State v. Mohapatra, 2004-21-C.A.

• Citation: 880 A.2d 802
• Decision Date: 25 July 2005
• Docket Number: No. 2004-21-C.A.,2004-21-C.A.
• Parties: STATE v. Kailash MOHAPATRA.
• Court: United States State Supreme Court of Rhode Island

880 A.2d 802

STATE v. Kailash MOHAPATRA.

No. 2004-21-C.A.

Supreme Court of Rhode Island.

July 25, 2005.

Aaron L. Weisman, Providence, for Plaintiff.

John E. MacDonald, Providence, for Defendant.

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

OPINION

WILLIAMS, Chief Justice.

The defendant, Kailash Mohapatra (defendant), appeals from a Superior Court conviction of one count of second-degree child molestation in violation of G.L.1956 § 11-37-8.3. This case came before the Supreme Court for oral argument on February 3, 2005, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After hearing the arguments of counsel and examining the memoranda filed by the parties, we are of the opinion that cause has not been shown, and proceed to decide the appeal at this time. We affirm the conviction.

I Facts and Travel

At a jury trial in January 2003, the complainant, whom we will refer to as Ashley,¹ testified that defendant, a family friend, inappropriately had touched and kissed her on several occasions. The incident that gave rise to the criminal charges occurred in December 1997, when Ashley was thirteen years old. Ashley spent the night at a mutual friend's home in Coventry. After the children had retired to bed and the adults started watching a movie, defendant woke Ashley to play a game of air hockey. But when the table would not work, Ashley returned to bed. The defendant laid down beside her in a twin-sized bunk bed. As Ashley lay on her side, facing the wall, defendant rubbed her breasts from behind and attempted to put his hands down her underpants—but she managed to prevent him from doing so by pressing against the wall and moving her body to evade his hand.

Ashley testified to additional incidents of inappropriate contact that occurred before the charged incident. In July 1997, defendant forcefully kissed her on the mouth with his tongue during a game of hide-and-seek at a party at Ashley's home. In August 1997, defendant pulled her into a playroom during a birthday party at a different family friend's house; kissed her again in a similar manner with his tongue, and also felt her vagina and buttocks over her clothes.

The trial justice admitted, over defendant's objection, the testimony of Kim Baldino (Baldino), a young woman who had met defendant in early 1997 while she cared for his daughter at a child-care facility in Connecticut. The defendant invited Baldino and two of her coworkers to his house for dinner to thank them for their assistance. Although she was only eighteen- or nineteen-years-old at the time,² Baldino testified that defendant gave her and her coworkers several alcoholic beverages with dinner. After the coworkers left and defendant's wife went upstairs after dinner, defendant persuaded her to spend the night.³ Baldino testified that defendant briefly played a pornographic tape on the television and gave her a change of clothes. Baldino began paging her coworkers with the number "9-1-1," hoping they would return to defendant's house. After she changed, defendant then returned to the room, reached under her shirt and bra and touched her breast. Baldino testified that her coworkers returned and she then left defendant's home.

The jury convicted defendant on the single count of molesting Ashley. The defendant appeals, alleging several errors.

II Analysis

A Prior Sexual Misconduct Involving Baldino

The initial question presented on appeal is whether Baldino's testimony concerning defendant's prior sexual misconduct is admissible in a criminal trial charging him with child molestation. "`[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. Grayhurst, 852 A.2d 491, 504 (R.I.2004).

Rule 404(b) of the Rhode Island Rules of Evidence reads:

"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."

In molestation or sexual assault cases, evidence of a defendant's prior sexual misconduct cannot be admitted to prove that "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." State v. Quattrocchi, 681 A.2d 879, 886 (R.I.1996). Instead, 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).⁴ State v. Jalette, 119 R.I. 614, 627, 382 A.2d 526, 533 (1978); accord State v. Brigham, 638 A.2d 1043, 1045 (R.I.1994)

. 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." Brigham, 638 A.2d at 1045 (quoting State v. Pignolet, 465 A.2d 176, 181-82 (R.I.1983)). Furthermore, the evidence is admissible "only when that exception is relevant to proving the charge lodged against the defendant," and "only when reasonably necessary." Jalette, 119 R.I. at 627,

382 A.2d at 533. Finally, the trial justice must instruct the jury on the limited purpose for which the evidence may be considered. State v. Hopkins, 698 A.2d 183, 185 (R.I.1997).

This court 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. See Brigham, 638 A.2d at 1045

(affirming the admission of evidence of prior sexual misconduct perpetrated against the victim's sister by their stepfather because it was "probative of a plan or scheme by defendant to assault his stepdaughters prior to their thirteenth birthdays"); State v. Lamoureux, 623 A.2d 9, 10-13 (R.I.1993) (affirming the admission of evidence of prior sexual misconduct perpetrated by defendant against two different women whom he met at the same Providence nightclub, where he gained the confidence of the victims by discussing issues of common interest and then requested a ride home); State v. Cardoza, 465 A.2d 200, 203 (R.I.1983) (affirming the admission of evidence of prior sexual misconduct perpetrated against the victim's sister during the same period of time and in the same place); State v. Pignolet, 465 A.2d at 181 (affirming the admission of evidence of prior sexual misconduct perpetrated against the victim's sister by their stepfather because most of the events took place in the same period and all the events occurred in the same house, under the threat of violence, and while the victim's mother was working evenings); see also Hopkins, 698 A.2d at 185-86 (affirming the admission of evidence of prior sexual misconduct perpetrated against boys of a similar age to the victim, even though the incidents of abuse occurred ten years apart, because the incidents were committed "in a like manner" against boys who "were under [defendant's] control or influence"). In contrast, evidence of prior sexual misconduct committed against young girls other than the complainant was not admissible under Rule 404(b) because motive, intent and identity were not at issue in that particular case and "[t]he evidence had no independent relevance that was reasonably necessary in order to prove the elements of the crime charged." Quattrocchi

681 A.2d at 887.

Turning to the case herein, defendant's primary argument, that the age difference between Baldino and Ashley renders the two incidents dissimilar, must fail. To reiterate, the factors to be considered when comparing the charged incident and the prior sexual misconduct are "`time, place, age, family relationships of the victims, and the form of the sexual acts.'" Brigham, 638 A.2d at 1045. We recently held in Hopkins, 698 A.2d at 185-86, that the lack of the time factor, specifically a lapse in time of ten years between the charged incident and the prior sexual misconduct, was insufficient to render evidence of that prior incident inadmissible. Here, although Baldino may have reached the age of majority at the time of the incident, similar age is but one of the factors to be analyzed when comparing the charged incident with the prior sexual misconduct.

When evaluating the remaining factors, the record supports the trial justice's conclusion that the two incidents are "nonremote" and "similar." Concerning time, both the Ashley incident and the Baldino incident occurred around 1997. Concerning place, both the charged Ashley incident and the Baldino incident occurred in a home, at night, in which young women had planned to spend the night and after members of the household had retired; a situation that afforded defendant access to and control over his victims. Concerning family relationship, both Ashley and Baldino were family friends of defendant: Ashley, through her parents' friendship with defendant; and Baldino, through her service in caring for defendant's children. Concerning the form of sexual act, defendant touched Ashley's and Baldino's breasts.⁵ Finally, though there is a meaningful difference between the age of Ashley and Baldino, their relative age, compared with defendant's age, does suggest a predilection for much younger females who may be both less resistant to his unwelcome advances and less likely to report the incidents to authorities. Furthermore, the age difference is less relevant when considering that defendant supplied alcohol to Baldino, who was under the legal drinking age.

In Hopkin...