Submitted: January 30, 2019
Anthony J. Hill, Esquire Deputy Attorney General Attorney for
the State of Delaware
Srivatsan, Esquire Assistant Public Defender Attorney for
DECISION AFTER TRIAL
HONORABLE CARL C. DANBERG, JUDGE
defendant, Felix Hutchinson (hereinafter
"Defendant"), was charged with Offensive Touching
against Patrick Harsha (hereinafter "Mr. Harsha"),
a Wilmington Housing Authority ("WHA") security
guard. Defendant stood trial on August 6, 2018. During trial,
Defendant moved for dismissal of the case based on the
State's failure to provide Defendant with 911 recordings.
The Court denied the Motion to Dismiss in a Memorandum
Opinion and Order on January 30, 2019. Defendant also moved
for a judgement of acquittal, which was denied by the Court
at trial and again in the Court's Memorandum Opinion and
Order on Defendant's Motion to Dismiss. This is the Final
Decision and Order of the Court after trial.
AND PROCEDURAL HISTORY
September 3, 2017, Defendant was charged with Offensive
Touching, in violation of 11 Del. C. §
601(a)(1). The incident took place June 30, 2016, when Mr.
Harsha was working nightshirt as a security guard for WHA,
Mr. Harsha testified at trial that he heard a person
screaming around 3:00 a.m., while making his rounds to the
WHA housing sections he patrolled. Shortly thereafter, Mr.
Harsha made contact with Defendant on Garden Court in Madison
Gardens, located in Wilmington, Delaware. Mr. Harsha
testified at trial that upon making contact, Defendant was
observed in the parking lot yelling and screaming random
statements. Mr. Harsha, who was in uniform, exited his WHA
vehicle and advised Defendant to return to his residence.
Defendant was not compliant with Mr. Harsha's request.
Mr. Harsha also noticed a strong odor of alcohol emanating
from Defendant. Subsequently, Mr. Harsha walked away from
Defendant to call the Wilmington Police Department
("WPD"). After that call, Defendant was screaming
at Mr. Harsha, telling him to leave and move his vehicle. Mr.
Harsha advised Defendant that he was unable to leave until
Defendant returned to his residence. It was at that time that
Defendant began punching and kicking Mr. Harsha's
vehicle. Mr. Harsha again called WPD and notified them of the
developments. Defendant then attempted to gain entry into Mr.
Harsha's vehicle, but Mr. Harsha was able to prevent
Defendant's access. Defendant then attempted to take Mr.
Harsha's security badge and pins from Mr. Harsha's
uniform, at which time a short fight ensued.
Defendant's attempt to take Mr. Harsha's badge and
pins, Mr. Harsha swatted Defendant's hands away.
Defendant responded by striking Mr. Harsha in the face,
causing Mr. Harsha to defend himself and strike Defendant.
Defendant fell and hit his head on the ground and proceeded
to stand up and take another swing at Mr. Harsha
unsuccessfully. Defendant fell multiple times during the
exchange and kept getting back up, attempting to strike Mr.
Harsha again. Mr. Harsha was able to notify a co-worker of
the struggle via a two-way radio. Eventually, Defendant
struck Mr. Harsha in the back of the head and the parties
fell to the ground wrestling until Mr. Harsha was finally
able to restrain Defendant until police arrived.
Police responded to a complaint of a disorderly person on the
200 block of Garden Court. Senior Corporal Matthew Cavanaugh
(hereinafter "Sr. Cpl. Cavanaugh") responded to the
scene. Upon Sr. Cpl. Cavanaugh's arrival, he observed
other WPD officers assisting Mr. Harsha while Mr. Harsha had
Defendant pinned to the ground. Officers had then placed
Defendant in handcuffs and detained him in the back of a
police vehicle to secure the scene and interview both
parties. While police attempted to interview Defendant,
Defendant kept screaming and yelling irrelevant utterances.
After two attempts, police were unable to obtain an answer
from Defendant regarding what had happened. Sr. Cpl.
Cavanaugh could smell alcohol emanating from Defendant during
contact. Sr. Cpl. Cavanaugh stated at trial that upon
interviewing Mr. Harsha, Sr. Cpl. Cavanaugh observed Mr.
Harsha's clothes to be disheveled as if he had been in a
fight and Mr. Harsha's speech to contain high and low
pitches consistent with adrenaline.
police were interviewing Mr. Harsha, a loud banging noise was
heard coming from the police vehicle where Defendant was
detained. Upon inspection, Sr. Cpl. Cavanaugh found Defendant
with a new laceration on his forehead and blood on the
plexiglass partition in the back seat of the vehicle. Sr.
Cpl. Cavanaugh then provided Mr. Harsha with a card
containing the report number and advised him to make an
in-person complaint at the Justice of the Peace Court 20, as
the offense was a misdemeanor that occurred outside the
presence of law enforcement. Sr. Cpl. Cavanaugh then
proceeded to transport Defendant to the hospital to seek
treatment of the self-inflicted laceration on Defendant's
head. Defendant continued to bang his head in the back of Sr.
Cpl. Cavanaugh's vehicle while being transported.
Subsequent to the incident, Sr. Cpl. Cavanaugh filed an
incident report and Mr. Harsha executed a citizen's
warrant for the offense.
State must prove beyond a reasonable doubt that Defendant
"intentionally touche[d Mr. Harsha] . . . with a member
of his . . . body . . . knowing that [Defendant was] thereby
likely to cause offense or alarm to [Mr.
Harsha]." As explained during trial, the Court finds
that the State has met its burden. This case turns on
credibility of the parties' witnesses. "It is
well-settled that the trier of fact "is the sole judge
of the credibility of the witnesses and responsible for
resolving conflicts in the testimony." In a non-jury
trial, the credibility of witnesses is a question of fact for
the Court to decide. The Court's decision shall be
"sufficiently supported by the record and [be] the
product of an orderly and logical deductive
process." The Court "should consider each
witness's means of knowledge; strength of memory;
opportunity to observe; how reasonable or unreasonable the
testimony is; whether it is consistent or inconsistent;
whether it has been contradicted; the witnesses' biases,
prejudices, or interests; the witnesses' manner or
demeanor on the witness stand; and all circumstances that,
according to the evidence, could affect the credibility of
for the State was Mr. Harsha and Sr. Cpl. Cavanaugh.
Testifying for the defense was Defendant. After hearing
testimony, the Court finds the State's witnesses to be
consistent and compelling. The Court does not agree with
Defendant's contention that the testimony of the
State's witnesses are "majorly inconsistent."
Both Mr. Harsha and Sr. Cpl. Cavanaugh described that
Defendant smelled of alcohol, appeared intoxicated, was
acting irrationally and struck Mr. Harsha. The Court finds
the inconsistencies in their testimony to be immaterial to
the charge of offensive touching. Furthermore, Defendant
testified during trial that he was outside with his boom box,
singing to music at 3:00 a.m. while waiting for his brother
to get off of work so that they could celebrate his
brother's birthday. Defendant conceded at trial that he
did not comply with Mr. Harsha's request to return to his
residence. Defendant also admitted during trial that he had
obtained an alcoholic beverage for this occasion but had only
consumed a small shot prior to the incident.
Court is not persuaded that Defendant was first attacked by
Mr. Harsha and then again by the police as Defendant implies.
Rather, the Court finds that Defendant was not forthcoming
during his testimony about his level of intoxication and
Defendant's account of events was significantly divergent
from the two State witnesses. With regard to credibility, the
Court finds Mr. Harsha significantly more credible than
Defendant. The Court paid particular attention to the
demeanor of each witness on the stand, their willingness to
answer questions from opposing counsel and their frankness
about their own memory failings. Mr. Harsha was emotional in
his testimony, and appeared to be honestly attempting to
fully answer all questions posed to him regardless of the
source. Mr. Harsha was also candid about his memory lapses
and was ...