STATE v. MONTERO
No. 2023-92-C.A.
Supreme Court of Rhode Island
August 18, 2025
(P1/20-3378A)
(Concurrence begins on Page 50)
(Dissent begins on Page 58)
OPINION
Justice Goldberg, for the Court. The defendant Miguel Montero (defendant or Montero) was charged with two counts of first-degree child molestation sexual assault, viz., fellatio, in violation of
At the time of trial, defendant was the father to at least nine children, eight of whom were between the ages of nine and fifteen years old. One child—Anne, the complainant1—was born to Elaine in October 2011. After a hearing on a motion in limine, see infra, Elaine testified that she was thirteen years old when she began a “romantic relationship” with defendant, who, at the time, was approximately twenty-eight years old. Elaine explained that defendant began engaging in sexual intercourse with her at the age of thirteen, she became pregnant with Anne at the age of fourteen, and she gave birth to Anne at the age of fifteen. From the time of her birth until she was approximately three to five years old, Anne lived with Elaine in the Dominican Republic. According to travel records admitted as a full exhibit over defendant‘s objection, Anne came to the United States on January 22, 2015, at which time she moved to Pawtucket, Rhode Island and resided with defendant. Elaine remained in the Dominican Republic.
Anne lived in a three-story multi-residence building. Neighbors resided on the first floor; Montero, his then-wife, Dorothy, and their three children occupied the second floor; and Anne lived on the third floor with defendant‘s mother. In September 2016, Dorothy and her children vacated the residence and Anne relocated
On one occasion, defendant steered Anne into her brother‘s room, removed his pants, positioned himself on top and, according to Anne, “rubbed his private part on mine.” Anne clarified that the portion of the female anatomy she was referencing was used “[t]o pee,” and that defendant also “put his mouth on my private part.”2
Anne also described a separate but similar incident when defendant positioned himself on top of her, “did the same thing,” and “went up and down.” This second incident occurred on the bed in defendant‘s bedroom. Anne was unable to recall how old she was when either event transpired.
A third incident transpired in a bathroom when defendant was wearing a mask due to having contracted COVID-19. On this occasion, Anne and defendant were behind a closed door with the bathroom lights turned off when defendant removed his pants, hoisted himself on top of the sink, and forced his penis into Anne‘s mouth.
The fourth charged event occurred in the late evening hours of September 11, 2020, or the early morning hours of September 12, 2020, after defendant returned from a trip to the Dominican Republic. Anne related that she was on the third floor of the residence with other family members when defendant returned home late in the evening or the early morning. After affectionately greeting defendant, Anne testified that she went downstairs to the second floor hoping to go to sleep but soon found herself in defendant‘s bedroom. Montero closed and locked the bedroom door, removed his pants, and according to Anne, “put his private part in my mouth” until “white stuff came out.” Anne clarified that the portion of the male anatomy she was referencing was used “[t]o pee.”
The above-described sordid episodes comprised the indictment, see infra, but Anne also testified to two uncharged episodes of sexual misconduct involving defendant. Anne testified that during a family vacation to Virginia, she was in a room with other family members of approximately the same age when defendant “put his private part in my mouth,” and similarly, during a trip to the Dominican Republic, when defendant “put his private part in my mouth.” Anne estimated that the Virginia incident occurred when she was eight or nine years old, but she did not specify when the Dominican Republic incident occurred.
Shortly after the September 11-12, 2020 incident, Christine sensed a “weird vibe” emanating from Anne and asked, “[W]hat‘s wrong?” Anne again confided in Christine, who in turn notified defendant‘s sister. When defendant‘s sister provided no help, Christine notified a stepsister, Beth, who alerted her mother and defendant‘s ex-wife, Dorothy.
The next morning, Dorothy drove to defendant‘s residence and gathered the three children at that location, including Anne, under the ruse of an early birthday celebration for Beth. Dorothy drove to her residence where two of the children disembarked, leaving Dorothy and Anne alone in the vehicle. Dorothy testified that she asked Anne to tell her about the conversation she had with Christine concerning what “was going on in her dad‘s house.” At trial, defendant objected to this inquiry on hearsay grounds; and, after a lengthy sidebar, the trial justice overruled the objection. Dorothy testified that Anne “told me that, um, her dad was making her
On September 18, 2020, a DCYF Child Protective Investigator responded to Dorothy‘s residence and conducted several interviews, including with Dorothy, Christine, and Anne. At the conclusion of these interviews, DCYF implemented a forty-eight-hour protective hold, effectively removing Anne from defendant‘s residence and placing Anne in Dorothy‘s temporary custody. Anne was later interviewed by DCYF, the Pawtucket Police Department, and the Office of the Attorney General; subsequently, Anne was examined by Amy Goldberg, M.D., an attending pediatrician at Hasbro Children‘s Hospital subspecializing in the area of child-abuse pediatrics. Doctor Goldberg testified to a reasonable degree of medical certainty that her evaluation of Anne was consistent with child sexual abuse.
On November 23, 2020, a grand jury returned a four-count indictment. As set forth on the verdict form, defendant was charged with committing the following acts against Anne: count 1, on or about September 11, 2020, first-degree child
Additional relevant facts will be set forth as needed.
Analysis
I
Evidence Admitted Pursuant to Rule 404(b)
The defendant posits that the trial justice erred when he permitted testimony concerning certain uncharged sexual misconduct: specifically that (1) defendant engaged in sexual intercourse with Elaine when she was thirteen years old and that Elaine was fifteen years old when she gave birth to Anne; and (2) defendant
Issues concerning a trial justice‘s decision to admit or exclude evidence are examined under an abuse-of-discretion standard. See State v. Rainey, 175 A.3d 1169, 1182 (R.I. 2018). “If the evidence was admitted under Rule 404(b), then ‘this Court is disinclined to perceive an abuse of discretion so long as the record contains some grounds for supporting the trial justice‘s decision.‘” Id. (deletion omitted) (quoting State v. Cavanaugh, 158 A.3d 268, 279 (R.I. 2017)).
Rule 404(b) of the Rhode Island Rules of Evidence provides:
“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or to prove that defendant feared imminent bodily harm and that the fear was reasonable.”
It is well settled that “Rule 404(b) prohibits the admission of evidence of other crimes, wrongs, or acts ‘to show the defendant‘s propensity to commit the crime with which he or she is currently charged.‘” State v. Mitchell, 80 A.3d 19, 28 (R.I. 2013) (brackets omitted) (quoting State v. Dubois, 36 A.3d 191, 199 (R.I. 2012)). Thus, “the state may not offer evidence of a defendant‘s other sexual misconduct ‘to prove that the defendant is a bad man, and that he has a propensity toward sexual offenses and, therefore, probably committed the offenses with which he is charged.‘”
A
Uncharged Sexual Misconduct Involving Elaine
During a motion in limine, the state sought to admit testimony concerning defendant‘s uncharged sexual escapades with three young girls, pursuant to Rule 404(b). Specifically, the state sought to procure testimony from Elaine that
The state proffered that defendant‘s past sexual exploits were sufficiently similar and nonremote to the charges in the indictment, and that the uncharged sexual misconduct demonstrated “a common plan or scheme with young girls to sexually gratify himself by penetrating the vagina of these other women.” The state also argued that second-degree child molestation sexual assault required the state to demonstrate that defendant committed the assault for purposes of sexual gratification.
After hearing arguments, the trial justice allowed Elaine‘s testimony, reserved decision on Dorothy‘s testimony,4 and precluded testimony regarding the third encounter. In so doing, the trial justice noted the similarities between the charged
When considering the propriety of Rule 404(b) evidence concerning uncharged sexual misconduct with someone other than the complainant, this Court requires a three-step inquiry. First, “when the evidence offered proves prior sexual misconduct with someone other than the complainant, ‘nonremote similar sexual offenses’ are admissible under the exceptions of Rule 404(b).” Mohapatra, 880 A.2d at 806 (quoting State v. Jalette, 119 R.I. 614, 627, 382 A.2d 526, 533 (1978)). Second, the uncharged evidence “is admissible only when that exception is relevant to proving the charge lodged against the defendant, and only when reasonably necessary.” Rainey, 175 A.3d at 1182 (quoting Mohapatra, 880 A.2d at 806). Third, “if the trial justice allows the evidence, he or she ‘must instruct the jury on the limited
Nonremoteness and Similarity
This Court has declared that “when a defendant‘s prior sexual misconduct against persons besides the complainant is introduced, it ‘must be sufficiently similar and contemporaneous to support a ruling of admissibility by the trial justice.‘” Rainey, 175 A.3d at 1182 (quoting Mohapatra, 880 A.2d at 806). “Both the similarity and contemporaneousness of the acts are required for a common purpose:
As the trial justice astutely observed, Anne and Elaine were both extraordinarily young at the time of defendant‘s actions; Elaine testified that she was about thirteen years old when defendant engaged in sexual intercourse, and Anne was eight years old at the time the last charged assault allegedly occurred in September 2020. Although the trial justice supportably concluded that Anne‘s and Elaine‘s ages were “pretty close” when defendant committed the sexual misconduct, we are in full agreement with the trial justice that the ages in both situations were similar because “[t]hey‘re both extremely young.” See State v. Perry, 182 A.3d 558,
The nature of the uncharged and charged sexual misconduct, while not identical, was similar in that the uncharged act involved penile penetration of Elaine while the charged act concerned defendant positioning himself on top of Anne and rubbing his penis on her vagina—just short of penetration. In considering this aspect of the Rule 404(b) analysis, “we are not concerned with whether the incidents were exactly the same, nor with whether they contained uncannily similar facts.” Perry, 182 A.3d at 570 (quoting Rainey, 175 A.3d at 1183); see also Mohapatra, 880 A.2d at 807-08 n.5 (“The actual sexual contact need not be identical to be considered sufficiently similar to be admitted into evidence.“).
Here, defendant engaged in sexual intercourse with Elaine and forced Anne to perform fellatio until he ejaculated. The defendant also positioned himself on top of Anne and rubbed his penis on his daughter‘s vagina. It suffices that in both the uncharged and charged situations, defendant‘s penis touched the vagina of a young
Finally, contrary to defendant‘s argument, the time period between the uncharged and charged events is sufficiently nonremote. “Remoteness is relative, depending upon the circumstances and the conduct in question.” State v. Baptista, 894 A.2d 911, 915 (R.I. 2006) (quoting State v. Pignolet, 465 A.2d 176, 181 (R.I. 1983)). The defendant‘s sexual encounters with Elaine began in approximately 2009, six years before the onset of the time period charged in the indictment when his daughter was just over three years old. We have previously held that time spans between charged and uncharged misconduct ranging from approximately ten years, see Hopkins, 698 A.2d at 186, eleven to fifteen years, see Rainey, 175 A.3d at 1183, and thirteen to nineteen years, see Perry, 182 A.3d at 569 n.6, satisfied the
Relevant and Reasonably Necessary
To be admissible under Rule 404(b), “the evidence must also be relevant to the crime charged and reasonably necessary.” Perry, 182 A.3d at 570 (brackets omitted) (quoting Rainey, 175 A.3d at 1185). Pursuant to Rule 401, “relevant evidence” is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rainey, 175 A.3d at 1185-86 (quoting Perez, 161 A.3d at 497). Rule 402 also provides that “all relevant evidence is admissible.” Id. at 1186 (brackets omitted) (quoting Perez, 161 A.3d at 497). Accordingly, “the relevancy bar is quite low.” Id. (deletion omitted) (quoting Perez, 161 A.3d at 497).
This Court has often recognized that “when a defendant is charged with second-degree molestation, similar incidents involving other victims are admissible to demonstrate the defendant‘s intent to sexually gratify.” Perry, 182 A.3d at 570 (quoting Mitchell, 80 A.3d at 29). This is so because “[t]o be found guilty of second-degree child molestation, defendant‘s contact with the victim must be committed with the purpose of ‘sexual arousal, gratification, or assault.‘”
Here, Montero was charged with two counts of second-degree child molestation sexual assault; as such, Elaine‘s testimony that defendant previously engaged in similar acts of sexual misconduct with a similarly-aged young girl was “relevant to demonstrate [his] specific intent to self-gratify.” Perry, 182 A.3d at 570. This conclusion accords with our precedent. See, e.g., Mitchell, 80 A.3d at 29 (“Although defendant asserts that intent was not at issue in this case, defendant was charged with five counts of second-degree child molestation. Second-degree molestation is a specific-intent crime that requires the state to prove beyond a reasonable doubt that the defendant touched the victim ‘for the purpose of sexual arousal, gratification, or assault.‘“) (quoting Coningford, 901 A.2d at 630); Coningford, 901 A.2d at 629 (“[T]he jury could infer, from the evidence of similar incidents involving two other young boys, that defendant‘s intent in touching [the
Additionally, Elaine‘s testimony fits comfortably within the Rule 404(b) exception “to show a common scheme, plan, or modus operandi to molest young [girls].” Coningford, 901 A.2d at 628. In Hopkins, we concluded that the defendant‘s prior sexual misconduct was admissible pursuant to multiple Rule 404(b) exceptions and demonstrated that “when given the opportunity, [the defendant] had a motive, an intent, and a plan to abuse children of like age in a like manner to that in which he abused his stepson when they were under his control or influence.” Hopkins, 698 A.2d at 185; see also Pignolet, 465 A.2d at 182 (observing that uncharged sexual acts committed by the defendant were “relevant, material, and highly probative of defendant‘s lecherous conduct toward these young girls over whom he exercised discipline, control, and supervision“).
Since Hopkins, this Court has remained steadfast in its determination that nonremote and similar sexual misconduct is relevant “to show a larger pattern of behavior adverse to young girls, demonstrating a plan.” Rainey, 175 A.3d at 1186. For example, we recognized that “all three boys were at what may be considered a vulnerable age that would possibly make them less resistant to defendant‘s
With respect to whether Elaine‘s testimony was reasonably necessary, this Court has recognized that “[w]hen charges of sexual abuse hinge upon a credibility contest between defendant and child complainant, relevant evidence of prior sexual misconduct is reasonably necessary to support the complainant‘s testimony.” Mohapatra, 880 A.2d at 808. We later elucidated that
“this is a case in which the evidence revealed a crime committed in private with a significant lapse of time between the sexual assaults and the prosecution. The credibility of the complainant was placed at center stage. We therefore are persuaded that this evidence meets the test of relevancy and necessity to the state‘s case. It is not cumulative.” Cavanaugh, 158 A.3d at 280.
The
Here, after overruling defendant‘s
“But ladies and gentlemen, I want to let you know that you‘re about to hear -- you have heard testimony concerning the conduct, more testimony about conduct for which Mr. Montero is not charged.
“Mr. Montero is before you only for incidents allegedly occurring with [Anne], we know that. He is not on trial for incidents that may have occurred earlier with this woman, [Elaine]. The conduct for which, the conduct which you are hearing and which you‘re likely to hear if this goes on, is to be considered by you only for a specific purpose, and it‘s up to you as to whether or not you wish to consider it at all. You must consider it only, if at all, to show that the defendant‘s motive, conduct, opportunity, preparation or plan, if any, as it relates to acts with [Anne], as described in her testimony. You may consider this testimony for no other purpose than that limited purpose as I had instructed you.
“Again, Mr. Montero is not on trial for the particular acts which he may have had with [Elaine], which are being described.” (Emphasis added.)
On appeal, Montero suggests that the instruction failed to comply with Jalette, in which this Court instructed that “[i]n its charge the trial court should not take a scatter-shot approach and list all of the exceptions to the exclusionary rule. Rather, it shall designate with particularity the specific exceptions to which the ‘other crimes’ evidence is relevant and delete from its charge the remaining exceptions.” Jalette, 119 R.I. at 627-28, 382 A.2d at 533.
While defendant suggests that the trial justice‘s instruction was overly broad in its inclusion of five
Rule 403
On appeal, we employ the same abuse-of-discretion standard as recited above; “the admissibility of evidence is within the sound discretion of the trial justice, and this Court will not interfere with the trial justice‘s decision unless a clear abuse of discretion is apparent.” Perry, 182 A.3d at 571 (brackets omitted) (quoting Rainey, 175 A.3d at 1187). This Court has also recognized “that a trial justice‘s discretion to exclude evidence under
The defendant claims that Elaine‘s testimony was irrelevant and precluded by
B
Uncharged Sexual Misconduct Involving Anne
During a motion in limine, the state sought to admit testimony from Anne that defendant committed additional uncharged acts of sexual misconduct against her during a family vacation to Virginia and while she was in the Dominican Republic. According to the state, the uncharged sexual misconduct occurred during the time span identified in the indictment, provided context concerning the charges set forth in the indictment, demonstrated a common plan or scheme, and evidenced defendant‘s lewd disposition toward Anne. The state also submitted that the uncharged sexual misconduct evidence was necessary to prove defendant committed second-degree child molestation and that such actions were committed for purposes of sexual gratification.
The trial justice allowed the state to submit evidence pertaining to uncharged sexual misconduct against Anne in Virginia and the Dominican Republic, but expressly limited such evidence to the time period set forth in the indictment and instructed that the evidence be used sparingly and limited to “a brief discussion of several sentences.” In so doing, the trial justice determined that the uncharged sexual misconduct was necessary to establish defendant‘s lewd disposition toward Anne and also demonstrated a common scheme, intent, and predilection on behalf of defendant. Defense counsel twice renewed this objection during trial—separately when testimony concerning the incidents in Virginia and the Dominican Republic were elicited—which the trial justice overruled.
Under
“First, the evidence should be used sparingly and only when reasonably necessary. Jalette, 119 R.I. at 627, 382 A.2d at 533. Other-acts evidence should be excluded if it is merely cumulative. Id. Second, the evidence is only to be admitted when the exception is relevant to proving the charges lodged against the [defendant]. Id. Finally, a trial court should designate with particularity the specific exception to which the evidence is relevant and instruct the jury concerning the limited use for which the evidence is to be considered. Id. at 627-28, 382 A.2d at 533.” Id. at 457-58 (quoting Gomes, 690 A.2d at 316-17).
We conclude that the trial justice did not abuse his discretion when he declared that these prerequisites were satisfied.
First, the trial justice expressly recognized the need to use the uncharged sexual misconduct evidence “sparingly.” He limited reference to the uncharged episodes occurring in Virginia and the Dominican Republic during the period of the indictment—between January 1, 2015, and September 18, 2020—and instructed the state to limit its examination on this topic to “several sentences.” The state complied with these directives.
This evidence was also reasonably necessary and not cumulative. This Court has stated that “in the context of sexual assault cases, ‘when charges of sexual abuse hinge upon a credibility contest between defendant and child complainant, relevant evidence of prior sexual misconduct is reasonably necessary to support the complainant‘s testimony.‘” State v. Watkins, 92 A.3d 172, 184 (R.I. 2014) (brackets omitted) (quoting Mitchell, 80 A.3d at 29). We have also recognized that “evidence
Second, the trial justice explained the relevancy of the uncharged sexual misconduct:
“[T]his evidence for [Anne] [is] necessary in order to show a scheme, in order to show defendant‘s intent, predilection. They may prove, they are likely to prove the propensity for lewdness, depending on the credibility of the witness and they also go to show the credibility of the witness * * *.”
As noted supra, the trial justice‘s recognition concerning the relevancy of this type of evidence comports with our precedent.
“You‘re about to hear some testimony or you may hear some testimony about conduct in which Mr. Montero was not charged. He was charged for events in Rhode Island. He is not on trial for other events. And therefore, you are to consider his conduct and his testimony in Rhode Island, and it‘s up to you to determine, as you hear the other testimony you must consider this testimony only for limited reasons. You must consider this evidence only to show if the defendant has another motive * * *. What the defendant‘s motive may be, his intent, opportunity, preparation and his plan, if any. The [c]ourt is not saying that there is any motive, opportunity or preparation.” (Emphasis added.)
When the state later questioned Anne concerning the uncharged sexual misconduct committed in the Dominican Republic, the trial justice rendered a similar instruction:
“[W]e are again getting into areas that are uncharged. [The defendant] is not charged for any acts that occurred in the Dominican Republic. The defendant is not charged. I‘m going to allow this for the limited purpose that I indicated to you before.
“Please consider this evidence only to show the defendant‘s motive, intent, opportunity, preparation and plan, if there is any.” (Emphasis added.)
After the close of evidence, the trial justice again instructed:
“Prior uncharged acts, * * * [Anne] talked about other incidents with her father for which he is not charged, those
prior uncharged acts should not be used to show the defendant‘s propensity, but you may use those prior acts to show motive, intent, opportunity, preparation or plan, if any.”9 (Emphasis added.)
The trial justice‘s thrice-given cautionary instruction ably complied with our precedent. See Thibedau, 157 A.3d at 1073 (“[The trial justice] properly informed the jury that it could not consider the uncharged acts of sexual misconduct as evidence of defendant‘s bad character or his propensity to commit sexual acts. He then delineated four specific uses for which the evidence might be considered, all of which are permissible uses under Rule 404(b).“); State v. Baptista, 894 A.2d 911, 916 (R.I. 2006) (“When a trial justice complies with the rules set out in Jalette, the admission of uncharged sexual conduct is highly discretionary.“). Furthermore, although defendant contends that the trial justice failed to designate with particularity the relevant
Rule 403
Montero also ascribes that the uncharged sexual misconduct testimony describing the Virginia and the Dominican Republic incidents contravened
Contrary to defendant‘s suggestion, Anne‘s testimony that defendant perpetrated other uncharged acts of sexual misconduct in Virginia and the Dominican Republic, including fellatio, was not unfairly prejudicial, did not have only “marginal probative value,” and did not endanger confusing the jury. Rather, as discussed herein, this uncharged sexual misconduct “served to display defendant‘s lewd disposition or intent toward the very person alleging the acts with which he was charged.” Baptista, 894 A.2d at 915. This evidence was highly probative of defendant‘s lewd predilection toward Anne, see Thibedau, 157 A.3d at 1072,
Here, the uncharged sexual misconduct was relevant to proving defendant‘s “lewd disposition” toward Anne as well as her credibility, particularly in light of Montero‘s defense that he never committed the charged acts of sexual misconduct. The
II
Prior Consistent Statements
Montero avers that the trial justice erred when he permitted testimony concerning certain prior consistent statements despite the absence of any claims of recent fabrication. The defendant directs our attention to Christine‘s and Dorothy‘s
“It is well settled that out-of-court statements offered for their truth are inadmissible unless a recognized exemption or exception applies.” Aponte, 317 A.3d at 750.
As this Court has observed, ”
In State v. Kholi, 672 A.2d 429 (R.I. 1996), we examined certain out-of-court statements, which the defendant argued were inadmissible hearsay. Kholi, 672 A.2d at 437-38. Specifically, the defendant suggested multiple motivations for the false accusation: (1) the declarant‘s desire that her mother remain in Rhode Island, (2) the declarant‘s wish that she not reside with her biological father, (3) the declarant‘s hope that her mother would divorce the defendant, and (4) the declarant‘s intent to file a civil action against the defendant in order to receive compensation from a state fund. See id. at 438. We concluded that the first three motivations preceded the declarant‘s utterance, “rendering them ineffective in qualifying the statements as admissible.” Id. The fourth asserted motivation to fabricate, however, postdated the out-of-court declaration. Id. Because the out-of-court statement “rebutted the defendant‘s charge and predated any purported motive to seek compensation,” we determined that the declaration satisfied the temporal requirement of
Here, defendant asserts that no evidence was submitted that suggests a recent motivation for Anne to fabricate the allegations of sexual misconduct. Rather, Montero is steadfast that Anne‘s motivation to fabricate the sexual misconduct allegations preceded the out-of-court disclosures to Christine and Dorothy and emanates from being separated from her mother and brought to the United States. The defendant maintains that he “never suggested that a new, intervening motive to fabricate her claim arose after she reported the alleged abuse to [Christine] and [Dorothy] * * *.” The record does not support defendant‘s claim.
Contrary to defendant‘s proposal, it is apparent that he asserted a new motivation to fabricate in the days before trial, and well after Anne‘s out-of-court statements to Christine and Dorothy. For example, during cross-examination, defense counsel questioned Anne concerning meeting with the prosecution days earlier in an effort to prepare for trial. Anne was also questioned concerning a gift—Play-Doh—that this ten-year-old received from one of the prosecutors in the days leading to trial. While lengthy, we reference an excerpt from defendant‘s closing
“Also, not for nothing, she‘s clearly rehearsed and rehearsed well. * * * So the prosecutor spoon fed [Anne] her testimony so she would say the words that the prosecution wanted you to hear. She told you, [Anne] told you that she had gone over the questions with the prosecutor at least three times before she testified.
“* * *
“And think about it, what [Anne] has experienced since she made this complaint, right? Any time she‘s been asked to repeat the answers to the questions, she‘s probably gotten a good girl, right? I know, I know this is hard for you, good girl. Right? Just imagine the special treatment she gets from every adult that she encounters. Not to mention now she lives in the Dominican with who? Her mom.
”And this started immediately after [Christine] and [Beth] talked to [Dorothy] and continuing right up until last week. She‘s a special girl. Now, I‘m not saying she‘s a bad person. But it is extremely possible that these allegations come from something other than sexual assault, and you have no way to tell the difference.” (Emphases added.)
Under similar circumstances alleging a motive for recent fabrication, we expressed that
“we are satisfied that the trial justice did not err when he found that defendant‘s cross-examination of Jane suggested the potential for improper influence in preparation for trial. The record discloses that defense counsel both directly and indirectly implied that Jane was coached by the prosecution and the police. Because it is undisputed that Jane‘s statements to [the DCYF
Our holding in Barkmeyer is equally applicable in this matter because Christine and Dorothy both testified concerning Anne‘s out-of-court declarations of charged sexual misconduct, which preceded at least one putative motivation to fabricate. See Kholi, 672 A.2d at 438. The trial justice did not abuse his discretion when he denied the motion to pass.
III
Admissibility of the Travel Records
The defendant challenges the trial justice‘s decision to admit international travel records from the United States Department of Homeland Security, which, in pertinent part, detail the date and time Montero and Anne entered or departed the United States through Customs. According to defendant, the state admitted the travel records into evidence without presenting the official who prepared the travel records in violation of the right to confrontation protected by the
“When a criminal defendant claims on appeal that the introduction of certain evidence violated his constitutional rights of confrontation and cross-examination,
In Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme Court departed from its precedent concerning the Confrontation Clause. The Supreme Court held that the Confrontation Clause bars admission of testimonial hearsay in a criminal case unless the declarant is unavailable and the accused has had a prior opportunity for cross-examination. Crawford, 541 U.S. at 68. As this Court later recognized, “[a] statement is testimonial if it is ‘a solemn declaration or affirmation made for the purpose of establishing or proving some fact.‘” State v. Ramirez, 936 A.2d 1254, 1266 (R.I. 2007) (quoting Davis v. Washington, 547 U.S. 813, 824 (2006)). In the years after Crawford, the Supreme Court elucidated the testimonial or nontestimonial distinction in the context of a police interrogation and relied upon what has become known as the primary purpose test:
“Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.
They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Davis, 547 U.S. at 822.
In Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), a defendant charged with drug offenses challenged several “certificates of analysis,” which verified that the seized substance had been tested and determined to be cocaine. See Melendez-Diaz, 557 U.S. at 308. At trial, the defendant objected to the admission of the certificates and asserted that the Confrontation Clause required the analysts to appear in person and testify. Id. at 309. The Supreme Court agreed and explained that “[t]he documents at issue * * * while denominated by Massachusetts law ‘certificates,’ are quite plainly affidavits: ‘declarations of facts written down and sworn to by the declarant before an officer authorized to administer oaths.‘” Id. at 310 (brackets omitted) (quoting Black‘s Law Dictionary 62 (8th ed. 2004)). Relying upon its precedent, the Supreme Court added that “[t]he ‘certificates’ are functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination‘” and that the certificates were “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial[.]” Id. at 310-11 (first quoting Davis, 547 U.S. at 830; then quoting Crawford, 541 U.S. at 52).
After Melendez-Diaz, the Supreme Court further expounded upon its Confrontation Clause jurisprudence, recognizing that when
“the primary purpose of an interrogation is to respond to an ‘ongoing emergency,’ its purpose is not to create a record for trial and thus is not within the scope of the Clause. But there may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony. In making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant. Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.” Michigan v. Bryant, 562 U.S. 344, 358-59 (2011).
In the case at bar, defendant ignores the primary purpose test, heavily relies upon Melendez-Diaz, and posits that the state‘s failure to present the official(s)
Special Agent Michael Polouski‘s testimony unequivocally demonstrates that the travel records were primarily “created for the administration of an entity‘s affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial.” Melendez-Diaz, 557 U.S. at 324. Special Agent Polouski explained that he had been an agent with the Department of Homeland Security since its inception in March 2003. He detailed that “when individuals enter the United States and depart the United States, U.S. Customs and Border Protection documents those instances in their databases,” that he was familiar with how travel records are maintained, and that “for the past couple decades [travel records] have been maintained in computer databases.” Special Agent Polouski added that when a traveler “appl[ies] for entry at a port of entry, they‘re examined by [a] United States Customs Officer, and the passport is examined * * * and [if] they are found to have a bona fide reason, that application is granted, then the documents and passports are scanned into the Department of Homeland Security database; the date, the place that they enter or exited and the classification under which they were granted entry or
Based upon our careful review, we are satisfied that defendant proffers no evidence or argument, nor does the record contain such evidence, that the travel records were “created for * * * the purpose of establishing or proving some fact at trial * * *.” Melendez-Diaz, 557 U.S. at 324; see, e.g., United States v. Noria, 945 F.3d 847, 857 (5th Cir. 2019) (“[W]e agree with the Ninth and Eleventh Circuits that the forms’ primary purpose is administrative, not investigative or prosecutorial. After all, immigration agents prepare an I-213 every time they encounter an alien suspected of being removable, regardless of whether that alien is ever criminally prosecuted or civilly removed.“). Accordingly, we discern no error in the trial justice‘s determination that defendant‘s right to confrontation was not violated.14
IV
The So-Called Batson Challenge
The defendant contends that the trial justice erred when he excused a prospective juror for cause. The prospective juror, whom defendant describes as Hispanic, alerted the jury commissioner on the first day of jury selection and advised that her ten-year-old daughter tested positive for COVID-19 the prior day. During a sidebar, the prospective juror indicated that her daughter was symptomatic, she was the sole caregiver, another household member (her boyfriend) had also tested positive for COVID-19, and another household member (a daughter) had not tested positive. At the time of the sidebar, the prospective juror had not tested positive. The trial justice overruled defendant‘s objection and excused the prospective juror for cause, explaining that the court had the responsibility to ensure the health and safety of other prospective jurors.
Immediately after excusing the prospective juror, defense counsel renewed the objection and argued that the court “should make every effort to keep people who are non Caucasian on the jury for the benefit of diversity * * *.” The trial justice responded that defendant‘s argument raised the specter of Batson v. Kentucky, 476 U.S. 79 (1986), but the trial justice nonetheless recognized that neither party had
On appeal, Montero argues that this issue must be viewed through a Batson framework and that because the prospective juror was not ill, had been vaccinated, and neither party was seeking to excuse the prospective juror, the trial justice erred. The defendant maintains that because the trial justice‘s reasons for excusing the prospective juror were not sufficient, “a racial motive was driving“; in other words, the excusal was racially motivated. We reject this contention.
As a threshold matter, multiple United States Circuit Courts of Appeals have determined that Batson does not apply to a trial justice‘s excusal for cause. See Infante v. Martel, 953 F.3d 560, 564-65 (9th Cir. 2020) (”Batson‘s three-step framework was never intended to assess a judge‘s decision to remove a juror for cause. If Infante‘s defense counsel had raised a Batson objection, it would have compelled the judge to perform the impracticable task of ruling on whether his own jury strike was racially discriminatory.“); United States v. Elliott, 89 F.3d 1360, 1364-65 (8th Cir. 1996) (”Batson applies only to peremptory strikes. We know of
Despite the foregoing conclusion, we nonetheless observe that “[t]he determination of the disqualification of a juror for cause is left to the discretion of the trial justice.” State v. Hazard, 785 A.2d 1111, 1122 (R.I. 2001). It should be carefully exercised. Considering the circumstances before us, we are satisfied that the trial justice did not abuse his discretion when he excused the prospective juror in an effort to protect the health and safety of other prospective jurors and court staff from the effects of COVID-19.
For the reasons stated, we affirm the judgment of conviction. The papers in this case are remanded to the Superior Court.
Justice Long, concurring. I concur with the disposition of this appeal as decided by my colleagues in the majority. However, I write separately because I conclude that the trial justice abused his discretion in admitting Elaine‘s testimony regarding prior uncharged acts of sexual misconduct involving Mr. Montero, yet the error was harmless. I also write separately to express my concerns with the state of this Court‘s jurisprudence concerning
The Advisory Committee Notes adopted in 1987 alongside our Rules of Evidence describe
Several years after this Court‘s decision in Jalette, we decided State v. Pignolet, 465 A.2d 176 (R.I. 1983). That case adopted a modest expansion of the Jalette exception in instances where the state seeks to introduce evidence of an uncharged crime involving a person other than the complainant, when the uncharged crime is similar to the charged act; we reasoned that such evidence is admissible when it tends to show the defendant‘s ongoing pattern of behavior and lewd disposition toward the complainant. Pignolet, 465 A.2d at 180-82; State v. Quattrocchi, 681 A.2d 879, 886 (R.I. 1996). That expansion, though at the time characterized by the author of Jalette as the death of Jalette, see Pignolet, 465 A.2d at 184 (Kelleher, J., dissenting), was later recognized as
“the extreme beyond which [this Court was] unwilling to extend the other-crimes * * * exception because of its
overwhelming prejudice to defendant and its tendency to be viewed by the trier of fact as evidence that defendant is a bad man, and that he has a propensity toward sexual offenses and, therefore, probably committed the offense with which he is charged.” Quattrocchi, 681 A.2d at 886 (reversing trial court‘s admission of evidence of prior sexual behavior where the evidence was irrelevant to prove one of the recognized exceptions to Rule 404(b)).
Notwithstanding the historically narrow understanding of the circumstances under which evidence of sexual conduct involving persons other than the complainant is admissible, and the narrow contexts under which the rule would be modified to admit probative evidence of other sexual acts, our law has slowly retreated from strict adherence to the exclusionary principles embodied in
While Hopkins and cases after it have paid lip service to the exclusionary principle embodied in Jalette, Pignolet, Quattrocchi, and
The majority provides citations to certain exceptions to
The Court‘s test adopts a version of the admissibility standard for sexual-assault evidence contained in the Federal Rules of Evidence, but without employing the process for formally adopting a modification to our rules. See
Applying that more-cabined approach to the evidence presented in this case, I would conclude that Elaine‘s testimony was improperly admitted. Adhering to a narrow view of the rule that is one of exclusion, evidence of uncharged acts of sexual assault is admissible only when the uncharged acts are nonremote from the charged crime, similar to the charged crime, and relevant to prove an exception recognized under
Despite my belief that the admission of Elaine‘s testimony was error, however, I concede that the error was harmless. State v. DeCosta, 293 A.3d 297, 303 (R.I. 2023) (applying harmless-error analysis to admission of
For this reason, I concur with the majority of the Court only with respect to the disposition of the defendant‘s specified error concerning the admission of Elaine‘s testimony.
“Strongly entrenched among many American traditions is the concept that man should not be judged strenuously by reference to the awesome spectre of his past life. When one faces trial for a specific crime, he should not be held to answer for the scandal that his earlier vices would most certainly produce. * * * Evidence of other crimes and misdeeds is not excluded because of an inherent lack of probative value, but is withheld as a precaution against inciting prejudice.”1
I believe that those wise words provide a helpful background for the points that I wish to make in this dissent.
I also consider it important to remain acutely mindful of the actual language of
“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or to prove that defendant feared imminent bodily harm and that the fear was reasonable.”
I consider it significant that
repeatedly has held that prior sexual misconduct, perpetrated by a defendant against persons other than the complainant, must be sufficiently similar and contemporaneous to support a ruling of admissibility by the trial justice.“) (emphasis added); see also State v. Rainey, 175 A.3d 1169, 1182 (R.I. 2018).
The majority in Mohapatra discussed the similarity requirement in the following significant sentence:
“Offenses will be considered sufficiently ‘nonremote’ and ‘similar’ when they are ‘closely related in time, place, age, family relationships of the victims, and the form of the sexual acts.‘” Mohapatra, 880 A.2d at 806 (emphasis added) (quoting Brigham, 638 A.2d at 1045).
In my view, the above-quoted reference to “the form of the sexual acts” is of particular importance with respect to the similarity requirement in this case.
I am completely unable to agree with the majority that the acts of sexual intercourse in which defendant and Elaine engaged and concerning which she was allowed to testify were, as the majority has concluded, “sufficiently similar” to the sexual acts referred to in the four counts of the indictment.7
It is my belief that both the general principle of non-admissibility which is so clearly articulated in the first sentence of
It should be clear to any adult that “the form of the sexual acts” to which Elaine testified (viz., sexual intercourse) is patently not “sufficiently similar” to the sexual acts with which defendant was charged in the indictment. It is clear from the record that in the instant case “the form of the sexual acts” to which Elaine testified differed greatly from those which defendant was accused of having committed. See Mohapatra, 880 A.2d at 806. Accordingly, it is my opinion that Elaine‘s testimony should not have been admitted pursuant to the common plan or scheme exception to
It is further my view that the admission of Elaine‘s testimony was definitely not harmless error. See State v. Mercurio, 89 A.3d 813, 822-23 (R.I. 2014). It is clear to me that Elaine‘s testimony portrayed defendant as being a sort of predator with a predilection for young females. I cannot comprehend why her testimony about sexual intercourse (albeit illegal) when she was a young teenager could be considered similar to the vile deeds which defendant was accused of having committed years later vis-à-vis his own young daughter. I simply do not believe that the state can be said to have proven “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Mercurio, 89 A.3d at 822
I realize that some might possibly consider this to be a close case—one that falls within the ambit of the trial justice‘s discretion.12 While I do not consider the instant case to be close, I would respectfully suggest to those who are inclined to believe that there is sufficient similarity between the sexual acts at issue to make this a close case that we should follow the example of the Supreme Court of Washington, which has held that “in doubtful cases the scale should be tipped in favor of the defendant and exclusion of the evidence.” State v. Smith, 106 Wash. 2d 772, 776,
As I near the conclusion of this dissent, I wish to summarize my opinion that it was reversible error to have admitted the testimony of Elaine for two separate and independent reasons: (1) the sexual acts to which Elaine testified were not sufficiently similar to the sexual acts alleged in the indictment; and (2) the sexual acts in which defendant and Elaine participated in the Dominican Republic were not incestuous in any sense, whereas each of the four counts in the indictment alleged conduct that would be completely incestuous and therefore radically dissimilar to the acts about which Elaine testified. For each of those reasons viewed separately and, a fortiori, when the two reasons are viewed as a totality, the admission of Elaine‘s testimony was reversible error.
STATE OF RHODE ISLAND
SUPREME COURT – CLERK‘S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903
OPINION COVER SHEET
| Title of Case | State v. Miguel Montero. |
| Case Number | No. 2023-92-C.A. (P1/20-3378A) |
| Date Opinion Filed | August 18, 2025 |
| Justices | Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ. |
| Written By | Associate Justice Maureen McKenna Goldberg |
| Source of Appeal | Providence County Superior Court |
| Judicial Officer from Lower Court | Associate Justice Jeffrey A. Lanphear |
| Attorney(s) on Appeal | For State: Virginia M. McGinn Department of Attorney General For Defendant: George J. West, Esq. |
Notes
I am aware, as the majority opinion points out, that the age of consent in the Dominican Republic is eighteen. Accordingly, I am fully cognizant of the fact that, even though Elaine characterized her relationship with defendant as having been “romantic,” it was nonetheless in violation of the law of that country. However, that fact is irrelevant to the evidentiary point at issue here—viz., what I consider to be the great dissimilarity between the non-forceful acts of sexual intercourse about which Elaine testified and the very different criminal sexual acts which defendant was charged with having committed in this country. Moreover, as I wish to emphasize, the relationship between defendant and Elaine was not even remotely incestuous—whereas the sexual acts which the indictment in the instant case charged defendant with having committed would have been inherently incestuous in nature.“The longer this witness is on the stand with her appearance, and I would note for the record that she appears very young, and I‘ve learned informally through the [s]tate that she‘s approximately 25 years old, because she gave birth to [Anne] when she was 15, and [Anne] is now ten years old.
“So the longer she‘s on the stage with the witness stand, it hurts the defendant * * *.”