Opinion
File No. 1804007156
05-23-2019
STATE OF DELAWARE Petitioner v. D------ R----- Respondent
Petitioner Attorney Matthew Keating, Esquire Respondent Attorney Vicki Pierce, Esquire
Nature of Proceeding
Review of Commissioner's Order Date of Decision:
Date Mailed/Emailed: Petitioner Attorney
Matthew Keating, Esquire Respondent Attorney
Vicki Pierce, Esquire ORDER - REVIEW OF COMMISSIONER'S ORDER
Before the HONORABLE JANELL S. OSTROSKI, Judge of the Family Court of the State of Delaware, is the Request for Review of a Commissioner's Order (herein "ROCO"), filed on January 28, 2019, by D------ -. R----- (herein "Defendant"), represented by the Office of Defense Services. The State of Delaware did not file a Response. The Commissioner's Order was entered on January 22, 2019, finding the Defendant guilty of both Criminal Mischief under $1,000 and Endangering the Welfare of a Child.
STANDARD OF REVIEW
A party may seek review of a Commissioner's Order pursuant to 10 Del. C. § 915(d)(1) which provides:
Any party, except a party in default of appearance before a Commissioner, may appeal a final order of a Commissioner to a judge of the Court by filing and serving written objections to such order, as provided by rules of the Court, within 30 days from the date of a Commissioner's order. A judge of the Court shall make a de novo determination of those portions of the Commissioner's order to which objection is made. A judge of the Court may accept, reject or modify in whole or in part the order of the Commissioner. The judge may also receive further evidence or recommit the matter to the Commissioner with instruction.
Under Family Court Civil Rule 53.1(b), an appeal of a Commissioner's Order must set forth with particularity the basis for each objection. Pursuant to Family Court Civil Rule 53.1(e), "From an appeal of a commissioner's final order, the Court shall make a de novo determination of the matter (that is, the matter shall be decided anew by a judge), based on the record below." Black's Law Dictionary defines de novo review as "an appeal in which the appellate court uses the trial court's record but reviews the evidence and law without deference to the trial court's ruling." In reviewing the matter the "judge will make an independent decision by reviewing the Commissioner's findings of fact determined at the Commissioner's hearing, any testimony and documentary evidence on the record, and the specific objections of the moving party." This "Court will give weight to the fact findings of the Commissioner, especially in regards to the credibility of witnesses, even though the Court is not bound by them."
Fam. Ct. Civ. R. 53.1(b) provides: An appeal of a commissioner's order shall be accomplished by filing with the Court within 30 days from the date of the commissioner's order written objections to the commissioner's order which set forth with particularity the basis for each objection. A copy of the written objections shall be served on the other party, or the other party's attorney, if the other party is represented.
Black's Law Dictionary (10th ed. 2014).
Y.H. v. T.H., 2015 WL 6442087, at *2 (Del. Fam. Ct. July 10, 2015).
Id.
PROCEDURAL BACKGROUND
The Defendant was charged with Criminal Mischief under $1,000 and Endangering the Welfare of a Child which stemmed from an incident that occurred on April 12, 2018.
After a trial on January 22, 2019, the Commissioner found the Defendant guilty on both charges. In her decision, the Commissioner held as follows:
So, this comes down to credibility. I don't find Mr. R----- credible. His story doesn't make sense. I'm going to find him guilty on both counts, Criminal Mischief, as well as Endangering the Welfare of the Child, primarily on his admissions. His admissions corroborate the crime scene. And the Officer, I found to be credible. So, based on that, I'm going to find that he did throw a rock through the car window, while his 13-month old daughter was in the car, thereby endangering her.
The Child was in the car when the Officer got there. The woman was in distress. It happened simultaneously. There was glass on the inside of the car. You answered a phone. You admitted who you were. You admitted to the facts. If she had been talking to somebody that wasn't you, they would have had no idea what they were talking about. It corroborates it.
Transcript of January 22, 2019, Criminal Trial, at 46, lines 11-22,
Id. 49, lines 1-9.
The Commissioner sentenced the Defendant to one (1) year and 30 days at Level V suspended for Probation at Level II for 13 months. Defendant shall have no unlawful contact with H----- R----- and S----- M------- and take a Parenting Class. On January 22, 2019, the Defendant filed the instant ROCO.
DISCUSSION
The Court reviewed the transcript of the January 22, 2019, hearing. The State called one (1) witness: City of Wilmington Police Officer, Catherine Cruise. The Defendant testified in his defense.
In the case at hand, the Defendant was charged with and convicted of both Criminal Mischief under $1,000 and Endangering the Welfare of a Child. In order to obtain a conviction for said crimes, the State must prove each element of each crime beyond a reasonable doubt. In this case, in order to get a conviction for Criminal Mischief, the State needed to prove that the Defendant (1) intentionally or recklessly (2) damaged the property of the victim. And, in order to get a conviction for Endangering the Welfare of a Child, the State needed to prove that the Defendant was (1) the parent of the child (2) who was present for the incident and the Defendant (3) intentionally, knowingly or recklessly (4) acted in a manner likely to be injurious to the physical, mental or moral welfare of the child. The Defendant asserts that "the judgment of guilt is against the manifest weight of the evidence." The State did not file a Response.
See 11 Del. C. § 811.
See 11 Del. C. § 1102.
There appears to be no dispute that the second element of Criminal Mischief was established in that there was damage to the car owned by the alleged victim. The State had the burden to prove that the Defendant was the one who caused the damage. As to the charge of Endangering Welfare of a Child, while the Defendant admitted that he and the alleged victim have a child in common, the State had the burden to prove that the Defendant was the person who caused the damage to the alleged victim's vehicle and that the child was present at the time he caused the damage to the vehicle.
Transcript of January 22, 2019, Criminal Trial, at 6, lines 6-7.
The State called Officer Cruise to testify and she provided the following testimony. In the early morning hours of April 12, 2018, she "[was] in the --- Block of ---- ------...on proactive patrol." She was patrolling the area and heard "consistent honking". When she arrived at the honking car, a white Kia Rio, Officer Cruise saw "[t]here was a female and her daughter in the vehicle. [She] observed a broken driver's side shattered window." After running a Deljis Inquiry, Officer Cruise determined the car was owned by S----- M-------. Officer Cruise remembered there was glass inside the vehicle. The alleged victim gave Officer Cruise a phone number and indicated it was the phone number of Defendant, D------ R-----. Officer Cruise testified that she called the phone number around 1:00 a.m. and no one picked up the phone. The same day, but in the evening around 9:00 p.m., Officer Cruise called the phone number again. When a person answered the phone, Officer Cruise requested to speak with Mr. R-----. Officer Cruise indicated that the person who answered the phone "told me it was him on the phone, and we had a conversation." Officer Cruise testified that the person on the phone had a similar story as Ms. M-------. The person on the phone indicated that Ms. M------- arrived at the Defendant's residence "acting disorderly and disruptive" and "[she] grabbed a stick and started striking his vehicle." Officer Cruise further testified that the person on the phone advised her that he knew the child was in the back of the vehicle when he grabbed a rock and threw it through the driver's side window. When the State asked the officer where the child was seated when the window was broken, Officer Cruise testified that "the child was seated in the rear passenger side." However, based on Officer Cruise's testimony, it was clear that the Officer was not present for the incident so it is not clear to this Court how the Officer knew the child was present for the incident and how the Officer knew where the child was sitting during the incident.
Transcript of January 22, 2019, Criminal Trial, at 5, lines 8-9.
Id. 5, lines 14-15.
Id. 6, lines 1-3.
Id. 6, lines 6-7.
Id. 6, lines 16-22.
Id. 9, lines 2-24.
Id. 10, lines 1-7.
Id. 10, lines 13-14.
Id. 11, lines 3-4.
Id. 11, lines 5-6.
Id. 11, lines 15-17.
Id. 12, lines 5-6.
On cross-examination, Officer Cruise could not recall the phone number given to her by the victim but indicated it was in her report. Neither attorney refreshed the Officer's recollection with her report as to the number she called. Furthermore, Officer Cruise testified that she did not independently verify the phone number she called through the phone company to verify whose phone number it was. The only way the Officer knew who was on the phone was that the person who answered the phone approximately 20 hours after the incident took place responded by saying, "Hey, I'm Mr. R-----".
Id. 13, lines 20-21.
Id. 16, lines 13-14.
On re-direct, when asked if the voice sounded familiar, Officer Cruise admitted that she "wouldn't be able to tell you" as the phone call was almost one year ago (from the date of the hearing). There was no testimony presented that the Officer knew the Defendant prior to this matter and would have been able to recognize his voice.
Id. 17, lines 7-11.
Commissioner Mayo questioned Officer Cruise about the child's state when she arrived at Ms. M-------'s vehicle. Officer Cruise indicated "the child was awake" and "seemed okay". The Officer's description of the child's appearance is not consistent with a child who allegedly just witnessed her parents fighting and hitting vehicles or each other with sticks and someone throwing a rock through the window of the car she was in and then her mother repeatedly honking the horn in a state of distress all in the early morning hours of the night. If all of the foregoing were in fact true, it is more likely than not that the child would have been in a state of distress.
Id. 17-18 lines 20, 1.
Commissioner Mayo further questioned Officer Cruise about the phone call on April 12, 2018. Officer Cruise recalled speaking with the person on the phone "about the vehicle, hitting each other with the stick." The person on the phone identified Ms. M------- and indicated that the incident occurred "outside his residence". But, Officer Cruise testified that she was not sure if she confirmed with the person on the phone that his residence was in the ---- ----- of ----- ----.
Id. 18, lines 9-10.
Id. 18, lines 18-19.
Id. 19, lines 1-5.
The Defendant testified in his defense. He explained that Ms. M------- arrived at his residence at one o'clock in the morning and "she was banging on my front and back door. I did not answer my door." The Defendant testified that his address is ---- ----- ---- ------. The Defendant explained that he heard a noise which prompted him to put his clothes on and go outside. When the Defendant went outside, he noticed damage to his "dad's truck...a 2015 Tahoe". The truck was "parked in front of [his] house." The Defendant described the extensive damage to his Father's truck. The "back light was busted...on the driver's side...the big light was busted out. And there was a big...dent in the front of the hood of the car."
Id. 21, lines 1-3.
Id. 22, lines 2-3.
Id. 22, line 8.
Id. 22, lines 12-15.
After reviewing the damage to his father's truck, the Defendant called the police. The Defendant testified that he spoke with a male officer, "in person" and decided he did not want to press charges. The Defendant explained that he "never spoke to this Officer [referring to Officer Cruise]. Um - I've never admitted to throwing anything at anybody's car." The Defendant testified that after speaking with a male officer, in person, at his residence he did not speak with another officer until he was stopped on the street and the police "said [he] had a warrant". The Defendant was surprised about the charges because he had no knowledge of "the child being...around or being a part of the situation until [he] came to court." The Defendant testified that he "never told anyone that [he] threw any rocks or anything, because [he] didn't. [He] never destroyed anybody's property." The Defendant testified that "no Officer was there. Nobody can testify that [he] threw anything at...the property."
Id. 22, line 21.
Id. 24, lines 2-4.
Id. 26, line 11.
Id. 27, lines 3-5.
Id. 27, lines 19-21.
Id. 27, lines 22-23.
On cross-examination, the Defendant consistently relayed his rendition of the events from April 12, 2018. He explained the damage was to his father's car and that he "didn't speak to Ms. M------- at all." The Defendant was in his house, looking out his window and saw Ms. M------- banging on his door with a stick at 1:00 a.m. It was only after hearing a "busting noise, like - like somebody hit something loud" did the Defendant go outside. When the Defendant was outside, he assessed the damage to his Father's vehicle. He testified that Ms. M------- was not at his residence when he was outside.
Id. 29, lines 18-19
Id. 30, lines 23-24
After the Defendant finished testifying, the State of Delaware recalled Officer Cruise. Officer Cruise was asked about any other damaged property on the scene. Officer Cruise testified that she observed that Ms. M-------'s cell phone was shattered and the Officer believed that Ms. M------- had to get police attention by continuously honking her car's horn because she did not have a cell phone. However, the Defendant was not charged with damaging the alleged victim's cell phone. On cross-examination of Officer Cruise, she was asked where the incident occurred compared with where the officer spoke with Ms. M-------. Officer Cruise explained that she understood the incident occurred "[a]t the ---- Block of ----- ----" and Officer Cruise met with Ms. M------- "in the --- of ---- ------". However, as the Officer was not present for the incident, this testimony would have been hearsay as the only way the Officer would have known this information was if the alleged victim told her where her vehicle was damaged and the alleged victim did not testify.
Id. 40, lines 9-10, 17.
CONCLUSION
The Commissioner found the Defendant guilty on both charges. However, after reviewing the Commissioner's findings of fact and the transcript of the hearing, this Court finds that the record does not support a finding of guilt beyond a reasonable doubt.
The victim is the only person who could have testified that it was the Defendant who damaged her vehicle and that their child was present when the incident occurred. The victim did not testify. Without the victim present to testify, the only way the State could prove beyond a reasonable doubt that the Defendant committed the acts was for the State to prove that the Defendant in fact admitted to doing the acts. The State's only witness was Officer Cruise who testified that she called a phone number provided to her by the alleged victim and talked to someone on the phone who admitted to committing the acts. There was no evidence presented as to the actual phone number that the Officer called. The Officer did not do an independent verification of the phone number she called. The Officer had never spoken to the Defendant prior to the phone call and admitted on the stand that she could not identify his voice. The only "evidence" that this Defendant was the individual who answered the phone when the Officer called was the Officer's testimony that the person who answered the phone said, "Hey, I'm Mr. R-----". But, the Defendant denies ever speaking with the officer and denies ever admitting to anything.
Id. 16, lines 13-14. --------
This case was not about weighing the credibility of a witness/victim versus a Defendant. This Court does not dispute that Officer Cruise may have been credible when she indicated that she believed the Defendant answered the phone. However, just because the Officer believed the Defendant was on the other end of the phone, doesn't mean he was. And, the State did not prove beyond a reasonable doubt that the Defendant was the person on the other end of the phone and, therefore, the State did not prove beyond a reasonable doubt that the Defendant admitted to doing these acts. Without the Defendant's admission and without the victim testifying, the State did not prove beyond a reasonable doubt that the Defendant in fact intentionally or recklessly damaged the alleged victim's vehicle or intentionally, recklessly, or knowingly endangered the welfare of his child.
WHEREFORE, the finding of guilt by the Commissioner is hereby REVERSED and the Court finds the Defendant NOT GUILTY of Criminal Mischief under $1,000 and Endangering the Welfare of a Child.
IT IS SO ORDERED this 23rd day of May, 2019.
/s/ _________
JANELL S. OSTROSKI
Judge cc: Parties, Counsel, Commissioner, File