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Supreme Court No. 2007-19-C.A. (P1/01-1639A) State v. Vincent Manning. : : :

Present: Goldberg, Acting C.J., Flaherty, Suttell, Robinson, JJ. and Williams, C.J. (Ret.) OPINION Justice Suttell, for the Court. The defendant, Vincent Manning, appeals from a

judgment of conviction on one count of first-degree child molestation. The defendant's sole issue on appeal is whether the trial justice erroneously barred defense counsel from inquiring into the alleged victim's prior allegation of sexual abuse during cross-examination. The defendant seeks reversal of his conviction and a new trial. For the reasons set forth below, we affirm the judgment of the Superior Court. I Facts and Procedural History This case arises from an incident on the night of January 8, 2000, in which Sandy, 1 the complaining witness, accused defendant of molesting her. Sandy, aged twelve at the time, and her older sister, Mandy, had gone over to their "aunt" Barbara Rapko's house for a sleepover.2 Ms. Rapko's niece and nephew, Beth and Kevin, and her infant godson, David, were also staying at her house that night. The defendant, Ms. Rapko's boyfriend at the time, also was present on the night of January 8, 2000. At the time of the incident, defendant and Ms. Rapko had been

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We use fictitious names to identify the complaining witness and other children. Although both girls referred to Ms. Rapko as "Aunt Barbara," they were not, in fact, related. -1-

dating for approximately five years and, although they did not live together, he frequently spent the night at her house. Sandy testified that she arrived at Ms. Rapko's house at approximately 6 p.m. and got dressed for bed in new pajamas that she recently had received as a Christmas gift. Ms. Rapko did Sandy's hair, an activity Sandy enjoyed, and then all the children settled down into the living room to watch a movie. There were two couches in the living room; defendant sat down on the large couch and Sandy occupied the smaller couch or "love seat." The other children watching the movie sat on the floor. Sandy testified that Ms. Rapko went upstairs with David soon after the movie started. As the movie went on, Beth and Kevin both got into their sleeping bags. Mandy lay down on the floor under a blanket. At some point during the course of the movie, Sandy also moved to the floor because she said the couch was too hot and was bothering her back. She got inside a sleeping bag in between Beth and Kevin, and at some point she fell asleep. Mandy, also on the floor, was positioned closest to defendant, with the other three children farther away. Sandy testified that she was awakened by "somebody touching me." She said defendant had placed his finger inside her vagina and was making circular motions. 3 She testified that "[i]t hurt and it burned" and lasted a few minutes before defendant stopped and went upstairs. 4 Sandy stated that she remained quiet during the abuse because she was scared. She noticed that the time on the clock read 2:45 a.m.
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The prosecution did not elicit any testimony regarding the positioning of both Sandy and Mr. Manning during the alleged molestation; but, after drawing out from Sandy on cross-examination a statement that she had been sleeping on her right side and that Mr. Manning had reached his arm underneath her to molest her, defense counsel confronted her with her grand jury testimony in which she stated that she was lying on her left side and that Mr. Manning came "from the back of me, under." 4 When pressed on cross-examination, Sandy stated that the molestation lasted approximately fifteen minutes. -2-

Sandy testified that, a few minutes later, she tried to call her older cousin but was unable to reach her. Next, she attempted to contact her mother, but again no one answered. Failing to reach anyone, Sandy said that she changed out of her pajamas in the upstairs bathroom to prepare to leave. 5 It was at that time that she noticed a hole in the crotch of her pajama bottoms that did not exist when she went to bed. Despite preparing to leave, she went back downstairs where she lay on the couch and fell back to sleep. On cross-examination, Sandy revealed that she also attempted to wake up Mandy once she went downstairs by "push[ing] her a couple of times" and saying "wake up," but was unable to arouse her because she "sleeps in a deep sleep." The following morning, Sandy called her mother's boyfriend, Calvin Beatty, and asked him to pick her up. Mr. Beatty asked whether he could wait until Mandy was also awake so that he could pick them up at the same time, but Sandy insisted on being taken home immediately. Mr. Beatty characterized Sandy as sounding frightened, and noted that she was standing outside of Ms. Rapko's house when he arrived approximately ten minutes later. Upon arriving home, Sandy disclosed the alleged abuse. Sandy's mother called Ms. Rapko right away and demanded that Mandy be removed from her house. Sandy's mother also called the police, who interviewed Sandy at the police station. Subsequently, she was examined at Hasbro Children's Hospital, on January 10, 2000, to determine whether there was any physical evidence of the alleged abuse.

There is conflicting testimony about whether there also is a downstairs bathroom in Ms. Rapko's house. Sandy offered detailed testimony about a bathroom with "just a toilet" on the first floor. On cross-examination, defense counsel questioned Sandy why she chose to change in the upstairs bathroom which was significantly closer to the man she alleged had just molested her. Sandy responded that she did not change downstairs because "I wasn't going to change in front of a big window where everybody could see." Ms. Rapko and defendant both testified that she had only one bathroom, located upstairs. Ms. Rapko also stated that Sandy did not change out of her pajamas until the next morning when she showered and got dressed before being picked up. The trial justice noted that he did not find Sandy's testimony regarding the downstairs bathroom to be credible, when he considered the defense's motion for a new trial. -3-

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That initial examination could not confirm Sandy's allegation, but the examining physician sought a second opinion. Ten days later, Carole Jenny, M.D., director of the Child Protection Program at Hasbro Children's Hospital, conducted an examination of Sandy. Again, the examination could not confirm that Sandy had been abused, but Dr. Jenny cautioned during her testimony that "[a] normal [examination] neither rules out [n]or confirms that type of abuse. This child was well on into her adolescent development. * * * Given digital penetration, I wouldn't expect to see any permanent scars or changes from that type of contact." Mr. Manning testified on his own behalf, and strenuously denied molesting Sandy. He said that he fell asleep during the movie and went upstairs around 12 a.m. or 1 a.m. upon awakening. He testified that all the children were asleep when he went upstairs. Ms. Rapko testified on behalf of defendant and corroborated that he came to bed around 1 a.m. She also said that defendant was asleep in their bed at 2:30 a.m., when she woke up to take medication. Before commencement of the jury trial, defendant filed a notice of intent to introduce evidence of a prior unsubstantiated allegation of molestation allegedly made by Sandy against her godfather, arguing that it was admissible under State v. Oliveira, 576 A.2d 111 (R.I. 1990) to challenge Sandy's credibility. During discovery, the prosecution had produced the Rhode Island Hospital Child Safe - Child Protection Clinic Evaluation, from Sandy's January 10, 2000 examination, which notes that Sandy has "a history of being sexually molested by her godfather" and that she had been evaluated by the Child Safe Clinic in April 1997.6 Additionally, the state
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The document also states "She was actually evaluated in the Child Safe Clinic in April of '97 for these allegations. At that time, DCYF and the Woonsocket Police were involved in that investigation. * * * Also of note in regards to the previous allegations of sexual abuse by [Sandy's] godfather Walter, mom states that [Sandy] has had no contact with Walter since the allegations were brought forth. Reportedly[,] in April of 1997, [Sandy] had reported that it had occurred approximately 1 1/2 to 2 years ago. At that time, she was noted to have a normal physical exam, which neither ruled out nor confirmed the possibility of sexual abuse."

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had produced a psychiatric assessment performed by Northern Rhode Island Community Services in May 2002, which recounts that Sandy was molested by her godfather when she was eight years old, but adds that "charges were dropped." In response to defendant's notice, the state filed a motion in limine seeking to preclude defendant from "eliciting from [Sandy] testimony regarding [the] unresolved allegation." The state argued that eliciting such testimony would confuse and mislead the jury and was too remote in time to be relevant. At the pretrial hearing on the state's motion in limine, defendant made the following offer of proof: "during the course of discovery in this case, and earlier at a violation hearing, evidence was provided, those being medical records and consultations, which were produced in the course of treatment of the complaining witness, that made reference to prior accusations or prior alleged molestations by a certain Walter * * * occurring sometime in or about 1997. "Apparently, no criminal charges ever resulted. It is unclear whether the complaining witness in this case or her family, ever notified law enforcement, but apparently she did make these accusations. "We are looking to inquire regarding those accusations at trial from this witness. "This witness, apparently, if memory serves, is now fifteen years old or so. At the time of the initial allegation, she would have been about eight to ten years old. What I'm talking to is the allegations regarding Walter * * *, as the same." He then argued such evidence was admissible under Oliveira. The state countered that under Oliveira and State v Dorsey, 783 A.2d 947, 950 (R.I. 2001), the admissibility of prior allegations of molestation falls within the sound discretion of a trial justice. It then contended that in this case the evidence would be extremely prejudicial to the complaining witness, and it would serve only to confuse the jury. Conceding that the previous accusation was similar to the current charge against Mr. Manning, the state argued that

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both the witness's "tender age" when she made the first accusation and the remoteness in time weighed in favor of precluding the evidence. At the conclusion of the hearing, the trial justice declined to make a contemporaneous ruling, stating: "At this time, I'm going to deny the State's Motion in Limine but reserve judgment as to whether or not the examination by counsel for the defendant goes beyond the defendant's right under the Sixth Amendment to cross-examine her and whether or not the testimony would even be cumulative. "I will deny the Motion in Limine filed by the State. After the young lady testifies, assuming she does testify, then, [defense counsel], you can be heard in the absence of the jury, as to whether or not an examination as to the subject matter to which you have referred, would be appropriate. "* * * "That way, both sides will have sufficient opportunity to argue whether or not it's probative, whether or not it's cumulative, whether or not it's prejudicial, whether or not it's in violation of Rule 403, but I'm not restricting the defendant at this time. "I'll make a decision at the appropriate time after she testifies on direct examination." Sandy was the first witness for the prosecution. After she completed her direct

testimony, defense counsel, in the course of his cross-examination, asked, "You've made accusations against men for molesting you in the past, haven't you?" The prosecution

immediately objected and, after a sidebar discussion, the trial justice sustained the prosecution's objection. 7 The defense made a final effort to introduce the past allegation through cross7

The trial transcript reveals the following conversation: "[DEFENSE COUNSEL]: [Sandy will] testify she's made accusations before, and that she's not aware of any conviction entering therefrom. And also, Judge, it also goes to the point that if you have a 12- or 13-year old girl, who's the alleged subject of molestation, the fact she's made accusations of this in the past, can lead one to believe she has some familiarity with the terminology or the nature of the proceedings. "THE COURT: That's not an issue here. "[PROSECUTOR]: No. -6-

examination of Sandy's mother, arguing both that "this incident could be a fabrication, or could be another false allegation and goes to her credibility" and alternatively "[t]o the extent the [s]tate would contend she's not likely to fabricate it because of her age, these type of allegations, but if she made the allegations before, she's familiar with not just the knowledge as to how to make an allegation." Again, the trial justice sustained the state's objection to this line of inquiry, finding it to be remote and irrelevant.

"* * * "THE COURT: But again, I still don't understand what basis do you have to ask the question? Do you know she made some complaints in the past. "[DEFENSE COUNSEL]: The basis I have "THE COURT: Yes. "[DEFENSE COUNSEL]: - she made an accusation, I guess Walter * * *, who was her godfather. "THE COURT: She lived there "[DEFENSE COUNSEL]: Yeah, in 1997. I mean, I'll limit it to that one. I can limit the question. "* * * "THE COURT: So your question is: Did she ever make a complaint against someone else by the name of Walter. If she says `no' "[DEFENSE COUNSEL]: I'd bring Walter in to rebut it. "THE COURT: You may not be able to rebut it. It may be collateral. "[DEFENSE COUNSEL]: Well, in the hospital records, I think you're going to introduce, are you? "[PROSECUTOR]: No. "[DEFENSE COUNSEL]: It is in the hospital records. I can ask the doctor, I can question the doctor about that. "[PROSECUTOR]: So you're going to introduce hearsay. "[DEFENSE COUNSEL]: It's not hearsay if it's from her. "[PROSECUTOR]: It's not through the doctor. "THE COURT: It could qualify as a business record exception, too, from the hospital. But that's not the issue. I'm concerned now about the ability to cross-examine her now about complaints she made three years earlier against Walter. I'm going to sustain the State's objection."

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On February 3, 2003, the jury returned a guilty verdict on the sole charge of first-degree child molestation. The Superior Court denied defendant's motion for a new trial on February 13, 2003. In his ruling from the bench, the trial justice acknowledged that he was troubled by some inconsistencies in Sandy's testimony and that the motion for new trial turned, essentially, on Sandy's credibility. Because he concluded that reasonable minds could differ in their evaluation of the evidence, he declined to overturn the jury verdict. The trial justice subsequently sentenced defendant to twenty-five years incarceration, with thirteen years to serve and the remainder to be suspended, with probation. 8 The defendant timely appealed. II Standard of Review "It is well settled that this Court will not disturb a trial justice's ruling on an evidentiary issue unless that ruling `constitutes an abuse of the justice's discretion that prejudices the complaining party.'" State v. Hallenbeck, 878 A.2d 992, 1015 (R.I. 2005) (quoting State v. Gomez, 848 A.2d 221, 232 (R.I. 2004)). "Although a criminal defendant has a constitutional right to cross-examine prosecution witnesses, `this right is far from absolute.'" State v. Merida, 960 A.2d 228, 234 (R.I. 2008) (quoting State v. Lopez, 943 A.2d 1035, 1042 (R.I. 2008)). "Further, this right is `tempered by the dictates of practicality and judicial economy'; trial justices are authorized to exercise sound discretion in limiting the scope of cross-examination." Id. (quoting State v. Ramirez, 936 A.2d 1254, 1261 (R.I. 2007)).

Mr. Manning was already serving time for an unrelated felony domestic-assault conviction and the trial justice ordered the sentences to run consecutively.

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III Discussion A Right of Cross-Examination: General Principles "Both the Sixth Amendment to the United States Constitution (through the Fourteenth Amendment) and article 1, section 10, of the Rhode Island Constitution guarantee individuals accused of criminal charges the right to confront and cross-examine any adverse witnesses who testify against them." Dorsey, 783 A.2d at 950; see Davis v. Alaska, 415 U.S. 308, 315 (1974). Cross-examination affords the accused a critical vehicle for testing the credibility and veracity of a witness's testimony. See Davis, 415 U.S. at 316; State v. Doctor, 690 A.2d 321, 327 (R.I. 1997) (guaranteeing criminal defendant's right to effective cross-examination). Indeed, the United States Supreme Court "has recognized that cross-examination is the `greatest legal engine ever invented for the discovery of truth.'" Kentucky v. Stincer, 482 U.S. 730, 736 (1987) (quoting California v. Green, 399 U.S. 149, 158 (1970) and 5 Wigmore, Evidence

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