         IN THE SUPREME COURT OF THE STATE OF DELAWARE


MARISA CATHELL,                             §
                                            §     No. 353, 2019
       Defendant Below,                     §
       Appellant,                           §
                                            §
              v.                            §     Court Below: Superior Court
                                            §     of the State of Delaware
STATE OF DELAWARE,                          §
                                            §     Cr. ID No. 1807020675(N)
       Plaintiff Below,                     §
       Appellee.                            §

                             Submitted: February 19, 2020
                               Decided: March 9, 2020
                              Corrected: March 10, 2020

Before, SEITZ, Chief Justice; VALIHURA, and MONTGOMERY-REEVES
Justices.

                                       ORDER

      This 10th day of March, 2020, upon consideration of the parties’ briefs and the

record below, it appears to the Court that:

      (1) The appellant, Marisa Cathell,1 appeals her Superior Court criminal

conviction for Second-Degree Assault of a minor. A jury convicted Cathell, after a

four-day trial in March of 2019, of physically abusing a four-year-old child in July




1
 The Opening Brief identifies the appellant as “Marissa Cathell,” but the Notice of Appeal,
Superior Court materials, and Answering Brief all refer to her as “Marisa Cathell.” We
adopt the Superior Court’s spelling.
of 2018. 2 On August 8, 2019, Cathell filed a timely notice of appeal contesting the

conviction. This Court, having reviewed the record and the briefs from both parties,

concludes that neither of Cathell’s arguments are meritorious and affirms the

judgment of the Superior Court.

      (2) During the summer of 2018, Stefano Siaenni attempted to reestablish a

relationship with his four-year-old daughter. 3 The child lived with her grandmother,

Valerie Miller, who had been the child’s guardian since she was an infant.4 On July

21, 2018, Siaenni picked up the child from Miller’s home for an overnight stay. 5

Marisa Cathell, Siaenni’s girlfriend, also stayed with him that weekend. 6 At the

time, the child was not potty trained; Siaenni expressed concern about this and

planned to potty train her during the overnight stay. 7 That night, Siaenni placed the

child on the toilet for about an hour in an attempt to have her use the bathroom. 8

      (3) Around four o’clock the following day, Siaenni and Cathell drove the

child back to Miller’s house, but Miller was not home. 9 Siaenni then drove to the




2
  App. to Opening Br. i-iv (“A__” hereafter).
3
  Siaenni spent approximately four years in federal prison for drug related charges.
A423, 427.
4
  A138-39.
5
  A143
6
  A444.
7
  A445.
8
  A446.
9
  A452.

                                        2
Wawa to “figure things out, recuperate.”10 Cathell took the child into the bathroom

in Wawa for approximately thirty to forty minutes. 11 During their time in the

bathroom, a Wawa employee, Johan Holley, went to change the soap in the women’s

bathroom. 12 Holley did not enter the bathroom because it was occupied. He did

however hear what he believed to be a woman disciplining a child. 13

      (4) Holley testified that he believed the woman was spanking the child based

on the sounds he heard. He stated that he also heard a woman’s voice and a child

crying.14 Holley testified that a second round of “beatings” started soon after the

first, with a woman yelling “[y]ou’re not the boss, you’re going to listen to me.” 15

Holley informed a female manager that something was occurring in the women’s

bathroom and someone needed to go inside to check it out.16 The manager entered

the bathroom and asked if everything was ok, to which Cathell responded “yes

everything is fine.”17 Shortly after the manager left, Holley testified that a third

round of beatings occurred, with the woman claiming that she was going to leave

the child behind.18



10
   A453.
11
   A457.
12
   A310.
13
   Id.
14
   A312.
15
   A314.
16
   A317.
17
   A318.
18
   A321.

                                        3
      (5) While this was going on, Siaenni remained outside with the car, talking

to his father on the phone. 19 After approximately thirty minutes, Siaenni called

Cathell to see how long they would be, and Cathell responded they were about to

come out. 20 Siaenni testified that Cathell seemed agitated on the phone and stated

that the child was being stubborn.21 After another ten minutes, Siaenni went inside

and knocked on the bathroom door.22 When Cathell and the child exited the

bathroom, Siaenni stated that they looked normal. 23

      (6) When they pulled out of the Wawa, Cathell stated that she noticed the

child “scratching . . . in her lower area.”24 Cathell checked the child and drew

attention to an area that Siaenni believed was a rash. 25 At the urging of Cathell, the

child told Siaenni that “[Jamie] put their finger up her vagina . . . and told her not to

tell anybody.” 26 When Siaenni arrived back at Miller’s house he asked Miller about

the rash and anyone named Jamie. 27 Neither Siaenni, Cathell, nor Miller knew who




19
   A457.
20
   A457-58.
21
   A458-59.
22
   Id.
23
   A466.
24
   A480.
25
   A482.
26
   A470.
27
   A486.

                                          4
Jamie was; however, the child stated that Jamie was a friend of Eric, a man Miller

had dated previously. 28

      (7) After Siaenni and Cathell left, Miller examined the child, found bruising,

and took the child to the hospital where she was examined by a forensic nurse. 29 The

child then went to the Children’s Advocacy Center at A.I. duPont Hospital for

Children, where the child met with a forensic interviewer. 30 During the taped

forensic interview, the child disclosed that Cathell had hurt her. 31 Dr. Alan DeJong,

a child abuse expert, also examined the child’s file.32 Dr. DeJong concluded that the

child’s injuries were not the result of an accident but were intentionally inflicted.33

Thereafter, the State charged Cathell with Second-Degree Assault for injuring the

child, and a jury convicted Cathell of the same. 34

      (8) On appeal, Cathell argues that the Superior Court abused its discretion by

(a) refusing to allow the defense to question Valerie Miller about previous

investigations of Miller by Delaware Family Services and (b) allowing the child to

testify. 35 Limitations on the examination of witnesses and determinations of witness




28
   A457.
29
   A154, 175-76, 358, 363, 457.
30
   A88, 98.
31
   Answering Br. 6.
32
   A232-38.
33
   A285-86.
34
   Ai-iv.
35
   Opening Br. 3.

                                         5
competency are reviewed by this Court for abuse of discretion.36 An abuse of

discretion occurs when a trial judge “exceeds the bounds of reason in view of the

circumstances and has so ignored recognized rules of law or practice so as to produce

injustice.” 37 Here, neither of Cathell’s arguments support a finding of abuse of

discretion.

      (9) Cathell argues that the Superior Court abused its discretion by prohibiting

the defense from cross-examining Miller about previous Delaware Family Services

(“DFS”) investigations occurring in 2009 and 2011.38 The record is unclear as to

the nature of the 2009 allegation, but the State represented that the allegation was

unsubstantiated.39 The 2011 investigation followed an accusation of neglect.40 DFS

investigated but did not substantiate the claim. 41 The Superior Court denied Cathell

the opportunity to question Miller about these two investigations, ruling that they

were irrelevant.42




36
   Jones v. State, 940 A.2d 1, 15 (Del. 2007) (citing Johnson v. State, 878 A.2d 422, 425
(Del. 2005); Hardin v. State, 844 A.2d 982, 987 (Del. 2004); Williamson v. State, 707 A.2d
350, 359 (Del. 1998)); Ricketts v. State, 488 A.2d 856, 857 (Del. 1985) (citing Thompson
v. State, 399 A.2d 194, 198-99 (Del. 1979)).
37
   State v. Wright, 131 A.3d 310, 320 (Del. 2016) (quoting Charbonneau v. State, 904 A.2d
295, 304 (Del. 2006)).
38
   Opening Br. at 10.
39
   Answering Br. 9; A213.
40
   A209-13.
41
   Id.
42
   A216-17.

                                          6
      (10) Delaware Rule of Evidence 401 states that evidence is relevant if “(a) it

has a tendency to make a fact more or less probable than it would be without the

evidence; and (b) the fact is of consequence in determining the action.”43

Furthermore, Rule 402 states “[i]rrelevant evidence is not admissible.”44 Here,

Cathell argues that the investigations were relevant and sought to introduce them to

show that Miller had a reason to “lie and/or put the blame on [Cathell] as she did not

want the focus to be on her” and that Miller was biased against Cathell.45 Cathell’s

arguments fail.

      (11) First, the prior investigations into Miller occurred at least seven years

before this incident, were unsubstantiated, did not involve any allegations of

physical abuse, and did not involve the same child. They have long been resolved,

and Miller faces no threat of reprisal from those allegations. Further, introducing

the years-old unsubstantiated neglect allegations would not make it more probable

that Miller overreacted and “initiate[d] the investigation” into Cathell. 46 Moreover,

Miller’s history with DFS has no bearing on the contested issue of whether the

alleged abuse occurred. As the Superior Court noted, Miller was “not a witness to

what happened,” and her interactions with DFS would not make it more or less likely



43
   D.R.E. 401.
44
   D.R.E. 402.
45
   Opening Br. at 11; A213.
46
   A213-15.

                                        7
that Cathell abused the child in the Wawa restroom. 47 Thus, the Superior Court did

not abuse its discretion in holding that the investigations were irrelevant to whether

Cathell abused the child. 48

      (12) Second, further questioning of Miller was unnecessary to prove bias,

which was already clear at trial. Miller was openly hostile toward Cathell in her

testimony and during cross-examination. As the Superior Court put it:

              [I]t . . . could not be more clear that this witness has not
              just animosity to the defendant. But [Miller’s] demeanor
              on the stand revealed her also to be someone who arguably
              overreacted to the situation and is very hostile to the
              defendant. And I don’t think there’s any question that
              from the beginning of this her motivation was to focus the
              investigation on [Cathell]. . . . So I am not in any way
              convinced that . . . it’s necessary to prove this
              unsubstantiated, unrelated investigation in to demonstrate
              that motive. 49

The Superior Court held that Miller clearly demonstrated her ire towards Cathell.

Under these circumstances, the Superior Court did not abuse its discretion in

excluding this evidence as irrelevant.

      (13) Cathell next argues that the child was not a competent witness and the

Superior Court abused its discretion by letting her testify at trial. Cathell claims that

the child’s testimony was “very sparse” on details of the abuse and included



47
   Id.
48
   A116-17.
49
   A216.

                                          8
inconsistent statements. Because of this, Cathell contends that the court failed to

maintain a minimum standard for witness competency. 50

       (14) Delaware Rule of Evidence 601 states that “[e]very person is competent

to be a witness unless these rules provide otherwise.”51 In Ricketts v. State, this

Court noted that Rule 601 closely mirrors Federal Rule of Evidence 601 and found

the Advisory Committee’s Note on Federal Rule 601 helpful in interpreting the

Delaware rule. 52 The note states in part that “[d]iscretion is regularly exercised in

favor of allowing testimony. A witness wholly without capacity is difficult to

imagine. The question is one particularly suited to the jury as one of weight and

credibility, subject to judicial authority to review the sufficiency of the evidence.”53

A child is presumed competent to testify once the trial judge is satisfied by voir dire

that the child understood her obligation to tell the truth and the difference between

truth and falsehood.54

       (15) Here, the Superior Court conducted an extensive voir dire with the child

before allowing her to testify to determine her understanding of the truth and lies:

                Q. And so if I say to you – what color is my hair?
                A. Black.

50
   Opening Br. at 15, 17.
51
   Ricketts, 488 A.2d at 857 n.1 (“The only rules that specifically preclude a witness from
testifying are those that prevent a presiding judge or jury member from testifying at a trial
on which they are sitting. D.R.E. 605, 606.”).
52
   488 A.2d at 857.
53
   Fed. R. Evid. 601.
54
   Ricketts, 488 A.2d at 857.

                                            9
               Q. And if I say to you no, I have purple hair, would that
                  be the truth or a lie?
               A. A lie.
               Q. Ok. And if I say to you, you have very pretty brown
                  hair, would that be the truth or a lie?
               A. The truth.
               Q. The truth. Okay. And if I say to you there’s a
                  dinosaur sitting in that chair over there, would that
                  be the truth or a lie?
               A. A lie because there’s no dinosaur.
                                           ***
               Q. So which is better telling the truth or telling a lie?
               A. The truth.
                                           ***
               Q. So is it good to tell the truth or bad to tell the truth?
               A. It’s good to tell the truth.
               Q. Is it bad to tell a lie or good to tell a lie?
               A. It’s a bad thing to tell a lie.55

Based on this colloquy, the court found that the child understood the difference

between the truth and a lie; she understood that she needed to tell the truth; and she

promised that she would tell the truth.56 After reviewing the Superior Court’s voir

dire with the child, it is clear that the court did not abuse its discretion under Rule

601 by allowing the child to testify and allowing the jury to determine the weight

and credibility it would place on the testimony.

        (16) As Cathell failed to show any abuse of discretion by the Superior Court

when it denied examination of Miller concerning prior DFS investigations or when

it permitted the child to testify, Cathell’s appeal fails.


55
     A71-72.
56
     A86-87.

                                          10
     NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

                             BY THE COURT:

                             /s/ Tamika R. Montgomery-Reeves
                                         Justice




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