admissible only if it were reasonably necessary to prove the crimes charged. “In determining whether evidence is necessary to establish the state’s prima facie case, ‘the test we must apply is what appeared to be reasonably necessary to the trial justice at the time [the testimony is offered].’ ” Brigham,
I agree with the statement of the majority that, because she was an adult when she testified, Anna should not have been afforded the same latitude as child complainants. See Mohapatra,
As the majority sees it, any case prompted by a late disclosure or without physical evidence (be it a sexual assault or molestation case or otherwise) is nothing more than a credibility contest in which evidence of a defendant’s other bad acts can be admitted to bolster the complainant’s testimony. There is no longer any regard for whether the complaining witness is a child, who may be unable to handle the pressures of testifying and accurately recount traumatic events, or an adult. In fact, a defendant need not even testify to render a trial a credibility contest; the sole fact that the defendant goes to trial is apparently enough. Mere cross-examination of a complaining witness to test the veracity of his or her testimony transforms a trial on only those crimes charged into a free-for-all whereby the state can show that the defendant is a bad person who should be convicted,
“Mere weakness of the prosecution’s case is insufficient reason to admit irrelevant and prejudicial evidence.” State v. Lammreux,
Conclusion
Even a defendant charged with the most despicable- of acts is entitled to be tried with evidence that is relevant and which does not highlight his propensity for criminal acts.- Because I believe that the testimony of Beth was improperly admitted, I most respectfully dissent from the Court’s holding in this case and would vacate the conviction and remand .the matter to the Superior Court for a new trial.
. To be clear, these cases do not include those relying on the so-called "lewd-disposition” exception to Rule 404(b) of the Rhode Island Rules of Evidence. See State v. Jalette,
“Pignolet represented the extreme beyond which we are unwilling to extend the other-crimes (or bad-acts) exception because of its • 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.” State v. Quat-trocchi,681 A.2d 879 , 886 (R.I. 1996).
I find it noteworthy that the author of the Jalette opinion vigorously dissented in Pigno-let, decrying, “the rationale that led to Jalette has been laid to its eternal rest without benefit of so much as a eulogy." Pignolet,
Nonetheless, the majority has seemingly relied on the lewd-disposition exception in explaining how Beth's testimony was relevant to proving the crime that defendant was charged with committing against Anna. The majority, quoting prior case law, writes in its opinion that Beth’s testimony “was indicative of '[the] defendant’s lecherous conduct toward' ^ ⅜ •‘|l [girls] 'over whom he exercised discipline, control, and supervision.' ” State v. Perez,
. I do not disagree that the Mantón Avenue and Sterling Avenue incidents involving Anna and the incident that Beth described are similar. But I am of the opinion that nonremoteness -and similariiy are distinct inquiries, as discussed infra.
. ‘Again, I cite no cases relying on the lewd-disposition exception. This is so because, in a given case where the Rule 404(b) testimony concerns the complaining witness, I may feel it appropriate to analyze the remoteness factor differently than I do in this case. For instance, in State v. Toole,
. Count 3, which bears, no resemblance, at all to the incident Beth described, involved an incident which occurred eleven years earlier. I acknowledge that the interval between count 3 and the 404(b) evidence is one this Court has affirmed in the past. See Coning-ford,
. Although we have recognized that the list of exceptions set forth in the second sentence of Rule 404(b) is not exhaustive, see State v. Cavanaugh,
. This is precisely, the reason why those permissible purposes outlined in Rule 404(b) are widely recognized as “exceptions” to the character evidence rule.
. I do not suggest that none" of the Rule 404(b) exceptions could ever apply to a' subsequent bad act, but it. seems clear to me that only very limited and unusual facts and circumstances would allow for the use of such evidence. For example, a subsequent act that is part of a continuing course of conduct or larger plan or scheme might be admitted as tending to prove the commission of the earlier crime charged. See, e.g., Commonwealth v. Hanlon,
. ' I acknowledge that there was no objection raised to the trial justice’s cautionary instruction.
. It is noteworthy that defendant did not testify-
Dissenting Opinion
dissenting.
While I join in Justice Flaherty’s thoughtful dissent, which is predicated on Rule 404(b) considerations, it is my further" view that, even if Rule 404(b) did not require exclusion of the evidence relative to defendant’s purported actions vis-á-vis Beth, that evidence should definitely have been excluded pursuant to Rule 403 of the Rhode Island Rules of Evidence. See State v. Gaspar,