by Matthew Thomas Clarke

The Supreme Court of Rhode Island held that an alleged victim’s handwritten letter to her mother and a scribbled note made at the police department were inadmissible hearsay and that their admission was not harmless. It reversed five child molestation related convictions and remanded for a new trial.

Milton Aponte met Sharon Withee when her daughter, Mary (pseudonym), was eight. Aponte moved in with Withee, and they soon had a son together. Six years later, the Department of Children, Youth, and Families (“DCYF”) removed Mary and her two brothers from the home for reasons unrelated to this case.

Mary was placed in the Short-Term Assessment and Rapid Reintegration (“STARR”) Program, a temporary placement for young girls in need of housing. The day after her STARR placement, Mary wrote a letter to her mother alleging Aponte had sexually abused her and urging her to “never get back with him.”

Mary never sent the letter to her mother and claimed that she never intended to do so. However, a STARR staff member found the letter a few weeks later and reported the alleged abuse to DYCF. After discussing the letter with a staff member, Mary was taken to the Pawtucket Police Department to give a statement.

When police pressed Mary for details of the sexual abuse, she broke down and was unable to speak. Instead, she scribbled the following note on a piece of paper: “He licked something while I was playing video games instead of watching my [little] brothers.” When further questioned, Mary asked to speak with a female officer.

A female detective conducted a recorded interview with Mary. Because Mary was visibly upset, the detective asked her if she would feel more comfortable typing the statement. While typing, Mary listened to music on her headphones and hummed along. She also paused to ask the detective, “This has nothing to do with it, but you can go to jail for lying under oath, because I saw it on ‘Law and Order.’” The detective responded, “Yes, you can – it’s a crime.” Mary asked, “But why? What if you’re not religious?” The detective explained, “It doesn’t matter if you are religious or not.”

Aponte was charged with first-degree molestation, three counts of second-degree child molestation, and simple assault and battery under GL 1956 §§ 11-37-8.1 through 11-37-8.4 and 11-5-3. During the trial, Mary’s letter addressed to her mother and the scribbled note were admitted into evidence over Aponte’s objections. He was convicted on all counts and given concurrent sentences, the longest of which was life.

Aponte timely appealed, arguing the letter and note were inadmissible hearsay because he made no claim of recent fabrication and their admission was an abuse of discretion that was unduly prejudicial.

The Rhode Island Supreme Court noted that out-of-court statements offered for their truth are inadmissible unless a recognized rule or exception applies. State v. Oliveira, 127 A.3d 65 (R.I. 2015). One such exception is when the witness has been accused directly or by implication of “recent fabrication.” R.I. R. Evid. 801(d)(l)(B). The Court observed that this exception to the rule against hearsay contains a temporal requirement: “the consistent statements must have been made before the alleged influence, or motive to fabricate arose.” State v. Briggs, 886 A.2d 735 (R.I. 2015) (quoting Tome v. United States, 513 U.S. 150 (1995)).

To illustrate the point, the Court discussed State v. Barkmeyer, 949 A.2d 984 (R.I. 2008), in which the defense accused a child witness of having been coached by police and prosecutors. However, the prior consistent statement at issue was made before the child met with law enforcement, so the Barkmeyer Court held that the statement fell within the exception under Rule 801(d)(1)(B). Similarly, in State v. Kholi, 672 A.2d 429 (R.I. 1996), a statement was properly admitted when the defense had implied the witness’ accusations were motivated by her intent to bring a civil suit against him to obtain compensation from the Violent Crimes Indemnity Fund; however, the statement predated the compensation motive.

In contrast, where a prior consistent statement did not precede the claimed fabrication or coercion, the court held that the statement did not come under Rule 801(d)(1)(B). See Briggs (holding that statements of alibi witnesses were properly excluded because the motive to afford defendant an alibi arose before the statements were made).

Turning to the present case, the Court explained that it’s analogous to Briggs. The record showed that Mary did not adjust well to the changes in her family – going from a two-person home to a five-person home – after Aponte moved in with Mary and her mother. Aponte and Mary’s infant brothers occupied much of the attention she had previously received from her mother. When Aponte sought to discipline Mary for acting out, she developed a strong dislike of him and a motive to fabricate allegations of sexual abuse, the defense asserted. The Court explained that, in contrast to Barkmeyer and Kholi, the motive for Mary to fabricate the allegations against Aponte predated her writing the letter to her mother by many months and possibly even years. Thus, the Court held that the trial court erred by characterizing the letter as admissible as nonhearsay under Rule 801(d)(1)(B) because the temporal requirement was not satisfied.    

The Court then turned to the issue of the scribbled note. The State defended the admission of the note as an excited utterance, which is an exception to the hearsay rule recognized in Rule 803(2). For this exception to apply, the State must prove that the statement was spontaneous and made before there was an opportunity to contrive or misrepresent. State v. Burgess, 465 A.2d 204 (R.I. 1983). Generally, this requires that the statement be made soon after the startling event. See State v. Momplaisir, 815 A.2d 65 (R.I. 2003). The Court stated that the test is “whether, from a consideration of all the facts, the declarant ‘was still laboring under the stress of excitement caused by the event when he or she made the statement at issue.’” State v. Morales, 895 A.2d 114 (R.I. 2006). 

However, for cases of sexual assault, the Court stated that the time requirement is more lenient. See id.; see also State v. Creighton, 462 A.2d 980 (R.I. 1983). But a statement made more than a day after the alleged sexual assault “stretches the [excited] utterance exception far beyond its breaking point” when the State failed to show the statement was a spontaneous response to the stress of a current event. State v. Poulin, 415 A.2d 1307 (R.I. 1980).

Turning to the present case, the Court concluded that the State failed to satisfy its burden of establishing that Mary was still laboring under the stress of the alleged sexual abuse when she scribbled the note. The Court observed that Mary’s statement was made months, or even years, after the alleged events, but the excited utterance exception has never been applied to a statement that was made months or years after the startling event. Furthermore, the Court rejected the State’s argument that the exception applies because Mary was triggered by recalling the events, explaining that the “exception attaches to the initial event.” Thus, the Court held that the trial court abused its discretion by admitting the scribbled note. 

Finally, the Court held that it could not be proven beyond a reasonable doubt that the errors did not contribute to the verdict because, absent the statements, the only evidence against Aponte was Mary’s testimony, which the improperly admitted statements bolstered.

Accordingly, the Court vacated the judgment of conviction and remanded for a new trial. See: State v. Aponte, 317 A.3d 745 (R.I. 2024).

Editor’s note: Anyone interested in the exceptions to the rule against hearsay discussed in this case is encouraged to read the Court’s full opinion. 

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