Harper v. State ( 2015 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
RONDAIGES A. HARPER, §
§ No. 453, 2014
Defendant Below, §
Appellant, § Court Below - Superior
§ Court of the State of Delaware
v. § in and for Sussex County
§
STATE OF DELAWARE, § Cr. ID No. 1303016992
§
Plaintiff Below, §
Appellee. §
Submitted: June 24, 2015
Decided: August 13, 2015
Before VALIHURA, VAUGHN, and SEITZ, Justices.
Upon appeal from the Superior Court. REVERSED and REMANDED.
John F. Brady, Esquire, The Brady Law Firm, Wilmington, Delaware, for
Appellant.
John Williams, Esquire, Department of Justice, Dover, Delaware, for Appellee.
SEITZ, Justice:
I. INTRODUCTION
A Superior Court jury convicted the defendant, Rondaiges Harper, of
carjacking in the first degree, kidnapping in the first degree, and two counts of
conspiracy in the second degree. On appeal he argues that his convictions should
be reversed because the crime of carjacking was completed by the time he joined
the two teenagers who had stolen the victim’s car and confined her in the trunk.
We conclude, based on the language and legislative history of Delaware’s
carjacking statute, that the crime of carjacking is not a continuing crime, but
instead is completed at the point when all the elements of the crime have been
satisfied. Because the carjacking of the victim’s vehicle was completed before
Harper’s involvement, and each of Harper’s convictions depends upon carjacking
as a predicate crime, we reverse his convictions and remand for proceedings not
inconsistent with this opinion.
II. FACTUAL AND PROCEDURAL HISTORY
On March 18, 2013, Margaret Smith, an 89-year old widow, was eating ice
cream at Chicken Man in Milford, Delaware, when she was approached by Junia
McDonald, age fourteen, and Jackeline Perez, age fifteen. McDonald and Perez
asked Smith if she would give them a ride home. After initially refusing, Smith
reconsidered and agreed.1
1
App. to Opening Br. at 9 (Trial Test. of Smith, June 25, 2014).
1
McDonald and Perez directed Smith to drive the girls to a number of
locations throughout Milford. After arriving at each location, McDonald and Perez
told Smith to drive elsewhere. 2 At the last stop, one of the girls demanded the keys
to Smith’s car. Smith refused and a struggle ensued. McDonald and Perez took
the keys to Smith’s 2001 Buick LeSabre and forced Smith inside the trunk.3
McDonald and Perez drove Smith’s car to Coverdale, Delaware, where they
picked up Phillip Brewer, an acquaintance with whom McDonald had made plans
to meet on Facebook. Brewer was at his mother’s house at the time. 4 McDonald,
Perez, and Brewer then traveled the short distance from Brewer’s mother’s house
to where Harper was staying, also in Coverdale. Harper joined McDonald, Perez,
and Brewer in the car. 5 Unbeknownst to Harper and Brewer, Smith was still held
captive in the trunk.
After Harper joined the group, the teenagers drove to a nearby park. At the
park, the teenagers listened to music until the car battery died. 6 Harper and Brewer
then walked the short distance to Brewer’s mother’s house to borrow her car to
jumpstart the dead battery. Upon returning to the park, Harper and Brewer realized
there were no jumper cables in Brewer’s mother’s car. Harper and Brewer asked
2
Id. at 11.
3
Id. at 11-12.
4
App. to Opening Br. at 25-26 (Trial Test. of Brewer, June 25, 2014).
5
Id. at 26-28.
6
Id. at 28-29.
2
McDonald and Perez if they could look in the trunk of the Buick for jumper cables.
McDonald refused, stating that her uncle was coming to jumpstart the car. 7
Brewer and McDonald got into Brewer’s mother’s car. Harper and Perez
got back into Smith’s car. 8 After some time, Harper approached Brewer, who was
still with McDonald in his mother’s car. Harper told Brewer that there was
someone in the trunk of the car. 9 Harper and Brewer then opened the trunk and
saw Smith inside. Harper asked McDonald and Perez why Smith was in the trunk.
They told Harper and Brewer they had traded liquor for the use of Smith’s car and
that Smith preferred to be in the trunk rather than the backseat. 10 While the trunk
was open, Smith told Harper and Brewer that the car belonged to her. Harper and
Brewer removed Smith from the trunk of her car, but the group decided to go to
Brewer’s grandmother’s house, so Harper and Brewer forced Smith back into the
trunk. 11
After leaving the park, McDonald, Perez, Brewer, and Harper smoked
marijuana at Brewer’s grandmother’s house. 12 The group then returned to the park
to look for jumper cables in Smith’s car. After removing Smith from the trunk to
get the jumper cables stored there, Harper and Brewer tried to jumpstart the
7
App. to Answering Br. at 59-60 (Trial Test. of Brewer, June 25, 2014).
8
Id. at 60.
9
Id.; App. to Opening Br. at 30 (Trial Test. of Brewer, June 25, 2014).
10
App. to Opening Br. at 30-31 (Trial Test. of Brewer, June 25, 2014).
11
Id. at 31-32.
12
Id. at 33; App. to Answering Br. at 61 (Trial Test. of Brewer, June 25, 2014).
3
battery. The two could not locate the battery, so Harper again forced Smith back
into the trunk.13
Early in the morning the next day, the group returned to the park, this time
with Brewer’s uncle who knew how to jumpstart the battery to Smith’s car.
Brewer’s uncle jumpstarted the battery, but no one mentioned to him that Smith
was trapped in the trunk.14 With Smith’s car working again, the group dropped off
Brewer’s mother’s car at her house and then drove Smith’s car to Seaford,
Delaware, and booked a room at a Days Inn hotel under Harper’s cousin’s name. 15
At about midday, the group drove back to Coverdale to purchase
marijuana. 16 Smith was still locked in the trunk of the car. At some point, the
group stopped at a fast food restaurant to eat. At the restaurant, McDonald spoke
with Smith by way of a trunk-access opening behind the backseat armrest and
asked if Smith wanted anything to eat. Smith replied that she wanted to go home. 17
To this point, and until she was released, Smith was not given any food or
water and was unable to take her medication.18 Despite her protestations, Smith
13
App. to Answering Br. at 61-62 (Trial Test. of Brewer, June 25, 2014).
14
App. to Opening Br. at 34 (Trial Test. of Brewer, June 25, 2014).
15
Id. at 34-35.
16
Id. at 36.
17
App. to Answering Br. at 63-64 (Trial Test. of Brewer, June 25, 2014).
18
App. to Opening Br. at 15 (Trial Test. of Smith, June 25, 2014); App. to Answering Br. at 45
(Trial Test. of Smith, June 25, 2014).
4
was not allowed to use a bathroom. 19 Throughout the ordeal, Smith banged on the
trunk to no avail.20
During the day and into the evening, the group made several trips to and
from Coverdale to purchase marijuana. 21 On one of these trips, Perez suggested
that the group drive into Milford, and burn the car with Smith inside it. 22 Harper
and Brewer objected. Harper suggested that they instead drop Smith off in the
Calvary Road cemetery in Seaford. 23 Brewer drove Smith’s car to the cemetery.
McDonald, Perez, and Harper removed Smith from the trunk of her car and left her
in the graveyard. The teenagers then returned to their hotel room. 24
Sometime between 7:30 and 8:00 a.m. the following morning, Betty
Edwards was visiting her son’s grave at the Calvary Road cemetery. 25 She saw
Smith emerge from a wooded area of the cemetery using two sticks to support
herself. 26 Despite what Edwards described as a cold morning, Smith was wearing
19
App. to Opening Br. at 15 (Trial Test. of Smith, June 25, 2014); App. to Answering Br. at 51
(Trial Test. of Smith, June 25, 2014).
20
App. to Opening Br. at 15-16 (Trial Test. of Smith, June 25, 2014).
21
App. to Opening Br. at 36-37 (Trial Test. of Brewer, June 25, 2014).
22
Id. at 37.
23
Id.
24
Id. at 38-39.
25
App. to Answering Br. at 3-5 (Trial Test. of Edwards, June 23, 2014).
26
Id. at 7-8.
5
only wet and dirty socks on her feet.27 Smith implored Edwards to drive her to a
store to purchase two canes. 28 Edwards quickly dialed 911.29
Delaware State Police Trooper James Gooch responded to Edwards’ 911 call
and found Smith at the cemetery appearing disheveled and confused. 30 Trooper
Gooch took Smith to the hospital and notified Smith’s niece, Sabrina Carroll, that
her aunt had been located. 31 Later, police officers searching the cemetery found
Smith’s medication, cane, and urine-soaked jeans near a headstone, but were
unable to locate her car. 32 They did, however, find tire tracks and what Trooper
Gooch called “crawling marks, hands, knees, toes.” 33
Later that evening Delaware State Police Trooper Patrick Schlimer was on
patrol and came across Smith’s car, checked the license number, and realized that
it was listed as a missing vehicle. Trooper Schlimer stopped the car and found five
people inside: Harper, Brewer, McDonald, Perez, and Daniaya Smith (Daniaya
Smith had joined the group after Smith was released in the cemetery). The
27
Id. at 8, 10.
28
Id. at 9.
29
Id. at 11.
30
App. to Answering Br. at 12-13, 15 (Trial Test. of Gooch, June 23, 2014).
31
Id. at 16-17.
32
Id at 17-19; App. to Answering Br. at 23-26 (Trial Test. of Trooper Michale Maher, June 23,
2014).
33
App. to Answering Br. at 18 (Trial Test. of Gooch, June 23, 2014).
6
members of the group were separately taken to Delaware State Police Troop 4 for
processing.34
McDonald, Perez, and Brewer all pled guilty to multiple offenses and are
serving lengthy jail terms. 35 Harper went to trial before a Sussex County Superior
Court jury on charges of carjacking in the first degree, kidnapping in the first
degree, and two counts of conspiracy in the second degree. 36 The jury returned a
verdict on June 26, 2014 of guilty on all counts.37 Harper was sentenced to twenty-
five years at Level V incarceration, suspended after five years for six months Level
IV work release, followed by two years of Level III probation for carjacking in the
first degree; twenty-five years at Level V incarceration for kidnapping in the first
degree; and two years at Level V incarceration, suspended for one year of Level III
probation for each count of conspiracy. 38
III. ANALYSIS
Harper argues on appeal that the carjacking of Smith’s car was a completed
crime when McDonald and Perez took Smith’s vehicle and put her in the trunk.
The Superior Court therefore erred, according to Harper, when it denied his motion
for judgment of acquittal for first degree carjacking because he cannot be
34
App. to Opening Br. at 18-21 (Trial Test. of Schlimer, June 23, 2014).
35
See State v. Brewer (ID#1303016994) (seven year prison term); State vs. McDonald
(ID#1304002931) (sixteen year prison term); State v. Perez (ID#1304002943) (sixteen year
prison term).
36
Id. at 1, 5-6 (Superior Court Docket).
37
App. to Opening Br. at 6 (Superior Court Docket).
38
Sentencing Order, State v. Harper, No. 1303016992 (Del. Super. Ct. July 25, 2014).
7
convicted of participating in an already completed crime. Harper also claims that
the Superior Court erred in denying his motion for judgment of acquittal for
kidnapping in the first degree, because that charge was predicated on his
commission of the crime of carjacking in the first degree. 39
The State argues in response that the crime of carjacking continues as long
as the victim remains a hostage in the vehicle. Because the question has not been
addressed in Delaware, the State points to a number of federal cases interpreting
the federal carjacking statute, 18 U.S.C. § 2119, which find carjacking a continuing
crime. The State also cites this Court’s statement in Dennis v. State 40 that
carjacking is a crime against the person. 41 As long as the victim remains a hostage
in the vehicle, the State reasons, the crime against the person continues. The State
also contends that, if Harper’s conviction for carjacking is proper, then his
conviction for kidnapping was also proper.
We review the Superior Court’s legal determination that carjacking is a
continuing crime de novo.42 We review de novo the Superior Court’s denial of
39
Harper also argues in the alternative that if carjacking is a continuous crime while the victim
remains abducted, he cannot be convicted of kidnapping in the first degree because Smith’s
restraint was incidental to and not independent of the carjacking. Because of our disposition of
the first two issues, we need not reach this issue.
40
41 A.3d 391 (Del. 2012).
41
Dennis v. State, 41 A.3d 391, 394 (Del. 2012).
42
Id. at 393 (“We review de novo the Superior Court’s jury instructions and its interpretation of a
statute.”); Burrell v. State, 953 A.2d 957, 960 (Del. 2008) (“[T]his Court must review the
correctness of the trial judge’s application of the law to [the trial court’s] factual findings. When
a question of law is at issue, the standard of appellate review is de novo.”).
8
Harper’s motion for judgment of acquittal as to the carjacking and kidnapping
charges to determine whether a rational trier of fact, viewing the evidence in the
light most favorable to the State, could find the essential elements of the crimes
beyond a reasonable doubt.43 Harper was also convicted of two counts of second
degree conspiracy. Although not raised on appeal, we conduct the same review, in
the interests of justice, of the sufficiency of the evidence supporting Harper’s two
conspiracy convictions.44
A. Carjacking Is Not A Continuing Crime
After reciting the elements of the crime of carjacking in the first degree
under Delaware law, the trial judge instructed the jury that the “crime of carjacking
may be continuous where a victim may be a hostage until a victim is released from
the motor vehicle.” 45 The court also instructed the jury that it should find Harper
guilty of carjacking in the first degree if they found beyond a reasonable doubt that
he “as a principal or accomplice acted in such a manner as to satisfy all of the
elements” of the crime of carjacking in the first degree. 46 An accomplice “is guilty
of an offense committed by another person when intending to promote or facilitate
43
Bethard v. State, 28 A.3d 395, 397-98 (Del. 2011).
44
Del. Sup. Ct. R. 8.
45
App. to Answering Br. at 104 (Jury Instructions).
46
Id.
9
the commission of the offense the accomplice aids or attempts to aid the other
person in committing it.”47
Harper’s argument on appeal focuses on what another court has described as
the temporal limits of the crime. 48 At common law, there was a category of
criminal liability, accessory after the fact, which applied to individuals who
assisted criminals after they committed their criminal acts.49 Though federal
criminal law retains accessory after the fact liability, 50 Delaware does not.51
Under Delaware law, a defendant like Harper cannot be convicted as a principal or
accomplice of a completed crime.
McDonald, Perez, and Brewer picked Harper up in Smith’s car after the car
was taken from her, and after she was put in the trunk. If the crime of carjacking
was complete when McDonald and Perez took the car from Smith and put her in
the trunk, then Harper cannot be guilty of carjacking. If, however, the crime
continued as long as Smith was a hostage in the trunk of her car, then Harper was a
47
Brooks v. State, 40 A.3d 346, 350 n. 14 (quoting Erskine v. State, 4 A.3d 391, 394 (Del. 2010)
(citing 11 Del. C. § 271(b))).
48
United States v. Figueroa-Cartegena, 612 F.3d 69, 73 (1st Cir. 2010) (citing Ramirez-Burgos
v. United States, 313 F.3d 23, 30 n. 9 (1st Cir. 2002)).
49
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 189 (2007).
50
See Figueroa-Cartegena, 612 F.3d at 73 (“Congress chose to retain the . . . category –
accessory after the fact – as a separate class whose ‘offense is distinct and is differently
punished.’”) (quoting Bollenbach v. United States, 326 U.S. 607, 611 (1946)).
51
58 Del. Laws, ch. 497, § 1 (1972) (repealing prior criminal code, 11 Del C. § 103, defining
accessories after the fact and prescribing punishment for the crime).
10
participant while the crime was in progress and his conviction for carjacking was
proper.
To determine whether the carjacking of Smith’s Buick was complete or
continuing when Harper joined the teenagers, we look for the General Assembly’s
intent in enacting the statute. 52 In Delaware, a criminal offense is committed
“either when every element occurs, or, if a legislative purpose to prohibit a
continuing course of conduct plainly appears, at the time when the course of
conduct or the defendant's complicity therein is terminated.” 53 Thus, for the
temporal span of a crime to extend beyond the moment at which every one of its
elements has occurred, a legislative intent to prohibit a continuing course of
conduct must “plainly appear.” This principle is consistent with the presumption
against interpreting a criminal statute as a continuing offense. A criminal statute
should not be interpreted as a continuing crime, “unless the explicit language of the
. . . statute compels such a conclusion, or the nature of the crime involved is such
that [the legislature] must assuredly have intended that it be treated as a continuing
one.” 54
52
See Patrick v. State, 922 A.2d 415, 2007 WL 773387, at *3 (Del. Mar. 15, 2007) (Table) (“The
issue of whether or not the crime of resisting arrest is a continuing offense is one of legislative
intent.”); see also Buchanan v. State, 981 A.2d 1098, 1102 (Del. 2009) (describing the status of
resisting arrest as a continuing crime in Delaware based on the intent of the General Assembly).
53
11 Del. C. § 205(f).
54
Toussie v. United States, 397 U.S. 112, 115 (1970); see also Burton v. State, 925 A.2d 503,
2007 WL 1417286, at *3 (Del. May 15, 2007) (Table) (discussing the presumption and following
Toussie in applying it).
11
Against this backdrop we first consider whether a legislative intent to
prohibit a continuing course of conduct plainly appears in the express language of
the statute. The Delaware carjacking statute reads in relevant part:
(a) A person is guilty of carjacking in the first degree when the
person knowingly and unlawfully takes possession or control of a
motor vehicle from another person or from the immediate presence of
another person by coercion, duress or otherwise without the
permission of the other person, and:
...
(6) The person from whom possession or control of the
vehicle is taken, or an occupant or passenger of such vehicle, is
62 years of age or older or 14 years of age or younger.
...
(c) It is no defense to a prosecution under this section that the
offender did not physically drive or operate the motor vehicle, nor is it
a defense under this section that the offender did not intend to
permanently deprive the owner or another person of the use of the
vehicle.
...
(f) This section is not a related or included offense of § 831 or
§ 832 of this title. Nothing in this section shall be deemed to preclude
prosecution under any other provision of this Code.55
The express language of the statute does not support a legislative intent to
prohibit a continuing course of conduct. The prohibited conduct is the taking of
possession or control of the vehicle from the victim or from the immediate
presence of the victim. The unlawful conduct is completed at a discrete moment in
time. To take possession or control of a thing is to affect a transfer of possession
55
11 Del. C. § 836.
12
or control to oneself from another. Once possession or control is obtained, it may
continue, but the taking of it occurs at a specific point in time.
Our interpretation is supported by definitions and common usage. In
common usage, to “take” is “to get into one’s hold or possession by voluntary
action.”56 “Taking” is also a common law term of art that refers to “the act of
‘securing dominion’ over something.”57 In common usage, “possession” is “the
act or fact of possessing,” where to “possess” is “to have as belonging to one;
own.”58 Black’s Law Dictionary defines “possession” as “[t]he fact of having or
holding property in one’s power; the exercise of dominion over property.” 59
“Control,” in common usage, is “the act or power of controlling,” where to
“control” is “to exercise restraint or direction over; dominate; command.” 60 To
“control,” as defined by Black’s Law Dictionary, is “[t]o exercise power or
influence over.” 61
Whether according to the common understanding of the terms or their legal
usage, a victim of a carjacking who is a hostage in the vehicle is no longer in
possession and control of the vehicle. Particularly if, as in this case, she is a
56
RANDOM HOUSE UNABRIDGED DICTIONARY 1936 (2d ed. 1993).
57
Figueroa-Cartegena, 612 F.3d at 78 (citing 3 Wayne R. LeFave, Substantive Criminal Law §
19.3(a) (2d ed. 2003)).
58
RANDOM HOUSE UNABRIDGED DICTIONARY at 1509.
59
BLACK’S LAW DICTIONARY 1281 (9th ed. 2009).
60
RANDOM HOUSE UNABRIDGED DICTIONARY at 442.
61
BLACK’S LAW DICTIONARY at 378.
13
hostage in the trunk, she is no longer exercising direction, dominion, or power over
the vehicle. In other words, possession and control has been taken from her.
This common sense understanding of the taking of possession or control —
a transfer that is completed at a discrete point in time, irrespective of how long the
possession or control in the taker continues from that point — is consistent with
the traditional understanding at common law. At common law, “‘[t]aking’ was
distinct from ‘carrying away’ (or ‘asportation’), which was a separate element of
[robbery and larceny] and did not occur until after the property had been
‘taken.’” 62 Therefore, at common law “a taking was complete once the defendant
had secured initial control over the property in question.” 63
We next consider whether the nature of the crime of carjacking is such that
the General Assembly must have intended that it be treated as continuing. The
General Assembly codified the current language making carjacking a criminal
offense in 1999.64 The synopsis to the bill, Senate Bill 12, emphasized the creation
of an offense separate and distinct from related offenses and distinctly punishable.
Carjacking was previously a subdivision of both assault and reckless endangering.
The synopsis states that “this Act defines carjacking, assault and reckless
endangering as separate offenses, and it creates a new and separate offense of
62
Figueroa-Cartegena, 612 F.3d at 78 (citing 3 Charles E. Torcia, Wharton’s Criminal Law §
357 (15th ed. 2009)).
63
Id.
64
72 Del. Laws, ch. 34, § 2 (1999).
14
carjacking. Carjacking would also be a separate and distinct crime from
robbery.” 65 The synopsis goes on to stress that the “Act also includes specific
provisions stating that carjacking and related offenses do not merge,” 66 ensuring
that a defendant can be sentenced both for carjacking and separately for related
offenses.67
The fact that the General Assembly intended carjacking to be an offense
separate and distinct from related offenses and distinctly punishable suggests we
should not define the temporal limits of the crime in terms of the victim’s status as
a hostage. Just as the synopsis to Senate Bill 12 made it clear that carjacking is a
separate and distinct offense from assault, reckless endangering, and robbery, and
just as this Court determined in Dennis that it is separate and distinct from theft of
a motor vehicle, so too it should be understood to be separate and distinct from
kidnapping and unlawful imprisonment. The crime against the person in a
carjacking is not the taking of the person hostage. In other words, it is every bit a
carjacking if the perpetrator throws the victim from the car and drives away.
65
Id.
66
Id.
67
The synopsis referenced Cook v. State, 600 A.2d 352 (Del. 1991), in which this Court
addressed the question whether principles of double jeopardy precluded the sentencing of a
defendant for vehicular assault in the first degree and the lesser included offense of driving under
the influence in a single prosecution. We concluded they did not because the General Assembly
had expressed a clear intention to permit simultaneous prosecution for vehicular assault in the
first degree and under any other section of the Delaware Code. Cook, 600 A.2d at 353.
15
Carjacking is a crime against the person because it involves a taking of possession
or control “from [the] person or from the immediate presence of [the] person.” 68
In the event a carjacker does take the victim hostage, the carjacker commits
separate and distinct offenses – kidnapping or unlawful imprisonment. Smith
might have been the victim of a continuing crime, but that continuing crime was
not carjacking; it was the distinct crimes of kidnapping or unlawful imprisonment,
punishable under 11 Del. C. §§ 781-783A.
The State urges this Court to follow federal precedent interpreting the
federal carjacking statute, 18 U.S.C. § 2119, and to adopt the so-called “abduction
rule” where the crime of carjacking continues as long as the car owner is held
hostage by the perpetrators. The State’s argument is unpersuasive for several
reasons.
First, given the language difference between the two statutes, the federal
statute is not directly analogous. The Delaware statute prohibits “tak[ing]
possession or control of a motor vehicle from another person or from the
immediate presence of another person.”69 In contrast, the federal statute prohibits
“tak[ing] a motor vehicle . . . from the person or presence of another . . . .”70
Under the federal statute, the carjacking is not completed until the victim is
68
Dennis, 41 A.3d at 394.
69
11 Del. C. § 836 (emphasis added).
70
18 U.S.C. § 2119.
16
separated from the car. But in Delaware, the carjacking is complete once
possession or control of the car is taken from the victim. The victim need not be
separated from the car to complete the crime.
This distinction, which is at the foundation of the abduction rule, was
adopted by the United States Court of Appeals for the Ninth Circuit in United
States v. Hicks. 71 The Ninth Circuit concluded, based on the language of the
federal carjacking statute, that the crime of carjacking was not a completed crime
until the victim is separated from the vehicle. In other words, under the federal
carjacking statute, the car has not been “taken” from the victim until separation
occurs.72 The Delaware statute does not contain such a limitation.
Second, the federal precedent interpreting the federal carjacking statute
provides little support for the State’s position. The leading case relied upon by the
State, United States v. Figueroa-Cartegena,73 adopted the “abduction rule” only
because the panel felt constrained by precedent to do so. Two of the three judges
expressed strong reservations about the court’s earlier precedents. 74 They cast
71
103 F.3d 837 (9th Cir. 1996).
72
United States v. Hicks, 103 F.3d 837, 843 n. 4 (9th Cir. 1996). The Ninth Circuit also found
for purposes of separation from the vehicle that it did not matter whether the victims were in the
front seat or the trunk of the car. Id.
73
612 F.3d 69 (1st Cir. 2010).
74
Id. at 80-82 (Lipez, J., writing for the majority, but not joined by Baldock, J.) (suggesting that
the abduction rule was originally adopted on an “erroneous premise”); id. at 89 (Torruello, J.,
dissenting) (“[A]s the majority explains, the abduction rule was grounded on a case that does not
actually support it . . . . We appear to have mechanically repeated this phrase in subsequent
opinions without explanation.”).
17
doubt on the logic of Hicks, even as applied to the distinct language of the federal
statute, and questioned whether the abduction rule should continue to be followed
by the court. 75
In the present case, McDonald and Perez completed the carjacking when
they took possession and control of Smith’s Buick from her without her
permission. Because Harper joined the teenagers after the crime of carjacking was
completed, we reverse Harper’s conviction for carjacking in the first degree.
B. The Evidence Was Insufficient to Convict Harper of Kidnapping
Delaware’s kidnapping statute provides that a person is guilty of kidnapping
in the first degree:
[W]hen the person unlawfully restrains another person with any of the
following purposes: (1) To hold the victim for ransom or reward; or
(2) To use the victim as a shield or hostage; or (3) To facilitate the
commission of any felony or flight thereafter; or (4) To inflict physical
injury upon the victim, or to violate or abuse the victim sexually; or (5)
To terrorize the victim or a third person; or (6) To take or entice any
child less than 18 years of age from the custody of the child's parent,
guardian or lawful custodian; and the actor does not voluntarily release
the victim alive, unharmed and in a safe place prior to trial. 76
75
Id. at 77-80 (Lipez, J., writing for the majority, but not joined by Baldock, J.) (arguing that
neither the language of the federal statute nor the nature of the offense support reading the statute
as creating a continuing crime); id. at 90 (Torruello, J., dissenting) (“I do not see where the
abduction rule is in any way supported by the plain language of the statute, whether by a plain
commonsensical definition of the word ‘take’ – ‘to get into one’s hands or into one’s possession,
power or control by force or stratagem’ – or as derived from the common law of robbery and
larceny.”). Two of the three judges directly questioned whether a taking continues until the
victim is released, and believed that even under the broadest reading of the word taking, “a
taking ends once the victim has been subdued and the defendant's control over the vehicle is
‘complete.’” Id. at 79.
76
11 Del. C. § 783A (emphasis added).
18
At Harper’s trial, the judge instructed the jury that they were to find the “with
any of the following purposes” intent element of the statute satisfied if the jury
found “the restraint was with the intent to facilitate the commission of any felony
or flight thereafter upon Margaret Smith, here alleged to be carjacking in the first
degree or flight therefrom.” 77
Harper argues on appeal that there was insufficient evidence to convict him
of kidnapping in the first degree because his involvement in the restraint of Smith
was not done to facilitate the commission of the carjacking or flight thereafter.
Having concluded that the carjacking was complete by the time Harper’s
involvement in the restraint of Smith commenced, we agree that Harper’s later
involvement in the restraint of Smith could not have been for the purpose of
facilitating the commission of the felony of carjacking in the first degree. We
must, however, still consider whether there was sufficient evidence from which the
jury could have found that his involvement in the restraint of Smith was for the
purpose of facilitating “flight thereafter” from the carjacking by McDonald and
Perez.
In Williamson v. State,78 we interpreted language regarding flight from a
predicate felony in the felony murder statute, 11 Del. C. § 636(a)(2). The statute
77
App. to Answering Br. at 106 (Jury Instructions).
78
669 A.2d 95 (Del 1995).
19
provided at the time that a defendant could be convicted of felony murder in the
first degree if “[i]n the course of and in furtherance of the commission or attempted
commission of a felony or immediate flight therefrom, he recklessly causes the
death of another person.”79 We found the term “flight” to mean “an act or
instance of fleeing or running away.” 80 The fleeing or running away is from “the
scene of the predicate felony.” 81 We have also determined that to “facilitate”
means to “move” that which is being facilitated “forward.” 82
In this case, the scene of the predicate felony is the last location in or around
Milford where Smith drove McDonald and Perez, and McDonald and Perez took
control of Smith’s Buick and put Smith in the trunk. The question thus becomes
whether a rational trier of fact, viewing the evidence in the light most favorable to
the State, could find Harper’s involvement in restraining Smith was for the purpose
of moving forward or making easier an act of fleeing or running away on the part
of McDonald and Perez from the place where they carjacked Smith’s car.
We conclude that the record is completely bereft of evidence to support such
a finding. When Harper was first picked up by the other teenagers in Smith’s
Buick, McDonald and Perez were no longer near the place where they carjacked
Smith’s car. There is no evidence that, from the time McDonald, Perez, and
79
Williamson v. State, 669 A.2d 95, 97 (Del. 1995).
80
Id. at 98.
81
Id.
82
Williams v. State, 818 A.2d 906, 913 (Del. 2003).
20
Brewer picked up Harper from his home, McDonald, Perez or any of the teenagers
were concerned with fleeing or running away. They spent hours driving around in
public and parked in a public place at a park, listening to music Smith described as
“up loud.” 83 They checked into a hotel, but not for the purpose of hiding either
themselves or the Buick. They made regular runs in the Buick for marijuana.
Even after releasing Smith, the teenagers continued to drive around in public in
Smith’s car.
The evidence was insufficient to establish that Harper restrained Smith for
the purpose of facilitating the commission of McDonald and Perez’s carjacking or
their flight thereafter. We therefore reverse Harper’s conviction for kidnapping in
the first degree.
C. The Evidence Was Insufficient to Convict Harper of Conspiracy
A person is guilty of conspiracy in the second degree when:
[I]ntending to promote or facilitate the commission of a felony, the
person:
(1) Agrees with another person or persons that they or 1 or more
of them will engage in conduct constituting the felony or an
attempt or solicitation to commit the felony; or
(2) Agrees to aid another person or persons in the planning or
commission of the felony or an attempt or solicitation to commit
the felony; and the person or another person with whom the
83
App. to Answering Br. at 44 (Trial Test. of Smith, June 25, 2014).
21
person conspired commits an overt act in pursuance of the
conspiracy. 84
Harper was charged with conspiring to commit the crimes of carjacking in
the first degree and kidnapping in the first degree. 85 For Harper to be guilty of
conspiracy to commit those crimes, there must have been an agreement in each
instance on Harper’s part with at least one co-conspirator, and either Harper or a
co-conspirator must have committed one overt act in furtherance of each crime. 86
With respect to conspiracy to commit carjacking in the first degree, there is
no evidence that Harper was aware of any plans on the part of McDonald and
Perez to carjack Smith’s vehicle before the carjacking was complete, let alone any
evidence that Harper was in agreement with such plans. Evidence of the requisite
agreement is lacking as well with respect to conspiracy to commit kidnapping in
the first degree. Harper could not have agreed that Smith should be restrained for
the purpose of facilitating the commission of the carjacking, because the carjacking
was complete before he was aware of either the carjacking or the girls’ restraint of
Smith. Harper could have conceivably agreed that Smith should be restrained to
facilitate the flight of McDonald and Perez from the carjacking, but, as we have
already discussed, the record does not support a finding that Harper and the other
84
11 Del. C. § 512.
85
Indictment, State v. Harper, No. 1303016992 (Del. Super. Ct. Apr. 8, 2013).
86
Harris v. State, 968 A.2d 32, 36 (Del. 2009).
22
teenagers acted with that particular shared purpose. Harper’s conspiracy
convictions must also be reversed.
IV. CONCLUSION
For the foregoing reasons, we reverse Harper’s convictions. We remand to
the Superior Court for such further proceedings as are not inconsistent with this
opinion.
23