State v. Juan P. Benitez

January 25, 2022

Supreme Court

No. 2018-240-C.A.
(P2/14-2095A)

State :

v. :

Juan P. Benitez. :

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 (401) 222-3258 or
Email opinionanalyst@courts.ri.gov, of any
typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court

No. 2018-240-C.A.
(P2/14-2095A)

State :

v. :

Juan P. Benitez. :

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

OPINION

Justice Robinson, for the Court. The defendant, Juan P. Benitez, appeals

from a July 28, 2017 judgment of conviction and commitment on one count of

second-degree child molestation entered following a jury trial. On appeal, the

defendant contends that: (1) “the trial court erred when it permitted [a physician

testifying as an expert witness] to testify to hearsay statements unrelated to medical

diagnosis or treatment;” and (2) “the trial court impermissibly allowed the state to

mislead the jury by impeaching a witness with a statement he did not author, sign,

or review.”

For the reasons set forth in this opinion, we affirm the judgment of the

Superior Court.

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I

Facts and Travel

On July 14, 2014, Mr. Benitez was charged by criminal information with

one count of second-degree child molestation for having “engage[d] in sexual

contact” with his biological daughter, Nancy,1 when she was “fourteen (14) years

of age or under, in violation of [G.L. 1956] § 11-37-8.3 and § 11-37-8.4 * * *.” A

trial ultimately took place over seven days in March of 2017. We relate below the

salient aspects of that trial.

A

The Testimony of Nancy

Nancy testified that, at the time of trial, she was sixteen years old. At trial,

she identified defendant as her biological father, and it was her testimony that she

had two younger sisters who were also the biological children of defendant. She

added that, when her parents separated, she lived with her mother. She further

testified that her father lived with her grandmother, her six uncles, and one of her

1
For the purposes of confidentiality, we refer to the complaining witness
pseudonymously.

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aunts in Providence.2 She went on to state that she saw defendant “most of the

weekends” and that her sisters accompanied her on those visits.

It was then Nancy’s testimony that, during those visits, her father would

“take his penis, and put it in [her] butt and rub it there.” She added that the abuse

started when she was six years old. She stated that “in the beginning it would be

like a game of some sort, to see who can get their clothes and get their pants off

first.” She testified that the abuse would “happen a lot[.]” She described a specific

instance of abuse that purportedly occurred in the closet in her father’s bedroom

after she had taken a shower; it was her testimony that her sisters were in the same

bedroom watching television at the time.

Nancy then testified that she told a cousin of hers about the abuse and that

her cousin passed that information on to her own mother, who was Nancy’s aunt.

She added that, when her cousin made that disclosure, Nancy’s grandmother was

also present. She further stated that her grandmother “pull[ed her] aside” and

asked if she was “sure” that her father was “not just playing around, playing a joke

like he does sometimes * * *.”

Nancy explained during her testimony that, on a particular occasion when a

party was taking place, defendant “kept on calling” her and “tried to pull [her] into

2
It was Nancy’s testimony that, at some point, her father moved to a different
location—although a number of his family members, including her grandmother,
continued to reside with him.

-3-
the bathroom;” she added that she “pulled away,” cried, and told defendant that she

“didn’t want that anymore, and * * * didn’t like it.” It was her testimony that the

abuse ended after that interaction.

It was Nancy’s testimony that a time came when she told her mother about

the abuse. She testified that she told her mother because her mother had found out

that Nancy was cutting herself on her wrist with a knife and her mother was

“scared that [Nancy] would do something to [her] sisters because she didn’t

understand what was happening.” Nancy added that she engaged in cutting

behavior because she hoped that it would “distract” her mind from thinking about

the abuse that she had suffered. She further testified that she told her mother about

the abuse because, if she was not “able to see” her sisters, she “didn’t know if [she]

could protect them” or “didn’t know that maybe something like that [was]

happening to them too * * *.”

In the course of a lengthy and thorough cross-examination of Nancy, she

was questioned about her sisters being in the room during some of the instances of

abuse, and she maintained that that was the case. She was also cross-examined

with respect to her disclosure of the abuse to her cousin and the reactions of her

aunt and grandmother.

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B

The Testimony of Dr. Adebimpe Adewusi

Immediately prior to the testimony of Adebimpe Adewusi, M.D., a doctor

who treated Nancy, defense counsel moved to exclude any mention by said doctor

of the fact that Nancy had suicidal thoughts stemming from her concern that she

could not protect her sisters from suffering the same abuse as she allegedly had

suffered. Counsel contended that such statements were not relevant to medical

diagnosis and thus did not fall within that exception to the hearsay rule; he added

that the statements constituted impermissible bolstering and vouching. In

response, the prosecutor asked “that the Court allow the doctor to testify simply

that [Nancy] showed concern for her sisters.” The trial justice ruled that the

statement that Nancy was concerned about her sisters was “reasonably pertinent to

[Nancy’s] past suicidal ideations.” He also commented that Nancy’s concern for

her sisters would “not be new to the jury.”

Subsequent to the trial justice’s ruling, defense counsel raised an additional

objection to the doctor’s testimony. He contended that the doctor should not be

permitted to testify with respect to what Nancy told the doctor about her disclosure

of the abuse to her cousin, which information eventually was passed on to her aunt

and was heard by her grandmother; nor, defense counsel further contended, should

the doctor be permitted to testify with respect to what Nancy told her about the

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responses to that disclosure. Defense counsel argued that such statements did not

fall within the exception to the hearsay rule concerning statements made for the

purposes of medical diagnosis or treatment. He then posited that the doctor should

also not be permitted to testify as to Nancy’s statement that her sisters were in the

room when some of the abuse allegedly occurred; he argued that that statement

was “narrative * * *.” The trial justice overruled defendant’s objection and stated

as follows:

“[The statements at issue were] examples of different
pressures that may play upon the mind of a patient who
presents to a physician and the physician knows that
there were past suicidal ideations, although, never
attempts. It’s incumbent upon the physician to look into
all particular matters that may affect what went into those
suicidal ideations. These statements are inextricably
intertwined with the physician’s exam and in taking of
the history and the obtaining of all relevant and
reasonably pertinent information.”

Doctor Adewusi then testified that she worked at Hasbro Children’s Hospital

as a “child abuse pediatrics fellow,” meaning that she specialized in the area of

child abuse pediatrics. Having been qualified as an expert, Dr. Adewusi testified

about the type of examination she usually conducts and how she conducted

Nancy’s physical examination. When the prosecutor started to question the doctor

about her conversation with Nancy prior to beginning the physical examination,

defendant incorporated by reference his previous objections to the doctor’s

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testimony. The prosecutor then requested permission to proceed by posing leading

questions to the doctor, and defense counsel stated that he had no objection.

The remainder of the doctor’s testimony, which spans only three transcript

pages, proceeded in pertinent part as follows:

“[PROSECUTOR]: And during your talk and your
conversation consult with [Nancy] for medical purposes
and diagnosis, you noticed that she had some physical
manifestations or marks on her body on her arms and
wrists, correct?

“[DOCTOR]: Yes, on her left forearm.

“[PROSECUTOR]: And pursuant to seeing that, you did
inquire of her as to what those were, correct?

“[DOCTOR]: Yes.

“[PROSECUTOR]: And she stated she denied having
any suicidal thoughts at that moment, correct?

“[DOCTOR]: Yes.

“[PROSECUTOR]: But she did say that she had concern
for her sisters, correct?

“[DOCTOR]: Yes.

“* * *

“[PROSECUTOR]: * * * [Nancy] also revealed to you
that she had told a cousin, correct?

“[DOCTOR]: She said she made a disclosure to her
paternal cousin.

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“[PROSECUTOR]: Paternal cousin and who in turn then
revealed it to her paternal family and her grandmother,
correct?

“[DOCTOR]: Yes. She said it made its way to the
paternal grandmother.

“[PROSECUTOR]: At some point she revealed to you
that sometimes when the alleged abuse was happening
that her sisters would be in the room, correct?

“[DOCTOR]: Yes.

“* * *

“[PROSECUTOR]: And that in regards to her disclosure
to her family members, that her paternal grandmother and
her paternal aunt stated that it was just probably him
playing around how dads play, correct?

“[DOCTOR]: Yes, she made that statement.”

No further objections were made, and defense counsel did not cross-examine the

doctor.

C

The Testimony of Douglas Harris

Douglas Harris testified on defendant’s behalf, identifying himself as

defendant’s brother-in-law. During the course of the state’s cross-examination of

Mr. Harris, he was asked if defendant was ever left alone with defendant’s

children, and Mr. Harris replied that defendant was not. The prosecutor then asked

whether, prior to an earlier hearing in the case, Mr. Harris had given a statement to

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defense counsel. At that point, defense counsel objected and a sidebar conference

ensued.

Defense counsel contended that, if the state was trying to impeach Mr.

Harris with a summary of his potential testimony which had been prepared by

defense counsel and provided to the prosecutor during discovery pursuant to Rule

16 of the Superior Court Rules of Criminal Procedure (the statement at issue), it

was not permissible because Mr. Harris did not prepare, review, or sign that

statement. Defense counsel expressly conceded that “[i]f they want to refresh

recollection, you can refresh with anything * * *.” The trial justice overruled the

objection, stating that they would “see what the witness says when the particular

concepts that are set forth in the statement are presented to the witness.” The

prosecutor then proceeded to question Mr. Harris, and no further objection was

made by defense counsel.3

Later in the state’s cross-examination of Mr. Harris, he was asked whether

or not he “remember[ed] telling [defense counsel] that [Nancy’s sister] came out to

the porch” during a particular conversation between Nancy and Mr. Harris. He

stated that he did not remember. The prosecutor asked whether looking at the

statement at issue would help him remember, to which question defense counsel

3
The defendant concedes in his brief before the Court that the just-described
statement at issue was only being used to refresh Mr. Harris’s recollection, and not
to impeach, the first time it was used in cross-examination. It is the second use of
that statement (which is described infra) that defendant contends was improper.

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objected, reiterating his contention that the state could not use the statement at

issue to impeach Mr. Harris; defense counsel averred that the state was trying to

“impeach by omission * * *.” Again, defense counsel conceded that the state

could “attempt to refresh [the witness’s] memory,” but he objected to the statement

being used to impeach “if that were to happen.” The trial justice overruled the

objection and offered defense counsel a continuing objection, to which defense

counsel responded, “[W]e’ll see where it goes.” The prosecutor then asked Mr.

Harris if the statement at issue helped him remember if he talked to defense

counsel about Nancy’s sister coming onto the porch, and he stated that it was not in

the statement but that he “did talk about it.” Defense counsel did not object.

The defendant was ultimately found guilty by the jury on the one count

against him. After his motion for a new trial was denied, he was sentenced to

fifteen years, with six years to serve and nine years suspended, with probation; he

was also required to register as a sex offender. The defendant then filed a timely

appeal to this Court.

II

Standard of Review

We have stated that “[w]e review a trial justice’s admission of evidence

under the deferential abuse of discretion standard.” State v. Brown, 9 A.3d 1240,

1247 (R.I. 2010). Under that standard, “[i]t is well established that this Court will

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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. Flori, 963 A.2d 932, 941 (R.I. 2009) (internal quotation marks

omitted); see also State v. Gomez, 848 A.2d 221, 232 (R.I. 2004).

III

Analysis

A

The Testimony of Dr. Adewusi

On appeal, defendant contends that the trial justice “committed reversible

error when [he] allowed a Hasbro physician to vouch for the complaining witness

by corroborating her narrative statements unrelated to medical diagnosis or

treatment.” He takes specific issue with the testimony of Dr. Adewusi, which

indicated that Nancy told her that, in defendant’s words: (1) “the molestation

occurred when her sisters were in the room;” (2) “she feared for the safety of her

sisters;” (3) “she told her cousin who told her mother who told [Nancy’s]

grandmother [about the abuse];” and (4) “her grandmother replied [that] her father

was just playing games.” He further posits that that testimony was not merely

cumulative but also constituted improper bolstering which was “highly

inflammatory, prejudicial and unsupported by any other evidence.” He avers that

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the testimony of Dr. Adewusi at issue had “no bearing on the question of medical

diagnosis or treatment.”

Hearsay is “a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” R.I. R. Evid. 801(c). As a general rule, hearsay statements are

inadmissible; however, there are “myriad exceptions to the rule” including the

medical diagnosis or treatment exception with which we are concerned in this case.

State v. Watkins, 92 A.3d 172, 187 (R.I. 2014); State v. Gaspar, 982 A.2d 140, 151

(R.I. 2009). The rationale behind this exception is that “a person will presumably

be truthful to a physician from whom he expects to receive medical attention.”

State v. Pina, 455 A.2d 313, 315 (R.I. 1983). The medical diagnosis or treatment

exception provides that the following are exempt from the prohibition against the

use of hearsay:

“Statements made for 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 or 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.” R.I. R. Evid.
803(4).

In the course of applying the medical diagnosis or treatment exception, we

have stated that “[t]he test for determining admissibility hinge[s] on whether what

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has been related by the patient will assist or is helpful in the diagnosis or treatment

of [the patient’s] ailment.” Watkins, 92 A.3d at 187 (quoting Gaspar, 982 A.2d at

151); see also State v. Ucero, 450 A.2d 809, 815 (R.I. 1982). “Statements that

narrate details unconnected with either diagnosis or treatment, however, are

inadmissible unless they fall under another hearsay exception.” Watkins, 92 A.3d

at 187 (internal quotation marks omitted); see also Pina, 455 A.2d at 315. We

have further opined that “[w]hen 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.” Gaspar, 982 A.2d at 151; see also Pina, 455 A.2d at

315.

Having thoroughly reviewed Dr. Adewusi’s testimony as well as the other

evidence adduced at trial, we are of the decided opinion that, to the extent that

defendant’s contentions concerning Dr. Adewusi’s testimony were preserved, the

trial justice did not abuse his discretion in admitting Dr. Adewusi’s testimony with

respect to the four statements with which defendant takes issue. In the context of

this case, those statements were reasonably pertinent to Dr. Adewusi’s diagnosis

and treatment of Nancy.

We begin by noting that it is clear from the record that the prosecutor and

the trial justice both went out of their way to treat Dr. Adewusi’s testimony with

delicacy; great effort was taken to ensure that Dr. Adewusi’s testimony did not go

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beyond that which is permitted under the medical diagnosis or treatment exception

to the hearsay rule and did not cross the line into impermissible bolstering. The

prosecutor elicited all of the testimony at issue by asking leading questions (see

Part I.B, supra), and the doctor’s testimony on this topic itself was very brief,

spanning only approximately three transcript pages.

A review of the record similarly makes clear that Nancy did not present to

Dr. Adewusi with merely physical injuries; she was also in need of treatment for

the psychological injuries that resulted from the abuse she had allegedly suffered.

Indeed, Nancy herself testified that she had been cutting herself, and Dr. Adewusi

testified to having noticed the resultant marks on Nancy’s forearm. What is more,

Dr. Adewusi testified that the purpose of gathering information from Nancy (or

from any other patient) was for medical diagnosis and treatment in order to allow

her to provide treatment recommendations, including whether or not the patient

“need[ed] to see a therapist urgently[.]”

We have been very clear that “a statement made to a treating physician is not

per se inadmissible merely because it involves the patient’s emotional state; when

an evaluation contains a psychological element as well as a physical one, those

statements, much like the physical evaluation, may be pertinent to diagnosis and

treatment.” Watkins, 92 A.3d at 188; see also Vallinoto v. DiSandro, 688 A.2d

830, 840-41 (R.I. 1997) (noting that the plaintiff was being treated for

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psychological rather than physical injuries and holding that statements made by the

plaintiff to her “social worker regarding her sexual activity with [the defendant]

were directly relevant to the diagnosis of her mental state and the treatment that

she was receiving for her alleged mental anguish and would be admissible”).

It is true that the doctor’s testimony with respect to Nancy being concerned

for her sisters, that her sisters were in the room when some of the abuse occurred,

the fact that Nancy had disclosed the abuse to her father’s family, and her

grandmother’s reaction were all relevant to Nancy’s psychological, as opposed to

her physical, health. However, the record is clear that it was not merely Nancy’s

physical health that Dr. Adewusi was treating. Given Nancy’s history of self-harm

and the resultant importance of treating the effect on her mental health of the abuse

she purportedly suffered, we perceive no reversible error in the trial justice’s

determination that the statements at issue were “inextricably intertwined” with Dr.

Adewusi’s examination and with her need to obtain all the reasonably pertinent

information needed to treat Nancy.4

4
We further note that defendant’s contention that Dr. Adewusi’s testimony
constituted impermissible bolstering is without merit. Impermissible bolstering is
“what typically occurs when one witness offer[s] an opinion regarding the
truthfulness or accuracy of another witness’[s] testimony.” State v. Watkins, 92
A.3d 172, 189 (R.I. 2014) (internal quotation marks omitted); see State v.
Adefusika, 989 A.2d 467, 479 (R.I. 2010); see also State v. Ceppi, 91 A.3d 320,
332 (R.I. 2014) (stating that bolstering can also occur “[e]ven when a witness does
not literally state an opinion concerning the credibility of another witness but his or

- 15 -
What is more, even if one or more of the aspects of Dr. Adewusi’s testimony

that are at issue did not precisely fall within the medical diagnosis or treatment

exception to the hearsay rule, those statements were cumulative and harmless in

light of the other evidence adduced at trial.

“Cumulative evidence means [evidence] tending to prove the same point to

which other evidence has been offered.” State v. Lynch, 854 A.2d 1022, 1032 (R.I.

2004) (internal quotation marks omitted). We have stated that “the admission of

hearsay evidence is not prejudicial when the evidence is merely cumulative and

when [the] defendant’s guilt is sufficiently established by proper evidence.” State

v. Robinson, 989 A.2d 965, 979 (R.I. 2010) (internal quotation marks omitted).

The test to be applied is “a retrospective one, administered at the close of all the

evidence to determine whether the admission of certain evidence was harmless in

light of all the evidence admitted on that point.” Watkins, 92 A.3d at 189 (internal

quotation marks omitted).

A review of the record in this case indicates that the four statements by Dr.

Adewusi with which defendant takes issue were also testified to independently by

her testimony would have the same substantive import”) (internal quotation marks
omitted).
Doctor Adewusi did not express a view one way or another about the
veracity of what Nancy told her; she merely relayed what Nancy had said. “We
have held that a medical professional simply reiterating a patient’s statement
without passing judgment on the accuracy or credibility thereof does not constitute
improper bolstering.” Watkins, 92 A.3d at 190.

- 16 -
Nancy. Nancy specifically testified about her concern for her sisters and about her

consciousness that she “didn’t know that maybe something like [what had

happened to her was] happening to them too * * *.” She further testified that her

sisters were in the same bedroom during a particular instance of abuse. She went

on to testify that she told her cousin about the abuse, who then told Nancy’s aunt

and grandmother. Nancy stated at trial that her grandmother’s reaction was to ask

her if she was “sure” that her father was not just “playing around * * *.” Nancy

was then subjected to a lengthy and thorough cross-examination, which

specifically touched on her sisters being in the room during one of the instances of

abuse, her disclosure of the abuse to her father’s family, and her grandmother’s

reaction. Thus, Dr. Adewusi’s short testimony with respect to various facts that

Nancy had provided to her in the course of her evaluation of Nancy was simply a

repetition of Nancy’s own lengthy testimony which was highly specific; and,

significantly, Dr. Adewusi did not opine as to the veracity vel non of Nancy’s

statements. In the opinion of this Court, it was cumulative evidence, the

admittance of which was harmless.5

5
Given our conclusion with respect to the applicability of the medical
diagnosis or treatment exception to the hearsay rule to Dr. Adewusi’s testimony at
issue we need not address any of the other hearsay exceptions discussed by the
parties.

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B

The Testimony of Mr. Harris

With respect to the testimony of Mr. Harris, defendant avers on appeal that

“[t]he trial court committed reversible error when it allowed the State to impeach

Douglas Harris * * * with a statement he did not author, sign, review, or even

know existed at the time of trial.” He further posits that “the State certainly did not

clarify – in any meaningful way – for the jury that it was not Mr. Harris’s actual

statement.”

After thoroughly reviewing the transcript and the parties’ arguments, the

Court is convinced that defendant’s contentions with respect to the cross-

examination of Mr. Harris are waived. See State v. Doyle, 235 A.3d 482, 493 (R.I.

2020) (“[T]he raise-or-waive rule is a fundamental principle in this state that is

staunchly adhered to by this Court[;] * * * a litigant cannot raise an objection or

advance a new theory on appeal if it was not raised before the trial court.”)

(internal quotation marks omitted). Defense counsel objected to the statement at

issue being used to impeach Mr. Harris “if that were to happen,” and then the trial

justice offered counsel a continuing objection. He responded, “we’ll see where it

goes,” and he did not object thereafter. Defense counsel seems to have merely

raised an objection to the possibility that the statement at issue might be used to

impeach Mr. Harris at some point in the future, but he then did not articulate any

- 18 -
objection to the ensuing questions which Mr. Harris was actually asked with

respect to the statement at issue. See State v. Tejeda, 171 A.3d 983, 1001 (R.I.

2017) (“[A] failure to object in the vital context of the trial itself * * * [constitutes]

a waiver of the evidentiary objection and [is] therefore an issue that may not be

raised on appeal.”) (internal quotation marks omitted).

What is more, it is equally clear to this Court after reviewing the transcript

that, even if this contention were properly before us, the statement at issue was not

used for the purpose of impeachment; rather, it was used merely to refresh Mr.

Harris’s recollection—an entirely permissible use. See State v. Souza, 708 A.2d

899, 903 (R.I. 1998) (“When attempting to refresh a witness’s memory, the

examining attorney need not use a document that has been written either by the

witness or under his or her direction. Rather, Rule 612 [of the Rhode Island Rules

of Evidence] merely refers to using a writing to refresh a witness’s memory for the

purpose of testifying.”) (internal quotation marks omitted); see also State v.

Santiago, 81 A.3d 1136, 1141 (R.I. 2014) (“It is well settled that, when a party

refreshes a witness’s recollection, the witness’s present memory of the event,

rather than the memorandum used to revive the memory, stands as the evidence.”)

(internal quotation marks omitted).

Accordingly, we are unable to perceive any abuse of discretion on the part of

the trial justice with respect to Dr. Adewusi’s testimony or Mr. Harris’s testimony.

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IV

Conclusion

For the reasons set forth in this opinion, we affirm the judgment of the

Superior Court. The record may be returned to that tribunal.

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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903

OPINION COVER SHEET

Title of Case State v. Juan P. Benitez.

No. 2018-240-C.A.
Case Number
(P2/14-2095A)

Date Opinion Filed January 25, 2022

Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.

Written By Associate Justice William P. Robinson III

Source of Appeal Providence County Superior Court

Judicial Officer from Lower Court Associate Justice William E. Carnes, Jr.

For State:

Virginia M. McGinn
Attorney(s) on Appeal Department of Attorney General
For Defendant:

Gary G. Pelletier, Esq.

SU-CMS-02A (revised June 2020)