        IN THE SUPREME COURT OF THE STATE OF DELAWARE

JOSEPH BAKER, JR.,                     §
                                       §     No. 501, 2018
      Respondent Below,                §
      Appellant,                       §     Court Below: Family Court
                                       §     of the State of Delaware
      v.                               §
                                       §     I.D. No. 1711009663 (K)
STATE OF DELAWARE,                     §
                                       §
      Petitioner Below,                §
      Appellee.                        §

                          Submitted: May 8, 2019
                          Decided: July 18, 2019

Before VAUGHN, SEITZ, and TRAYNOR, Justices.

Upon appeal from the Family Court. REVERSED AND REMANDED

Nicole M. Walker, Esquire, Assistant Public Defender, Wilmington, Delaware for
Appellant, Joseph Baker, Jr.

John Williams, Esquire, Deputy Attorney General, Dover, Delaware for Appellee,
State of Delaware.




VAUGHN, Justice:
         This is an appeal from an order of the Family Court adjudging the appellant,

Joseph Baker, Jr.,1 a minor child, delinquent for having committed an act of Rape

in the Second Degree. Initially, Baker was charged with three counts of Rape in the

Second Degree. Count Two was voluntarily dismissed by the State before trial. At

trial, the Family Court judge found Baker delinquent on Count One and acquitted

him on Count Three. On appeal, Baker argues that the judgment of delinquency for

the one count of Rape in the Second Degree should be reversed because of

evidentiary errors made by the Family Court judge at trial. We agree that errors

were made and reversal is required.

         It is alleged that the two counts of Rape in the Second Degree that went to

trial occurred in Kent County. The alleged victim in both counts is Baker’s younger

sister, S.B. She was six years of age at the time of the alleged offenses. Baker was

thirteen years of age at the time of the alleged offenses. The acts of rape are alleged

to have occurred in S.B.’s home when Baker was there for weekend visitations.

They are alleged to have occurred in Baker’s bedroom.

                                              II.

                                              A.

         The first claim of error made by Baker relates to the testimony of Emily

Brown, a friend of S.B.’s mother. Brown was the first witness called by the State.


1
    A pseudonym was assigned on appeal pursuant to Supreme Court Rule 7(d).

                                              2
She testified that her two sons were playing with S.B. on a trampoline in her

backyard.       She testified that she overheard S.B. say, “Junior showed me his

privates,” and that one of her sons responded, “Who’s Junior?”2 S.B. explained that

Junior was her brother. According to Brown, when her sons asked S.B. why her

brother did that, S.B. “was like, ‘He made me’—you know, ‘He’—she said, ‘I don’t

know. He showed me his privates and made me touch them . . . .’”3

         Brown testified that she put an end to the conversation and called S.B.’s

mother to report what S.B. had said. She also spoke to S.B. and said, “I heard what

you said on the trampoline, about Junior.”4 “Yeah,” responded S.B.5 Brown then

asked, “Where were your parents at, when he did this?”6 S.B. said that her parents

were sleeping at the time.

         Baker’s counsel made a timely objection to Brown’s testimony on the ground

that it contained inadmissible hearsay. The State argued that S.B.’s statements as

related by Brown were not offered for the truth of the matter asserted, but instead

were offered for information as to what S.B. eventually told her mother and to show

that S.B. was not being coached. Baker’s counsel responded that she had not made




2
    App. to Appellant’s Opening Br. at A18.
3
    Id.
4
    Id. at A18-19.
5
    Id. at A19.
6
    Id.

                                              3
any argument or assertion that S.B. was coached.            The Family Court judge

overruled the objection.

         This Court reviews “a trial court’s ruling admitting or excluding evidence for

abuse of discretion.”7 Baker contends that Brown’s testimony did not satisfy the

requirements of Delaware Rule of Evidence 801(d)(1)(B), which provides that a

statement is not hearsay if “[t]he declarant testifies and is subject to cross-

examination about a prior statement, and the statement . . . is consistent with the

declarant’s testimony and is offered . . . to rebut an express or implied charge that

the declarant recently fabricated it or acted from a recent improper influence or

motive in so testifying.”8 The State argues in response that the trial judge did not

abuse his discretion in admitting Brown’s testimony relating to S.B.’s statements

because during the testimony of the first witness the trial judge had no idea what

further evidence might reveal.

         In this case, both sides waived opening argument, Brown was the first witness

called by the State, and there was simply no evidentiary basis upon which the trial

judge could have concluded that Brown’s testimony relating to S.B.’s statements

was offered to rebut an express or implied charge that S.B. had recently fabricated




7
    Milligan v. State, 116 A.3d 1232, 1235 (Del. 2015).
8
    D.R.E. 801(d)(1)(B)(ii).

                                                 4
her accusations against Baker or that she acted from a recent improper influence or

motive. Admission of S.B.’s hearsay statements overheard by Brown was error.

          The State also argues that any error in admitting Brown’s testimony was

harmless because S.B.’s out-of-court statements could have been admitted under 11

Del. C. § 3507. Section 3507, however, applies “[i]n a criminal prosecution.” 9

“[A] Family Court adjudication of delinquency is a civil proceeding.”10 Because

the delinquency proceeding involved here was not a “criminal prosecution,” § 3507

does not apply.

                                                  B.

          The second evidentiary issue Baker raises on appeal relates to the testimony

of Kitty Nelson, a child-protective-services investigator for the Department of Social

Services in Caroline County, Maryland. Nelson interviewed S.B in connection with

the allegations. Nelson’s testimony at trial focused on the use of anatomical dolls

during her interview with S.B. She testified that through the use of the anatomical

dolls, S.B. illustrated the alleged acts of rape Baker committed upon her. Baker’s

trial counsel made a timely objection that any statements made by S.B. during the

interview, including, by implication, the nonverbal statements made through S.B.’s

use of the anatomical dolls, were inadmissible hearsay. The State responded that



9
     11 Del. C. § 3507(a).
10
      G.D. v. State, 389 A.2d 764, 765 (Del. 1978).

                                                  5
what Nelson saw S.B. demonstrate with the dolls was not hearsay. The objection

was overruled.

       Hearsay is “a statement that . . . the declarant does not make while testifying

at the current trial or hearing” that is “offer[ed] in evidence to prove the truth of the

matter asserted in the statement.”11 For hearsay purposes, “statement” is defined as

“a person’s oral assertion, written assertion, or nonverbal conduct, if the person

intended it as an assertion.”12 Although this issue has not been directly addressed

by this Court, it is generally accepted that a child’s use of anatomical dolls to show

someone what happened to the child—especially when used to respond to questions

about what happened—is nonverbal conduct intended as an assertion and, therefore,

a “statement” for purposes of the hearsay rule.13 The child’s use of anatomical dolls

is effectively a substitute for orally asserting what happened.


11
   D.R.E. 801(c).
12
   Id. 801(a).
13
   E.g., People v. Bowers, 801 P.2d 511, 523 (Colo. 1990) (en banc) (“K.B.’s use of anatomical
dolls during the interviews by the detective and the counselor, as well as the child’s gesturing
during these interviews, constituted a form of nonverbal conduct that was intended by the child to
be communicative. . . . . [T]he child’s use of the dolls and gesturing were intended to be no less
communicative than the child’s verbal responses.”); State v. Townsend, 635 So. 2d 949, 959 (Fla.
1994) (“When an expert testifies regarding how a child behaved with anatomically correct dolls,
the expert is repeating the communications of the child witness.”); Stringer v. Commonwealth, 956
S.W.2d 883, 886-87 (Ky. 1997) (“[W]e [have] held that a social worker could not describe to the
jury the child victim’s out-of-court manipulation of anatomically detailed dolls, because the
manipulation of the dolls was a nonverbal communication, thus hearsay.” (citing Souder v.
Commonwealth, 719 S.W.2d 730 (Ky. 1986), overruled on other grounds by B.B. v.
Commonwealth, 226 S.W.3d 47 (Ky. 2007))); see also Ray v. State, 587 A.2d 439, 440, 443-44
(Del. 1991) (finding reversible error in the admission of a child victim’s out-of-court statements,
which included using anatomically correct dolls to depict the assault, where the proper foundation
under 11 Del. C. § 3507 was not provided); cf. United States v. Caro, 569 F.2d 411, 416 n.9 (5th

                                                6
       Because S.B.’s manipulation of the dolls was a statement for hearsay

purposes, done outside of court, and offered for its truth, Nelson’s testimony as to

S.B.’s manipulation of the dolls was inadmissible hearsay absent an applicable

exception to, or exclusion from, the rule against hearsay. Other than 11 Del. C. §

3507, which as explained is inapplicable here, the State has not offered a potential

hearsay exception or exclusion.            Therefore, Nelson’s testimony as to S.B.’s

manipulation of the dolls was inadmissible hearsay, and admission of this testimony

was error.

       In its ruling, the Family Court specifically discussed the consistency of S.B.’s

testimony with the testimony of Brown and Nelson. Because we have found that

the testimony of both Brown and Nelson contained inadmissible hearsay, it cannot

be said that these evidentiary errors are harmless.

                                                C.

       Next, Baker contends that the Family Court judge erred in admitting evidence

that Baker had committed other, uncharged sexual abuse against S.B. in Maryland.

Several witnesses made references to allegations of abuse in Maryland. This claim

of error is reviewable only for plain error because no objection to the mention of the

Maryland allegations was made at trial.14


Cir. 1978) (explaining that “pointing out” constitutes assertive conduct and is therefore hearsay);
United States v. Ross, 321 F.2d 61, 69 (2d Cir. 1963) (same).
14
   E.g., Zhurbin v. State, 104 A.3d 108, 113 (Del. 2014) (“To warrant review on appeal when the

                                                7
       It was not plain error for the Maryland police officer who testified at trial

about his interview of Baker (who made admissions in that interview that

undermined his general credibility) to explain that he interviewed Baker because of

allegations made to the Caroline County Department of Social Services. This

information was admissible for the limited purpose of informing the trial judge as to

why a Maryland police officer was testifying in a Delaware trial regarding sexual

abuse allegedly occurring in Delaware. Under Delaware Rule of Evidence 404, the

officer’s testimony regarding the details of the Maryland allegations was not

admissible, and on remand this portion of his testimony shall not be considered, as

evidence tending to make it more likely that Baker actually committed the Delaware

allegations.15 For this same reason, testimony from other witnesses regarding the

details of the Maryland allegations was not admissible under Rule 404 and,

therefore, shall not be considered on remand.

                                                  D.

       The final two claims of error are related and will be considered together. The

first is that the trial judge erred by admitting evidence that Baker’s stepfather may

have sexually abused another one of Baker’s sisters, M.B. The second is that the



issue has not been fairly presented [to the trial court], there must be ‘plain error.’”); see also Supr.
Ct. R. 8.
15
   See D.R.E. 404(b)(1) (“Evidence of a crime, wrong, or other act is not admissible to prove a
person’s character in order to show that on a particular occasion the person acted in accordance
with the character.”).

                                                   8
trial judge erred by permitting the State to present a “learned behavior” theory based

on Baker’s knowledge that his stepfather had allegedly abused M.B.

         The State first presented the alleged sexual abuse of M.B. during the direct

examination of the investigating officer. The State asked him whether S.B.’s

mother was on the Child Abuse Registry. Baker’s trial counsel objected on grounds

of relevance. According to the State, the relevance was that she was on the Registry

for not protecting her own child. “And here,” the State explained, “the State feels

strongly that she’s doing the same exact thing, by hindering her son in the interview

process.” 16 The Family Court judge overruled the objection. The officer then

testified that the incident that led to the mother being placed on the Child Abuse

Registry involved sexual abuse of her daughter, M.B.

         The State returned to the subject during the cross-examination of Baker. At

that time, the State initially indicated to the trial judge that it wanted to ask Baker “if

he’s aware of the history of his Step-Dad, not his current Step-Dad, but his Step-Dad

from [M.B.], because I do think that his Step-Dad potentially molested him.” 17

Baker’s trial counsel objected on the grounds of relevance, and the trial judge

overruled the objection. After further discussion, the State indicated that it had only

two questions it wished to ask—how long the prior stepfather, S.D., had been his



16
     App. to Appellant’s Opening Br. at A52.
17
     Id. at A101.

                                               9
stepfather and whether Baker was aware that S.D. had abused M.B. In support of

these questions, the State argued that “[t]he relevance, again, it goes to was he

abused, to see his motive, where, why? It’s opportunity, [it’s] a learned behavior,

[it’s] my whole argument.”18 Baker’s trial counsel continued to object. The court

allowed the State to ask its questions, and Baker replied that S.D. had been his

stepfather for about ten years and he was aware that S.D. allegedly abused his sister,

M.B.

       The State’s summation included an argument based on “learned behavior”:

                     Your Honor, the State’s position is that something
              terrible happened to [Baker]. That he had a Step-Dad that
              did heinous things to his sister. And we know that
              because it was litigated in Sussex County Court.

                    But what we don’t know is the extent of what else
              occurred in that house. Whether this was a learned
              behavior, by his Step-Dad, or if it was just motivated by
              hormones. It’s the State’s contention that it was learned
              behavior.19

       Although this issue has not been directly addressed in the courts of this state,

evidence of “learned behavior” or “battering parent syndrome”—the idea that a

person who was abused as a child by a parent or parent figure is more likely to repeat

this behavior—has been held inadmissible by many courts across the country. 20

18
   Id. at A103.
19
   Id. at A108.
20
   E.g., State v. Pulizzano, 456 N.W.2d 325, 336 (Wyo. 1990) (citing Thomas N. Bulleit Jr., Note,
The Battering Parent Syndrome: Inexpert Testimony as Character Evidence, 17 U. Mich. J.L.
Reform 653 (1984)).

                                               10
These courts have reasoned that such evidence is clear propensity evidence, rendered

inadmissible by Rule 404 (or analogous rule).21 Simply put, “to the extent that such

evidence is relevant at all, it is character evidence that may not be admitted as proof

of guilt.”22 And when the State’s case depends largely (if not exclusively) on the

credibility of the alleged victim in comparison to the credibility of the defendant,

courts have held that admission of this “learned behavior” evidence constitutes

reversible error.23

       Although the prosecutor expressed a suspicion that Baker himself had been a

victim of abuse, the theory it presented was that Baker “learned” sexual abuse

“behavior” from an awareness of an allegation that S.D. had sexually abused his

sister, M.B. We see no significant difference between a theory that a person’s


21
   E.g., State v. Jahnke, 353 N.W.2d 606, 610 (Minn. Ct. App. 1984) (“To ask a defendant accused
of incest whether she was sexually abused as a child is highly prejudicial and cannot be
condoned.”); Kirby v. State, 208 S.W.3d 568, 573 (Tex. Ct. App. 2006) (holding that evidence of
the defendant’s sexual abuse as a child, whether viewed as a character trait under rule 404(a) or an
act under rule 404(b), was inadmissible); Pulizzano, 456 N.W.2d at 336 (“The admissibility of
evidence of the battering parent syndrome has been controversial among the courts. If admissible
at all, however, the courts have been uniform that it must be supported by expert testimony, both
with respect to the theory itself and whether the defendant exhibits character traits consistent with
that profile.” (citations omitted)); see also Nelson v. State, 782 P.2d 290, 297 (Alaska Ct. App.
1989) (“Particularly in light of the widespread belief that sexual abusers of children are frequently
people who have themselves been victims of abuse as children, the evidence of Nelson’s abuse as
a child carried a strong and unmistakable potential for prejudice.”).
22
   Kirby, 208 S.W.3d at 573 (citing Tex. R. Evid. 404).
23
   E.g., id. at 574-575 (reversing a conviction for sexual abuse of a child where the success of the
case depended on a credibility determination between the alleged child victim and the defendant
because “[t]he testimony that [the defendant] had been the victim of sexual abuse, even when
discounted by expert testimony, improperly called into play the commonly held belief that victims
of sexual abuse are more likely to abuse others” and, therefore, likely influenced the jury’s
credibility determination); see also Nelson, 782 P.2d at 297.

                                                11
alleged sexual abuse of another is learned behavior because the person was a victim

of abuse or is learned behavior because another member of the family was the victim.

In both contexts, it is propensity evidence. We agree with the aforementioned

courts and hold that “learned behavior” evidence is inadmissible propensity evidence

under Delaware Rule of Evidence 404. It was error for the Family Court judge to

admit such evidence and to allow argument relating to it in closing.

         For similar reasons, it was also error to admit evidence that the mother was

on the Child Abuse Registry. First of all, it is unclear to us how this fact is relevant

under Delaware Rule of Evidence 401. The evidence that the mother is on the

Registry for an incident involving M.B. does not have “any tendency to make a fact”

of consequence the State sought to prove—the mother’s alleged hindering of her son

in the interview process—“more or less probable than it would be without th[at]

evidence.”24 Furthermore, even if this evidence is somehow relevant to that fact of

consequence (or some other, unidentified fact of consequence), it is inadmissible

character evidence under Rule 404.

                                          III.

         For the foregoing reasons, the judgment of the Family Court finding the

appellant delinquent for having committed an act of Rape in the Second Degree is




24
     D.R.E. 401.

                                          12
reversed, and the case is remanded for further proceedings consistent with this

opinion. Jurisdiction is not retained.




                                         13
