Tucker v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE

OSCAR TUCKER, §
§ No. 150, 2024
Defendant Below, §
Appellant, § Court Below–Superior Court
§ of the State of Delaware
v. §
§ Cr. ID No. K2211005937
STATE OF DELAWARE, §
§
Appellee. §

Submitted: November 6, 2024
Decided: January 23, 2025

Before SEITZ, Chief Justice; VALIHURA, TRAYNOR, LEGROW, and
GRIFFITHS, Justices, constituting the Court en Banc.

ORDER

On this 23rd day of January 2025, after careful consideration of the parties’

briefs and the record on appeal, and after oral argument, it appears to the Court that:

(1) A jury convicted the appellant, Oscar Tucker, of one count of

continuous sexual abuse of a child and three counts of unlawful sexual contact. The

convictions stemmed from years of sexual abuse that Tucker committed against his

wife’s minor daughter. In the six-month period between the grand jury’s original

indictment of Tucker and his trial in the Superior Court, the indictment was modified

four times, twice by re-indictment and twice by amendment during Tucker’s trial.

Thus, the jury’s verdict was returned on the fifth iteration of Tucker’s indictment.
(2) Tucker challenges his convictions on appeal based primarily on the

serial errors in the indictment. As explained below, we have concluded that the

manner in which the State continuously—and, in some instances erroneously—

revised the indictment was sufficiently prejudicial as to warrant reversing Tucker’s

three unlawful-sexual-contact convictions. Because that prejudice did not extend to

the continuous-sexual-abuse count, we affirm that conviction.

(3) In 1996, Tucker met and married his wife.1 After the couple married,

they moved into a home in Dover, Delaware with Tucker’s wife’s four children. 2

When the family first started to reside together, one of the children—T.A.—was

twelve years old.3 T.A. testified that, during the time she lived in the home, Tucker

touched her vaginal area and “kiss[ed] her breasts” on multiple occasions.4 He also

“rubb[ed] his erect penis” and “ejaculated” on her “numerous” times. 5 The alleged

abuse began when T.A. was twelve or thirteen years old and continued until she was

in tenth or eleventh grade.6

1
App. to Opening Br. at A159–61.
2
Id. at A143–45.
3
Id. at A144–45. T.A.’s birthday is April 21, 1984. Id. at A159.
4
Id. at A145–47.
5
Id. at A148.
6
Id.

2
(4) Decades later, T.A. reported the sexual abuse to the police. Tucker was

arrested and a New Castle County grand jury returned the initial indictment in April

2023.7 It contained seven counts, which can be summarized as follows:

Count 1: Continuous sexual abuse of a child in violation of 11 Del. C.
§ 778(a), alleging that between September 1, 1996 through April 21,
1998, Tucker intentionally engaged in three or more acts of sexual
conduct with T.A., who was under the age of fourteen, and the acts
occurred over a period of time greater than three months in duration.

Count 2: Rape in the fourth degree in violation of 11 Del. C. §
770(a)(3), alleging that on or about September 1, 1998, Tucker
intentionally engaged in sexual penetration with T.A., who had not yet
reached her sixteenth birthday “and/or the penetration occurred without
T.A.’s consent” by digitally penetrating T.A.’s vagina without her
consent.

Count 3: Unlawful sexual contact in the first degree in violation of 11
Del. C. § 769 (a)(3), alleging that, on or about September 1, 1996,
Tucker had sexual contact with T.A, who had not yet reached her
thirteenth birthday, by intentionally touching her vagina with his hand.

Counts 4 and 5 both charged unlawful sexual contact in the first degree
and mirrored Count 3, except that Count 4 alleged that Tucker
intentionally touched T.A.’s breasts with his lips and mouth, and Count
5 alleged that Tucker rubbed his erect penis on T.A.’s body until he
ejaculated.8

Count 6: Unlawful sexual contact in the second degree in violation of
11 Del. C. § 768, alleging that, on or about April 21, 1997, Tucker
intentionally had sexual contact with T.A., who was less than eighteen
years of age, by rubbing his erect penis on T.A.’s body until he
ejaculated.

7
See Opening Br. at 1.
8
Count 3 and 4 allege that T.A. was 12 years old at the time of the offense.

3
Count 7 also charges Tucker with unlawful sexual contact in the second
degree, and except for the date of the offense—under this count the date
is on or about April 21, 1998—is identical to Count 6.

(5) In June 2023, the State sought, and the grand jury returned, a “re-

indictment,” which revised the April indictment by stating in each of the seven

counts that “[t]his count is not based upon repressed memories recovered through

psychotherapy.”9 Then, in July 2023, the State again sought, and the grand jury

returned, another “re-indictment,” this time identifying the offense charged under

Count 2 as unlawful sexual penetration in the third degree, instead of rape in the

fourth degree.10 The first-degree unlawful sexual contact charges in Counts Three,

Four, and Five were also lowered to second-degree unlawful sexual contact.

(6) Issues stemming from the errors in the indictment arose on the first day

of trial. During a plea-rejection colloquy, because of revisions to the Delaware

Criminal Code’s sexual-offense provisions in the nearly three decades since the

charged offenses were allegedly committed, the State could not immediately

determine the minimum mandatory sentence for the unlawful sexual penetration

9
App. to Opening Br. at A6–8. Although the parties do not address the import of the addition of
this language, it appears to have been prompted by statute-of-limitations concerns. In 2003, the
General Assembly amended 11 Del. C. Section 205 to eliminate time limitations for sexual
offenses, except for cases “based upon the memory of the victim that has been recovered through
psychotherapy unless there is some evidence of the corpus delicti independent of such repressed
memory.” 11 Del. C. § 205, 74 Del. Laws, Ch. 56.
10
App. to Opening Br. at A9–11.

4
charge.11 In another instance, the clerk began reading the charges from the April

indictment until the State interrupted the reading underlying Count Two.12 After

conducting a sidebar with the parties, the court gave the clerk the charges from the

then-current indictment—the July indictment—to read.13

(7) Similar issues arose the following day. After counsel delivered their

opening statements, the trial judge provided research to counsel describing the

legislative history of the statute under which Tucker was charged with unlawful

sexual penetration.14 The trial judge advised counsel that, in 1998, the General

Assembly repealed the unlawful sexual penetration statute, effective September 9,

1998, and replaced it with a fourth-degree rape statute.15 Because the unlawful

sexual penetration count alleged that Tucker committed digital penetration of the

vagina “on or about the 1st day of September 1998”16—a date range that might

include a date after September 9, 1998—the trial judge raised a concern about

whether Count Two was properly charged.

11
Id. at A23–25.
12
Id. at A39.
13
Id. at A39–41.
14
Id. at A136–37.
15
Id.; see also 71 Del. Laws, c. 285, §§ 10, 14 (1998) (replacing unlawful sexual penetration with
fourth-degree rape); see also 11 Del. C. § 770 (Revisor’s Note) (“Former §§ 770-772, concerning
unlawful sexual penetration in the third, second, first degrees, were repealed by 71 Del. Laws, c.
285, § 10”); see id (“Section 29 of 71 Del. Laws, c. 285, provides: ‘This act shall become effective
90 days after its enactment into law.’ The act was signed by the Governor on June 11, 1998.”).
16
App. to Opening Br. at A9.

5
(8) After reviewing the research provided by the trial judge, the State asked

to amend the unlawful sexual penetration charge to second-degree unlawful sexual

contact. Defense counsel did not oppose the State’s request, and the court allowed

the amendment.17 This was the first of two amendments that occurred during trial.

(9) The then-operative indictment contained one count of continuous

sexual abuse of a child and six counts of second-degree unlawful sexual contact.18

But the errors from the April and July indictments carried over into the newly

amended indictment, including the incorrectly stated statutory elements.

(10) All the second-degree unlawful sexual contact counts misstated the age

element of the offense. Those counts tracked the current statute, as amended in 2009,

stating that the victim must be “less than 18 years of age.”19 But the dates given

under those counts allege conduct occurring in 1996, 1997, and 1998. During those

years, the applicable version of the statute was 11 Del. C. § 768, as amended in

1995.20 Under the 1995 statute, an element of second-degree unlawful sexual

contact was that the victim be “less than 16 years of age.”21 The counts of second-

17
Id. at A137–38.
18
Id. at A12–14.
19
11 Del. C. § 768.
20
11 Del. C. § 768 (1995).
21
Id.

6
degree unlawful sexual contact therefore should have stated that the victim must be

“less than 16 years of age”—not eighteen.

(11) After the State’s presentation of evidence, Tucker moved for a

judgment of acquittal on Counts One, Two, and Seven, arguing that the State’s

evidence was legally insufficient to support a conviction by any reasonable jury.22

Viewing the evidence in the light most favorable to the State, the Superior Court

denied the motion.23

(12) During the prayer conference the next day and before closing

arguments, the parties appeared to recognize the misstatements of law regarding the

age element in the unlawful sexual contact counts. The State presented a new draft

of the indictment to the trial judge, and explained that the unlawful sexual contact

charges now state less than “16,” and not less than “18” as the age element for the

offense.24 The State also advised the court and Tucker it was no longer prosecuting

Counts Five, Six and Seven.

22
App. to Opening Br. at A207–11.
23
Id. at A214–16. In its ruling, the Court found that, as to the continuous sexual abuse charge, the
State presented evidence that three or more acts of sexual conduct occurred over a three-month
span when T.A. was less than fourteen. T.A. had testified that two acts of sexual conduct—
touching of the vagina and kissing of the breasts—occurred when she was twelve years old, and
that other acts occurred “numerous times,” beginning when she was twelve or thirteen up through
high school. Id. Based on this evidence, the Court denied the motion as to Count One—the
continuous sexual abuse of a child charge. Based on the testimony that the sexual contact occurred
numerous times up through high school—the Court also denied the motion as to Counts Two and
Seven.
24
Id. at A282–83.

7
(13) Shortly thereafter, the State filed an amended indictment.25 The new

indictment contained four charges—continuous sexual abuse of a child (Count One),

and three counts of second-degree unlawful sexual contact (Counts Two, Three and

Four). Count Two stated that T.A. was less than “16,” and not less than “18” as the

age element. But contrary to the discussions at the prayer conference, Counts Three

and Four continued to misstate the age-element that the victim must be “less than

eighteen years old.”26 And now, for the first time, in the “to wit” clause, those counts

stated that T.A. was “sixteen years old” when in prior versions it stated that she was

twelve years old.27

(14) Notwithstanding the ongoing errors in the indictment, the trial judge’s

jury instructions as given to the jury tracked the changes discussed at the prayer

conference. The trial judge read Counts Three and Four as stating that T.A. was

twelve at the time of the alleged offenses.28 He also instructed the jury that it must

find that T.A. was less than sixteen years of age when the alleged incidents occurred

in order to convict Tucker of those counts.29

25
Id. at A15–16.
26
Id. at A16.
27
Id. The parties also changed the date range for the continuous sexual abuse of a child charge
from April 21, 1984 to April 20, 1984 and counsel initialed the change on the final indictment in
lieu of filing another amended indictment.
28
Id. at A316–18.
29
Id. at A319–22.

8
(15) The jury returned a guilty verdict on all counts.30 The Superior Court

sentenced Tucker to an aggregate of nine and a half years of incarceration followed

by decreasing levels of probation.31

(16) Tucker makes five claims on appeal. First, he contends that the State

did not prove that the unlawful sexual contact offenses were committed on the

specific dates alleged in the final indictment and did not give Tucker adequate notice

of his charges.32 Second, he argues that the trial court’s instruction to the jury that

exact dates and times are not essential elements of the charges created prejudicial

jury confusion. Third, Tucker claims that the errors in Counts Three and Four

require reversal because those charges did not allege illegal conduct under the

applicable versions of 11 Del. C. § 768. Fourth, Tucker contends that the charge for

the unlawful sexual penetration charge was a “nullity” due to the statute’s repeal.33

Relatedly, Tucker asserts that the State improperly replaced the unlawful sexual

penetration charge with second-degree unlawful sexual contact by amendment,

when a new charge may only be made by re-indictment. And fifth, Tucker argues

that the doctrine of cumulative error requires reversal of all his convictions.

30
Id. at A337.
31
For the continuous sexual abuse of a child charge, he received eight years of incarceration, and
for the unlawful sexual contact charges, an aggregate of one and a half years of incarceration. Ex.
A to Opening Br.
32
This claim applies only to Counts Two, Three, and Four. See Opening Br. at 3.
33
Id. at 4.

9
(17) We first address the claims that relate to the errors in the indictments

and their cumulative prejudicial effect. We then address the claim that the State

charged Tucker under a repealed statute and attempted to correct that error by

amending the indictment. We conclude by addressing Tucker’s claim relating to the

jury instruction.34

(18) Tucker argues that the State deprived him of his right to a “valid

indictment” when it charged him under Counts Three and Four with an offense under

the wrong version of the statute defining unlawful sexual contact in the second

degree and alleged that the sexual contact occurred when T.A. was older than the

statutory age range for that offense.35 Because Tucker did not preserve this claim

by making a timely objection, we review for plain error.

(19) For an error to be plain it must be so clearly prejudicial to substantial

rights as to jeopardize the fairness and integrity of the trial process.36 “The doctrine

of 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

34
Because we find in Tucker’s favor on the errors in the indictments, his first claim is moot and
therefore we do not address it.
35
Opening Br. at 21.
36
Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986) (citing Dutton v. State, 452 A.2d 127,
146 (Del. Super. 1982)).

10
clearly deprive an accused of a substantial right, or which clearly show manifest

injustice.”37

(20) Delaware’s Constitution enshrines the right to be prosecuted by

indictment and not to be prosecuted for the same offense more than once.38 An

indictment should put a defendant on notice of the charges and “effectively bar

subsequent prosecutions for the same offense.”39 Under Superior Court Criminal

Rule 7, the indictment “shall be a plain, concise and definite statement of the

essential facts constituting the offense charged . . . [and] shall state for each count

the official or customary citation of the statutes, rule, regulation or other provision

of law which the defendant is alleged . . . to have violated.”40 The rule provides

further that “[t]he court may permit an indictment or an information to be amended

at any time before verdict or finding if no additional or different offense is charged

and if substantial rights of the defendant are not prejudiced.”41 “Error in the citation

or its omission shall not be ground for dismissal of the indictment or information or

37
Cruz v. State, 990 A.2d 409, 412 (Del. 2010) (internal quotations and citations omitted).
38
DE CONST. Art 1, § 8.
39
Mayo v. State, 458 A.2d 26, 27 (Del. 1983).
40
Del. Super. Ct. Crim. R. 7(c)(1).
41
Del. Super. Ct. Crim. R. 7(e).

11
for reversal of a conviction if the error or omission did not mislead the defendant to

the defendant’s prejudice.”42

(21) Here, the State failed to allege the correct elements under the operative

version of the statute that defines the offense. Counts Three and Four alleged that

Tucker had intentional sexual contact with T.A., “who was less than eighteen years

of age,” on or about September 1, 1996, when T.A. was “16 years old.”43 Under the

version of the statute in effect at the time of the alleged misconduct—the 1995

version— unlawful sexual contact required intentional sexual conduct with a minor

“less than 16 years of age.”44 But for Counts Three and Four, the State alleged that

T.A. was sixteen years old at the time of the sexual acts. This contradicted prior

versions of the indictment that stated that she was in fact under sixteen years old at

the time (based on being twelve years old in 1996). This factual inconsistency was

prone to cause confusion and impair the defendant’s ability to devise a defense.

Indeed, if T.A. was not less than sixteen years old at the time, as alleged in the final

indictment, Counts Three and Four fail to allege that Tucker committed any crime.

(22) Despite these flaws, the trial judge limited the potential for prejudice

by instructing the jury properly before it rendered its verdict. The trial judge

42
Del. Super. Ct. Crim. R. 7(c)(2).
43
App. to Opening Br. at A16.
44
11 Del. C. § 768 (1995) (emphasis added).

12
instructed the jury that it must find that T.A. was less than sixteen years old at the

time of the alleged misconduct in order to convict Tucker of Counts Three and Four.

He also stated that the State alleged that she was twelve-years old at the time of the

alleged offenses as provided in previous versions of the indictment. He thus recited

the correct version of the statute defining the offense and that the State alleged that

T.A. was of an age within the scope of the offenses.

(23) Although we find that the trial judge’s instructions limited the prejudice

each individual error may have caused, cumulatively, the effect of the errors resulted

in a denial of Tucker’s right to a fair trial as to Counts Three and Four. “[F]or a

claim of ‘cumulative error’ to succeed, it must identify multiple errors in the

proceedings below.”45 Then, “the Court must weigh their cumulative effect and

determine if, combined, they are ‘prejudicial to substantial rights [so] as to

jeopardize the fairness and integrity of the trial process.’”46

(24) The errors regarding the age element of the statutory offense ran

through all re-indicted and amended versions of the indictment for Counts Three and

Four. The State had several opportunities to correct the misstatements during trial

after the court advised the State to make sure that it was identifying the correct

45
Owens v. State, 301 A.3d 580, 595 (Del. 2023) (citing Michaels v. State, 970 A.2d 223, 231
(Del. 2009)).
46
Starling v. State, 130 A.3d 316, 336 (Del. 2015) (alteration in original) (quoting Hoskins v. State,
102 A.3d 724, 735 (Del. 2014)).

13
versions of the statutory offense.47 When the State finally attempted to correct the

errors, it created new ones by alleging that T.A. was sixteen at the time of the alleged

47
App. to Opening Br. at A129–30:
The Court: Okay. Let me just ask counsel this, are there any other charges that are
going to have a similar problem with as far as the statute was changed?

The State: I don’t believe so. I think the Contact Second remains stable, and I
believe that the Continuous Sexual Abuse of a Child charge is similar, if not exactly
the same.

The Court: If there is any information different, please let the Court know.

The State: I’ll look into it.

Id. at A223–24:

The Court: And then there is another issue that I’ve at least identified that I’m going
to need to discuss with counsel. And that is that the definition of sexual contact
changed in 1999. So I believe it has the current definition but not the previous
definition.

The State: I thought that might be the case. I hadn’t had a chance to verify, but I
got the old Code book. So we can hash that out at the prayer conference.

Id. at A282–83:

The Court: So this one has only 4 counts, but Count 2 is the same as the one you
gave me.

The State: Just the age difference. I think it said 18, the new one says 16.

The Court: That’s right.

The State: Okay. It has that in here already.

The Court: Don’t the other ones need to say 16, too?

The State: Your honor, they do.

The Court: Yeah, I'm looking at the old one. Okay. Sixteen, 16, 16, yeah, they’re
all fine. Okay. I'll put them away.

14
offenses. Given that the alleged conduct occurred decades ago, correctly alleging

the victim’s age under the version of the statute in effect at the time of the alleged

misconduct was necessary to ensure that Tucker could present his defense and the

jury found that his alleged misconduct satisfied the statutory elements. Because of

the State’s failure to correct these errors in prior versions of the indictment, and its

creation of new ones so late in trial, we reverse Tucker’s convictions on Counts

Three and Four.

(25) Tucker also argues that the cumulative effect of the errors require

reversal of Count One—the continuous sexual abuse of a child charge. We do not

find, however, that any of the errors created substantial prejudice as to Count One.

The only error that directly relates to Count One is a slight change to a date range.

In previous versions of the indictment, the date range stated that the continuous

sexual abuse of a child charge was “September 1, 1996—April 21, 1998.”48 On the

end-date of this range, T.A. would have been fourteen. Because one of the elements

of the continuous sexual abuse of a child charge required the minor to be less than

fourteen, the parties agreed to shorten the end-date by one day.49 Any prejudice from

this error was de minimis. As to the other errors identified in Counts Two, Three

and Four, Tucker does not explain, nor do we see, how they extend to Count One.

48
Id. at A6, A9, A12, A15.
49
Counsel initialed the change on the final indictment in lieu of filing another amended indictment.

15
(26) Next, Tucker argues that the change from unlawful sexual penetration

to unlawful sexual contact in Count Two was a new charge that required re-

indictment, not an amendment.50 Superior Court Criminal Rule 7(e) provides that

“the court may permit an indictment . . . to be amended at any time before verdict or

finding if no additional or different offense is charged and if substantial rights of the

defendant are not prejudiced.”51 Amendment is permitted “as to matters of form,

but not as to matters of substance so long as ‘no new, additional or different charge

is made thereby and the accused will not otherwise suffer prejudice as to substantial

rights.’”52

(27) Here, re-indictment was required. The State charged Tucker with an

entirely different offense, replacing the unlawful sexual penetration charge with a

second-degree unlawful sexual contact charge. The amendment occurred mid-trial,

after the jury was informed of the unlawful sexual penetration charge both before

and during opening statements.53 Relatedly, the unlawful sexual penetration charge

may not have been applicable given the closeness of the date of the alleged

50
We do not find that Tucker waived this claim on appeal. Superior Court Criminal Rule 7(b)
provides that a waiver of indictment may be made either “in writing or in open court.” Del. Super.
Ct. Crim. R. 7(b). There is no evidence in the record that counsel advised Tucker of his right to
request re-indictment.
51
Del. Super. Ct. Crim. R. 7(e).
52
Keller v. State, 425 A.2d 152, 155 (Del. 1981) (quoting State v. Blendt, 120 A.2d 321, 324 (Del.
Super. 1956)).
53
App. to Opening Br. at A39–41, A124.

16
misconduct and the statute’s repeal. Had the alleged misconduct taken place on or

after September 9, 1998, the date the offense was repealed, the count of unlawful

sexual penetration would not have been applicable.54 By replacing a charge that may

not have been applicable after a jury was empaneled and opening statements

delivered, the State caused Tucker substantial prejudice. Tucker therefore prevails

on this claim, and we reverse his conviction on Count Two.55

(28) Finally, Tucker contends that the trial judge’s instruction to the jury that

the exact dates and times are not essential elements of the charges caused prejudicial

jury confusion. After reading the charges and elements to the jury, the trial judge

instructed the jury that “the exact times and dates when the alleged crimes occurred

are not essential elements of the charged offenses.”56 Tucker argues that this

54
See 71 Del. Laws, c. 285, §§ 10, 14 (1998) (replacing unlawful sexual penetration with fourth-
degree rape); see also 11 Del. C. § 770 (Revisor’s Note) (“Former §§ 770-772, concerning
unlawful sexual penetration in the third, second, first degrees, were repealed by 71 Del. Laws, c.
285, § 10”); see id. (“Section 29 of 71 Del. Laws, c. 285, provides: ‘This act shall become effective
90 days after its enactment into law.’ The act was signed by the Governor on June 11, 1998.”).
55
Our review of the record also does not give this Court confidence that the State gave due
consideration to replacing the unlawful sexual penetration charge with second-degree unlawful
sexual contact. After the trial judge advised the State of the repeal of the unlawful sexual
penetration charge, the State quickly moved to drop the charge and replace it with the unlawful
sexual contact offense without appearing to consider whether it was applying the proper statutory
version of the offense. For example, the year in which the misconduct is alleged to have occurred
in Count 2 (1998) is different from the years in the other unlawful sexual contact charges (Counts
3 and 4 – 1996). This rushed and sloppy approach to drafting the indictment pervaded throughout
this action.
56
App. to Opening Br. at A322.

17
instruction suggested to the jury that “the State was not strictly required to meet its

burden as to the age element.”57 We disagree.

(29) Because Tucker did not make a timely objection to the court’s

instructions to the jury, we review for plain error.58 Even if Tucker properly

preserved this objection, the trial court correctly instructed the jury that the age of

the victim was an element of the offense. When reciting the elements, the trial judge

instructed the jury that the State must prove that the alleged victim was “less than 16

years of age at the time of the charged offense.”59 Furthermore, the instruction about

the exact times and dates was a correct statement of law.60 We therefore do not find

that the instruction was confusing to the jury such that reversal is warranted.

(30) For the foregoing reasons, the convictions for Counts Two, Three and

Four are reversed based on the errors related to the indictment.

57
Opening Br. at 19.
58
Hopkins v. State, 293 A.3d 145, 150 (Del. 2023); see Del. Super. Ct. Crim. R. 30 (“No party
may assign as error any portion of the charge or omission therefrom unless that party objects
thereto before or at a time set by the court immediately after the jury retires to consider its verdict,
stating distinctly the matter to which that party objects and the grounds of the objection.”). Defense
counsel responded “No” when the court asked for any objections to the instructions. App. to
Opening Br. at A284. Then, when the State requested that “dates” be added to the instruction that
“[t]he exact times when the alleged crimes occurred are not essential elements of the charged
offenses,” defense counsel stated, “I don’t have an objection.” Id. at A285. Finally, defense
counsel responded “No” after the Court asked for objections to the placement of the instruction.
Id. at A286. Indeed, Tucker may have affirmatively waived an objection, precluding appellate
review of the question. Stevenson v. State, 149 A.3d 505, 516 (Del. 2016) (citing King v. State,
239 A.2d 707, 709 (Del. 1968)).
59
App. to Opening Br. at A321.
60
See Phipps v. State, 1996 WL 145739, at *2 (Del. Feb 16, 1996); Clark v. State, 2006 WL
1186738, at *1 (Del. May 2, 2006).

18
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED IN PART and REVERSED IN PART.

BY THE COURT:

/s/ N. Christopher Griffiths
Justice

19