State v. Harris

2017 WL 1505219 (Del. C.P. Apr. 20, 2017)

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Nature of the Case

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Facts

D elected to waive his right to a jury trial, and the case was tried as a bench trial. Bufano and Scholl were the alleged victims. Bufano began working for PWP in 2005 as a volunteer, and over time advanced to doing administrative work, and eventually served as an operations manager and director of support services. In 2005, Bufano and D began working together. The first uncomfortable experience occurred at a dental conference when D noticed and commented that Bufano was not wearing her wedding ring. Bufano found this to be uncomfortable, particularly when D began touching Bufano's hand suggestively. Later that month both took a tour around a new property in a backhoe. D had to operate the backhoe with his hands and his feet, was seated in the sole chair within the cabin; Bufano was thus sitting partially or wholly on D's lap throughout the ride. In February of 2011, Scholl began working for PWP as a secretary. During her first year, Scholl had few interactions with D, yet noticed from her first such interaction the Defendant was inclined toward uncomfortable displays of affection. Scholl did not have any particularly negative feelings toward d during that first year. On February 27, 2012, Scholl and D were alone in PWP when D sat down in the waiting room and asked questions about Scholl's life. Scholl discussed her personal life, including her ongoing difficulties with her ex-husband; in particular, Scholl went into details on how her ex-husband was dating a new woman and had even sent Scholl pictures of his new girlfriend. Scholl, who described herself as a nervous talker, eventually divulged details about herself, such as how she was a boring person. D came over to Scholl and gave her a full-bodied hug, much to Scholl's surprise and discomfort. During the embrace, Jastrebski unexpectedly walked through the room. Later that evening, D called Scholl and advised the two should get their stories straight as to what had occurred. D initiated and maintained a sexual relationship with Scholl, which lasted until sometime around June 27, 2012. D maintains the encounters were consensual. The sexual relationship began with an incident that occurred on March 5, 2012, when Scholl was working in a cubicle. D approached Scholl and began asking sexually suggestive questions, leading to a discussion about oral sex. D proceeded to stand up, undo his pants, and press his exposed penis against Scholl's face; Scholl responded by freezing up and not reacting in any way. Scholl explained that she experienced the events in an out-of-body manner - physically present but mentally and emotionally elsewhere. Scholl contends that she did not agree to or want the D's actions, but did proceed to place D's penis in her mouth. She did not indicate she attempted to communicate her lack of consent. Eventually, Scholl and D went into another area of PWP, where D pulled down Scholl's pants and began to touch her. Scholl testified she was unable to recall any specific details beyond her own sense of being violated and general details of her location. Scholl gave D a flash drive containing various photographs of Scholl. The photographs depicted Scholl in lingerie, which Scholl has since characterized as inappropriate. Scholl provided the D with these photographs. Scholl sought to justify D's actions against her and to convince herself she was worthy of D's abuse and attention. The sexual encounters increased in frequency. On a subsequent sexual encounter, Scholl said she did not consent and said 'no.' Another work incident occurred when Scholl was on the phone talking while D initiated vaginal sex with her from behind. Scholl was on the phone with a distraught parent, she did not offer any sort of resistance or communicate her lack of consent to the D. Scholl never communicated her unwillingness to have sex, claiming she could not verbalize either consent or an objection because she was on the phone. On a third incident while employees were outside on the patio, Scholl approached the restroom, only to find D blocking the doorway, D laced his hand down Scholl's pants, inside her underwear, and began touching Scholl's genitals. Scholl told him to stop and then proceeded to return to her desk. D denies this event in its entirety. On a different date, D called Scholl into Jastrebski's office. D closed the door and proceeded to have vaginal intercourse with Scholl from behind. While Scholl indicated she protested against this encounter, she did not specify how her lack of consent was conveyed to D nor in what context, and could not recall the precise words used. Scholl testified that she made it clear to D she did not want the sexual contact. Scholl sent an email over the PWP server to D telling him to stop and that she was uncomfortable. D became angry and berated Scholl for risking discovery by sending the email on the PWP server. Scholl had begun making a concerted effort to avoid D, yet could not always do so. Scholl had been called down to the basement and D told Scholl he wanted to have sex with her. Scholl refused. D then exposed his penis and pulled Scholl forward, choking her as D forcibly received oral sex from Scholl. D ejaculated on the floor, scuffed it with his shoe, and told Scholl he was done with her and to go back upstairs. D disputes this event ever occurred, and instead testified the relationship ended when Scholl informed D she wanted to stop because she intended to become more seriously involved with her then-boyfriend. On June 27, 2012, Scholl's doctor told her she may have been exposed to hepatitis C. While in a car on the way to the doctor Scholl told Bufano about everything that had occurred. After returning from the doctor Scholl spoke with Bufano and Jastrebski, advising the latter about the D's actions. Later that evening, Scholl received phone calls from D, which Scholl refused to answer. The Court heard the voicemails left by D checking up on Scholl. Scholl testified D had never called to check up on her previously. Jastrebski quickly became hostile asking if Scholl was to get an attorney and ordered Scholl and Bufano to refrain from discussing the matter again. Scholl eventually resigned. On September 18, 2014, in the parking lot of the PWP building. D began speaking with Bufano in the parking lot. Bufano wanted to know why D had come to the building, leading to an argument between the two individuals. Jastrebski walked out of the building and into the parking lot, at which time she and D each got into their vehicles and left the premises. Bufano wrote a formal letter of complaint to Jastrebski and asked for an investigation into D's contact with Scholl, while also asking for D's access to the building to be restricted. Bufano was laid off from PWP shortly after this occurred. Two years after resigning from PWP, and more than three years from the last sexual encounter between the D and Scholl, Scholl reported her allegations to Detective Terranova. Detective Terranova testified that her demeanor, affect, manner of speaking, and other such factors were consistent with someone who has been sexually assaulted. On August 26, 2015, d was arrested and charged with a single count of Sexual Harassment.