IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)

v. ) I.D. No. 1702014791

) 170200465 8
WALTER FERINDEN, )
)
Defendant. )

Submitted: June 4, 2018
Decided: June 4, 2018

Upon Defendant’s Motion for Relr.'ef from Prejudicial Joinder
DENIED

MEMORANDUM OPINION

Jenna R. Milecki, Deputy Attorney General, Attorney for the State of Delaware
Joe Hurley, Esq., Attorney for Walter Ferinden

Rocanelli, J.

Before the Court is a Motion for Relief from Prejudicial Joinder filed by
Defendant Walter Ferinden (“Defendant”). Defendant seeks separate trials for
charges related to two different victims on the grounds that substantial prejudice will
result from continued joinder. The State opposes Defendant’s motion. The Court
heard argument on Defendant’s motion on April 18, 2018, and May l, 2018. This
is the Court’s decision on Defendant’s motion.

FACTUAL AND PROCEDURAL BACKGROUND

In June 2016, the New Castle County Police Department Was asked to assist
in an investigation being conducted by the FBI and New Jersey Detectives into late
reported child sexual abuse. The investigation began When Thomas Leary contacted
police to report that Defendant committed sexual abuse against him in approximately
1990. Leary alleged that the abuse began after he joined Defendant’s hockey team
When Leary was approximately thirteen years old. According to Leary, Defendant
began buying Leary equipment, giving him money, and driving him to and from
hockey practice. Leary alleges that Defendant then began taking Leary on trips in
multiple states, Where they Would stay in hotel rooms. Leary alleges that he and
Defendant Would share a bed during these trips, and that Leary Would often Wake up
to Defendant thrusting against Leary’s side.

Leary claims that two incidents of abuse occurred in Delaware. First, Leary

alleges that Defendant placed his hands down Leary’s pants and attempted to touch

Leary while the two shared a bed at a Howard Johnson, but Leary pushed his hand
away. Second, Leary claims that Defendant placed his hand down Leary’s pants and
masturbated Leary in the parking lot an ice rink in Wilmington. Leary alleges that
the incidents of abuse occurred during 1990 and 1991.

During his interview with the investigators, Leary identified Bemard Hoy as
another potential victim of Defendant. The investigators contacted Hoy, who
claimed that Defendant did commit sexual abuse against Hot when he was a child.
Like Leary, Hoy clams that the abuse began after he joined Defendant’s hockey team
when Hoy was about ten or eleven years old. Hoy claims that Defendant began
buying Hoy things and driving him to and from hockey practice. Hoy claims that
Defendant then began taking Hoy on trips across multiple states, during which
Defendant would share a bed with Hoy. Hoy alleges that, during these trips, he
would often wake up to Defendant thrusting against his side.

Hoy also claims that incidents of abuse occurred in Delaware. According to
Hoy, Defendant lived with Hoy’s mother for a period of time at her home in
Delaware. Hoy alleges that Defendant engaged in similar abuse at Hoy’s mother’s
home in Delaware. Hoy alleges that the abuse took place in or about 1990.

Defendant was indicted on June 26, 2017 on nine counts of Unlawful Sexual

Contact Second Degree. Counts I through VII relate to Defendant’S alleged sexual

contact with Bemard Hoy. Counts VIII and IX relate to Defendant’s alleged sexual
contact with Thomas Leary,

Defendant now seeks to sever the charges relating to Bemard Hoy from the
charges relating to Thomas Leary on the grounds that substantial prejudice would
result from continued joinder because the jury will cumulate the evidence and infer
a general criminal disposition to find guilt. In addition, Defendant argues that, if
there were separate trials, evidence of crimes perpetrated against one victim would
be inadmissible in the trial involving the other victim. The State opposes
Defendant’s motion.

LEGAL STANDARD

Under Superior Court Rule of Criminal Procedure 8, two or more offenses
may be joined in the same indictment “if the offenses charged are of the same or
similar character or are based on the Same act or transaction or on two or more acts
or transactions connected together or constituting parts of a common scheme or
plan.”] The rule of joinder “is designed to promote judicial economy and efficiency,
provided that the realization of those objectives is consistent with the rights of the

accused.”2 To that end, Superior Court Rule of Criminal Procedure 14 provides that

 

1 Super. Ct. Crim. R. 8(a).
2 Weist v. State, 542 A.2d 1193, 1195 (Del. 1988) (quoting Mayer v. State, 320 A.2d

713, 717 (1974)).
3

the Court may order separate trials if it appears that a defendant is prejudiced by
joinder of offenses in an indictment, even though the offenses were properly joined.3

A motion to sever is addressed to the sound discretion of the trial court.4 The
defendant bears the burden of demonstrating that prejudice will result from denial
of a motion to sever.5 Mere hypothetical prejudice is insufficient to meet the
defendant’s burden.6 There are three types of prejudice a defendant may suffer from
joinder of offenses:

1) the jury may cumulate the evidence of the various crimes charged

and find guilt when, if considered separately, it would not so find; 2)

the jury may use the evidence of one of the crimes to infer a general

criminal disposition of the defendant in order to find guilt of the other

crime or crimes; and 3) the defendant may be subject to embarrassment

or confusion in presenting different and separate defenses to different
charges.7

An important factor to consider in ruling on a motion to sever is whether evidence

of one crime would be admissible in trial of the other. If so, “there would be no

unfair prejudice in having a joint trial.”8

 

3 Super Ct. Crim. R. 14; see also Wiest, 542 A.2d at 1195.

4 Wiest, 542 A.2d at 1195; State v. Goldsborough, 2000 WL 706791, at *1 (Del.
super. Mar. 21, 2000); State v. Boughner, 1995 wL 1920095 (Dei. super. Juiy 13,
1995).

5 VW€S¢, 542 A.2d at 1195 (Citing Bates v. Stat€, 386 A.2d 1139, 1141 (D€l. 1978).
6 Bates, 386 A.2d at 1142.

7 Weist, 542 A.2d at 1195.

8 MOnI”O€ v. State, 28 A.3C1 418, 426 (Del. 2011).

4

DISCUSSION

Defendant argues that the continued joinder of the charges relating to two
separate victims would cause substantial prejudice because the jury will cumulate
the evidence and infer a general criminal disposition to find guilt. ln making this
argument, Defendant argues that the factual circumstances relating to the alleged
abuse of each victim are not similar enough to warrant continued joinder. Defendant
also argues that evidence of one crime would be inadmissible in trial of the other,
such that continued joinder is inappropriate

A. The Similarity of the Offenses Supports Continued Joinder.

In Younger v. State, the Delaware Supreme Court upheld the trial court’s
decision to deny severance of two counts of Rape First Degree and one count of
Attempted Rape.9 The two rapes had occurred within nine days of each other in the
same general area ofWilmington against two separate victims.10 The attempted rape
took place approximately two months later in the same general area.11 As to the two
rapes, the assailant approached each victim from behind, placed a hand over the
victim’s mouth, told the victim that he would not hurt her if she cooperated, and

dragged the victim away from the street before committing the rape.12 During the

 

9 496 A.2d 546, 549-50 (DCl. 1985).
10 Id. at 548.

ll Ia'.

12 Id.

attempted rape, the assailant similarly approached the victim from behind, placed a
hand over her mouth, and attempted to pull her away from the street before the
woman was able to break free.13

In upholding the trial court’s denial of severance, the Delaware Supreme
Court noted that the separate offenses occurred within a close time frame in the same
general neighborhood14 The Delaware Supreme Court also emphasized that the
method of attack was “virtually the same” in the two rapes, and was closely
paralleled in the attempted rape until the victim was able to break free.15 The
Delaware Supreme Court held, “[W]here offenses are of the Same general character,
involve a similar course of conduct and are alleged to have occurred within a
relatively brief span of time, it is proper to try the offenses together.”'6 In addition,
the Delaware Supreme Court stated, “The mere fact that the crimes were ‘separate,’
committed against different individuals with a lapse of time in between them, does
not require severance.” l 7

In the case before the Court, the multiple offenses allege similar sexual acts

committed by Defendant against minors and, therefore, are of the same general

 

13 Id.

14 1a at 550.

15 ld.

16 ld.

11 1a (quoring Mcponald v. smze, 307 A.2d 796, 798 (1973)).

6

character.18 In addition, Leary and Hoy allege that Defendant engaged in a similar
course of conduct. Both Leary and Hoy allege that the abuse began after joining
Defendant’s hockey team, that Defendant initially bought them gifts and drove them
to hockey practice, and that Defendant took them on trips across multiple states. In
addition, both Leary and Hoy allege that, during those trips, they would wake up to
Defendant thrusting against their sides. Leary and Hoy were of similar ages when
the alleged abuse began, thirteen and ten or eleven respectively. In addition, both
Leary and Hoy allege that the abuse took place in approximately 1990 and 1991.
Therefore, as in Younger, the multiple offenses charged in this indictment “are of
the same general character, involve a similar course of conduct, and are alleged to
have occurred within a relatively brief span of time,” such that it is proper to try
them to gether.19

This conclusion is further supported by the allegations of late reported child
sexual abuse present in this case. ln Boughner, the defendant was charged with
committing various sexual acts against four minors.20 During the investigation, one

of the victims identified another potential victim.21 The defendant moved to Sever,

 

18 Boughner, 1995 WL 1920095 at *2 (“The offenses charged in Counts l through
XVII each allege a sexual act committed by the defendant against a minor. The
offenses are therefore of the same or similar character.”).

19 Ia'.

20 Id. at *1.

21 Id.

arguing that the jury would cumulate the evidence and infer a general criminal
disposition to find guilt. The Superior Court denied severance, finding that “the
charges, while involving four different boys, are connected by time, place, and
similarity of conduct.”22 In addition, the Superior Court considered the realities of
late reported child sex abuse cases, in which the State does not typically have any
physical evidence to corroborate a victim’s statements23 ln such cases, the Superior
Court recognized that the credibility of the witnesses becomes paramount, elevating
the State’s need to present evidence on the way the investigation began and the way
each subsequent victim was identified.24 As a result, the Superior Court denied
severance.

The present case raises the same issues as Boughner. As discussed above, the
charges involving Leary and Hoy are connected by “time, place, and similarity of
conduct.”25 In addition, as in Boughner, this is a late reported child sex abuse case

in which the State represents it has no physical evidence. AS a result, the credibility

 

22 Id. at *4. Notably, the Court did grant Severance as to one count of the indictment,
which alleged that the defendant engaged in unlawful sexual intercourse with one of
the victims without the victim’s consent. The Court noted that consent was not an
issue in any of the other allegations, meaning that defendant could be put in the
position of putting on a separate defense for that particular charge. However, this
issue is not present in this case, where the charges against Defendant would not
require Defendant to present separate defenses

23 Id. at *5.

24 Ia’.

25 [d. at *4.

of Leary and Hoy is paramount to the State’s case, such that it is important for the
State to be able to present evidence on the way the investigation began and the fact
that Leary identified Hoy as another potential victim. Therefore, the factual
similarities of the multiple offenses and the evidentiary limitations of the late
reported child sexual abuse support denying severance.26
B. Evidence of One Offense Would Be Admissible in Trial of the Other.

Defendant also argues that severance should be granted because evidence of
one offense would be inadmissible in trial of the other. Generally, evidence of other
crimes is inadmissible to prove commission of the offense charged.27 The
underlying purpose of this rule is “to prevent the State from proving the charged
offense by evidence of other crimes on the theory that the defendant acted in
conformity with those other bad acts in committing the charged offense.”28

However, under Delaware Rule of Evidence 404 (“Rule 404”), evidence of other

crimes or bad acts “may be admissible for another purpose, such as proving motive,

 

26 On June 4, 2018, the Court received a letter from Defendant’s counsel enclosing
a recent decision that Defendant argues has pertinence to this matter. See State v.
Thomas, 2018 WL 2357634 (Del. Super. May 21, 2018). In Thomas, the Court
severed charges relating to possession of child pornography from charges relating to
unlawful sexual contact with a child on the grounds that there was no connection
between the different charges and that defendant would suffer unfair prejudice by
their continued joinder. However, unlike in Thomas, Defendant here is only facing
charges relating to unlawful sexual contact. Therefore, T/iomas does not control the
outcome here.

27 Getz v. State, 538 A.2d 726, 730 (Del. 1988).

28 Deshields v. State, 706 A.2d 502, 506 (Del. 1998').

9

opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.”29 In other words, “evidence of prior misconduct is admissible
when it has ‘independent logical relevance’ and when its probative value is not
substantially outweighed by the danger of unfair prejudice.”30

In Getz, the Delaware Supreme Court set forth a six-part analysis governing
the admissibility of other crime evidence.31 First, the evidence must be material to
an issue or ultimate fact in dispute in the case.32 Second, the evidence must be
introduced for a purpose sanctioned by Rule 404(b) “or any other purpose not
inconsistent with the basic prohibition against evidence of bad character or criminal
disposition.”33 Third, the other crimes must be proved by evidence that is “plain,
clear, and conclusive.”?’4 Fourth, the other crimes must not be too remote in time

from the charged offense.35 Fifth, the Court must “balance the probative value of

the evidence against its unfairly prejudicial effect” per Delaware Rule of Evidence

 

39 D.R.E. 404(b).

30 Gerz, 538 A.2d at 730 (quoting D.R.E. 403 and Diaz v. sza¢e, 508 A.2d 861, 865
(Dei. 1986)).

31 1a at 734.

33 1a

33 1a

34 1a (quoting Renzz v. sm¢e, 320 A.zd 71 i, 712 (r)@i. 1974)).

33 1a

10

403 (“Rule 403”).36 Lastly, if admitted, the Court should instruct the jury that the
evidence of other crimes is only being admitted for a limited purpose.37

Here, the Court finds that the six-part test governing the admissibility of other
crime evidence is satisfied First, the evidence is material to the ultimate issue of
the case, whether Defendant has unlawful sexual contact with Leary and Hoy.
Second, the evidence would be material in showing Defendant’s intent and modus
operandi, which are sanctioned purposes under Rule 404. Third, the evidence of
other crimes is testimonial and, therefore, is “plain, clear, and conclusive.”38 Fourth,
the offenses allegedly occurred in approximately 1990 and 1991, and are therefore
not too remote in time. Fifth, per Rule 403, the probative value of the evidence is
not substantially outweighed by the danger of unfair prejudice. Lastly, the Court
will instruct the jury on the limited purpose of the evidence, thereby fulfilling the
sixth requirement Therefore, the Court concludes that evidence of one offense
would be admissible in trial of the other, such that there is no unfair prejudice in
having a joint trial.

CONCLUSION
Severance is not necessary. Although the offenses involve multiple victims,

they are of the same general character, involve a similar course of conduct, and took

 

36 Ia'. (referring to D.R.E. 403).
37 Id.
38 ld. (quoting Renzi, 320 A.2d at 712).

ll

place within a relatively brief span of time, such that it is proper to try them together.
In addition, the Court finds that evidence of one offense would be admissible in trial
of the other, such that Defendant will not suffer unfair prejudice in a joint trial.
Accordingly, it would be inconsistent with judicial economy and efficiency to have
two trials. Therefore, Defendant’s Motion for Relief from Prejudicial Joinder shall
be denied.

NOW, THEREFORE, this 4111 day of June, 2018, Defendant’s Motion for
Relief from Prejudicial Joinder is hereby DENIED. A single trial on the entire

indictment will begin on July 24, 2018 at 9:30 a.m.

IT IS SO ORDERED._/--"

\\

The Honorable Andrea L. Rocanelli

 

`_._/ '

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