IN THE SUPREME COURT OF THE STATE OF DELAWARE

TODD GREEN, § § Defendant-Below, § No. 540, 2015 Appellant, § § Court Below: Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § Cr. ID No. 1406002733 § Plaintiff-Below, § Appellee. § Submitted: August 24, 2016 Decided: September 7, 2016 Before STRINE , Chief Justice; VALIHURA , and SEITZ , Justices. ORDER This 7 th day of September 2016, upon consideration of the p arties’ briefs and the record below, it appears to the Court that: (1) A Superior Court jury convicted Todd Green of rapin g the thirteen year old daughter of his girlfriend, Theresa Ferrer (“Mother”). The jury convicted Green on the strength of physical evidence and test imony from witnesses, including the victim, Mother, victim’s older sister , and the nurse who treated the victim on the night of the rape. The Superior Cour t sentenced Green to a mandatory prison term of fifty years and nine month s.2

(2) Green makes one argument on appeal. He contends th at the cumulative effect of irrelevant and prejudicial tes timony deprived him of a fair trial. After a careful review of the record on app eal, we find that the challenged testimony did not jeopardize Green’s substantial ri ghts or deprive him of a fair trial. We therefore affirm his convictions. (3) Mother and her three daughters lived for a time in Connecticut, but moved to Mother’s sister’s house in Camden, Delawar e due to conflict between Mother and Green. In February 2012, Mother and her daughters then moved to Kent Acres in Dover, Delaware. Green soon moved in to the Kent Acres home. The five then moved to another home on Thames Drive in Dover. In August 2013, they again moved, this time to Stevens Street in Ke nt County just south of Dover. The victim and her older sister shared a bedroom in the Stevens Street home. (4) On May 28, 2014, the victim stayed home from school because she did not feel well. That evening, Mother left the h ouse at around 8 p.m. to go bowling. The victim’s older sister was away from t he house at work. After the youngest daughter went outside to play, the victim and Green were the only ones in the house. Green went into the victim’s bedroom wh ile she was sleeping and removed her clothes. Green then sexually assaulted the victim. When victim’s older sister came home from work after missing call s from the victim, the victim3

told her that Green raped her. Green had gone “out somewhere” and was not at the house when the victim’s older sister returned. 1 The victim’s older sister called 911. (5) When a police officer arrived at the Stevens Street home around midnight, he spoke with the victim and collected th e clothes she wore during the assault. Once Mother returned home, the officer ac companied Mother, the victim, and the victim’s sisters to Kent General Hospital f or a medical examination. Dawn Culp, a sexual assault nurse examiner, examined the victim. Culp swabbed the victim’s chest for seminal fluid residue and noted abrasions in the victim’s vagina. A DNA analysis of seminal fluid stains from the vic tim’s clothes and the swab from her breast revealed a match with Green’s DNA. (6) On February 2, 2015, a grand jury indicted Green on fifteen counts of sexual assault. The indictment alleged that four c ounts occurred at the Kent Acres home, four counts occurred at the Thames Drive home , and the remaining seven counts occurred at the Stevens Street home. (7) At Green’s June 2015 trial, the victim, the Mother, victim’s older sister, and Culp testified. The victim, who was f ourteen at the time, testified that Green raped her on three separate occasions, once a t each of their homes. The victim’s older sister testified that when she retur ned from work the night of the May 2014 incident, the victim told her that Green r aped her and that it was not the

1 App. to Opening Br. at 4.4

first time. Mother testified that after she came h ome from her bowling league, police were at the house. She also testified that she went to the hospital with her daughters where the victim was crying and did not w ant to talk about the incident. Culp testified that she performed an extensive exam ination of the victim. During her examination, she found abrasions in the victim’ s vagina and swabbed for DNA material. The DNA taken from the victim’s clothes and breast matched Green’s
DNA. (8) As part of some background questions about Green’s relationship with Mother, the victim’s older sister testified that sh e had problems with Green because “he would hit [her] mom.” 2 Green’s counsel did not object. Mother also testified that she and her daughters moved from Con necticut to Delaware because she and Green had a fight while living in Connectic ut and he threatened to kill them. Green’s counsel objected and the court susta ined the objection. Counsel did not request a curative instruction. (9) During Culp’s testimony, in response to a question about whether the victim’s complaints were consistent with the injuri es she found, Culp responded that she believed what the victim told her about wh at occurred. Green’s counsel objected to Culp’s vouching for the credibility of the victim. The court sustained the objection and instructed the jury to disregard Culp’s personal opinion

2 Id . at 18.5

testimony on the victim’s credibility. After trial the jury found Green guilty of three of the fifteen counts of sexual assault. The court sentenced Green to a mandatory fifty year and nine month Level V sentenc e. (10) Green argues on appeal that the cumulative effect o f the statements made at trial by the Mother, victim’s older sister, and Culp deprived him of a fair trial. Green contends first that the victim’s olde r sister’s statement about Green hitting her mother was unfairly prejudicial. 3 He argues that the sister’s testimony was improperly used to show Green’s bad character, and therefore should have been stricken. (11) Counsel did not object to the testimony. When ther e is no objection to evidence, we review for plain error. 4 Error is plain when it is “so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process.” 5 Plain errors are “limited to material defects whi ch are apparent on the face of the record; which are basic, serious an d fundamental in their character, and which clearly deprive an accused of a substanti al right, or which clearly show

3 App. to Opening Br. at 18. Q: What was your relationship like with the defenda nt? A: We were okay at first. Q: And then what was your relationship after you we re okay? A: We started having problems because I found out t hat he would hit my mom. Q: After you found that out, what happened in your relationship between you and the defendant? A: I didn’t like him anymore. 4 Supr. Ct. R. 8; Wainwright , 504 A.2d at 1100. 5 Wainwright , 504 A.2d at 1100.6

manifest injustice.” 6 “To be plain, the alleged error must affect subst antial rights, generally meaning that it must have affected the ou tcome of [the] trial.” 7 The burden of demonstrating that the error was prejudic ial is on the party claiming

error. 8 (12) Green has failed to meet his heavy burden to show t hat allowing the unobjected-to testimony was such fundamental error that it jeopardized the fairness of the trial. Although the testimony might have be en stricken if there had been an objection, we find that the other admissible eviden ce of Green’s guilt overcomes any prejudice from the older sister’s isolated rema rk. The victim testified that Green raped her at the Stevens Street home, her old er sister and Mother testified about the events following the rape, and Culp testi fied convincingly about the results of her sexual assault examination of the vi ctim. Further, the DNA evidence recovered from the victim’s clothes and her body ma tched Green’s DNA. With such overwhelming evidence of guilt, Green has fail ed to show that the admission of the older sister’s statement would have affected the outcome of the trial. (13) Green argues next that Mother’s statement—that she and her daughters moved from Connecticut to Delaware becaus e Green threatened to kill them—was unfairly prejudicial because the court gav e no curative instruction after

6 Id. 7 Brown v. State , 897 A.2d 748, 753 (Del. 2006) (citing to United States v. Olano , 507 U.S. 725, 734 (1993)). 8 Brown , 897 A.2d at 753.7

sustaining an objection. 9 Green argues that although his counsel objected t o Mother’s statement and the court sustained the obje ction, the court nonetheless erred because it did not on its own initiative give a curative instruction to prevent prejudice. Generally, whether to give a curative i nstruction is at the discretion of the trial judge, and we would review for abuse of d iscretion. 10 But it is incumbent on counsel to request a curative instruction, which he did not. 11 Because trial counsel did not make the request, we review for pla in error. 12 A similar plain error analysis applies to this argument. After reviewing the record, we find that the isolated reference to threats that were allegedly m ade years before the rape was not so prejudicial as to undermine the fairness of Gree n’s trial. Further, as we noted when reviewing the older sister’s testimony, the ov erwhelming testimonial and physical evidence of his guilt outweighed any preju dice that might have occurred. (14) Green also argues that Culp’s statement at trial vo uching for the credibility of the victim was unfairly prejudicial, impermissible, and warranted a

9 App. to Opening Br. at 29: Q: Why did you move to Delaware? A: Well, we having a fight—I having a fight with hi m that time. And then he threatened my kids and me, that he’s going to kill us; so I move. I move out. 10 Sammons v. Doctors for Emergency Servs., P.A. , 913 A.2d 519, 539 (Del. 2006). 11 88 C.J.S. Trial § 157, Westlaw (updated 2016) (“When an error is m ade, it is incumbent upon opposing counsel to then and there voice an objecti on and, if sustained, move for appropriate relief.”); 88 C.J.S. Trial § 216, Westlaw (updated 2016); Sudler v. State , 83 A.3d 738 (Del. 2013) (Table) (citing Swan v. State , 820 A.2d 342, 357 (Del. 2003)) (“The defense obje cted to the remark and the trial court sustained the object ion. The prosecutor rephrased his comment, but the judge did not give a curative instruction. . . . [T]his error was not plain error because it was insufficient to overcome the extensive evidence of Swan’s guilt.”). 12 See Sudler v. State , 83 A.3d 738 (Del. 2013) (Table); see also Claudio v. State , 585 A.2d 1278, 1281 (Del. 1991).8

mistrial. Because Green’s trial counsel did not req uest a mistrial, we review for plain error. (15) A witness may not bolster or vouch for the credibil ity of another witness by testifying that the other witness is tel ling the truth. 13 Vouching “includes testimony that directly or indirectly pro vides an opinion on the veracity of a particular witness.” 14 Culp’s statement vouched for the credibility of t he victim. But the Superior Court should grant a mist rial only where there is “manifest necessity” or the “ends of public justice would be otherwise defeated.” 15 A mistrial is proper only when there are “no meanin gful and practical alternatives” to remedy the matter. 16 Further, a prompt curative instruction can, under certain circumstances, mitigate the prejudice from inadmiss ible evidence. 17 (16) Here, Culp’s comment was an isolated occurrence. T he Superior Court asked Green’s attorney more than once what ac tion she wanted the court to take. 18 Green’s attorney did not ask for a mistrial, but instead asked that the statement be stricken from the record. The Superio r Court complied and promptly

13 Richardson v. State , 43 A.3d 906, 910 (Del. 2012) (quoting Capano v. State , 781 A.2d 556, 595 (Del. 2001)). 14 Id. 15 Brown , 897 A.2d at 752 (quoting Fanning v. Superior Court , 320 A.2d 343, 345 (Del. 1974)). 16 Dawson v. State , 637 A.2d 57, 62 (Del. 1994) (quoting Bailey v. State , 521 A.2d 1069, 1077 (Del. 1987)). 17 Zimmerman v. State , 628 A.2d 62, 66 (Del. 1993). 18 App. to Opening Br. at 40.9

instructed the jury to disregard Culp’s statement. 19 Under the circumstances, where the court took the steps requested by counsel to mitigate any prejudice, and no request was made for a mistrial, the Superior Co urt did not plainly err by continuing with the trial. (17) Green also argues that the cumulative effect of the bad character evidence from the Mother and victim’s older sister, and the impermissible vouching from Culp, was prejudicial error that warr ants reversal. Where several errors occur in the Superior Court, we weigh the cu mulative effect to determine whether the errors were so “prejudicial to substant ial rights as to jeopardize the fairness and integrity of the trial process.” 20 The burden is on Green to demonstrate that the admission of prejudicial evide nce amounted to plain error. 21 (18) Green has not shown that the cumulative effect of t he witnesses’ statements deprived him of a fair trial or resulted in “manifest injustice.” 22 As we have noted before, the statements were isolated eve nts in the trial, the trial judge properly addressed evidentiary objections brought t o his attention, and gave a

19 App. to Opening Br. at 41. THE COURT: Ladies and Gentlemen, I’m going to instr uct you at this stage to disregard the testimony regarding a personal opinio n of the witness as to the credibility of the—of another individual in this ca se. You, as a jury, are the sole determiners of cr edibility. And you are to put no weight on the opinion of another person testifying as to whether someone is truthful or not; that is based on your assessment o f credibility of the witnesses. So, given that, that answer will be stricken, and w e’ll continue with this case. 20 Starling v. State , 130 A.3d at 336 (quoting Wainwright , 504 A.2d at 1100). 21 Brown , 897 A.2d at 753. 22 Wainwright , 504 A.2d at 1100.10

curative instruction when requested. Any prejudici al effect of the testimony relied upon by Green is also far outweighed by the overwhe lming evidence of his guilt. Thus, the Superior Court was not required to grant Green a new trial based on the evidentiary issues raised by Green. NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is affirmed.
BY THE COURT: /s/ Collins J. Seitz, Jr. Justice