Opinion
ID No. 0703029123.
January 15, 2008.
Bruce A. Rogers, Esquire, Georgetown, DE.
Dear Mr. Rogers:
As I will be in Kent County this Friday, January 18, 2008, I am ruling on your posttrial motions in this correspondence.
MOTION FOR JUDGMENT OF ACQUITTAL
You argue that the State's evidence was legally and factually inconsistent.
From the perspective most favorable to the State, the victim was a reluctant witness who was originally more concerned with the impact of her disclosures on her family.
The fact that she told witness "X" less than she later told witness "Y" does not make her testimony legally inconsistent. You had the full opportunity to explore what she said to different witnesses and to contrast it with her in-Court testimony. While the telling of these events may have come out in layers, it was up to the jury to determine if it made sense and to determine if the State met its burden of proof. While it is not my job to agree or disagree with the jury, I note that from the Court's viewpoint, her testimony was credible. Considering all of the evidence and applying the beyond a reasonable doubt standard, I must deny your Motion.
Nor do I find that the evidence or the lack of evidence as to when the rapes occurred prejudiced your client. The date of the offense is not an element of the offense. The evidence was that the rapes first occurred when she was in 6th or 7th grade. There is no statute of limitations problem with the rape offenses. 11 Del. C. § 205 (a). She also testified as to the time period in which the rapes continued which was for more than three months. There is no legal "time" problem with the continuing sexual abuse conviction. Nor is there a statute of limitations problem with the continuing sexual abuse convictions, 11 Del. C. 205 (e). Your Motion to enter a judgment of acquittal on all counts is denied.
MOTION FOR A NEW TRIAL
I do not agree that the verdict was against the clear weight of the evidence. The jury made a determination of what occurred based on all the evidence. The jury decides the weight and value of the evidence.
As aforestated, the victim testified she was in the 6th or 7th grade when the rapes began. That is a sufficient time period for purposes of the statute of limitations but it would seem 11 Del. C. § 205(a) and (e) moots this argument. Your client, her father, could tell you the year she was in the 6th grade. The jury could also make the calculation to determine same based on her other testimony.
You complain that your client was unfairly prejudiced because you had inadequate time to read and digest a diary. The second diary was not withheld from you by the State. It was something that the victim had kept. When it was given to Mr. Gelof by the victim, he gave you a copy. The Court moved the start of the testimony to the next day so you could digest the document. You are a capable attorney and had the rest of the day and evening to review it. At trial, you exhibited a familiarity with all the evidence. I am satisfied that you were fully prepared for trial based upon the delayed starting date. I also note these allegations as to prejudice are conclusory.
Finally, you allege the jury was confused as to what "sexual conduct" meant in the context of the continuing sexual abuse charge. You may recall that the State wished to use allegations other than the charged rapes. I limited the sexual conduct to the charged rapes. The fact that the jury had a question does not mean they were "clearly confused". This Motion is also denied.
This case involved serious allegations of sexual misconduct by a father with his daughter. The jury had the benefit of two experienced trial attorneys working in the adversarial process. The fact that the jury convicted your client does not mean the system failed, nor is it any reflection upon you. Sentencing will proceed as scheduled.
Defendant's Motion for Judgment of Acquittal and/or a New Trial are both denied.
IT IS SO ORDERED.