State v. R.B.

THE FAMILY COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
R------- B----, ) No.: 2411001992
)
Appellant, )
)
v. )
)
)
STATE OF DELAWARE, )
)
Appellee. )
REVIEW OF COMMISSIONER’S ORDER
Date Filed: March 4, 2026
Response Received: March 25, 2026
Date Decided: April 14, 2026
R------- B----, Appellant, Sean Barney, Esq., Office of Defense Services.
State of Delaware, Appellee, Matthew Casale, Esq., Department of Justice.
Hirst, J.

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OPINION
Before the Court is a Request for Review of a Commissioner’s Order (“ROCO”)
filed by Appellant R------- B---- (“Father”). The case arose from allegations that Father
struck and injured A---- B--- (“Mother”) while she was attempting to retrieve their infant
son from his arms. On February 2, 2026, a Commissioner of the Family Court entered
an order finding Father guilty of Assault in the Third Degree and Endangering the
Welfare of a Child and sentencing him to two concurrent terms of one year of
imprisonment, suspended for one year of probation.
Father now raises three objections to the Commissioner’s Order. First, he claims
that the Commissioner violated the rule against hearsay by allowing the State to present
a recording of Mother’s 911 call. Second, he argues that the Commissioner improperly
found that he had a duty to retreat or surrender his son before retaliating against
Mother. Third, he submits that, for several reasons, the Commissioner erred in her
assessment of his credibility. For the reasons that follow, the Court finds that none of
Father’s claims merits relief and consequently ACCEPTS and AFFIRMS the
Commissioner’s order.
FACTUAL AND PROCEDURAL BACKGROUND
At 10:36 a.m. on November 5, 2024, Mother dialed 911 to report that Father had
punched her in the face in the presence of their two-week-old son. Patrolwoman
Katherine Kirlin of the Wilmington Police Department arrived at Mother’s home within 20
minutes, by which time Father had left the scene. Patrolwoman Kirlin spoke with Mother,
photographed her injuries, and then secured a warrant for Father’s arrest. Father was

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subsequently arrested in May 2025 and charged with Assault Third Degree1 and
Endangering the Welfare of a Child,2 and his case came to trial on February 2, 2026.
At the start of the trial, the State and Defense Counsel informed the
Commissioner that they had stipulated to the introduction of three exhibits: (1) a certified
recording of Mother’s 911 call, (2) a certified copy of a written report on that call and the
subsequent police response, and (3) the picture of Mother’s injuries taken by
Patrolwoman Kirlin.3 Defense counsel then informed the Commissioner that he had
nothing to add, and the three exhibits were admitted into evidence.4
Testimony of A---- B---
Mother explained that she invited Father to her home on the morning of
November 5, 2024, to “babysit” their one-month-old son during her appointment with a
hairdresser in her home.5 Father arrived and began cradling the baby in his arms. Soon,
however, Mother and Father started to argue about Father’s relationship and his
children with another woman. Mother testified that, as the argument escalated, Father
began “swinging my son around”—or, as she put it on cross-examination, “flinging
him”—and causing his head to “go[] back and forth.”6 When she attempted to retrieve
the baby, Father punched her in the face with a closed fist. He then “threw [her] on the
1 See 11 Del. C. § 611(1).
2 See 11 Del. C. § 1102(a)(4).
3 Trial Transcript at 4, Feb. 2, 2026.
4 Id. at 4–5.
5 Id. at 11.
6 Id. at 13, 26.

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bed,” left the baby with her, and finally “fled the scene” after she said she was going to
call the police.7
The State then asked for permission to “publish what’s been entered as State’s
Exhibit 1 [the certified recording of Mother’s 911 call] . . . if there’s no objection.”8
Father’s attorney offered no such objection in the approximately one minute that
followed as the State prepared the technology to present the evidence, and the
Commissioner eventually directed the State to proceed.9 On the 911 call, Mother
informed the dispatcher that “my baby daddy’s here putting his hands on me.” After a
few moments, she noted that “he’s walking out now” and clarified that “he punched me
in my face while I had my son in my hands.”10
After allowing the State to play more than a minute of the recording, Father’s
attorney objected, arguing that, “the State need[ed] to lay the foundation” by “asking the
witness whether she was truthful when she made her prior statement” and establishing
that the statement was “voluntary.”11 The State answered by describing the recording as
“a certified 911 call.”12 After defense counsel explained that he was referring to the
requirements for admission under the 11 Del. C. § 3507 exception to the rule against
hearsay, the State clarified that “[Mother] is not a turncoat witness [and] I’m not trying to
7 Id. at 14–15.
8 Id. at 15; State’s Ex. 1.
9 Trial at 10:24:02–10:25:05 a.m., Feb. 2, 2026 (audio).
10 State’s Ex. 1.
11 Trial Tr. at 15–16; Trial at 10:25:05–10:26:15 a.m., Feb. 2, 2026 (audio).
12 Id. at 16.

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get it in through 3507.”13 The Commissioner then overruled Father’s objection,14 and the
State played the final three minutes of the recorded call.15
Mother’s direct examination concluded with a discussion of her injuries. The
State presented a picture showing a bloody cut on her lip.16 Mother explained that she
was crying in pain and disbelief because she had “a busted lip” and “[h]e never put his
hands on me before.”17 For one to two weeks after the incident, she took over-the-
counter pain medications.18
Defense Counsel’s cross-examination attacked Mother’s credibility. Although
Mother testified on direct that Father held the child with his right arm and hit her with his
left, she said the opposite on cross.19 She admitted that the argument began when she
expressed frustration that he was spending more time with another woman’s child than
hers.20 And she stated for the first time that Father hit her again “with a lot of force”
around her right cheekbone after throwing her on the bed.21
13 Id. at 17; Trial at 10:27:44–10:27:47 a.m., Feb. 2, 2026 (audio). The official transcript prepared for this
appeal reports that the word immediately before “witness” in this quote was inaudible, but the Court
reviewed the audio recording and heard the word “turncoat”.
14 At the end of Mother’s testimony, defense counsel renewed his objection and added that he was relying
on Wing v. State, 326 A.3d 669, 679 (Del. 2024).
15 State’s Ex. 1.
16 See State’s Ex. 3.
17 Trial Tr. at 18.
18 Id.
19 Id. at 14, 24.
20 Id. at 27–28.
21 Id. at 24–25.

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Testimony of Patrolwoman Katherine Kirlin
Patrolwoman Kirlin, a Wilmington Police Officer, responded to Mother’s home
sometime before 10:54 a.m., less than twenty minutes after Mother’s 911 call.22 By the
time she arrived, Father was gone. While inside, Patrolwoman Kirlin noticed and
photographed “a little cut on the inside of [Mother’s] lip with maybe some redness or
bleeding around it”—an injury she described as consistent with Mother’s statements on
the scene and at trial.23 Patrolwoman Kirlin saw no other blood on Mother or in her
home, and she testified at trial that she did not recall any other injuries.24
Testimony of R------- B----
Father’s testimony was largely consistent with Mother’s. He testified that he felt
Mother was excluding him from caring for his son. He accepted Mother’s invitation
because it was a rare opportunity for bonding.
They began arguing when, after several minutes, Mother complained that he was
giving more attention to his daughters from another relationship than to her son. At first,
her demeanor “wasn’t really hostile” but rather “sassy.”25 But the argument escalated:
Mother began insulting his other daughters and became increasingly infuriated as
Father ignored her jibes. Mother screamed at him to “get the f--- out of my house,” but
he refused.26 She attempted to take their son from his arms, but he turned away. She
then started “throwing a bunch of wild swings” at his back, but “[h]er frails” didn’t hurt
22 Id. at 41–42, 48; State’s Ex. 2.
23 Trial Tr. at 43, 45.
24 Id. at 49.
25 Id. at 57–58.
26 Id. at 58.

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him.27 When one of those swings “accidentally hit [their] son’s foot,” however, he
believed it was time to protect the baby.28 He reached backward with his arm—the arm
not holding their son—and “tapped her” on the lip.29 Mother then fell back “dramatically”
and said she would call the police.30 Although at first he did not believe her, he soon
heard the dispatcher on the line, at which point he gently placed their son on the bed
and “calmly walked out” to avoid a dangerous encounter with police.31
Father conceded that he became frustrated when Mother insulted his other
children.32 He explained that he was confused by Mother’s explosive anger because he
had never seen her act in that way before.33 But he also claimed that, “when she first
brought [her complaints] up, . . . [he] could tell it was going to get bad.”34 He clarified on
cross-examination that “bad” meant when he would lose an argument and then give
up.35 And he explained that he never called the police about Mother accidentally striking
their son because “[e]verything happened so fast,” she called before he could, and he
was afraid of being sent to jail.36
Judgment and Appeal
In closing, the State highlighted the consistency of Mother’s account from the
moment of the 911 call to trial, the corroboration offered by Patrolwoman Kirlin, and
27 Id. at 59, 63.
28 Id. at 59–60, 63.
29 Id. at 59–60.
30 Id. at 60.
31 Id. at 60–61.
32 Id. at 64.
33 Id. at 58–59, 65.
34 Id. at 57–58.
35 Id. at 65.
36 Id. at 67–68.

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Father’s admissions about his actions while holding the baby that day. The defense, in
turn, argued that Mother had provoked the argument and that the photographic
evidence did not support Mother’s description of multiple punches at “full force.”37
Instead, a minor injury to her lip was more consistent with Father’s testimony that he
attempted to push Mother away and inadvertently hit her on the lip in the process. In
sum, the evidence showed that “[Father] acted instinctively . . . to protect his newborn,”
not endanger him.38
The Commissioner found Father guilty of both charges, explaining that “[t]he
case really does come down to credibility” and, for several reasons, “the victim in this
case is more credible.”39 First, Father’s claim that he struck Mother to defend their baby
was undermined by his failure to leave before hitting her, call the police himself, or stay
afterward to ensure the child was okay. Second, Father’s testimony that the parties had
never fought was inconsistent with his claim that he knew the situation with Mother
would escalate. Third, when he testified that he stayed and continued encouraging
Mother to get her hair done even as she became angry, it was simply not convincing: “it
sound[ed] more like he was refusing to give the child back.”40 Fourth, the Commissioner
heard nothing on the recorded 911 call corroborating Father’s claim that he overheard it.
Finally, even if Mother made contact with the baby’s foot, Father’s response appeared
to be disproportionate and unjustified.
37 Id. at 80.
38 Id.
39 Id. at 84.
40 Id. at 85.

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Now before the Court is Father’s timely appeal of that conviction, in which he
raises three points. First, Father argues that the Commissioner erred in admitting the
recording of Mother’s 911 call. Acknowledging that, in criminal cases, 11 Del. C. § 3507
broadly permits the presentation of prior voluntary statements by witnesses present in
court for cross-examination, he nevertheless contends that the State failed to justify that
statute’s application here—and that no other exception to the general rule applies.
Second, he objects that the Commissioner improperly suggested he had a duty to
retreat before he could justify violence in defense of his child. Lastly, although it is not
entirely clear from Father’s brief, he raises what the Court construes as a claim that the
Commissioner improperly found him guilty beyond a reasonable doubt based on a
flawed assessment of the parties’ relative credibility.
In its response, the State rejects all three of Father’s arguments, asserting that
(1) Defense Counsel’s stipulation to the certified 911 call relieved the State of its normal
obligation to establish a foundation; (2) the Commissioner was entitled to rely on
Father’s failure to retreat in assessing the credibility of the defense he presented; and
(3) the Commissioner’s credibility findings—and all other findings of fact—are entitled to
deference on a ROCO appeal to Family Court.
STANDARD OF REVIEW
The parties propose radically divergent standards of review for this case. They
agree, of course, that this Court has appellate jurisdiction to review the Commissioner’s
final order under 10 Del. C. § 915(d)(1), which states:
Any party, except a party in default of appearance before a Commissioner, may
appeal a final order of a Commissioner to a judge of the Court by filing and

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serving written objections to such order, as provided by rules of the Court, within
30 days from the date of a Commissioner's order. A judge of the Court shall make
a de novo determination of those portions of the Commissioner's order to which
objection is made. A judge of the Court may accept, reject[,] or modify in whole or
in part the order of the Commissioner. The judge may also receive further
evidence or recommit the matter to the Commissioner with instruction.
Father contends that, because the ROCO statute expressly directs this Court to
“make a de novo determination,” the Court owes minimal deference to the
Commissioner’s findings of fact and none to her conclusions of law. And because the
Commissioner based her credibility findings primarily on logical contradictions rather
than observations of the witnesses’ courtroom demeanor, he somewhat tautologically
suggests that this particular case is “amenable not only to de novo review but to non-
deferential de novo review.”41 The State, in contrast, argues that the Commissioner’s
findings of fact must be upheld unless she has abused her discretion, or, alternatively,
unless they are “clearly erroneous.”42
Notwithstanding some conflict in the case law on the standard of review and the
level of deference owed to the Commissioner, the meaning of the statute is clear and
controlling: because this case involves a Commissioner’s final order, the Court’s review
must be de novo.43 That means the Court must “review[] the evidence and law without
41 Def’s Request for ROCO at 22. An appeal de novo, by definition, is “[a]n appeal in which the appellate
court uses the trial court’s record but reviews the evidence and law without deference to the trial court’s
rulings.” Appeal De Novo, Black’s Law Dictionary (11th ed. 2019) (emphasis added).
42 State’s Response to Request for ROCO at 8 (quoting Kraft v. Mason, No. 410, 2010, 2010 WL
5341918, at *2 (Del. Dec. 20, 2010)).
43 State v. M.S., No. 0605008568, 2006 WL 4546614, at *1 (Del. Fam. Ct. Sept. 8, 2006); DFS v. J.C.,
No. 11–28019, 2012 WL 4861601, at *2 (Del. Fam. Ct. May 23, 2012); see also Helman v. State, 784
A.2d 1058, 1068 (Del. 2001) (“Courts are not super-legislatures and it is not a proper judicial function to
decide what is or is not wise legislative policy.”).

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deference to the trial court’s ruling”44 and “decide[] anew” whether that ruling was
correct.45 The Court may to some extent “accord[] weight to the credibility findings of the
Commissioner,”46 who had “the opportunity to hear and assess witness testimony” in
person at trial.47 But “the Commissioner must explicitly identify the reasons why one
witness is more credible than another,” and the Court must “conduct a meaningful
appellate review” of whether the Commissioner arrived at the correct conclusion.48
ANALYSIS
The Court will address Father’s arguments in the order he presented them.
A. Admissibility of the 911 Call
Father contends that the State failed to establish an adequate foundation to
justify admission of the recorded 911 call under 11 Del. C. § 3507. Enacted in 1970,
Section 3507 created a general rule of admissibility for out-of-court statements. It
provides that, “[i]n a criminal prosecution, the voluntary out-of-court prior statement of a
witness who is present and subject to cross-examination may be used as affirmative
evidence with substantive independent testimonial value.”49 It does not matter whether
44 M.C. v. S.C., No. CN24-01763, CN24-01782, 2024 WL 4345511, at *1 (Del. Fam. Ct. June 13, 2024)
(Hirst, J.) (quoting M.S., 2006 WL 4546614 at *1).
45 Cf. Del. Fam. Ct. Civ. R. 53.1(e).
46 Adams-Hall v. Adams, No. 50, 2010, 2010 WL 3733922, at *2 (Del. Sept. 8, 2010).
47 DFS v. J.C., No. 11–28019, 2012 WL 4861601, at *3 (Del. Fam. Ct. May 23, 2012).
48 Id. The Court may, of course, accept and affirm the correctness of a Commissioner’s conclusions for
reasons different than those articulated by the Commissioner. See State v. Davis, No. 1811002611, 2026
WL 226576, at *2 n.21 (Del. Super. Ct. Jan. 28, 2026); see also 10 Del. C. § 915(d)(1) (permitting the
Court to “receive further evidence” on appeal).
49 11 Del. C. § 3507(a). Delinquency matters, however, are civil, and Section 3507 does not apply. Baker
v. State, 213 A.3d 1187, 1191 (Del. 2019) (citing G.D. v. State, 389 A.2d 764, 765 (Del. 1978)).

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the prior statement is consistent or inconsistent with the witness’s in-court testimony, or
whether the party introducing the statement is surprised by that testimony.50
Before hearsay may be admitted under Section 3507, the prosecutor is required
to establish certain “foundational elements to admissibility” to preserve trial fairness and
defendants’ constitutional confrontation rights.51 First, the prosecutor must show that a
statement was voluntary, proving the issue “either during the direct examination of the
witness or, if the witness denies that the statement was voluntary, on voir dire.”52 That
is, before the statement is presented to the factfinder, the prosecutor must ask the
witness whether it was made voluntarily, and the judicial officer must explicitly find by a
preponderance of the evidence that it was.53 Second, the prosecutor must conduct a
direct examination of the witness that “must encompass—or at least ‘touch on’—‘both
the events perceived [or heard] and the out-of-court statement itself.’”54 Third, the
witness must say whether or not the prior statement is true.55 Indisputably, the State did
not complete this technical recitation for admission under Section 3507.
50 11 Del. C. § 3507(b).
51 Berry v. State, 349 A.3d 1130, 1138 (Del. 2025).
52 Woodlin v. State, 3 A.3d 1084, 1087 (Del. 2010) (citing Hatcher v. State, 337 A.2d 30, 32 (Del. 1975)).
53 Barnes, 858 A.2d at 944; Smith v. State, 669 A.2d 1, 7 (Del. 1995). It does not matter whether the
judge or a jury sits as the finder of fact, Turner v. State, 5 A.3d 612, 617 (Del. 2010), and the standard to
be applied is the same as for the voluntariness of confession under the Due Process Clause, State v.
Rooks, 401 A.2d 943, 947–49 (Del. 1979).
54 Wing v. State, 326 A.3d 669, 680 (Del. 2024) (alteration in original) (quoting McCrary v. State, 290 A.3d
442, 456, 459–60 (Del. 2023)); Keys v. State, 337 A.2d 18, 23 (Del. 1975) (per curiam). The requisite
foundation is established whether or not the witness remembers anything about the statement or the
underlying events, McCrary, 290 A.3d at 457, 460, but the prosecutor must nevertheless make “a good
faith effort” during direct examination to “elicit the evidence contained in the witness’s [S]ection 3507
statement,” Gomez v. State, 25 A.3d 786, 797 (Del. 2011).
55 Wing, 326 A.3d at 680. The statement is admissible whether the witness stands by the prior statement
or disavows it, but the question must be asked, and the witness must take a position. Blake v. State, 3
A.3d 1077, 1082 (Del. 2010), abrogated in part on other grounds by McCrary, 290 A.3d at 459–60.

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But Father misapprehends the role of the statute. It is just one of many
exceptions to the rule against hearsay.56 A statement that cannot come in under Section
3507 may nevertheless be admissible through another exception or for a non-hearsay
purpose.57 The State was under no particular obligation to comply with the requirements
of Section 3507 and seek admission under that statute.
More significantly, Father waived his argument by stipulating to the admissibility
of the certified 911 call. In contrast to forfeiture—that is, failure to raise a claim in a
timely manner—waiver is final.58 Because the consequences are harsh, courts handling
criminal cases “indulge in every reasonable presumption against waiver.”59 But a
stipulation to admissibility is precisely the kind of affirmative agreement that clearly
demonstrates waiver.60 Once the stipulation is made, “the other party wishing to rely
upon such evidence is relieved of its obligation to establish a foundation.”61
Before Father’s trial began, the State indicated on the record that the attorneys
had stipulated to the admissibility of what became the State’s three exhibits. Father said
nothing to the contrary, and the three exhibits were admitted in evidence. Father has
56 McMullen v. State, 253 A.3d 107, 114–15 (Del. 2021) see also D.R.E. 801(d)(1).
57 A prior statement is hearsay only if it is offered “to prove the truth of the matter asserted in the
statement.” D.R.E. 801(c)(2). It may therefore be admitted for a limited, non-substantive purpose like
impeachment without reference to the requirements of Section 3507 (or any other exception to the
hearsay rule). See Robinson v. State, 3 A.3d 257, 262 (Del. 2010) (citing D.R.E. 613(b)). And even when
a statement is used for a hearsay purpose, it may nevertheless be excluded from the definition, see, e.g.,
D.R.E. 801(d)(2) (statements by opposing parties), or excepted from the rule, see, e.g., D.R.E. 803(1)
(present sense impressions), 803(2) (excited utterances).
58 Purnell v. State, 254 A.3d 1053, 1101 (Del. 2021). A forfeited claim, by contrast, can nonetheless justify
reversal of a plainly erroneous trial court decision. Id.
59 Flamer v. State, 490 A.2d 104, 113 (Del. 1983) (quoting Brewer v. Williams, 430 U.S. 387, 404 (1977)).
60 See Stevenson v. State, 149 A.3d 505, 516 (Del. 2016) (“[T]here is an express and effective waiver as
to any appellate presentation on an issue where defense counsel responds to queries by a trial judge, by
stating that there are no objections to the admission of evidence.”).
61 Harris v. State, No. 1402016580, 2018 WL 6309088, at *2 (Del. Super. Ct. Dec. 3, 2018) (citing Hunt v.
State, No. 66, 2013, 2013 WL 5745696, at *2 (Del. Oct. 21, 2013)).

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never argued—not at trial, and not now on this ROCO—that the State misrepresented
their agreement or that it was for any reason invalid. By confirming that he had nothing
(such as an objection) to add to the State’s summary of the stipulation, Father
“express[ly] and effective[ly] waive[d]” any objection to the admission of the 911 call
recording.62 Therefore, his first claim fails.
B. Duty to Retreat or Surrender the Child
Father argued at trial that striking Mother was a justifiable way to protect his son
from danger. In finding him guilty, the Commissioner explained that his credibility was
undermined by his failure to leave before retaliating and that “it sound[ed] more like he
was refusing to give the child back.”63 Under 11 Del. C. § 464(b), however, there is no
general duty to retreat or surrender possession of a thing in dispute before using
appropriate, non-deadly force in self-defense. Defense of another involves no greater
duty to retreat. To the contrary, 11 Del. C. § 465 identifies situations where a person
might need to retreat before acting in self-defense but need not do so before defending
another.64 Father correctly points out that, by rejecting his justification theory based in
part on his failure to leave or hand over his son, the Commissioner implicitly—and
incorrectly—held that Father had a duty to retreat before defending his child.
This Court, however, reviews criminal convictions de novo.65 For the reasons
given below, the Court concludes that the Commissioner correctly found Father guilty
62 Stevenson, 149 A.3d at 516.
63 Trial Tr. at 85.
64 See 11 Del. C. §§ 465(b), (c).
65 10 Del. C. § 915(d)(1); see State v. T.D., No. 2312001822, 2025 WL 901273, at *4–5 (Del. Fam. Ct.
Feb. 3, 2025) (Newell, C.J.).

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beyond a reasonable doubt of the two charges. Consequently, the Commissioner’s error
was harmless.66
C. Credibility and the Finding of Guilt
The larger question is whether the evidence supports the Commissioner’s
assessment of Father’s credibility and finding of guilt beyond a reasonable doubt.
Father was convicted of two crimes: Assault in the Third Degree and Endangering the
Welfare of a Child. Under 11 Del. C. § 1102(a)(4), a defendant is guilty of Endangering
the Welfare of a Child if that defendant commits Assault Third Degree (or another
specified crime), knowing that a child related to the defendant or the victim is bearing
witness by sight or sound. There is no question that Father’s infant son saw Father
strike Mother, because Father was holding his son in his arms at the time. The only
issue is whether Father was guilty of the predicate assault charge.
To prove Assault in the Third Degree, the State must establish that the defendant
“intentionally or recklessly cause[d] physical injury to another person.”67 Physical injury
is defined as “impairment of physical condition or substantial pain.”68 Father admitted at
trial that he “tap[ped]” Mother on the lip, and he has never argued that he did so
accidentally.69 He points out that Mother testified inconsistently about the hand he used
to strike her, but that inconsistency matters little in light of his admissions. Moreover, the
State presented photographic evidence showing a bloody cut on Mother’s lip.70
66 Del. Fam. Ct. Crim. R. 52(a).
67 11 Del. C. § 611(1).
68 11 Del. C. § 222(27).
69 Trial Tr. at 59–60.
70 See State’s Ex. 3.

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Patrolwoman Kirlin corroborated that evidence,71 and Mother said she cried afterward
and was in pain for days.72 Father did not meaningfully contest the elements of assault,
leaving only one remaining question: whether the Commissioner should have credited
his justification defense.
Father argues that, when he struck Mother on the lip, he used only the force
necessary to protect his son from harm. The defense-of-another justification is codified
in 11 Del. C. § 465, which provides in relevant part:
(a) The use of force upon or toward the person of another is justifiable to protect
a third person when:
(1) The defendant would have been justified under [the self-defense
statute] in using such force to protect the defendant against the injury
the defendant reasonably believes to be threatened to the person
whom the defendant seeks to protect; and
(2) Under the circumstances as the defendant reasonably believes them
to be, the person whom the defendant seeks to protect would have
been justified in using such protective force; and
(3) The defendant reasonably believes that intervention is necessary for
the protection of the other person.
Self-defense, in turn, justifies the use of force when a person “reasonably believes” that
it is “immediately necessary” for protection against an imminent unlawful attack.73
Whether a defendant’s belief was reasonable is determined objectively, “from the
viewpoint of a reasonable person in the defendant’s situation under the
circumstances.”74 Importantly, justification is not an “affirmative defense”—meaning that
71 Trial Tr. at 43, 45.
72 Id. at 18. See Kulowiec v. State, 74 A.3d 600, 602–05 (Del. 2013) (collecting cases)
73 11 Del. C. § 464(a). Self-defense alone does not help Father because, while he testified that he struck
Mother after she began attacking him first verbally and then physically, he also conceded that he saw no
need to protect himself against her “frails.” Trial Tr. at 63.
74 11 Del. C. § 471(e)(1). The justification statutes were amended in 2021 to require “reasonable belief”
rather than mere “belief.” See 83 Del. Laws, c.73 (2021). But there is no need to decide how, if at all, that
revision affected the imperfect justification principle codified in Section 470(a), for neither party addresses

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a criminal defendant need only produce some “credible evidence” creating reasonable
doubt of guilt.75
Even crediting Father’s characterization of Mother’s actions, his response was
recklessly disproportionate and unnecessary. Mother and Father had a heated
argument. After Mother asked Father to leave her home, he refused, and she started
weakly hitting his back. He was standing between her and the baby, but one of her
hands accidentally touched the child’s foot, and Father responded by smacking Mother
in the face, splitting her lip, and knocking her backward onto the bed. Retaliating may
have been consistent with parental “instinct,”76 and Father may have believed, as he
now contends, that it was immediately necessary to prevent her from accidentally hitting
his son on the head and “caus[ing] extremely severe injury.”77 But there was simply no
immediate danger justifying Father’s sudden escalation. Given the evidence and
circumstances surrounding the incident, his contrary belief defies logic, and the Court
finds that acting on it was reckless and unreasonable.78
Father’s other arguments about the Commissioner’s credibility determination are
without merit or show at most harmless error. It ultimately does not matter whether
Father was present during the 911 call, whether he and Mother had fought before,
whether he hit her again after knocking her on the bed, or whether his departure after
the issue and the Court finds, in any event, that Father was reckless in believing that the force he used
was necessary to protect his child.
75 Hamilton v. State, 343 A.2d 594, 596 (Del. 1975) (citing 11 Del. C. § 461).
76 See Trial Tr. at 63.
77 Def’s Request for ROCO at 16.
78 A person recklessly forms a belief in the necessity of protective force “if he recognizes the possibility
that it may be unfounded but proceeds to operate on it without further checking.” Commentary on § 469
(now § 470), Delaware Criminal Code with Commentary 133 (1973).

State v. B----
No. 2411001992
April 14, 2026
Page 18 of 18
the incident and failure to make his own 911 call undermine his claim that he honestly
believed his actions were justifiable in defense of his son. Nor does it matter that Father
did not in fact have a duty to retreat. Even if he believed that hitting Mother in the face
was an appropriate and necessary response to her ineffectually hitting his back and
then accidentally striking his son’s foot, that belief was reckless. If Father felt that he
needed to fight for the right to spend time with his infant son, as he contends in his
appeal,79 then filing a petition for custody or visitation would have been the appropriate
avenue for relief. His violent actions were unjustifiable in light of the circumstances, and
the Commissioner properly found him guilty of both Assault III and Endangering the
Welfare of a Child beyond a reasonable doubt.
CONCLUSION
For the reasons given above, after an independent review of the record, the
Court ACCEPTS and AFFIRMS the Commissioner’s Order dated October 30, 2025.
IT IS SO ORDERED.
4/14/2026 ______________ ______/ Eliza M. Hirst /_______
Date Written Order Issued ELIZA M. HIRST, JUDGE
EMH
79 Def’s Request for ROCO at 20, 26.