St. v. Terreros

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
)
v. ) I.D. No. 1911014417
)
JOSE TERREROS, )
)
Defendant. )

Submitted: September 9, 2021
Decided: November 29, 2021

Upon Consideration of Defendant’s Motion for Judgment of Acquittal,
DENIED.

MEMORANDUM OPINION

Matthew C. Buckworth, Esquire, and Erika R. Flaschner, Esquire, Deputy Attorneys
General, DEPARTMENT OF JUSTICE, Wilmington, Delaware. Attorneys for the
State of Delaware.

Brett A. Hession, Esquire, and Erika B. LaCon, Esquire, Assistant Public Defenders,
OFFICE OF DEFENSE SERVICES, Wilmington, Delaware. Attorneys for
Defendant Jose Terreros.

BUTLER, R.J.
 BACKGROUND

The Defendant resided with the four-year-old child victim and her mother.

On the evening of November 19, 2019, the victim’s mother returned from a trip to

the grocery store when her daughter told her the Defendant had “licked [her] cola,”

which mother and daughter understood to mean her vaginal area. Mother

immediately contacted the police and the child was taken to the A.I. duPont Hospital,

where she essentially repeated the allegation to the Children’s Advocacy Center.

A New Castle County grand jury indicted the Defendant on three charges, but

only two are relevant here: First Degree Rape (“Rape I”) and First Degree Sexual

Abuse of a Child by a Person in a Position of Trust, Authority or Supervision (“Child

Sexual Abuse I”). The State’s case included the child victim’s direct accusation and

live testimony as well as evidence that the Defendant had undertaken numerous

internet searches to determine how to detect if a girl has been raped, how long

fingerprints stay on sheets, and how long saliva stays on the body. After trial, the

jury found the Defendant guilty of Child Sexual Abuse I, but not guilty of Rape I.

The Defendant says the acquittal on Rape I means the Court must now direct

a verdict of acquittal on the charge of Child Sexual Abuse I as well. Rape I requires

proof of prohibited sexual intercourse, while Child Sexual Abuse I requires proof of

prohibited sexual intercourse plus a special relationship. By convicting on Child

Sexual Abuse I, Defendant argues, the jury necessarily found that prohibited sexual

2
intercourse occurred. The logical inconsistency with the Rape I acquittal, he insists,

is a legal error attributable to a defect in the Child Sexual Abuse I verdict that renders

his conviction invalid.

ANALYSIS

There is no question that oral contact with the genitalia of a female is “sexual

intercourse.” 1 When the sexual intercourse is with a child less than 12 years of age

by an individual over the age of 18, it is Rape I. 2 In 1971, 18 states considered rape

a capital offense. 3 It was not until 1977 that the U.S. Supreme Court ruled that

imposing death for rape violated the Eighth Amendment. 4 The point is, rape has

historically connoted a very serious charge carrying very serious consequences.

In contrast, Child Sexual Abuse I is of substantially more recent vintage and

was unknown to the Model Penal Code of 1962 5 (which Delaware adopted in 1972).

The crime appears to have been the legislature’s response to the infamous case of

Earl Bradley, a former Delaware physician who sexually abused and raped his

1
See 11 Del. C. § 761(b), (h) (2020).
2
Id. § 773(a)(5).
3
See generally Coker v. Georgia, 433 U.S. 584, 593 (1977).
4
Id. at 593, 597–600.
5
Compare Model Penal Code § 213.1(1)(d) (1962) (defining rape and including
minors as protected class but omitting from elements a special relationship between
perpetrator and victim), with 11 Del. C. § 778 (defining sexual abuse of a child by a
person in a position of trust, authority or supervision).

3
pediatric patients.6 Child Sexual Abuse I requires proof of sexual intercourse with

a child under the age of 16 by a person in a position of “trust, authority or

supervision” with or over the child.7 While it “sounds” serious, its novelty in the

public media makes the casual observer unaware of its equally serious sentencing

consequences. 8

On the evidence presented in this case, a Child Sexual Abuse I conviction is

inconsistent with a Rape I acquittal. But to say they are inconsistent is not to

conclude they cannot stand as the verdicts of the jury.

A. Inconsistent Verdicts Do Not Necessarily Result in Acquittal.

Delaware inconsistent verdict law was well summarized by Resident Judge

Karsnitz recently in State v. Wilkerson.9 Reviewing the evolving history of

inconsistent verdicts requires us to parse a distinction between the “Powell-Tilden”

line of cases, which consider only the sufficiency of the evidence and attribute

inconsistent verdicts to jury lenity, and the “Johnson-Priest” line of cases, which

concern the effect of inconsistent verdicts on “predicate-compound” crimes.10

6
See generally 11 Del. C. § 778 (codified in 2010); Bradley v. State, 51 A.3d 423
(Del. 2012) (affirming conviction in case that began in 2009).
7
11 Del. C. §§ 761(e) (definition), 778(1) (substantive offense).
8
See, e.g., id. § 778(6)(a)(1)–(2) (imposing, under certain conditions, life
imprisonment as a mandatory sentence).
9
2021 WL 4075018 (Del. Super. Ct. Sept. 7, 2021).
10
See id. at *2–4 (discussing distinction and collecting cases).

4
While the Johnson-Priest line of cases offer potential relief for a defendant who has

received inconsistent verdicts, the Powell-Tilden line does not.

1. Rape I is Not a Predicate to Child Sexual Abuse I.

The Johnson-Priest line controls cases in which the jury convicts on a

compound offense, but acquits on its predicate offense (e.g., an acquittal of robbery

but a conviction of possession of a firearm during commission of the robbery). An

acquittal on a predicate offense negates a conviction on its compound offense. To

lay the cornerstone for a Johnson-Priest analysis, the Defendant argues his Rape I

acquittal operates as if it were an unfulfilled predicate to his Child Sexual Abuse I

conviction. So this would be a good time to consider Priest a bit more carefully.11

In Priest, the defendant was convicted of possessing a firearm during the

commission of a felony (“PFDCF”) but acquitted of the underlying felony.

Applying sufficiency-of-the-evidence review, the trial court denied the defendant’s

11
Priest v. State, 879 A.2d 575 (Del. 2005). The Court focuses on Priest because
Johnson v. State, 409 A.2d 1043 (Del. 1979) (per curiam), is less illuminating.
Although Priest called Johnson “a later case,” 879 A.2d at 586, Johnson is a pre-
Powell-Tilden decision. So Johnson did not invoke lenity-plus-sufficiency review.
Instead, and without much discussion, Johnson reversed a conspiracy to commit
burglary conviction, which followed an acquittal of the underlying burglary, on the
ground that the conspiracy depended on the burglary for an overt act. Both Tilden
and Priest understood this reasoning to establish the predicate-compound analysis
that Tilden distinguished and with which Priest aligned itself. See Priest, 879 A.2d
at 856–57; Tilden v. State, 513 A.2d 1302, 1306–07 (Del. 1986).

5
motion for acquittal of the PFDCF charge. 12 But on direct appeal, the Supreme Court

reversed. It explained that, because a PFDCF conviction presupposes a predicate

felony conviction, PFDCF convictions are “all or nothing.”13 As a result, the

defendant’s acquittal of the predicate felony “foreclosed” his conviction of PFDCF,

regardless of the sufficient evidence supporting it.14

For Priest, word choice mattered. The PFDCF statute creates a predicate-

compound structure by tying a PFDCF conviction to another felony conviction:

A person who is in possession of a firearm during the commission of a felony
is guilty of possessing a firearm during the commission of a felony . . . . A
person may be found guilty of violating this section notwithstanding . . . the
felony for which the person is convicted . . . . 15

Using statutory construction tools, the Supreme Court understood this limitation to

mean that, in cases of verdict inconsistency, application of lenity and sufficiency-of-

the-evidence review “would contravene the public policy” of the PFDCF statute by

relieving the State of its burden of proving a predicate felony.16 In other words, the

12
See State v. Fletcher, 2004 WL 1284214, at *2 (Del. Super. Ct. May 25, 2004),
rev’d in pertinent part sub nom., Priest, 879 A.2d 575.
13
Priest, 879 A.2d at 583.
14
Id.
15
11 Del. C. § 1447A(a), (g) (subsections and cross-references omitted).
16
Priest, 879 A.2d at 584. The Priest court found “the only inconsistency that the
statute expressly contemplates and allows is the inconsistency which arises where
the jury finds the defendant guilty of a lesser-included offense of a predicate felony
charged in the indictment.” 879 A.2d at 583 (citing 11 Del. C. § 1447A(g)).

6
Supreme Court held that the legislature intended to abrogate common law

inconsistent verdict doctrines in the predicate-compound offense context. 17

In the PFDCF statute, the General Assembly opted to create an offense that
punishes one who uses a firearm while committing a felony. As a result, the
PFDCF statute and its counterpart modify the common law by proscribing
jury lenity and sufficiency-of-the-evidence review. To allow Priest's
weapons-possession convictions to stand in the face of an outright acquittal
on the predicate felony would undermine the plain language of the PFDCF
statute . . . . Ultimately, judicial deference to the factfinder . . . cannot
super[s]ede the judiciary’s primary obligation to give effect to the General
Assembly’s formulation of the criminal law. 18

So Priest stands for two propositions that undermine the Defendant’s reasoning.

First, common law inconsistent verdict doctrines, such as lenity-plus-

sufficiency, apply unless (1) the two offenses are statutorily defined as predicate-

compound offenses; and (2) the jury acquits of the predicate offense. Here, as the

Defendant eventually concedes, 19 Rape I is not a statutory predicate to Child Sexual

Abuse I, even if they have some key elements in common. Rape I includes, but is

not limited to, sexual intercourse with a child. 20 Child Sexual Abuse I is limited to

17
Id. at 583–84, 589–90. Consistent with this ruling, Resident Judge Karsnitz in
Wilkerson granted acquittal after applying Johnson-Priest review to a conviction of
Endangering the Welfare of a Child where the jury acquitted the defendant of the
predicate offenses that had to be committed in the presence of the child for the
Endangering charge to attach. 2021 WL 4075018, at *4.
18
Priest, 879 A.2d at 589–90.
19
Def.’s Mot. for J. Acquittal ¶ 21.
20
Compare 11 Del. C. § 773(a)(5), with id. § 773(a)(1)–(4). To be sure, the
Defendant was charged with Rape I’s child provision, not Rape I generally. But the
Johnson-Priest analysis, unlike a Powell-Tilden analysis, is fact indifferent. To
determine whether the Johnson-Priest framework governs, courts take a categorical

7
child sexual intercourse; it does not include adult rape. 21 Taken together, each

offense requires proof of a shared fact (i.e., sexual intercourse), but neither statute

imposes as a legal element a predicate conviction on the other. 22 Contextualized,

Child Sexual Abuse I is not the kind of “all or nothing” offense Priest imagined.

Second, legislative intent guides in determining whether an inconsistent

conviction may stand. The General Assembly’s intent in the PFDCF statute is to

approach and ask whether, in the abstract, the statute of conviction depends for its
validity on a predicate conviction. The State’s chosen evidence, and the sufficiency
of it, are not relevant here. Compare Tilden, 513 A.2d at 1307 (“[T]he controlling
standard for testing a claim of inconsistent verdicts is the rule of lenity . . . coupled
with the sufficiency of evidence standard.”), with Priest, 879 A.2d at 586–87 (“[A]
multiple-count verdict that includes . . . a compound offense, even if factually
inconsistent, must stand where the verdict reflects jury lenity and where the jury has
convicted on a [predicate] felony.”), and Priest, 879 A.2d at 589 (“Given the
statutory limitation on judicial review, the acquittal [of the predicate felony]
removed from the jury’s consideration the very conduct” for which the defendant
was charged.). See also Washington v. State, 2012 WL 3039725, at *2 (Del. July
25, 2012) (rejecting Priest challenge to first degree robbery and PFDCF verdicts
because they were not “legally inconsistent” and declining to review the evidence
relating to the weapons).
21
See 11 Del. C. § 778(1)–(5).
22
See Morris v. State, 2019 WL 2123563, at *4 (Del. May 13, 2019) (“[Morris]
argues that a finding of guilt on the rape charge was a predicate to a finding of guilt
on the home-invasion charge. Since the jury was unable to reach a verdict on the
rape charge, he argues, [the violent felony] element of the home-invasion charge was
not proved and the verdicts were inconsistent . . . . It should first be noted that a
conviction for rape or attempted rape is not an element of the offense of home
invasion. The element of home invasion in issue is the fact of the commission or
attempted commission of rape . . . . Because [the] evidence is sufficient to sustain
the conviction of home invasion, any inconsistency between the guilty verdict on the
charge of home invasion and the jury's failure to agree on the charge of rape in the
first degree is of no avail to Morris . . . .” (emphasis added)).

8
confine PFDCF convictions to cases in which a predicate felony is proven. Here,

the Rape I and Child Sexual Abuse I statutes reflect the opposite intent. Neither

statute “preclude[s] a separate charge, conviction and sentence for any other crime

set forth in [Title 11], or in the Delaware Code.” 23 Thus, unlike the PFDCF statute

under consideration in Priest, the public policy expressed in these statutes is to

expand the categories of liability, not to restrict them.

In sum, neither offense “fits” the predicate-compound formula necessary for

triggering a Johnson-Priest analysis. So the Defendant’s attempt to shoehorn the

inconsistency in the verdicts into the Johnson-Priest line of cases, understandable

though that may be, does not work. The Johnson-Priest cases are inapposite here.

Instead, this case falls within the more traditional Powell-Tilden line of cases.

2. Lenity, Coupled with Sufficiency-of-the-Evidence Review, Applies.

The Powell-Tilden cases, which trace their lineage back to the 19th century,

hold that, if an inconsistent verdict, however determined, is supported by sufficient

evidence, then it must be accorded the same deference a consistent verdict enjoys.24

23
11 Del. C. §§ 773(b), 778(7). See also Clark v. State, 65 A.3d 571, 577–78 (Del.
2013) (“When construing a statute, we attempt to ascertain and give effect to the
General Assembly’s intent. If we determine that a statute is unambiguous, we give
the statutory language its plain meaning.” (internal quotation marks and citations
omitted)).
24
E.g., Graham v. State, 2017 WL 4128495, at *2–3 (Del. Sept. 18, 2017) (outlining
Powell-Tilden framework); see also Dennison v. State, 2007 WL 1837004, at *3
(Del. June 25, 2007) (“A criminal defendant is afforded protection against jury
irrationality or error by the independent review of the sufficiency of the evidence by

9
 Approving a verdict that may have been the result of some misadventure by

the jury is not, as the defense calls it, “a shrug of the judicial shoulders.”25 Jury

deliberations are sacrosanct. Prying into a juror’s “logic” is to presume that a jury

verdict must be logical. That is not the law.26 The prosecution may charge

improperly, evidence may be received improperly, the case may be improperly

argued, or the judge may improperly instruct the jury. All these errors can be

remediated before the door to the jury room closes. But once the case belongs to the

jury, courts are loath to question their deliberations or their verdict. After all, a

“verdict brings . . . needed finality” to the criminal process.27 An inconsistent

verdict is no exception. 28

the trial and appellate courts.” (alteration and internal quotation marks omitted)); see
generally Dunn v. United States, 284 U.S. 390, 393 (1932) (“Consistency in a verdict
is not necessary. Each count in an indictment is regarded as if it was a separate
indictment.” (citing Latham v. The Queen, 122 Eng. Rep. 968, 971 (Q.B. 1864))).
25
Def.’s Mot. for J. Acquittal ¶ 27 (internal quotation marks omitted).
26
See, e.g., Bravo–Fernandez v. United States, 137 S. Ct. 352, 360, 364 (2016)
(explaining that irrational verdicts are permissible if supported by sufficient
evidence); Tilden, 513 A.2d at 1306 (“If the inconsistency can be explained in terms
of jury lenity, the convictions may stand.”); see also Yaeger v. United States, 557
U.S. 110, 122–23 (2009) (“Even if the verdict is based on an egregiously erroneous
foundation, its finality is unassailable.” (internal quotation marks and citation
omitted)).
27
Yaeger, 557 U.S. at 124 (internal quotation marks omitted).
28
See Tilden, 513 A.2d at 1306 (observing that jury verdicts are “insulated . . . from
judicial review on the basis of inconsistency”); see also Graham, 2017 WL 4128495,
at *2 (“[I]nconsistency alone does not warrant a new trial or reversal.”).

10
 This is not to say that an inconsistent verdict is cause for celebration. The law

prides itself on its logic and its experience.29 Even so, the specific rationale used by

the jury in making its determination need not track the logic of the Court’s

instructions or the “logic” as seen by the lawyers. Once it begins its deliberations,

the jury is its own power on the facts and the law and despite a court’s entreaties that

the jury follow the instructions imparted to them, a jury that fails to do so is not

subject to sanctions and its logic—or lack thereof—cannot be second guessed. 30

Some of our cases call the jury’s refusal to convict on a serious charge an

exercise of lenity. Given the historically serious sanctions associated with the crime

of “rape,” that is one conclusion one might draw. But truthfully, that is just a

hypothesis; a jury does not announce the rationale for its decision in open court. It

“speaks only through its verdict.” 31 It says nothing more.

True, courts do not inquire further. But there is a reason for that. Courts

cannot join the jury in discussing the evidence. So, absent jury-room surveillance,

29
Compare Sir Edward Coke, 1 The First Part of the Institutes of the Laws of
England § 138, at 97b (Francis Hargrave & Charles Butler eds., 19th ed. 1832)
(1628) (“Reason is the life of the law, nay the common law itself is nothing but
reason . . . .”), with Oliver Wendell Holmes Jr., The Common Law 1 (1881) ("The
life of the law has not been logic: it has been experience.")
30
See, e.g., Harris v. Rivera, 454 U.S. 339, 345–46 (1981) (“Inconsistency in a
verdict is not a . . . reason for setting it aside . . . . [And the] power of a jury to return
a verdict . . . for impermissible reasons” is “unreviewable.” (citations omitted)).
31
See, e.g., Bravo–Fernandez, 137 S. Ct. at 360 (internal quotation marks omitted).

11
courts would be left to speculate. We generally do not do that. 32 Indeed, the premise

animating the Defendant’s arguments demonstrates the perils of judicial guesswork.

A court might assume, as the Defendant does, that the acquittal is the jury’s “true

verdict.” But another court might assume the conviction is the jury’s true verdict.33

Such a flip-of-the-coin approach would trivialize the very issues to which the

Defendant ascribes constitutional magnitude. 34

32
E.g., Yaeger, 557 U.S. at 124 (Determining the basis for an inconsistent verdict
“would require speculation into what transpired in the jury room. Courts properly
avoid such explorations into the jury's sovereign space, . . . and for good reason. The
jury's deliberations are secret and not subject to outside examination.” (internal
quotation marks and citations omitted)); Powell v. United States, 469 U.S. 57, 66
(1984) (“[A]n individualized assessment of the reason for the inconsistency would
be based either on pure speculation, or would require inquiries into the jury's
deliberations that courts generally will not undertake.”); Dunn, 284 U.S. at 394
(“That the verdict may have been the result of compromise, or of a mistake on the
part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry
into such matters.”).
33
E.g., Grimes v. State, 188 A.3d 824, 829 (Del. 2018) (“Grimes would have us
credit the acquittal over the conviction—treating the acquittal as the jury's true
verdict and the conviction as just a windfall to the State at his expense—but as we
have recognized, it is equally possible in a scenario like this that the jury, convinced
of guilt, properly reached its conclusion on the [conviction], and then through
mistake, compromise, or lenity, arrived at an inconsistent conclusion on the
[acquittal]. When a jury produces an irreconcilable verdict, it is unclear whose ox
has been gored . . . .” (cleaned up)); Priest, 879 A.2d at 585 (rejecting premise
underlying inconsistent verdict challenge as “not necessarily correct” because
acquittal verdict may not be “the one the jury really meant” and “all we know is the
verdict is inconsistent” (internal quotation marks omitted)); see Powell, 469 U.S. at
65–66 (“[T]he possibility that the inconsistent verdicts may favor the . . . defendant
as well as the Government militates against review of such convictions at the
defendant's behest . . . . The fact that the inconsistency may be the result of lenity . .
. suggests that inconsistent verdicts should not be reviewable.”).
34
See Def.’s Mot. for J. Acquittal ¶¶ 29–32.

12
 The Delaware Supreme Court has opted instead for a more reliable method.

It has ruled that, so long as there is sufficient evidence to sustain the conviction for

the charge on which the defendant is convicted, the fact that he is acquitted on other

charges that he could have been convicted on based on the same facts is of no

moment. 35 This places the Court back on the terra firma of analyzing the sufficiency

of the evidence for the conviction, not of some insufficiency that brought acquittal.36

B. Sufficient Evidence Supports the Child Sexual Abuse I Conviction.

The child victim in this case testified, with considerable trepidation, that the

defendant committed the acts in question. The interviewer from the Children’s

Advocacy Center testified to the child’s statements to that office. The Defendant’s

internet searches were introduced into evidence, as was his disappearance on the

night of the incident when mother called the police. The Court has no hesitance in

concluding that there was sufficient evidence upon which a reasonable jury could

have convicted the defendant of the two charges of conviction. The fact that he was

acquitted on another charge on which he might also have been convicted is either

35
E.g., King v. State, 2015 WL 5168249, at *2 (Del. Aug. 26, 2015) (“Under the rule
of jury lenity, [the] Court may uphold a conviction that is inconsistent with another
jury verdict if there is legally sufficient evidence to justify the conviction.”).
36
Powell, 469 U.S. at 67 (“Sufficiency-of-the evidence review involves assessment
by the courts of whether the evidence adduced at trial could support any rational
determination of guilty beyond a reasonable doubt. This review should be
independent of the jury's determination that evidence on another count was
insufficient.” (citations omitted)).

13
due to lenity, error, or some other factor. As the U.S. Supreme Court said many

years ago, “verdicts cannot be upset by speculation or inquiry into such matters.”37

CONCLUSION

For the foregoing reasons, the Defendant’s motion for judgment of acquittal

must be DENIED.

IT IS SO ORDERED.

Charles E. Butler, Resident Judge

37
Dunn, 284 U.S. at 394.

14