State v. Herbert

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
)
v. ) I.D. No. 2005000034
)
JOHN HERBERT, )
)
Defendant. )

Submitted: December 13, 2021
Decided: March 17, 2022

Upon Consideration of Defendant’s Motion to Dismiss,
DENIED.

MEMORANDUM OPINION

Nicholas R. Wynn, Esquire, Deputy Attorney General, DEPARTMENT OF
JUSTICE, Wilmington, Delaware. Attorney for the State of Delaware.

James Liguori, Esquire, LIGUORI & MORRIS, Dover, Delaware. Attorney for
Defendant John Herbert.

BUTLER, R.J.
 A New Castle County grand jury has indicted Defendant John Herbert on child

sexual abuse charges. Defendant has moved to dismiss the indictment on due

process grounds. The Court concludes that Defendant misconstrues the relevant

statutes and otherwise fails to establish a constitutional violation. Accordingly, the

motion is denied.

BACKGROUND

A. The Allegations and Indictment

Defendant’s wife, Mother, had been cooking a pork tenderloin when their

three-year-old girl, Daughter, entered the kitchen.1 Less hungry than observant,

Daughter told Mother that the pork resembled a penis. When Mother asked how

Daughter knew about penises, Daughter said she has “played with” Defendant’s

penis before. Daughter subsequently was taken to the Children’s Advocacy Center,

where she repeated her statements to staff. Defendant was arrested a few days later.

Daughter’s allegations have formed the basis for a two-count indictment. The

indictment charges Defendant with (1) Unlawful Sexual Contact First Degree (“USC

1
In resolving a Rule 12(b)(2) motion, the Court accepts as true all well-pleaded
factual allegations in the indictment. E.g., United States v. Brophy, 2013 WL
4657674, at *2 (D. Del. Aug. 30, 2013) (stating principle). See Wright v. Pierce, 43
F. Supp. 3d 405, 410 n.3 (D. Del. 2014) (noting Delaware courts use federal standard
in analyzing indictment sufficiency); see also Valentin v. State, 74 A.3d 645, 648
n.10 (Del. 2013) (noting applicability of federal precedent to Superior Court
Criminal Rules that “substantively mirror[]” Federal Rules of Criminal Procedure).

2
I”);2 and (2) Sexual Abuse of a Child by a Person in a Position of Trust, Authority,

or Supervision Second Degree (“Child Sexual Abuse II”).3

B. This Motion

Defendant has moved to dismiss the indictment. Defendant’s arguments are

unclear, but seem to launch a facial attack4 on Title 11’s definition of “sexual

contact”—the term that creates liability under USC I and Child Sexual Abuse II.5

Title 11 defines sexual contact as “any of the following touching, if the

touching, under the circumstances as viewed by a reasonable person, is intended to

be sexual in nature: . . . [a]ny intentional touching of another person with the

defendant’s . . . genitalia” or “[i]ntentionally causing or allowing another person to

2
See generally 11 Del. C. § 769(a) (2010).
3
See generally id. § 778A (2022).
4
Defendant did not specify whether his challenge is facial or as-applied. The Court,
however, has construed his challenge as a facial one because he did not withdraw
his motion after the State conceded (Opp. at 3, 4 n.6) that, as-applied here, he is
entitled to raise defenses based on a lack of subjective intent. See Del. Bd. of Med.
Licensure & Discipline v. Grossinger, 224 A.3d 939, 956–58 (Del. 2020)
(determining sua sponte that appellant’s arguments were facial even though
appellant framed them in the language of an as-applied challenge).
5
See 11 Del. C. § 769(a)(3) (“A person is guilty of [USC I] when: [t]he person
intentionally has sexual contact with another person who is less than [13 years old]
or causes the [child] to have sexual contact with the person . . . .” (emphasis added)
(formatting omitted)); 11 Del. C. § 778A(1) (“A person is guilty of [Child Sexual
Abuse II] when the person [i]ntentionally has sexual contact with a child . . . or
causes the child to have sexual contact with the person” if the child is less than 16
years old and the person stood “in a position of trust, authority, or supervision over
the child.” (emphases added) (formatting omitted)).

3
touch the defendant’s . . . genitalia.”6 Defendant contends this statutory definition

violates due process because it allows the State to prove him guilty based on an

objective “reasonable person” standard of intent that excludes evidence of his

subjective intent. The State opposes the motion, which is now ripe for decision.

STANDARD OF REVIEW

A defendant may move to dismiss an indictment under Criminal Rule

12(b)(2).7 An indictment is legally sufficient if it “put[s] the accused on full notice”

of the charges.8 So “an indictment is not defective if it . . . enable[s]” the defendant

to prepare a defense.9 In determining whether the crimes charged give notice and

allow for a defense, the Court “examines the statutes at issue” and ascertains the

“proper interpretation of criminal activity under the relevant criminal statutes.”10

6
Id. § 761(g)(1)(b)–(c) (emphasis added) (formatting omitted). Title 11 elsewhere
defines “intentionally” as a mental state involving a “conscious objective to engage
in [the alleged] conduct . . . or to cause [the alleged] result.” Id. § 231(b).
7
Del. Super. Ct. Crim. R. 12(b)(2).
8
Malloy v. State, 462 A.2d 1088, 1093 (Del. 1983).
9
Ciccaglione v. State, 474 A.2d 126, 128 (Del. 1984).
10
United States v. Pendleton, 2009 WL 320546, at *3 (D. Del. Feb. 10, 2009)
(internal quotation marks omitted). See generally supra note 1.

4
 ANALYSIS

The principles of statutory interpretation govern the extent to which the Court

may resolve Defendant’s constitutional challenge.11 “The goal of statutory

construction is to determine and give effect to legislative intent.”12 The Court

construes a statute according to its plain meaning.13 “If the statute . . . is

unambiguous,” then “the literal meaning of [its] words” controls.14

“Enactments of the Delaware General Assembly are presumed to be

constitutional.”15 The challenger bears the burden of rebutting this presumption by

“clear and convincing evidence.”16 In determining whether that burden has been

met, “all reasonable doubts as to the validity of [the] law must be resolved in favor

of . . . constitutionality . . . .”17 An interpreting court cannot construe a statute in a

way that produces “constitutional questionability and patent absurdity.”18

11
See, e.g., Dambro v. Meyer, 974 A.2d 121, 129 (Del. 2009) (“Questions of
statutory interpretation are questions of law” that the Court must resolve at the
outset.).
12
Eliason v. Englehart, 733 A.2d 944, 946 (Del. 1999).
13
E.g., Leatherbury v. Greenspun, 939 A.2d 1284, 1288 (Del. 2007).
14
Coastal Barge Corp. v. Coastal Zone Indus. Control Bd., 492 A.2d 1242, 1246
(Del. 1985).
15
Hoover v. State, 958 A.2d 816, 821 (Del. 2008).
16
Sierra v. Dep’t of Servs. for Child., Youth & their Families, 238 A.3d 142, 151,
155–56 (Del. 2020).
17
Hoover, 958 A.2d at 821 (alteration and internal quotation marks omitted).
18
Monceaux v. State, 51 A.3d 474, 477 (Del. 2012) (internal quotation marks
omitted).

5
 Delaware courts practice constitutional avoidance. “Where a possible

infringement of a constitutional guarantee exists, the interpreting court should strive

to construe the legislative intent so as to avoid . . . constitutional infirmities.”19

Courts will avoid construing a statute as unconstitutional unless the resulting

construction would contravene the legislature’s intent or would rewrite the statute.20

These rules apply with greater force where, as here, the challenger raises a

facial objection to a statute’s validity. “A facial challenge to a legislative [a]ct is . .

. the most difficult challenge to mount successfully . . . .”21 To succeed, a facial

challenger must demonstrate by clear and convincing evidence that the statute

“cannot be valid under any set of circumstances.”22 Conversely, if a statute can be

applied constitutionally in a “wide class of cases,” then a facial challenge to it must

fail.23 “Even if [a] statute, read literally, were susceptible of” a facially

unconstitutional construction, that construction may be rejected in favor of an

interpretation that “will uphold [the statute’s] validity.”24

19
State v. Baker, 720 A.2d 1139, 1144 (Del. 1998) (alteration and internal quotation
marks omitted).
20
See, e.g., Hazout v. Tsang Mun Ting, 134 A.3d 274, 286 (Del. 2016); see generally
United States v. Palomar–Santiago, 141 S. Ct. 1615, 1622 (2021) (explaining that
the canon of constitutional avoidance does not apply in the absence of ambiguity).
21
United States v. Salerno, 481 U.S. 739, 746 (1987).
22
Sierra, 238 A.3d at 156.
23
Bridgeville Rifle & Pistol Club, Ltd. v. Small, 176 A.3d 632, 652 (Del. 2017)
(internal quotation marks omitted).
24
State v. Hobson, 83 A.2d 846, 851 (Del. 1951). Accord League of Women Voters
of Del., Inc. v. Dep’t of Elections, 250 A.3d 922, 937 (Del. Ch. 2020) (“A facial

6
 As explained below, Defendant’s motion must be denied because, contrary to

Defendant’s position, the charged offenses do require the State to prove Defendant’s

subjective intent. Defendant’s interpretation misconstrues the statute and would lead

to absurd results.

A. The charges do not violate due process.

Defendant argues the sexual contact definition’s “reasonable person” standard

unconstitutionally permits the jury to ignore his subjective intent by replacing it with

the intent of a reasonable person. He separately claims that the sexual contact

definition violates due process because it does not contain a “sexual gratification”

element. While not explicit, it appears Defendant wants to argue to the jury that any

touching was not intended to be sexual in nature. It also appears he is concerned

that a jury may convict him simply because his subjective belief was not what a

reasonable person may have had in mind. But Defendant overreads the statute and

underestimates his right to raise a subjective intent defense.

1. The State must prove Defendant’s intent, not the intent of a reasonable
person.

a. The reasonable person standard operates as a template by which
to judge a Defendant’s credibility, not as a bar to considering his
subjective intent.

challenge to the constitutionality of legislation invokes broad judicial deference; if
a law can be applied in a way consistent with Constitutional structures, it will be
upheld.” (citing Hobson, 83 A.2d at 851)).

7
 Recall that sexual contact “means . . . touching, if the touching, under the

circumstances as viewed by a reasonable person,” was “intended” by “the

defendant” “to be sexual in nature.”25 Plainly read, the clause does not foreclose

consideration or exclude evidence of Defendant’s intent. Neither do the indicted

offenses, which tacitly incorporate the clause.26 Instead, the clause serves a separate

purpose: it informs the jury that it may consider the veracity of Defendant’s stated,

subjective intent by comparing his stated intent against the intent of a reasonable

person in similar circumstances.

The reason for allowing the jury to use an objective standard to judge

subjective intent is obvious. Thoughts are invisible and human psychology is

complex. As a consequence, “direct proof of a defendant’s state of mind is rare.”27

Indeed, it would be difficult, if not impossible, to show “a person wrote or stated

that, as of a given time, she committed an act with a particular intent.”28 Short of

clairvoyance, the State would rarely prove subjective intent unless the law placed an

objective lens on the jury’s view of the evidence surrounding the alleged offense.

25
11 Del. C. § 761(g)(1), (g)(1)(b)–(c).
26
Id. § 769(a)(3) (“A person is guilty of [USC I] when: [t]he person intentionally
has sexual contact with another person who is less than [13 years old] . . . .”
(emphasis added) (formatting omitted)); id. § 778A(1) (“A person is guilty of [Child
Sexual Abuse II] when the person [i]ntentionally has sexual contact with a child . .
. .” (emphases added) (formatting omitted)).
27
Bishop, 1991 WL 78470, at *4.
28
United States v. Maxwell, 2021 WL 5999414, at *9 (S.D.N.Y. Dec. 18, 2021).

8
 Title 11 supports interpreting the reasonable person clause this way. Take,

for example, Section 307.29 Section 307 is a tool for analyzing circumstantial

evidence. Under Section 307, a jury may infer a state of mind from indirect proof

by asking “whether a reasonable person in the defendant's circumstances at the time

of the offense would have had or lacked” a criminal purpose.30

The reasonable person clause does two things. First, it helps the State survive

a motion for judgment of acquittal in cases where the State has only circumstantial

evidence of the defendant’s state of mind.31 Delaware law does not require the State

to prove its case by direct evidence.32 Second, the clause facilitates fact-finding on

29
Relying on Section 307 to interpret the reasonable person clause does not cause
surplusage or redundancy issues. See Bishop v. State, 1991 WL 78470, at *4 (Del.
Apr. 30, 1991) (accepting as “well taken” an argument that analogous reasonable
person clause was simply an “abbreviated version” of Section 307, which had been
“adapted” to the particular offense).
30
11 Del. C. § 307(a). E.g., Bishop, 1991 WL 78470, at *4 (explaining that Delaware
law “permit[s] the jury to infer the defendant’s mental state from evidence of the
circumstances surrounding” the offense); Getz v. State, 538 A.2d 726, 733 (Del.
1988) (holding that where, as here, a statute defines intent as a “conscious object . .
. the jury may infer that intention from the circumstances surrounding the act
charged” (internal quotation marks and citations omitted)).
31
Bishop, 1991 WL 78470, at *4 (“[T]he State [can] get its case to the jury on the
basis of what would have been the state of mind of a reasonable man under the
circumstances known to the accused. This may be shown not only by direct proof,
but also by such inferences as may be reasonably drawn from the evidence adduced.”
(internal quotation marks omitted)); Coleman v. State, 320 A.2d 740, 742 (Del.
1974) (observing that reasonable person clauses in criminal statutes are “merely
intended to aid the State in getting to the jury without having literally to prove what
was going on in the defendant's mind” (internal quotation marks omitted)).
32
E.g., Castro v. State, 266 A.3d 201, 206 n.14 (Del. 2021) (“Direct evidence of a
crime is not required to sustain a conviction . . . . The law makes no distinction

9
the defendant’s state of mind by allowing the jury to evaluate the credibility of the

defendant’s stated intent vis-à-vis evidence of the circumstances surrounding the

alleged offense.33 “Otherwise . . . the only evidence [of subjective intent] would be

the defendant’s own self-interested testimony.”34

Contrary to Defendant’s contentions, allowing the jury to use an objective

standard to assess evidence of the circumstances surrounding the alleged offense is

not the same as permitting the jury to disregard evidence of defendant’s subjective

intent at the time of the alleged offense. Indeed, the Delaware Supreme Court has

explained at least twice35 that reasonable person instructions do not allow the jury to

between direct and circumstantial evidence.”); Morales v. State, 696 A.2d 390, 394
(Del. 1997) (same); Scott v. State, 521 A.2d 235, 244 (Del. 1987) (same); cf. White
v. State, 2016 WL 2585743, at *2 (Del. Apr. 25, 2016) (“Circumstantial evidence—
provided it [is] sufficient to prove the elements . . . beyond a reasonable doubt—[is]
sufficient” to prove intent.). See also Maxwell, 2021 WL 5999414, at *9 (“[D]irect
proof [of subjective intent] is not required. The ultimate fact of intent, though
subjective, may be established by circumstantial evidence, based upon the
defendant's outward manifestations, her words, her conduct, her acts and all the
surrounding circumstances disclosed by the evidence and the rational or logical
inferences that may be drawn from them.”).
33
Bishop, 1991 WL 78470, at *4 (explaining that reasonable person language
“permit[s] the use of an objective standard to judge the truth about the defendant’s
own mental culpability” (internal quotation marks omitted)); Coleman, 320 A.2d at
742 (“[T]he jury, in determining whether the defendant actually had the asserted
belief, [is] permitted to test the defendant's credibility by considering what a
reasonable man under [the] circumstances would have believed.” (internal quotation
marks omitted)).
34
Plass v. State, 457 A.2d 362, 365 (Del. 1983).
35
See Bishop v. State, 1991 WL 78470 (Del. Apr. 30, 1991); Coleman v. State, 320
A.2d 740 (Del. 1974).

10
use the objective intent of another to circumvent the subjective intent of the accused.

In every case, the jury’s task is to determine the accused’s state of mind:

The jury is not relieved of its job of determining whether, in any case,
the defendant himself had the requisite mental state. The jury [can] use
the reasonable man evidence as a way of reaching the defendant's own
culpability.36

It should be emphasized that proof of what would have been the state
of mind of a reasonable man will not, in itself, satisfy the prosecution's
burden of persuasion. The question in every case is what the accused
believed or intended. If the jury [has] a reasonable doubt about the
defendant's own culpability, [it] must acquit.37

This case will be no different. Defendant is the accused. As the State

acknowledges,38 it could not prove Defendant intended to cause Daughter to have

sexual contact with him by introducing evidence of sexual contact between Daughter

and someone else. The Court will instruct the jury that Defendant’s intent is what

matters.39 Defendant fails to align his contrary interpretation with the larger

36
Bishop, 1991 WL 78470, at *4 (internal quotation marks omitted).
37
Coleman, 320 A.2d at 742 (internal quotation marks omitted). See State v.
Magner, 732 A.2d 234, 241 (Del. Super. Ct. 1997) (observing that reasonable person
clause in a different statute “preserve[d] an objective inquiry” but also that the
defendant’s “subjective mental state . . . [was] important insofar that reasonableness”
was to be determined “from the viewpoint of a reasonable person in the accused’s
situation” (emphasis and internal quotation marks omitted)).
38
State’s Opp. at 3–4.
39
See, e.g., Smith v. State, 2014 WL 2927349, at *3 (Del. June 25, 2014) (rejecting,
in the context of analogous reasonable person language, “Smith's argument that the
jury applied a civil reasonable-person standard” because “when taken as a whole,
the instructions reasonably informed the jury that their evaluation related to Smith's
state of mind and not a reasonable person's”).

11
statutory scheme within which an objective standard of review plainly fits.

Accordingly, his motion must be denied.

b. Caselaw confirms that the reasonable person clause functions as
a tool for assessing the circumstances surrounding the alleged
offense.

These conclusions are not new. Almost 30 years ago, then-Resident Judge

Steele in State v. Row40 presided over a bench trial involving a gymnastics teacher

during which the State sought to prove that the defendant had unlawful sexual

contact with two minors when he “fondle[d]” or “touch[ed]” their clothed “breasts”

and “vaginas.”41 Having analyzed the statutory text, the Court determined that the

State could not prove sexual contact unless it satisfied two elements. First, the

defendant “acted intentionally; that is, it was his conscious objective to [h]ave sexual

contact with” the minors.42 And second, “a reasonable person under the

circumstances would find the [d]efendant intended [the] touchings to be sexual in

nature.”43

Applying these elements to the evidence, the Court acquitted the defendant,

finding “the State did not prove beyond a reasonable doubt the [d]efendant intended

40
1994 WL 45358 (Del. Super. Ct. Feb. 1, 1994).
41
Id. at *6.
42
Id. (formatting and emphasis omitted).
43
Id. at *7 (emphasis added).

12
contact which a reasonable person could conclude to be of a sexual nature.”44 As

support for its verdict, the Court cited the “reasonable doubt” created by defendant’s

testimony: “he did not intend his [touchings] to have sexual connotations.”45

More important, the Court understood throughout that the reasonable person

clause functioned solely as a jury instruction governing the Court’s deliberations on

the defendant’s subjective intent:

The Court must judge the believability of each witness and determine
the weight given to all trial testimony. The Court should consider . .
. the reasonableness or unreasonableness of the testimony . . . and all
other facts and circumstances shown by the evidence which affect the
believability of the testimony . . . . [T]o convict the Defendant of [USC
I], the Court must determine not only that the touchings occurred, but
also that a reasonable person under the circumstances would find the
Defendant intended these touchings to be “sexual in nature.”46

In other words, the Court did not deliberate on a reasonable person’s intent. Instead,

the Court used a reasonableness standard to determine whether the defendant’s

stated subjective intent was “believable.” Indeed, the Court ultimately found the

defendant’s stated intent to be the most credible evidence adduced at trial.

Defendant’s montage of decontextualized case quotations does not feature

Row.47 But Row further undermines his bid for dismissal. Row holds that the State

44
Id. at *9. The Court convicted the defendant on the lesser-included crime of
offensive touching instead. See id. at *10–11.
45
Id. at *9.
46
Id. at *1, *8 (emphases added).
47
See, e.g., Def.’s Mot. to Dismiss at 4–14.

13
must prove Defendant to have contact that he intended to be “sexual in nature.” And

Row also teaches that the jury must decide Defendant’s subjective intent, not the

intent of a reasonable person. Defendant cites no authority of his own for deeming

a charge unconstitutional simply because it contains an objective standard of

review.48 Consequently, he has not rebutted the presumption of constitutionality

that attaches to every statute as a successful facial challenger invariably must.

Accordingly, his objective-intent argument fails.

In sum, neither the statute’s plain language nor precedent applying it

establishes that the charges violate due process. Because Defendant did not

demonstrate that the statutes are unconstitutional under any set of circumstances, his

motion must be denied.

B. Even if the charges could be read to have an unconstitutional meaning, the
indictment still would survive dismissal.

Having found no support in the statutes’ words, Defendant resorts to adding

some of his own. He argues that the sexual contact definition is unconstitutional

48
But see State v. Thomas, 2021 WL 3661117, at *2 (Del. Super. Ct. Aug. 17, 2021)
(observing “subjective and objective considerations” in Title 11’s “without consent”
definition, which uses a reasonable person standard for assessing evidence, not
defendant’s intent (citing 11 Del. C. 761(k)(1))); State v. Harris, 2017 WL 1505219,
at *17 (Del. Ct. Com. Pl. Aug. 20, 2017) (same); but see also Clark v. State, 2008
WL 3906890, at *3 (Del. Aug. 26, 2008) (upholding sufficiency of attempted rape
conviction where reasonable person could have concluded from the evidence that
the victim did not consent); Johnson v. State, 2007 WL 1575229, at *3 (Del. May
31, 2007) (same).

14
because it does not require the State to prove that he obtained “sexual gratification”

from the alleged sexual contact. Defendant does not explain why the federal or

Delaware Constitution prohibits the General Assembly from criminalizing child

sexual abuse that is not sexually gratifying to the abuser. Instead, he annexes to his

motion a digest of laws from other jurisdictions in which a gratification element

exists.49 Even so, his observation that different states have different laws may take

him to the end of a sentence, but it says nothing about the Constitution. Charged

under a Delaware indictment, Defendant cannot obtain its dismissal by calling a few

foreign charges constitutional. Quite the opposite: Defendant had to demonstrate

how his Delaware charges are unconstitutional. 50 He did not.

Nevertheless, even if the Constitution prohibited, to some extent, a sexual

contact definition that does not include a sexual gratification element, the Court still

would not dismiss the indictment. Assuming the definition’s constitutionality is

ambiguous, the Court is bound to avoid an unconstitutional construction if doing so

would prevent absurd results and would not “impair[] the legislature’s purpose.”51

49
E.g., Def.’s Mot. to Dismiss at 11–12 (surveying Ohio and New York law).
50
E.g., Sierra, 238 A.3d at 156; see also Hobson, 83 A.2d at 851.
51
Hazout, 134 A.3d at 286 & n.42. See also Clark v. Martinez, 543 U.S. 371, 381–
82 (2005) (“One of the canon[] [of constitutional avoidance’s] chief justifications is
that it allows courts to avoid the decision of constitutional questions. It is a tool for
choosing between competing plausible interpretations of a statutory text, resting on
the reasonable presumption that Congress did not intend the alternative which raises
constitutional doubts. The canon is thus a means of giving effect to congressional
intent, not of subverting it.” (second emphasis added) (citations omitted)).

15
“Absurd” is a mild way of describing the aftermath that would follow from

Defendant’s facial attack.

Delaware courts have documented the evolving legislative history of the

definition of sexual contact.52 In short, the General Assembly deleted qualifiers like

“arouse” or “gratify” from the definition to maximize protection of children from

sexual abuse.53 By removing a sexual gratification element, the legislature plainly

had a victim-centric focus. The USC I and Child Sexual Abuse II statutes on the

books today forbid any touching of an adult’s genitalia by a child that is intended to

be “sexual in nature,” even if the touching is not sexually gratifying to the adult.

Of course, a statute may be invalid despite the legislature’s best intentions.54

So let us imagine, as Defendant invites,55 that the Court finds the sexual contact

definition unconstitutional for lack of a sexual gratification element. For good

52
See generally, e.g., State v. Sapps, 820 A.2d 477, 486–87 (Del. Fam. Ct. 2002).
53
See Row, 1994 WL 45358, at *7; see also United States v. Dahl, 833 F.3d 345,
356 (3d Cir. 2016) (observing that Delaware’s sexual contact definition “is broader
than the federal law’s” definition, which does have a sexual gratification element);
cf. Dorsey v. City of Dover Bd. of Elections, 1994 WL 146012, at *6 (Del. Super.
Ct. Mar. 25, 1994) (holding that conduct satisfying Ohio’s definition of sexual
contact, which includes a sexual gratification element, necessarily would also satisfy
Delaware’s definition, which does not include such an element).
54
E.g., CFTC v. Schor, 478 U.S. 833, 841 (1986) (“Although [courts] will often
strain to construe legislation so as to save it from constitutional attack, [they] must
not and will not carry this to the point of . . . judicially rewriting it.” (alteration and
internal quotation marks omitted)); accord Hazout, 134 A.3d at 286 n.42.
55
But see, e.g., Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442,
450–51 (2008) (explaining that a facial challenge to a statute’s constitutionality
cannot be “speculative” or based on “hypothetical” or “imaginary” scenarios).

16
measure, let us also imagine the Court strikes the reasonable person clause, thereby

requiring the State to prove a subjective intent to have sexual contact only by direct

evidence. Now a father could sexually abuse his daughter freely so long as,

according to him, the abuse was a mere anatomy lesson that he intended to be

educational. Without an objective lens of reasonableness through which to review

his stated intent, the abuser’s conduct would be legal and he would be acquitted

every time.

Defendant thinks this disturbing result is constitutionally compelled. But the

Court will not find a statute unconstitutional if a constitutional interpretation would

discharge the legislature’s intent in the generic case.56 Nor will the Court reinsert

terms the General Assembly chose to omit.57 And the Court cannot adopt a statutory

interpretation that is patently absurd.58 With these targets set, Defendant’s reading

misses the mark.

To begin, the General Assembly purposefully removed a gratification element

from the statute. It did so to ensure children, like Daughter, would be protected from

56
See Bridgeville Rifle, 176 A.3d at 652; Hazout, 134 A.3d at 286–87 & nn.42–44;
Baker, 720 A.2d at 1144.
57
See, e.g., Fuller v. State, 104 A.3d 817, 822 (Del. 2014) (reasoning that where, as
here, the General Assembly removes certain words from a statute and then inserts
different words in their place, the resulting meaning is presumptively intentional);
Giuricich v. Emtrol Corp., 449 A.2d 232, 238 (Del. 1982) (holding that there is “no
room” for judicial rewording of an unambiguous statute).
58
Monceaux, 51 A.3d at 477.

17
all contact-based sexual abuse—even abuse an accused says he found ungratifying.

Here, an objective analysis of the circumstances surrounding Defendant’s stated

intent would allow incredible evidence to be impeached and rejected and so would

discharge the legislature’s intent to widen the scope of child sexual abuse protection.

Enforcing the statutes’ language as written also safeguards Defendant’s due

process rights. In this context, due process (i) requires the State to prove all the

material elements defining the charges beyond a reasonable doubt; and (ii) affords

Defendant a fair opportunity to defend himself.59 Here, the plain language of the

reasonable person clause does not preclude the jury’s consideration of Defendant’s

subjective intent. So a jury cannot find Defendant guilty of USC I or Child Sexual

Abuse II unless the State proves beyond a reasonable doubt that he (i) intentionally

caused or allowed Daughter to touch his penis; and (ii) intended Daughter’s touching

to be sexual in nature.60 By the same token, Defendant may defend against both

charges on the ground that (i) the touching was not intentionally induced; or (ii) he

did not intend any touching to be sexual in nature. Taken together, the charges put

59
E.g., Fiore v. White, 531 U.S. 225, 228–29 (2001) (proof beyond a reasonable
doubt); Chambers v. Mississippi, 410 U.S. 284, 294 (1973) (defenses); see 11 Del.
C. § 301(a)–(b) (codifying burden); 11 Del. C. § 252 (codifying material element
requirement); cf. Model Penal Code §§ 1.13(10), 2.02(1), (2)(a) (1972) (defining the
material element requirement Title 11 incorporates).
60
11 Del. C. §§ 761(g)(1), (g)(1)(b)–(c), 769(a)(3), 778A(1).

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“fundamental elements of fairness” in Defendant’s trial:61 the State carries the

burden and Defendant can raise defenses. Due process demands nothing more.62

Against all this, Defendant’s reading would achieve the patently absurd

outcome of judicially legalizing sexually “ungratifying” child abuse that the General

Assembly actively tried to eliminate. Whether based on the Constitution or not,

Defendant’s interpretation is easily avoidable.

To be sure, Defendant is free to tell the jury anything he wishes about his

intent. This decision will not stop him. Still, Defendant goes too far when he

suggests that his stated intent must defeat as a matter of law any evidence tending to

belie it. The Constitution grants Defendant the right to testify in his own defense.

But it does not command the jury to accept whatever he says. Should the jury find

the evidence to support Defendant’s side of the story, then perhaps, like the

Defendant in Row, he will be acquitted. His pre-trial arguments, however, offer no

basis for dismissing the indictment. Accordingly, his gratification argument fails.

C. Defendant’s remaining challenges lack merit.

Finally, Defendant insists the presence of an objective standard in the jury

room will confuse jurors into thinking his subjective intent is irrelevant and so will

effectively impose a mandatory presumption of guilt. Defendant’s pleading-stage

61
Monceaux, 51 A.3d at 477 (internal quotation marks omitted).
62
See 16C C.J.S. Constitutional Law § 1610, Westlaw (online ed. database) (last
updated Mar. 2022) (summarizing applicable principles).

19
concerns over jury instructions are premature and do not bear on the indictment’s

legal sufficiency. Even so, the Delaware Supreme Court has rejected his theories.

In Deputy v. State,63 the Supreme Court considered an identical challenge to

similar language. The Supreme Court explained that reasonable-under-the-

circumstances instructions, when properly given, create “permissive inferences” of

intent; they neither shift a burden of proof to the defendant nor constrain the jury to

rendering a guilty verdict.64 In doing so, the Supreme Court also rebuffed a broader

challenge to the fact-finding framework implied by a reasonable person clause for

the same reasons this Court rejected Defendant’s challenge earlier:

Finally, we note that the problems involved in proving the existence of
a person’s state of mind necessitate some reliance on circumstantial
evidence . . . . As a matter of common sense, in judging the
sufficiency of the evidence as to the state of mind, the jury must be
able to weigh the conduct of the defendant.65

To reiterate, the Court will craft instructions that “reasonably inform[] the

jury” of its duty to determine Defendant’s “state of mind and not a reasonable

person’s” state of mind.66 Accordingly, these arguments, like all the other ones, fail.

63
500 A.2d 581 (Del. 1985).
64
Id. at 596–98.
65
Id. at 597 (internal quotation marks omitted) (citing 11 Del. C. § 307 cmt.).
66
Smith, 2014 WL 2927349, at *3. See, e.g., Bishop, 1991 WL 78470, at *4–5
(rejecting challenge to jury instructions that attacked reasonable person standard).

20
 CONCLUSION

Defendant had to demonstrate clearly that the indicted offenses could not be

prosecuted constitutionally under any set of facts. He did not. Accordingly, his

motion to dismiss must be DENIED.

IT IS SO ORDERED.

Charles E. Butler, Resident Judge

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