State v. Matthew Sheridan

June 24, 2021

Supreme Court

No. 2018-234-C.A.
(P1/16-1542A)

State :

v. :

Matthew Sheridan. :

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. 2018-234-C.A.
(P1/16-1542A)

State :

v. :

Matthew Sheridan. :

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

OPINION

Justice Robinson, for the Court. The defendant, Matthew Sheridan, appeals

following the entry of a November 21, 2017 judgment of conviction and

commitment reflecting the fact that a jury found him guilty of one count of first-

degree sexual assault. On appeal, he contends that the trial justice abused his

discretion: (1) “when he overruled [Mr.] Sheridan’s objection to Dr. [Amy]

Goldberg’s testimony * * * [because] [t]he state’s disclosure was too late and was

wholly insufficient, [Mr.] Sheridan was prejudiced, and the trial justice’s remedy did

not ameliorate the prejudice;” (2) “when he admitted Dr. Goldberg’s testimony

because it invaded the province of the jury;” and (3) “when he permitted the

prosecution to refer to the complainant as ‘the victim,’ which prejudiced the jury

prior to trial[.]”

-1-
 For the reasons set forth in this opinion, we affirm the judgment of the

Superior Court.

I

Facts and Travel

On May 11, 2016, Mr. Sheridan was charged by indictment with one count of

first-degree sexual assault, alleging that he had “engage[d] in sexual penetration, to

wit, mouth to penis, with [Jasper1], by force or coercion, in violation of §11-37-2 of

the General Laws of Rhode Island * * *.”2 The record reflects that Jasper was fifteen

at the time of the assault at issue. It is also important to note at the outset that Mr.

Sheridan’s defense was premised on the contention that what transpired between

Jasper and him was consensual. Additionally, the crux of the issue on appeal is the

admissibility of testimony by Amy Goldberg, M.D., to the effect that it was her

opinion, to a reasonable degree of medical certainty, that it is possible for an

adolescent male to become erect and to ejaculate in response to an unwanted

touching or sexual assault.

1
We refer pseudonymously to the complaining witness, who was a minor at the
time of the incident in question.
2
Mr. Sheridan was also indicted on one count of second-degree sexual assault.
On June 12, 2017, the state dismissed this charge pursuant to Rule 48(a) of the
Superior Court Rules of Criminal Procedure.

-2-
 A trial ultimately ensued over five days in June of 2017. We relate below, in

chronological order, the salient aspects of what transpired at trial.

A

Voir Dire

The jury selection in this case began on June 12, 2017. During the course of

voir dire, the state referred to Jasper as the “victim * * *.” Defense counsel then

moved during a sidebar to have the word “complainant” or “complaining witness”

used instead of “victim.” The trial justice stated as follows:

“I agree with you. I probably would have said it on my
own. I didn’t catch it. I agree. Let’s refrain from using
that term. I think the term complaining witnesses or
complainant but not victim. I agree.

“* * *

“It has a negative connotation obviously and I would ask
that you not reference the complaining witness with that
word.

“* * *

“* * * I know it is hard to, we typically use that term when
we are talking off the record but here with their minds
completely fresh and impressionable we probably want to
avoid it.”

Thereafter, during voir dire, the prosecutor referred to Jasper as the “victim”

on three occasions. There were no objections to any of those three uses of the word

“victim” with respect to Jasper by the prosecutor. At the close of voir dire, defense

-3-
counsel represented that the jury was satisfactory to Mr. Sheridan, without any

further comment.

B

Objection to the Testimony of Dr. Goldberg

On June 12, 2017, defense counsel filed a written objection to the admission

of Dr. Goldberg’s testimony on the grounds that it was “[l]ate and [i]ncomplete

[d]iscovery;” “[i]mproper [e]xpert [t]estimony;” and “[b]olstering * * *.”

Specifically, he contended that notice of Dr. Goldberg’s testimony was presented to

the defense only on Friday, June 9, 2017, two days prior to the start of trial, which

did not provide the defense with “enough time properly to counter it.” He further

stated that the testimony invaded the “province of the jury to determine whether or

not [Jasper’s] responses to these forced sexual encounters actually constitutes

evidence of consent.” Mr. Sheridan added that the jurors were capable of making

the necessary credibility determination as laypeople and did not need an expert

opinion. Lastly, he averred that the testimony at issue would constitute bolstering

“since the sole purpose is to justify [Jasper’s] reaction to alleged acts of sexual

assault by means of an expert medical opinion.” He then requested “a Daubert

hearing”3 prior to trial and a continuance if the testimony was to be admitted.

3
See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

-4-
 Thereafter, a hearing on defendant’s objection was held on Tuesday, June 13,

2017, after the impaneling of the jury was completed. At that hearing, defense

counsel stated as follows:

“[T]his past Friday at noontime I received formal
notification of Dr. Goldberg as a potential witness to
testify and I will [cite] the description. Dr. Goldberg is
expected to testify regarding the physical responses of
adolescent young men to stimuli slash physical contact.
“On Monday I received from the State Dr.
Goldberg’s CV. I’m familiar with Dr. Goldberg so I’m
not concerned about the arrival of the CV and later on
Monday and later last night I received several articles,
presumably that Dr. Goldberg would rely upon in terms of
this. I received a letter from Dr. Goldberg addressing the
following:
“I have been asked to provide testimony regarding
a case of a 15 year old male who was allegedly sexually
assaulted. I am able to testify to the question of whether a
male can have an erection and ejaculate during sexual
assault * * *. I base my opinion on review of the literature
and clinical experience.”

Defense counsel went on to clarify that he was “not arguing discovery violation;”

but he added that he was “saying it is late.” He stated that he was “scrambling to

prepare voir dire examination, opening strategy, whole nine yards, and now I have

to deal with this issue and I have asked this Court not to allow it given the lateness

of this particular disclosure.” He did acknowledge that the prosecutor had put him

on oral notice that she would be “pursuing this” but that “[n]othing was definitive at

the time * * *.”

-5-
 Defense counsel contended that Dr. Goldberg’s testimony should not be

permitted because it was an expert medical opinion, involving “complicated medical

journal articles” that he would have to review; he added that he would have a

“limited opportunity to consult with [his] own medical professionals * * *.” He

averred that it put the defense “at a significant disadvantage * * *.” Defense counsel

further posited that the testimony invaded the province of the jury and would

“potentially” constitute bolstering.

In response, the prosecutor conceded that the disclosure was late, but she

stated that she had contacted defense counsel two weeks prior and put him on notice

that the state was “actively seeking” such testimony. She stated that “it was clear”

in that earlier conversation with defense counsel that she “would be calling a doctor

for that very purpose to show during a sexual assault [an] individual male can get an

erection and ejaculate * * *.” She added that, if defense counsel wanted “until

Monday” to prepare for Dr. Goldberg’s testimony, she would not object because it

would not be an “unreasonable request * * *.”

It was further the prosecutor’s representation that Dr. Goldberg would not

testify as to whether the specific alleged incident at issue in this case was consensual

or not; however, the doctor would testify with respect to the male anatomy that males

“can have and maintain erection in response to stimuli, touching, or other events

which are not sexual in nature.” She would be talking in “general terms” and would

-6-
be “simply explaining the anatomy of the human body [in] that there are censors

[sic] in the penis that when touched regardless of whether it is wanted or unwanted

touching an individual can become erect.” In further explaining why she believed

that Dr. Goldberg’s testimony would be helpful to the jury, the prosecutor also

pointed to the fact that there were five male members of the jury but none of the five

had ever been a victim of sexual assault and thus “never subject to erection during

sexual assault and I think that is difficult to grasp.” She added that she did not think

the “female jurors will understand * * *.”

The trial justice, in assessing whether or not to admit Dr. Goldberg’s

testimony, noted that “exclusion is a drastic remedy” and the “Supreme Court

doesn’t like it * * *.” The trial justice suggested that he limit Dr. Goldberg’s

testimony by not allowing her to “bolster[ ] her opinion with literature” but permit

her only to testify based on her “training, her experience, her understanding of those

anatomical issues * * *.” Then he asked counsel the following: “How about if I

don’t have her testify until Thursday afternoon so if you need time if I can limit her

in that way[.] * * * Do you care when she goes on?” Defense counsel responded: “I

don’t, Judge.” The trial justice then asked a second time if Thursday would be

acceptable and defense counsel stated: “That is fine.”

The trial justice then stated that it was his ruling that Dr. Goldberg was “not

permitted to state the foundation for her opinion” but must rely only on her

-7-
education, training, and experience. He also decided not to have Dr. Goldberg testify

until Thursday, June 15, 2017. The trial justice deemed his decision to be a “fair

balancing of the interest of both sides.”

Defense counsel subsequently asked if Dr. Goldberg was going to give her

opinion “that a male penis can respond to stimulation despite a coercive

environment?” When the trial justice answered him in the affirmative, defense

counsel stated that he did not “anticipate having follow-up questions.” He added

that he was “happy to do a stipulation and save the State some money in terms of

paying Dr. Goldberg.”

Thereafter, the trial testimony ensued.

C

The Trial Testimony

1. The Testimony of Jasper

Jasper testified that he was twenty-nine years old at the time of his testimony

at trial. He stated that he had lived in Cranston for about seventeen years before

living in East Providence. He testified that, when he was around eleven or twelve

and living in Cranston, his parents divorced. It was his testimony that, after the

divorce, “I didn’t see my dad a lot. I saw him every other weekend, if that. My

mom was drinking heavily.”

-8-
 It was further his testimony that, at about the same time, when he was

approximately eleven or twelve, he “became close” with his neighbor, Mr. Sheridan,

after doing odd jobs for him. Jasper added that, at the time about which he was

testifying, he thought Mr. Sheridan was in his thirties. He further testified that the

two “became really close” because his father “wasn’t like around a lot so [he] kind

of looked up to [Mr. Sheridan] like a father figure.” He added that Mr. Sheridan

taught him how to do “manual labor stuff,” helped him with homework, and took

him to the gym. He testified that he eventually spent every day with Mr. Sheridan.

He further added that Mr. Sheridan was “doing everything that [his] dad should have

been doing;” and, he stated that he loved Mr. Sheridan. Jasper also testified that Mr.

Sheridan got him accepted into a private high school in Rhode Island and that Mr.

Sheridan paid the tuition in exchange for a piece of property that Jasper’s mother

owned on Prudence Island.

It was Jasper’s testimony that, after they would go to the gym, Mr. Sheridan

would give him massages; he added that, if his legs were sore, Mr. Sheridan would

make him take off his pants and would “throw a towel” over him. He stated that Mr.

Sheridan “frequently” used what they called “tickle fingers where he used the tips

of his fingers to caress my back or my neck or rub my head.” He added that Mr.

Sheridan told him that it was “what [he] needed to know” about how to “treat women

-9-
right and caress them * * *.” Jasper testified that it was “weird” and

“awkward * * *.”

It was further Jasper’s testimony that, at the end of his freshman year in high

school, when he was fifteen years old and on the verge of turning sixteen, Mr.

Sheridan asked him to go with him to “Upstate New York” to work at a Boy Scout

camp for the Summer. It was Jasper’s testimony that, when they were at the camp

(prior to his sixteenth birthday), Mr. Sheridan told him that they had to “go home for

something.” Jasper added that they returned to Cranston on a Saturday; he further

stated that, because they were leaving early the next morning, he stayed at Mr.

Sheridan’s home overnight. He stated that he woke up in the “middle of the night”

and Mr. Sheridan was “laying across me on my, across my stomach and with his arm

over me I was underneath his, underneath like his upper body and his armpit and he

had me like pinned on the ground and he was, he used the weight of his body to hold

me down while he performed oral sex on me.” He added that, at that age, he was

“very scrawny” and that Mr. Sheridan was the “stronger person physically[.]” He

stated that, while the alleged assault was occurring, Mr. Sheridan told him that “the

first time was supposed to be memorable and special.” He further testified that he

told Mr. Sheridan “no” and told him to stop more than once. He added that he tried

unsuccessfully to get up and that he did not say yes and did not “want it at all[.]”

Jasper stated that he felt “helpless,” “terrified,” and “betrayed.”

- 10 -
 Additionally, Jasper explained at trial that he did “bec[o]me aroused” because

it was a “[n]atural reaction.” He added that he eventually ejaculated and Mr.

Sheridan got up, went to the bathroom, and then went to bed.

It was his testimony that the next morning they returned to the Boy Scout

camp, and he stated that, at that time, he still loved Mr. Sheridan; he added that Mr.

Sheridan was still helping him with getting into college and went to his swim meets

and sporting events. It was his testimony that the alleged assaults continued when

they were alone; and he specifically testified that, over an almost three-year period,

it happened over one hundred times. (On cross-examination, Jasper admitted that

he obtained an erection and ejaculated each time that Mr. Sheridan allegedly abused

him.) He added that he did not want it to happen nor did he ever say yes or invite

the sexual contact. It was his testimony that the alleged assaults stopped when he

was eighteen and began dating his first girlfriend.

It was Jasper’s testimony that he eventually disclosed the alleged assaults to

one of his best friends, who was dating his sister. His testimony also reflected that

he thereafter reported Mr. Sheridan’s actions to the state police.

On cross-examination, Jasper acknowledged that he went to Mr. Sheridan’s

home, slept over, and took naps there during the period when the alleged assaults

were occurring.

- 11 -
 2. The Testimony of Dr. Amy Goldberg

Doctor Goldberg testified that she was employed as a pediatrician at Hasbro

Children’s Hospital with a subspecialty in the area of child abuse and neglect.

Doctor Goldberg was qualified as an expert at trial.4 She explained as follows during

her testimony at trial: “[T]here are two ways that a penis can become erect. The first

way is psychogenetic, so centrally mediated through the brain. That is one way. The

other way, the second way is through tactile stimulation, so touching, rubbing any

type of friction can also result in an erection.”

She further explained that psychogenetic meant “having a sexual thought or

imagine, erotic thought or imagining also cause an erection.” She then proceeded to

expound that “tactile stimulation alone can result in a penis becoming erect and

subsequently ejaculating so without central mediation through the brain through the

psychogenic piece of that process the penis can become erect and ejaculate.” Doctor

Goldberg testified that, in infant males, young males, and adolescent males, “simple

examination, simple touch or moving the penis, even moving the testicles, not

4
We note that defense counsel further preserved his objection to Dr.
Goldberg’s testimony immediately after she was qualified as an expert. He was
asked by the trial justice if he was referring to “timing” and “relevancy” as the basis
for his objection, and he responded in the affirmative. The trial justice reiterated
that he had delayed the doctor’s appearance until that day and had limited the
materials upon which the doctor could rely in giving her opinion to “traditional
education experience background, skill, [and] training * * *.”

- 12 -
examining the penis and only touching the testicles, the penis often becomes erect.”

She referred to patients who are “brain dead,” and she referenced the fact that sperm

can still be “harvested” from those individuals “purely through tactile stimulation”

as an example in support of her testimony. She further cited the fact that an erection

can occur when “changing a baby’s diaper, cleaning a baby off, helping a child with

the toilet, a full bladder can cause erection as well * * *.” Doctor Goldberg then

proceeded to explain that “ejaculation occurs after there is enough

stimulation * * * to the penis itself.”

Finally, she testified that it was her opinion, to a reasonable degree of medical

certainty, that an adolescent male can become erect and ejaculate in response to an

unwanted touching or sexual assault. Importantly, she also testified that she had not

seen Jasper for any examination or treatment and that she did not “even know if there

was a touching or what type of touches there [were] or [were] alleged[.]”

Defense counsel did not cross-examine Dr. Goldberg. The state then rested.5

The defendant did not testify at trial or present any witnesses.

5
One of Jasper’s brothers, one of Jasper’s friends, and Detective Brian Macera
of the Rhode Island State Police also testified at trial. However, for the purposes of
this appeal, we need not recount their testimony.

- 13 -
 D

The Jury Verdict and Sentencing

On June 19, 2017, the jury found Mr. Sheridan guilty on the one count of first-

degree sexual assault against him. On June 26, 2017, Mr. Sheridan filed a motion

for a new trial, which was denied. Mr. Sheridan was sentenced to twelve years, with

three years to serve and the remainder suspended, with probation. He was further

directed to have no contact with Jasper, to register as a sex offender, and to enter

into sex-offender counseling. Mr. Sheridan filed a timely notice of appeal.6

II

Standard of Review

It is well settled that “[t]he admissibility of evidence is a question addressed

to the sound discretion of the trial justice and will not be disturbed on appeal absent

a clear abuse of that discretion.” State v. Rathbun, 184 A.3d 211, 215 (R.I. 2018)

(internal quotation marks omitted); see State v. Rivera, 221 A.3d 359, 367 (R.I.

2019). Similarly, “[t]he discovery ruling of a trial justice will not be overturned

absent a clear abuse of discretion.” State v. Marte, 92 A.3d 148, 151 (R.I. 2014)

(internal quotation marks omitted); see State v. Washington, 189 A.3d 43, 62 (R.I.

6
Mr. Sheridan filed his notice of appeal prior to the entry of the judgment of
conviction and commitment in this case. However, we have stated that “we will
overlook[ ] the premature filing of a notice of appeal.” State v. Beaudoin, 137 A.3d
726, 731 n.3 (R.I. 2016) (internal quotation marks omitted).

- 14 -
2018) (“When reviewing a trial justice’s decision with respect to whether a violation

of Rule 16 * * * occurred, this Court affords great deference to the trial justice and

will not disturb that ruling unless he or she has committed clear error.”) (internal

quotation marks omitted); see also State v. Adams, 161 A.3d 1182, 1197 (R.I. 2017).

III

Analysis

A

The Testimony of Dr. Goldberg

1. Lateness

Mr. Sheridan contends on appeal that the trial justice abused his discretion in

allowing Dr. Goldberg to testify because the state’s disclosure was “tardy * * *.” He

specifically states: “[N]o trial attorney should be put in the position [Mr.] Sheridan’s

counsel was put in by the state’s actions with Dr. Goldberg’s proposed testimony.

Fair is fair: this was unfair.” He points out that the “state offered no justification

whatsoever for its delay in making the disclosure * * *.”7 He further avers that the

state’s action resulted in prejudice to him. Additionally, Mr. Sheridan posits that the

7
We note that there is absolutely no evidence in this case to show, nor does
defendant argue, that the prosecutor intentionally withheld the disclosure of Dr.
Goldberg as an expert witness.

- 15 -
trial justice “did not offer a continuance of the trial as a remedy nor seems to have

considered this as an option.”8

We begin by noting that Mr. Sheridan’s contention on appeal that the state’s

disclosure of Dr. Goldberg as an expert witness was not only late but was also

insufficient is waived; defense counsel specifically said to the trial justice that he

was not alleging a discovery violation, but only lateness. See State v. Hallenbeck,

878 A.2d 992, 1017-18 (R.I. 2005); State v. Burke, 574 A.2d 1217, 1224 (R.I. 1990).

To the extent that Mr. Sheridan’s objection with respect to the lateness of the

disclosure at issue is preserved, we do not perceive any reversible error.

“It is well settled that Rule 16 requires that discovery be made in a timely

manner * * * in order that defense counsel may marshal the information contained

in the discovery material in an orderly manner.” Adams, 161 A.3d at 1197 (internal

quotation marks omitted); see State v. Huffman, 68 A.3d 558, 568-69 (R.I. 2013);

8
Lastly, Mr. Sheridan contends that the trial justice’s “accommodation did not
prevent or ameliorate the prejudice to [Mr.] Sheridan: it compounded it.” He adds
that Dr. Goldberg’s examples during her testimony did not include situations
involving force or coercion and, therefore, she could only have derived her opinion
from medical literature. He further avers that the trial justice’s remedy “prevented
legitimate cross-examination of the real foundation to her opinions—the medical
literature.” Defense counsel did not raise such an argument before the trial justice;
indeed, the crux of his complaint about the late disclosure of Dr. Goldberg’s
testimony (which complaint formed the basis for the trial justice’s remedy) was that
he would not be able to review and assess the “complicated medical journal
articles” which formed a portion of the basis of her opinion. Thus, this contention
is waived. See State v. Hallenbeck, 878 A.2d 992, 1017-18 (R.I. 2005); State v.
Burke, 574 A.2d 1217, 1224 (R.I. 1990).

- 16 -
State v. Simpson, 595 A.2d 803, 807 (R.I. 1991). Indeed, we have stated that “[i]n

our adversary system, based as it is upon a single trial held on a single occasion, it

is imperative that the defense come to trial as well equipped as possible to raise

reasonable doubt in the minds of one or more of the jurors.” State v. Rainey, 175

A.3d 1169, 1179 (R.I. 2018) (internal quotation marks omitted); see also Simpson,

595 A.2d at 808 (“Trial lawyers must be able to adapt strategy to evolving

circumstances. They must be able to think upon their feet. However, very few trial

lawyers are superhuman. When, because of a failure to furnish discovery on the part

of the state, a highly significant piece of information, hitherto unexpected, becomes

available and when that information has a potential to alter the course of the defense

completely, counsel is reasonably entitled to an effective remedy.”). But we note

that we have also stated that “the sanction of excluding testimony is an extreme and

drastic remedy which should be exercised with caution and restraint.” Rainey, 175

A.3d at 1181 (internal quotation marks omitted).

Moreover, we have frequently opined that the trial justice is “in the best

position to fashion a proper remedy for noncompliance with the discovery

rule * * *.” Id. at 1181-82 (internal quotation marks omitted); see also State v.

Coelho, 454 A.2d 241, 245 (R.I. 1982). In so doing, the trial justice “must consider

what is right and equitable under all of the circumstances and the law.” Coelho, 454

A.2d at 245 (internal quotation marks omitted); see also Adams, 161 A.3d at 1197.

- 17 -
“[T]he trial justice should take into account: (1) the reason for nondisclosure, (2) the

extent of prejudice to the opposing party, (3) the feasibility of rectifying that

prejudice by a continuance, and (4) any other relevant factors.” Coelho, 454 A.2d

at 245. We will not reverse a trial justice’s decision in this regard absent clear error

or an abuse of discretion. Marte, 92 A.3d at 150.

It is quite clear to us that there was no such clear error or abuse of discretion

in this case. The trial justice fashioned a remedy for the late disclosure of Dr.

Goldberg as an expert witness that he deemed to be a “fair balancing of the interest

of both sides.” And, importantly, defense counsel never expressed any disagreement

with the trial justice’s remedy; nor did he request any continuance beyond the

continuances that the trial justice ordered. Indeed, it appears from the record that

defense counsel was satisfied with the remedy and acquiesced in it.9 Thus, we see

absolutely no basis to conclude that the trial justice abused his discretion in allowing

Dr. Goldberg to testify to some extent while also significantly limiting the basis of

her testimony to her training and experience and delaying her testimony until

Thursday. See Rainey, 175 A.3d at 1180-81 (“[I]t is our opinion that the trial justice

9
We note that, at the hearing on Mr. Sheridan’s objection to Dr. Goldberg’s
testimony, the prosecutor mentioned that the state would have no objection to
delaying Dr. Goldberg’s testimony until the following Monday. However, defense
counsel opted not to take the prosecutor up on that offer by requesting a further
continuance from Thursday to Monday.

- 18 -
did not abuse his discretion in failing to craft an alternative remedy when there was

no notice given to him that his original remedy might be inadequate.”).

We would further note that the remedy fashioned by the trial justice in this

case accorded defense counsel some genuine relief. Counsel had expressed his

concern about having to review the “complicated medical journal articles” which

would constitute the basis of Dr. Goldberg’s testimony. The trial justice

consequently limited Dr. Goldberg’s testimony by refusing to allow her to testify

with respect to any medical journal articles and requiring that she base her testimony

purely on her education, training, and experience. Furthermore, the trial justice

delayed Dr. Goldberg’s testimony until Thursday, making Dr. Goldberg the last

witness to testify at the trial (without any request for a further continuance having

been made by defense counsel). Doctor Goldberg’s testimony was very short, and

she commented only upon what was physically possible regarding the male

anatomy; she also specifically stated that she had not seen Jasper for any examination

or treatment. What is more, defense counsel elected not to cross-examine Dr.

Goldberg.

For all of the above-stated reasons, we do not detect any abuse of discretion

by the trial justice with respect to the remedy which he fashioned in reaction to the

- 19 -
prosecutor’s distressingly late disclosure of the fact that Dr. Goldberg would be

testifying. See Marte, 92 A.3d at 150-51.10

2. Invading the Province of the Jury

Mr. Sheridan further contends on appeal that the trial justice abused his

discretion when he admitted Dr. Goldberg’s testimony because, in Mr. Sheridan’s

view, it invaded the province of the jury. He avers that “how the male penis reacts

to different stimuli was well-within the province of the jurors’ knowledge, without

the need for Dr. Goldberg’s testimony and opinion.”

Rule 702 of the Rhode Island Rules of Evidence provides as follows:

“If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education,
may testify thereto in the form of fact or opinion.”

“We previously have stated that the jury will benefit from expert testimony

when the subject matter of the inquiry is one involving special skills and training

beyond the ken of the average layman.” State v. Roscoe, 198 A.3d 1232, 1240 (R.I.

2019) (internal quotation marks omitted); see State v. Wheeler, 496 A.2d 1382, 1388

(R.I. 1985) (“The law and practice of this state on the use of expert testimony has

historically been based on the principle that helpfulness to the trier of fact is the most

10
While we have no hesitation about approving the remedy fashioned by the
trial justice in this case to deal with the late disclosure of an expert witness, we
nonetheless would express our disapproval of such a belated disclosure.

- 20 -
critical consideration.”); see also Morabit v. Hoag, 80 A.3d 1, 11 (R.I. 2013).

However, “[i]f all the facts and circumstances can be accurately described to a jury

and if the jury is as capable of comprehending and understanding such facts and

drawing correct conclusions from them as is the expert, there is no necessity for the

expert testimony.” Roscoe, 198 A.3d at 1240-41 (internal quotation marks omitted);

see also Barenbaum v. Richardson, 114 R.I. 87, 92, 328 A.2d 731, 734 (1974). We

have also stated that, “[b]efore admitting expert testimony, a trial justice must

consider whether the testimony sought is relevant, within the witness’s expertise,

and based on an adequate factual foundation. However, once these questions have

been favorably determined, the evidence generally ought to be admitted.” State v.

Botelho, 753 A.2d 343, 347 (R.I. 2000).

After reviewing the record in this case and the relevant legal precedent, we

are unable to perceive any basis for holding that the trial justice abused his discretion

in admitting Dr. Goldberg’s testimony. We are persuaded by the argument made by

the prosecutor during the hearing in Superior Court that, while there were five male

members of the jury, “none of the five male jurors ha[d] ever been a victim of sexual

assault so never subject to erection during sexual assault * * *.” What is more, she

also pointed out that she did not think that the “female jurors w[ould]

understand * * *.” It seems clear to this Court that Dr. Goldberg’s professional

opinion, to a reasonable degree of medical certainty, that an adolescent male can

- 21 -
become erect and ejaculate in response to an unwanted touching or sexual assault

was “beyond the ken of the average layman,” whether male or female.11 Roscoe,

198 A.3d at 1240 (internal quotation marks omitted). In our judgment, Dr.

Goldberg’s testimony aided both the male and the female members of the jury in

determining whether or not Jasper consented during the specific instance of alleged

sexual assault which formed the basis of the charge against Mr. Sheridan in this case.

See Wheeler, 496 A.2d at 1388. As such, her testimony did not invade the province

of the jury.

Accordingly, the trial justice did not abuse his discretion in admitting Dr.

Goldberg’s expert testimony.12

B

Voir Dire

Mr. Sheridan contends on appeal that the trial justice erred in permitting the

prosecution to refer to Jasper as the “victim” during jury selection. He avers that

“[t]he interlacing of the prosecutor’s reference to [Jasper] as the ‘victim’ with

11
We note as well that attempting to portray Dr. Goldberg’s testimony as merely
stating that “anything is possible,” as Mr. Sheridan attempts to do, is not a fully
accurate representation of that testimony.
12
We consider it worth mentioning that, as we have instructed, the trial justice
in this case specifically gave “due consideration to the natural tendency of jurors to
place greater weight on the testimony of one qualified as an expert.” State v.
Wheeler, 496 A.2d 1382, 1388 (R.I. 1985) (internal quotation marks omitted).

- 22 -
references to other ‘victims’ of a crime, sexual abuse, and sexual assault was

improper and could only have prejudiced the jury against [Mr.] Sheridan.” He

claims that his initial objection to the use of the word “victim” with respect to Jasper

was sufficient to preserve the issue for appeal. Furthermore, he claims that he need

not have objected to the composition of the jury because his objection was actually

to the bias created by the prosecutor’s use of the word “victim” as it related to Jasper

and not to the composition of the jury.

We disagree. After a review of the record, we consider Mr. Sheridan’s

argument in this regard to be waived. It is true that Mr. Sheridan did object initially

to the use of the word “victim” as it related to Jasper, but he failed to object to the

three occasions thereafter during voir dire when the prosecutor referred to Jasper as

the “victim.” Moreover, he failed to move for a mistrial or request a curative

instruction; and, at the close of voir dire, defense counsel represented that the jury

was satisfactory to Mr. Sheridan, without any further comment. See State v.

Monteiro, 924 A.2d 784, 792 (R.I. 2007) (“To preserve an issue for appellate review,

a defendant must object and move for a mistrial or request a cautionary

instruction.”). As such, this issue is waived.13

13
We would note additionally that Mr. Sheridan takes issue, on appeal, with all
the uses of the word “victim” by the prosecutor after the initial objection during jury
selection. However, it is clear to this Court that the objection and the ruling of the
trial justice were specific to the use of the word “victim” when referencing Jasper,
not to the use of the word in contexts that did not refer directly to Jasper.

- 23 -
 Accordingly, we are unable to perceive any abuse of discretion on the part of

the trial justice in this case and, as such, we affirm the judgment of conviction and

commitment.

IV

Conclusion

For the reasons set forth herein, we affirm the judgment of the Superior Court.

We remand the record to that tribunal.

- 24 -
 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. Matthew Sheridan.

No. 2018-234-C.A.
Case Number
(P1/16-1542A)

Date Opinion Filed June 24, 2021

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

Written By Associate Justice William P. Robinson

Source of Appeal Providence County Superior Court

Judicial Officer from Lower Court Associate Justice Daniel A. Procaccini

For State:

Mariana E. Ormonde
Attorney(s) on Appeal Department of Attorney General
For Defendant:

Lauren E. Jones, Esq.

SU-CMS-02A (revised June 2020)