IN THE SUPREME COURT OF THE STATE OF DELAWARE

JEREMY L. BENSON,

Defendant Below,

Appellant,

v.

STATE OF DELAWARE,

Plaintiff Below,

Appellee.

§

§ 

§ No. 497, 2019

§

§ Court Below—Superior Court

§ of the State of Delaware

§ 

§ Cr. ID No. 1712014868A (N)

§

§

§

Submitted: September 4, 2020

Decided: November 6, 2020

Before SEITZ, Chief Justice; VALIHURA and VAUGHN, Justices.

ORDER

Upon consideration of the parties’ briefs and the record on appeal, it appears 

to the Court that:

(1) The defendant below-appellant, Jeremy L. Benson, filed this appeal 

from his conviction for attempted first-degree rape as a lesser-included offense of 

first-degree rape. After careful consideration of the parties’ arguments, we affirm 

the Superior Court’s judgment. 

(2) In February 2018, a New Castle County grand jury charged Benson 

with first-degree rape and sex offender unlawful conduct against a child. The parties 

agreed to try the rape charge first, and separately, from the other charge. In March 

2019, the first trial ended in a mistrial. 
2

(3) The evidence presented at the second trial, in June 2019, established

that a therapist reported a child’s (“the Child”) disclosure of sexual abuse in March 

2017. The Child, who was born in 2003, disclosed that he had sexual contact with

his younger sister1and that Benson, his uncle, had molested him. According to the 

police reports of the Wilmington Police Department detective assigned to investigate 

the case, the Child reported that Benson assaulted him at the family’s Church Street 

address in 2015 or 2016. The detective later learned that the family moved out of 

the Church Street address to live at a new address by October 1, 2014, but did not 

update his reports. It was unknown when the family moved into the Church Street 

address, but the Child’s father thought they lived there for about a year-and-a-half. 

(4) The Child’s mother, who suffered from seizures that sometimes 

affected her memory, testified that Benson was her brother. Both of the Child’s 

parents recalled an incident at the Church Street address involving Benson. They

had left the residence, possibly to find food for the family. While they were gone, 

they left the Child in charge of his four younger siblings. The children understood 

that they were not to open the door to anyone and that Benson was not permitted 

inside the home. 

 

1 The Superior Court granted Benson’s motion to offer evidence relating to the Child’s sexual 

conduct under Delaware’s rape shield law, 11 Del. C. § 3508. Benson’s defense at trial was that 

the Child and his family members lied about what Benson did to the Child because they feared the 

Child could go to jail for what he did to his sister. 
3

(5) The Child called his parents to report that Benson came inside the 

house. The parents returned to the home where they found Benson (inside the house 

according to the Child’s mother and outside the house according to the Child’s 

father). The Child’s mother and Benson got into an argument. Benson was upset 

that one of the children had told him to “get the F out” and said the children could 

“suck his dick.”2 After the Child’s mother shoved Benson into a fireplace, Benson 

left the house. The parents yelled at the Child and punished him for letting Benson 

into the house. 

(6) After the family moved out of the Church Street address, the parents 

noticed that the Child was lying, stealing, and acting angry. In 2017, one of the 

Child’s younger sisters told the parents that the Child had touched her 

inappropriately. The mother testified that when she and the father spoke to the Child 

about this, he disclosed for the first time that Benson had sexually assaulted him. 

The father testified that the Child did not disclose Benson’s assault at that time. 

(7) Both parents testified that they were concerned the Child might go to 

jail because of what he did to his sister. They chose not to contact the police, but 

instead took the Child to a therapist. After the Child told the therapist about what 

he had done to his sister and what Benson had done to him, the therapist reported 

 

2 Appendix to State’s Answering Brief at B290.
4

the incidents to the authorities. The father testified that he learned of Benson’s 

assault after the Child disclosed it to the therapist. 

(8) The Child testified that Benson forced his way into the Church Street 

home after the parents left the Child alone with his younger siblings. The Child was 

downstairs and his four younger siblings were upstairs. After hearing a knock at the 

door, the Child opened the door even though his parents had told the children not to 

open the door when they were not there. When the Child saw it was Benson at the 

door, he tried to close the door because Benson was not allowed in the house. 

Benson pushed his way into the house and pulled the Child in the bathroom. The 

Child testified that Benson locked the bathroom door, bent the Child over the 

bathtub, put his hand over the Child’s mouth, pulled down the Child’s pants and 

underwear, and put his penis between the Child’s buttocks. The Child was not sure 

if Benson’s penis penetrated his anus, but said there was pain. 

(9) After the Child’s younger brother cursed and told Benson to get out of 

the house, Benson pulled up his pants, unlocked the bathroom door, and left the 

bathroom. Before leaving the bathroom, Benson told the Child that if he told anyone 

about what had happened, Benson would kill his parents. Benson left the house to 

sit outside in his car. 

(10) The Child called his parents about Benson coming into the house. The 

parents came home and got into a fight with Benson in the house. The Child testified 
5

that his mother shoved Benson into a fireplace. The Child did not tell his parents 

about what happened in the bathroom because they were already angry with him for 

opening the door and he did not want to cause more trouble. The Child said he did 

not tell his parents about what Benson had done until shortly before or around the 

time they learned what he had done to his younger sister. The Child admitted that 

he was charged with felonies for what he did to his younger sister. 

(11) On direct and cross-examination, the State and Benson explored 

differences between the Child’s trial testimony and his previous accounts of the 

assault. These differences included: (i) the Child stating during a May 2017 

interview at the Children’s Advocacy Center (“CAC”) that Benson bent him over a 

sink, not a bathtub, and that only two, instead of four, of his younger siblings were 

in the house at the time of the assault; (ii) the Child stating on another occasion that 

Benson put his elbow, not his hand, over his mouth; and (iii) the Child telling his 

therapist that Benson almost molested him, but did not because his younger brother 

started yelling.

(12) Two of the Child’s younger siblings also testified about the incident at 

the Church Street home. The younger brother testified that he was standing on the 

stairs when he saw Benson push past the Child to come into the house and go toward 

the bathroom. The younger brother cursed and told Benson to get out because he 

was not supposed to be in the house. Benson left the bathroom and demanded to 
6

know who had cursed at him. According to the younger brother, the Child had a 

weird look on his face and tears in his eyes. When asked why he said only he, the 

Child, and a younger sister were at the house during a May 2017 interview at the 

CAC, the younger brother, like the Child, said he did not mention the presence of 

two younger siblings because he wanted to protect them. 

(13) One of the Child’s younger sisters testified that she and her brother 

came down the stairs when their two youngest siblings told them that the Child had 

let Benson into the house. She saw the Child follow Benson, heard the toilet flush, 

and heard her older brother curse and tell Benson to get out of the house. She 

testified that the Child’s eyes were watering and Benson was buckling his pants 

when he left the bathroom. During her interview at the CAC, she said that Benson 

had dragged the Child into the bathroom and that the two youngest siblings were not 

at the house at time of the incident. Both the Child’s younger brother and younger 

sister testified that they could not see the bathroom from where they were standing 

on the stairs. They also testified that Benson fought with their parents when they 

came back to the house, which led to their mother pushing Benson into a fireplace. 

(14) At the conclusion of the State’s case, Benson moved for a judgment of 

acquittal. The Superior Court denied the motion. 

(15) Benson, who was born in 1971, testified that he did not get along with 

his sister. After their father died, Benson went to his sister’s Church Street address 
7

between 2013 and 2014 to collect some of their father’s belongings. Shortly after 

Benson arrived at the house, the Child’s parents arrived and went into the house with 

Benson. According to Benson, he was never in the house alone with the children, 

but he did see the Child and two of his siblings. 

(16) After entering the house, Benson immediately went to use the 

bathroom. He testified that no one was in the bathroom with him, and that he did 

not assault the Child. After he left the bathroom, he got into a fight with his sister

in which she poked him a couple of times. The Child’s younger brother cussed at 

Benson and told him to get out of the house. Benson left the house and did not have 

any more contact with his sister or her family. 

(17) The jury found Benson not guilty of first-degree rape and guilty of 

attempted first-degree rape. The State chose not to proceed on the sex offender 

charge. The Superior Court sentenced Benson to thirty-five years of Level V 

incarceration, suspended after twenty years for decreasing levels of supervision.

3

 

This appeal followed. On appeal, Benson exercised his constitutional right to 

represent himself. 

(18) Benson’s arguments on appeal may be summarized as follows: (i) the 

arrest warrant and indictment contained false statements in violation of the Due 

 

3 The Superior Court also sentenced Benson for breach conditions of release in Criminal ID No. 

1803003163.
8

Process Clause and the Fourth and Fourteenth Amendments of the United States 

Constitution; (ii) the Superior Court violated his right to a speedy trial; (iii) the 

Superior Court erred in permitting the State to amend the indictment; (iv) the 

Superior Court erred in denying his motion to dismiss based on a violation of the 

Double Jeopardy Clause; (v) the Superior Court erred in giving a jury instruction for 

the lesser-included offense of attempted first-degree rape when neither party

requested such an instruction; (vi) there was insufficient evidence to support his 

conviction; and (vii) the State knowingly used the Child’s false statements to obtain 

his conviction.

False Statements in the Arrest Warrant and Indictment

(19) Benson did not raise his claim that the arrest warrant and indictment 

contained false statements in violation of the Due Process Clause and the Fourth and 

Fourteenth Amendments of the United States Constitution, so we review this claim 

for plain error.4 Plain error “is limited to material defects which are apparent on the 

face of the record; which are basic, serious and fundamental in their character, and 

which clearly deprive an accused of a substantial right, or which clearly show 

manifest injustice.”5 An arrest warrant is valid if the issuing judicial officer is 

“presented with sufficient information to support an independent judgment that 

 

4 Supr. Ct. R. 8.

5 Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
9

probable cause for the warrant exists.”6 An indictment is sufficient if it contains a 

“plain, concise and definite written statement of the essential facts constituting the 

offense charged” that puts the defendant on notice of the charges he must defend and 

bars subsequent prosecution for the same offense.7

(20) Benson does not identify the statements in the arrest warrant or 

indictment that he contends are false, but points to trial testimony that he claims is 

evidence of fabrication by the Child and his family members. The arrest warrant

described how Benson sexually assaulted the Child in the first floor bathroom of the 

Church Street residence, with the Child believing (in 2017) that the assault occurred 

in 2015. The indictment charged Benson with intentionally engaging in sexual 

intercourse with a child under the age of twelve when he was over the age of eighteen

on or between May 1, 2014 and November 1, 2014.

8

 The arrest warrant contained 

sufficient information for a magistrate to determine there was probable cause to 

arrest Benson for the crimes for which he was charged. The indictment satisfied 

Superior Court Criminal Rule 7(c)(1), put Benson on notice of the charges he had to 

defend, and effectively barred subsequent prosecution for the same offenses. 

 

6 Thomas v. State, 467 A.2d 954, 956 (Del. 1983).

7 Super. Ct. Crim R. 7(c)(1); Mayo v. State, 458 A.2d 26, 27 (Del. 1983).

8 The amendment of this date range is addressed later in this Order.
10

Benson has not shown that any differences between the arrest warrant or indictment 

and the trial testimony constitute plain error.

Right to a Speedy Trial 

(21) Benson argues that there was a violation of his Sixth Amendment right

to a speedy trial. He did not raise this claim below so we review for plain error.9 To 

determine if there is a speedy trial violation, we use the four-factor balancing test set 

forth in Barker v. Wingo.

10

 The four factors are the length of the delay, the reason 

for the delay, the defendant’s assertion of his right, and the prejudice to the 

defendant.11 The factors are related and no one factor is conclusive.12

(22) A defendant’s right to a speedy trial “attaches as soon as the defendant 

is accused of a crime through arrest or indictment whichever occurs first.”13 Unless 

the length of delay is determined to be “presumptively prejudicial,” it is not 

necessary to consider the additional Barker factors.14 This Court has held that if the 

 

9 Supr. Ct. R. 8; Page v. State, 934 A.2d 891, 896 (Del. 2007).

10 407 U.S. 514 (1972). See also Johnson v. State, 305 A.2d 622, 623 (Del. 1973) (adopting Barker

test)).

11 Barker, 407 U.S. at 530.

12 Middlebrook v. State, 802 A.2d 268, 273 (Del. 2002) (citing Barker, 407 U.S. at 533)).

13 Id.

14 Barker, 407 U.S. at 530.
11

delay between arrest or indictment and trial approaches one year, then the Court will 

generally consider the additional factors.15

(23) We will consider the additional factors here because there is more than 

one year between Benson’s arrest (January 3, 2018) and first trial (March 2019). 

Trial was originally scheduled for September 2018. In August, defense counsel 

requested a continuance to obtain additional discovery from the Division of Family 

Services. A November trial date was suggested, but the matter was specially 

assigned and the assigned Superior Court judge was doing her civil rotation then and 

had a conflict. Trial was rescheduled for February 5, 2019, but on that date the 

parties jointly requested a two-week continuance to address the admissibility of the 

Child’s sexual offenses against his sister under 11 Del. C. § 3508. There were also 

issues concerning the State’s discovery obligations. Trial was rescheduled to 

commence on February 18, 2019, but the Superior Court moved the trial date back 

to March 5, 2019 based on the evidentiary and discovery issues raised by the parties. 

After the first trial ended in a mistrial, a second trial was rescheduled for June 2019. 

(24) Benson attributes the delays in the scheduling of the first trial to the 

State’s withholding of discovery. The State admits that the delay “may be partially 

attributable to the State,” but contends Benson was equally if not more responsible 

 

15 Cooper v. State, 2011 WL 6039613, at *7 (Del. Dec. 5, 2011).
12

for the delays.

16

 The record does not support the latter contention, but does reflect 

that neither side was solely responsible for the delays. This is unlike Dabney v. 

State,

17 which Benson relies upon to argue that there was a violation of his right to a 

speedy trial. In Dabney, this Court found a speedy trial violation where the delays 

were solely attributable to the State’s failure to promptly obtain DNA testing that 

was not even necessary for the prosecution of the case.18 

(25) As to the third Barker factor—the defendant’s assertion of his right to 

a speedy trial—Benson did not assert his speedy trial rights in the Superior Court. 

Benson points to letters that he claims to have sent to his counsel regarding the 

delays, but his counsel requested or agreed to the continuances.

(26) Finally, we consider the prejudice factor in light of the interests that the 

right to a speedy trial is designed to protect: “(1) preventing oppressive pretrial 

incarceration; (2) minimizing the anxiety and concern of the accused; and (3) 

limiting the possibility that the defense will be impaired.”19 Benson was incarcerated 

throughout the pretrial proceedings, which caused him anxiety and stress. Benson 

has not shown that the delay caused any impairment to his defense. He claims that 

the delay caused him to lose a key witness and almost caused him to lose two 

 

16 Answering Brief at 22.

17 953 A.2d 159 (Del. 2008).

18 Id. at 165-69.

19 Weber v. State, 971 A.2d 135, 162 (Del.2009).
13

additional key witnesses, but does not explain who these witnesses were or why they 

were key.

(27) Having considered all of the Barker factors, we conclude that they do 

not weigh in favor of finding a violation of Benson’s right to a speedy trial. More 

than a year passed between Benson’s arrest and first trial date, but the delays were 

not solely attributable to the State, Benson did not object to the continuances of the 

trial date or raise his speedy trial rights in the proceedings below, and Benson has 

not shown the delays prejudiced his defense. 

Amendment of the Indictment

(28) Benson next contends that the Superior Court erred in granting the 

State’s motion to amend the indictment during the first trial. We review the Superior 

Court's decision on a motion to amend an indictment for abuse of discretion.20

(29) Court I of the indictment originally charged Benson with intentionally 

engaging in sexual intercourse with the Child between May 1, 2014 and November 

1, 2014 when the Child was under the age of twelve and Benson was over the age of 

eighteen. A day after the parents’ testimony and shortly before the close of the 

State’s case in the first trial, the State moved to amend the beginning of the date 

range in the indictment to October 1, 2012. Benson objected, arguing that the 

amendment would prejudice his substantial rights because he had been preparing a 

 

20 Coffield v. State, 794 A.2d 588, 590–91 (Del.2002).
14

trial defense based on a six-month time period and now had to prepare an alibi 

defense for an additional eighteen months. The trial judge noted that the amendment 

would not charge a new offense and that she did not believe there was substantial 

prejudice, but gave Benson’s counsel the opportunity to confer with his client 

regarding whether he needed more time. After speaking with Benson, defense 

counsel informed the Superior Court that Benson was incarcerated from November

2012 through March of 2013. Without waiving Benson’s objections to amendment 

of the indictment, the parties agreed to the indictment date range starting on April 1, 

2013. The Superior Court granted the State’s motion to amend the date range in the 

indictment.

(30) The Superior Court may permit amendment of an indictment at any 

time before verdict “if no additional or different offense is charged and if substantial 

rights of the defendant are not prejudiced.”21 Benson argues that the amendment 

prejudiced his substantial rights because he could no longer pursue “his initial 

defense strategy of not being around the complainants [sic] person or home anytime 

after the summer of 2013.”22 As the Superior Court recognized, it is difficult to 

understand how this strategy would aid Benson or how its absence would prejudice 

his substantial rights. The family member witnesses were unable to identify the date 

 

21 Super. Ct. Crim. R. 7(e).

22 Opening Brief at 7.
15

of the incident with Benson, but were clear that the incident occurred at a particular 

location (where the family resided for approximately a year-and-a-half before 

moving to another residence in October 2014). Even assuming Benson could prove

that he did not see the family or go to their home after the summer of 2013, it would 

not be particularly helpful to his defense because none of the family testified that the 

incident occurred after the summer of 2013. Nor would the absence of this defense 

prejudice his substantial rights. The Superior Court did not err in granting the State’s 

motion to amend the indictment.

Double Jeopardy Claim

(31) Benson next argues that the Superior Court erred in denying his motion 

to dismiss based on the Double Jeopardy Clause.

23

 The origins of this claim lie in 

the first trial. After the jury indicated for a second time that they could not agree on 

a verdict,24 the trial judge told the parties she intended to declare a mistrial. The trial 

judge asked the parties whether they wished her to see if she could find out what the 

split was when she spoke to the jurors after she declared a mistrial and excused them

from the courtroom. Both sides said yes. The trial judge proceeded to declare a 

 

23 Benson also refers to collateral estoppel in this section of his opening brief, but does not make 

any arguments based upon collateral estoppel. 

24 Following the jury’s first indication that they could not agree on a verdict, the Superior Court 

gave an Allen charge. An Allen charge “is a request from a trial court to the jury to attempt to 

come to a decision in the case without abandoning any firmly held beliefs.” Bradshaw v. State, 

806 A.2d 131, 134 (Del. 2002).
16

mistrial and excuse the jury. After speaking to the jury, the trial judge returned to 

the courtroom and informed the parties that the jury split had been nine to three in 

favor of a guilty verdict on the lesser-included offense of attempted first-degree rape.

(32) During the second trial, Benson argued that retrial on the first-degree 

rape charge was a double jeopardy violation because the first jury implicitly 

acquitted him of first-degree rape. He contended that the jury implicitly acquitted 

him of first-degree rape because: (i) the jury instructions provided that if the jurors 

did not find Benson guilty of first-degree rape or had any reasonable doubt as to an 

element of the crime they had to find him not guilty of first-degree rape and then go 

on to consider the lesser-included offense of attempted first-degree rape; and (ii) the 

trial judge told the parties that the jurors were split nine to three in favor of a guilty 

verdict on attempted first-degree rape, which meant the jurors must have found him 

not guilty of first-degree rape. The State opposed the motion, arguing there was no 

final judgment of acquittal in the first trial that implicated double jeopardy 

principles. 

(33) The Superior Court denied Benson’s motion. Relying on the U.S. 

Supreme Court’s decision in Blueford v. Arkansas,

25 the Superior Court concluded 

that retrial did not violate double jeopardy principles. 

 

25 566 U.S. 599 (2012).
17

(34) We review claims alleging an infringement of a constitutionally 

protected right, including the right not to be subjected to double jeopardy, de novo.

26

 

The Double Jeopardy Clause of the Fifth Amendment provides that no person shall 

“be subject for the same offence to be twice put in jeopardy.”27 “Under double 

jeopardy principles, an acquittal on the merits by the sole decisionmaker in the 

proceeding is final and bars retrial on the same charge.”28 Section 207(1) of Title 11 

provides that “there is an acquittal if the prosecution resulted in a finding of not 

guilty by the trier of fact or in a determination that there was insufficient evidence 

to warrant a conviction.” Double jeopardy protections do not apply when a trial ends 

in a hung jury.29 Benson continues to argue that the jury instructions and the jurors’ 

comments to the judge after the first trial mean that he was acquitted of first-degree 

rape and could not be retried for that charge.

(35) As the Superior Court recognized, this case is somewhat similar to 

Blueford. In Blueford, the U.S. Supreme Court held that a retrial did not violate the 

Double Jeopardy Clause after the first jury told the trial judge, before jury 

 

26 Sullins v. State, 930 A.2d 911, 915 (Del. 2007).

27 U.S. Const. amend. V.

28 Capano v. State, 889 A.2d 968, 982 (Del. 2006) (citing Arizona v. Rumsey, 467 U.S. 203, 211 

(1984)).

29 Bowers v. State, 2014 WL 2094133, at *2 (Del. May 16, 2014) (citing Richardson v. United 

States, 468 U.S. 317, 325-26 (1984)). See also 11 Del. C. § 207(4)(b) (providing that prosecution 

is not barred by a former prosecution if the trial court declared a mistrial in accordance with law).
18

deliberations concluded and before the trial court declared a mistrial, that they were 

unanimously against guilt as to capital murder and first-degree murder charges, but 

deadlocked on other charges.30 The U.S. Supreme Court rejected Blueford’s 

contention that the foreperson’s announcement of the unanimous votes as to the 

capital and first-degree murder charges represented his acquittal on those charges.

31

 

The Court found the announcement was not final in light of the jury’s continued 

deliberations and the absence of anything in the jury instructions to prevent the jury 

from reconsidering their votes.32 As in Blueford, there was no judgment of acquittal 

here or final resolution of the charges against Benson by the jury. There was never 

even any announcement, unlike Blueford, that the jury was unanimously against 

Benson’s guilt as to the more serious offense. In the absence of a verdict by the first 

jury that Benson was not guilty of first-degree rape, the Double Jeopardy Clause did 

not bar Benson’s retrial for this charge. 

Jury Instruction for a Lesser-Included Offense

(36) Benson next argues that the Superior Court violated the party autonomy 

rule by inducing the State to request a jury instruction for attempted first-degree rape 

or by giving the instruction in the absence of a request. Under the party autonomy 

 

30 Blueford, 566 U.S. at 608-09.

31 Id. at 606.

32 Id. at 607-08
19

rule, “the trial judge should not give an instruction on an uncharged lesser offense if 

neither side requests such an instruction because to do so would interfere with the 

trial strategies of the parties.”33 Benson did not raise this claim below so we review 

for plain error.34 

(37) At the end of the first day of the first trial, the trial judge indicated that 

she was going to review the draft jury instructions. She told the parties they should 

start thinking about whether they were going to request any lesser-included offenses 

so that any such instructions could be included. The prosecutor immediately said 

the State would be asking for a lesser-included offense instruction. On the second 

day of the first trial, the trial judge asked counsel to look at the draft jury instructions 

over the lunch break and indicated that the most time-sensitive matter was whether 

there would be instructions for lesser-included offenses. After the lunch break, the 

prosecutor said the State wished to include one instruction for a lesser-included 

offense, which the prosecutor confirmed was attempted first-degree rape. Benson’s 

counsel initially questioned the basis for the instruction, but upon learning that it was 

based on a lack of clarity in the Child’s testimony concerning whether there was 

sexual intercourse, said he did not oppose an instruction for attempted first-degree 

rape. During the second trial, the prosecutor responded affirmatively when the trial 

 

33 State v. Bower, 971 A.2d 102, 107 (Del. 2009).

34 Supr. Ct. R. 8.
20

court judge asked if the State continued to request a lesser-included jury instruction 

for attempted first-degree rape. 

(38) This record belies Benson’s claim that the Superior Court violated the 

party autonomy rule by inducing the State to request a jury instruction for attempted 

first-degree rape or by giving the instruction in the absence of a request. The 

Superior Court judge gave an instruction for a lesser-included offense because the 

prosecutor requested that instruction. 

Insufficiency of the Evidence

(39) Benson contends that there was insufficient evidence to find him guilty

of attempted first-degree rape. He relies on the lack of eyewitnesses, his own 

testimony, testimony of the State witnesses that is consistent with his account of 

what happened, and inconsistencies in the testimony of the child witnesses. We 

review this claim de novo to determine whether any rational trier of fact, viewing 

the evidence in the light most favorable to the State, could find a defendant guilty 

beyond a reasonable doubt of all the elements of the crime.

35

 Under 11 Del. C. § 

773, “[a] person is guilty of rape in the first degree when the person intentionally 

engages in sexual intercourse with another person and...[t]he victim has not yet

reached that victim’s twelfth birthday, and the defendant has reached that 

 

35 Cline v. State, 720 A.2d 891, 892 (Del. 1998).
21

defendant’s eighteen birthday.”36 Under 11 Del. C. § 531, “[a] person is guilty of an 

attempt to commit a crime if the person...[i]ntentionally does...anything which, 

under the circumstances as the person believes them to be, is a substantial step in a 

course of conduct planned to culminate in the commission of the crime by the 

person.”37

(40) Viewing the evidence in the light most favorable to the State, a rational 

juror could find Benson guilty of attempted first-degree rape. The evidence included 

the Child’s testimony regarding what Benson did to him, that the Child was under 

twelve-years old, and that Benson was more than eighteen-years old at the time the 

family lived on Church Street. Multiple witnesses, including Benson, testified there 

was an incident involving Benson and the family at the Church Street address. As 

Benson points out, there were conflicts and inconsistencies in this testimony. 

“Under Delaware law, the jury is the sole trier of fact, responsible for determining 

witness credibility, resolving conflicts in the testimony, and drawing any inferences 

from the proven facts.”38 It was within the jury’s discretion to accept one witness’s 

testimony and reject the conflicting testimony of other witnesses.39 Any rational 

 

36 11 Del. C. § 773(a)(5).

37 11 Del. C. § 531(b).

38 Morgan v. State, 922 A.2d 395, 400 (Del. 2007).

39 Pryor v. State, 453 A.2d 98, 100 (Del. 1982).
22

trier of fact could have found the essential elements of attempted first-degree rape 

beyond a reasonable doubt.

The Child’s False Testimony

(41) Finally, Benson argues that the State violated his due process rights by 

knowingly presenting the Child’s false testimony to obtain his conviction. Benson 

did not raise this claim below so we review for plain error.40 There is no plain error 

here.

(42) Benson argues that the Child’s trial testimony was false because there 

were inconsistencies between that testimony and his description of the assault to his 

therapist, during his interview at the CAC, during his Section 3508 hearing, and 

during the first trial. He ignores the Child’s own repeated statements that Benson 

sexually assaulted him in the bathroom of the Church Street address. Inconsistencies 

in the Child’s statements do not show that the prosecutor knowingly suborned 

perjury. In addition, the Child was subject to direct and cross-examination about the 

inconsistencies in his previous statements. It was within the province of the jury to 

assess the witnesses’ credibility and determine whether any inconsistencies created 

a reasonable doubt as to Benson’s guilt.41

 

40 Supr. Ct. R. 8.

41 See supra ¶ 40.
23

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior 

Court is AFFIRMED. 

BY THE COURT:

/s/ Karen L. Valihura

Justice