“Beyond Propensity”: State v. Montero and the New Latitude for Admitting Uncharged Sexual-Misconduct Evidence under R.I. R. Evid. 404(b)

Introduction

In State v. Miguel Montero, No. 2023-92-C.A. (R.I. Aug. 18, 2025), the Rhode Island Supreme Court confronted the perennial tension between protecting defendants from prejudicial propensity evidence and allowing jurors to hear contextual proof of sexual predation. Miguel Montero, convicted of one count of first-degree child molestation (fellatio) against his daughter, challenged (1) the admission of several categories of prior, uncharged sexual conduct, (2) corroborative statements admitted as prior consistencies, (3) the use of federal travel records, and (4) the excusal of a juror for COVID-related reasons.

A sharply divided Court—Justice Goldberg writing for the majority, Justice Long concurring in the judgment, and Justice Robinson dissenting—affirmed the conviction, but in doing so significantly broadened the conditions under which uncharged sexual-misconduct evidence may come before a Rhode Island jury. The opinion tees up a new, more permissive precedent for Rule 404(b) and signals a retreat from the stringent “similarity and non-remoteness” limitations previously derived from State v. Jalette and its progeny.

Summary of the Judgment

Conviction affirmed. The Court upheld Montero’s sixty-year sentence (thirty to serve) on the lone conviction.
Rule 404(b) ruling approved. Testimony that Montero began sexual intercourse with the child’s mother when she was thirteen, and testimony about other uncharged assaults on the complainant in Virginia and the Dominican Republic, were all deemed properly admitted to show “common scheme, plan, intent, motive, lewd disposition, and credibility.”
Prior consistent statements. Statements made by the child to her stepsister and step-mother were admissible because defense cross-examination implied a recent motive to fabricate.
Travel records. DHS entry/exit logs were non-testimonial business records, so no Confrontation Clause violation occurred.
Juror excusal. Removing a prospective juror whose household had active COVID-19 cases did not implicate Batson.
Separate opinions. Justice Long concurred but warned that the Court has converted 404(b) into a “rule of inclusion”; Justice Robinson dissented, calling the 404(b) ruling reversible error.

Analysis

1. Precedents Cited and Their Influence

State v. Jalette (1978) – Established Rhode Island’s common-law bar on other-crime evidence, carving a narrow incest/“lewd disposition” exception. The majority says Jalette’s common law has been “abrogated” by the 1987 Evidence Rules, signalling a fundamental shift.
State v. Hopkins (1997), Perez (2017), Rainey (2018), Perry (2018) – Gradually expanded admissibility for prior sexual misconduct where intent or plan is at issue. The Court relies heavily on these to declare the Montero evidence “similar enough.”
U.S. Supreme Court confrontation cases – Crawford, Davis, Melendez-Diaz. Used to uphold admission of DHS travel data.
Batson v. Kentucky – Rejected as inapplicable to cause challenges; reinforces that Batson doctrine does not govern judicial excusals.

2. The Court’s Legal Reasoning

The majority synthesises a three-step test for admitting “other acts” in sexual-assault trials:

Determine whether uncharged conduct is “non-remote and similar.” Similarity is broadly read to include age ranges, familial relationships, and “touching short of penetration.”
Assess relevance and “reasonable necessity,” especially where the State must prove intent to gratify and the case is a credibility contest.
Deliver prompt, particular limiting instructions identifying admissible purposes.

Applying this test, the Court found the disputed evidence probative on motive, intent, common plan, lewd disposition, and credibility, outweighing Rule 403 prejudice. The majority stressed cautionary instructions and the jury’s split verdict (acquittals on three counts) as proof prejudice was not unfair.

3. Impact and Future Ramifications

Lower threshold for “similarity.” Post-Montero, “similar enough” may encompass different sexual acts (intercourse vs. rubbing or fellatio) so long as the defendant’s “penis contacts a young girl’s genitalia.” Trial courts now have broader discretion to admit disparate incidents.
Jalette constrained. Although never expressly overruled, Jalette’s restrictive philosophy is declared “abrogated” where Rule 404(b) is textually invoked. Expect prosecutors to cite Montero when urging admission of historical assaults.
Agency records and confrontation. The decision affirms that routine DHS travel data are non-testimonial business records, a useful precedent for cross-border prosecutions (human trafficking, drug cases, international sex tourism).
Court-initiated juror excusals. Montero clarifies that Batson objections do not lie where the judge, not a party, removes a juror for public-health reasons.
Scholarly and practitioner debate. Justice Long’s concurrence and Justice Robinson’s dissent provide fertile ground for arguing future 404(b) motions; they criticise the “rule of inclusion” and may invite en banc reconsideration or legislative intervention.

Complex Concepts Simplified

Rule 404(b): An evidence rule barring proof of a person’s prior bad acts merely to suggest they have a criminal character. It allows admission for specific alternative purposes (motive, plan, identity, etc.).
Lewd Disposition Exception: A Rhode Island doctrine (pre-Rules) allowing evidence of incest or ongoing sexual misconduct with the same complainant to show the defendant’s proclivity toward that victim.
Similar & Non-Remote: Benchmarks ensuring the uncharged act is close in time, place, victim age, relationship, and type of act, so that it genuinely informs the charged offense. Montero liberalises this notion.
Prior Consistent Statement – Rule 801(d)(1)(B): An out-of-court statement that is not hearsay if (1) the declarant testifies, (2) is cross-examined, and (3) the statement predates an alleged motive to fabricate.
Testimonial vs. Non-Testimonial Records: Under Crawford jurisprudence, business or public records created for routine administrative purposes (e.g., border entries) are typically non-testimonial and therefore admissible without the preparer’s live testimony.

Conclusion

State v. Montero marks a watershed in Rhode Island evidence law, signalling judicial willingness to admit a wider swath of uncharged sexual-misconduct evidence to aid the State in proving intent, plan, and credibility. For prosecutors, the case offers a roadmap: demonstrate some thematic likeness, articulate non-propensity purposes, request tailored instructions, and emphasize necessity in a credibility contest. For defense counsel, Montero underscores the urgency of crafting robust Rule 403 arguments and developing appellate records that spotlight dissimilarities, alternative motives, or coaching.

Yet the competing opinions reveal unease. Justice Long voices fear of an “inclusion rule” eroding the defendant’s right to be tried for this crime, not his past. Justice Robinson, in full dissent, views the majority’s approach as reversible error, contending the acts were too dissimilar and non-incestuous to qualify under any 404(b) exception. The dialectic foreshadows continuing debate in trial courts and potential calls for legislative or rule-making clarity.

Ultimately, Montero illustrates the evolving balance between society’s interest in exposing serial sexual predation and the constitutional imperative to guard against verdicts driven by prejudice. Practitioners arguing Rule 404(b) in Rhode Island must now grapple with a precedent that both expands prosecutorial latitude and carefully documents the doctrinal fault lines that may shape tomorrow’s reversals.