State v. Dubois

• Decision Date: 20 February 2012
• Docket Number: No. 2009–292–C.A.,2009–292–C.A.
• Citation: 36 A.3d 191
• Parties: STATE v. David DUBOIS.
• Court: Rhode Island Supreme Court

36 A.3d 191

STATE

v.David DUBOIS.

No. 2009–292–C.A.

Supreme Court of Rhode Island.

Feb. 20, 2012.

Lauren S. Zurier, Department of Attorney General, for State.

John R. Grasso, Esq., Providence, for Defendant.

Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, and ROBINSON, JJ.

OPINION

Justice GOLDBERG, for the Court.

This case came before the Supreme Court on October 26, 2011, on appeal by the defendant, David Dubois (defendant or Dubois), from a judgment of conviction for five counts of second-degree child molestation. He was sentenced to five concurrent terms of thirty years at the Adult Correctional Institutions, twelve years to serve and the balance suspended, with probation. On appeal to this Court, Dubois contends that the trial justice erred by: (1) denying the defendant's motions for a mistrial; (2) limiting defense counsel's direct examination of two witnesses; and (3) allowing testimony concerning several uncharged incidents of sexual assault in violation of Rules 403 and 404(b) of the Rhode Island Rules of Evidence. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

Facts and Travel

On April 18, 2007, a six-count criminal information was filed against Dubois in Superior Court, alleging one count of second-degree sexual assault under G.L.1956 § 11–37–4, and five counts of second-degree child molestation in violation of § 11–37–8.3. The information charged that the offenses occurred between 1992 and 1998.¹ The complainants named in the information were members of defendant's family: two sisters, Sarah and Lauren, are defendant's nieces by his marriage to Dorinne Dubois (Dorinne); Emily, a cousin through defendant's marriage to Dorinne; and Natalie, defendant's niece by his marriage to Dorinne.² The complaining witnesses ranged in age from approximately five to eleven years old at the time of the alleged assaults. ³ The second-degree sexual assault charge, in which Natalie was the complainant, was dismissed by the state pursuant to Rule 48(a) of the Superior Court Rules of Criminal Procedure, based on the statute of limitations. However, the trial justice permitted Natalie to testify as a Rule 404(b) witness for the state.

Prior to trial, the trial justice ruled on several motions in limine, including the state's motion to allow testimony in accordance with Rule 404(b). The state sought to introduce the testimony of defendant's niece, Natalie—the subject of count 1 of the criminal information, which had been dismissed on statute of limitations grounds. Specifically, the state sought to utilize evidence of three incidents of sexual misconduct: an event in a swimming pool; a second incident in which defendant allegedly played a game of “show me yours, I'll show you mine;” and a third incident—when Natalie was fourteen years old—in which defendant touched her breasts under her shirt. The state argued that a nexus existed between the first two incidents and those alleged by other complainants, and that the third incident was corroborative and thus served as probative evidence.

In a careful ruling, the trial justice found that the incident when Natalie was fourteen years old was inadmissible on the grounds that the conduct was not sufficiently similar to the other complainants' allegations that were set forth in the criminal information. However, the trial justice ruled that testimony pertaining to the two other incidents that occurred when Natalie was a young child were admissible under Rules 403 and 404(b) because this conduct, if believed, showed defendant's “intent or lewd disposition toward [Natalie] and, as a result, toward the named complaining witnesses.” The trial justice further elaborated on the admissibility of the uncharged incidents, stating:

“It just seems to me that as far as [Natalie] is concerned, that there is such a connection, the same kinds of acts, playfulness, games and so forth, the relationship with the other children, the fact that it seems to be taking place at the defendant's house would all suggest that this is the kind of household situation that you would see as cases where [Rule] 404(b) evidence can be utilized.”

At trial, complainants Sarah and Lauren testified that defendant had acted inappropriately toward them on several occasions when they were between the ages of five and eleven.⁴ Sarah testified that defendant's wife, Dorinne, occasionally would babysit the girls. On one such occasion, when Sarah was seven or eight, she was playing upstairs with Lauren, defendant and his stepdaughter, Julie, when defendant suggested that they play hide-and-seek. Sarah testified that when defendant opened the closet door where she was hiding, he was not wearing pants; he told Sarah that since he had shown her his private parts, she needed to show him her “stuff.” Sarah refused, but defendant, still pantless, told the three girls to touch each other and to touch him. The defendant had Sarah pull down her pants and he touched her vagina, underneath her underwear. Sarah also stated that she saw defendant touch Lauren's “boob” and that “he made [Lauren] touch his penis.” Several months later, Sarah disclosed the incident to her uncle Ross, but he “shrugged” it off. Years would pass before Sarah told anyone else.

Lauren testified about two separate incidents that occurred when she was between ages five and six. In the first incident, defendant had Lauren, along with Julie, play a sexual game in which they each went into different rooms. When defendant entered the room that Lauren was in, he exposed his erect penis and told her to touch it and say “ooh” so the girls in the other room could hear. About a month later, defendant played a similar hide-and-seek game with Lauren, Julie, and Sarah, in which defendant exposed himself, had Lauren touch his penis, and he touched Lauren's chest area. Lauren did not reveal the sexual misconduct until she was a teenager.

It was Sarah who first disclosed the abuse, thereby initiating a chain of events culminating in this prosecution. At her mother's urging, Lauren went to work with defendant over the summer when she was approximately fifteen years old. Lauren testified that she did not want to work with defendant that summer, but finally did so. Therefore, it fell upon Sarah to explain to their father that the likely reason for Lauren's reluctance to work with defendant was that defendant had sexually molested Sarah when she was younger and that Lauren would not want to have defendant expose himself to her. Their father relayed the information to their mother, who confronted Lauren, who then confirmed the allegations. After Sarah and Lauren had revealed their experiences, other female family members came forward about similar incidents involving defendant. The family then convened a meeting to confront defendant about the abuse allegations. Sarah testified that during the confrontation defendant admitted exposing himself, but he stated that he had seen a doctor and was on medication; he denied touching any of the girls. After the meeting, the police were contacted, and an investigation and prosecution ensued.

At trial, the state revealed at a sidebar conference that Lauren was expected to testify about a sexual advance defendant made toward her during the summer she worked with him, and that the incident caused Lauren's relationship with defendant to sour. The trial justice prohibited Lauren from testifying about this uncharged encounter. When the questioning continued, the prosecutor asked Lauren what her relationship with defendant was after the summer she spent living at his house, to which she responded that she “hated Dave.” The defendant objected and moved for a mistrial; because Lauren had just testified that she had a good relationship with Dubois prior to that summer, defense counsel argued that her statement that she hated him could have implied the occurrence of an additional sexual encounter, which the trial justice had just ruled inadmissible. The defendant argued that a cautionary instruction would not negate the prejudicial impact of this statement. The trial justice disagreed and decided that he would give a cautionary instruction, directing the jury to disregard Lauren's response about her feelings toward defendant. ⁵

Later in the trial, Natalie, the Rule 404(b) witness, who is defendant's niece by marriage, testified for the state. Natalie was asked to recall any incidents concerning defendant that occurred when she was approximately ten years old and that changed her relationship with Dubois. During her direct examination, the state asked for a cautionary instruction. The trial justice instructed the jury to bear in mind that defendant was not charged with any offense stemming from conduct about which the witness would testify, and that the evidence was admitted for the “limited purpose * * * of determining the defendant's intent or lewd disposition.” ⁶

A sidebar conference ensued in which defense counsel argued that evidence of uncharged acts that occurred when Natalie was between ten and twelve years old should be excluded because they were too remote in time to show intent, lewd disposition, or continuity. The trial justice disagreed and reiterated that his prior in limine ruling was based on Rule 404(b) considerations. The trial justice found that there was a nexus between the incidents because “the acts are the same or similar acts, the locations are the same or similar locations and, obviously, a time frame is a factor they have to take into consideration.” The trial justice concluded that this evidence was admissible to establish either intent or a lewd disposition on the part of defendant. However, the trial justice refused to permit Natalie to testify about the third incident that occurred when she was fourteen years old.

Natalie then recounted two incidents involving Dubois. The first occurred when she was ten or eleven years old, when she, Julie, and defendant were...