Submitted: May 8, 2019
Below: Family Court of the State of Delaware I.D. No.
appeal from the Family Court.
M. Walker, Esquire, Assistant Public Defender, Wilmington,
Delaware for Appellant, Joseph Baker, Jr.
Williams, Esquire, Deputy Attorney General, Dover, Delaware
for Appellee, State of Delaware.
VAUGHN, SEITZ, and TRAYNOR, Justices.
an appeal from an order of the Family Court adjudging the
appellant, Joseph Baker, Jr.,  a minor child, delinquent for
having committed an act of Rape in the Second Degree.
Initially, Baker was charged with three counts of Rape in the
Second Degree. Count Two was voluntarily dismissed by the
State before trial. At trial, the Family Court judge found
Baker delinquent on Count One and acquitted him on Count
Three. On appeal, Baker argues that the judgment of
delinquency for the one count of Rape in the Second Degree
should be reversed because of evidentiary errors made by the
Family Court judge at trial. We agree that errors were made
and reversal is required.
alleged that the two counts of Rape in the Second Degree that
went to trial occurred in Kent County. The alleged victim in
both counts is Baker's younger sister, S.B. She was six
years of age at the time of the alleged offenses. Baker was
thirteen years of age at the time of the alleged offenses.
The acts of rape are alleged to have occurred in S.B.'s
home when Baker was there for weekend visitations. They are
alleged to have occurred in Baker's bedroom.
first claim of error made by Baker relates to the testimony
of Emily Brown, a friend of S.B.'s mother. Brown was the
first witness called by the State She testified that her two
sons were playing with S.B. on a trampoline in her backyard.
She testified that she overheard S.B. say, "Junior
showed me his privates," and that one of her sons
responded, "Who's Junior?" S.B. explained
that Junior was her brother. According to Brown, when her
sons asked S.B. why her brother did that, S.B. "was
like, 'He made me'-you know, 'He'-she said,
'I don't know. He showed me his privates and made me
touch them . . . .'"
testified that she put an end to the conversation and called
S.B.'s mother to report what S.B. had said. She also
spoke to S.B. and said, "I heard what you said on the
trampoline, about Junior." "Yeah," responded
Brown then asked, "Where were your parents at, when he
did this?" S.B. said that her parents were sleeping
at the time.
counsel made a timely objection to Brown's testimony on
the ground that it contained inadmissible hearsay. The State
argued that S.B.'s statements as related by Brown were
not offered for the truth of the matter asserted, but instead
were offered for information as to what S.B. eventually told
her mother and to show that S.B. was not being coached.
Baker's counsel responded that she had not made any
argument or assertion that S.B. was coached. The Family Court
judge overruled the objection.
Court reviews "a trial court's ruling admitting or
excluding evidence for abuse of
discretion." Baker contends that Brown's testimony
did not satisfy the requirements of Delaware Rule of Evidence
801(d)(1)(B), which provides that a statement is not hearsay
if "[t]he declarant testifies and is subject to
cross-examination about a prior statement, and the statement
. . . is consistent with the declarant's testimony and is
offered . . . to rebut an express or implied charge that the
declarant recently fabricated it or acted from a recent
improper influence or motive in so
testifying." The State argues in response that the
trial judge did not abuse his discretion in admitting
Brown's testimony relating to S.B.'s statements
because during the testimony of the first witness the trial
judge had no idea what further evidence might reveal.
case, both sides waived opening argument, Brown was the first
witness called by the State, and there was simply no
evidentiary basis upon which the trial judge could have
concluded that Brown's testimony relating to S.B.'s
statements was offered to rebut an express or implied charge
that S.B. had recently fabricated her accusations against
Baker or that she acted from a recent improper influence or
motive. Admission of S.B.'s hearsay statements overheard
by Brown was error.
State also argues that any error in admitting Brown's
testimony was harmless because S.B.'s out-of-court
statements could have been admitted under 11 Del. C.
§ 3507. Section 3507, however, applies "[i]n a
criminal prosecution.""[A] Family Court
adjudication of delinquency is a civil
proceeding." Because the delinquency proceeding
involved here was not a "criminal prosecution,"
§ 3507 does not apply.
second evidentiary issue Baker raises on appeal relates to
the testimony of Kitty Nelson, a child-protective-services
investigator for the Department of Social Services in
Caroline County, Maryland. Nelson interviewed S.B in
connection with the allegations. Nelson's testimony at
trial focused on the use of anatomical dolls during her
interview with S.B. She testified that through the use of the
anatomical dolls, S.B. illustrated the alleged acts of rape
Baker committed upon her. Baker's trial counsel made a
timely objection that any statements made by S.B. during the
interview, including, by implication, the nonverbal
statements made through ...