Opinion
ID. No. 0003009437
Submitted. August 14, 2000
Decided: November 6, 2000
Upon Consideration of Defendant's Petition For Reverse Amenability DENIED.
John R. Garey, Esq., Dover, Delaware. Attorney for the State.
Paul S. Swierzbinski, Esq., Dover, Delaware. Attorney for Defendant.
ORDER
Upon consideration of the defendant's application that this case be transferred to Family Court pursuant to 10 Del. C. § 1011(b), and the record of the case, it appears that:
1. By indictment filed in April 2000, the defendant was charged with sixteen counts of Unlawful Sexual Intercourse in the First Degree, four counts of Rape in the First Degree, one count of Continuous Sexual Abuse of a Child, one count of Sexual Extortion and eight counts of Unlawful Sexual Contact in the Second Degree. At that time he was seventeen years of age. The indictment charges that the alleged offenses occurred between May 1995 and February 1999, when the defendant was from twelve to sixteen years old. On April 19, 2000, the defendant filed his application that the case be transferred to Family Court pursuant to 10 Del. C. § 1011(b). A hearing on the application was held on August 14, 2000.
2. In acting upon the defendant's application, I am required to consider the following factors and such other factors as are relevant: (1) the nature of the present offense and the extent and nature of the defendant's prior record; (2) the nature of past treatment and rehabilitative efforts and the nature of the defendant's response thereto, if any; and (3) whether the interests of society and the defendant would be best served by trial in the Family Court or in the Superior Court.
3. In considering the nature of the offense, the Court must consider whether the State has established a prima facie case. A prime facie case is established if there is a fair likelihood that the defendant will be convicted. A fair likelihood of conviction is established when, considering the totality of the evidence, and bearing in mind that the defense has yet to be presented, the likelihood of a conviction is real if the defense does not sufficiently rebut the State's evidence. A real probability must exist that a reasonable jury could convict on the totality of the evidence assuming that the evidence introduced at the hearing stands unrebutted by the defendant at trial.
Marine v. State, Del. Supr., 602 A.2d 185, 1211 (1992), cert. Dismissed, 505 U.S. 1247 (1992) (Marine I); Marine v. State, Del. Supr., 624, A.2d 1181, 1185 (1993) (Marine II).
State v. Walker, Del. Super., IK95-04-0023, Terry, J. (June 12, 1995) (ORDER).
Id.
Id.
4. According to the evidence presented at the hearing, the alleged abuse started when the alleged victim, a male, was six years of age. The defendant's mother ran a home day care center. The alleged victim was one of the children in the mother's care. The alleged abuse continued from approximately May 1995 through February 1999. In that month and year, the work arrangements of the alleged victim's parents changed, and the child was taken out of the day care center because it was no longer needed. In March 2000 the parent's work arrangements changed again and they were planning on putting the child back in the day care center. At that point, the child expressed fear about returning to the day care center in writing on a tablet. In the writing he described in detail the acts committed upon him by the defendant. The child's father saw the writing and questioned his son. After discovering the continuous abuse to which his son had allegedly been subjected, the father reported the situation to the police. A state police detective then interviewed the defendant, the defendant's brother and the defendant's father. The alleged victim was interviewed by a forensic interviewer at the Children's Advocacy Center, during which the alleged victim described in detail the acts allegedly committed upon him by the defendant. These included numerous acts of anal intercourse with each other, numerous acts of fellatio with each other and numerous acts of masturbation of each other. In addition, the alleged victim reported that the defendant had threatened to punch him if he told anyone what happened. The defendant's brother stated that he saw the defendant and the alleged victim exit a bathroom in the house on an occasion and each looked as if they had done something wrong. The defendant's sister allegedly witnessed one act of anal intercourse. Evidence was also presented that the alleged victim was examined and displayed abnormalities of his anus consistent with anal intercourse. The defendant admitted engaging in fellatio and anal intercourse but denied committing these acts as many times as the alleged victim reported.
5. Based upon the evidence presented at the hearing, I find that the State has met its burden of establishing a fair likelihood of conviction of the offenses charged. I reach the same result regardless of whether the defendant's alleged admissions are considered.
6. The defendant has no prior record.
7. Since the defendant has no prior record, he has no record of past treatment or rehabilitative efforts.
8. Turning to the issue of whether the interests of society and the defendant would be best served by trial in this Court or the Family Court, the defendant presented testimony from Jay Reeve, a Ph.D. on staff at the Delaware Psychiatric Center. He also serves as clinical coordinator for sex offender treatment within the Psychiatric Center. He testified that based upon his interview with the defendant which included the administration of the WRAT-R test for reading, the defendant would benefit from intensive in-patient treatment for juvenile sex offenders. He explained that the Division of Children, Youth and their Families operates a number of residential sex offender treatment programs throughout the state and has the resources to send clients to out-of-state programs as well. He recommended that the defendant be placed in an environment where he could receive rapid, comprehensive and age appropriate treatment for sex offender behavior. The State called Joe McCorquodale, a juvenile probation officer for the Division of Youth Rehabilitation Services at Stevenson House. His job includes arranging treatment for juveniles at Stevenson House. He is the defendant's case manager. He testified that there are no in-state residential programs for juvenile sex offenders, but that the state does have contracts for six in-patient programs which are located in other states. However, none of those out-of-state in-patient programs treat individuals 18 years of age or older. It appears that the fact that these programs do not take persons 18 years of age is not something that can be simply overridden by court order as it involves contractual and funding issues. The only treatment available for the defendant in Delaware is through the Ferris School. This treatment is not sex offender treatment per se but merely general counseling services. He further testified that the Department of Correction does have a sex offender program for adult offenders which involves weekly counseling.
9. Therefore, it appears that sex offender rehabilitative services are almost non-existent if the defendant is tried through Family Court. Better rehabilitative services exist for adult offenders. The charges are obviously very serious. I find that if the defendant is convicted of the offenses charged that neither his interest, nor the interest of society would be served by a range of confinement limited to age twenty-one, less than three years from now, during which time the defendant would apparently receive no significant sex offender rehabilitative services. Rather, the interests of both the defendant and society require, if he is convicted, that the defendant be subject to adult treatment. Therefore, I find that the interests of justice require that the defendant's case be adjudicated in this Court.
10. The defendant's application that his case be transferred to Family Court is denied.
IT IS SO ORDERED.