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State v. Howard

Superior Court of Delaware, New Castle

October 27, 2014

STATE OF DELAWARE
v.
MARK HOWARD Defendant.

Date Submitted: August 4, 2014

Upon Consideration of Defendant's Amended Motion for Postconviction Relief Pursuant to Superior Court Criminal Rule 61 DENIED

Cari Chapman, Esq., Department of Justice, Wilmington, Delaware. Attorney for the State.

Christopher S. Koyste, Esq., Wilmington, Delaware. Attorney for Defendant.

MEMORANDUM OPINION AND ORDER

Eric M. Davis, Judge

On this 27th day of October 2014, the Court has considered the Amended Rule 61 Motion for Postconviction Relief filed by Defendant. After a review of the record in this case, it appears that:

Trial, Conviction and Sentencing

1. Mr. Howard was a member of the same church as JW and her two sons, JK and BK (collectively, the "boys").[1] Mr. Howard, JW, and the boys became friends.[2] In late 2005 and early 2006, Mr. Howard and JK, then fourteen years old, began spending a significant amount of time together.[3] Specifically, Mr. Howard and JK would frequently go mountain biking.[4]

2. Mr. Howard and the boys developed a relationship during the spring and summer of 2006.[5] JK and BK began staying at Mr. Howard's home overnight.[6] BK was twelve years old at the time.[7] Mr. Howard expressed a desire to be a father figure to JK and BK, and encouraged the boys to call him "dad."[8] JK testified that, during the spring of 2006, Mr. Howard promised that he would pay for him to attend private school, pay for his college education, and give him a car.[9] JK also testified that Mr. Howard promised to designate JK and BK as the beneficiaries on his life insurance policy.[10] Further, JK testified that Mr. Howard walked around his apartment in the nude, asked him questions about his sexual preferences, and discussed masturbation with him.[11]

3. Mr. Howard denied walking around his apartment in the nude.[12] Mr. Howard did however admit to walking naked from his bedroom to the bathroom while the boys were present.[13] Mr. Howard also admits to telling JK that it was okay to masturbate and that everyone did it.[14]

4. During the summer of 2006 Mr. Howard and JK began tracking their muscle growth by measuring various muscles for one another.[15] JK alleges that Mr. Howard pulled down JK's pants and exposed his genitals on one occasion while measuring muscle growth.[16] In addition to tracking muscle growth, Mr. Howard and JK gave each other massages following their bike rides.[17] Mr. Howard claims that the massages were performed in order to remove lactic acid after mountain biking.[18] JK alleges that Mr. Howard pulled down JK's boxers and rubbed his buttocks on two separate occasions during these massages.[19] BK asserts that Howard massaged him on two occasions and rubbed BK's inner thighs near his penis.[20]

5. Both JK and BK testified that Mr. Howard made inappropriate bets with them.[21] JK stated that Mr. Howard offered him twenty dollars on at least ten separate occasions to "moon ride".[22] According to JK, "moon ride" is the term that Mr. Howard used to describe riding a bicycle with one's bare buttocks exposed.[23] JK further testified that Mr. Howard dared JK to sit on his deck for a minute in the nude. On another occasion, Mr. Howard dared JK to perform ten pushups while naked on the deck.[24] JK also stated that Mr. Howard offered him money to sit naked on a rock in the middle of a creek and to swim across a river in the nude.[25] BK testified that Mr. Howard also offered him money to swim naked.[26] Both JK and BK said that they accepted the money from Mr. Howard in exchange for swimming in the nude.[27] According to the boys, Mr. Howard described this type of behavior as part of a normal father-son relationship, but he advised them not to tell anyone, because other people might get the wrong idea.[28]

6. On June 13, 2008, a jury convicted Mr. Howard of two counts of Sexual Solicitation of a Child, Unlawful Sexual Contact in the Second Degree, Attempted Sexual Contact in the Third Degree, and nine counts of Indecent Exposure in the First Degree. Mr. Howard was sentenced on August 1, 2008.

7. Mr. Howard filed a Notice of Appeal with the Supreme Court of Delaware on August 7, 2008. The Delaware Supreme Court opinion provides that Mr. Howard raised the following four claims of error on direct appeal: (1) 11 Del. C. § 1112A (Sexual Solicitation of a Child) violates the free speech guarantee of the First Amendment; (2) 11 Del. C. § 1103(e)(3) (defining "masturbation" as a prohibited sexual act) is void for vagueness; (3) all counts of the indictment were fatally defective due to lack of specificity; and (4) there was insufficient evidence to support a conviction on the Sexual Solicitation of a Child charges.[29] The Supreme Court affirmed Mr. Howard's conviction on September 22, 2009.

Mr. Howard's Rule 61 Motion and Claims for Relief

8. On September 21, 2009, Mr. Howard timely filed a pro se motion for postconviction relief. On November 30, 2010, Mr. Howard's trial attorney ("Trial Counsel") filed an affidavit (the "Affidavit") in response to Mr. Howard's pro se Motion. On January 13, 2012, the Commissioner recommended a denial of all claims. Mr. Howard appealed the Commissioner's Findings of Fact and Recommendations on February 24, 2012. On February 28, 2012, the Superior Court adopted the Commissioner's recommendation and denied Mr. Howard's pro se motion for postconviction relief.

9. On August 19, 2013, the Supreme Court remanded this case to the Superior Court with instructions to appoint counsel and permit the filing of an amended motion for postconviction relief. On December 12, this Court appointed Christopher S. Koyste, Esquire as counsel for Mr. Howard.

10. On May 5, 2014, Mr. Howard submitted the Amended Rule 61 Motion for Postconviction Relief (the "Amended Motion"). On May 27, 2014, the State filed its answer to the Amended Motion. Mr. Howard filed a reply to the State's answer on June 16, 2014.

11. In his Amended Motion, Mr. Howard raises seven grounds for relief: (1) failure by the trial court to offer a unanimity instruction; (2) failure by Trial Counsel to request a unanimity instruction; (3) failure by Trial Counsel to file a motion for reargument; (4) failure by Trial Counsel to file a bill of particulars; (5) failure by Trial Counsel to properly advise Mr. Howard of his right to testify; (6) failure by Trial Counsel to limit prior bad acts and request a limiting ...


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