IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY

Transcription

1 IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY STATE OF DELAWARE ) CRIMINAL ACTION NUMBER ) v. ) IN & IN ) PAUL G. REEVES ) ) ID No Defendant ) Submitted: May 21, 2007 Decided: June 25, 2007 MEMORANDUM OPINION Upon Motion of Defendant for Judgment of Acquittal - DENIED Appearances: Renee L. Hrivnak, Esquire, Department of Justice, of Wilmington, Delaware, attorney for State of Delaware Joseph Hurley, Esquire, of Wilmington, Delaware, attorney for defendant HERLIHY, Judge

2 Defendant Paul Reeves moves post-verdict for a judgment of acquittal on two convictions of rape in the second degree. In the alternative he argues for a new trial on several lesser charges or that verdicts be entered for unlawful sexual contact. Among the elements needed to convict for rape is that there be sexual penetration of the anal or vaginal area(s) of a female. Unlawful sexual contact, however, does not have an element of penetration. It requires there be sexual contact, that is touching of the anal or genital area(s) of a female. Reeves argues the evidence here shows no more than touching, i.e., contact. He says any evidence of penetration is inconsistent with other evidence of touching and/or is insufficient to show penetration. The evidence in question came from a child who was just over three and a half when the incident occurred. That evidence was through the playing (and later introduction into evidence) of a videotaped session the little girl had. There is sufficient, consistent evidence from her statement to support the jury s verdicts. The defendant s motion is DENIED. Factual Background The Court will not use the real name of the young female victim in this case. She was born on January 8, This incident occurred on August 27, On that date, there was a family gathering at the home of Scott Taplin s grandparents. Among the family members was Scott s aunt, Patty. Reeves had been her 1

3 boyfriend for a period of time. He had been taking pictures with his digital camera during the gathering. The victim was present during the gathering and had been running around, playing. Mrs. Taplin, the victim s mother was nursing a baby. At one point in the gathering, she went upstairs to pump some milk for the baby. When she got upstairs, she looked into a TV room where she saw Reeves and the victim. The young girl was lying on a couch, her head was propped up on pillows, her feet were apart and her dress was pulled up. She saw Reeves hands in her daughter s genital area. Her daughter s underpants were pulled to one side and Mrs. Taplin could see her daughter s genital area. Reeves looked shocked when Mrs. Taplin saw all this. She grabbed her daughter and took her downstairs. After she returned downstairs, Mrs. Taplin reported to several family members what she had seen. One was her mother who saw the victim s clothes askew and a look of terror and horror on Mrs. Taplin s face. Several hours later, the young girl was taken to A. I. dupont Hospital for Children. Dr. Melanie Pitone, a pediatric emergency room physician examined the victim. She found no overt signs of trauma. The history she had received from one or more adults prior to her examination was of a touching. Nothing was said about penetration. Her training is to not ask such victims for details and she did not in this case. Even though she found no objective signs of penetration, she said such a finding could not rule out that it 2

4 had occurred. But based on the history given to her of touching, she did not perform and internal exam. The little girl was taken for an interview to the Children s Advocacy Center of Delaware on September 12, The session between her and Terri Kaiser, a forensic interviewer, was videotaped. 1 The session lasted about half an hour. 1 The videotape itself was not initially admitted as a trial exhibit for the jury to be able to view while deliberating. Before it was played, it was made Court Exhibit 1. Flonnory v. State, 893 A.2d 507, 525 (Del. 2006). But there was significant events even prior to this. The first witness called was to be the little girl. The jury was excused, however, when it was reported at side bar that she was resisting coming into the courtroom. As a prior out-of-court statement, to be used, the victim had to testify (just how much is currently unclear) and be available for cross-examination. 11 Del.C. 3507; Keys v. State, 337 A.2d 18, 22 (Del. 1975). Further, the tape could only be played after direct and before cross. Smith v. State, 669 A.2d 1, 7 (Del. 1995). In addition, the declarant was to remain in the courtroom while any prior statement is introduced and presented to the jury. Barros v. State, 858 A.2d 942, 946 (Del. 2004). It was also reported that the victim, when brought into the courtroom while court was out of session, and was very upset. Defense counsel saw this and spoke to his client. After doing so, he reported to the Court that Reeves would waive any procedural and substantive rights he had under Since it appeared probable that the victim would not be testifying at all, counsel also reported his client was willing to waive any constitutional rights of confrontation and crossexamination and any attendant rights. The Court believed it should engage in a direct colloquy with Reeves even though counsel is a most experienced, highly regarded criminal law practitioner. The colloquy revealed Reeves had some hesitation about waiver. After the jury came back into the courtroom and a cautionary instruction was given about the missing witness, it was again excused. Reeves counsel informed the Court his client was now willing to waive all his rights relating to the use of the victim s videotaped statement. Again, the Court conducted its own colloquy with Reeves. The Court reviewed with him all his procedural and substantive rights under 3507 and all his constitutional, federal and state rights and the consequences of waiver. Reeves, on this occasion, waived all those rights. This permitted the videotape to be played. 3

5 The little girl first spoke about Reeves touching her peepee and her butt with his finger. She described how Reeves pulled up her dress and pushed or pulled her panties aside. It was clear that peepee to her meant her genital area. During the latter part of the session, Kaiser asked the little girl how it felt when he touched her butt. She said he poked in and it hurt. She said it did not feel good when he touched the inside of her peepee with his finger. The defendant waived his fight to testify. 2 Before counsel made their closing remarks the Court gave a portion of its instructions to the jury. Included in that opening set of instructions was the listing of the elements of rape second degree and the lesser included offense of unlawful sexual contact second degree. Also, as part of those instructions and at the defendant s request, the Court gave the following instruction on the use of prior out-of-court statements: PRIOR OUT OF COURT STATEMENTS You have heard the evidence of unsworn statements made by Fiana Reinert also known as Fiana Taplin prior to trial. Such testimony is permissible, under a Delaware statutory provision. With regard to this statutory provision, caution must be exercised by the jury when determining whether the State has met its burden of proof. Care should also be taken when there is a issue for you to resolve of whether or not there is evidence to corroborate the state of the little girl. 3 2 Prior to making that choice, the Court excluded any questioning of the defendant - if he chose to testify - about a February, 2006 conviction in Maryland for a misdemeanor sex offense which the State represented involved a young girl. 3 Jury instructions at p

6 Following the giving the of the opening portions of the instructions counsel gave their closing arguments. 4 Applicable Standards Reeves motion for judgment of acquittal is made post-trial and implicate Superior Court Criminal Rule 29(c). When ruling on such a motion, the Court must view in a light most favorable to the State. 5 And utilizing that view, the test is whether any rational trier of fact could find the defendant guilty beyond a reasonable doubt. 6 Where the State has presented insufficient evidence to support the verdict, the motion should be granted. 7 4 Since the victim had not testified in front of the jury her videotaped session at the Children s Advocacy Center assumed greater significance. This is why the Court readily acceded to the defense request for the prior statement instruction quoted in the opinion. And, of course, initially the videotape itself was not placed into evidence. During that session the victim made several statements which were not correct. She misstated her age. She made statements about getting sick from the event and so forth. Either these statements could not be corroborated or were contradicted by other evidence. While the little girl could not be cross-examined about them, defense questioning of other witnesses brought them to light. While Reeves counsel was making his closing remarks, he interspersed them by showing five or six video excerpts from the victim s session in an effort to highlight the inconsistencies he had brought out before. The Court believed that this use of portions of the videotape compelled the Court to now have it marked as an exhibit to go to the jury. Fundamental fairness and the centrality of the issue of whether there was penetration or just touching meant the jury should have the complete tape to view. This was one of exceptions, in this Court s view, which Flonnory allowed for. Flonnory, 893 A.2d at 525. The Court believed D.R.E. 611(a) tends to support this, too. 5 Vouras v. State, 452 A.2d 1165, 1169 (Del. 1982). 6 Perkins v. State, 920 A.2d 391, 394 (Del. 2007). 7 State v. Biter, 119 A.2d 894, 898 (Del. Super. 1955). 5

7 Further, the Court does not determine the weight of the evidence. 8 Finally, the jury determines issues of credibility, not the Court. 9 Discussion There is no question that Mrs. Taplin saw Reeves touching her daughter in her genital area. Touching was what was initially reported to the police and to the staff at A.I. Hospital. The word touched was used in the earlier portions of the session involving the victim and Ms. Kaiser, and she does not seem to have known early in the interview that more than touching was involved. This has importance because there is nothing in the videotaped interview suggesting in any way Kaiser was leading the little girl to say anything which would mean penetration. Kaiser s questions were not leading or suggestive in key areas. And it was the little girl s spontaneous answer to the question of how it felt when touching her buttocks area that she said he poked his finger in. Kaiser neither had used that word up to that point in her session with the victim nor used any word close to it which would prompt the victim to say that. Nor, when it came to the follow-up discussion of how it felt when Reeves touched her genital area did she suggest or use any word remotely similar to poked or inside when the victim described what he did to her peepee. 8 Edwards v. State, 285 A.2d 805, 806 (Del. 1971). 9 Tyre v. State, 412 A.2d 326, 330 (Del. 1980). 6

8 Rape in the second degree has various elements. Only one is at issue here. It also was the relevant element in the indictment. It is that the defendant intentionally engaged in sexual penetration with another. 10 Those words are statutorily defines as: The unlawful placement of an object, as defined in subsection (c) of this section, inside the anus or vagina of another person. 11 Object, as noted, is also a statutorily defined word: Object means... any part of the body. 12 The victim s words in speaking with Kaiser satisfy the element of penetration. Reeves argues this evidence is insufficient: how can a three and a half year old appreciate the difference between touching the outside of her anal and genital areas and inserting a finger? To ask the question is to answer it. And the victim s choice of words responding to non-suggestive questions is telling. To say each insertion hurt is corroborative of an insertion not a touching. This was an articulate little girl. For example, she used the word actually in an appropriate context. And her answers to various questions displayed an understanding of correct vocabulary Del.C. 772(a)(2) Del.C. 761(g)(1) Del.C. 761(c). 7

9 Of course, such sorting out is not for this Court. It is a jury-only function. As is the next argument Reeves advances in support of his motion. He notes that when Kaiser gave the victim an anatomically correct doll, she did not do anything more than touch it. This, he asserts, is inconsistent with poking and inside. Yet the jury was fully aware of these possible inconsistencies, especially since it could view the tape during its deliberations, and appreciate them much more than if it did not have the tape. Those asserted inconsistencies, the words versus the doll play, and the others mentioned previously which the defense brought out, were for the jury to resolve. 13 These inconsistencies to the extent they exist do not substantively undermine the State s case as Reeves argues, citing Bland v. State. 14 The jury s verdict shows it resolved those inconsistencies. The evidence supports the verdicts. Conclusion For the reasons stated herein, defendant Paul Reeves motion for judgment of acquittal is DENIED. IT IS SO ORDERED. J. 13 Chao v. State, 604 A.2d 1351, 1363 (Del. 1992) A.2d 286 (del. 1970). 8