IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
V. ) ID No. 1801002038

)

DONOVAN KENT, )
)

Defendant. )

OPINION

Submitted: June 28, 2019
Decided: September 25, 2019

Upon Consideration of Defendant’s Motion for New Trial,
DENIED.

Upon Consideration of Defendant’s Motion for Judgment of Acquittal,
DENIED.

John S. Edinger, Jr., Assistant Public Defender, Office of Defense Services,
Wilmington, Delaware. Attorney for Defendant.

Amanda J. DiLiberto, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware. Attorney for State.

MEDINILLA, J.
I. INTRODUCTION

On December 7, 2018, a jury returned guilty verdicts against Defendant
Donovan Kent on two counts of Attempted Rape Second Degree, three counts of
Unlawful Sexual Contact First Degree, and one count of Continuous Sexual Abuse
of a Child. He timely moves this Court for acquittal as to the Attempted Rape
Second Degree convictions under Superior Court Criminal Rule 29 based upon
insufficiency of the evidence. Defendant also moves for a new trial under Superior
Court Criminal Rule 33 and argues that the State’s misrepresentations and vouching
during closing arguments prejudiced and deprived him of his right to a fair trial.'
For the reasons stated below, Defendant’s motions are DENIED.

Il. FACTUAL AND PROCEDURAL BACKGROUND?

On December 4, 2018, this Court began a four-day jury trial in connection
with the alleged sexual assault of a six-year old female child (“the child”). The State
called several witnesses including the child, her mother and father, as well as law
enforcement personnel, a Children’s Advocacy Center (CAC) interviewer, and a

forensic nurse examiner (FNE).

 

' Defendant’s Motion for New Trial at § 4 [hereinafter Def.’s Mot.].
* The recitation of the facts is based on the evidence presented at the trial held on December 4,
2018 through December 7, 2018.
Mother testified that she had known Defendant since childhood. She
permitted Defendant to live with her family in the summer and early fall of 2017.
Due to home renovations, Mother, her husband, and two sons slept in the only usable
bedroom upstairs, and Defendant and the child slept downstairs in the living room
on a futon and a mattress. On October 10, 2017, the child told her mother that
“something happened” with Defendant.? Mother questioned both the child and
Defendant, and because of their responses—described by Mother as both verbal and
non-verbal—she decided to take the child to the hospital for an examination.

At the hospital, a forensic examination was performed by the FNE who
testified that child reported that Defendant “had sex” with her.* The FNE testified
that the child explained how “he put his hands inside of me .. . ,”° and that
Defendant’s hands were “under [the child’s] underwear.”° The child reported to her
that “one time when he put his private on my leg and put his fingers on me[,] my
privates hurt in the morning.”’ When asked about the frequency, the child reported
that Defendant had touched her with “[his] private one time, [and] his hands lots of

times.’

 

3 Mother Trial Tr. at 25:20-21 (Dec. 4, 2018).
4 ENE Trial Tr. at 11:21-22 (Dec. 5, 2018).

> Id. at 12:4-5.

6 Jd. at 12:11-12.

1 Td. at 12:19-21.

8 Td. at 12:23-13:1.
The FNE also conducted a physical examination and identified two results.

9 The second

The first was “an area of redness that was above [the child’s] hymen.
was male DNA found on the child’s genitalia. When asked if the area of redness
was located inside the vagina, the FNE explained that the medical definition of
vagina refers to the area inside of the hymen, known as the vaginal vault.!? She
testified that she did not take an internal swab (inside the vagina or the vaginal vault)
during her examination because the procedure is painful for pediatric patients."!
This testimony led the jury through a lengthy explanation of medical
definitions. She testified that the redness above the child’s hymen and the child’s
complaint of pain presented that the potential injury was “more internal” and inside
of the labia minora,’” that could have been consistent with penetration or an injury
from someone putting his fingers inside the child—“[t]here is a possibility that there
could have been penetration into the vagina.”'8 She explained that “there also is a

possibility that there was penetration before the vaginal vault itself into those areas

..”14 She further clarified on cross-examination that she did not “know that [she]

 

° FNE Trial Tr. at 14:6-7. (Dec. 5, 2018).
0 Td. at 65:13-17.

"Td. at 17:1-2.

2 Td. at 65:3-4.

'3 Td. at 76:7-9 (emphasis added).

'4 Id. at 76:17-19.
15 rather, she described

ever said that there wasn’t evidence of vaginal penetration;
that typically pediatric cases involve fondling, not penetration.'®

The State also admitted the out-of-court statements of the child from a CAC
video interview under 11 Del. C. § 3507. The child described the alleged sexual
encounters with Defendant that occurred at both her home and her aunt’s house. She
further described—and demonstrated through the use of a doll—how and where
Defendant touched her, explaining the manner and frequency in detail.

The jury found Defendant guilty of three counts of unlawful Sexual Contact
First Degree, two counts of Attempted Rape Second Degree, and one count of
Continuous Sexual Abuse of a Child. The Court granted Defendant’s request to a
90-day extension to file his motions, and Defendant filed his Motions for New Trial
and for Judgment of Acquittal on March 8, 2019.'’ The State responded to both

motions on or about April 23, 2019.'8 This Court provided Defendant with a

deadline of June 28 to reply. The matter is now ripe for review.

 

'S Td. at 31:5-6.

'6 Td. at 22:13-16, 31:6-8.

'7 Defendant’s Motion for Judgment of Acquittal, State v. Kent, Crim. ID No. 1801002038, D.L.
33 (Del. Super. Mar. 8, 2019) [hereinafter Def.’s Mot. for Judgm. of Acquittal]; Defendant’s
Motion for New Trial, State v. Kent, Crim. ID No. 1801002038, D.I. 34 (Del. Super. Mar. 8,
2019) [hereinafter Def.’s Mot. for New Trial].

18 State’s Response to Defendant’s Motion for Judgment of Acquittal, State v. Kent, Crim. ID No.
1801002038, D.I. 38 (Del. Super. Apr. 23, 2019) [hereinafter State’s Resp. to Def.’s Mot. for
Judgm. of Acquittal]. State’s Response to Defendant’s Motion for New Trial, State v. Kent,
Crim. ID No. 1801002038, D.I. 40 (Del. Super. Apr. 22, 2019) [hereinafter State’s Resp. to
Def.’s Mot. for New Trial].
I. MOTION FOR JUDGMENT OF ACQUITTAL
A. Standard of Review
A motion for judgment of acquittal arises under Rule 29.'? A defendant’s
motion under Rule 29 asks “whether any rational trier of fact, after considering the
evidence in the light most favorable to the State, could have found the essential
elements of the crime beyond a reasonable doubt.””° Upon consideration of a motion
for judgment of acquittal, the evidence and all reasonable inferences are considered

2! Defendant challenges sufficiency of the

in the light most favorable to the State.
evidence as to the guilty verdict of Attempted Rape Second Degree.

Defendant presents a two-fold argument for why there was insufficient
evidence offered by the State to prove the lesser included offense of Attempted Rape
Second Degree. First, he suggests that “given that the jury unanimously agreed the
State had failed to prove beyond a reasonable doubt that Defendant (over 18 years
of age) penetrated with his finger the vagina of alleged victim (less than 12 years

old), there was no evidence to prove the lesser included offense of Attempted Rape

Second Degree as opposed to the other lesser included offense of Unlawful Sexual

 

'? Super. Ct. Crim. R. 29(c) (“Motion after discharge of jury. -- If the jury returns a verdict of
guilty ...a motion for judgment of acquittal may be made or renewed within 7 days after the jury
is discharged or within such further time as the court may fix during the 7-day period.”).

?° Bethard v. State, 28 A.3d 395, 397-98 (Del. 2011).

*! See State v. Biter, 119 A.2d 894, 898 (Del. Super. 1955); see also State v. Wright, No I.D.
1208019720, 2014 WL 4088685, at *3 (Del. Super. Aug. 19, 2014).

6
Contact First Degree.””* Second, he argues that in order to prove a “substantial step”
in the completion of the crime, the crime of Attempted Rape requires that the State
present evidence of being “thwarted.” He argues that “[b]y definition the ‘substantial
step’ (fondling) must turn into a completed crime (rape) ‘but for’ being thwarted in
some fashion.””* “[W]ithout evidence that ‘but for’ being thwarted from completion
of the crime, anyone charged with Unlawful Sexual Contact would also be guilty of
Attempted Rape as well.”’4 Both arguments are without merit.
B. Analysis

The definition of Unlawful Sexual Contact First Degree (USC 1), applicable
in this case, is “intentionally [having] sexual contact with another person who is less
than 13 years of age... .””° The definition of sexual contact is “any intentional
touching by the defendant of the . . . buttocks or genitalia of another person””® or
“Ta|ny intentional touching of another person with the defendant’s . . . genitalia....”°”
Here, the evidence included that Defendant placed his “private” on her leg “one

time” and touched the child both on her buttocks and her genitalia “lots of times.””®

 

2 Def.’s Mot. for Judgm. of Acquittal § 4.

23 Td. at 4 27.

4 Td. at 9 24.

25-11 Del. C. § 769(a)(3).

6 Id. § 761(g)(1).

*7 Id. § 761(g)(2)

28 ENE Trial Tr. at 12:22-13:1 (Dec. 5, 2018); see Kim Carpenter (CAC) Trial Tr. at 64:23-67:12
(Dec. 5, 2018).
As to some of the sexual encounters, the jury was also asked to consider
Defendant’s guilt for the offenses of both Rape Second Degree and Attempted Rape
Second Degree. A conviction for Rape Second Degree required the jury to find that
the defendant: 1) intentionally engaged in sexual penetration with another person,
and 2) the victim had not yet reached her twelfth birthday and the defendant was at
least eighteen years of age at the time.”? Sexual penetration is defined as “the

unlawful placement of an object...inside the anus or vagina of another person....”°°

3! Because the jury did not find Defendant

An object includes “any part of the body.
guilty of this charge, he argues that the jury “unanimously agreed” on the issue of
penetration to lay the foundation for acquittal as to the Attempted Rape Second
Degree.

First, Defendant’s claim that the jury “unanimously agreed” that the State
failed to prove the element of sexual penetration is incorrect. The best that can be
said is that twelve people did not reach unanimity as to his guilt on the count of Rape
Second Degree. While it is true that the twelve may have reached consensus as to

the element of penetration, equally plausible is that eleven jurors could have found

the State established this element beyond a reasonable doubt but one juror was not

 

29 11 Del. C. § 772(a)(2)(g).
39 Id. § 761(j)(1).
31 Td. § 761(d).
firmly convinced of Defendant’s guilt. Furthermore, the jury was instructed** that
if it was unable to reach unanimity or it hit an impasse as to the offense of Rape
Second Degree, it could consider the lesser-included offense of Attempted Rape
Second Degree. That is what the jury did. Thus, the Court does not accept
Defendant’s contention that the jury unanimously agreed on anything except as to
its findings of guilt, including Attempted Rape Second Degree.

Second, even accepting the Defendant’s suggestion that twelve persons
agreed that the State did not establish the element of penetration, it does not vitiate
the jury’s finding that he was guilty of Attempted Rape Second Degree. If the State
did not establish the element of sexual penetration as medically—thus legally—
defined, the question is whether the evidence was nevertheless sufficient for a jury
to find that Defendant took a substantial step in the course of conduct to culminate
in the commission of rape and find him guilty of Attempted Rape Second Degree.

A defendant is guilty of Attempt to commit a crime if he “intentionally does

or omits to do anything which, under the circumstances as the person believes them

 

3? “TF after considering all of the evidence, you find that the State has established beyond a
reasonable doubt that the Defendant acted in such a manner as to satisfy all of the elements...you
should find the Defendant guilty of Rape in the Second Degree. If you do not so find, or if you
have a reasonable doubt as to any element of this offense, you must find the Defendant not guilty
of Rape in the Second Degree.... In such a case or in the event that you are at an impasse and are
unable to reach a unanimous verdict on the charge or Rape Second Degree, then you may go on
to consider the lesser-included offense (LIO) of Attempted Rape Second Degree.” Delaware
Jury Instructions, State v. Kent, Crim. ID No. 1801002038, D.I. 20, Page 7 (Del. Super. Dec. 7,
2018).
to be, is a substantial step in a course of conduct planned to culminate in the
commission of a crime by the person.”*? A “substantial step is an act or omission
which leaves no reasonable doubt as to the defendant’s intention to commit the crime
which the defendant is charged with attempting.”

Defendant relies on Farmer v. State®> and Clark v. State** to suggest that the
State failed to establish the required element of a “substantial step” for Attempted
Rape Second Degree. He argues there is no evidence that the child thwarted his
advances, failed to close her legs tightly, told him to stop, physically resisted his
advances, or refused to consent. He contends the absence of this evidence is fatal to
the State’s case. Defendant’s reliance on this authority is misplaced.

Neither Clark nor Farmer requires the State to present evidence that
Defendant was “thwarted” from completing the crime of rape due to “intervening
forces” in order to establish the element of a “substantial step.” Clark is

t.37 Consent is not

distinguishable where it primarily assessed the nature of consen
an issue here. Farmer decided whether “a victim’s testimony alone, concerning

alleged sexual contact, [was] sufficient to support a guilty verdict .. . .”°8 Here, the

 

33-11 Del. C. § 531(2) (emphasis added).

34 Clark v. State, 957 A.2d 1, 2008 WL 3906890, at *4 (Del. Aug. 26, 2008) (TABLE) (quoting
11 Del. C. § 532) (internal quotations omitted).

35 844 A.2d 297 (Del. 2004).

36 957 A.2d 1, 2008 WL 3906890 (Del. Aug. 26, 2008) (TABLE).

37 See generally Clark, 957 A.2d 1, 2008 WL 3906890.

38 Farmer v. State, 844 A.2d 297, 300 (citing Hardin v. State, 840 A.2d 1217, 1224 (Del. 2003)).

10
State presented more than the child’s testimony. The law does not require the State
prove that the victim, someone else or something caused, prevented, prohibited or
otherwise stopped defendant from carrying out the intentional planned conduct.
Defendant’s argument would place a burden on victims of sexual assault that this
Court is not willing to impose on anyone, regardless of age.

The law requires that the State prove that defendant took a substantial step in
a course of that conduct planned. Here, the jury was free to accept the evidence—
the child’s account of Defendant having “had sex” with her, her description of the
sexual encounters, and the FNE’s findings on the child’s genitalia—to find that
Defendant attempted to sexually penetrate the child and, in doing so, took a
substantial step in a course of conduct planned to culminate in the commission of
Rape Second Degree.

In considering the evidence and all legitimate inferences in the light most
favorable to the State, the Court finds that a rational fact finder could find Defendant
guilty of Attempted Rape Second Degree. Therefore, Defendant’s Motion for

Acquittal is denied.

11
IV. MOTION FOR NEW TRIAL
Defendant’s timely Motion for New Trial is considered under Rule 33 in the

? and addressed to the sound discretion of the court.’? Under Rule

interest of justice,°
33, Defendant argues that the State improperly vouched for one of its witnesses,
improperly vouched for its case, and misstated the evidence on five occasions during
closing arguments.‘! Defendant contends that the State’s misstatements and
vouching deprived him of a fair trial because they were pervasive and repetitive
errors.’ Because Defendant made timely objections as to alleged prosecutorial
misconduct, and also raises some claims as to statements made that were not
objected to at trial, the claims will be considered separately under both harmless and
plain error reviews.”
A.  Defense’s Timely Objections
Defense counsel timely objected to the State’s use of the word “absolutely” in

its closing argument discussed in more detail below. These statements are examined

under a harmless error review.“

 

3° Super. Ct. Crim. R. 33. (“The court on motion of a defendant may grant a new trial to that
defendant if required in the interest of justice... A motion for a new trial based on any other
grounds shall be made within 7 days after verdict or finding of guilty or within such further time
as the court may fix during the 7-day period.”).

40 See Johnson v. State, 628 A.2d 83, 1993 WL 245374, at *1 (Del. June 22, 1993) (TABLE)
(citing Hutchins v. State, 153 A.2d 204, 206 (Del. 1959)).

41 Def.’s Mot. for New Trial Jf] 5-14.

2 Id. at Ff 20-21.

3 See Baker v. State, 906 A.2d 139, 148 (Del. 2006).

“4 See Id. (“If defense counsel raised a timely . . . objection to prosecutorial misconduct at trial . .

12
1. Standard of Review — Harmless Error

The Court reviews for harmless error review using a three-part analysis. First,
the Court reviews for harmless error using the “record to determine whether the
prosecutor’s actions were improper.””° If the Court determines that no misconduct
occurred, the analysis ends.*° Second, if the Court finds that prosecutorial
misconduct occurred, it will then decide “whether the misconduct prejudicially
affected the defendant,”*’ using the test articulated in Hughes v. State*® (the “Hughes
test”).4? The Court examines “(1) the closeness of the case, (2) the centrality of the
issue affected by the error, and (3) the steps taken to mitigate the effects of the
error.”>° If the Court finds under the Hughes test that misconduct warrants reversal,
the analysis ends. Third, if the Court finds that the conduct does not prejudice the
defendant under the Hughes test, it considers the test articulated in Hunter v. State?!

(the “Hunter test’”).>

 

. we essentially review for “harmless error.”’).

45 State v. Spence, 2014 WL 2089506, at *4 (Del. Super. May 15, 2014) (citing Kirkley v. State,
41 A.3d 372, 376 (Del. 2012)) [hereinafter “Spence I’).

46 See Baker, 906 A.2d at 148.

ai Spence v. State, 129 A.3d 212, 219 (Del. 2015) (quoting Kirkley v. State, 41 A.3d 372, 376 (Del.
2012) [hereinafter “Spence I?’].

48 437 A.2d 559 (Del. 1981).

Spence IT, 129 A.3d at 219.

°° Baker, 906 A.2d at 149 (citing Hughes, 437 A.2d at 571) (Hughes Test factors are not
conjunctive, and one factor may outweigh the others).

>! 815 A.2d 730 (Del. 2002).

>? Baker, 906 A.2d at 149 (citing Hunter, 815 A.2d at 732-33) (The Hunter test examines “whether
the prosecutor’s statements are repetitive errors that require reversal because they cast doubt on
the integrity of the judicial process.”).

13
2. Under Hughes, The Statements Were Not Improper.

The Delaware Supreme Court has acknowledged that “closing argument is an
aspect of a fair trial which is implicit in the due process clause of the Fourteenth
Amendment by which the States are bound.”3 It is well established that “a
Prosecutor may not misrepresent the evidence presented at trial,”°*4 is allowed to
explain legitimate inferences that can be drawn from the evidence, and is not
confined to repeat the evidence that was presented at trial.°° Her role is not only to
convict the guilty, but also to protect the rights of the accused® and to seek justice.>”

Defendant argues that the State vouched for its case by using the adverb
“absolutely” several times, in reference to the child’s injury having been caused by
sexual penetration.°® The State summarized its closing argument with the following:

It is your job to judge the credibility of the witnesses, piece together all

the evidence that’s been presented, and determine whether you think

this really happened. And the State submits that it absolutely did and
asks you to find the defendant guilty on all charges.°?

 

53 Brokenbrough v. State, 522 A.2d 851, 860 (Del. 1987) (quoting Bailey v. State, 440 A.2d 997,
1003 (Del. 1982)).

4 Williams vy. State, 91 A.3d 563, 2014 WL 1515072, at *3 (Del. Apr. 16, 2014) (TABLE)
(citing Flonnory v. State, 893 A.2d 507, 540 (Del. 2006)):; Hunter, 815 A.2d at 735 (citing
Morris v. State, 795 A.2d 653 (Del. 2002)).

*> See Hooks v. State, 416 A.2d 189, 204 (Del. 1980) (citation omitted).

°° See id. (citation omitted),

°? See Hunter, 815 A.2d at 735 (citing Sexton v. State, 397 A.2d 540, 544 (Del. 1979)).

°8 See Def.’s Mot. for New Trial q 14.

» State’s Closing Argument Tr. at 24:14-19 (Dec. 7, 2018).

14
At the completion of the State’s closing argument, Defense counsel objected
to the State’s use of the word “absolutely,” arguing that the prosecutrix was
interjecting her opinion into her closing statement.© At the request of Defendant,
the Court issued a curative instruction that provided:

I have previously instructed you and I remind you that the attorneys’

beliefs or opinions are to be disregarded. ...[T]he belief concerning the

testimony or the evidence which an attorney offers during opening
statements or closing arguments are simply not relevant. What an
attorney personally thinks about testimony or evidence in this case is

not relevant. You are to be guided and will be told over and over and

over again that you are to base your verdicts solely on the evidence that

is presented in the case.°!

The Delaware Supreme Court has explained that “improper vouching by a
prosecutor for the credibility of a witness implies that the prosecutor has superior
knowledge that the witness has testified truthfully ‘beyond that logically inferred
from the evidence.””” The Delaware Supreme Court has not adopted a rule that it
is per se improper to use the words “I” or “we” in closing argument, but it has

explained that the use of the first person is “extremely dangerous and should be

assiduously avoided.”

 

6° Td. at 24:21-29:5,

61 Td. at 29:7-18.

° Trump v. State, 753 A.2d 963, 966 (Del. 2000) (quoting Miller v. State, 750 A.2d 530, 2000
WL 313484, at *4 (Del. Feb. 16, 2000) (TABLE)).

° Trump, 753 A.2d at 968 (quoting Brokenbrough v. State, 522 A.2d 851, 859 (Del. 1987)).

15
The Delaware Supreme Court has recommended that the better practice is for
the prosecution to use the terms “the State submits” or “it is the State’s position.”
In Morales v. State, the majority found the alleged improper statement® to be
improper because the prosecutor failed to qualify the language, “such as, for
example, ‘the evidence demonstrates.’”®° The Morales Court nevertheless affirmed
the defendant’s conviction finding that the improper statement did not amount to
plain error.°’

In his concurrence, Chief Justice Strine, while agreeing with the Majority that
the statement did not amount to plain error, also did not consider the statement to be
improper. He poses that altering language, using qualifying phrases, from “[t]he
defendant is clearly guilty” to “the State submits that there is clear evidence of the

68

defendant’s guilt,” does not change the substance of the initial statement.°” He notes

that the original statement, although not tempered with qualifying language, does
not imply that the prosecutor had “personal superior knowledge, beyond what is

logically inferred from the evidence at trial.”©?

 

64 Hardin v. State, 840 A.2d 1217, 1220 (Del. 2003) (citing Trump, 753 A.2d at 968).

65 “The defendant is clearly guilty of robbery that happened that day. I ask you to return a verdict
of guilty on both offen[s]es.” Morales v. State, 133 A.3d 527, 529 (Del. 2016)

6° Morales, 133 A.3d at 531 (quoting Spence IT, 129 A.3d 212, 227 (Del. 2015)).

67 See Morales, 133 A.3d at 532-33.

88 See id. at 534 (Strine, CJ., concurring).

6 See id. (Strine, CJ., concurring) (emphasis added).

16
The Delaware Supreme Court has emphasized the absence of “qualifying
language” in determining the propriety of the language used. Accordingly, this
Court finds the prosecutor’s statement was proper. It was tempered with qualifying
language so as to avoid presenting information in the form of fact or personal belief.
She qualified her language with the terms “the State submits,” with language
emphasizing that it is the jury’s job “to judge the credibility of the witnesses, [by]
piecing together all the evidence that’s presented’”” and to “decide whether the
[child’s injury was] internal or external.”’! Only through weaving in between those
statements, did the “State submit” using the word “absolutely.”””

Notably, Chief Justice Strine points to the general nature of trial, whereby it
is understood that “the prosecutor subjectively believes the defendant to be guilty.””°

He emphasizes that, “as an ethical matter, it is critical that the State and its prosecutor

believe they are prosecuting a guilty defendant.”’* With that understanding and

 

7 State’s Closing Argument Tr. at 24:14-19 (Dec. 7, 2018).

™ Td, at 14:17-18.

72 Id. at 24:14-19, 14:3- 21, 23:2-18 (emphasis added).

® Morales, 133 A.3d at 535 (Strine, CJ., concurring) (citing WAYNE R. LAFAVE, ET AL., 4 CRIM.
Proc. § 13.1(b) n.34.2 (3d ed. 2014) (explaining the “common assumption” that the prosecutor
can proceed only when she believes that the defendant is guilty); Sarah Anne Mourer, Believe It
or Not: Mitigating the Negative Effects Personal Bias and Belief Have on the Criminal Justice
System, 43 HOFSTRA L. REV. 1087, 1096 (2015) (noting that “it is clear that the prosecutor must
believe that the defendant is guilty to proceed to trial”); Alafair S. Burke, Talking About
Prosecutors, 31 CARDOZO L. REV. 2119, 2134-35 (2010) (“Because the prosecutor believes that
the defendant is guilty, she is likely to weigh the evidence against him as strong.”)).

™ Morales, 133 A.3d at 535 (Strine, CJ., concurring) (citing Alafair S. Burke, Prosecutorial
Agnosticism, 8 OHIO ST. J. CRIM. L. 79, 79 (2010) (“Most legal ethicists maintain that an ethical
prosecutor should not pursue criminal charges against a defendant only if the prosecutor
personally believes that the defendant is guilty.”); Bruce A. Green, Why Should Prosecutors

17
expectation in mind, “[{a]n isolated statement of the kind at issue here therefore poses
no danger” in regards to a jury being told “to believe the prosecutor over the other
evidence,” or where “there is some basis for conviction other than the evidence
which the prosecutor recited just the moment before.”” Therefore, although the
term absolutely alone would have been improper, it is not improper where the State
has sufficiently posed the term between qualifying language. She further did not
imply that she possessed some superior knowledge beyond what the jury could infer
from the evidence.

Even if the Court were to find that the State engaged in improper vouching of
its case by utilizing the term “absolutely,” this improper vouching would not be
prejudicial to Defendant. To determine prejudice, the Court examines “(1) the
closeness of the case, (2) the centrality of the issue affected by the error, and (3) the
steps taken to mitigate the effects of the error.”’® In reading the context of the

statements, the State was arguing that the evidence was sufficient for the jury to find

 

“Seek Justice” ?, 26 FORDHAM UB. L.J. 607, 640-41 (1999) (“Prosecutors have the power,
freedom and responsibility to make decisions for the sovereign in the criminal context... They
must satisfy themselves of an individual's guilt as a precondition to determining that the
conviction of an individual is an end to be sought on behalf of the state or the federal
government.”); Bennett L. Gershman, A Moral Standard for the Prosecutor's Exercise of the
Charging Decision, 20 FORDHAM Urs. L.J. 513, 522 (1993) (“[B]efore making the ultimate
decision to charge, the prosecutor should then assure herself that she is morally certain that the
defendant is both factually and legally guilty.... Finally, the prosecutor who acknowledges moral
uncertainty about a defendant's guilty but decides nonetheless to bring charges, violates the
prosecutor's special obligation to seek justice, and tacitly invites the system to miscarry.”)).

3 Morales, 133 A.3d at 535 (Strine, CJ., concurring).

76 Baker v. State, 906 A.2d 139, 149 (Del. 2006) (citing Hughes v. State, 437 A.2d 559, 571 (Del.
1981)).

18
that the State had proven its case as to sexual penetration for a guilty finding of Rape
Second Degree. The jury did not find Defendant guilty of Rape Second Degree and
they did not accept the State argument. Thus, Defendant was not prejudiced.
B. Defense’s Untimely Objections

As to the remaining claims, defense counsel failed to timely object to (1)
alleged misstatements by the State and (2) alleged improper vouching by the State.
The Court reviews for plain error when defense counsel failed to raise a timely
objection at trial and the trial judge does not intervene sua sponte.”’ Statements not
objected to at trial are examined under Wainwright for plain error.

1. Standard of Review — Plain Error

For these untimely claims, the Court reviews for plain error review using a
three-part analysis.”® This 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.”’”? First, the Court examines “the record de novo to determine

 

77 See Morales, 133 A.3d at 529 (citing Baker, 906 A.2d at 150 (“Where defense counsel fails to
raise a timely and pertinent objection to alleged prosecutorial misconduct at trial and the trial
judge does not intervene sua sponte, we review only for plain error.”) (citations omitted)); see
also Baker, 906 A.2d at 149 (citing Kurzmann vy. State, 903 A.2d 702, 709 (Del. 2006) (“If
defense counsel failed [to raise a timely objection] . . . we review only for plain error.”)).

78 See Morales, 133 A.3d at 529; see also Spence II, 129 A.3d 212, 226 (Del. 2015); see also
Baker, 906 A.2d at 150.

™ Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986) (internal citations omitted).

19
whether prosecutorial misconduct occurred.”®° Second, the Court applies the
Wainwright v. State®' standard to determine whether any prosecutorial misconduct
resulted from plain error. *? Under Wainwright, “[t]he error complained of must be
so clearly prejudicial to substantial rights [of the defendant] as to jeopardize the

83 Tf the Court determines under this

fairness and integrity of the trial process.
standard that plain error occurred, the Court must reverse. Third, if the Court finds
that the misconduct does not warrant reversal under Wainwright, it applies the
Hunter test articulated above.™4
2. Under Wainwright, The Statements Were Not Improper
The State Did Not Misstate Facts

Defendant highlights five instances of alleged misstatements by the Deputy
Attorney General that piggy-back on the use of the word “absolutely” as it relates to
1) whether the injury was internal, 2) the representations regarding the DNA
evidence, comments regarding 3) the source and 4) timing of the findings by the

FNE of the child’s redness/potential injury, and 5) a repeat comment regarding the

FNE’s testimony regarding penetration. The Court will address them in order.

 

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

81504 A.2d 1096 (Del. 1986) (establishing the “Wainwright Test.).

82 See Morales, 133 A.3d at 529; see also Baker, 906 A.2d at 150.

83 Wainwright, 504 A.2d at 1100 (internal citations omitted).

84 Baker, 906 A.2d at 149 (citing Hunter v. State, 815 A.2d 730, 732-33 (Del. 2002)) (The
Hunter test examines “whether the prosecutor’s statements are repetitive errors that require
reversal because they cast doubt on the integrity of the judicial process.”).

20
The State argued and submitted that the child’s injury was “absolutely an

9985 :

internal injury”® in this context:

[W]e can’t be 100 percent sure about anything, but that that injury could
be consistent with sexual assault . . . and could be consistent with

penetration ....

... It’s your job to decide whether it is internal or external, and the State
submits to you that it’s absolutely an internal injury . . . .°°

The FNE testified that the area of the injury was “internal” or “more internal”
because it is inside of the labia minora.®’ This Court finds that the State did not
misstate the evidence. This argument was appropriate in light of the evidence that
came not only from the FNE, but also from the testimony of the child who explained
that he placed his fingers “in” her. Thus, this statement was not improper. Again,
even if it had been improper, the statement was made unsuccessfully to suggest that
the State established evidence of penetration.

The Defendant next argues that the State misstated facts regarding the DNA,
the source of the child’s injury, and the timing of the child’s injury.®* These alleged
misstatements, made in conjunction with each other, are as follows:

That male DNA came from one person and one person only, and...

that injury came from one person and one person only, and that’s
Donovan Kent. And Donovan Kent put his fingers inside of [the

 

85 State’s Closing Argument Tr. at 14:17-18 (Dec. 7, 2018).
86 Td. at 14:3-21.

87 FNE Trial Tr. at 65:3-6 (Dec. 5, 2018).

88 Def.’s Mot. for New Trial 4] 6-8.

2]
child’s] private area, inside her vagina, causing that injury .... That’s
what happened in this case, ladies and gentlemen of the jury.

Coincidental that on the same day that that forensic nurse examiner saw

the injury and only five cases of all that she saw, that was one of the

injuries she’s seen and photographed on a sexual assault victim. And

on that same day the DNA swab contained male DNA. That’s not just

a coincidence. That’s because Donovan Kent committed the offenses

of rape in the second degree, unlawful sexual contact and continuous

sexual abuse of a child... °°

Mother took the child to the hospital on the same day that the child reported
that something had occurred with Defendant. On that same day, the forensic exam
found male DNA on the child’s genitalia. In contextual relation to the record, it was
not improper for the State to argue that the jury could make the reasonable inference
that the male DNA came from Defendant.

The FNE also reported that she found redness above the child’s hymen; a
finding significant enough to report as a potential injury. Defendant argues that the
State improperly linked the timing of the injury with the timing of the finding of
male DNA. This is not so. The statement highlighted that the results of the forensic
examination yielded two important medical findings: redness/injury above the
child’s hymen and male DNA on her genitalia.

It was proper for the State to summarize these findings. The jury was free to

weigh them to determine whether an actual injury occurred or whether the redness

 

8° State’s Closing Argument Tr. at 21:21-22:17 (Dec. 7, 2018) (emphasis added).
22
came from “wiping” as argued by the Defendant. The jury was also free to consider
whether the male DNA could have come from other males such as her brothers or
her father, through transmittal such as an innocuous household sharing of the
family’s towels, also argued by Defendant. To challenge Defendant’s theory that
the DNA came from other sources, the State appropriately argued that the timing of
the FNE’s findings, coupled with the child’s reporting, suggested that Defendant
“committed the offense of Rape in the Second Degree.” Again, the jury did not
accept the argument. The Court finds that these statements were not improper.

Defendant lastly takes issue with the use of the State’s representation that
there existed an injury versus a potential injury as argued:

You saw that injury and you heard the forensic nurse examiner talk

about that injury being right ... above the hymenal ring to the vagina,

and that that injury could have easily occurred to consistent with

penetration, combined with [the child’s] words about him going in the

middle and moving his fingers around. It’s your job to decide whether

it was penetration... or... just fondling .... That’s up to...you, but

the State submits there was absolutely penetration based on that little

girl’s words, especially combined with that injury... .°

Defendant again takes issue with the State’s use of the words “easily” and
“absolutely”?! and argues that the FNE testified to the opposite of what the State

argued in its closing. The Court disagrees.

The exchange on cross examination of the FNE provides:

 

*° Td. at 23:2-18 (Dec. 7, 2018) (emphasis added).
*! Def.’s Mot. for New Trial q 10.

23
A: Not having seen [the child’s] genitalia before, I don’t know if that’s
an injury or. . . something that’s always there, but it’s not something
that should typically be there . . . so it has a potential for being an injury.

Q: So in other words this could be a condition of her hymen. You don’t
know whether that was an injury or her hymen may have that mark for
whatever reason?

A: ...Ijust noted that the redness was there, I don’t know what it was
from or what caused it which is why I took the photo, because it had
the potential for being an injury.”

On redirect regarding the redness/injury, the State asked “Was there an injury in

this case that could be consistent with penetration?””? The FNE responded

9994

“[yles”’* and she used the term “injury” to describe the redness in the child’s

vaginal area.”> Thus, it was not improper for the State to argue the evidence that
there was an injury in this case.
The State Did Not Improperly Vouch For Its Case
Defendant argues that the State allegedly vouched for its witness, the child”

when it describes the significance of the child’s words “as very strong evidence.””’

The relevant portions include:
And on that same day the DNA swab contained male DNA. That’s not

just a coincidence .. . and that is evidence . .. beyond the child’s words,
which are very strong evidence in and of themselves.”*

 

2 ENE Trial Tr. at 43:16-44:4 (Dec. 5, 2018).

3 Td. at 45:14-15.

4 Td. at 45:16.

°° Td. at 43:10-14.

© Def.’s Mot. for New Trial § 13.

97 Id. at J 13.

°8 State’s Closing Argument Tr. at 22:10-17 (Dec. 7, 2018) (emphasis added).

24
“[I]mproper vouching by a prosecutor for the credibility of a witness implies
that the prosecutor has superior knowledge that the witness has testified truthfully
‘beyond that logically inferred from the evidence.”””? Generally, prosecutors may
not state “personal opinions or beliefs about the credibility of witnesses or lie about
the truth of testimony.”!”

Through 11 Del. C. § 3507, the jury observed the child’s demeanor and
listened to a detailed account of the allegations of sexual acts committed by
Defendant. Although the State could have restrained from qualifying the evidence
as “strong,” even if the Court found that the State was improperly vouching for the
child, this statement did not prejudice Defendant’s “substantial right[s] as to

» 101 nor does the statement

jeopardize the fairness and integrity of the trial process,
show manifest injustice.'°? The State did not suggest anything beyond what the jury
could logically infer from the evidence that did, in fact, weigh against Defendant.

For the same reasons stated in the harmless error analysis, following Morales, these

statements were not improper.

 

”° Trump v. State, 753 A.2d 963, 966 (Del. 2000) (quoting Miller v. State, 750 A.2d 530, 2000
WL 313484, at *4 (Del. Feb. 16, 2000) (TABLE)).

'°0 Clayton v. State, 765 A.2d 940, 942 (Del. 2001) (citing Brokenbrough v. State, 522 A.2d 851,
855 (Del. 1987)).

'°! Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986) (citing Dutton v. State, 452 A.2d 127,
146 (Del. 1982).

'©? See Baker v. State, 906 A.2d 139, 150 (Del 2006) (citing Wainwright, 504 A.2d at 1100).

25
The Court need not address the Hunter test as it finds that the alleged
misstatements and vouching were not improper. Even if deemed improper, they are
not prejudicial under Hughes, Wainwright, or Hunter. While the Deputy Attorney
General repeated the use of some words such as “absolutely,” her statements were
not errors that require reversal and they do not cast doubt on the integrity of the
Judicial process. The State did not misstate facts or evidence, did not vouch for its
case, and did not vouch for its witness in such a pervasive manner to require a new

trial.

CONCLUSION

Under Rule 29, Defendant is not entitled to judgment of acquittal as to both
counts of Attempted Rape Second Degree, nor is he entitled to a new trial in the
interests of justice under Rule 33. Therefore, Defendant’s Motion for Judgment of
Acquittal and Motion for New Trial are DENIED.

IT IS SO ORDERED.

/s/ Vivian L. Medinilla
Judge Vivian L. Medinilla

oc: Prothonotary

cc: Defendant
Amanda J. DiLiberto, Esq., Department of Justice
John S. Edinger, Jr., Esq., Office of Defense Services
Investigative Services Office

26
