Kent v. State (Del. 2025): Strategic Impeachment That Backfired Is Not Ineffective Assistance; Child Testimony and Circumstantial Access Sustain Continuous Sexual Abuse Conviction

Introduction

In Kent v. State, the Supreme Court of Delaware affirmed the Superior Court’s denial of postconviction relief under Rule 61 to Donovan Kent. Kent had been convicted in 2018 of three counts of Unlawful Sexual Contact in the First Degree, two counts of Attempted Rape in the Second Degree (as lesser-included offenses), and Continuous Sexual Abuse of a Child. On direct appeal in 2021, the Delaware Supreme Court affirmed the convictions, rejecting challenges to the sufficiency of the evidence and the propriety of an indictment amendment.

In his postconviction motion, Kent alleged ineffective assistance of counsel on two fronts: (1) that trial counsel unreasonably introduced evidence of a “second child victim” by impeaching the child victim’s mother (Hepner) with alleged statements by family friend Cathy Hudgins—an impeachment that “opened the door” and devolved into a credibility battle when Hudgins was impeached and, in the trial court’s view, perjured herself; and (2) that counsel failed to move for a judgment of acquittal (JOA) on the Continuous Sexual Abuse of a Child count for lack of proof that Kent had “recurring access” to the child over a period of at least three months. The Superior Court found counsel’s performance reasonable as to the impeachment decision and, as to the JOA issue, concluded Kent could not show prejudice because a motion would not likely have been granted.

On March 31, 2025, the Delaware Supreme Court affirmed. The Court’s opinion is important for two clarifications: (a) it underscores the heavy Strickland deference afforded to tactical impeachment choices, even when they backfire due to unforeseen witness perjury; and (b) it confirms that a child victim’s testimony, coupled with circumstantial evidence of the defendant’s residence and access, suffices to defeat a JOA on Continuous Sexual Abuse of a Child under 11 Del. C. § 776 without pinpointing exact dates.

Summary of the Opinion

IAC—Performance: Trial counsel’s decision to impeach the victim’s mother by calling Cathy Hudgins was a reasonable strategic choice in a case with strong evidence against Kent. Counsel investigated the impeachment avenue (via an investigator, pretrial contact with the State, and pre-testimony contact with the witness), weighed the “opening the door” risk, and sought to limit collateral allegations. The fact that Hudgins later contradicted herself and, in the trial court’s view, perjured herself during cross-examination did not retroactively render counsel’s choice constitutionally deficient.
IAC—Prejudice (JOA on Continuous Sexual Abuse): Kent failed to show a reasonable probability that a motion for judgment of acquittal would have been granted. The State presented evidence that the victim was abused “a lot” at her residence and once at her aunt’s residence. Combined with testimony establishing Kent’s living arrangements and access to the child between July 1 and October 11, 2017, a rational juror could find the statutory “three months” element and recurring access. Delaware law does not require exact dates for child sexual abuse offenses; a child victim’s testimony alone may suffice.
Result: The judgment denying postconviction relief is affirmed.

Analysis

Precedents and Authorities Cited and Their Influence

Strickland v. Washington, 466 U.S. 668 (1984): The touchstone for ineffective assistance of counsel. The Court emphasized the two-part test—deficient performance and prejudice—and reiterated the “highly deferential” scrutiny to counsel’s performance and the strong presumption of reasonableness.
Cooke v. State, 2025 WL 16395 (Del. Jan. 2, 2025): Recent Delaware Supreme Court decision summarizing Strickland’s rigorous standards. Cited to reinforce the heavy burden on the movant and that courts may resolve IAC claims on the prejudice prong without reaching performance.
Green v. State, 238 A.3d 160 (Del. 2020); Hoskins v. State, 102 A.3d 724 (Del. 2014); Purnell v. State, 106 A.3d 337 (Del. 2014): Delaware cases emphasizing the strong presumption of reasonable professional assistance and that strategic choices after investigation are “virtually unchallengeable.”
Cullen v. Pinholster, 563 U.S. 170 (2011); Starling v. State, 130 A.3d 316 (Del. 2015): Prejudice requires a “substantial,” not merely “conceivable,” likelihood of a different result; the probability must undermine confidence in the outcome.
Hopkins v. State, 293 A.3d 145 (Del. 2023): Standard for reviewing denial of a JOA—whether any rational trier of fact could find guilt beyond a reasonable doubt when viewing the evidence in the light most favorable to the State.
Farmer v. State, 844 A.2d 297 (Del. 2004); Hardin v. State, 840 A.2d 1217 (Del. 2003): A child victim’s testimony, if it establishes each element, can be sufficient by itself to sustain a conviction for sexual offenses.
Bartholomew v. State, 2007 WL 1476456 (Del. May 22, 2007) (TABLE); Taylor v. State, 982 A.2d 279 (Del. 2008): Exact dates and times need not be specified in child sexual abuse prosecutions if the victim describes the nature and number of acts with sufficient specificity and gives a general timeframe.
Poon v. State, 880 A.2d 236 (Del. 2005): Supports that circumstantial evidence and reasonable inferences about timing can be jury questions.
Kent v. State, 2021 WL 4393804 (Del. Sept. 24, 2021) (direct appeal): Already rejected arguments about the three-month element and the timeframe at the aunt’s house (under plain-error review), foreshadowing that a JOA would likely have failed.
Gomez v. State, 25 A.3d 786 (Del. 2011): Distinguished. Gomez involved a witness’s unsolicited statement about an uncharged similar offense that triggered a mistrial. Here, by contrast, the defense pursued a deliberate impeachment strategy and the trial court limited details of other allegations; the problematic testimony flowed from defense strategy and later witness credibility issues, not an uncontrolled spillover of inadmissible propensity evidence.
11 Del. C. § 776(a): Defines Continuous Sexual Abuse of a Child (three or more acts of sexual conduct with a child under 18 over a period not less than three months, with the defendant either residing with the child or having recurring access).
11 Del. C. § 3507: Permits admission of a witness’s prior recorded statement (here, the child’s CAC interview) as substantive evidence when the witness testifies and is subject to cross-examination.

Legal Reasoning

1) Strategic Impeachment and the Strickland Performance Prong

The Court framed trial counsel’s approach—impeaching the victim’s mother (Hepner) by calling Hudgins to deny that she had ever reported that Kent molested her daughter—as a legitimate effort to undermine a key State witness in a case with considerable inculpatory evidence (including the child’s testimony, an injury consistent with sexual assault, and male DNA on the child’s labia majora). Counsel’s articulated strategy was to hold the State to its burden, to avoid aggressively cross-examining a child witness (which risked alienating jurors), and to “poke holes” in credibility where possible. The Court emphasized:

Counsel investigated: the State flagged the Hudgins issue pretrial; counsel obtained information, used an investigator to interview Hudgins (who denied the statements attributed to her), subpoenaed her, and spoke with her before she took the stand.
The trial judge limited details of other allegations after a sidebar, curbing the risk of a cascading “mini-trial” over uncharged conduct.
The strategy unraveled only when Hudgins contradicted herself on cross-examination, including about her criminal and drug history and whether Kent had been around the children—conduct the Superior Court characterized as perjury.

Strickland requires evaluating performance from counsel’s perspective at the time, eschewing hindsight. The Court reiterated that choices made after reasonable investigation are “virtually unchallengeable.” Even counsel’s post hoc affidavit admitting that, in hindsight, calling Hudgins was unwise did not control the constitutional inquiry; courts independently assess reasonableness.

The Court also rejected Kent’s argument that the “flaws” existed from the moment counsel broached the Hudgins topic with Hepner, rather than only when Hudgins perjured herself. Given the pretrial disclosures, the investigator’s interview, anticipated testimony, and trial court limits on the scope of collateral allegations, proceeding with impeachment remained within reasonable professional latitude.

2) Failure to Move for JOA on Continuous Sexual Abuse and the Strickland Prejudice Prong

On the JOA theory, the Court resolved the ineffective-assistance claim on prejudice. To show prejudice, Kent had to establish a reasonable probability that a JOA would have been granted. Applying the Hopkins standard (viewing the evidence in the light most favorable to the State), the Court concluded the motion would have failed:

Victim’s testimony: The child testified that abuse occurred “a lot” at her home and once at her aunt’s residence. Under Farmer and Hardin, a child’s testimony can be sufficient to sustain a conviction if it establishes each element; exact dates are not required (Bartholomew; Taylor).
Recurring access over three months: The State offered evidence of Kent’s living arrangements and relationship with the family, placing him at the aunt’s house around early July and then in the child’s home shortly thereafter, through October 11, 2017—the indictment period—permitting an inference of recurring access over at least three months. Determining whether the inferential timeline met § 776’s duration requirement was a classic jury question (see Poon).
Prior appellate holding: On direct appeal, the Supreme Court had already rejected, under plain-error review, Kent’s challenge to the three-month element and the timing of the aunt’s-house incident. While a different standard applies on JOA, the same evidentiary foundation makes it unlikely a properly preserved JOA would have succeeded.

Because a JOA would likely have been denied, Kent could not demonstrate the “substantial likelihood” of a different result required by Strickland’s prejudice prong (Cullen; Starling).

Impact and Practical Significance

Strategic impeachment remains protected: This decision strengthens the insulation Strickland provides to tactical impeachment choices—even when risky topics may “open the door.” When counsel conducts a reasonable investigation, anticipates risks, and pursues an identifiable trial objective (e.g., avoiding harsh cross of a child, shifting to adult credibility), courts will be reluctant to deem the choice constitutionally deficient merely because it later backfires.
Lawyer admissions are not dispositive: The Court effectively reaffirms that a trial lawyer’s postconviction affidavit conceding “ineffectiveness” does not determine the Strickland inquiry. The performance assessment is objective and judicial, not subjective and professional.
“Open the door” is not a per se IAC trap: Where the trial court constrains the scope of collateral allegations and defense counsel attempts to limit details of uncharged acts, an “opened door” will not automatically translate into deficient performance—even if the State uses it to impeach a defense witness’s credibility.
Continuous Sexual Abuse prosecutions: The opinion confirms that prosecutors may prove § 776’s “not less than three months” and “recurring access” elements through a combination of the victim’s testimony and circumstantial proof of living arrangements and access; precise dates are unnecessary if the overall timeline supports reasonable inferences.
Preservation and motions: Defense counsel should still consider filing targeted JOA motions to preserve sufficiency arguments and avoid plain-error review on direct appeal. But Kent shows that, where circumstantial access and victim testimony align, JOA challenges to § 776 counts will be difficult to win.
Best practices, not constitutional minima: Although not constitutionally required in this case, practitioners should diligently vet impeachment witnesses (including running criminal-history checks) and stress-test their anticipated testimony for vulnerabilities that could invite damaging cross-examination.

Complex Concepts Simplified

Ineffective Assistance of Counsel (Strickland):
- Deficient Performance: Did the lawyer act outside the range of reasonable professional assistance at the time, given the information reasonably available?
- Prejudice: Is there a substantial (not merely conceivable) likelihood that, without the lawyer’s errors, the result would have been different?
- Deference: Courts give strong deference to strategic decisions and avoid second-guessing based on hindsight.
“Opening the Door”: When one party elicits testimony that makes otherwise inadmissible evidence relevant for context or impeachment, the other party may be allowed to introduce that evidence to correct a misleading impression. It is a trial-risk calculation: potential gain from impeachment versus potential collateral damage.
Motion for Judgment of Acquittal (JOA): A request for the court to enter a judgment of acquittal because no rational juror could find guilt beyond a reasonable doubt on the evidence presented, viewed in the State’s favor.
Continuous Sexual Abuse of a Child (11 Del. C. § 776):
- Three or more acts of sexual conduct involving a child under 18;
- Over a period of not less than three months;
- By a person either living with the child or having recurring access;
- Proof may be by the child’s testimony alone, and exact dates need not be specified if the acts and general timeframe are clearly described.
11 Del. C. § 3507 Statements: Prior recorded statements (e.g., a CAC interview) of a witness who testifies and is subject to cross-examination can be admitted as substantive evidence. Jurors may consider both the live testimony and the recording.
Plain Error vs. Preserved Error: If a claim was not properly raised at trial (e.g., no JOA motion), appellate review is harder to win (plain error). In postconviction proceedings, a petitioner might reframe unpreserved issues as IAC claims, but must still meet Strickland’s rigorous standards.

Conclusion

Kent v. State reinforces two enduring principles in Delaware criminal practice. First, Strickland deference to trial strategy remains robust: deliberate impeachment choices—here, an effort to undermine a key adult witness while sparing a child—and the reasonable investigations underpinning them will not be second-guessed simply because a witness later implodes on cross-examination. The Court’s distinction from Gomez confirms that an “opened door” is not per se constitutional error, especially when the trial court limits the scope of collateral allegations and defense counsel actively seeks to constrain them.

Second, the opinion clarifies the sufficiency landscape for Continuous Sexual Abuse of a Child under § 776: a child’s testimony describing repeated abuse, combined with circumstantial evidence of the defendant’s residence and access across the charged period, can satisfy the three-month and recurring-access elements without calendar specificity. Against that evidentiary backdrop, a JOA would have been denied, defeating Strickland prejudice.

The case thus provides practical guidance: defense counsel should continue to scrutinize impeachment avenues but can take some comfort that reasonable, informed tactical decisions are unlikely to be deemed constitutionally deficient—even when unexpected witness conduct derails them. And in charging or defending § 776 counts, both sides should focus on clear narrative proof of recurring access across an inferable three-month span, recognizing that exact dates are not required where the acts and timeframe are otherwise sufficiently delineated.