       IN THE SUPREME COURT OF THE STATE OF DELAWARE


CHRISTINA OZDEMIR,                   §
                                     §     No. 500, 2013
            Defendant Below,         §
            Appellant,               §
                                     §     Court Below: Superior Court
            v.                       §     of the State of Delaware,
                                     §     in and for New Castle County
STATE OF DELAWARE,                   §
                                     §     Cr. I.D. No. 1303015680
            Plaintiff Below,         §
            Appellee.                §

                            Submitted: May 14, 2014
                             Decided: July 23, 2014
                           Revised: September 8, 2014

Before HOLLAND, BERGER and RIDGELY, Justices.

Upon appeal from the Superior Court. REVERSED.

Nicole M. Walker, Esquire (argued), Wilmington, Delaware, for Appellant.

Karen V. Sullivan, Esquire (argued), Department of Justice, Wilmington, Delaware,
for Appellee.


BERGER, Justice:
      In this appeal we consider whether Family Court records may be used in the

Superior Court to prove that appellant committed the offense of interference with

custody. The disputed records include the Family Court’s factual findings about

appellant’s conduct in the custody dispute that led to the criminal charges. The

trial court admitted the records, without regard to their content, because they were

certified court documents. We hold that, without redaction, the Family Court

records were inadmissible because they include hearsay. Accordingly, we reverse.

              FACTUAL AND PROCEDURAL BACKGROUND

      Christina Ozdemir and Douglas Riley began a relationship in 2005. Ozdemir

was living in New York at the time, but she moved to Delaware to live with Riley

shortly after they began seeing each other. The couple had a son in 2007 and a

daughter in early 2009. In June 2009, Ozdemir told Riley that she was going to

New York for two weeks with the children. She and the children never returned.

Riley filed a petition for custody in Delaware. In response, Ozdemir filed petitions

for custody and for a protective order in New York. In November 2009, the

Delaware Family Court and the New York court held a telephonic joint hearing,

during which Ozdemir and Riley were present.          The courts determined that

Delaware had jurisdiction over the custody matter. Following the joint hearing, the

Family Court entered an interim custody order awarding Ozdemir sole legal

custody and primary residency of the children. Riley was given limited visitation



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rights. Ozdemir failed to bring the children to some of the scheduled visits, and the

Family Court found her in contempt.

       In October 2010, the Family Court entered a temporary custody order

awarding Ozdemir and Riley joint legal custody and shared residency on an

alternating monthly basis. The trial court held a review hearing in April 2011, but

Ozdemir failed to attend. At the review hearing, the Family Court entered another

order (“the April 2011 Order”),1 awarding Riley sole legal custody and primary

residency of the children. Riley attempted to enforce the April 2011 Order in New

York, but the New York police did not help him.

       In March 2012, the Family Court appointed a guardian ad litem to represent

the children’s interests. In January 2013, the Family Court held more hearings.

Ozdemir did not attend. On January 28, 2013, the Family Court ruled: “Based on

Mother’s continual thwarting of Court orders and therapeutic reunification, [the

guardian ad litem’s] recommendations, and Father’s testimony, the Court finds that

it is in the best interests of [the children] to be placed in Father’s care EFFECTIVE

IMMEDIATELY.”2             The court also demanded that Ozdemir appear on

February 18, 2013, with the two children. She did not show up that day, and a

warrant was issued for her arrest. In April 2013, the Federal Marshal’s Fugitive

1
  Appellant’s Appendix at A-9. Ozdemir filed a petition in New York to have the Delaware April
2011 Order modified, but her petition was dismissed on December 12, 2011. That decision was
affirmed by the New York Supreme Court, Appellate Division, on December 12, 2012.
2
  Id. at A-25.

                                              3
Task Force took Ozdemir into custody in Miami, Florida, and she was returned to

Delaware. Her children were found in New York, and brought to Delaware in

May 2013.      Ozdemir was indicted on two counts of felony interference with

custody.3

       At trial, the State offered into evidence five unredacted Family Court orders

(the “Orders”)4 to establish that Riley was entitled to custody of the children, and

that Ozdemir had intentionally withheld the children from him. In addition to the

bottom-line custody rulings, the Orders contained statements by the guardian ad

litem, factual findings by the Family Court, and other statements extremely

prejudicial to Ozdemir. For example, in reciting the history of the litigation, the

Family Court stated, “Mother has exhibited a pattern of disregard for this Court’s

Orders . . . .”5 In another Order, the Family Court described the guardian ad

litem’s testimony and recommendations:

              [The guardian ad litem] stated that since the last hearing,
              there has been no meaningful progress towards
              therapeutic reunification. [The guardian ad litem] faults
              Mother for the lack of progress, as she has willfully
              obstructed any progress that could have been made.


                                    *      *       *



3
  11 Del. C. § 785.
4
  See Appellant’s Exhibits 1–5; see also Appellant’s Appendix at A-5–33.
5
  Appellant’s Appendix at A-8.

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                 Based on this history of defiance, the Court is satisfied
                 that Mother has disregarded numerous Court mandates.
                 The Court gave Mother numerous opportunities to
                 comply with Court orders, but it can no longer allow
                 Mother to place herself above the law . . . .6

          Ozdemir objected to the admission of the Orders, but the Superior Court

overruled her objections and allowed them into evidence without redaction. Other

than the Orders, Riley provided most of the State’s evidence at trial. At the close

of the State’s case, Ozdemir moved for judgment of acquittal. The Superior Court

granted her motion as to the two counts of felony interference with custody, but the

case went to the jury on two counts of misdemeanor interference with custody.

The jury found Ozdemir guilty on both counts. This appeal followed.

                                          DISCUSSION

          Ozdemir claims that the Superior Court committed reversible error by

admitting the unredacted Orders because they contain hearsay within hearsay, and

irrelevant and inflammatory statements by the Family Court. She also argues that

admission of the Orders violated her Confrontation Clause rights under the Sixth

Amendment to the United States Constitution.7 We conclude that the unredacted

Orders contain inadmissible hearsay that was highly prejudicial to Ozdemir.




6
    Id. at A-24, 26.
7
    Our rulings on the evidentiary challenges make it unnecessary to reach the constitutional claim.

                                                  5
              I. Hearsay Within Hearsay

       Delaware Rule of Evidence 803(8) provides a hearsay exception for

“records, reports, statements, or data compilation in any form” of a public agency

recording “activities or matters observed pursuant to duty imposed by law.”8

In Trawick v. State,9 this Court addressed the admissibility of a Maryland court

record offered in support of a motion to declare the defendant an habitual offender.

We held that the record was admissible as a public record because “[a] certified

court record of a conviction is a record from a public agency,” and “[i]t is

undisputed that sentencing a defendant is a duty imposed on the courts by law.”10

Further, the Court noted that the Maryland court record was self-authenticating

because it was a certified public document under court seal.

       Ozdemir objected to the admission of the Orders at trial, claiming that “some

portions of those documents contain hearsay and findings of fact that [she is] not

able to attack or question.”11 The trial court, apparently relying on Trawick, ruled

that there were no hearsay concerns because the Orders were self-authenticating,

public records that contain the Court seal. That analysis did not go far enough.

Nothing in Trawick suggests that a public record is somehow immune from the




8
  D.R.E. 803(8).
9
  845 A.2d 505 (Del. 2004).
10
   Id. at 509.
11
   Appellant’s Appendix at A-36.

                                          6
remaining rules of evidence. A document that otherwise qualifies as a public

record may be inadmissible for other reasons.12

       Under D.R.E. 805, “[h]earsay included within hearsay is not excluded under

the hearsay rule if each part of the combined statements conforms with an

exception to the hearsay rule.”13 In other words, “[i]f double hearsay is being

offered into evidence, each aspect must qualify independently as an exception to

the hearsay rule.”14 The Orders include double hearsay that is not independently

admissible:

       •       “[The guardian ad litem] requested basic information
               from Mother about [the children]. Mother failed to
               provide [her] with the requested information.”
       •       “[The guardian ad litem] stated that Mother cancelled a
               therapeutic visitation session with Dr. Franklin less than
               an hour before it was scheduled to begin. Moreover, [the
               guardian ad litem] reported to the Court on numerous
               occasions that Mother would fail to respond to her phone
               calls and emails.”
       •       “[The guardian ad litem] faults Mother for the lack of
               progress [towards therapeutic reunification], as she has
               willfully obstructed any progress that could have been
               made.”15



12
   We note that not all public records fall within the D.R.E. 803(8) hearsay exception. Specifically,
“factual findings offered by the government in a criminal cases” are excluded. D.R.E.803(8)(C).
Arguably, exclusion (C) is applicable—the Orders were offered by the State in a criminal case, and
they contain factual findings made by the Family Court. But the parties did not address this point,
so we will not rule on it.
13
   D.R.E. 805.
14
   Demby v. State, 695 A.2d 1152, 1162 (Del. 1997) (emphasis in original).
15
   Appellant’s Appendix at A-22–24. For additional examples of statements made by the guardian
ad litem, see Appellant’s Op. Br. at 12–13.

                                                 7
         As a result, although the Orders may be public records, they either should

have been excluded, or the inadmissible portions of the records should have been

redacted.

                 II. Irrelevant and Inflammatory Factual Findings

         Ozdemir also complains that the Orders should have been excluded because

they contain findings of fact that are irrelevant and highly inflammatory. Because

Ozdemir did not raise these issues at trial, this Court reviews for plain error, which

is error so “clearly prejudicial to [a defendant’s] substantial rights as to jeopardize

the very fairness and integrity of the trial process.”16 We agree that all but one or

two sentences in the Orders are irrelevant, and that the rest of the content is highly

prejudicial. The trial court’s admission of the Orders, without redaction, was plain

error.

         The offense of interference with custody has three elements. The defendant

(1) must be a relative of a child under the age of 16; (2) must know that he or she

has no legal right to custody of the child; and (3) must take the child from the

child’s lawful custodian with the intent to hold the child for a prolonged period of

time.17 The State introduced the Orders to establish Riley’s custodial rights to the

children, to prove that Ozdemir intentionally withheld the children, and to prove

that she knew that her actions were illegal.

16
     Bullock v. State, 775 A.2d 1043, 1046–47 (Del. 2001).
17
     11 Del. C. § 785.

                                                 8
        The Superior Court admitted the Orders without redaction on the theory that

“[n]othing is extraneous” in another judge’s orders.18 The trial court reasoned that

“you don’t get to relitigate another judge’s decision that hasn’t been appealed and

[] contains facts and your client is involved. . . .”19 The trial court instructed the

jury to “consider the document[s] solely for purposes of custody.”20                          But the

Family Court’s findings of fact, even if not inadmissible hearsay, were made in a

civil case under a lower standard of proof. Moreover, the details about Ozdemir’s

obstreperous behavior and general disregard for the judicial process have no

bearing on the interference with custody charges.

        One Order, for example, was a ten-page Opinion and Order that reviewed

the history of the custody dispute, and held Ozdemir in contempt. The State only

needed to introduce the Family Court’s statement that, “it is in the best interests of

[the children] to be placed in Father’s care EFFECTIVE IMMEDIATELY”21 in

order to prove that Riley had sole custody. Instead, the jury heard the Family

Court judge’s harsh criticism of Ozdemir’s character and conduct:

                    • “Mother has exhibited a pattern of disregard for
                      this Court’s Orders.”22
                    • “Mother has flouted this Court’s authority and
                      its existing and prior orders. She has failed to
18
   Appellant’s Appendix at A-40.
19
   Id. at A-37.
20
   Id. at A-55–57.
21
   Id. at A-25; see also id. at A-9 (“On April 12, 2011, this Court issued an order . . . granting Father
sole legal custody and primary residency of the children.”).
22
   Id. at A-8.

                                                   9
                    promote a relationship between Father and the
                    children. Mother’s credibility was questioned
                    at the first hearing. . . .”23
                  • “Throughout litigation, Mother has engaged in
                    evasive behavior with the Court and with others
                    acting in the interests of [the children].”24
                  • “Mother has kept the children with her on Long
                    Island and thwarted all attempts to reunify [the
                    children with their father].”25

These, and similar statements, have no probative value. They are inflammatory,

and they came from a judge, whose evaluation of Ozdemir would carry significant

weight with the jury. Under the simple balancing test in D.R.E. 403, the Orders’

“probative value is substantially outweighed by the danger of unfair prejudice.”

       Finally, we must reject the State’s argument that the admission of the Orders

was harmless error.        In deciding whether the error was harmless beyond a

reasonable doubt, “[t]he inquiry . . . is not whether, in a trial that occurred without

the error, a guilty verdict would surely have been rendered, but whether the guilty

verdict actually rendered in this trial was unattributable to the error.”26 The State

relied on the Orders, and, to a lesser extent, Riley’s testimony about the contents of

the Orders, to prove its case. Given the Orders’ extremely damaging fact-finding

and conclusions, we are not satisfied that they did not affect the verdict. Thus, the
23
   Id. at A-9.
24
   Id. at A-23.
25
   Id. at A-25.
26
   Wheeler v. State, 36 A.3d 310, 320–21(Del. 2012) (quoting Sullivan v. Louisiana, 508 U.S. 259,
279 (1993)).

                                               10
error in admitting the unredacted Orders was not harmless beyond a reasonable

doubt.

                                 CONCLUSION

         Based on the foregoing, the judgments of conviction are hereby REVERSED

and this matter is REMANDED for further action. Jurisdiction is not retained.




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