Summary
stating that the State must show that defendant "knowingly endangered" the child's welfare
Summary of this case from State v. JamesOpinion
C.A. No. 9911009756
Decided: October 13, 2000.
ORDER
Defendant, DayleElyean Lynch, identified in the Indictment as Dayle Lynch, and referred to in this Order as "Lynch", is charged with two counts of Unlawful Sexual Contact in the Second Degree, a felony, in violation of 11 Del. C. § 768 and Endangering the Welfare of a Child, a misdemeanor, in violation of 11 Del. C. § 1102. By agreement of the parties, this case was tried before the Court without a jury and the Court must make the necessary findings of fact and conclusions of law with respect to the charges alleged in the Indictment.
The Court, in reviewing all of the evidence and weighing the demeanor of the witnesses finds as follows:
1. In considering the first count of Unlawful Sexual Contact in the Second Degree, three incidents took place which can be summarized as follows:
a. A tickling or wresting incident took place after which Joseph Drejka, a foster child of Lynch and her husband, "Victim", became aroused and then attempted to touch Lynch's breast.
b. A "couch" incident where Lynch was lying on a sofa and was kissed by the Victim who then went to the bathroom.
c. The "hallway hug" incident where the Victim attempted to pull Lynch into his hips and contact of genitals occurred through their clothes.
2. The second count of Unlawful Sexual Contact in the Second Degree is based upon the final incident where the Victim pushed up Lynch's sweatshirt, shirt and bra and the Victim then touched her breast with his hands and lips, the "bra" incident.
I. FACTUAL FINDINGS
The first count of Unlawful Sexual Contact in the Second Degree is based on three separate incidents generally occurring within a two month period in 1999. These incidents were revealed to Greg Cooper, the counselor at Lynch's church which was precipitated by the final incident which gave rise to Count 2 of the Indictment. Upon hearing about the final incident, Mr. Cooper determined that these events should be reported to the proper authorities. Arrangements were made for Lynch and Mr. Cooper to report the incidents to Mrs. Vicki Harris, Intake Officer at Child Protective Services. Thereafter, Mrs. Harris forwarded this matter to the Delaware State Police and the respective charges followed.
Based upon the testimony elicited at the trial, the Court makes the following factual findings. The first three incidents occurred in January and February of 1999 about five to six months after the Victim's placement in the Lynch home. The first incident began in the Victim's bedroom and moved to Lynch's bedroom. During the tickling, the Victim became sexually aroused and attempted to touch Lynch's breasts on the outside of her clothing. Mrs. Lynch stopped the Victim and told him that his actions were wrong. The second incident occurred in the same general time period and took place while Lynch was reading on the sofa. The Victim laid on the couch facing Lynch and gave her what has been described as a passionate kiss. The Victim then left the room and went into the bathroom. The Victim may have been aroused at this time. In later discussions between Lynch and the Victim, the incident was discussed and the Victim was told that he did the right thing by walking away when he felt like he was becoming sexually aroused. The third incident, which also occurred during the same time frame, was a hug which took place between Victim and Lynch. The Victim apparently attempted to pull Lynch into his hips making genitalia contact while both parties were dressed. This hug as well as other hugs as described by Victim and Lynch through testimony were described as close body hugs during which Victim would become sexually aroused on occasion. Mrs. Lynch stated that any time she was aware that the situation had become sexual for the child, she would stop and they would later discuss ways to prevent this from happening again.
The fourth incident which the Court refers to as the "final" incident which gives rise to the second count in the Indictment, occurred a few months after the earlier incidents. On the morning of this incident, Mrs. Lynch went into Victim's bedroom to get him up for school. As a part of their normal morning routine, they engaged in a devotional reading with Victim being in bed and Lynch on the floor next to the bed. On the day in question, the Victim appeared to be starting to hug Lynch when he surprised her and pushed up her clothing and bra. Lynch states that she was surprised by these actions and the Victim told her that he had to see her breasts. At some point in time during this encounter, the Victim touched and sucked upon Lynch's breasts. Immediately following the incident, Lynch held the Victim and told him that she loved him but that what he had done was wrong.
I am satisfied that the facts as related in this case as found by the Court occurred.
II. CONCLUSIONS OF LAW
For this Court to find that unlawful sexual contact in the second degree as defined in 11 Del. C. § 768 has occurred, a person must intentionally have sexual contact with another person who is less than sixteen years of age. The definition of sexual contact is defined in 11 Del. C. § 761 as "any intentional touching of the breasts, buttocks, or genitalia of another person, which touching, under the circumstances as viewed by a reasonable person, is sexual in nature. Sexual contact shall also include touching of those specified areas when covered by clothing." The fact that sexual contact occurred in the above incidents is undeniable and the Court so finds. The question now for the Court is whether Lynch had the intent required for a finding of guilty.
For both counts of Unlawful Sexual Contact in the Second Degree, the State must prove that it was Lynch's "conscious object to engage in conduct of that nature or to cause that result". The Court finds that the State has not proved beyond a reasonable doubt that Lynch "allowed" the contact to occur and that this creates the necessary intent. Even if the Court was to formulate intent in this fashion, the State has not proved beyond a reasonable doubt that Lynch allowed the contact to happen.
The testimony offered showed that Lynch is an affectionate person who attempted to treat this foster child as her own child. This proved to be very difficult for the Victim to handle and Lynch and the Victim avoided contact for a few months. It has not been established that Lynch was aware of the previous abuse problems that the Victim had, but the Court does infer that a reasonable person would come to the conclusion that the Victim did have emotional or physical problems that could indicate that the Victim was an abused child, in light of his behavior during the time Victim was a foster child in the Lynch household. It is clear that after months of no contact, several incidents occurred. The Court finds that it is not credible to consider that by not stopping the actions of the Victim and allowing the contact to occur, ispo facto constitutes the necessary criminal intent required. In each case, the Defendant attempted to dissuade the Victim from doing this. The theory of the State is tenable at best and is rejected by the Court. The testimony for the "bra" incident was such that it was a quick and a surprising event leading to the touching and sexual contact of Lynch's breasts. The same holds true for the three incidents constituting Count I. The State has not proved beyond a reasonable doubt that it was Lynch's conscious objective to have the Victim touch her breasts and having sexual contact as described in this case.
The State has not shown the necessary intent for the counts of Unlawful Sexual Contact in the Second Degree for the four incidents. The State therefore has not proved beyond a reasonable doubt to this Court that Lynch intended the sexual contact to occur between herself and the Victim. Therefore, the Defendant is found not guilty of these charges.
Under 11 Del. C. § 1102, a person is guilty of endangering the welfare of a child when as a parent, guardian or custodian "knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of the child." A person acts knowingly under 11 Del. C. § 231 where "the person is aware that the conduct is of that nature or that such circumstances exist." Again, the Court finds that the difficulty presented to the State is in proving that Lynch knowingly endangered her foster child's welfare. Sufficient facts exist in this case, namely that the course of conduct which Lynch engaged in over the lengthy time involved and described by the Victim, Lynch, and reported by Harris and Cooper are credible facts which the Court may rely upon to show that the knowing element of this offense is established. The time period giving rise to these events, as well as the number of these events, demonstrate that a reasonable person would know that these are likely to be injurious to the physical, mental and moral welfare of the child and are determined to have contributed adversely in harming the Victim. The Court so finds. The Court therefore finds that each and every element of the offense of Endangering the Welfare of a Child has been established beyond a reasonable doubt and therefore I find the defendant guilty of that offense.