Opinion
File No. 1901003104
04-14-2020
STATE OF DELAWARE v. R---- C--------- ------ -- -- ------, -- -----
Attorney Christina M. Davis, Esquire Attorney Sean L. Barney, Esquire
Nature of Proceeding
Review of Commissioner's Order Attorney
Christina M. Davis, Esquire Attorney
Sean L. Barney, Esquire Date of Decision:
Date Mailed/Emailed: 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 February 5, 2020, by R---- C------ (herein "Defendant"), represented by the Office of Defense Services. The State of Delaware was represented by Christina M. Davis, Esquire below but no Response was filed in the ROCO. The Commissioner's Order was entered on January 6, 2020, finding the Defendant guilty of Menacing, Unlawful Imprisonment in the Second Degree, Terroristic Threatening, and Offensive Touching.
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 Menacing, Unlawful Imprisonment in the Second Degree, Terroristic Threatening, and Offensive Touching which stemmed from an incident that occurred on January 5, 2019.
After a trial on January 6, 2020, the Commissioner found the Defendant guilty on all charges. In her decision, the Commissioner held as follows:
... [F]rom the beginning I thought that K-----'s testimony was very impactful. I thought that she was upset. You could see how upset she is here on the stand today. I could see that she was on the verge of tears. Her cousin was on the verge of tears when he was describing her injury and her hair and even though that there are some inconsistencies with respect to the - the safe, the guns or whatever, she clearly indicated that she has seen these guns. She identified them, she knew they were there and whether or not they were there or not, even if he were to tell her I'm going to go get a gun and shoot you, it doesn't negate the fact that that's what happened to her.
I believe that she - her testimony was supported by her cousin and that the...fact that the police didn't note any injury, the fact that he said he thought - I remember what he said. Yes, he did say that it looked like she'd been hit by a softball, but what he also said was he just remembers thinking that her face was redder than normal. But he clearly described that she was not herself, that she stayed two months away from her own house because she was scared of him and she said that as well and that - and she described Mr. C------ as having a zero to 100 anger issue. So whether or not injury is observed the day after, which more often than not it is, whether or not they broke up or were going to break up, I don't know. I don't know the circumstances behind it. But I do believe in the consistency of both her statements and the cousin's statement that - that she was attacked by - by Mr. C------.
Transcript of January 6, 2020, Criminal Trial, at 77 lines 4-17.
Id. at 77, 78, lines 21-24, 1-15.
The Commissioner sentenced the Defendant to two (2) years sixty (60) days at Level V suspended for Probation at Level II for one (1) year. Defendant shall take a domestic violence class, undergo a mental health evaluation, and have no contact with K----- V--------- or her home. On February 5, 2020, the Defendant filed the instant ROCO.
DISCUSSION
The Court reviewed the transcript of the January 6, 2020, hearing. The State called three (3) witnesses: K----- V---------, J---- F------, and Delaware State Trooper, Thomas C. Leonardi. The Defense recalled K----- V---------.
In the case at hand, the Defendant was charged with and convicted of Menacing, Unlawful Imprisonment in the Second Degree, Terroristic Threatening, and Offensive Touching. 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 Menacing, the State needed to prove that the Defendant (1) by some movement of body or any instrument (2) intentionally (3) places another person in fear of imminent physical injury. In order to get a conviction for Unlawful Imprisonment in the Second Degree, the State needed to prove that the Defendant (1) knowingly and unlawfully (2) restrains another person. In order to get a conviction for Terroristic Threatening, the State needed to prove that the Defendant (1) threatens to commit any crime likely to result in death or in serious injury (2) to person or property. Lastly, in order to get a conviction for Offensive Touching, the State needed to prove that the Defendant (1) intentionally (2) touches another person, either with a member of his body or an instrument (3) knowing that he is thereby likely to cause offense or alarm to such person. The Defendant asserts, "the finding of guilty on all counts was against the weight of the evidence because of the stark contradictions in the State's evidence that came out at trial rendered the State' evidence insufficient to establish the Defendant's guilt beyond a reasonable doubt." The State did not file a Response.
See 11 Del. C. § 602
See 11 Del. C. § 781
See 11 Del. C. § 621
See 11 Del. C. § 601
ROCO, pg. 3.
The State called the alleged victim, K----- V---------, to testify and she provided the following testimony. On January 5, 2019, she was living at 2708 Pulaski Highway in New Castle County Delaware with her then boyfriend, R---- C------. Ms. V--------- indicated that the couple had been arguing prior to that day and she was home with the Defendant when she asked him a question. Next thing Ms. V--------- realized she was open-hand, slapped on the "right side of [her] cheek to where [she] blacked out. Ms. V--------- indicated she was drug from the front door to her couch and he was on top of her. While on the couch, Ms. V--------- stated the Defendant was holding her down, "hitting [her] really hard and he was ripping out [her], like, pulling on [her] hair to where [she] had a chunk come out the next day when [she] had brushed it." Ms. V--------- explained that she was face down on the sofa and he was hitting her, scratching her head, and said he was going to "effing kill me". After getting off the couch, Ms. V--------- said she ran toward the front door, but the Defendant pushed the door shut so she couldn't get out. Ms. V--------- testified that the Defendant grabbed her by the sweatshirt and pulled her toward the bedroom. She did not feel as though she was free to leave. While pulling Ms. V---------, she testified that the Defendant said "I'm going to get the effing gun, and I'm going to load it and I'm going to put it in your mouth and we're going to go on a long ride and I'm going to shoot you." Ms. V--------- recalled finally freeing herself and running toward the front door.
Transcript of January 6, 2020, Criminal Trial, at 6, lines 7-22.
Id. 8, lines 1-3.
Id. 8, lines 4-5, 20-22.
Id. 9, lines 2-4.
Id. 9, 10, lines 20-24, 1-2.
Id. 10, lines 5-20.
Transcript of January 6, 2020, Criminal Trial, at 11, lines 14-17.
Id. 11, 12 lines 23-24, 1.
Id. 17 lines 5-7.
Id. 12 lines 2-5.
Id. 12, 13 lines 22-24, 1-3.
After she freed herself from the Defendant, Ms. V--------- testified that the Defendant "ended up in the kitchen and pulled out a butcher knife. As soon as she saw the butcher knife in his hand and he was "glaring at [her]", Ms. V--------- ran out of her home, crossing Route 40, and into a pizza shop. Ms. V--------- recalled that when she saw him with the butcher knife, she testified that she thought "he's going to stab me". Ms. V--------- testified that she thought "[she] was going to die that night because [she] didn't even stay at [her] house for two months." Further, she testified that "when he was on top of me and [she] couldn't get off, [she] thought for sure [she] was going to die that night and that when [she] saw the knife, that's when [she] ran out into the middle of Route 40."
Id. 13, lines 3-4.
Id. 13, lines 10-19.
Id. 15, lines 2-5.
Id. 15, lines 21-22.
Id. 16, lines 10-13.
The Commissioner asked Ms. V--------- whether or not the Defendant owns a gun. She testified that the Defendant owns "about six" and "they're in a safe".
Id. 17, lines 14-16.
On cross-examination, the alleged victim Ms. V--------- indicated that the Defendant was having a cigarette in the back part of the house before she was attacked. She testified that the "[Defendant's] anger goes from zero to 50" very quickly. After recounting the same story as she did on direct examination, Ms. V--------- described the guns owned by the Defendant. She testified, the Defendant owns "one or two long ones and then... a couple of short ones." She explained that the Defendant had owned the guns before they met. Before the Defendant and Ms. V--------- moved in together, she recalled going to the Defendant's apartment in 2017 and him showing her the guns. When the Defendant moved in with Ms. V--------- she testified that "there was a safe and that's where he kept them [the guns] at". She indicated the gun safe was in their bedroom's closet and she knew the code to the safe. Ms. V--------- testified that they bought the gun safe in "November or December of 2018".
Id. 20, lines 3-9.
Id. 20, lines 11-12.
Id. 20, lines 21-22.
Id. 22, lines 10-11.
Id. 24, lines 3-6.
Id. 24, lines 13-15.
Id. 25, 26 lines 1, 10-11.
Id. 26, lines 17-18.
Also on cross-examination, Ms. V--------- was asked about the Defendant allegedly striking her. She indicated the sequence of events was quick. "He slapped me, blacked out, and the next thing [she knew she] was on the couch, he was on top of [her] screaming that he effing hates [her] and he's going to effing kill [her]. When asked about which side she was struck, Ms. V--------- testified that she struck on "the left side." She testified the bruise "was probably about the size of a quarter." After running from the home and into the pizza shop, Ms. V--------- indicated she called her cousin to pick her up and waited in the back of the pizza shop until he arrived. When her cousin arrived, she explained that she went to her cousin's house that night and was unable to sleep. She recalled she went to "Troop 2 the next day to pick up the truck."
Id. 27, 28 lines 24, 1-3.
Id. 29, 30 lines 19-24, 2.
Id. 30, lines 21-22.
Id. 31, lines 12-14.
Id. 32, lines 2-11.
Id. 33, lines 6-7.
The Commissioner asked Ms. V--------- if she sought medical attention or took anything for pain. Ms. V--------- indicated she did not seek medical attention but took some Tylenol. The Commissioner also asked about a scar on her elbow that she mentioned. Ms. V--------- testified that it was a mark "like a rug burn...from where he had pulled me from the front of the door and to the couch..." The Commissioner asked Ms. V--------- if she took pictures of her injury and she did not.
Id. 34, lines 7-11.
Id. 34, lines 9-13.
Id. 34, line 16.
Id. 34, lines 19-22.
Id. 35, lines 5-7.
The State called the alleged victim's cousin, J---- F------, to testify and he provided the following testimony. Mr. F------ testified that he received a call from his cousin, K----- V---------, on January 6, 2019, around 8:00 p.m. Ms. V--------- called him from "across the street from where she lived at a pizza shop called D-------'-." During the phone call, Mr. F------ testified that "[Ms. V---------] [said], 'can you come get me?'... 'R---- just beat me up'" Mr. F------ testified that Ms. V--------- looked disheveled and she did not have socks or shoes on. He testified that her demeanor "wasn't the same person that [he] knew" and she was crying. After picking up Ms. V---------, he dropped off his wife and daughter at his house then "went to the Troop". When he dropped off his wife and daughter, he gave Ms. V--------- some of his clothes before driving to the police station. At the Troop, they were told to go back to Ms. V---------'s house to do the police report, where they waited for a Trooper to arrive. Mr. F------ testified that Ms. V--------- stayed at his house for two months as she was "extremely scared and frightened... it took a long time to get K----- back to where she was K----- again."
Id. 37, lines 9-13.
Id. 37, lines 22-23.
Id. 38, lines 5-6.
Id. 39, lines 7-11.
Id. 39, lines 12-16.
Id. 39, 40 lines 22-24, 1.
Id. 40, lines 2-17.
Id. 41, lines 16-23.
Id. 42, lines 5-14.
On cross-examination, Mr. F------ was asked about the sequence of events, testifying that "after we went to the Troop...we went back over to the house and she came back to [his] house." Mr. F------ indicated that when he went back to Ms. V---------'s residence, they waited until two Troopers arrived and she spoke with at least one of the Troopers.
Id. 43, lines 21-23.
Id. 44, lines 2-22.
The Commissioner asked Mr. F------ about any noticeable injuries on Ms. V---------. Mr. F------ testified that "[she had in the back of her head...like dig marks on her scalp." He also noticed redness near her right eye that "almost like she got hit with a volleyball or something." Furthermore, Mr. F------ testified that "the next day it was like black and blue."
Id. 45, lines 1-2.
Id. 45, lines 3-5.
Id. 45, lines 7-11.
Id. 45, lines 13-14.
The State's final witness was Delaware State Trooper, Thomas C. Leonardi. Trooper Leonardi testified that he made contact with the alleged victim Ms. V--------- on January 16, 2019. When Trooper Leonardi spoke with Ms. V---------, she indicated that "she was engaged in a...verbal altercation with her boyfriend R---- which escalated into a physical altercation." Trooper Leonardi testified that Ms. V--------- told him, "the verbal argument initiated that day because of an ambivalence of R---- and their relationship not knowing if he wanted to be with her or something along those lines." Trooper Leonardi testified when he made contact with Ms. V--------- he did not observe any redness or physical injury to her. While at the residence with Ms. V---------, Trooper Leonardi testified that he did not observe the gun safe.
Id. 48, lines 13-14. The transcript indicates January 16, 2019. However, all other references to the date of the domestic incident are January 6, 2019.
Id. 48, lines 14-16.
Id. 49, lines 1-4.
Id. 49, lines 21-24.
Id. 50, lines 12-14.
On cross-examination, Trooper Leonardi indicated that he did write a police report based on the aforementioned night. Defense Counsel admitted Trooper Leonardi's police report as Defendant's Exhibit 1. Defense Counsel had Trooper Leonardi read underlined parts of his investigative narrative section of his police report aloud. Trooper Leonardi read "[t]here were no visible marks on V1's face." Trooper Leonardi recalled Ms. V--------- pointing to the back of her head, but "[he] couldn't see anything..." He testified that he shined a flashlight on her head, but her hair was thick and he couldn't see her scalp. Trooper Leonardi could not recall Ms. V--------- mentioning an elbow wound. Trooper Leonardi testified that he did not check the gun safe at Ms. V---------'s residence.
Id. 51, lines 20-22.
Id. 54, lines 1-2.
Id. 54, lines 6-7.
Id. 54, lines 9-10.
Id. 54, lines 12-17.
Id. 55, lines 20-22.
Defense Counsel asked Trooper Leonardi the basis for charging the Defendant with Terroristic Threatening. Trooper Leonardi testified that there were two instances. In the first instance, the victim was pushed down on the couch and she alleged that the Defendant said "I fucking hate you. I want to kill you. I'm going to kill you." In the second instance, after being dragged toward the gun safe, she alleges that the Defendant said "We are going to go for it tonight. You put a gun in my mouth, I'll put a gun in your mouth and we'll kill each other." Trooper Leonardi asked Ms. V--------- about the guns and if she had access to the gun case. He indicated that if she had access, he would have asked to see the weapons. In the days following the alleged domestic incident, Trooper Leonardi continued to canvass the area near Ms. V---------'s residence to see if the Defendant returned. When Defense Counsel asked Trooper Leonardi about the No Contact Order and the Order that required Defendant to relinquish his weapons, Trooper Leonardi indicated that "[a]t the time of arraignment, [Defendant] did not admit to having any weapons." Defense Counsel asked Trooper Leonardi that even though Ms. V--------- feared for her life, did anybody follow up about the Defendant's alleged weapons and he indicated no. Trooper Leonardi indicated that he was not aware of any effort by Ms. V--------- to get somebody to follow up on the Defendant relinquishing his weapons. The State the rested.
Id. 56, lines 6-10.
Id. 56, lines 11-16.
Id. 56, lines 23-24.
Id. 57, lines 6-13.
Id. 58, lines 7-15.
Id. 58, 59 lines 7-24, 1-20.
Id. 60, lines 1-8.
Id. 60, lines 10-13.
Defense Counsel recalled Ms. V---------. Defense Counsel handed Ms. V--------- a picture and she confirmed it was a text message exchange between her and the Defendant. When asked about the date and time of the text message exchange, Ms. V--------- testified it was from January 5th at 3:41 p.m., several hours before the aforementioned domestic incident. Ms. V--------- read "'[h]ere is the last picture we ever had. I thought you were forever. Goodbye, R----. You will never find anyone who loves you like I did and would do you. You will never hear from me again. Goodbye.'" Ms. V--------- testified that the message she sent "wasn't the same day that...all that took place." During the State's cross-examination of Ms. V---------, the Defendant spoke out and said "you feel... fearful huh?" then said "...you're selling my stuff online, but you feel fearful, huh?" Ms. V--------- responded saying "[h]e loves to intimidate me." Ms. V---------, again, stated that the text message exchange was not several hours before the domestic incident. Even though the police report indicates that the Trooper responded "at approximately 00:33 hours" on January 6, 2019, Ms. V--------- testified that the Defendant physically attacked her on January 6, 2019, between 6:00 and 8:00 p.m.
Id. 63, lines 1-8.
Id. 63, 64, lines 9-24, 1-16.
Id. 65, lines 3-6.
Id. 65, lines 18-19.
Id. 68, lines 6-14.
Id. 68, lines 22-23.
Id. 69, lines 8-10.
Id. 69, 64, lines 11-24, 1-21.
On redirect, the State asked Ms. V--------- if it was possible that she could be getting the dates confused because the domestic incident occurred over one year prior, and she said "yes".
Id. 71, lines 8-10.
CONCLUSION
The Commissioner found the Defendant guilty on all charges. The Commissioner's decision in this case was based on weighing the credibility of the victim, K----- V---------, and the witnesses. "The Commissioner is in the best position to determine the credibility of the parties because the Commissioner had the parties before her and observed their demeanor at the hearing." And, "[t]he Commissioner had the benefit of assessing the witnesses' credibility firsthand ..." "Therefore, unless there was an abuse of discretion, the Court will defer to the factual findings of the Commissioner." The Commissioner found Ms. V---------'s testimony was very impactful. The Commissioner observed her demeanor at the hearing and saw that Ms. V--------- was upset and on the verge of tears. The Commissioner believed Ms. V---------'s testimony was supported by her cousin, J---- F------.
H.C. v. C.C., 2015 WL 6442057, at *2 (Del. Fam. Ct. Apr. 1, 2015). See D.H.M. v. D.T.M., 2012 WL 5844912 (Del.Fam.2012).
Id.
Id. --------
The Commissioner indicated that even though there were some inconsistencies with respect to the safe and the guns, Ms. V--------- indicated that she had previously seen the Defendant's guns. The Commissioner found Ms. V--------- to be credible.
The Commissioner also mentioned that although the police didn't observe any injury or note it in their report, Ms. V---------'s cousin said that it looked like she'd been hit by a softball, and he remembered thinking that her face was redder than normal. The Commissioner found Mr. F------ to be credible.
Also, the Commissioner acknowledged that whether or not Ms. V--------- and the Defendant broke up or were going to break up, she believed that K----- V--------- was attacked by the Defendant.
The Commissioner heard the testimony and observed the witnesses' demeanor as they testified. The Commissioner was in the best position to determine credibility. Therefore, the Court affirms the Commissioner's decision that the State proved beyond a reasonable doubt that the Defendant committed the crimes of menacing, unlawfully imprisonment, terroristic threatening, and offensive touching K----- V---------.
WHEREFORE, for all of the foregoing reasons, the Commissioner's Order dated January 6, 2020, finding the Defendant guilty of Menacing, Unlawful Imprisonment in the Second Degree, Terroristic Threatening, and Offensive Touching is AFFIRMED.
IT IS SO ORDERED this 14th day of April, 2020.
/s/ _________
JANELL S. OSTROSKI
Judge cc: Parties, Counsel, Commissioner, File