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Supreme Court
No. 2010-235-C.A.
(P1/08-2606A)
State                                                                                                  :
v.                                                                                                     :
Jaimeson Rushlow.                                                                                      :
Present:  Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
O P I N I O N
Justice Indeglia, for the Court.   The defendant, Jaimeson Rushlow, appeals from a
judgment of conviction for one count of domestic first-degree sexual assault and one count of
domestic assault with intent to commit sexual assault.   On appeal, the defendant contends that
the trial justice erred by refusing to pass the case after the complainant testified that the police
issued to her a no-contact order against the defendant.   The defendant also alleges that the trial
justice erred by denying a second motion to pass the case when a police officer, while testifying,
improperly bolstered the complainant’s credibility.  This case came before the Supreme Court on
October 4, 2011, 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 considering the record, the
written submissions of the parties, and the oral arguments of counsel, we conclude that this
appeal may be decided without further briefing or argument.   For the reasons set forth in this
opinion, we affirm the judgment of the Superior Court.
I
Facts and Travel
On August 29, 2008, defendant was charged by indictment with domestic burglary in
violation of G.L. 1956 § 11-8-1 and G.L. 1956 § 12-29-5 (count 1); two counts of domestic first-
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degree sexual assault in violation of G.L. 1956 §§ 11-37-2, 11-37-3, and § 12-29-5 (counts 2 and
3); and domestic assault with intent to commit a sexual assault in violation of G.L. 1956 § 11-5-1
and § 12-29-5 (count 4).   The charges stemmed from an incident between defendant and the
complainant, Ms. Frances Rushlow (Frances)1 that transpired on the night of June 18, and into
the early morning of June 19, 2008.   During the trial, the state presented various witnesses,
including Frances and the police officers who interviewed Frances and investigated the crime
scene.  The defendant testified on his own behalf.
The relevant evidence adduced at trial is set forth as follows.  The defendant and Frances,
a married couple and the parents of two boys, separated in the summer of 2007 but continued to
share custody of their children.   In June 2008, Frances lived with the couple’s young sons in an
apartment on Mendon Road in Cumberland.    The defendant lived with his brother a short
distance away in the same town.  At that time, there existed a no-contact order against defendant,
issued to Frances, based on an outstanding charge.   Although defendant and Frances had been
separated for approximately one year, and despite the no-contact order in effect between them,
their relationship remained cordial.2   Because of the shared custody arrangement, the two saw
each other fairly regularly when defendant came to Frances’s home to pick up and drop off their
sons.
At trial, Frances testified that on the night of June 18, 2008, she put the two boys to bed
in her own bed and fell asleep next to them while watching television.   Sometime in the early
morning she was awakened by defendant pulling her off the bed by her arms.   She asserted that
1 Because defendant and Frances share the same last name, we will refer to Frances by her first
name to avoid confusion.  We intend no disrespect by doing so.
2 Frances testified that defendant would take their boys every weekend.  Frances’s older daughter
(and defendant’s stepdaughter), who was no longer living with her, testified that defendant and
Frances were “friendly” and without “any animosity.”
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she had not invited defendant to her apartment and that she did not know how he gained entry.
Frances further testified that defendant pulled her, struggling, from the bedroom into the living
room and that she made noise in an attempt to wake the boys.   According to Frances, after
defendant forced her down the hallway and into the living room, he pinned her to the floor and
sexually assaulted her.   During the course of the struggle, Frances used a lit cigarette to burn
defendant.   After the assault, which took approximately forty-five minutes, defendant got up and
left Frances’s apartment.
Finding herself alone in the living room, Frances “cleaned up a little bit,” took a shower,
and went back to bed.   According to Frances, she initially declined to call the police because she
was scared, thought it would be “easier” not to involve the police, and “didn’t want to make
things worse.”   However, later in the evening of June 19, Frances reported the incident to police
and underwent a medical examination at Memorial Hospital in Pawtucket, Rhode Island.   Police
officers also came to Frances’s house that night to investigate the crime scene and to interview
her.    She was initially interviewed by Lt. Joseph Louro, who subsequent to the interview,
assisted in photographing the interior and exterior of the apartment and dusting for fingerprints.
Later that night, the police arrested defendant.    Initially, defendant denied being at
Frances’s apartment or having any sexual contact with her on the evening in question.  Sometime
later, however, defendant changed his story by acknowledging he was with Frances on the night
of June 18 and that any sexual contact was consensual.   In defendant’s version of events given at
trial, he walked by Frances’s apartment at approximately 1 a.m. on June 19, noticed a light on,
and decided to make an unannounced visit.    He testified that both the door to enter the building
and the door to the apartment were unlocked.   According to defendant, Frances was awake on
her bed when he entered the bedroom, and upon his entry she got up and went with him into the
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kitchen to talk and have some wine.  After discussing a job he had just started the day before that
involved manually removing and hauling sprinkler pipe, they started kissing.   The defendant
testified that the kissing progressed until the two “ended up on the [living room] floor” having
consensual sex.   He denied using any force upon Frances, but he indicated that soon thereafter
they began to argue loudly about another woman defendant was dating.   After gathering his
belongings, defendant left Frances’s apartment.   The defendant explained that he initially lied to
the police about the incident because he feared being found in violation of the existing no-
contact order.
At the conclusion of the trial, the jury found defendant guilty of domestic first-degree
sexual assault (vaginal-penile penetration) and of domestic assault with intent to commit sexual
assault.3   The trial justice denied defendant’s motion for a new trial and sentenced him to thirty-
five years, with fifteen years to serve and twenty years suspended, with twenty years probation
on the count of first-degree sexual assault.   As to the count of assault with intent to commit
sexual assault, defendant was sentenced to twenty years, with ten years to serve and ten years
suspended, with ten years probation.  The trial justice ordered both sentences to run concurrently.
The defendant timely appealed.
II
Issues on Appeal
The basis for defendant’s appeal is two-fold.   First, defendant contends that the trial
justice should have passed the case when Frances testified that the no-contact order against
defendant had been issued to her by the police.   According to defendant, Frances’s statement on
the witness stand was both improper and unfairly prejudicial because it suggested prior criminal
3
The jury returned not-guilty verdicts on both the domestic first-degree sexual assault (anal
penetration) and the domestic burglary counts.
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misconduct toward Frances by defendant.   Although the trial justice immediately struck the
comment from the record and provided a cautionary instruction to the jury, defendant maintains
that “the taint [from Frances’s] comment was inexpiable,” thus requiring the trial justice to pass
the case.
Secondly, defendant contends that the trial justice abused her discretion when she denied
a second motion to pass the case after Lt. Louro testified that Frances seemed “sincere” when she
accused her husband of sexual assault during Lt. Louro’s initial police interview.   Instead of
passing the case, the trial justice admonished the jury to disregard the officer’s comment.   The
defendant argues that because so much of this case rested on the credibility of Frances and
defendant, the police officer’s testimony bolstered the complainant’s credibility and necessitated
that the trial justice pass the case.    The defendant asserts that the trial justice abused her
discretion in denying these motions and asks this Court to reverse his conviction and remand his
case to the Superior Court.
III
Standard of Review
“It is well settled that a decision to pass a case and declare a mistrial are matters left to
the sound discretion of the trial justice.”   State v. Suero, 721 A.2d 426, 429 (R.I. 1998); see also
State v. Lynch, 19 A.3d 51, 60 (R.I. 2011).   This Court gives considerable deference to a trial
justice’s ruling on a motion to pass a case and declare a mistrial because the trial justice has a
“front row seat,” allowing him or her to “best determine the effect of the improvident remarks
upon the jury.” State v. Tempest, 651 A.2d 1198, 1207 (R.I. 1995) (quoting State v. Pailin, 114
R.I. 725, 729, 339 A.2d 253, 255 (1975)); see also State v. Nelson, 982 A.2d 602, 607 (R.I.
2009).   As such, the trial justice’s determinations regarding the prejudicial effect of evidence and
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the jury’s ability to render a fair and impartial verdict are reviewed by this Court under an abuse-
of-discretion standard.  Nelson, 982 A.2d at 608.
IV
Discussion
A
The No-Contact Order Testimony
The defendant argues that the trial justice erred in refusing to pass the case when Frances
testified that a no-contact order had been issued to her “from the police.”   Prior to trial, the trial
justice summarized to counsel her rulings on various motions in limine, one of which addressed
the existence of a no-contact order issued to Frances that was based on an outstanding charge
against defendant.   The trial justice decided to “permit evidence of the no contact order itself
without evidence of the charge connected with it.”    Neither party objected to this ruling.
Frances was the state’s first and principal witness.   Shortly after commencing direct
examination, the prosecutor began questioning Frances about her separation from defendant.   At
issue is the following line of questioning:
“[PROSECUTOR]:  What court order was in effect?
“[FRANCES]:  It was a restraining order.
“[PROSECUTOR]:  And who had gotten that restraining order?
“[FRANCES]:   That was on my behalf.   It was issued from the
police.
“[PROSECUTOR]:  That was on your behalf?
“[FRANCES]:  Yes.
“* * *
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“[DEFENSE COUNSEL]:   I object and move to strike the
last half of that --
“THE COURT:   Sustained, answer stricken and must be
disregarded.”
After several more questions and answers, the trial justice gave the jury the following
cautionary instruction:
“I’m instructing you that the evidence of a no contact order, if any,
does not suggest in any way that the Defendant * * * engaged in
any criminal conduct or other misconduct.   It cannot be used by
you as jurors to suggest that the Defendant engaged in any prior
misconduct.   You may not draw the inference from the evidence
that the Defendant may have committed the crimes with which
he’s been charged in this proceeding or had the propensity to
commit such crimes, and the evidence of the no contact order may
only  be  considered  by  you  potentially  as  evidence  of  the
relationship of these parties and the Defendant’s intent, motive and
or state of mind on the date or dates in question with respect to the
charges.”
Defense counsel immediately requested a sidebar conference and moved to pass the case.
At sidebar, defense counsel argued that Frances’s statement regarding the police issuance of the
no-contact order was akin to “saying the police know him from the neighborhood.”   In response,
the prosecutor insisted that she did not know Frances would make such a statement.   After
hearing  arguments  from  both  sides,  the  trial  justice  determined  that  a  further  cautionary
instruction would cure any problem and declined to pass the case.
After the sidebar conference, the trial justice addressed the jury and clarified that “the no-
contact order referenced by this witness was not issued by the police department.”   At the close
of the trial, the trial justice again instructed the jury to ignore any testimony that had been
stricken during the course of the trial and emphasized the limited use to which the jury could
consider any evidence of defendant’s prior misconduct.
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In his appeal, defendant argues that the taint of Frances’s comment was inexpiable.   To
support that, defendant points to the trial justice’s pretrial ruling prohibiting evidence of the
outstanding criminal charge associated with the no-contact order.   The defendant asserts that
Frances’s reference to the police  “clearly reverberated throughout  [the] courtroom,” and the
impact of the statement on the jury could not be “unrung” by the trial justice’s admonition.   In
addition, defendant emphasizes how early in the trial the improper testimony was elicited and
relies on prior case law from this Court involving the reversal of convictions because of overly
prejudicial statements during trial.4  However, in light of the circumstances of the case before us,
defendant’s argument is unavailing.
In considering a motion to pass occasioned by the accidental introduction of allegedly
harmful  information  at  trial,                                                                       “the  trial  justice  must  assess  the  prejudicial  impact”  of  the
information.  State v. Rosario, 14 A.3d 206, 215 (R.I. 2011) (quoting State v. LaPlante, 962 A.2d
63, 70 (R.I. 2009)).   A statement is held to be sufficiently prejudicial when it is “extraneous to
the issues before the jury and tend[s] to inflame the passions of the jury.” Rosario, 14 A.3d at
215 (quoting State v. Monteiro, 924 A.2d 784, 792 (R.I. 2007)).   Furthermore, rather than using
some  prescribed  formula  for  determining  prejudice,  we  have  observed  that                      “potentially
prejudicial evidence must ‘be viewed in the context in which it appeared and in light of the
attendant circumstances.’”  Rosario, 14 A.3d at 215 (quoting LaPlante, 962 A.2d at 70-71).
Taking  into  consideration  all  of  the  circumstances  surrounding  Frances’s  errant
statement, we hold that the testimony concerning the no-contact order being issued to Frances by
the police was not sufficiently prejudicial as to prevent the jury from calmly and dispassionately
4 The defendant cites this Court’s holdings in State v. Gallagher, 654 A.2d 1206 (R.I. 1995);
State v. Ordway, 619 A.2d 819 (R.I. 1992), and State v. Pugliese, 117 R.I. 21, 362 A.2d 124
(1976).
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considering the evidence.   See Rosario, 14 A.3d at 216.   Indeed, considering the quantity and
strength of evidence presented against defendant during the course of the trial, an inaccurate
statement  regarding  the  manner  in  which  the  no-contact  order  was  issued  can  hardly  be
considered inflammatory.5   The record reflects an abundance of evidence presented to the jury
that suggested defendant’s guilt.   For example, defendant initially lied to the police about his
whereabouts and actions on the night of the incident.   Evidence of defendant’s DNA placed him
at the scene of the crime and with Frances.   Physical evidence of abrasions and bruises on
Frances’s body corroborated her testimony.   The defendant had a noticeable scratch on his body
and  a  burn  on  his  hand—also  corroborating  Frances’s  testimony.    In  addition,  Frances’s
downstairs neighbor testified that he saw defendant on the fire escape outside his window on the
night of the incident and that he later heard loud banging and yelling emanating from Frances’s
apartment above.   Finally, while in prison awaiting trial, defendant attempted to prevent Frances
from testifying in court by requesting third parties to keep her away from her house so she could
not be subpoenaed.
In addition to the plentitude of evidence presented by the prosecution, the cautionary
instructions provided by the trial justice also alleviated any prejudicial impact of the testimony.
The trial justice both corrected Frances’s testimony regarding the source of the no-contact order
and provided a cautionary instruction to the jury immediately after the comment at issue.   She
also provided further clarification to the jury after the sidebar conference.   At the conclusion of
trial, the trial justice again instructed the jury about the proper and limited purpose of such
evidence.    The trial justice provided these instructions to diminish the prejudicial effect of
5 We distinguish the instant case from State v. Miller, 679 A.2d 867, 873 (R.I. 1996), in which
we concluded that prejudicial error did exist because  “the quantity and the quality of the
evidence [was] closely balanced * * *.”
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Frances’s statement.   In the absence of any indication that the jury failed to obey the cautionary
instruction given by the trial justice, we must assume that the jury followed the instructions as
given.   State v. Barbosa, 908 A.2d 1000, 1005 (R.I. 2006); see also State v. Mendoza, 889 A.2d
153,  159  (R.I.  2005).    In this case, there is no indication that the jury failed to obey the
cautionary instruction.
Lastly, we emphasize that the jury found defendant not guilty of two of the four crimes
with which he was indicted.   This verdict suggests that Frances’s testimony did not render “the
result of inflaming the passions of the jurors to the point where they were unable to pass
impartially upon the issues in this case.”   State v. Ordway, 619 A.2d 819, 828 (R.I. 1992).
Therefore, considering the weight of the prejudicial evidence against defendant, the trial justice’s
specific and timely cautionary instruction to the jury, and the jury’s final verdict, we conclude
that the trial justice did not abuse her discretion in denying to pass the case.
B
The Bolstering Testimony
Next, defendant argues that the trial justice abused her discretion in failing to pass the
case when Lt. Louro improperly bolstered Frances’s credibility by testifying that she seemed
“sincere” when she accused defendant of sexual assault.   Lieutenant Louro, a supervisor in the
Cumberland Police Department, was dispatched with another officer to Frances’s home on June
19, 2008, to investigate the incident.   During the prosecution’s direct examination of Lt. Louro,
he testified about his interview with Frances concerning the sexual assault.   At issue is the
following question and response:
“[PROSECUTOR]:    Could you describe her demeanor at that
point in time?
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“[LT. LOURO]:   She appeared a little nervous, upset and sincere
on the issue.”
Defense counsel immediately objected to Lt. Louro’s response and moved to strike.   The
trial justice sustained the objection, struck the answer, and instructed the jury to disregard it.
Defense counsel requested a sidebar conference, during which he moved to pass the case.   The
trial justice declined to pass the case and gave the following cautionary instruction to the jury:
“Members of the Jury, you’re instructed as follows with
regard to this witness’[s] testimony that I have just stricken:   You
must entirely disregard it.   The witness is not allowed to comment
on the credibility of another witness and that is for you to decide
based on the testimony in the courtroom.”
At the conclusion of trial, and as part of her general jury instructions, the trial justice
again cautioned the jury regarding witness bolstering.
On appeal, defendant argues that the main issue for the jury to resolve—whether the
sexual intercourse was consensual—depended largely on whether the jury believed Frances or
defendant to be more credible.   The defendant asserts that this bolstering of Frances’s credibility
by Lt. Louro necessitated the trial justice to pass the case.  We disagree.
This Court has held that “[t]he determination of the truthfulness or credibility of a witness
lies within the exclusive province of the jury.”   State v. Adefusika, 989 A.2d 467, 476 (R.I.
2010) (quoting State v. Haslam, 663 A.2d 902, 905 (R.I. 1995)).   Accordingly, “bolstering”
(which occurs when one witness offers an opinion pertaining to the accuracy of another witness’s
testimony) is impermissible.   Adefusika, 989 A.2d at 476.   We consider opinion testimony to be
inadmissible bolstering if “the opinion testimony has the same substantive import as if it squarely
addressed and bolstered another witness’s credibility * * *.” Id. (quoting State v. Miller, 679
A.2d 867, 872 (R.I. 1996)).   When this Court determines that specific testimony constitutes
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impermissible bolstering, our task is then to determine whether the trial justice’s decision to
admit such improper testimony constituted prejudicial error.  Id. (citing Miller, 679 A.2d at 873).
Upon undertaking such an analysis, this Court’s first step is to determine whether Lt.
Louro’s  statement  regarding  Frances’s  sincerity  was  improper  bolstering.    To  support  his
argument, defendant relies on our decision in State v. Lassiter, where this Court found that a
police officer’s testimony “squarely addressed and bolstered another witness’s credibility.” State
v. Lassiter, 836 A.2d 1096, 1109 (R.I. 2003) (quoting Miller, 679 A.2d at 872).   Such is the case
here.   Lieutenant Louro’s testimony went beyond just simply addressing how Frances physically
appeared during the interview by testifying about his opinion of the veracity of her accusations.
Because  Frances  had  already testified  as  the  prosecution’s  key witness,  Lt.  Louro’s  brief
comment that she “seemed * * * sincere” improperly bolstered her credibility.6
Having determined that Lt. Louro’s comment was improper bolstering, we now examine
whether the trial justice abused her discretion by declining to pass the case.   Our prior holding in
State v. Higham, 865 A.2d 1040 (R.I. 2004) is instructive.   In Higham, 865 A.2d at 1041, the
defendant appealed his conviction of two counts of first-degree child molestation sexual assault.
The defendant argued that the trial justice erred in refusing to pass his case after the mother of
the victim improperly bolstered the victim’s credibility.7   Id. at 1044.   The victim’s mother, in
response to a question about whether the victim had spoken to her recently regarding the
molestation, replied,                                                                                   “in counseling.” Id.    After defense counsel objected, arguing that the
6
Furthermore, the meaning of “sincere” is virtually synonymous with “truth.”   See, e.g., The
American Heritage Dictionary of the English Language 1624 (4th ed. 2006) (defining the word
“sincere” as  “1.                                                                                       [n]ot feigned or affected; genuine” and  “2.  [b]eing without hypocrisy or
pretense; true”).
7
In State v. Higham, 865 A.2d 1040, 1044 (R.I. 2004), we used the term “vouching,” rather than
“bolstering.”                                                                                           While  these  terms  are  technically  distinct,  they  are  frequently  used
interchangeably, and it is unnecessary to expound upon the differences here.
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evidence of counseling suggested a higher probability of the victim’s truthfulness, the trial
justice sustained the objection and struck the witness’s comment from the record.   Id.   The trial
justice subsequently denied a motion to pass the case, but did provide the jury with a cautionary
instruction.  Id.
Although we acknowledged in Higham, 865 A.2d at 1045, that “much hinged on the
issue of the complaining witness’s credibility,” this Court concluded that the defendant was not
prejudiced by only one brief reference to the complaining victim’s counseling session.   See id.
No less significant is the fact that in Higham, the victim herself took the stand during trial and
testified directly about the abuse she suffered at the hands of the defendant.   Id. at 1046.   This
Court concluded that the victim’s lengthy testimony gave the jury “ample opportunity to form an
independent opinion about [the victim’s] credibility.”   Id.   Based on this reasoning, this Court
affirmed the trial justice’s decision to deny the motion to pass the case.  Id.
In the case at hand, Lt. Louro’s testimony as to what he perceived as Frances’s sincerity
was, as in Higham, brief and without follow-up.   Moreover, as the prosecution’s first witness,
Frances gave extensive testimony that was subject to substantial cross-examination.    As in
Higham, Frances’s testimony provided the jury with “ample opportunity to form an independent
opinion” about her credibility.   Higham, 865 A.2d at 1046.   Thus, the brevity of Lt. Louro’s
remark, the jurors’ sufficient opportunity to judge Frances’s truthfulness before his remark, and
the trial justice’s immediate instruction to the jury to disregard his remark8 are all factors
supporting the trial justice in her decision to deny passing the case.
8 Similarly, in State v. Enos,  21 A.3d  326,  329  (R.I.  2011), a police officer intimated the
defendant’s culpability by testifying that the defendant refused to provide any information after
the officer had advised him of his Miranda rights.   On appeal, this Court held that no abuse of
discretion occurred when the trial justice denied passing the case after she provided a cautionary
instruction to the jury.   Id. at 334 (asserting that “any prejudice that may have arisen” from the
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Finally, as discussed supra, we incorporate into our analysis the quantity and strength of
the evidence presented against the defendant during the course of the trial, as well as the fact that
the jury eventually acquitted the defendant on two of the four charges with which he was
indicted.   Considering the totality of all of these factors, we are persuaded that in this case the
improper bolstering of Frances’s testimony by Lt. Louro was not sufficiently prejudicial to the
defendant.   Accordingly, we hold that the trial justice did not abuse her discretion in declining to
pass the case.
V
Conclusion
For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.
The record of the case may be remanded to the Superior Court.
officer’s testimony was “foreclosed by the trial justice’s immediate and thorough instruction to
the jury”).
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Supreme Court
No. 2010-235-C.A.
(P1/08-2606A)
State                                                                 :
v.                                                                    :
Jaimeson Rushlow.                                                     :
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 Order/Opinion Cover Sheet
TITLE OF CASE:                                        State v. Jaimeson Rushlow.
CASE NO:                                              No. 2010-235-C.A.
                                                      (P1/08-2606A)
COURT:                                                Supreme Court
DATE OPINION FILED:   November 28, 2011
JUSTICES:                                             Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
WRITTEN BY:                                           Justice Gilbert V. Indeglia
SOURCE OF APPEAL:    Providence County Family Court
JUDGE FROM LOWER COURT:
Associate Justice Judith C. Savage
ATTORNEYS ON APPEAL:
For State:  Lauren S. Zurier
Department of Attorney General
For Defendant:  Janice M. Weisfeld
Office of the Public Defender

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