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State v. Harmon

Superior Court of Delaware, Kent

August 23, 2019

STATE OF DELAWARE
v.
ANTHONY G. HARMON, Defendant.

         RK17-06-0573-01 Child Sex Abuse (F)

         Upon Defendant's Motion for Postconviction Relief Pursuant to Superior Court Criminal Rule 61

          Kathleen A. Dickerson, Esq., Deputy Attorney General, Department of Justice, for the State of Delaware.

          Anthony G. Harmon, pro se.

          COMMISSIONER'S REPORT AND RECOMMENDATION

          ANDREA M. FREUD COMMISSIONER

         The defendant, Anthony G. Harmon ("Harmon"), pled guilty on January 11, 2018 to one count of Felony Sexual Abuse of a Child by a Person in a Position of Trust, Authority or Supervision in the First Degree ("Child Sexual Abuse"), 11 Del. C. § 778(2). He also faced one additional count of Child Sexual Abuse and two counts of Felony Sex Offender Unlawful Sexual Conduct Against a Child which were nolle prossed by the State in exchange for Harmon's plea. As part of the plea deal the State and the defense agreed upon a recommended sentence of twenty-five years incarceration suspended after serving twelve years, ten of which were minimum mandatory followed by probation. The Court agreed with the sentence recommendation and sentenced Harmon accordingly. Had Harmon gone to trial and been found guilty as charged he faced life in prison due to his status as an habitual offender.[1] Harmon did not appeal his conviction or sentence to the State Supreme Court. Instead, Harmon filed the pending motion for postconviction relief pursuant to Superior Court Criminal Rule 61 on September 27, 2018 in which he alleges, in part, ineffective assistance of counsel.

         FACTS

         The following are the facts as outlined by the State in their reply to Harmon's motion and documented by accompanying exhibits including the police report, DNA report and other documents attached to the State's Reply.

The defendant was arrested on June 15, 2017, and subsequently charged by indictment with two counts of Sexual Abuse of a Child by a Person in a Position of Trust, Authority or Supervision in the First Degree, violations of 11 Del. C. § 777(2), and two counts of Sex Offender Unlawful Sexual Conduct Against a Child, violations of 11 Del. C. § 777A. The case resulted from a disclosure of sexual abuse by the 14-year old victim who informed her mother through text messaging that she had engaged in sexual intercourse with the defendant who was her mother's husband. (Exhibit "A"). The victim indicated that she thought she could be pregnant with the defendant's child.
Following the disclosure, a forensic interview was conducted with the victim at the Children's Advocacy Center [("CAC")]. During this interview the victim disclosed that the defendant had engaged in sexual contact and sexual intercourse with her on several occasions at different locations. The victim stated that the last incident occurred on March 12, 2017, at the family's home at [address redacted] in Dover. On this date she performed fellatio on the defendant and they engaged in penile-vaginal intercourse on the defendant's marital bed. The victim stated that she wore a white short sleeve shirt, orange or pink pajama pants, and dark blue or pink underwear. While the victim and defendant were in the bedroom, he used a camera application on his cell phone to monitor the home's stairwell to make sure that no one saw them.
The victim received medical treatment, including a forensic examination, at Bayhealth - Kent General Hospital. During this examination she revealed that she had sex with her stepfather the day before and that she had engaged in sexual intercourse with him on other occasions during the past year. She reported to the nurse examiner that the last encounter included penile-vaginal intercourse and oral copulation with the defendant (Exhibit "B").
Detective Boone of Dover Police Department interviewed the defendant. The defendant denied having a sexual relationship with the victim and could not explain why the victim would make this allegation. He stated that they had a good relationship. He admitted that he was in the bedroom with her for twenty minutes on March 12, 2017, that he used the cell phone application to monitor the house's camera and that his daughter was in the shower during the time he was in the bedroom with the victim.
Evidence was collected from various sources during the investigation. The victim's dark pink or red sweat pants were seized from a laundry hamper in her bedroom and sent to the Division of Forensic Science for examination. Analysis revealed the presence of the defendant's spermatozoa on the pants. The analyst opined that the odds of the DNA profile coming from any person other than the defendant were 1 in 7 trillion (Exhibit "C").
The defendant was interviewed a second time at Dover Police Department and confronted with the results of the DNA test. He again denied sexual contact. He informed the detective multiple times that he had no explanation for the results. He then requested to speak to his wife, the victim's mother and told her over the telephone that the victim had requested his sperm so she could ...

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