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State v. Hardy

Superior Court of Delaware, Kent

September 18, 2019

RICKY D. HARDY, Defendant.

          Submitted: August 22, 2019

         Defendant's Motion to Sever Charges Denied.

          Cari A. Chapman, Esquire and Lynn A. Kelly, Esquire, Department of Justice, Wilmington, Delaware; attorneys for the State.

          Joseph A. Hurley, Esquire, Wilmington, Delaware, attorney for the Defendant.


          William L. Witham. Jr. Resident Judge


         Before the Court is Defendant, Ricky D. Hardy's, ("Defendant") Motion to Sever Charges. After considering the briefs and the record in its entirety, it appears to the Court that:


         Following are the Facts as set forth in the Court's Order dated July 12, 2019:

         1. On October 12, 2018, Defendant was attending a football game at Caesar Rodney High School located in Camden, Delaware.

         2. During the game, a sixteen-year-old female, identified as M.C., and her mother notified a law enforcement officer that M.C. had been inappropriately touched on her buttocks in the concession line by a black male wearing a white hat, despite M.C.'s repeated commands to the individual to stop. M.C. also reported that she observed the black male take his hands out of his pockets and touch other girls standing in the concession line, after he had moved away from her position in line.

         3. Based on her interaction with the individual and her observations, M.C. concluded that the inappropriate contact could not be accidental and decided to take a picture of the individual with her cellular telephone. Utilizing that photograph, law enforcement was able to locate Defendant, an African-American male, on the school grounds and confirm that he matched the individual in the photograph. Defendant was subsequently escorted off school property and barred from returning to the school.

          4. After Defendant had departed, law enforcement received another report that a fourteen-year-old female, identified as S.V., was also touched inappropriately by a black male wearing a white hat. S.V. had also taken a picture of the individual that turned out to match Defendant's description.

         5. As a result of M.C. and S.V.'s allegations, Defendant was charged with four counts of Unlawful Sexual Contact in the Second Degree, a felony, in violation of 11 Del. C. §768.[1]

         6. Defendant filed his Motion for Relief from Prejudicial Joinder of the four counts on April 1, 2019. The State's response was filed on June 26, 2019. Oral arguments were held on July 10, 2019 and the Court issued its decision from the bench, denying Defendant's motion.[2] The Court granted re-argument, and the parties filed briefs in support of their positions in accord with the Stipulation and Order for Briefing dated July 19, 2019. Defendant's "Omnibus" Brief in Support of Motion to Sever Charges (hereinafter "Defendant's Brief) was filed July 26, 2019, the State's Brief in Opposition of Severance (hereinafter "State's Brief) was filed August 13, 2019 and "Defendant's Reply Brief in Support of Severance and Exclusion of Other Bad Acts" (hereinafter "Defendant's Reply Brief) was filed August 22, 2019.


         7. Defendant's Motion to Sever seeks to sever Counts 1 and 2 of the indictment related to the alleged incident involving M.C. from Counts 3 and 4 of the indictment related to the alleged incident involving S.V.[3] Defendant's contention, as outlined in his pleading, is as follows:

[t]he presentation of these independent alleged acts, particularly involving sexual impropriety, is so unfairly prejudicial that a curative instruction telling the jury essentially, 'You should not consider the [D]efendant to be some type of pervert that takes advantage of teenage girls by grabbing their buttock.' and expect the jury, consisting of normal human beings, to put completely out of their minds the first incident when considering the second incident and vice versa notwithstanding any instruction that could be crafted mandating that they do so (sic).[4]

         8. The State, in opposition, asserts that the circumstances surrounding the incident warrant the multiple charges being tried together and that Defendant's claim of prejudice, namely, that the jury will not be able to resist the cumulative nature of the two incidents, is baseless.[5]

         9. In the Defendant's Brief, Defendant further argues that the joinder of the charges in this case does not promote judicial efficiency.[6] Defense also argues that the introduction of the evidence of one of the acts in the trial for another similar act will result in prejudice to Defendant.[7] The State restates the argument that the similarities of the two acts warrant joinder under the circumstances.[8]


         10. Superior Court Rule of Criminal Procedure Rule 8(a) (hereinafter "Rule 8(a)"), permits joinder of two or more offenses in the same indictment if the offenses "are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan."[9] Pursuant to Superior Court Criminal Rule 14 (hereinafter "Rule 14"), the Court may grant severance if a defendant is prejudiced by the joinder.[10] It is Defendant's burden to demonstrate such prejudice, and hypothetical suggestions of prejudice resulting from joinder will not suffice.[11]


         A. ...

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