      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                   IN AND FOR KENT COUNTY


STATE OF DELAWARE,                      :
                                        :   ID NO. 1401000712
            v.                          :
                                        :
TERRY C. ADGATE,                        :
                                        :
                  Defendant.            :


                            Submitted: June 13, 2014
                              Decided: July 7, 2014

                            Upon Consideration of
                         Defendant’s Motion to Dismiss
                                  DENIED

                           Upon Consideration of
                   Defendant’s Motion for Bill of Particulars
                                 DENIED

                           Upon Consideration of
                 Defendant’s Motion for a Deberry Instruction
                                GRANTED

                                    ORDER


Abigail R. Layton, Esquire, Deputy Attorney General, Department of Justice, Dover,
Delaware for the State of Delaware.

William J. Rhodunda, Jr., Esquire of Rhodunda & Williams, LLC, Wilmington,
Delaware for Defendant.


Young, J.
State v. Adgate
Case I.D. 1401000712
July 7, 2014

                                        SUMMARY
      Terry Adgate (“Defendant”) has been charged with four sexual offenses
stemming from incidents, three of which are alleged to have occurred between
January 1, 1990 and December 31, 1993; and the fourth between April 1, 1996 and
July 1, 1996. The allegations bringing about all charges are asserted by
Defendant’s former stepdaughter (“Claxton”).
      Because 11 Del. Code § 205, providing for no limitation on the time of
filing these actions, applies, Defendant’s Motion to Dismiss is DENIED.
      Because the indictment, together with the affidavit of probable cause,
provides legally sufficient information of the specific crimes being alleged, against
Defendant, the Motion for Bill of Particulars is DENIED.
      Because the trial elements of the crimes alleged against Defendant will
necessarily entail issues of credibility, and because a prior police investigation
dismissing similar claims could reflect upon credibility, the absence of reports,
thereof, satisfy Deberry1 and progeny requirements. Hence, Defendant’s Motion
for a Deberry instruction is GRANTED.
                      FACTS AND PROCEDURAL POSTURE
      Defendant has been charged with three counts of unlawful sexual
penetration third degree occurring between January 1, 1990 and December 31,
1993, and one count of attempted unlawful sexual intercourse second degree
occurring between April 1, 1996 and July 1, 1996. The allegations leading to those


      1
          Deberry v. State, 457 A.2d 744 (Del. 1983).

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State v. Adgate
Case I.D. 1401000712
July 7, 2014

charges have been asserted by Claxton.
      Over twenty years prior to these allegations, Claxton evidently reported
similar claims to the police. Those reports were made sometime in 1985 to 1987,
when Claxton was 10 to 12 years old. A police investigation apparently was
conducted, though Defendant was never arrested for or charged with any offense.
According to the State, no police documentation exists relative to that incident.
      Claxton made a second report of sexual abuse by Defendant on October 10,
2013. In this disclosure, she reported that Defendant sexually abused her between
January 1, 1990 and December 31, 1993. Claxton also reported that Defendant
attempted to assault her sexually between April 1, 1996 and July 1, 1996. When
Defendant asked the State for the earlier, unpursued materials, the State’s counsel
refused. However, the State provided the report, which detailed the investigation
of the instant charges, on March 6, 2014.
      From the late 1980s until the mid-1990s, Claxton, who was a minor during a
portion of this period, lived with Defendant. Once she became an adult, both she
and her husband continued to live with Defendant even after her mother moved
out of the residence.
      On August 17, 2012, Defendant was arrested on twenty five counts of
Dealing in Child Pornography. Defendant pled guilty to, and was sentenced on,
three counts of Dealing in Child Pornography on November 14, 2013. Following
Defendant’s arrest and some media attention regarding the matter, Child Predator
Task Force received calls regarding allegations of prior sex abuse committed
against children by Defendant. The Child Predator Task Force began an

                                            3
State v. Adgate
Case I.D. 1401000712
July 7, 2014

investigation into these allegations, culminating in the instant charges.
       Defendant filed the Motion to Dismiss, the Motion for Bill of Particulars
and the Motion for a Deberry instruction on May 23, 2014. The State filed a
Response to Defendant’s Motions on June 11, 2014.
                                        DISCUSSION
Motion
       Defendant presents several issues: 1) Are the charges barred by the
applicable statute of limitations?; 2) Does Defendant have a constitutional right to
the records surrounding the police investigation twenty years ago?; 3) Did the
State have a duty to preserve the first police report? If so, did the State breach this
duty?; and 4) What is the significance of the missing first report from over twenty
years ago, considering the probative value and reliability of secondary or
substitute evidence that remains available?
I. Statute of Limitations
       Regarding the first issue, 11 Del. Code § 205 (e) revised the statute of
limitations to permit the prosecution of sexual offenses to commence at any time.
The purpose of the amendment was stated to be to “ensure that in the future sexual
offenses may be prosecuted regardless of when the crime was discovered or
reported.” 2
       Defendant argues that the intent of the amendment was not to permit a
twenty year delay in prosecuting an allegation that was reported to the authorities


       2
           (Exhibit B, Synopsis of House Bill No. 66).

                                                4
State v. Adgate
Case I.D. 1401000712
July 7, 2014

twenty years prior. Morever, Defendant contends that the State has provided no
additional evidence from the investigation twenty years ago, has offered no
additional witnesses from twenty years ago, and has offered no basis for the
charges to be filed at such a late date. Defendant asserts that the only evidence
offered by the State is the limited testimony of Claxton and her mother. Further,
Defendant argues that permitting the prosecution of this matter to occur
unconstitutionally precludes Defendant from defending himself.
      The State cites Hoeninicke v. State, 13 A.3d 744 (Del. 2010). That case has
facts very similar to the instant matter. The Delaware Supreme Court held that the
amended statute did provide for the unlimited limitations period. The defendant
was convicted of unlawful sexual contact in the second degree. In Hoeninicke, the
Delaware Supreme Court also noted that, under the “first disclosure” tolling
period, the defendant’s prosecution was not barred on the date of the 2003
amendment, because the victim had not yet reported the abuse to the police.3
      In the instant case, Claxton also had not yet reported the 1990 to1993, and
1996 attempted assaults to the police. The “first disclosure” in this matter did not
occur until 2013. The unlimited statute of limitations pursuant to 11 Del. Code §
205 applies. Thus, Defendant’s Motion is DENIED, the case will not be dismissed
on this ground.
II. Defendant’s Request for Bill of Particulars
      Defendant requests that the Court grant a Bill of Particulars in this matter,


      3
          Id.

                                          5
State v. Adgate
Case I.D. 1401000712
July 7, 2014

directing the State to identify the precise date, time, and location of the allegations
against Defendant. Defendant makes this request on the basis that he is unclear
when the victim is alleging the incidents, which span across a total of 6 ½ years
time, set forth in the present charges. Defendant argues that he cannot properly
defend the vague allegations unless a more precise date, time, and location are
provided.
      In the Response to Defendant’s request for a Bill of Particulars, the State
argues that the indictment sets forth the time periods during which Claxton’s
abuse allegedly occurred, as well as the specific conduct which the State contends
constitutes abuse. The purpose of an indictment is to put Defendant on notice of
what he is being called upon to defend, and to prevent subsequent prosecutions for
the same offense.4 This purpose is fulfilled if the indictment contains a plain
statement of the essential facts constituting the offense charged.5
      In Corbin, the Delaware Supreme Court found that, when an indictment
contained the official citation to the statute, the name of the offense, and clearly
stated that the defendant was being charged with a specific crime, the indictment
was sufficient to give notice of the offense and the allegations of the State. In this
matter, the indictment contains all of the required information, thereby, providing
sufficient notice to Defendant. Additionally, Defendant has been provided a copy
of the probable cause affidavit and the investigative report, providing additional


      4
          Corbin v. State, 711 A.2d 1227 (Del. 1998).
      5
          Id.

                                               6
State v. Adgate
Case I.D. 1401000712
July 7, 2014

incident detail. Thus, Defendant’s Request for Bill of Particulars is DENIED.
III. Right to Prior Records
      Regarding the third issue, Defendant argues, citing Johnson v. State, 27
A.3d 541 (Del. 2011), that he has a constitutional right of access to evidence,
namely the first report. Defendant asserts that, since the State has advised counsel
that the documents regarding the initial investigation were not available to
Defendant, the case should be dismissed pursuant to Deberry v. State, 457 A.2d
744 (Del. 1983). Further, Defendant contends that the first police report should be
subject to disclosure pursuant to Superior Court Criminal Rule 16 or Brady v.
Maryland, 373 U.S. 83 (1963): “[U]nder Criminal Rule 16(b), a defendant need
only show that an item ‘may be material to the preparation of his defense’ to be
discoverable.”6
      It is Defendant’s position that any documentation or report from the
investigation that occurred close to the time of the allegations, and that resulted in
Defendant’s not being charged with these crimes twenty years ago, is vital and
material to Defendant’s defense. Claxton first reported the sexual abuse, which is
the subject of the allegations at hand, in 2013. Transcripts of the interviews of
Claxton and her mother were provided to Defendant on January 14, 2014. In
addition, the State provided the second report relating to this investigation to
Defendant on March 6, 2014. Defendant, however, now seeks Claxton’s first
report of alleged sexual abuse by Defendant, which allegedly took place between


      6
          Johnson, 27 A.2d at 546.

                                          7
State v. Adgate
Case I.D. 1401000712
July 7, 2014

1985 and 1987.
      The State has conducted an investigation as to whether or not a police report
surrounding this investigation was made. Based on this investigation, the State has
concluded that a police report does not exist detailing the 1985-1987 allegations.
      In Johnson, the defendant argued that the Superior Court erred by not
concluding that the failure of the police to gather clothing from an automobile and
a bedroom violated the defendant’s constitutionally guaranteed right of access to
evidence. In that case, the defendant was charged with possession of a deadly
weapon by a person prohibited. Deberry involved a situation in which the police
failed to preserve evidence that was once in their possession. Conducting a
Deberry analysis helps to answer this question: What relief is appropriate when
the State had or should have had the requested evidence, but that evidence did not
exist when the defense sought its production?
      To that effect, the Delaware Supreme Court has held that such claims must
be analyzed with the following questions: 1) Would the requested material, if
extant in the possession of the State at the time of the defense request, have been
subject to disclosure under Criminal Rule 16 or Brady?; 2) If so, did the
government have a duty to preserve the material?; and 3) If there was a duty to
preserve, was the duty breached, and what consequences should flow from a
breach?7 The third question is determined in accordance with a separate three-part
analysis which considers: 1) the degree of negligence or bad faith involved; 2) the


      7
          Johnson, 27 A.3d 541, 545.

                                          8
State v. Adgate
Case I.D. 1401000712
July 7, 2014

importance of the missing evidence considering the probative value and reliability
of secondary or substitute evidence that remains available; and 3) the sufficiency
of the other evidence produced at the trial to sustain the conviction.8
      First, pursuant to Deberry and Hammond v. State, 569 A.2d 81 (Del. 1989),
the Delaware Supreme Court in Johnson noted that determining whether the
clothes would have been discoverable under Brady would be “fruitless,” since they
were no longer available for examination. The Court moved on to analyze whether
the clothes would have been discoverable under Superior Court Criminal Rule 16
(b), which only requires the defendant to show that an item “may be material to the
preparation of his defense.”9
      In the instant matter, that first report is believed to detail the investigation of
the 1985-1987 allegations of abuse. Defendant, of course, is being charged for
allegations of abuse that occurred between January 1, 1990 and December 1993,
and attempted sexual assault on or between April 1, 1996 and July 1, 1996. Even
though an investigation of the 1985-1987 police report resulted in Defendant not
being charged for those allegations, that outcome still pertained only to the 1985-
1987 allegations, not the later and completely separate allegations of abuse at hand
in this matter.
      Unlike this case, Johnson involved missing exculpatory evidence that
existed during the incident from which Defendant’s charges stemmed. In this case,


      8
          Id. at 546.
      9
          Johnson, 27 A.3d at 546.

                                           9
State v. Adgate
Case I.D. 1401000712
July 7, 2014

there are two alleged incidents of abuse, but Defendant’s charges stem only from
the second incident. The first report of abuse detailing incidents occurring between
1985 to 1987 is not directly material to the allegations at hand.
      Second, the Court in Johnson declined to prescribe the exact procedures that
law enforcement agencies must follow to fulfill their duty of preserving evidence.
However, the Court held that agencies should create rules for gathering and
preserving evidence that are broad enough to encompass “any material that could
be favorable to a defense.”10 In this case, the first report detailed the same kinds of
charges of abuse being brought against Defendant now. An investigation of the
first report resulted in Defendant’s not being charged for the alleged sexual abuse.
Hence, the first report could be considered exculpatory in nature,11 and could have
potentially been favorable to Defendant’s defense. Even though the first report
does not directly concern the matter at hand, the government had a general duty to
preserve the first report.
      Third, this Court analyzes whether the duty to preserve the first report was
breached, and what consequences should flow from the breach, using Deberry’s
three-part analysis in this matter. The State has informed counsel that the first
report surrounding the investigation of alleged abuse between 1985 and 1987 does
not exist. Thus, the police either failed to create or failed to preserve any first
report. With regard to the degree of bad faith that was involved in the failure of the


      10
           Johnson, 27 A.3d at 547.
      11
           Id. at 549.

                                           10
State v. Adgate
Case I.D. 1401000712
July 7, 2014

State to preserve the first report, mere negligence will suffice to satisfy this
prong.12 At this juncture, there is no way of knowing why the first report was not
created or preserved. The failure does suggest some degree of negligence by the
State, satisfying this third prong.
      Fourth, the Court considers the importance of the missing first report in
light of the probative value and reliability of secondary evidence available.
Defendant argues that his defense will be based upon the credibility of Claxton,
making a report of the much earlier incident important. That circumstance may be
emphasized in light of the limited secondary evidence available. Of course, the
first report is irrelevant to the actual allegations at hand. Defendant is not charged
with abuse from 1985 to 1987. Defendant is charged with the abuse that took place
between January 1, 1990 and December 31, 1993, and an attempted sexual assault
on or between April 1, 1996 and July 1, 1996. The State has provided Defendant
with all discoverable material relating to those charges. Nevertheless, Claxton’s
credibility over twenty years ago may have some materiality to her alleged lack of
credibility years later in this completely different set of alleged incidents of abuse.
Therefore, in light of these facts, Deberry does apply. The police will be permitted
to explain in testimony why the first report was either not made or not preserved.
      Regardless, an instruction to the jury will be given, recognizing the peculiar
circumstances of this case, consistent with the mandates of Lolly v. State, 611
A.2d 956 at footnote 6 page 962 (Del. 1992).


      12
           Id. at 547.

                                           11
State v. Adgate
Case I.D. 1401000712
July 7, 2014

         The following is the instruction presently proposed by the Court. The exact
text of the instruction to be given to the jury may be argued by counsel prior to
trial.
               “In this case, the Court has determined that the State failed
               to create or to preserve certain evidence, which is material
               to the defense. The failure of the State to create or preserve
               such evidence entitles the Defendant to an inference that,
               if such evidence were available at trial, it would be
               exculpatory. This means that, for purposes of deciding this
               case, you are to assume that the missing evidence, had it
               been created or preserved, would not have incriminated the
               Defendant, but would have been favorable to his assertion
               of not guilty.

               This inference does not necessarily establish the
               Defendant’s innocense. If there is other evidence presented
               which establishes the issue to which the missing evidence
               pertains, you must weigh that evidence along with this
               inference.

               Hence, despite this inference concerning missing evidence,
               if you conclude after examining all of the evidence that the
               State has proven beyond a reasonable doubt all of the
               elements of the offenses charged, you would be justified in
               returning a verdict of guilty.”

                                    CONCLUSION
         For the foregoing reasons, Defendant’s Motion to Dismiss is DENIED.
Defendant’s Request for Bill of Particulars is DENIED. Defendant’s Motion for a
Deberry or Lolly instruction to the jury is GRANTED.


                                            12
State v. Adgate
Case I.D. 1401000712
July 7, 2014

      IT IS SO ORDERED.
                             /s/ Robert B. Young
                                        J.

RBY/lmc
oc: Prothonotary
cc: Counsel
     Opinion Distribution
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