State v. Herbert, I.D. 2005000034

CourtSuperior Court of Delaware
Writing for the CourtCharles E. Butler, Resident Judge
Docket NumberI.D. 2005000034
Decision Date21 November 2022



I.D. No. 2005000034

Superior Court of Delaware

November 21, 2022

Submitted: October 13, 2022

Upon Consideration of Defendant's Motion for Judgment of Acquittal DENIED

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

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


Charles E. Butler, Resident Judge


On this 21st day of November 2022, in consideration of Defendant John Herbert's motion for judgment of acquittal, it appears to the Court that:

1. The Defendant was estranged from his wife ("Mother") and had taken up residence in an apartment a short distance from the family abode. When his then 4-year-old daughter ("Daughter") came home from a visit with the Defendant, she told Mother that she had touched the Defendant's penis. Using her cell phone camera, Mother videoed Daughter explaining the touching and this video was buttressed by a later video recording at the Children's Advocacy Center ("CAC"). Both videos were played to the jury.

2. The Defendant was charged with Unlawful Sexual Contact First Degree ("USC 1")[1] and Sexual Abuse of a Child by a Person in a Position of Trust, Authority, or Supervision Second Degree ("Child Sexual Abuse II").[2] Daughter testified at trial but did not recount the incident from the witness stand. The CAC interview became the centerpiece of the evidence against the Defendant.

3. The Defendant testified, admitting that Daughter touched his penis, but denying that such touching was "sexual in nature." Rather, Defendant testified that the child was simply curious and that he and Mother had previously agreed that


Daughter's curiosity should not be discouraged as it may have deleterious effects on her views of sex in the future. Mother disputed that any such previous discussion had happened. The Defendant also introduced character witnesses who had known him for many years and were quite certain that he could not be guilty of the offenses alleged.

4. The jury concluded otherwise and convicted the Defendant as charged.[3]

5. Motions for judgment of acquittal are governed by Rule 29.[4] Rule 29 says that the motion should be granted "if the evidence is insufficient to sustain a conviction" of such offenses.[5] In this case, the jury found the evidence sufficient to sustain a conviction. While Defendant urges that the Court has the power to reverse the jury's conclusion, the best he can offer is that "the evidence does not show the permitted touchings were...

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