IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE

Vv.
PRESTON WARD, Cr. ID. No. 1806006562

Defendant.

4a ae ae a a

Submitted: September 4, 2019
Decided: November 19, 2019

On Defendant’s Motion for a New Trial
DENIED

ORDER

Defendant was charged with one count of Sexual Abuse of a Child by a
Person in a Position of Trust.! Defendant was indicted by a grand jury on August
13, 2018. Trial began on July 16, 2019, and ended on July 18, 2019. The jury
found Defendant guilty. Defendant filed a Motion for a New Trial on July 25,

2019, and the State filed a response in opposition on August 30, 2019.

 

11 Del. C. § 778A.
STANDARD OF REVIEW

Superior Court Criminal Rule 33 authorizes the Court to grant a new trial

upon motion by the defendant “if required in the interest of justice.”?

Viewing the
evidence in the light most favorable to the State,’ a motion for a new trial will not
be granted “if there was some probative evidence upon which a verdict of guilt

could reasonably be based.”* The Court must refrain from granting the motion

unless the verdict “appears to be against the great weight of the evidence.”°
ANALYSIS

In support of his Motion for a New Trial, Defendant alleges: (1)
prosecutorial misconduct; (2) the verdict is against the great weight of the

evidence; and (3) the victim recanted.
Prosecutorial Misconduct

Defendant alleges that the State misrepresented facts during closing
argument, and during trial improperly introduced into evidence a recorded
interview. Defendant did not timely object to either the alleged improper

statements or the admission of the recorded interview.

 

2 SUPER. CT. CRIM. R. 33.

3 State v. Rebarchak, 2002 WL 1587855, at *1 (Del. Super.) (citing Hutchins v. State, 153 A.2d
204, 206 (Del. 1959)).

* State v. Pardo, 2015 WL 6945310, at *3 (Del. Super.).

> Id. at *3.
When a defendant fails to make a timely objection, the Court will apply the
plain error standard.° Plain error review is “limited to material defects which are
apparent on the face of the record; which are basic, serious and fundamental in
their character, and which clearly deprive an accused of a substantial right or
which clearly show manifest injustice.”’ The Court first examines “the record de
novo to determine whether prosecutorial misconduct occurred.”® The Court then
applies the Wainwright standard under which “[t]he error complained of must be
so clearly prejudicial to substantial rights [of the defendant] as to jeopardize the
fairness an integrity of the trial process.” If the Court finds plain error, then the

Court must reverse. !°

Closing Statement

Defendant asserts that the State falsely represented that the victim recanted
only recently. The State responds that it did not misrepresent the victim’s

testimony.

The State asserts that the victim and her mother did not recant because

neither has claimed that their June 10, 2018 statements were false. The State

 

® Morales vy. State, 133 A.3d 527, 529 (Del. 2016); see also Spence v. State, 129 A.3d 212, 226
(Del. 2015); Baker v. State, 906 A.2d 139, 150 (Del. 2006).

7 Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).

8 Baker, 906 A.2d at 150; see also Morales, 133 A.3d at 530.

? Wainwright, 504 A.2d at 1100.

10 Baker, 906 A.2d at 150.
further argues that the timing of the alleged recantation is not a material fact that

would change the outcome of the trial.

During closing arguments, the State noted the time between the victim’s
initial statement and the victim’s testimony at trial and suggested potential reasons
for a discrepancy.!! The Court finds that Defendant fails to establish that the
timing was material. Thus, there is no plain error in the State’s representations of

the victim’s changing testimony.

The Defendant also alleges that the State misled the jury by referring to
DNA evidence as “seminal fluid.” The State responds that it did not incorrectly
identify the DNA sample taken from the victim’s bedsheet. The State asserts that,
although the analyst was unable to identify the sample with 100% certainty,
“djuring summation, a prosecutor may argue an inference which could be drawn
from the evidence.”!? The State argues that its closing argument properly

represented the analyst’s testimony. The State referred to the evidence as follows:

But then we had one more thing we talked about, which was the fitted
sheet, the fitted sheet around Alex's bed. The fitted sheet was positive
for male DNA. Again, don't know who at this point, right, this is the
first step of the process, but she sees male DNA here so Ms. Kleiser
takes a sample, and she's going to take that sample for further testing.

 

"| Transcript of Trial at 106 (Jul. 18, 2019) (“Members of the jury, common sense will tell you
that a person's memory is better closer in time to an event. It's been over a year. A lot has
happened since then. But we're talking about what happened on June 10th, 2018....”).

2 Dailey v. State, 956 A.2d 1191, 1195 (Del. 2008) (quoting Daniels v. State, 856 A.2d 1008,
1011 (Del. 2004)) (internal quotations omitted).

4
What was the other important thing about that test, it was positive for
seminal fluid. Now, granted she said that the seminal fluid test could be
a false, it could -- like, for numerous reasons, but she tested it anyway
because of the strong reaction that it had."

The DNA analyst testified that the Brentamine test is the preliminary test
used to identify possible semen stains.'* The analyst testified that the DNA found
on the victim’s bedsheet had a strong positive reaction to the Brentamine test.’°
During closing arguments, the State referred to this positive reaction. The State
also clarified that the DNA might not be seminal fluid despite the positive
Brentamine test reaction. The State did not specifically refer to the DNA as
“seminal fluid” during closing argument. The Court finds that the State did not
commit plain error when it accurately represented witness testimony as to DNA

analyst test results for seminal fluid.
Recorded Interview

The Defendant contends that the State improperly introduced a recorded
interview of the victim. The Defendant does not explain his legal basis for his

argument.

 

3 Transcript of Trial at 86 (Jul. 18, 2019).
'4 Td. at 57 & 65.
'S Td. at 57.
The State cites Section 3507 of Delaware Code Title 11. Section 3507
permits admission of prior statements as affirmative evidence.'° The State notes
that this interview was admitted without objection because the parties had agreed,
prior to trial, upon redactions to the recording.'’ The State also points out that the

victim testified at trial, and was subject to cross examination.

The recorded interview was a prior statement of the victim properly admitted
as affirmative evidence pursuant to 11 Del. C. § 3507. The Court finds no plain

error on the face of the record demonstrating prosecutorial misconduct.
Great Weight of the Evidence

Defendant asserts that the verdict is against the great weight of the evidence
because “[t]here was no direct evidence that produced any indication that the
[D]efendant committed any crime.”'® Defendant contends that the DNA evidence

collected from the victim’s genitals is “inflin]itesimal and unidentifiable,”!? and

 

'6 See 11 Del. C. § 3507(a) (“In a criminal prosecution, the voluntary out-of-court prior statement
of a witness who is present and subject to cross-examination may be used as affirmative
evidence with substantive independent testimonial value.”).

'7 The record will show that Defense counsel only objected on the grounds that the redacted
video had poor audio quality. Upon resolution of the issue regarding audio quality, the recording
was admitted pursuant to Section 3507 without objection.

'8 Def.’s Mot. J 2 (Jul. 30, 2019).

19 Id.
thus cannot show sexual contact between the victim and Defendant, which is an

element of the crime.”°

The State responds that “‘a rational trier of fact could find beyond a
reasonable doubt the existence of every element of the offense charged.””! The
State also correctly notes that “Delaware law allows the State to convict an
individual solely on circumstantial evidence.””* The State lists the following

evidence in support of its argument:

(1) Defendant was found in bed with the victim with the door closed on
June 10, 2018, a fact Defendant did not contest;

(2) The victim, shortly thereafter during the sexual assault examination,
confirmed that Defendant made contact with her genitals that morning,
and on other occasions;

(3) The victim made the same statements regarding Defendant’s contact
with her genitals to the CAC forensic interviewer;

(4) The DNA evidence on the victim’s genitals was confirmed by the
analyst to be male; and the analyst testified that presence of male DNA

on female genitals is abnormal; and

 

201] Del. C. § 778A.
*1 Bodan vy. State, 1992 WL 401567, at *1 (Del.) (emphasis added).
2 Vincent v. State, 996 A.2d 777, 779 (Del. 2010).

7
(5) Defendant’s DNA was present on the victim’s bedsheet.

The question the Court must answer is whether “there was some probative
evidence upon which a verdict of guilt could reasonably be based.”*? The Court
finds that there was sufficient evidence for the jury to find Defendant made sexual
contact with the victim. Thus, there was sufficient evidence for the jury to find
Defendant guilty of one count of Sexual Abuse of a Child by a Person in a Position

of Trust.
Victim Recanted

The Defendant argues that the Court must grant a new trial because the
victim recanted. The State reiterates its position that the victim did not recant.
However, the State argues that, even if the victim recanted, “[a] motion for a new

trial on the basis of recantation is generally viewed with suspicion.”

The jury is responsible for determining witness credibility.” The victim

testified, and was subject to cross-examination. The jury also watched the victim’s

 

3 State v. Pardo, 2015 WL 6945310, at *3 (Del. Super.) (citing Rebarchak, 2002 WL 1587855,
at *1); see also State v. Biter, 119 A.2d 894, 898 (Del. Super. 1955); Price v. State, 1996 WL
526013 (Del.)).

4 State v. Vincent, 1995 WL 109098, at *5 (Del. Super.).

5 Bradley v. State, 193 A.3d 734, 738 (Del. 2018) (“On appeal, this Court defers to the jury's
factual findings because the jury is the sole trier of fact responsible for determining witness
credibility, resolving conflicts in testimony and for drawing any inferences from the proven
facts’’) (internal citations omitted).
recorded interview. Thus, the jury was aware of the victim’s changing story. The

jury nevertheless found the Defendant guilty.

The Court finds that under the facts and circumstances in this case, the
victim’s changing statements do not warrant a new trial. The Court finds that the
jury was aware of, and had the opportunity to consider, the victim’s changing
statements in light of all other evidence. The Court also notes that Delaware courts
consistently have found that child sexual abuse victim recantations are inherently

unreliable by nature.”°
CONCLUSION

The Court finds that Defendant fails to establish that there is plain error in
the State’s representations of the victim’s changing testimony. The Court finds
that the State did not commit plain error when it accurately represented witness
testimony as to DNA analyst test results for seminal fluid. The Court finds that the
recorded interview was a prior statement of the victim, properly admitted as
affirmative evidence pursuant to Delaware Code Title 11, Section 3507.

Therefore, the Court finds no plain error on the face of the record demonstrating

prosecutorial misconduct.

 

26 State y. Vincent, 1995 WL 109098, at *6 (citing cases where Delaware courts denied motions
based on victim recantation); see also State v. Russo, 700 A.2d 161 (Del. Super. 1996) (“[A]
recantation is received with great caution in a sexual misconduct case when the recanting witness
is a relative of the defendant.”).
The Court finds that there was sufficient evidence for the jury to find the
Defendant made sexual contact with the victim. Therefore, there was sufficient
evidence for the jury to find Defendant guilty of one count of Sexual Abuse of a

Child by a Person in a Position of Trust.

The Court finds that under the facts and circumstances in this case, the
victim’s changing statements do not warrant a new trial. The Court finds that the
jury was aware of, and had the opportunity to consider, the victim’s credibility and
changing statements in light of all the other evidence. The Court also notes that
Delaware courts have consistently found that child sexual abuse victim

recantations are inherently unreliable by nature.?’

THEREFORE, the Court will not overturn Defendant’s conviction, and

Defendant’s Motion for a New Trial is hereby DENIED.

IT IS SO ORDERED. HU: ;

The rice arable ule M. Johnston

 

27 State v. Vincent, 1995 WL 109098, at *6 (citing cases where Delaware courts denied motions
based on victim recantation); see also State v. Russo, 700 A.2d 161 (Del. Super. 1996) (“[A]
recantation is received with great caution in a sexual misconduct case when the recanting witness
is a relative of the defendant.”).

10
