Lum v. State ( 2017 )

IN TI-[E SUPREME COURT OF THE STATE OF DELAWARE
DATWAN LUM,
No. 462, 2016
Defendant Below,
Appellant, Court Below: Superior Court of
the State of Delaware
v.
ID. Nos. 1408022140;
STATE OF DELAWARE, I408022157A; and
1408022 1 5 7B
Plaintiff Below,
Appellee.
COTW¢&O>DO?¢O§¢OD¢O?¢OJ¢O=CO'J¢O¢W?¢O'>
Submitted: April 12, 2017
Decided: May 16, 2017
Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.
0 R D E R
This 16th day of May 2017, the parties’ briefs and the record of the case
having been considered, it appears that:
1. Appellant, Datwan Lurn, appeals from a Superior Court jury verdict finding
him guilty of Second Degree Burglary, two counts of ThePc from a Senior, Second
Degree Conspiracy, Receiving Stolen Propelty over $1,500, and Criminal Mischief
less than $1,000. Lum makes two claims on appeal. He contends that: 1) the trial
court committed reversible error by giving a jury instruction which informed the
jurors they could infer from Lum’s possession of recently stolen goods that he was
guilty of burglary and theft under certain circumstances detailed in the instruction
and 2) the instruction given was constitutionally defective because it did not inform
the jury that Lum did not have a duty to present affirmative evidence to rebut the
inference
2. Raymond Seigfried left his home at 2210 Hillside Road in Arden Delaware
at approximately 12:10 p.m. on August 24, 2015 to attend a Work event. Seigfried
returned home around 2:30 p.m., and noticed that his door was not locked. As he
entered his home, the phone rang. Seigfried answered the phone, and an unknown
caller said “I think I have your briefcase.”'
3. He then went upstairs and discovered that he had been robbed. His
computer room and three bedrooms were in disarray. He discovered that his
personal briefcase and laptop, his Work briefcase and laptop, a video recorder, a
projector, his wife’s oxycodone medication, and some other items were missing. He
estimated the approximate value of the stolen items at $2,000.
4. Siegfried called 911, and Master Corporal Steinberg of the New Castle
County Police Department responded to the call at about 2:30 p.m. Master Corporal
Steinberg and K-9 officer Corporal Mouser conducted a perimeter check of the
house and discovered a damaged screen and a kicked in basement window.
' App. to Appellant’s Opening Br. at 84.
5. Master Corporal Steinberg determined that the call Seigfried received
about his missing briefcase came from the Northeast Market, a convenience store on
Northeast Boulevard in Wilmington. The officer then went to the store and an
employee gave him Seigfried’s briefcase The store manager also provided the
officer with the store’s surveillance video, which showed a Honda sedan pulling into
the store’s parking lot at 1127 p.m. The video showed a male, wearing a white tank
top and glasses, exiting the passenger side of the vehicle holding what appeared to
be a briefcase, and then putting the briefcase into the store’s dumpster. The video
also showed the driver, in a white t-shirt and khaki shorts, exit the car with what
appeared to be an iPad. The driver entered the store and handed the iPad to the store
clerk, Who handed it right back to the driver. The driver then walked out the store
and got back into his car.
6. The police proceeded to run the make and model of the vehicle through the
state’s database, and in conjunction with the video surveillance, identified
Markevous Tymes as the driver. The vehicle was registered to Tymes’ girlfriend,
Chandelier Hagler, who lived in Wilmington. The police conducted surveillance of
Hagler’s residence and succeeded in taking Tymes into custody while he was in the
Honda. The Honda was silver in color and the police noticed that the Honda had
damage to the rear bumper. The police found Lum at Hagler’s residence wearing
the same clothes that he was wearing the day of the burglary. They took him into
custody after a brief foot pursuit.
7. On November 2, 2014, the police contacted Helen Ohlson, who had been
riding her bike near Seigfried’s home at the time of the burglary. She told police
that between 1:00 and 2:00 p.m. on that day she saw two speeding cars about an
eighth of a mile from Hillside Drive. She stated that the first car was a silver sedan
with some “messed-up paint” and some “trim hanging off.”2 Ohlson saw two black
males in the car in their twenties or thirties, possibly wearing white t-shirts. Ohlson
described the second car as a newer looking bright blue sedan. She testified that the
second car, which seemed to be following the silver sedan, was driven by a black
woman.
8. At trial, Lum moved for judgement of acquittal on all counts except the
Receiving Stolen Property charge He argued that the evidence was insufficient “to
show that he actually went into the house committing a burglary and a theft and
certainly that he never conspired to do that burglary and theft.”3 The motion was
denied.
9. Lum was jointly tried with his co-defendant, Tymes. At the prayer
conference, the State requested an instruction informing thejury that if it found Lum
2 Id. at 87.
3 Id. at 139.
to be in possession of recently stolen property, it could infer from such possession
that he was guilty of burglary and theft under certain circumstances explained in the
instruction The State argued that such an instruction, sometimes referred to as a
permissible inference instruction, had been approved in Hall v. .S'r.:u‘e4 and was
supported by the evidence in this case. Both defendants opposed the instruction.
Lum argued that the evidence that he had committed burglary was weak and giving
thejury the instruction would relieve the State of its burden of proof as to that charge.
The trial judge ruled that Hr:ll5 applied and the instruction was given.
10. This Court reviews a trial judge’s decision to give ajury instruction over
the defendant’s objection de novo.6 The Court also considers whether the
instructions, considered as a whole, correctly stated the law.7
ll. Lum argues that it was error to give the instruction because the evidence
that he had committed burglary was weak; there was no evidence that he had
possessed recently stolen property; and there was no identification of Lum as the
person in the surveillance video at the convenience store. The State counters that
the surveillance video shows Lum throwing what turned out to be Seigfried’s
briefcase into a dumpster about an hour after the burglary; that when the police
4 473 A.2d 352, 355 (Del. 1984).
5 Id.
6 Robertson v. Slale, 41 A.3d 406, 408 (Del. 2012).
"' Claudio v. Stale, 585 A.2d 1278, 1282 (Del. 1991).
5
arrested Lum three days later, he was wearing the same clothes he was wearing in
the video footage the day of the burglary; and that a car matching the description
seen on the surveillance video with two males was seen in the area of the burglary
atthethneitoccuned.
12. We are satisfied that there was sufficient evidence to support a jury
conclusion that Lum was in possession of recently stolen property, specifically the
briefcase which was put in the dumpster. Accordingly, we find that the instruction
given was supported by the evidence, and there was no error in the Superior Court’s
decision to give it.
13. Lum also contends that the instruction was constitutionally defective
because it did not inform thejury that Lum did not have a duty to present affirmative
evidence to rebut the inference This same argument was made by Tymes in his
appeal. We analyzed and rejected Tymes’ argument there8 We incorporate by
reference the analysis of this issue in Tymes’ case and reject Lum’s argument here
TI-IEREFORE, IT IS TI-[E ORDER of the Court that the judgment of the
Superior Court is AFFIRMED.
BY THE COURT:
1
ice
8 Tymes v. Stare, 2017 WL 915110 (Del. Mar. 7, ;017).
6