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Supreme Court
No. 2007-44-C.A.
(K1/04-237A)
State                                                                                                 :
v.                                                                                                    :
Shane M. Gaspar.                                                                                      :
Present: Goldberg, Acting C.J., Flaherty, Suttell, Robinson, JJ., and Williams, C.J. (ret.).
O P I N I O N
Justice Suttell, for the Court.   The evidence adduced at the trial of this criminal case
included testimony concerning a multitude of unconventional sexual practices but ultimately
presented only one question for the jury’s determination: did the events of the night in question
constitute a mutually consensual sexual encounter between two adults or a brutal sexual assault?
The defendant, Shane M. Gaspar, appeals from a Superior Court judgment of conviction
on five counts of first-degree sexual assault resulting from events that unfolded on November 8,
2003.   On appeal, defendant argues for reversal of his conviction on three grounds.   He contends
that the trial justice committed prejudicial error by (1) permitting the state to introduce under
Rule  404(b) of the Rhode Island Rules of Evidence the testimony of another woman who
previously  had  a  consensual  sexual  relationship  with  defendant,                                (2)  allowing  the  state  to
introduce the complaining witness’s hearsay statements contained in a report prepared by an
emergency room physician, and (3) permitting the state’s medical expert to offer an opinion
about  the  approximate  age  of  the  complaining  witness’s  bruising  without  providing  any
foundation for her opinion.   For the reasons stated in this opinion, we vacate the judgment of the
Superior Court.
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I
Facts and Procedural History
Generally, the facts leading up to the night in question are not in dispute.   In early 2003,
both defendant and the complaining witness, Sally Smith,1 frequented a local Providence chat
room on the internet.   At some point, using an internet “screen name” of “IrishFriend,” Ms.
Smith struck up an instant message (IM)2 conversation with defendant, who was using the screen
name “OCEANBENZ1,” asking if he drove a Mercedes Benz.   They began conversing on a
regular basis over the internet, finally agreeing to meet in person.
Before the night of the alleged sexual assault, defendant and Ms. Smith had maintained
regular contact over the internet for a period of many months, and they previously had met each
other on three separate occasions.    Before they ever met in person, Ms. Smith learned from
chatting with OCEANBENZ1 that his real name was Shane Gaspar, that he was originally from
Warwick, and that he owned a restaurant in Fall River.   They initially met in the spring of 2003
at the Mudville Pub in Newport around 9 p.m. on a Sunday night.   On that occasion, they each
had one beer and talked for about an hour before taking a walk in a park under the Newport
bridge.  They met a second time in July 2003, when defendant brought coffee to Ms. Smith at her
apartment before she left for work.   That morning they had a casual conversation, and defendant
stayed less than an hour.   Both individuals testified that no physical contact or discussions of a
sexual nature occurred during these first encounters.   Ms. Smith testified that defendant came
across as “very nice,” “quiet,” and “kind of reserved.”
1
We identify the complaining witness by use of a pseudonym.
2
Instant messaging is a form of real-time communication between two or more people by means
of the internet using typed text. See Wisniewski v. Board of Education of Weedsport Central
School District, 494 F.3d 34, 35 (2d Cir. 2007).  In a chat room, where the messaging is “public”
or visible to anyone who enters, an instant message allows private dialogue unseen by others.
See United States v. Dwinells, 508 F.3d 63, 66 (1st Cir. 2007); State v. Lacasse, 917 A.2d 184,
185 (N.H. 2006).
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They met again in September 2003, at Ms. Smith’s apartment, when defendant again
brought over coffee in the morning.    This time, however, a  “pleasant” conversation led to
consensual coitus.  Ms. Smith described their sexual encounter as “normal,” a “quickie,” and she
testified that they used a condom.    It is at this juncture that the parties’ accounts of what
happened between them begin to diverge.   The defendant testified that he saw bruising on Ms.
Smith’s body, particularly her buttocks, and asked her about it.  According to defendant, she told
him that she “had been a bad bad girl” and had started experimenting with sadomasochism and
bondage during a recent trip to California.   The defendant said that, although they had never
discussed the topic of “rough sex” before, there had been some indication of this interest on her
part in previous instant messages that she sent him.   Ms. Smith testified that they may have
discussed her recent trip to California but denied ever seeking or being involved in a “rough sex”
relationship.
Five or six weeks passed after their September encounter without Ms. Smith hearing from
defendant.   They met again, however, on November 8, 2003, an encounter both parties agreed
was precipitated by instant messaging.   Ms. Smith testified that defendant instant messaged her
around 3 p.m., telling her he missed her and missed having sex with her.   When defendant asked
if he could come over to her apartment that night, she agreed.   She testified that she may have
told him she “like[d] to be spanked.”  She described their exchange as being “just kind of like the
other conversations,” though they had never before “said anything about spanking.”  She told the
grand jury, however, that their conversation was very flirtatious and that they talked about
“rough sex.”   In a written statement Ms. Smith gave to police, she wrote, “[w]e talked about
sexual fantasy and rough sex online.”    She maintained at trial, however, that their internet
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conversation on November 8, 2003, did not include an agreement to engage in “rough sex” later
that evening.
In any event, they agreed to meet that night, and defendant arrived at Ms. Smith’s
apartment around 9 p.m.   Ms. Smith testified that, during what amounted to at least an hour-long
conversation on the living room couch, defendant told her that, in the five or six weeks that they
had not communicated, he had moved in with a woman but subsequently left because she proved
to be a sex addict.   The defendant testified that Ms. Smith again told him about her travels to
California and her experimentation with a sadomasochistic lifestyle.  He told the jury that he saw
marks and bruises on her arms and legs, although Ms. Smith testified that she was wearing full-
length pants and a sweater that evening.   The defendant stated that he was not interested in that
lifestyle, although he “wasn’t judgmental about her at all.”   Eventually, they repaired to the
bedroom.   From there, the parties have wildly divergent—though equally graphic—accounts of
what transpired.   Ms. Smith described a brutally violent sexual assault that came as a complete
surprise to her, whereas defendant recounted an evening of unorthodox, but consensual, sexual
activity.   We relate only the essential aspects of their contradictory testimony so as to omit its
more lurid details.
Ms. Smith testified to a horrific series of events that began when defendant slapped her
across the face, grabbed her hair, and put his fingers down her throat, causing her to gag.   She
said that she asked him to stop; and, when she told him she was going to vomit, he said, “I like
puke, bitch.”  She then testified that defendant started to choke her,  spit into her mouth and face,
forced her to perform fellatio three times,  once while she was sitting on the bathroom toilet,  had
vaginal intercourse with her twice and anal intercourse once, performed cunnilingus on her, and
penetrated her with his fist on two occasions, causing her intense and excruciating pain.   She
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further testified that throughout this ordeal defendant was controlling her by pulling her roughly
by the hair, all the while slapping and biting her breasts, and uttering crude and degrading
epithets.
Ms. Smith testified that, in the time since they had originally entered the bedroom, at
least an hour and a half passed.   She stated that she fought him as much as she could for at least
an hour.   She said they then lay on the bed while she devised a strategy to get him to leave her
apartment.   She suggested that she go with him to his restaurant and give him oral sex in the car.
The defendant agreed to leave, but he told her he did not want her to accompany him.   She
testified that he then got up, dressed, and left the apartment; she locked the door behind him.
The defendant recounted a very different version of what transpired in Ms. Smith’s
apartment that night.   He testified that when they were talking on the couch, she told him she
wanted to teach him about her new lifestyle and made  “all sorts of S&M sort of related
comments.”  According to Mr. Gaspar, when they undressed, he saw fresh injuries already on her
buttocks, breasts, shoulders, and legs.   Although he testified that “S&M has never been anything
I was interested in,” he nonetheless complied with her requests.   He said that, at her insistence,
he called her names, bit her, and slapped her.   He said that he was not able to bite her as hard as
she desired because of four false front teeth, causing her to call him a wimp.   He testified that
they  engaged  in  consensual  foreplay,  fellatio,  and  coitus.    The  foreplay  included  digital
stimulation and non-aggressive spitting as a form of lubrication, but he denied penetrating her
vaginally with his fist.3   The act of fellatio in the bathroom, he said, was a sexual fantasy of Ms.
Smith’s, and she was insistent that they do it.   He said that the only time he held her hair was
3 Mr. Gaspar later testified that “fisting,” as a sexual act, requires lubrication and is a “process”
that requires “preparation.”   He said that “fisting” cannot be done forcibly without seriously
hurting an individual.
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when she asked him to do so and that he never pulled or dragged her forcefully by her hair.   Ms.
Smith neither screamed nor cried, he said, nor told him “no.”   He told the jury that he did not
force her into any sexual act and that their activities that night were entirely consensual.
The defendant agreed with Ms. Smith that their activities lasted approximately an hour
and a half and that he left her apartment to return to his restaurant that night.   He said, however,
that they spent some time lying on the bed and opened a window to “look[] up at the stars.”
When he told her that he needed to leave, she offered to go with him so he could come back and
stay the night, even offering him oral sex as an incentive.   He said that he turned down her offer
because he wanted to avoid driving from West Warwick to Fall River and back again, but he
would call her in the morning.
Ms. Smith testified that after defendant left that night, she immediately brushed her teeth,
took some aspirin, and examined herself in the mirror.   She then called 911.   Before the police
arrived, she straightened up her apartment—throwing away beer cans and an unopened condom
defendant had brought over.   She changed clothes so that she could turn over the clothing she
was wearing that night to the police, but she nevertheless put on the same set of undergarments.
Patrolman Don Archibald was first to arrive at her apartment.   When Ms. Smith declined
an ambulance, the officer drove her to Women & Infants Hospital.   At the hospital, Valerie
Swiatkowski, M.D., a second-year resident, performed a standardized examination for an alleged
sexual assault.   Doctor Swiatkowski discovered abrasions on Ms. Smith’s labia majora and
minora and a laceration on her perineum (the area between the vaginal opening and anus) that
was still bleeding.   The doctor testified that the other times she had seen women with similar
lacerations to the perineum, they had occurred during childbirth.   While at the hospital, Captain
Catherine Ochs of the West Warwick Police Department took photographs of the bruises and
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marks on Ms. Smith’s body, and Ms. Smith gave an oral statement to Officer Archibald.   Ms.
Smith testified at trial that, at that time, she did not disclose everything she knew about Mr.
Gaspar—telling the police only his first name, his physical description, that they met on the
internet, and what happened to her that night.4
Meanwhile, police inspected her apartment as part of their investigation.   When they
requested permission to seize her computer, she did not grant it, instead giving them her
password so they could have access to her computer that night.   An officer from the West
Warwick Bureau of Criminal Identification testified that a search of Ms. Smith’s computer
revealed eight or nine websites saved to a list of favorites, including one called                     “Boston
Dungeon” and another titled “New England Dungeon.”5   The police seized a steno notebook that
she kept near her computer, in which Ms. Smith kept quotes, such as  “I love submissive
people,”6 and listed a number of screen names, either hers or her friends’, including the screen
name “NE Submissive.”   Police investigators found several indications of the presence of bodily
and seminal fluid using an alternative light source, seizing various items for forensic testing.
Sergeant Keith Azverde explained that they did not request that the seminal fluid be matched to
any particular person because “the identity of the male party was no longer an issue; the issue
was more consent.”   A forensic scientist at the Rhode Island Department of Health received a
sexual assault kit from Women & Infants Hospital and a number of items seized from Ms.
4 Ms. Smith did not inform them that she knew his last name, cell phone number, place of
business, and make of car; she also did not disclose their previous consensual intercourse.   She
gave the jury a number of reasons for limiting her disclosure, including a chaotic hospital
environment, emotional trauma and shock, and embarrassment.
5 Ms. Smith testified that a friend who was visiting showed her these websites, and she never
visited them again.  Despite her admittedly avid use of the internet, she said that she “didn’t even
know there was a favorite thing that you could have.”
6 Ms. Smith testified that she wrote down some of the things people said in chat rooms that she
visited for a potential book.
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Smith’s apartment.   An analysis found seminal fluid in the oral samples collected from Ms.
Smith, but not from the vaginal or rectal samples; it also revealed seminal fluid on the bedding
from Ms. Smith’s apartment, but not on any other items seized.
A police officer drove Ms. Smith home from the hospital around 9:30 a.m. on November
9, 2003.  A day or two later, the complaining witness went to the police station, where she
disclosed  the  information  she  previously  withheld.     Captain  Ochs  also  took  additional
photographs of Ms. Smith to show the progression of the bruising.   She opined at trial that the
bruising proceeded as expected, although she could not say from her observations when the
bruising actually occurred.
Subsequently, Mr. Gaspar was charged by indictment with six counts of first-degree
sexual assault, all arising out of the same sexual encounter.   The case was tried twice before the
same trial justice.   A deadlocked jury in the first trial resulted in a mistrial.   The case was tried a
second time on February 28, 2006.  On March 7, 2006, the jury returned a guilty verdict on five
of the six counts.   The trial justice heard and denied defendant’s motion for new trial on May 9,
2006.   On May 12, 2006, defendant was sentenced to fifty years imprisonment on each count,
terms to run concurrently, with twenty-five years to serve, and the balance suspended with the
statutory conditions of sex offender registration and counseling.
The defendant bases his appeal on the trial testimony of two state witnesses, Jane Doe,7 a
former girlfriend of defendant, and Dr. Swiatkowski, who examined Ms. Smith at Women &
Infants Hospital.   We discuss the substance of this testimony below, in the context of the three
evidentiary issues raised on appeal.
7 We refer to defendant’s former girlfriend pseudonymously in deference to her minor child.
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II
Analysis
A
Testimony of Defendant’s Former Girlfriend
At Mr. Gaspar’s first trial, his former girlfriend, Jane Doe, testified as a rebuttal witness
for the state.8   At his second trial, the prosecution called Ms. Doe to testify as part of its case-in-
chief.   She testified that she began a relationship with Mr. Gaspar around February 2003, which
relationship lasted eight or nine months.   They met online when defendant sent her an instant
message with sexual overtones.   For a period, Mr. Gaspar moved in with Ms. Doe and her four-
year-old daughter.  They separated, however, in the fall of 2003, some time before Thanksgiving.
Ms. Doe stated that, from the outset of their relationship, she and defendant had engaged
in “rough or aggressive sex” on an almost daily basis.   She freely admitted that she enjoyed
aggressive sex and that this was their exclusive form of sexual encounter.   Before the jury, she
described in explicit detail the various sexual activities in which she willingly participated with
defendant.   She said that defendant would put his fingers deep into her mouth, because he liked
to make her gag and whimper.   He also spit on her and in her mouth, put his whole fist into her
vagina, and engaged in anal sex.9   According to Ms. Doe, defendant was never affectionate or
non-aggressive during their sexual encounters, and he progressively became more aggressive
over time.   At some point, they developed a “safety word,”10 which would signal when it was
8 Although the transcript from the first trial is not in the record, it appears that Mr. Gaspar
testified during both trials that he had no interest in sadomasochistic or aggressive sex.   At the
first trial, Ms. Doe impeached this assertion when she testified that she and Mr. Gaspar had a
consensual sexual relationship that was rough and aggressive.
9 Nothing in Ms. Doe’s testimony indicated that she and defendant engaged in choking, biting, or
slapping during intercourse.
10 Ms. Doe explained that a safety word is “a word that [does not] make sense in any sexual
situation” and  “should act as a kind of turn off.”   Theirs was  “cheeseburger.”   She said it
indicates to a person that they are doing something wrong, and it is time to stop.
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time to stop.  Ms. Doe said she only had occasion to use their safety word once or twice, but that
defendant did not honor it, and it “seemed to egg him on” instead.
The state also elicited from Ms. Doe that on five occasions she and Mr. Gaspar had
consensual sex together with other women: so-called “threesomes.”   All of these women were in
their forties and all but one was overweight.   Ms. Doe, herself aged twenty-nine, asserted that
defendant engaged in the same sort of rough or aggressive actions during their forays into
ménage à trois.
Additionally, Ms. Doe was asked on redirect examination to read from an anonymous
e-mail she had sent to the Office of the Attorney General before she agreed to testify as a
witness.   In her e-mail, she stated that she did not want to become involved in this case unless it
was likely that Mr. Gaspar would be acquitted.   Although she acknowledged on the stand and in
her e-mail that her sexual relationship with defendant was consensual, she read to the jury a
portion of her e-mail bemoaning the circumstances of the complaining witness and professing
remorse that neither she nor defendant’s other sexual partners had come forward previously.
On appeal, defendant argues that the trial justice committed prejudicial error when she
allowed the state to introduce the testimony of Jane Doe under Rule 404(b).  The defendant gives
three reasons why the admission of this evidence was prejudicial error.  First, defendant contends
that Ms. Doe’s testimony about defendant’s prior sexual acts did not have the “special relevance”
necessary for admission of  “prior bad acts” under Rule  404(b).    Instead, because Ms. Doe
testified about consensual sexual activities in a case in which the state was required to prove
force or coercion, defendant argues the testimony showed only that he had a particular character
trait (viz., interest in rough and aggressive sex).   Thus, defendant asserts that the state asked the
jury to draw the very inference specifically prohibited by Rule 404(a)—that defendant acted in
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conformance with that trait on November 8, 2003.   Second, defendant argues that “the state
unfairly exploited this evidence by maximizing its sensationalist potential by grafting onto it
inflammatory descriptions of three-way sex.”   Finally, defendant avers that the trial justice’s
limiting instruction was “woefully insufficient.”
The state argues that the trial justice did not err in admitting evidence concerning
defendant’s previous sexual conduct because the evidence was relevant and reasonably necessary
to negate defendant’s consent defense.   Specifically, the state argues that defendant’s position at
his first trial—in which he allegedly portrayed Ms. Smith as the person with sadomasochistic
proclivities and himself as a reluctant participant—made Ms. Doe’s testimony relevant  “to
contradict defendant’s position, and thereby undercut his defense.”   The state further contends
that Ms. Doe’s testimony about aggressive group sex with middle-aged, overweight women
whom defendant met on the internet “was admissible under the common plan/scheme and motive
exceptions to [Rule] 404(b) in order to demonstrate that * * * [defendant] not only had an
ongoing interest in having aggressive sex with women like [Ms. Smith], but used the Internet as
the means by which to meet such women.”   Additionally, the state points out that Ms. Doe’s
testimony about defendant’s failure to honor their safety word on one or two occasions was
admissible under Rule 404(b) to demonstrate absence of mistake concerning non-consent.   The
state professes that the “deadlocking of the jury in the first trial” meant that the state “may have
been  unable  to  sustain  its  burden  of  proof  without  the  introduction  of  the                 [Rule]   404(b)
evidence.”   Finally, the state argues that the trial justice’s limiting instruction to the jury was
adequate but that, even if it was not, defendant waived this issue by failing to object.11
11 Because we vacate the judgment of conviction on grounds that Ms. Doe’s testimony about a
consensual relationship was inadmissible under Rule 403 of the Rhode Island Rules of Evidence,
we decline to address the sufficiency of the trial justice’s limiting instruction.
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1. Standard of Review
It is well established that decisions concerning the admissibility of evidence are “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 that discretion is apparent.”  State v. Mohapatra, 880 A.2d 802,
805 (R.I. 2005) (quoting State v. Grayhurst, 852 A.2d 491, 504 (R.I. 2004)).
2. Discussion
It is not necessary for us to decide whether Ms. Doe’s testimony was properly admitted
at the second trial based on the criteria set forth in Rule 404(b) because we are persuaded that
her testimony should have been barred under Rule 403 of the Rhode Island Rules of Evidence.
Rule 403 provides:
“Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice,
confusion  of  the  issues,  or  misleading  the  jury,  or  by
considerations  of  undue  delay,  waste  of  time,  or  needless
presentation of cumulative evidence.”
Rule 403 cuts across the rules of evidence and is always a consideration in a trial justice’s
ruling on the admissibility of Rule 404(b) evidence. See, e.g., State v. John, 881 A.2d 920, 927
n.14 (R.I. 2005) (“In addition to the protections afforded by Rule 403, we have required that, in
applying Rule 404(b), ‘the trial justice must carefully weigh the probative value of the evidence
against the danger of unfair prejudice * * *.’”) (quoting State v. Pratt, 641 A.2d 732, 742 (R.I.
1994)); State v. Hopkins, 698 A.2d 183, 186 (R.I. 1997) (“In deciding whether to allow the jury
to hear this type of [Rule] 404(b) evidence, the trial justice has to balance relevance against
remoteness and the potential for improper prejudicial impact.”).   Similar approaches have been
endorsed by the federal courts applying the substantially analogous Federal Rules of Evidence
403 and 404(b). See, e.g., Huddleston v. United States, 485 U.S. 681, 688 (1988) (noting that
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evidence properly offered under Rule 404(b) of the Federal Rules of Evidence “is subject only to
general  strictures  limiting  admissibility  such  as  Rules                                            402  and   403.”);  United  States  v.
Varoudakis, 233 F.3d 113, 121 (1st Cir. 2000) (“Prior bad act evidence that surmounts the bar of
Rule 404(b) may still be inadmissible under Rule 403.”).
Indeed, some jurisdictions have highlighted the interplay of these two rules by explicitly
adopting two-step analyses of Rule 404(b) evidence. See, e.g., Varoudakis, 233 F.3d at 118 (“To
admit evidence of prior bad acts, a trial court must find that the evidence passes two tests.   First,
the evidence must have ‘special relevance’ to an issue in the case such as intent or knowledge,
and must not include ‘bad character or propensity as a necessary link in the inferential chain.’
* * * Second, under Rule 403, evidence that is specially relevant may still be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice.”) (quoting United
States v. Frankhauser, 80 F.3d 641, 648 (1st Cir. 1996)); see also United States v. Beechum, 582
F.2d 898, 911 (5th Cir. 1978) (“What [Rule 404(b)] calls for is essentially a two-step test.   First,
it must be determined that the extrinsic offense evidence is relevant to an issue other than the
defendant’s  character.     Second,  the  evidence  must  possess  probative  value  that  is  not
substantially outweighed by its undue prejudice and must meet the other requirements of [R]ule
403.”); see generally Rule 404(b) Other Crimes Evidence: The Need For a Two-Step Analysis,
71 Nw. U. L. Rev. 635, 640 (1976) (“[D]eciding the admissibility of evidence of other crimes
under [R]ule 404(b) is merely one step in determining whether the jury will be allowed to hear
the evidence.   Like any other relevant evidence, the probative value of other crimes information
still  must  be  weighed  by  the  criteria  of                                                          [R]ule     403,  which  excludes  unfair  or  confusing
evidence.”).
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The decision to exclude evidence pursuant to Rule 403 is confided to the sound discretion
of the trial justice. State v. Martinez,  824 A.2d  443,  449  (R.I.  2003).   We review the trial
justice’s decision for clear abuse of discretion.                                                       State v. DeJesus, 947 A.2d 873, 883 (R.I. 2008).
Assuming, without deciding, that Ms. Doe’s testimony was admissible under one of the
exceptions to the general exclusionary provisions of Rule 404(b), we hold that the trial justice
erred in admitting this unfairly prejudicial evidence.12   Whatever the probative value of Ms.
Doe’s testimony, its utility was clearly outweighed by the danger that it would confuse, mislead,
and unfairly prejudice the jury.
In the case at bar, the sole issue for the jury was whether defendant acted with force or
coercion, or, as defendant contended, whether the sexual encounter was consensual.   As part of
its case-in-chief,13 the state presented the testimony of Ms. Doe, who recounted an eight- or
12 We stress that this evidence was unfairly prejudicial because most evidence offered at trial is
inherently prejudicial.   Only unfairly prejudicial evidence is barred under Rule 403—meaning
evidence that has “an undue tendency to suggest a decision on an improper basis[,]” and “appeals
to the jurors’ sympathies, arouses their sense of horror, provokes their instinct to punish, or
otherwise causes a jury to base its decision on something other than the established propositions
in the case.” 29 Am. Jur. 2d Evidence § 338 at 360 (2008).
13 According to the state, at his first trial, defendant “depicted himself as a reluctant participant
who found what [Ms. Smith] was telling him to do personally distasteful and who himself had
never engaged in these practices before.”   At the first trial, the state presented Ms. Doe as a
rebuttal witness to impeach that testimony by defendant.   At the second trial, the state presented
Ms. Doe as part of its case-in-chief.   On appeal, the state asserts that Ms. Doe’s testimony at the
second trial “was presented to contradict defendant’s position, and thereby undercut his defense”
of consent.
Despite its purported Rule 404(b) rationale, in essence the state is suggesting that Ms.
Doe’s testimony was presented as part of its case-in-chief to impeach defendant’s anticipated
testimony.   Rule 404(b) does not govern the introduction of impeachment evidence.   There are
various other evidentiary rules that govern impeachment. See, e.g., R.I. R. Evid.  607-609.
Specifically, Rule 607 provides that “[t]he credibility of a witness may be attacked.” (Emphasis
added.)  When the state presented Ms. Doe on direct, defendant was not yet a witness at trial, and
thus his anticipated consent defense could not yet be impeached.    In a criminal matter, a
defendant has no burden of proof and may choose not to testify at any time. See State v. Alston,
900 A.2d 1212, 1221 (R.I. 2006); State v. Hallenbeck, 878 A.2d 992, 1007-08 (R.I. 2005).  Thus,
impeachment  in  this  form  was  improper  during  the  state’s  case-in-chief  and  significantly
increased the risk of unfair prejudice to defendant.   Because Ms. Doe’s testimony was elicited as
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nine-month relationship with defendant involving rough or aggressive sexual activity on an
almost daily basis.   With the exception of only one or two occasions when, according to Ms.
Doe, defendant failed to heed their safety word, the sexual encounters were entirely consensual.
We  are  satisfied  that  the  implied  equivalence  of  defendant’s  consensual  and  alleged
nonconsensual sexual encounters (with Ms. Doe and Ms. Smith respectively) was very likely to
confuse the jury and invite an emotional response.   We conclude, therefore, that the trial justice
committed reversible error in admitting this evidence.
B
Admission of Medical Report Narrative
The defendant next assigns as prejudicial error the admission into evidence of the portion
of the medical records that contain an historical narrative of the evening’s events as related by
the complaining witness.   He particularly challenges the trial justice’s ruling that allowed the
doctor to read the narrative to the jury during her testimony, thereby imbuing it with her
professional imprimatur.  Doctor Swiatkowski, who examined Ms. Smith in the early morning of
November 9, 2003, testified that she followed a standard protocol for evaluating a patient for an
alleged sexual assault.    The state requested that she read the contents of a portion of her
documentation titled “medical summary of alleged assault.”14   Doctor Swiatkowski stated that
she gathered information about the assault for purposes of medical diagnosis and treatment, and
proceeded to read into the record the narrative that she had taken from the complaining witness
that night.   This report repeated, at times verbatim, the criminal accusations of the complaining
witness:
part of the state’s case-in-chief, we need not consider whether some or all of her testimony
would have been properly admissible in rebuttal; that would depend on what defendant testified
to—if indeed he chose to testify.
14 The entire medical report of Women & Infants Hospital had been admitted into evidence by
agreement, although defendant objected to the introduction of the narrative portion.
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“[Doctor  Swiatkowski]:                                                                              Okay.   ‘The  patient  invited  the
acquaintance  into  her  home  and  into  her  bedroom.    Patient
originally was consensual, but after approximately three minutes,
she told the man, “No.”  He became abusive, yelling at her, pulling
her hair.   He did not stop.   He bit her over multiple spots on her
body, the shoulders, back, arms, and legs, forced fellatio on her,
pulling her hair and told her, “You like it, bitch.”   He then raped
her both vaginally and anally several times.   He told her she “had
not made me cum.”   During this time period, he held her down at
times by her arms and her hair, hit her on the breasts, arms, legs.
At several points, she tried to get away, but he pulled her hair
harder.   She told him she had to go to the bathroom, so he dragged
her from the bedroom to the bathroom.    She urinated after he
forced her to sit on the toilet and provide oral sex to him again.  He
then pulled her into the living room by her hair and eventually
pushed her onto the floor.   He again raped her both vaginally and
anally.   He also forced his fist into her vagina.   She screamed that
it hurt and to stop.   He again told her—he told her she, “liked it,
bitch.”   She noted vaginal pain and bleeding afterwards.   He again
forced fellatio on her; and during one of the episodes, he ejaculated
into her mouth.   She spit out the semen.   She is unsure if he came
during vaginal or anal intercourse.   He brought her back into the
bedroom, all the while continued biting her, hitting her, and pulling
her hair.   Eventually, he got dressed and left.   She got up and
brushed her teeth.   She then called 9-1-1, and the police came and
brought her here with the clothing she had on the night or on
before the encounter [sic].   Her underwear were the same ones she
wore when she got here.   They have been collected as evidence.
The patient relates a time period to be 10 to 12 p.m. on 11-8.   She
arrived at Women & Infants Hospital with the police at 2:50 a.m.
on 11-9.”
On appeal, defendant argues that the trial justice committed prejudicial error when she
permitted the introduction of those portions of the medical records that contained the hearsay
narrative from the complaining witness.   The defendant argues that this testimony falls squarely
within a line of cases applying this Court’s pronouncement in State v. Pina, 455 A.2d 313, 315
(R.I. 1983), that under the hearsay exception for medical diagnosis and treatment, statements that
ascribe fault or are otherwise not a basis for diagnosis or treatment should be excluded. See R.I.
R. Evid. 803(4).   The defendant contends that Dr. Swiatkowski’s testimony was “replete with
- 16 -




accusations of criminal behavior, [and] with assertions that the complaining witness had not
acted consensually[;]” he further contends that the report was gathered for law enforcement
purposes, not medical purposes.   Additionally, defendant argues that the testimony in this case
was much more graphic and pointed in its accusations of criminal behavior than those previously
considered and excluded by this Court and that to allow its admission would require overruling
an entire assemblage of case law.  Finally, defendant maintains that this testimony was especially
prejudicial because of its suggested “seal of professional approval.”
The state counters that “the majority of the statements in the narrative portion of [the
medical report], as read at trial by Dr. Swiatkowski,” were pertinent to Ms. Smith’s diagnosis
and treatment for sexual assault, and that the doctor so testified at trial.   The state contends that,
to the extent any statements fell outside the scope of Rule 803(4), the admission was harmless
because the jury heard the same testimony from Ms. Smith herself and the doctor did not
comment on the report’s veracity.
1.  Standard of Review
“It is well established that  ‘the admission of a statement under an exception to the
hearsay rule is within the sound discretion of the trial justice and shall not be overturned unless
clearly erroneous.” State v. Bergevine, 942 A.2d 974, 978 (R.I. 2008) (quoting State v. Ruffner,
911 A.2d 680, 689 (R.I. 2006)).
2.  Rule of Evidence 803(4)
Doctor Swiatkowski’s testimony relaying Ms. Smith’s medical summary report is clearly
hearsay. See R.I. R. Evid. 801(c).   Rhode Island, however, recognizes the medical-diagnosis
exception to the hearsay rule. Rule 803(4);15 see In re Andrey G., 796 A.2d 452, 456 (R.I. 2002);
15 Rule 803(4) of the Rhode Island Rules of Evidence excludes from the hearsay rule:
- 17 -




State v. Contreras, 105 R.I. 523, 534-35, 253 A.2d 612, 619 (1969).   The rationale behind this
rule is that “a person will presumably be truthful to a physician from whom he expects to receive
medical attention.” Pina, 455 A.2d at 315; see Rule 803(4), Advisory Committee’s Note; State v.
Lima, 546 A.2d 770, 774 (R.I. 1988).   Thus, statements made by an injured individual to his
treating physician relating to his physical condition and to the cause of such injury are generally
admissible. Pina, 455 A.2d at 315.
The 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.” In re
Andrey G., 796 A.2d at 456 (quoting In re Jessica C., 690 A.2d 1357, 1363 (R.I. 1997)); see
Contreras, 105 R.I. at 534-35, 253 A.2d at 619.  Statements that narrate details unconnected with
either diagnosis or treatment, however, are inadmissible unless they fall under another hearsay
exception. Pina,  455 A.2d at  315; State v. Veluzat,  578 A.2d  93,  96  (R.I.  1990).    When
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. Pina,  455 A.2d at  315.                     “In the
circumstances where fault is an issue, statements of causation do not hold the same reliability of
truthfulness and are properly excluded.” Id.   An uninterrupted line of cases from this Court has
followed the rule elucidated in Pina in applying Rule 803(4).   See In re Andrey G., 796 A.2d at
456; Veluzat, 578 A.2d at 96; Lima, 546 A.2d at 774; State v. Barber, 468 A.2d 277, 278 (R.I.
1983); State v. Burgess, 465 A.2d 204, 206-07 (R.I. 1983).
“Statements  made  for  the  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  of  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.”
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In Pina, in which the only issue at trial was whether the intercourse was consensual, this
Court held that a doctor’s statements about defendant’s alleged threats merely acted to assign
fault by clarifying the issue of consent; therefore, the statements were not pertinent to medical
diagnosis or treatment and were inadmissible.   In the same year that Pina was issued, this Court
held that a medical history report constituted inadmissible hearsay in two more cases, both of
which relied on Pina. See Barber, 468 A.2d at 278; Burgess, 465 A.2d at 206-07.  Similarly, in In
re Andrey G., 796 A.2d at 456, the Court held inadmissible a child’s statements in a medical
document that respondent had sexually abused her because it merely assigned fault rather than
assisted the doctor in medical diagnosis.
In some cases, this Court has held that medical history reports that contain information
about a sexual assault are admissible.   In those cases, however, the material issue was not
consent, but rather whether a sexual assault actually had occurred. See State v. Pierce, 689 A.2d
1030, 1033 (R.I. 1997) (holding that purpose of hospital visit was to determine whether sexual
assault had occurred); In re Jean Marie W., 559 A.2d 625, 630 (R.I. 1989) (holding that child’s
statements were used to establish that sexual abuse had actually occurred, but did not ascribe
fault); State v. Ucero, 450 A.2d 809, 815 (R.I. 1982) (holding that purpose of hospital visit was
to determine whether sexual assault had occurred).  Here, there is no question that Ms. Smith and
defendant had a sexual encounter on the night in question, making these cases inapplicable.
3.  Discussion
Applying the rule set forth in Pina, we hold that Dr. Swiatkowski’s verbatim rendition of
the  un-redacted  medical  summary  report  should  have  been  excluded  because  it  contained
information that was not reasonably related to either diagnosis or treatment.   Like the question
presented in Pina, 455 A.2d at 315, “the instant case presents no question as to whether or not
- 19 -




sexual  intercourse  took  place.    The  only  issue  is  whether  intercourse  was  voluntary  or
involuntary.”  Doctor Swiatkowski’s verbatim recitation of her medical summary report included
many narrative details that were unconnected with diagnosis or treatment and that strongly, and
graphically, imputed criminal fault to defendant.   It contains facts clearly inapposite to medical
diagnosis or treatment, such as statements defendant allegedly made to Ms. Smith, and the
assertion that “[p]atient originally was consensual, but after approximately three minutes, she
told the man, ‘No.’  He became abusive * * *.”  The doctor’s testimony, a near-perfect repetition
of the complaining witness’s version of events, is replete with assignments of fault, asserting in
conclusive terms that “he then raped her both vaginally and anally several times” and “forced
fellatio on her.”
We are hard pressed to discern how some of the statements related in the narrative would
assist in the diagnosis or treatment of the complaining witness.   The doctor did not provide any
medical reason as to why she obtained this narrative.  Although Dr. Swiatkowski answered “yes”
when the state pointedly asked her if she gathered information about the sexual assault for
purposes of medical diagnosis and treatment, when the doctor was invited to elaborate, she
stated,  “[f]rom a medical perspective, the document is from the rape kit, it’s just to gather
information about the assault.”  This suggests forensics, not medicine.
We further conclude that allowing Dr. Swiatkowski to read the entire “medical summary
of alleged assault” was highly prejudicial to the defendant.   “We  have  often  recognized  that  a
physician’s testimony can carry with it an impression of great credibility.” Veluzat, 578 A.2d at
96; see Pina, 455 A.2d at 315 (“A doctor clothed in the garb of a medical expert possesses
substantial stature in the eyes of a jury.”).   We have further recognized that, where the only
witness to the alleged sexual assault is the complainant, “[t]he doctor’s repetition of the victim’s
- 20 -




version of events [is] sure to lend it credibility.   A medical expert cannot serve the function of a
thirteenth juror by evaluating the credibility of witnesses.” Veluzat, 578 A.2d at 96-97 (quoting
Pina,                                                                                                   455  A.2d  at  315).    The  introduction  of  this  medical  history  narrative  is  especially
prejudicial in that it corroborated the details set forth in the testimony of the complainant
concerning the alleged sexual assault, surely lending to its credibility. See Barber, 468 A.2d at
278; Burgess, 465 A.2d at 206-07; Pina, 455 A.2d at 315.
We recognize that in the likely event that the state seeks to introduce the narrative portion
of the medical records at defendant’s retrial, it will do so upon a new record and under differing
circumstances.   Its admissibility undoubtedly will depend in large measure on the foundational
testimony of the doctor.   With respect to the case on appeal, however, we are satisfied that the
admission of the entire unexpurgated medical report narrative, both as a document and then as
read to the jury, was in error.   Because we are vacating the judgment on other grounds, we need
not consider whether such error was harmless.
C
Expert Opinion Concerning Age of Bruises
One of the key issues at trial was whether the complaining witness’s multiple bruises and
bite markings were inflicted by defendant or whether—as defendant insinuated—she already had
suffered  injuries  from  some  previous  sexual  encounter  before  she  met  with  defendant  on
November 8, 2003.  The state asked Dr. Swiatkowski to give an expert opinion on the age of the
bruises that she observed on the complaining witness’s body.  She opined, to a reasonable degree
of medical certainty, that the bruising occurred within twenty-four hours of her examination.
Doctor Swiatkowski explained that as a bruise ages, it goes through different color phases,
although she acknowledged that the coloration and healing process is different on every patient
- 21 -




and can be affected by various factors, such as medication.  She said that she based her judgment
on coloration, as well as on redness, bite marks, and raised parts of the skin.
The defendant argues that the trial justice committed reversible error when she permitted
the state’s doctor to offer an opinion concerning when the complaining witness suffered bruising.
The defendant’s position is that the state did not lay a medical or forensic foundation for this
expert testimony.   He asserts that the question of the aging of bruises is more a forensic than a
medical issue, and is not within the ordinary and usual expertise of a medical practitioner.   The
state counters that the trial justice did not err in permitting Dr. Swiatkowski to testify about the
approximate age of the complaining witness’s bruises.   The state argues that a foundation does
“not  have  to  be  elaborately  presented  before  the  expert  testifies  to  her  conclusion  if  the
information is common and well understood.”16
1.  Standard of Review
In reviewing a trial justice’s ruling on the admissibility of an expert witness’s proffered
testimony, “this Court will not reverse the decision unless the trial justice abused his or her
discretion.” State v. Rieger, 763 A.2d 997, 1004 (R.I. 2001) (citing State v. Morales, 621 A.2d
1247,  1249  (R.I.  1993)).   We will sustain the ruling below provided that the trial justice’s
discretion “has been soundly and judicially exercised, that is, if it has been exercised in the light
of reason applied to all the facts and with a view to the rights of all the parties to the action
* * *.” In re Mackenzie C., 877 A.2d 674, 684 (R.I. 2005) (quoting Owens v. Silvia, 838 A.2d
881, 890 (R.I. 2003)).
16 The state argues, alternatively, that defendant did not preserve his foundational argument
because it was not  “specifically focused enough.”    When the trial justice asked defense to
articulate his grounds for objection, he stated, “I don’t think there was a satisfactory basis for that
opinion.”   We are satisfied, however, that the foundational grounds for the defense’s objection
were entirely clear.
- 22 -




2.  Discussion
Under Rule 705 of the Rhode Island Rules of Evidence, “an expert’s opinion must be
predicated upon facts legally sufficient to form a basis for his [or her] conclusion.” Gallucci v.
Humbyrd, 709 A.2d 1059, 1063 (R.I. 1998) (quoting Alterio v. Biltmore Construction Corp., 119
R.I. 307, 312, 377 A.2d 237, 240 (1977)).17   Such facts must be disclosed so that it is possible
“to assess whether the conclusions drawn from the facts possess sufficient probative force or,
rather, are grounded in mere speculation or conjecture.” State v. Hanes, 783 A.2d 920, 927 (R.I.
2001)  (quoting DeChristofaro v. Machala,  685 A.2d  258,  267  (R.I.  1996)).   Another major
purpose of this requirement is to facilitate intelligent cross-examination. Gorham v. Public
Building Authority of Providence, 612 A.2d 708, 717 (R.I. 1992).
At times, the scientific foundation for a particular expert opinion is so common and well
understood that the expert’s qualifications are sufficient to assure that the opinion has an
adequate foundation. See, e.g., Gallucci, 709 A.2d at 1063-66 (holding expert’s qualifications as
a board-certified orthopedic surgeon, the substantial nature of his examination, and his review of
patient records to be a sufficient foundation for him to proffer opinion as to causation); cf.
Owens, 838 A.2d at 892 (noting that under Rule 702 of the Rhode Island Rules of Evidence, the
scientific foundation for an expert’s theory may be so common and well understood that the
proponent of the testimony can lay the foundation while qualifying the witness).   We caution,
however, that this narrow situation is not intended to subsume the rule.
It is our opinion that the trial justice did not abuse her discretion in permitting Dr.
Swiatkowski to testify about the aging of the complaining witness’s bruising.   The doctor’s
17 Rule 705 of the Rhode Island Rules of Evidence provides:
“Unless the court directs otherwise, before testifying in terms of
opinion, an expert witness shall be first examined concerning the
facts or data upon which the opinion is based.”
- 23 -




opinion was not without a medical foundation; she explained that as a bruise ages progresses, it
changes in coloration and that the coloration process helps determine when the injuries were
sustained.   She explained that older bruises present themselves in shades of green and yellow,
whereas newer bruises are more red and purple.  She stated that she based her judgment on other,
additional facts—such as the redness of the skin around the bruises, indentations in the skin that
appeared to be bite marks, and raised or swollen skin.   She also explained that all the bruises
were similar in appearance.   Because Dr. Swiatkowski is an emergency room physician with
experience and training at Women & Infants Hospital and Detroit Receiving Hospital, we believe
that her qualifications, coupled with the factual basis for her opinion, are sufficient to assure this
Court that the trial justice based her ruling on more than “mere speculation or conjecture.”
Hanes, 783 A.2d at 927 (quoting DeChristoforo, 685 A.2d at 267).   Furthermore, the doctor’s
testimony was buttressed by photographs of Ms. Smith’s injuries, which showed her bruises
changing color over time.
The doctor’s testimony also provided the information necessary for intelligent cross-
examination.   The defendant was able to extract from Dr. Swiatkowski the acknowledgement
that the bruises on every patient age and heal differently and that bruising can be affected by
medication, among other factors.   The defendant also asked her whether the bruising could have
occurred more than twenty-four hours before the patient was examined, to which the doctor
replied in the negative.  The defendant chose not to follow this line of questioning any further.
With these considerations in mind, we cannot say that the trial justice abused her
discretion by allowing Dr. Swiatkowski’s to opine on the age of the complainant’s bruises.
- 24 -




III
Conclusion
For the reasons stated in this opinion, we vacate the judgment of conviction entered in the
Superior Court.   The case shall be remanded to the Superior Court for a new trial consistent with
this opinion.
- 25 -




Supreme Court
No. 2007-44-C.A.
(K1/04-237A)
State                                                          :
v.                                                             :
Shane M. Gaspar.                                               :
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.




RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Opinion Cover Sheet
TITLE OF CASE:                                                                          State of Rhode Island v. Shane M. Gaspar.
CASE NO:                                                                                No. 2007-44-C.A.
(K1/04-237A)
COURT:                                                                                  Supreme Court
DATE OPINION FILED:   October 30, 2009
JUSTICES:  Suttell, C.J., Goldberg, Flaherty, Robinson, JJ. and Williams, C.J. (ret.)
WRITTEN BY:                                                                             Chief Justice Paul A. Suttell
SOURCE OF APPEAL:      Superior Court
JUDGE FROM LOWER COURT:
Associate Justice Melanie Wilk Thunberg
ATTORNEYS ON APPEAL:
For Plaintiff:    Lauren S. Zurier
Department of Attorney General
For Defendant:  John A. MacFadyen, Esq.

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