State v. Roger Watkins , 92 A.3d 172 ( 2014 )

Supreme Court
No. 2012-326-C.A.
(P1/10-3568A)
State :
v. :
Roger Watkins. :
NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2012-326-C.A.
(P1/10-3568A)
State :
v. :
Roger Watkins. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Chief Justice Suttell, for the Court. We are confronted in this case with the tragic, yet
all-too-common scenario in which an adult in a position of authority uses that authority to
engage in an inappropriate and illicit sexual relationship. The defendant, Roger Watkins, appeals
from a Superior Court judgment of conviction, having been found guilty by a jury of six counts
of first-degree sexual assault and four counts of second-degree sexual assault, for which he was
sentenced to fifty years, with twenty-five years to serve and twenty-five years suspended, with
probation. On appeal, the defendant argues that the trial justice erred in: (1) admitting evidence
concerning prior acts of misconduct committed by the defendant against the complainant; (2)
allowing an examining physician to testify to statements made by the complainant during the
course of her treatment; and (3) denying the defendant’s motion for a new trial. For the reasons
set forth in this opinion, we affirm the judgment of the Superior Court.
-1-
I
Facts and Procedural History
On November 23, 2010, a Providence County grand jury returned an eleven-count
indictment charging defendant with seven counts of first-degree sexual assault and four counts of
second-degree sexual assault on the complaining witness, Jessica. 1 In May 2012, a trial was held
in Providence Superior Court, during which the state presented six witnesses: Rodrick Shepard,
Jessica’s high school classmate and boyfriend; Patrolman Christopher Owens, a Providence
Police officer and high school resource officer; Dr. Amy Goldberg, a pediatrician at Hasbro
Children’s Hospital; Lisa, Jessica’s mother; Jessica; and Detective Christopher Rotella of the
Providence Police Department. We summarize only the testimony pertinent to this appeal.
Patrolman Christopher Owens
Patrolman Christopher Owens of the Providence Police Department testified that in
February 2010, he was the school resource officer at Hope High School. He testified that he
maintained an office at the school and acted “as a resource to students.” Due to the nature of his
position, Ptlm. Owens had regular contact with the students at the school and, as a result, he
became familiar with both Rodrick Shepard and Jessica. Patrolman Owens testified to an
incident that occurred on February 23, 2010. He testified that he was in a meeting in his office
when “[a] couple of teachers’ aides came in and told [him] that there was a disturbance in the
parking lot,” and he responded immediately.
When he arrived outside, he saw defendant yelling at Shepard and noticed that defendant
“was pretty upset.” Patrolman Owens asked what was going on, to which defendant replied “that
his daughter should have been home * * * she should not have been in school.” The defendant
1
In the interest of the minor victim’s privacy, we will refer to both her and her mother by the use
of fictitious names.
-2-
further explained to Ptlm. Owens that “he was in the shower at home and when he got out he
noticed that she was gone” and, when he saw Jessica and Shepard in the parking lot “he thought
that she may be bunking school.”
Having defused the situation between defendant and Shepard, Ptlm. Owens testified that
he saw Jessica in the parking lot with two school administrators; she appeared to be upset, and he
“could tell that she was crying.” While in the parking lot, Jessica told Ptlm. Owens that “if I go
back home with [defendant] he’s going to beat the hell out of me.” Thereafter, Ptlm. Owens
testified that he wanted to speak with all parties involved, so he had Shepard accompany the
administrators while he spoke to Jessica and defendant alone in his office. Once back in his
office, defendant refused to sit down, was yelling and using profanity, and was still visibly upset.
Patrolman Owens testified that Jessica refused to look at defendant or answer any questions
while he was in the room.
Shortly thereafter, Ptlm. Owens summoned the school psychologist, Mrs. Clarke, to
speak with Jessica. Patrolman Owens testified that Mrs. Clarke is “a confidante to the kids in the
school,” and “sits in with just about every case * * * where they have female students.” After
Mrs. Clarke arrived, Ptlm. Owens had defendant transported to the administrator’s office. With
defendant out of the room, Jessica “broke down * * * hid her face in her hands and she started to
cry uncontrollably.” The defendant was arrested shortly thereafter, and Jessica was brought to
the Providence police station to give a written statement.
-3-
Doctor Amy Goldberg
The state next called Dr. Amy Goldberg, a pediatrician at Hasbro Children’s Hospital and
the supervisor of the Child Protection Program, a program that evaluates children who are
potential victims of maltreatment. She testified regarding the results of a March 3, 2010
examination that she performed on Jessica. Much of Dr. Goldberg’s substantive testimony
involved her examination of Jessica, during which Jessica recounted a lengthy history of sexual
abuse at the hands of defendant. Doctor Goldberg testified that Jessica reported that the sexual
abuse started around the time she was fourteen-years-old, when defendant would touch her over
her clothes. Eventually, this touching progressed to touching underneath the clothes and
digital/vaginal penetration. When Jessica was approximately sixteen-years-old, the abuse
progressed to penile/vaginal and oral/vaginal penetration. Doctor Goldberg testified, over
defense counsel’s objection, that Jessica said that she became “increasingly more afraid” during
this period when the sexual assaults were taking place. In addition to Jessica’s increasing fear,
Dr. Goldberg testified that “there [were] other forms of * * * more subtle fear and feelings of
fear * * * in regards of not being able to * * * go to school.”
Doctor Goldberg testified that Jessica told her that, when the digital penetration began, it
was in the context of Jessica pretending to be asleep and being too afraid to tell defendant to
stop. Jessica told Dr. Goldberg that the sexual encounters progressed and that defendant would
tell her that she could not go to school unless she would perform sexual acts. Doctor Goldberg
testified that at the time of the examination, Jessica was less than three weeks removed from the
most recent sexual encounter with defendant. During that most recent encounter—vaginal
intercourse—Jessica said that she had complained of pain and asked defendant to stop, but he
refused. Doctor Goldberg further testified that, based upon her evaluation, she had concluded to
-4-
a reasonable degree of medical certainty that there had been vaginal penetration. She then
testified that she recommended Jessica for follow-up treatment, although she did not specify the
nature of the treatment.
Jessica’s Mother
Jessica’s mother, Lisa, testified that she met defendant in 1983 and the two began dating
shortly thereafter. By 2006, she and defendant were living in an apartment in Providence with
their three children, as well as Lisa’s daughter, Jessica. She testified that by this time she and
defendant were no longer dating; however, they continued to live together because “[h]e was
there to help take care of the kids.” Lisa testified that defendant came into Jessica’s life when
she was a baby. As part of taking care of the children, defendant would “take them out to
places[,] * * * buy their clothes, feed them,” as well as stay involved in their sports and
activities.
Lisa also testified at length about defendant’s role as the household disciplinarian. Lisa
herself was not involved in the disciplining of her children because she “was easy on the kids so
[defendant] didn’t like the way I disciplined [Jessica] so he took over.” This discipline, which
was referred to in the household as being “on punishment,” involved “whip[ping] the behind,”
keeping Jessica in her room without access to the phone, computer, or television, and not
allowing her to date or see her friends. Lisa testified that, while Jessica was “on punishment,”
defendant treated her differently from the way he treated the other children; for instance, he
required her to do the other children’s chores around the home. The defendant would also keep
Jessica home from school while she was “on punishment,” sometimes for days on end, and
would force her to watch two to three hours of television with him at night. Lisa testified to a
specific instance in which Jessica attended a baby shower with her boyfriend, Shepard; defendant
-5-
did not approve of Jessica and Shepard’s relationship, so he “kept her out of school for like a
week.”
Lisa testified to seeing defendant wrestling with the children from time to time; she added
that, after one particular wrestling match, Jessica complained to her that defendant had grabbed
her breasts. She testified that she did not think much of her daughter’s complaint, and that, apart
from the wrestling incident, she was unaware of any of the allegations by her daughter against
defendant until after his arrest in February 2010.
Jessica
The complainant, Jessica, testified at length about her relationship with defendant. She
testified that she remembered defendant moving in with her family when she was approximately
eleven-years-old, and that he lived with them virtually the entire time up until his arrest in
February 2010. Jessica testified that defendant was involved in her “whole life, like everything
that [she] did,” including her schooling. Jessica testified that, when she started at Hope High
School in 2006, defendant would frequently check on her attendance, often dropping by the high
school at random to see that she was attending class and to talk to her teachers to make sure she
was completing her work. In addition to monitoring how Jessica went about her schooling,
defendant also took control over where and when she went to school. Jessica testified that,
although she started at Hope High School, she “was getting in so much trouble” that defendant
removed her to Adelaide High School midway through her sophomore year. While at Adelaide,
Jessica began dating a boy, Kelvin. However, defendant did not approve of her dating, so he
ordered her not to contact Kelvin, kept her out of school, and ultimately transferred her back to
Hope High School.
-6-
Although she testified about defendant’s role in her school life, the bulk of Jessica’s
testimony revolved around defendant’s role as the household disciplinarian, which started “as far
back as [she could] remember.” This involved defendant doling out punishment, such as
confining Jessica to the house, taking things from her, and forbidding her to be in contact with
her friends. Further, as part of her punishment, Jessica was required to watch twenty hours of
television with defendant each week; defendant would write down and keep track of the number
of hours. Jessica testified that, with the exception of a brief period around Halloween when she
was in the tenth grade, she was “on punishment” for “three years straight,” all through the tenth,
eleventh, and twelfth grades. Jessica also testified to alleged acts of corporal punishment and
sexual conduct that took place at the hands of defendant during this time period—the testimony
about which partially forms the basis of the instant appeal. 2
With respect to the corporal punishment, Jessica testified to an incident in which she was
using defendant’s daughter’s phone to talk with Kelvin—which defendant had prohibited her
from doing. She testified that when defendant found out she had used the phone, “he came in the
room and then he slapped me * * * kept telling me shut up,” and “[p]ut his hands around my
neck and put me up against the wall.” 3
2
Prior to trial, defense counsel argued in limine to exclude the incidents of corporal punishment
and uncharged sexual contact. The trial justice withheld ruling on the corporal punishment until
trial and allowed the admission of the uncharged sexual contact under Rule 404(b) of the Rhode
Island Rules of Evidence. During trial, the trial justice addressed the uncharged conduct once
again, stating that he weighed the proffered testimony under Rule 403 of the Rhode Island Rules
of Evidence and Rule 404(b) and would permit the witness to testify to the corporal punishment
and would issue a limiting instruction to the jury.
3
It bears mentioning that at no time during this testimony did defense counsel object to the
state’s questioning or the witness’s answers. At the hearing on the motions in limine, however,
defense counsel objected to the admission of the testimony as “not reasonably necessary for the
[s]tate to get into that area,” and “unduly prejudicial to [defendant].” At trial, the trial justice
revisited his ruling from the motion in limine, and, pursuant to defense counsel’s previous
objection, offered to give a limiting instruction after the elicitation of the testimony; the trial
-7-
Jessica also testified to uncharged sexual conduct; specifically, instances of “play
fighting” that took place between her and defendant in which he would “[g]rab [her] in [her]
vagina or chest.” She testified that “[f]or as long as [she could] remember” she and her little
sister would “play fight” with defendant two or three times a week, which would consist of them
“attack[ing] him * * * trying to restrain each other and trying to hold him down.” However,
Jessica also testified that, when they would “play fight,” defendant would grab and hold her
vagina and breasts over her clothing. Although defendant would do this to Jessica “most of the
time” when they would “play fight,” she testified that she never saw defendant grab her sister in
the same way.
Jessica’s testimony portrayed a course of progressively escalating sexual misconduct
perpetrated by defendant. It began when Jessica was in tenth grade when the two would watch
television on the couch, and she would eventually fall asleep. She testified that the first time it
happened, she woke up to find defendant next to her on the couch, touching her vagina in a
massaging motion over her clothing. Jessica pretended to be asleep because she “was afraid of
his reaction if [she] would have woke[n] up and seen him doing that or what he would say.” She
testified that this happened about twice a week. She testified that she did not tell anyone about
defendant’s behavior because she “didn’t think anyone would believe [her].” Although the
pattern stayed the same during the first half of Jessica’s tenth-grade year—falling asleep on the
couch and awakening to defendant touching her privates—defendant soon progressed to
touching her breasts and vagina beneath her clothes. Shortly thereafter, during the spring of her
tenth-grade year, defendant began penetrating her vagina with his finger.
justice understood the grounds for defense counsel’s objection and ruled accordingly, sufficiently
preserving the issue for our review. See State v. Baptista, 894 A.2d 911, 914 n.2 (R.I. 2006).
-8-
By the time Jessica was a junior in high school, the sexual encounters were no longer just
taking place while she pretended to be asleep. Jessica testified that, when she would get in
trouble in school, defendant would keep her out of school unless she would perform sexual acts
with him. Jessica testified that it began with defendant performing oral sex on her in the
basement laundry room of their home. When asked how many times this happened to her, she
stated: “I can’t count. I can’t give you an exact number of how many times it happened.” She
testified that these encounters continued through her junior year of high school and into her
senior year, but that she never told him to stop because she was afraid. She further testified that,
when she was “on punishment” towards the end of her junior year, defendant told her that she
would not be able to go back to school and that he would homeschool her unless she gave him
oral sex. She then elaborated on the numerous occasions in which defendant would set a
stopwatch and force her to perform oral sex on him until the allotted time ran out. This
arrangement—defendant threatening to take Jessica out of school unless she performed sex acts
on him, and her complying—continued well into her senior year of high school.
Jessica testified that, shortly before defendant’s arrest in February 2010, defendant found
out that she had been talking on the phone with her boyfriend, Shepard. As punishment,
defendant once again threatened to keep her out of school, although this time, in order to return
to school, she had to have sexual intercourse with him. The defendant, as he often did, wrote his
demand down on a piece of paper and gave it to Jessica. The two then waited for Lisa and the
other children to leave the house and they went into the bedroom where defendant had Jessica
remove her clothes and lie on the bed. The defendant then attempted to insert his penis into her
vagina; however he stopped when Jessica started to cry and told him that it hurt.
-9-
Jessica then testified to the confrontation that occurred between defendant and Shepard,
which led to the meeting at school and, ultimately, defendant’s arrest. On that day, February 23,
2010, defendant was once again attempting to keep Jessica out of school; however, when he got
in the shower, Jessica boarded a bus bound for her high school. When asked at trial why she left
her house that day, she stated: “Because I knew what was going to happen. * * * He was going to
tell me to do something with him sexually.”
Detective Christopher Rotella
The state’s final witness, Det. Christopher Rotella of the Providence Police Department,
testified to taking Jessica’s and defendant’s respective statements on February 23, 2010.
Detective Rotella testified that, after being advised of his Miranda 4 rights, defendant gave a
verbal statement that was audio recorded. The recording was entered as a full exhibit at trial and
was played in its entirety while members of the jury read along with a transcribed copy. 5
The recording, which ran for approximately forty-three minutes, consisted essentially of
defendant narrating in explicit detail his relationship with Jessica. The details given by
defendant largely mirrored those testified to at trial by both Dr. Goldberg and Jessica. For
instance, defendant talked about “play fighting” with Jessica, during which time he would grab
her crotch in “kind of like a sexual nature,” yet, he claimed that “it was never anything more than
that.” Later on in his statement, defendant described the transition from “play fighting” to
sexually assaulting Jessica while she was asleep on the couch, stating: “We would sit on the
couch and we’d watch TV. She would fall asleep. I would feel on her. I would finger her.”
When asked specifically which parts, defendant replied, “her thighs, her legs, her chest. You
know, all the essential parts and stuff like that.” He described how Jessica “acted like she was
4
Miranda v. Arizona, 384 U.S. 436 (1966).
5
The transcribed copy was not entered as a full exhibit.
- 10 -
asleep,” but that he nevertheless “believe[d] it was consensual.” When asked whether Jessica
gave him permission to perform these acts on her when she was asleep, defendant stated that
“she didn’t give me permission, but * * * I know it was consensual,” because “she knew * * *
and she didn’t mind.”
The defendant’s statement, much like the testimony of Dr. Goldberg and Jessica herself,
described how the sexual encounters escalated over time. Although he could not pinpoint the
exact number of times, defendant attested to numerous occurrences that took place in the
basement laundry room, including his making oral/vaginal contact, as well as repeated contact
with Jessica’s chest. He then described how he would only permit Jessica to return to school in
exchange for sex acts, including sexual intercourse. Specifically, he stated that “when [he] was
going to take [Jessica] out of school * * * [they] had sex so she could stay at Hope [High
School].” He recalled how the arrangement came about; the two were sitting on the couch and
he proposed to Jessica, “if you want to fool around, you can stay at Hope.” The defendant then
recounted telling Jessica “that if she bumps any more classes or school that she has to have sex
again * * * or just leave the school.” The defendant stated that, although he was the one who
proposed the arrangements, it was Jessica who agreed to them. When asked whether he thought
that it was wrong to forbid her to go to school unless she had sex with him, he admitted that it
“was definitely wrong.” He stated that it was wrong to take advantage of her because of her age,
because he is “an authority” and “control[s] what she can do and can’t do.”
In addition to narrating the sexual history, defendant’s statement also told of his role as
the household disciplinarian. For instance, defendant described keeping Jessica “on punishment”
for three years straight because, as he described, she was “better off.” The defendant also
recounted the incident, testified to by Jessica, in which he punished her for using the phone
- 11 -
without permission: “I grabbed [her] by the neck; I pushed her up against the wall. I said, ‘Don’t
you ever disrespect me like that again.’ * * * I probably grabbed her neck and held her for less
than three or four seconds.” He admitted that Jessica was in fear, and that “[s]he knew that if she
messed up that [he] could hurt her.”
At the conclusion of the trial, defendant was found guilty by a jury of all counts against
him. 6 On July 18, 2012, the trial justice sentenced defendant to fifty years at the Adult
Correctional Institutions, with twenty-five years to serve and twenty-five years suspended, with
probation. The defendant filed a timely notice of appeal. On appeal, defendant argues that: (1)
the trial justice abused his discretion by allowing testimony regarding defendant’s acts of
corporal punishment, as well as the uncharged incidents of sexual contact that occurred during
the “play fighting”; (2) the trial justice erred in allowing Dr. Goldberg to testify to hearsay
statements that improperly bolstered Jessica’s testimony; and (3) the trial justice erred in denying
defendant’s motion for a new trial because the interests of justice did not support the verdict.
We will address each of defendant’s contentions in turn, and supply additional facts as
necessary to resolve the issues before this Court.
II
A
“Play Fighting” and Corporal Punishment Testimony
Prior to trial, the state moved in limine to admit under Rule 404(b) of the Rhode Island
Rules of Evidence the testimony regarding the “play fighting” that occurred, in which defendant
would grab Jessica’s vagina over her clothing. The state argued that the evidence was probative
of defendant’s larger plan of “grooming her for the sexual abuse that would come.” The trial
6
Count 10, charging defendant with first-degree sexual assault, was dismissed by the state
pursuant to Rule 48(a) of the Superior Court Rules of Criminal Procedure due to insufficient
evidence at trial.
- 12 -
justice granted the motion, finding the evidence admissible under Rule 404(b) as probative of
defendant’s “all-encompassing scheme or plan,” and “as showing some type of lewd disposition
or intent on the part of the defendant towards this young woman.”
The state also moved in limine to admit the testimony regarding the incident in which
defendant pushed Jessica up against a wall and grabbed her neck, arguing that that incident was
probative of the coercion element of sexual assault—specifically, psychological coercion. The
trial justice reserved judgment until trial and ultimately admitted the evidence. The trial justice
issued limiting instructions to the jury regarding both the “play fighting” testimony and the
testimony on corporal punishment.
On appeal, defendant argues that the trial justice erred in admitting the “play fighting”
evidence because it was not essential to the state’s case and served no purpose “but to paint
[defendant] as a depraved sexual predator.” Further, defendant argues that the admission of the
evidence was unfairly prejudicial. With respect to the corporal punishment, defendant argues
that the evidence did not pertain to the sexual assaults charged in the case and that the admission
of such evidence was unfairly prejudicial and “bound to improperly infect a jury’s assessment of
the evidence.”
1. Standard of Review
“In reviewing the admission or exclusion of evidence, it is well settled 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.’” State v.
Clay, 79 A.3d 832, 838 (R.I. 2013) (quoting State v. Rios, 996 A.2d 635, 638 (R.I. 2010)).
- 13 -
2. Discussion
Rule 404(b) provides that “[e]vidence 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.” Rule 404(b) therefore prohibits the admission of “evidence of a defendant’s ‘crimes,
wrongs, or acts * * * to prove that the accused has a criminal disposition and, therefore, is more
likely to have committed the crime for which he [or she] stands accused * * * .’” Clay, 79 A.3d
at 838 (quoting State v. Martinez, 59 A.3d 73, 85 (R.I. 2013)). However, Rule 404(b) does
permit the admission of such evidence “for other purposes, such as proof of motive, opportunity,
intent, preparation, [or] plan * * * .”
This Court has stated that Rule 404(b) “does not require exclusion of otherwise legally
probative evidence simply because such evidence might also suggest past criminal activity.”
Martinez, 59 A.3d at 85 (quoting State v. Garcia, 743 A.2d 1038, 1051 (R.I. 2000)). Further,
“evidence of prior bad acts is admissible ‘if such evidence has independent relevance in respect
to the proof of an element material to the chain of proof of the crime in issue.’” Id. (quoting
Garcia, 743 A.2d at 1052). We have stated that, in the context of sexual assault cases, “[w]hen
charges of sexual abuse hinge upon a credibility contest between defendant and [a] child
complainant, relevant evidence of prior sexual misconduct is reasonably necessary to support the
complainant’s testimony.” State v. Mitchell, 80 A.3d 19, 29 (R.I. 2013) (quoting State v.
Mohapatra, 880 A.2d 802, 808 (R.I. 2005)).
We readily acknowledge that “[t]he line between Rule 404(b) evidence presented for the
impermissible purpose of demonstrating propensity and Rule 404(b) evidence presented for one
of the specific non-propensity exceptions is both a fine one to draw and an even more difficult
one for judges and juries to follow.” Martinez, 59 A.3d at 86 (quoting State v. Rodriguez, 996
- 14 -
A.2d 145, 150 (R.I. 2010)). Yet, “[h]owever difficult the task, the trial justice must exercise his
or her sound discretion in fixing that line and deciding whether this type of evidence should be
admitted, excluded, or limited.” Id. (quoting State v. Ciresi, 45 A.3d 1201, 1211 (R.I. 2012)).
“In deciding whether the trial justice abused his or her discretion in admitting the Rule 404(b)
testimony, ‘we look to the trial justice’s reasons that underlie the ruling.’” Id. (quoting State v.
Dubois, 36 A.3d 191, 200 (R.I. 2012)).
Although evidence may be deemed admissible under Rule 404(b), it is nevertheless
subject to the balancing test laid out in Rule 403 of the Rhode Island Rules of Evidence, which
excludes otherwise relevant evidence “if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, * * * misleading the jury, * * * or needless
presentation of cumulative evidence.” “Therefore, Rule 403 ‘is always a consideration in a trial
justice’s ruling on the admissibility of Rule 404(b) evidence.’” Clay, 79 A.3d at 838 (quoting
State v. Mlyniec, 15 A.3d 983, 997 (R.I. 2011)).
a. “Play Fighting” Testimony
After considerable on-the-record analysis, the trial justice found that the evidence of the
“play fighting” was probative of defendant’s disposition or intent towards Jessica as well as part
of defendant’s scheme or plan “leading up to the charge of an alleged criminal behavior.” In so
finding, the trial justice likened the facts of the instant case to the facts in State v. Baptista, 894
A.2d 911 (R.I. 2006), 7 in which this Court upheld the admission, pursuant to Rule 404(b), of
7
The facts in Baptista bear a striking similarity to the case at bar. In Baptista, much like the
instant case, the defendant was convicted of multiple counts of first-degree sexual assault against
his teenage stepdaughter. Baptista, 894 A.2d at 912. Prior to trial, the state argued that the
uncharged acts were admissible to show force and coercion, as well as to demonstrate the
defendant’s lewd disposition or intent towards the victim. Id. at 913. The trial justice allowed
the testimony, which, while sparing the unsavory details, we note was considerably more graphic
than the play fighting testimony in the instant case. Id. Thereafter, the trial justice issued a
limiting instruction to the jury. Id.
- 15 -
testimony regarding uncharged sexual assaults perpetrated by the defendant against the
complainant. In the case under review, the trial justice found that the testimony, “if * * *
accepted by the jury, * * * would certainly fit in with the [s]tate’s theory of the case.” During
the motions in limine, the trial justice agreed to issue an instruction to the jury at trial, limiting
their consideration of the evidence. 8
The trial justice also articulated, albeit briefly, his rationale for allowing the testimony in
the context of Rule 403, stating: “I have taken [Rule 403] into consideration in making a decision
as to [the testimony] and I do believe it is probative evidence. I don’t feel that it is extremely
prejudicial to the extent that it should be excluded from the jury’s consideration.”
Upon review, it is apparent to us that the trial justice did not abuse his discretion under
Rule 404(b) and Rule 403 in admitting the “play fighting” testimony. After much consideration,
the trial justice allowed the testimony. He then issued a proper and thorough instruction to the
jury. We likewise agree with the trial justice’s assessment of the evidence under Rule 403;
considering the wealth of other contemptible testimony regarding defendant’s illicit relationship
8
At trial, after Jessica testified to the “play fighting,” the trial justice issued the following
instruction to the jury, to which defendant voiced no objection:
“You just heard the description of this witness as what she
described as play fighting and alleged touching of her private areas
of her body. Again, this is one of those areas where you only
consider what is charged in this case. This defendant is not
charged with any offense related to that particular conduct that she
alleges occurred between her and this defendant. So I’m
instructing you at this time that in considering that testimony about
play fighting, again, it is for a limited purpose which you cannot
consider it for is to conclude that this defendant has some criminal
or bad character because of that incident that was just described or
put another way that he is a bad person and therefore he has the
tendency to commit the crimes that he is charged with in this case.
“Your considering of that testimony, should you choose to
accept it, is offered for the limited purpose of proving the
defendant’s intent towards this defendant [sic] or to show some
common scheme or plan on his part with respect to conduct
directed towards this witness.”
- 16 -
with Jessica, we are hard-pressed to conclude that defendant was unfairly prejudiced by
testimony concerning the inappropriate touching that occurred during their “play fighting.”
Because we perceive no abuse of discretion, we have no cause to overturn the trial justice’s
ruling.
b. Corporal Punishment
Similar to the “play fighting” testimony, the admission of evidence regarding defendant’s
physical discipline of Jessica stands on substantially the same footing; the state moved in limine
to admit testimony concerning defendant grabbing Jessica by the neck and pushing her up
against a wall. However, unlike the “play fighting” testimony, the trial justice reserved until trial
the decision on whether to admit the testimony on corporal punishment. The defendant argues
that this “uncharged physical assault did not pertain to the sexual assaults charged in this case,”
and, further, that “the altercation was an isolated incident, which could not * * * create an
environment of implied physical threats.”
The defendant was charged with multiple counts of first-degree and second-degree sexual
assault, each of which required the state to prove force or coercion beyond a reasonable doubt.
See G.L. 1956 § 11-37-2(2); § 11-37-4(2). The state argued that the sexual assaults “occurred
not through force, but through a level of psychological coercion based on * * * defendant’s
position of authority and his level of dominance overall in the household.” This Court has held
that psychological coercion is sufficient to prove the force or coercion element of sexual assault,
even in the absence of physical force. See State v. Burke, 522 A.2d 725, 735 (R.I. 1987)
(“Sexual submission induced by fear is not the product of consent but of coercion. * * * A
command on the part of one who possesses complete authority and overwhelming force to back
- 17 -
up that authority need not be accompanied by an explicit threat in order to be effectively
coercive.”).
The testimony regarding the cell phone incident was not offered to show defendant’s
propensity for violence; rather, it was submitted as an illustration of defendant’s role as the
household disciplinarian, as well as the power and influence he wielded over Jessica. In a
previous sexual assault case, we upheld the admission, under Rule 404(b), of testimony
concerning a defendant stepfather’s role as disciplinarian as “probative of the degree of control,
supervision, and discipline [the] defendant exercised over his stepdaughters.” State v. Brigham,
638 A.2d 1043, 1046 (R.I. 1994). Just as in the instant case, the state’s theory in Brigham “was
that [the] defendant used his position as disciplinarian and head of the household to
psychologically coerce [the victim] into the sexual acts.” Id. We held that the admission of such
evidence was reasonably necessary to the state’s case and, coupled with an appropriate limiting
instruction, was properly admitted under Rule 404(b). Brigham. 638 A.2d at 1046. In the case
currently before us, it was necessary for the state to prove the element of force or coercion;
therefore, admission of evidence in furtherance of that burden was permissible under Rule
404(b). See Martinez, 59 A.3d at 85.
Finally, we cannot agree with defendant’s contention that the admission of this testimony
was unfairly prejudicial under Rule 403. As iterated supra, the testimony concerning the
corporal punishment was probative of the state’s case and was weighed by the trial justice
against the possibility of unfair prejudice to defendant. The evidence of corporal punishment
was properly admitted pursuant to Rules 404(b) and 403; thus, we perceive no abuse of
discretion on the part of the trial justice.
- 18 -
B
Doctor Goldberg’s Testimony
The defendant’s next contention concerns the admission of lengthy portions of Dr.
Goldberg’s testimony. Specifically, defendant argues that the trial justice erred in allowing Dr.
Goldberg to testify to the issue of whether the sexual contact was the result of force or coercion,
which was “the sole issue at trial.” This testimony, defendant contends, was inadmissible
hearsay that did not fall under the exception for medical treatment or diagnosis and that “served
only to improperly bolster the complainant’s credibility.” The defendant also claims error with
respect to Dr. Goldberg testifying that she recommended Jessica for follow-up treatment,
claiming that it “effectively rubber-stamped the complainant’s testimony by indirectly implying
that the witness’s allegations were credible enough to merit professional treatment.”
1. Standard of Review
“[A] determination of whether an out-of-court statement meets an exception to the
hearsay rule is within the trial justice’s discretion.” State v. Martin, 68 A.3d 467, 475 (R.I. 2013)
(quoting Rhode Island Managed Eye Care, Inc. v. Blue Cross & Blue Shield of Rhode Island,
996 A.2d 684, 692 (R.I. 2010)). “Under this standard, a trial justice’s ruling will be upheld
unless abuse of discretion that prejudices the complaining party is shown.” Id. (quoting State v.
Brown, 9 A.3d 1240, 1247 (R.I. 2010)).
- 19 -
2. Discussion
“Hearsay evidence is a statement, other than one made by the declarant while testifying at
a trial or hearing, offered in evidence to prove the truth of the matter asserted.” State v. Lynch,
854 A.2d 1022, 1030 (R.I. 2004) (quoting State v. Angell, 122 R.I. 160, 167, 405 A.2d 10, 14
(1979)); see Rule 801(c) of the Rhode Island Rules of Evidence. “As a rule, hearsay statements
are excluded from the evidence introduced at trial because the usual safeguards of the oath,
confrontation, and cross-examination, are not available.” Lynch, 854 A.2d at 1030. There are
myriad exceptions to the rule, including Rule 803(4) of the Rhode Island Rules of Evidence,
which allows for the admission of “Statements for Purposes of Medical Diagnosis or Treatment.”
Rule 803(4) allows:
“Statements made for purposes of medical diagnosis or treatment
and describing medical history, or past or present symptoms, pain,
or sensations, or the inception or general character of the cause or
external source thereof insofar as reasonably pertinent to diagnosis
or treatment, but not including statements made to a physician
consulted solely for the purposes of preparing for litigation or
obtaining testimony for trial.”
Therefore, “[t]he test for determining admissibility ‘hinge[s] on whether what has been related
by the patient will assist or is helpful in the diagnosis or treatment of [the patient’s] ailment.’”
State v. Gaspar, 982 A.2d 140, 151 (R.I. 2009) (quoting In re Andrey G., 796 A.2d 452, 456 (R.I.
2002)). “Statements that narrate details unconnected with either diagnosis or treatment,
however, are inadmissible unless they fall under another hearsay exception.” Id.
In the instant case, Dr. Goldberg testified to numerous allegations made by Jessica during
her March 3, 2010 evaluation. Over defense counsel’s objection, Dr. Goldberg testified that
Jessica “told [her] how she had begun to feel over time that the abuse progressed”—specifically,
that “[s]he was increasingly afraid and there was some, there w[ere] other forms of sort of more
- 20 -
subtle fear * * * .” She also testified that “[Jessica] would tell [her] that she would be told to do
sexual acts in order to be able to go to school.” Defense counsel objected and asked for a
curative instruction, arguing that it was “not a statement made for the purposes of diagnosis and
treatment.” The state argued that, because the doctor testified that “part of her diagnosis and
treatment is the patient’s psychological well-being” and that “this kind of psychological pressure
or manipulation would be something that she factors in to her evaluation * * * .” The trial justice
overruled the objection, finding that asking questions regarding the circumstances of the alleged
acts is “part and parcel of what [the doctor] does” as a pediatrician specializing in child abuse.
The issue before us, therefore, is whether Jessica’s statements to Dr. Goldberg were made for the
purposes of treatment or diagnosis sufficient to allow admission pursuant to Rule 803(4).
As a specialist in child abuse pediatrics, Dr. Goldberg testified that her evaluations
“pertain[] to a patient’s physical as well as mental health.” She further testified that part of her
role is to make referrals for follow-up treatment to other, more specialized doctors, oftentimes
psychologists or psychiatrists. The referrals, she testified, are tailored based on what she learned
from the patient and may involve a psychological component depending on the nature of the
sexual abuse. Her ultimate objective in terms of treating patients and referring them to other
doctors is “[t]o mitigate the effects of sexual abuse,” which include depression and “different
types of traumatic stress disorders.” Therefore, we are satisfied that the trial justice was correct
in finding that “part and parcel” of what Dr. Goldberg does is ascertain the circumstances
surrounding the sexual abuse.
In the context of Rule 803(4), we have consistently held that, “[w]hen statements about
causation enter the realm of assigning fault, it is unlikely that the patient or the physician
consider them related to diagnosis or treatment.” Gaspar, 982 A.2d at 151; see State v. Pina, 455
- 21 -
A.2d 313, 315 (R.I. 1983). Nevertheless, a statement made to a treating physician is not per se
inadmissible merely because it involves the patient’s emotional state; when an evaluation
contains a psychological element as well as a physical one, those statements, much like the
physical evaluation, may be pertinent to diagnosis and treatment. See Vallinoto v. DiSandro, 688
A.2d 830, 840-41 (R.I. 1997) (“[Patient] was being treated for psychological ailments, not
physical ones, and the statements made by her to her social worker regarding her sexual activity
with [the defendant] were directly relevant to the diagnosis of her mental state and the treatment
that she was receiving * * * .”). We have also stated that, if the alleged perpetrator is a member
of the victim’s household, his or her identity may be pertinent both to the formulation of an
effective treatment plan and to ensuring that the child is safe and the treatment can be
effectuated. Lynch, 854 A.2d at 1031. However, the simple fact that a statement could be
helpful in diagnosis is not in itself sufficient for admission under Rule 803(4); there must be a
proper foundation establishing that the challenged statements were in fact made for the purpose
of treatment or diagnosis. Lynch, 854 A.2d at 1031.
Although Dr. Goldberg did testify that she evaluates patients “both from a medical
standpoint as well as from an emotional or mental health standpoint,” she did not specifically
testify that the statements Jessica made about her mounting fear of defendant or those regarding
the exchange of sex for school attendance were made for the purpose of diagnosis or treatment.
By Dr. Goldberg’s own admission, her evaluations are more centered on the physical trauma
rather than the psychological, and her role “really is to evaluate children from a medical
standpoint.” Although Dr. Goldberg’s testimony regarding Jessica’s statements may have
qualified as a statement for the purposes of medical treatment or diagnosis, there simply was
insufficient foundation to establish that they were, in fact, made for that purpose. There was no
- 22 -
testimony about how Jessica’s statements were, or even could have been, used by Dr. Goldberg
in making her treatment referral; her testimony that her role involves a psychological component,
without more, is not enough to admit Jessica’s statements regarding her fear of defendant as a
Rule 803(4) exception. See Lynch, 854 A.2d at 1031. Accordingly, because Dr. Goldberg’s
testimony failed to adequately describe how Jessica’s statements factored into her treatment or
diagnosis, the statements do not fall under Rule 803(4) and were admitted erroneously.
Although we find that there was not a proper foundation for the admission of Jessica’s
hearsay statement concerning the possibility of psychological coercion as testified to by Dr.
Goldberg, we are satisfied that such testimony is cumulative and harmless in light of the
abundance of evidence properly admitted at trial. We have stated that “the admission of hearsay
evidence is not prejudicial when the evidence is merely cumulative and when [the] defendant’s
guilt is sufficiently established by proper evidence.” State v. Robinson, 989 A.2d 965, 979 (R.I.
2010) (quoting Lynch, 854 A.2d at 1032). “[C]umulative evidence” is “that which tends ‘to
prove the same point to which other evidence has been offered.’” Id. (quoting Lynch, 854 A.2d
at 1032). The test to determine whether or not an item of evidence is cumulative “is a
retrospective one, administered at the close of all the evidence to determine whether the
admission of certain evidence was harmless in light of all the evidence admitted on that point.”
Id. (quoting Lynch, 854 A.2d at 1032). 9
Although Dr. Goldberg’s testimony was the first time the jury heard of Jessica’s fear of
defendant and their sex-for-school quid pro quo, it certainly was not the last. Jessica testified to
multiple instances in which defendant would not permit her to return to school unless she
performed sexual acts with him. It is likewise apparent from the evidence that defendant, by
9
“In order to meet the harmless-error test, there must be proof ‘beyond a reasonable doubt that
the error complained of did not contribute to the verdict obtained.’” State v. Smith, 446 A.2d
1035, 1036 (R.I. 1982) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)).
- 23 -
virtue of his role as the household disciplinarian, had instilled such a sense of fear in Jessica that
she felt as if she had no choice but to acquiesce to his sexual demands. In light of the fact that
Dr. Goldberg’s testimony was corroborated by Jessica and, in part, by defendant himself, it is
clear that her testimony was merely cumulative and that defendant was not unduly prejudiced by
its erroneous admission. Therefore, we hold that the admission of the hearsay statements at issue
does not warrant reversal by this Court.
We turn next to defendant’s contention that Dr. Goldberg’s testimony “indirectly
impl[ied] that [Jessica’s] allegations were credible enough to merit professional treatment,” and
thus constituted improper bolstering. We have defined impermissible bolstering 10 as what
“typically occurs when one witness offer[s] an opinion regarding the truthfulness or accuracy of
another witness’[s] testimony.” Martin, 68 A.3d at 476 (quoting State v. Arroyo, 844 A.2d 163,
169 (R.I. 2004)). “However, it may also ‘occur even if the witness does not literally state an
opinion concerning the credibility of another witness’s testimony,’ but rather, where ‘one
witness’s testimony has the same substantive import as if it addressed another witness’s
credibility, it is inadmissible.’” Id. (quoting Arroyo, 844 A.2d at 169). Here, Dr. Goldberg did
not testify one way or the other concerning the veracity or credibility of Jessica’s statements; she
merely testified to what she was told during the evaluation. We have held that a medical
professional simply reiterating a patient’s statement without passing judgment on the accuracy or
10
Although at times this Court has used the terms “vouching” and “bolstering” interchangeably,
the terms have separate, distinct meanings. See State v. Rushlow, 32 A.3d 892, 900 n.7 (R.I.
2011). By way of clarification, “[i]mpermissible bolstering typically occurs when one witness
offers an opinion ‘concerning the truthfulness of the testimony of another witness * * * ,’” State
v. Hazard, 797 A.2d 448, 470 (R.I. 2002) (quoting State v. Brown, 709 A.2d 465, 479 (R.I.
1998)); whereas, “[v]ouching occurs when the government says or insinuates that it has special
knowledge that its witness is testifying truthfully.” Id. (quoting State v. Chakouian, 537 A.2d
409, 412 (R.I. 1988)). Because defendant’s contentions concern testimony by a doctor as
opposed to a government actor, the correct term in the instant case is bolstering, and thus we
shall use that term.
- 24 -
credibility thereof does not constitute improper bolstering. See id. at 477; Lynch, 854 A.2d at
1033.
Further, we cannot agree with defendant’s contention that Dr. Goldberg’s testimony that
she referred Jessica for follow-up treatment “effectively rubber-stamped” Jessica’s testimony. In
the past, we have held that the testimony of a sexual abuse counselor who made repeated
references to “sexual abuse recovery” while testifying to statements made by the victim during
treatment, constituted improper bolstering. State v. Haslam, 663 A.2d 902, 906 (R.I. 1995). We
reasoned that, because the counselor had no firsthand knowledge of the alleged sexual assaults
and based her opinion solely on what she was told during treatment, her testimony “would be
perceived by the jury as a conclusive opinion that [the victim] had testified truthfully.” Id.
However, in Lynch, we held that a school psychologist’s testimony regarding statements made
during treatment of an alleged sexual assault victim did not rise to the level of impermissible
bolstering that was present in Haslam. Lynch, 854 A.2d at 1033. Because the psychologist was
only identified generally as a school psychologist, there was no reference to “‘sexual abuse’
counseling”, she offered no opinion of the victim’s truth or credibility, and the victim herself
testified to the events that took place, “the jury could not reasonably construe [the
psychologist’s] testimony as vouching for the credibility of [the victim].” Id.
Here, Dr. Goldberg did not mention sexual assault treatment or counseling; she simply
testified that she referred Jessica for “some follow-up treatment.” Furthermore, the jury had the
opportunity to judge Jessica’s credibility firsthand when she herself testified to the allegations,
thereby effectively eliminating whatever meager bolstering effect Dr. Goldberg’s testimony may
have had. We are satisfied, therefore, that the admission of Dr. Goldberg’s testimony did not
constitute improper bolstering.
- 25 -
C
Motion for a New Trial
Lastly, defendant contends that the trial justice erred in denying his motion for a new trial
because he overlooked and misconstrued relevant, material evidence and that the verdicts in the
case failed to do substantial justice. The defendant asserts two specific grounds to support these
contentions. First, defendant argues that the trial justice overlooked evidence tending to show
that the sexual relationship between him and Jessica was not the product of force or coercion; he
specifically refers to an exhibit admitted at trial depicting a Garfield 11 cartoon drawn by Jessica
that she gave to defendant that read “To [defendant], From [Jessica] No Taco [Last Name].”
Although Jessica testified at trial that “taco” was defendant’s word for her vagina and that the
drawing was her way of telling defendant that she wanted the sexual contact to stop, defendant
nevertheless avers that “the playful, teasing nature of the drawing dispels any notion that
[Jessica] was controlled or manipulated by [defendant].”
Second, defendant argues that the trial justice misconceived an additional piece of
evidence: a note written by Jessica indicating the sexual acts that she would submit to in order to
be able to go back to school. The defendant contends that the list indicates that their relationship
was “a two-sided sexual game” and that it “undermined the state’s theory with respect to
psychological coercion.”
1. Standard of Review
“When deciding a motion for a new trial, the trial justice acts as a thirteenth juror and
exercises independent judgment on the credibility of witnesses and on the weight of the
evidence.” Clay, 79 A.3d at 841 (quoting State v. LaPierre, 57 A.3d 305, 310 (R.I. 2012)). In so
deciding, “the trial justice must consider the evidence in light of the jury charge, then
11
Garfield is the eponymous cat of the long-running, syndicated comic strip.
- 26 -
independently assess the credibility of the witnesses and the weight of the evidence, and also
ultimately determine whether he or she would have reached a result different from that reached
by the jury.” Id. at 841-42 (quoting LaPierre, 57 A.3d at 310). “If, after conducting this
independent review, the trial justice agrees with the jury’s verdict or if the evidence is such that
reasonable minds could differ as to the outcome, the motion for a new trial should be denied.” Id.
at 842 (quoting LaPierre, 57 A.3d at 310). “Only when the trial justice does not agree with the
jury’s verdict, [must he or she] embark on a fourth analytical step.” Id. (quoting LaPierre, 57
A.3d at 310).
“Because a trial justice, when deciding a motion for a new trial, is in an especially good
position to evaluate the facts and to judge the credibility of the witnesses, on appeal, this Court’s
review is deferential.” Clay, 79 A.3d at 842 (quoting LaPierre, 57 A.3d at 310). “If the trial
justice has articulated adequate grounds for denying the motion, his or her decision is entitled to
great weight and will not be overturned by this Court unless he or she has overlooked or
misconceived material evidence or was otherwise clearly wrong.” Id. (quoting LaPierre, 57 A.3d
at 310).
2. Discussion
After a thorough review of the record and exhibits in this case, as well as the parties’
written and oral submissions, it is clear to us that the trial justice did not err in denying
defendant’s motion for a new trial. The trial justice correctly articulated the standard by which
he would consider defendant’s motion and then embarked on an independent review of the
evidence adduced at trial in light of the charges against defendant. He then recounted the
testimony of the six trial witnesses, as well as the content of defendant’s recorded statement.
- 27 -
Upon reviewing the evidence before him, the trial justice concluded “that the verdict
returned by the jury was correct and amply supported by credible evidence.” The trial justice
was persuaded by Jessica’s testimony, in which “[s]he described a series of sexual assaults over a
substantial period of time with clarity.” The trial justice was particularly impressed with the
manner in which she testified, characterizing her testimony as “candid and forthright.” He
accepted her testimony, finding that “[i]t is clear the defendant employed various forms of
psychological coercion and control over [Jessica] throughout the period of these sexual assaults.”
The trial justice also considered defendant’s statement to the police, in which he
“confirmed and corroborated many of the descriptive details provided by [Jessica].” Although
he acknowledged that corroboration is unnecessary to a determination of guilt, he nevertheless
found that “defendant’s voluntary statements bolster the accuracy and the veracity of [Jessica’s]
version of the events she described.” He thereafter concluded “that the evidence clearly supports
the defendant’s guilt beyond a reasonable doubt on all ten counts for first and second degree
sexual assault.”
With respect to the Garfield drawing and the list of sexual acts, it is clear to us that,
contrary to the defendant’s contention, the trial justice did not overlook or misconceive this
evidence in denying the motion for a new trial. Although the trial justice did not elaborate on the
perceived significance of either of these pieces of evidence, given the context of the whole
trial—which consisted of numerous corroborated accounts of a long history of sexual abuse—we
cannot agree that this failure to fully elaborate constitutes overlooking or misconceiving
evidence. Because the trial justice articulated adequate grounds for denying the defendant’s
motion for a new trial, and was not clearly erroneous in doing so, we will not disturb his decision
on appeal.
- 28 -
III
Conclusion
For the reasons set forth in this opinion, the judgment of the Superior Court is affirmed,
and the record of the case shall be returned to the Superior Court.
- 29 -
RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE: State v. Roger Watkins.
CASE NO: No. 2012-326-C.A.
(P1/10-3568A)
COURT: Supreme Court
DATE OPINION FILED: June 13, 2014
JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
WRITTEN BY: Chief Justice Paul A. Suttell
SOURCE OF APPEAL: Providence County Superior Court
JUDGE FROM LOWER COURT:
Associate Justice Daniel A. Procaccini
ATTORNEYS ON APPEAL:
For State: Virginia M. McGinn
Department of Attorney General
For Defendant: Kara J. Maguire
Office of the Public Defender