CALVIN L. SCOTT, JR. JUDGE
Date Submitted: December 26, 2024
Upon the Defendant's Motion for Concurrent Sentencing. DENIED.
Nicole Whetham Warner, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State of Delaware.
James O. Turner Jr., Esquire, Assistant Public Defender, Wilmington, Delaware, Attorney for Defendant.
ORDER
CALVIN L. SCOTT, JR. JUDGE
INTRODUCTION
Before this Court is Defendant Bryan Andre's ("Defendant") Motion for Concurrent Sentencing. Upon reading the Defendant's Motion and the State's Response, Defendant's Motion for Concurrent Sentencing is DENIED.
BACKGROUND
On July 23, 2024, following a jury trial, Defendant was convicted of the following offenses; Rape in the Second Degree in violation of Title 11 Section 772; Sexual Abuse of a Child by a Person in a Position of Trust in the First Degree in violation of Title 11 Section 778; Dangerous Crime Against a Child in Violation of Title 11 Section 777; Sexual Abuse of a Child by a Person in a Position of Trust in the Second Degree in Violation of Title 11 Section 778A; and four counts of Unlawful Sexual Contact First Degree in Violation of Title 11 Section 769. Following the jury trial, Defendant filed a post-trial Motion for Concurrent Sentencing asserting that the charge Dangerous Crime Against a Child ("11 Del. C. § 777") implicates the same conduct as Rape in the Second Degree ("11 Del. C. § 772") or Sexual Abuse of a Child by a Person in a Position of Trust ("11 Del. C. § 778A").
PARTIES CONTENTIONS
Defendant Contends:
Defendant contends the court should grant his Motion for Concurrent Sentencing because the charge of Dangerous Crime Against a Child should be sentenced concurrently because it implicates the same conduct as Rape in the Second Degree or Sexual Abuse by a Person in a Position of Trust. Defendant asserts serving his sentence consecutively violates the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution.
The State Contends:
The State contends this Court should deny his Motion for Concurrent Sentencing. The State asserts the consecutive sentence of Defendant does not violate the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution because the crimes charged share different elements.
STANDARD OF REVIEW
Under Delaware Superior Court Criminal Rule 14, if a defendant is prejudiced "by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the Court may separate trials of counts and grant a severance of defendants or provide whatever other relief justice requires."
Del. Super. Ct. Crim. R. 14.
DISCUSSION
When a defendant is charged under two different statutes "the question is whether, both sections being violated by the same act, the accused committed two offenses or only one," for which the inquiry is "whether each provision requires proof of a fact which the other does not." Cumulative punishment, however, "on separate convictions under different statutes is presumptively valid and does not violate the prohibition against double jeopardy if the statutes define distinct offenses." The Court relies on 11 Del. C. § 206, to determine if an inquiry into each statute demonstrates a requirement of proof that "at least one element [in the statute] is not required to prove the others." Defendant contends his sentence violates the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution because he was sentences consecutively for crimes that share similar elements. It is clear from the language of 11 Del. C. § 772, 11 Del. C. § 778A, and 11 Del. C. §777 that each crime contains different elements, thus, Defendant was sentenced to separate terms for each conviction.
White v. State, 243 A.3d 381, 397 (Del. 2020) (quoting Nance v. State, 903 A.2d 283, 286 (Del. 2006).
Id.
White v. State, 243 A.3d 381 (Del. 2020) (citing U.S. Const. Amend. 5; Del. Const. art. 1, § 8; 11 Del. Code § 206).
Williamson v. State, 707 A.2d 350, 362-63 (Del. 1998).
U.S. Const. Amends. 5, 14.
To determine the proper application of a statute, the Court must look at the statutory language to ascertain the legislative intent. 11 Del. C. § 772, 11 Del. C. § 778A, and 11 Del. C. §777 are all separate crimes because they share separate elements. 11 Del. C. § 772 states:
Fountain v. State, 139 A.3d 837 (Del. 2016).
(a) A person is guilty of rape in the second degree when the person:
(1) Intentionally engages in sexual intercourse with another person, and the intercourse occurs without the victim's consent; or (2) Intentionally engages in sexual penetration with another person under any of the following circumstances: ... (c) the victim has not yet reached that victim's sixteenth birthday and during the commission of the crime, or during the immediate flight from the crime, or during an attempt to prevent the reporting of the crime, the person causes serious physical injury to the victim
Here, 11 Del. C. § 772 requires the State to prove that a Defendant engaged in nonconsensual sexual intercourse with another person or that the complaining witness is under the age of sixteen. This differs from the elements in 11 Del. C. § 778A that state:
(a) A person is guilty of sexual abuse of a child by a person in a position of trust, authority, or supervision in the second degree when the person:(1) Intentionally has sexual contact with a child who has not yet reached that child's sixteenth birthday or causes the child to have sexual contact with the person or a third person and the person stands in a position of trust, authority, or supervision over the child, or is an invitee or designee of a person who stands in a position of trust, authority, or supervision over the child.
Here, 11 Del. C. § 778A requires the State to prove the child is under the age of sixteen and the defendant must have been in a position of trust during the time of the offense. Conversely, 11 Del. C. §777 places a prohibition on sexual conduct against a minor under the age of 14 years old. 11 Del. C. §777 states:
Del. Code Ann. tit. 11, § 777 (West).
(a) A "dangerous crime against a child" means any criminal sexual conduct against a minor under the age of 14 years as defined in §§ 770-773, § 777A, §§ 778 through 778A, or §§ 1108 through 1112B of this title. For purposes of this section only, and § 762(a) of this title to the contrary notwithstanding, the defendant may use as an affirmative defense that the defendant believed that the victim of the crime was over the age of 16 years of age.
Though the statutes may share some elements, the differing age requirement of 11 Del. C. § 772 and 11 Del. C. §777 creates separate crimes. Further, 11 Del. C. § 778A differs from 11 Del. C. § 772 and 11 Del. C. §777 because it requires the State to prove the Defendant was in a position of trust at the time the offense was committed. Thus, 11 Del. C. § 772, 11 Del. C. § 778A, and 11 Del. C. §777 are separate crimes and Defendants conviction of each crime did not violate the double jeopardy clause.
Defendant was punished once, not multiple times, for 11 Del. C. § 772, 11 Del. C. § 778A, and 11 Del. C. §777. Defendant has not shown that his sentence was illegal. Thus, this Defendants Motion for Concurrent Sentencing is DENIED.
CONCLUSION
Accordingly, Defendant's Motion for Concurrent Sentencing is DENIED.
IT IS SO ORDERED.