Opinion
C.A. No: 9912000027
Submitted: May 26, 2000
Decided: August 24, 2000
Upon Consideration of the Defendant's Motion to Sever DENIED
Martin B. O'Connor, Esq.. Dover, Delaware. Attorney for the State. Andrew J. Witherell, Esq., Wilmington, Delaware. Attorney for Defendant.
ORDER
Upon consideration of the defendant's motion to sever, the State's response, and the record, it appears that:
1. The defendant, Detlef F. Hartman, is charged with six counts of Unlawful Sexual Intercourse in the First Degree ( 11 Del. C. § 775), one count of Sexual Exploitation of a Child ( 11 Del. C. § 1108), eight counts of Unlawful Sexual Contact in the Second Degree ( 11 Del. C. § 768), One count of Sexual Solicitation of a Child (11 Del. C. § 11 12A), five counts of Unlawfully Dealing in Material Depicting a Child Engaging in a Prohibited Sexual Act ( 11 Del. C. § 1109), and five counts of Possession of Child Pornography ( 11 Del. C. § 1111). In the indictment, the charges of Unlawful Sexual Intercourse in the First Degree, Sexual Exploitation of a Child and Unlawful Sexual Contact in the Second Degree are set forth in counts one through fifteen. The charges of Sexual Solicitation of a Child, Unlawfully Dealing in Material Depicting a Child Engaging in a Prohibited Sexual Act and Possession of Child Pornography are set forth in counts sixteen through twenty-six. The defendant has moved to sever the counts into two groups, one consisting of counts one through fifteen, and the other consisting of counts sixteen through twenty-six. He requests that counts one through fifteen be tried in one trial, and that counts sixteen through twenty-six be tried in a separate trial.
2. In support of his motion, the defendant contends that counts one through fifteen are predicated upon certain alleged sex acts between the defendant and one alleged victim, less than sixteen years old; that counts sixteen through twenty-six, by contrast, are predicated upon certain illegal materials where no victim is required; that counts one through fifteen are not of the same or similar character as counts sixteen through twenty-six; and that the two groups of charges are not part of a common plan or scheme. He further contends that failure to sever will prejudice him because the jury would likely cumulate the evidence of the various crimes charged to find guilt, when, if considered separately, they would not; and the jury may use evidence of alleged Possession of Child Pornography to infer a general criminal disposition of the defendant in order to find him guilty of the crimes involving alleged sex acts with the minor child.
3. In response, the State contends that all of the charged offenses are of the same or similar character, or based on connected acts or transactions, or parts of a common scheme or plan. The State further contends that joinder is not prejudicial and furthers the interest of judicial economy. In support of its contentions, the State represents that the evidence in support of count sixteen, Sexual Solicitation of a Child, will include testimony of the alleged child victim that one of the alleged sex acts occurred while or immediately after the defendant showed the child homosexual and child pornography images on a computer terminal. A subsequent search of the defendant's computer revealed that it contained thousands of images of homosexual men engaged in sex acts and about 150 images of child pornography. The State further represents that the alleged sex act involved with count sixteen is also the basis for count six alleging Unlawful Sexual Intercourse in the First Degree and count fifteen alleging Unlawful Sexual Contact in the Second Degree.
4. The decision to grant or deny a motion for severance rests within the trial court's discretion. The defendant has the burden of demonstrating that a joint trial — will subject him to substantial injustice and unfair prejudice. Prejudice which a defendant may suffer from ajoinder of offenses has been described in the following terms: (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. The decision to grant or deny a motion for severance depends upon the facts of each case.
Wiest v. State, Del. Supr., 542 A.2d 1193 (1988).
Lampkins v. State, Del. Supr., 465 A.2d 785 (1983); Bates v. State, Del. Supr., 386 A.2d 1139 (1978).
Weist at 1195; State v. McKay, Del. Super., 382 A.2d 260 (1978).
Weist at 1195.
5. With regard to count sixteen, Sexual Solicitation of a Child, the State alleges, in substance, that on a particular occasion between July 18 and September 5, 1998, the defendant showed the alleged victim homosexual and child pornography images on a computer monitor as part of a solicitation that the child engage in a prohibited sex act, and that such a sex act resulted. The alleged sex act involved in count sixteen is also the basis for one of the Unlawful Sexual Intercourse in the First Degree counts (count six) and one of the Unlawful Sexual Contact in the Second Degree (count fifteen). Since these three counts all involve, as one of their elements, the same alleged sex act, and involve essentially a single event, it appears that the three counts are so inextricably intertwined that it would be virtually impossible for the State to present its evidence as to any one of the three counts without presenting its evidence with respect to all three. When three charges are intertwined to this extent, it is proper to try them together. There is no prejudice to the defendant in having these three counts tried together, as opposed to having them tried separately. The defendant's specific severance request that counts one through fifteen be severed from counts sixteen through twenty-seven must, therefore, be denied.
Pandiscic v. State, Del. Supr., 604 A.2d 418 (1991); Younger v. State, Del. Supr., 496 A.2d 546 (1985); McDonald v. State, Del. Supr., 307 A.2d 796 (1973).
6. The basis for the Unlawfully Dealing in Material Depicting a Child Engaging in a Prohibited Sex Act and the Possession of Child Pornography charges at counts seventeen through twenty-six is child pornography images allegedly found in the defendant's computer during a search conducted not long after the accusations against the defendant surfaced. Since the means of sexual solicitation which is involved in count fifteen is the alleged display to the child of homosexual and child pornography images on a computer monitor, it would seem to follow that evidence that the defendant had homosexual and child pornography images, or at least child pornography images, in his computer would be relevant and admissible as corroborative evidence of the sexual solicitation charge. Therefore, it appears to the Court that at least part of the evidence which forms the basis for the ten Unlawfully Dealing in Material Depicting a Child Engaging in a Prohibited Sex Act and Possession of Child Pornography charges counts, namely, the computer images, or some of them, will also be admissible at the trial of count sixteen, the sexual solicitation charge. It would also appear that testimony of the alleged victim that computer images were displayed to him would be admissible at the trial of the Unlawfully Dealing and Possession of Child Pornography counts. The fact that evidence of one crime will be admissible in the trial of another crime is a factor favoring a joint trial as opposed to severance. If counts seventeen through twenty-six were tried separately from counts six, fifteen and sixteen, it appears that the evidence of the computer images of homosexual and/or child pornography images would nonetheless be relevant and admissible, in whole or in part, at the trial involving counts six, fifteen and sixteen. Therefore, the defendant is not prejudiced by having the Unlawfully Dealing and Possession of Child Pornography counts tried together with those three counts. It also appears that if counts seventeen through twenty-six were tried separately from six, fifteen and sixteen, testimony from the alleged child victim that the defendant had displayed the images to him would be relevant and admissible at the trial of counts seventeen through twenty-six. Therefore, it would appear that counts six and fifteen through twenty-six involve overlapping evidence and should be tried together.
Parson v. State, Del. Supr., 571 A.2d 787 (1990); Gibbs v. State, Del. Supr., 584 A.2d 1228 (1990); State v. Carson, Del. Super., Cr. A. No. K95-10-0264-02681, 1996 WL 280879, Ridgely, P.J. (April 24, 1996).
7. Counts one through five and seven through fourteen, like counts five, fifteen and sixteen, all involve alleged unlawful sex acts between the defendant and the same alleged child victim over a three-month period. They all arise out of an alleged ongoing relationship with the one child and are intertwined with each other as part of an alleged ongoing, common scheme or plan. Therefore, it appears that counts one through sixteen should be tried together. This in turn leads to the conclusion that all counts are properly joined and should be tried together.
Lowry v. State, Del. Supr., 610 A.2d 726 (1992); Pandiscic v. State, Del. Supr., 604 A.2d 418 (1991); State v. Mayfield, Del. Super., C.A. Nos. IN94-03-13 12, IN94-03-13 19, Toliver, J. (July 5, 1995) (Opinion and Order).
8. While I am reluctant to express an opinion, at this time based on this record, as to whether the computer images are relevant to the alleged sex acts that did not directly involve the showing of pornographic computer images, I nonetheless conclude that all of the counts alleging unlawful sex acts between the defendant and the one child involved, all allegedly occurring over a period of only three months, should be tried together. While it is to be expected that printouts of the computer images, tangible exhibits which the jury can hold in its hands, will be damaging evidence, I am not persuaded that a jury may improperly cumulate the evidence of the various charges or improperly infer a general criminal disposition on the part of the defendant, or that the defendant will be subjected to substantial injustice or unfair prejudice. I am satisfied that the factors which favor a joint trial of all counts outweigh the factors offered by the defendant in support of severance, and that a properly instructed jury can and will keep all of the evidence in proper perspective.
9. Therefore, the defendant's motion for severance is denied.
IT IS SO ORDERED.