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State v. Conaway

Superior Court of Delaware

July 30, 2019

STATE OF DELAWARE
v.
CLAY D. CONAWAY, Defendant.

         Defendant's Motion to Sever - GRANTED

         State of Delaware's Motion in limine - DENIED

         Defendant's Motion to Dismiss Counts 2 and 3 - DENIED

         Defendant's Motion for Production of Brady Material and for Bill of Particulars - DENIED

          Casey L. Ewart, Esquire and Rebecca E. Anderson, Esquire, Department of Justice, attorneys for State of Delaware

          Joseph A. Hurley, Esquire, attorney for defendant

          MEMORANDUM OPINION

          Stokes, J.

         This is a criminal action against Clay D. Conaway ("defendant") alleging he committed rape in the first degree against one alleged victim; rape in the second degree against three other alleged victims; two counts of rape in the second degree against a fifth alleged victim; and attempted rape in the second degree and strangulation against a sixth alleged victim. Pending before the Court are a number of motions: defendant's motion to sever the cases involving the six different alleged victims; the State of Delaware's ("the State") motion in limine to admit evidence under D.R.E. 404(b); defendant's motion to dismiss two counts of the indictment; and defendant's motion for production of Brady[1] materials and motion for a bill of particulars.

         This constitutes my decision on those pending motions.

         I. Motion to Sever

         Defendant seeks an order severing these cases into six cases, where the charges involving the six separate alleged victims are tried separately.

         A) Facts

         The factual scenarios of each event are set forth in chronological order. For purposes of this motion only, defendant agrees the State of Delaware ("the State") has evidence to support the facts set forth below. Stated another way, defendant is not conceding these are the facts which will be established at trial but he is acknowledging these are the facts if viewed in a light most favorable to the State.

         1) T.A.

         Count 2 of the indictment charges defendant with committing the crime of rape in the second degree[2] against T.A., alleging that on or about or between the 1st day of September, 2013 and the 20th day of September, 2013, defendant did intentionally engage in sexual intercourse with T.A., without her consent.

         T.A. and defendant were in high school together. He was a senior; she was 15-years-old. They were talking at school and exchanging information by social media. T.A. sent him "naughty" pictures. Defendant asked if he could come by her house one afternoon and she agreed. He entered her house, asked where the bedroom was, went immediately there, and laid on her bed. T.A. also went into the bedroom. They began kissing. T.A. started to feel uncomfortable and told defendant she had boundaries, which included keeping her pants on, and that she was not going to have sexual intercourse with him. Defendant said "ok" and told her he respected that.

         They resumed kissing. Defendant pulled off T.A. 's pants, grabbed her legs and pushed them up by her head so that she was unable to move. Defendant took off his pants and put his penis into her vagina, without wearing a condom, and began having sex with her. T.A. reported she was in shock, it hurt badly, and defendant ignored her when she told him several different times to stop. His size and strength made it hard for her to physically resist him.

         Defendant told her he was nearly done and she grabbed him by the neck and somehow pushed him off so that he would not ejaculate inside of her. Defendant then finished by masturbating until he ejaculated into a towel on the bed.

         During this episode, T.A, 's sister came into the room; T.A. told her sister that she would be with her shortly, and when the sister left, sexual activities resumed.

         T.A. put her clothes back on. Defendant gave her a "high five" and complimented her by telling her she did a "good job." He told her to cheer up because she no longer was a virgin and she should be proud he was the one who took her virginity. He then left.

         T.A. was extremely upset and told some friends about the episode. Defendant contacted her thereafter with texts, trying to get together with her again. T.A. told him she thought he was better than what his behavior showed that day.

         2) J.E.

         Count 3 of the indictment charges defendant with committing the crime of rape in the second degree against J.E., alleging that on or between the 31st day of December, 2013 and the 1stday of January, 2014, defendant intentionally engaged in sexual intercourse with J.E., without her consent as that term in defined in 11 Del. C. § 761(j)(1) and/or § 761(j)(2).[3]

         Defendant and J.E. attended high school together. A New Year's Eve party took place December 31, 2013 through January 1, 2014 at another student's house. J.E. drank alcoholic beverages. In the early morning of January 1, 2014, she laid down and fell asleep. She woke up to find defendant having sex with her (penile/vaginal intercourse) with other people in the room. Her shirt was still on but her pants and underwear were gone. Defendant had pulled a blanket on top of them. When she realized what was happening, she told defendant to stop, to get off her, but he kept going. She told him again to stop but he ignored her. She told him to stop a third time. At that point, a male in the room verbally intervened, apparently saying, "You are basically raping her." Defendant stopped having sex with her and J.E. got up and headed to the bathroom, crying. Defendant, responding to the rape statement, said, "My dad is a retired State Trooper. Why would I be doing that?" and "I got a fucking scholarship. This can't be happening."

         J.E. had not discussed sex with defendant at any point earlier in the night and she never had given him verbal permission to engage in sexual intercourse with her.

         The majority of those at the party who were interviewed and saw what happened told investigators that J.E. was extremely drunk that night; she did not appear to be moving while defendant was on top of her having sex; and J.E. had to tell defendant to stop more than once before he actually did.

         Later, defendant came into the bathroom where J.E. was with others and tearfully told her he was sorry and said something like, "Don't say I raped you or anything."

         Around noon on January 1, 2014, defendant texted J.E. Some of the others at the party did not think defendant was impaired, while at least one person thought defendant was intoxicated. Defendant sent J.E. texts indicating that both he and J.E. were extremely drunk. He continued texting her over the next few days imploring her not to say he had sex with her without her consent and telling her he did not rape her.

         J.E. went to a counselor and told the counselor about what happened. The counselor called the police.

         The State Police investigated the assaults against J.E. and T.A., but no charges were brought until 2018.

         3) G.K.

         Count 8 of the indictment charges defendant with committing the crime of attempted rape in the second degree against G.K., alleging that on or about or between the 1st day of November, 2017 and the 30th day of November, 2017, defendant did intentionally attempt to engage in sexual intercourse with G.K., without her consent, which acts, under the circumstances as he believed them to be, constituted a substantial step in a course of conduct planned to culminate in the commission of the crime of rape in the second degree. Count 9 of the indictment charges defendant with committing the crime of strangulation[4] against G.K., alleging that on or about the same time and place, defendant did knowingly or intentionally impede the breathing or circulation of the blood of G.K. by applying pressure to her throat or neck.

         G.K. met defendant through a dating application named "Tinder."[5] Both were students at the University of Delaware. G.K. agreed to go to defendant's residence in Newark, Delaware, to meet with him. When she arrived, he took her directly to his bedroom. Once there, they sat down on a couch and began talking. G.K. told him she recently had ended a long relationship and was using the meeting to move forward. After about half an hour, defendant got up and sat on the edge of his bed. He grabbed hold of G.K. by her hip and threw her on his bed so hard that her head struck his headboard. He crawled on top of her, straddling her and holding her down with his body weight while touching her breasts over and under her shirt. G.K. attempted to hit defendant's hands away from her but he continued touching her. He then began pulling at her pants in an attempt to remove them. G.K. yelled at defendant and told him she did not come there to have sex with him. In response, defendant wrapped both of his hands around her neck and began to choke her. G.K. could not breath and thought she was going to die so she fought for her life by moving her body and head as much as she could. She finally was able to sit up and yelled at him, telling him to stop. Defendant let her go. When G.K. asked him what he was doing, he responded that he thought all girls were into that and asked her why had she come over, what was wrong with her.

         Defendant texted someone and soon thereafter, two male roommates came into the bedroom and they escorted G.K. from the residence. She went home and told her roommate what had happened and called her mother via FaceTime. Her mother could see the red marks left by defendant's hands. Her roommate recalls G.K. complaining that her neck hurt.

         G.K. at some point filed a complaint with the University of Delaware's Title IX office indicating that defendant had sexually assaulted her.

         4) K.L.

         Count 5 of the indictment charges defendant with committing the crime of rape in the second degree against K.L., alleging that on or about or between the 27th day of May, 2018 and the 30th day of May, 2018, defendant did intentionally engage in sexual intercourse with K.L., without her consent.

         K.L. was staying at a friend's house in Dewey Beach, Delaware, over Memorial Day weekend. She met defendant, who was an acquaintance of a mutual friend at the beach house on May 26, 2018. On or about May 29, defendant came to the beach house and a group of them went out but had returned to the house by about 1:00 or 2:00 a.m. the next night/morning.

         K.L. and another friend were lying in one of the beds when defendant came into the room, jumped on the bed between them and knocked K.L.'s friend off the bed. This friend left the room. Defendant closed and locked the door, turned off the light, and took off his shirt. Defendant got on top of K.L. and began kissing her, something she was fine with.

         He then removed her pants and underwear and took off his own pants. K.L. told him she was not interested in having sex, out of respect for a friend who had dated defendant. Defendant told K.L. that was okay and they did not have to tell anyone, but his attempts to convince her did not work and she told him again that she did not want to have sex.

         Defendant digitally penetrated K.L.'s vagina, K.L. told him no. She tried to push him off of her but he was too heavy. Defendant told her it did not matter, it was already happening. He then put his penis in her vagina and began having unprotected sexual intercourse with her. She continued to tell him no but he ignored her. At one point, he removed his penis from her vagina and K.L. rolled over onto her stomach, thinking that defendant was done. However, he put his penis back into her vagina and had sex with her from behind for several more minutes. K.L. told defendant no one or two more times while that was going on.

         When defendant pulled his penis out, K.L. rolled over on her back and defendant ejaculated on her stomach.

         Afterwards, defendant played nice. K.L. played along because she wanted to get out of the situation. She suggested they go back downstairs.

         K.L. then told one of her friends about what had happened. When defendant left the house, she told the other girls in the house about what he had done. K.L. had contact with defendant thereafter and she reiterated she had not wanted to have sex. Defendant later asked her not to tell anyone and said he wanted to keep it between the two of them.

         5) M.P.

         Count 1 of the indictment charges defendant with committing the crime of rape in the first degree[6] against M.P., alleging that on or about June 20, 2018, defendant intentionally engaged in sexual intercourse with M.P. without her consent and during the commission of the crime, caused physical injury to M.P.

         Defendant and M.P. communicated by Instagram and Snapchat. The communications included photographs of defendant in the nude, displaying his genitalia. On June 20, 2018, they agreed to meet. In her communications, M.P. informed defendant she was not interested in having sex with him, especially in light of the fact she was having her menstrual cycle.

         Defendant invited her to his home in Georgetown, Delaware. He lived in a detached pole barn on property his parents own. Defendant gave her directions to his home. She drove there and defendant met her outside and took her inside. She sat down on his bed at his invitation. They were watching a movie and under a duvet. They engaged in consensual kissing and cuddling. Then, defendant rolled on top of her and began taking off her clothes, including her underwear. He began saying things, such as "It's fine, don't worry about it," "we're just going to mess around," and "it's not a big deal." M.P. told him again that she did not want to have sex, and he assured her they were not. When she reminded him that she was having her period, he pulled her tampon out and threw it on the floor. He claimed he had a new tampon for her to use; he had gotten it from the main house from his mother's supply before M.P. arrived.

         M.P. began to have an anxiety attack. Defendant got off of her and asked if she was okay. M.P. responded that she was anxious about what was going on and did not want to do this right now. When she asked for her underwear to be returned to her, defendant said no and said things were fine. M.P. insisted; defendant gave her her underwear back; M.P. put them back on. They then laid next to each other. Defendant placed her hand on his penis; M.P. stroked it a few times but then was overcome with anxiety. Then, defendant tried to pull M.P. on top of him. She objected and, defendant said it was fine, they were just messing around.

         M.P. told defendant she did not feel comfortable and she was going to leave. Defendant stuck his arm out as if to block her and told her she did not have to go. M.P. felt like she was frozen and was concerned with defendant's physical size. She ended up back on the bed.

         Defendant then got on top of her. Although she tried to push him off, she was unable. She felt "frozen" and although she told defendant she did not want this to happen, the defendant kept going.

         Defendant began "violently fingering" her vagina. At that point, his hand was touching her throat and she felt as if he was beginning to choke her. He removed his hand and held M.P.'s hair with a pulling motion while continuing to finger her vagina.

         At one point, M.P. realized there was slight penetration of her vagina by defendant's penis and she "faked" an orgasm in an effort to have defendant discontinue that activity.

         She tried to get away and told defendant he was hurting her. He kept telling her things were fine. He began having penile-vaginal intercourse with her, ignoring her efforts to get him to stop. Defendant pushed her legs back toward her head, an action which immobilized her. This push was so aggressive that she ending up having to go to the hospital more than 48 hours later due to continuing pain in her hips.

         Defendant ejaculated on her stomach and wiped the semen off with an article of clothing. A short time later he told M.P. it was time for her to leave. She got dressed and left. Defendant told M.P. to text him when she arrived home and talked about seeing her again in the future.

         M.P. called a friend and reported what happened; she was in tears. She then met with another friend and told her what happened. M.P. decided to go to the hospital for a sexual assault examination and to make a police report.

         Defendant continued to text her about getting together again. M.P. did not respond.

         6) A.L.

         Counts 6 and 7 of the indictment charge defendant with committing the crimes of rape in the second degree against A.L., alleging that on or about or between the 19th day of July, 2018 and the 20lh day of July, 2018, defendant did intentionally engage in two separate acts of sexual intercourse with A.L., without her consent.

         A.L. and defendant began communicating in July, 2018 by way of social media. On July 19, 2018, A.L. agreed to meet with defendant in person. Before this face-to-face contact, A.L. told defendant she did not wish to engage in sexual intercourse with him and that she just wanted to get to know him. She happened to be on her period at ...


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