              IN THE SUPREME COURT OF THE STATE OF DELAWARE

BRUCE ROWAN,                               §
                                           §     No. 249, 2018
         Defendant Below,                  §
         Appellant,                        §     Court Below: Superior Court of the
                                           §     State of Delaware
         v.                                §
                                           §     Cr. ID No. 0910020105 (K)
STATE OF DELAWARE,                         §
                                           §
         Plaintiff Below,                  §
         Appellee.                         §

                             Submitted: September 21, 2018
                              Decided: December 10, 2018

Before VALIHURA, VAUGHN, and SEITZ, Justices.

                                        ORDER

         (1)    The appellant, Bruce Rowan, filed this appeal from the Superior

Court’s April 13, 2018 order that adopted a Commissioner’s report and

recommendation1 and denied Rowan’s motion for postconviction relief. We find no

merit to the appeal. Accordingly, we affirm the Superior Court’s judgment.

         (2)    Rowan was indicted on criminal charges, including fifteen counts of

fourth degree rape, for having allegedly had sexual intercourse with a sixteen-year-

old girl. Rowan also was indicted on charges that, after his December 2009

arraignment on the sexual offenses, he initiated telephone contact with the alleged



1
    2017 WL 5665032 (Del. Super. Ct. Comm’r Nov. 21, 2017) (Report and Recommendation).
victim in violation of a no-contact order. After a four-day trial in 2010, a Superior

Court jury convicted Rowan of one count of continuous sexual abuse of a child, five

counts of fourth degree rape, and fifty-six counts of breach of condition of release.

At sentencing, the Superior Court declared Rowan a habitual offender and sentenced

him to a total of 120 years of unsuspended Level V incarceration. On direct appeal,

we affirmed Rowan’s convictions and sentence.2

         (3)    Rowan filed a timely motion for postconviction relief in 2013 and was

appointed counsel. After reviewing the record and finding no ground for relief to

advocate on behalf of Rowan, postconviction counsel filed a motion and supporting

memorandum seeking leave to withdraw. Rowan filed a memorandum opposing his

counsel’s position that the record presented no grounds for relief. The Superior

Court granted postconviction counsel’s motion to withdraw and referred Rowan’s

pro se motion for postconviction relief to a Superior Court Commissioner for a

report and recommendation.

         (4)    At the direction of the Commissioner, Rowan’s trial counsel filed an

affidavit responding to Rowan’s allegations of ineffective assistance of counsel, the

State filed a response to the postconviction motion, and Rowan filed a reply.

Thereafter, the Commissioner issued a report recommending that the Superior Court




2
    Rowan v. State, 2012 WL 1795829 (Del. May 18, 2012).
                                              2
should deny Rowan’s postconviction motion as procedurally barred and without

merit. Rowan filed objections to the report and recommendation. After reviewing

the matter de novo, the Superior Court issued an order on April 13, 2018, adopting

the report and recommendation and denying Rowan’s postconviction motion.

       (5)     On appeal, Rowan argues that the Superior Court should have granted

him postconviction relief because (i) his trial counsel was ineffective for failing to

request “a reasonable doubt instruction based upon fraudulent concealment” by the

victim and her parents of the victim’s age; (ii) neither the court nor his trial counsel

advised him at the December 2009 arraignment that the previously-imposed no-

contact order was still in effect; and (iii) his sexual intercourse with the sixteen-

year-old victim was lawful because he and the victim had “a spousal relationship.”

Rowan raised other claims in his postconviction motion, but he has not pursued those

claims on appeal.3 We review the Superior Court’s denial of postconviction relief

for abuse of discretion and review questions of law de novo.4

       (6)    Rowan was charged and convicted of fourth degree rape under 11 Del.

C. § 770(a)(2), which provides:

       (a)    A person is guilty of rape in the fourth degree when the person:

       ***

3
  See Somerville v. State, 703 A.2d 629, 631 (Del. 1997) (holding that claims raised in
postconviction motion but not briefed on appeal were waived and abandoned).
4
  Fleetwood v. State, 2018 WL 4694189 (Del. Sept. 27, 2018) (citing Claudio v. State, 958 A.2d
846, 850 (Del. 2008)).
                                              3
            (2) Intentionally engages in sexual intercourse with another
            person, and the victim has not yet reached that victim’s eighteenth
            birthday, and the person is 30 years of age or older, except that
            such intercourse shall not be unlawful if the victim and person are
            married at the time of such intercourse[.]5

         (7)     In his postconviction motion, Rowan challenged his fourth degree rape

convictions based on claims that the evidence at trial raised reasonable doubt of his

guilt because the sixteen-year-old victim lied to him about her age—telling him that

she was twenty-three—and her parents concealed her age from him as well. On

appeal, Rowan recasts his “fraudulent concealment” claims as a claim of ineffective

assistance of counsel.

         (8)     The Superior Court rejected Rowan’s “fraudulent concealment” claims

after determining that Rowan’s belief that the victim was over the age of eighteen at

the time of the sexual intercourse could not have provided a defense at trial. We find

no abuse of discretion or error of law in the Superior Court’s ruling and conclude,

on appeal, that Rowan’s ineffective counsel claim also is without merit. Rowan was

convicted of fourth degree rape under 11 Del. C. § 770(a)(2), which required proof

beyond a reasonable doubt that he (i) intentionally had sexual intercourse, (2) with

the alleged victim who had not yet reached her eighteenth birthday, (3) when he was

over the age of thirty. Because Rowan’s knowledge of the victim’s age was not an




5
    11 Del. C. § 770(a)(2) (Supp. 2018).
                                            4
element of the charges, his ignorance or mistake of the victim’s age provided no

defense to the charges.6 Rowan was not prejudiced by his trial counsel’s alleged

failure7 to advance a defense based on the alleged “fraudulent concealment” of the

victim’s age by the victim and her parents.8

       (9)     Rowan’s second claim—that his breach of condition convictions should

have been set aside—was raised on direct appeal and rejected.9 The Superior Court

barred the claim as formerly adjudicated. We find no error of law or abuse of

discretion in that ruling and conclude that Rowan has not demonstrated on appeal

why the claim should be revisited.

       (10) Rowan’s third claim on appeal is that his convictions should be set aside

because, under the circumstances in his case, although he had sexual intercourse

with the sixteen-year-old victim, his conduct should not be viewed as criminally

culpable because he and the victim had a “spousal relationship” that was recognized

and approved by members of their families, their community, and their church.

Rowan’s trial counsel raised the same claim in a motion to dismiss, which was




6
  11 Del. C. § 454 (2010).
7
  Under Strickland v. Washington, 466 U.S. 668, 692, 694 (1984), to prevail on a claim of
ineffective assistance of counsel, a defendant must demonstrate that counsel’s alleged error was
prejudicial.
8
  See, e.g., Brown v. State, 74 A. 836, 841 (Del. 1909) (finding that statements of age made by the
statutory rape victim and the defendant’s reasonable belief about her age were “irrelevant and
immaterial”).
9
  Supra note 2, at **1–2.
                                                5
denied, and when moving for a judgment of acquittal, which also was denied. In the

postconviction proceedings, the Superior Court rejected the claim for the reasons

articulated by the Commissioner, who concluded that “as much as Rowan may want

to argue the point, the fact is that he and the victim were not legally married when

the crimes were committed.”10 We find no error of law or abuse of discretion in that

ruling and conclude that Rowan has not demonstrated on appeal why it should be

overturned.

          NOW, THEREFORE, IT IS HEREBY ORDERED that the judgment of the

Superior Court is AFFIRMED.

                                      BY THE COURT:

                                      /s/ James T. Vaughn, Jr.
                                      Justice




10
     Supra note 1, at *6.
                                         6
