State v. Jewell ( 2023 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE )
)
v. ) ID No. 2109014213
)
DAVID JEWELL, )
)
Defendant. )
Submitted: May 31, 2023
Decided: June 12, 2023
Upon Defendant David Jewell’s Amended Motion to Dismiss/Vacate Convictions
or, Alternatively, Motion to Merge Convictions for Sentencing Purposes,
GRANTED in part and DENIED in part.
ORDER
Brianna M. Mills, Esquire; Colleen E. Durkin, Esquire, Deputy Attorneys General,
DELAWARE DEPARTMENT OF JUSTICE, Carvel State Office Building, 820 N.
French St., 7th Floor, Wilmington, DE 19801, Attorneys for State of Delaware.
Michael W. Modica, Esquire, P.O. Box 437 Wilmington, DE 19899, Attorney for
Defendant David Jewell.
WHARTON, J.
This 12th day of June 2023, upon consideration of Defendant David Jewell’s
Amended Motion to Dismiss/Vacate Convictions or, Alternatively, Motion to Merge
Convictions for Sentencing Purposes1 the State’s Response,2 and the record in this
case, it appears to the Court that:
1. At the conclusion of a four-day jury trial Defendant David Jewell
(“Jewell”) was found guilty of one count of stalking, one count of harassment, and
26 counts of terroristic threatening.3 He was acquitted of a single count of act of
intimidation.4 The Court ordered a presentence investigation and sentencing is
pending.
2. Jewell now moves to dismiss/vacate his convictions for terroristic
threatening and harassment on the theory that they are included within the offense
of stalking.5 He argues that because they are lesser included offenses, 11 Del. C. §
206 “prohibits convicting a defendant of more than one offense where one offense
‘is established by the proof of the same or less that all of the facts required to
establish the commission of the second offense’”6 Similarly, under Blockburger v.
1
D.I. 20.
2
D.I. 21.
3
D.I. 18.
4
Id.
5
Def.’s Mot at ⁋⁋ 1-6, D.I. 20.
6
Id. at § 3, quoting 11 Del. C. § 206, D.I. 20.
2
U. S.,7 with which § 206 is consistent,8 ‘“where the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one, is whether each provision
requires proof of a fact the other does not.’”9 Applying § 206 and Blockburger,
Jewell contends that all of the respective elements of harassment and terroristic
threatening are included in the stalking charge as that charge was drafted.10 Finally,
he notes that the Delaware Supreme Court has previously determined that
harassment is a lesser included offense of stalking.11 Alternatively, he requests that
the Court merge those charges into the stalking charge for sentencing purposes.12
3. In its response, the State concedes that the harassment charge is a lesser
included offense of stalking and should merge into that charge at sentencing.13
Accordingly, Jewell’s Motion is GRANTED as to the harassment charge.14 That
charge will merge into the stalking charge for sentencing.
4. Although the State acknowledges that a literal application of § 206 and
Blockburger would seem to preclude Jewell being convicted of both stalking and
7
284 U.S. 299 (1932).
8
Stigars v. State, 674 A.2d 477, 482 (Del. 1996).
9
Def.’s Mot at ⁋ 4, quoting Blockburger, 284 U.S. at 304, D.I. 20.
10
Id. at ⁋ 5.
11
Id. at ⁋ 6, citing Burnham v. State, 761 A.2d 830 (Del. 2000).
12
Id. at ⁋ 7.
13
State’s Resp. at 3, D.I. 21.
14
N22-08-1007.
3
terroristic threatening, nevertheless, the State argues his convictions of both crimes
should stand.15 In support of this contention, the State observes that the terroristic
threatening component of the stalking charge is a sentencing aggravator, raising the
crime to a class G felony from a class F felony.16 For that reason, in the State’s view,
the General Assembly, when it amended the stalking statute to add this and other
aggravators, did not indent to make terroristic threatening a lesser included offense
of stalking. Rather, it intended to further punish stalkers.17
5. Both sides cite Mills v. State.18 In Mills, the defendant argued he could
not be sentenced for his separate convictions for resisting arrest with force or
violence and heroin drug dealing under § 206 and Blockburger because the resisting
arrest offense was a lesser included offense of the drug dealing charge.19
Specifically, he argued that both convictions could not stand because “the State used
the resisting arrest offense as an aggravating factor to elevate the drug dealing
offense to a higher felony grade.”20 In expressing the proper analytical approach to
the issue, the Delaware Supreme Court said, “We have previously noted, however,
15
Id. at 6.
16
Id. at 4-6.
17
Id. at 6-7.
18
201 A.3d 1163 (Del. 2019). See, Def.’s Mot at ⁋ 4, D.I. 20; State’s Response, at
4, D.I. 21.
19
Id. at 1167.
20
Id. at 1165.
4
that Blockburger and § 206 are ‘only an aid to statutory construction’ and they ‘do[
] not negate clearly expressed legislative intent.’ If ‘a better indicator of legislative
intent is available,’ a literal application of Blockburger and § 206 ‘does not apply.’”21
In holding that the General Assembly intended separate punishments for both
crimes, the Court looked to the synopsis of the bill that created the drug dealing
offense which clarified that a person could be convicted of both the drug offense and
the aggravator.22
6. The Mills Court observed that the statement in the synopsis was “about
as clear a statement of legislative intent as one could ask for, other than a statement
to that effect in the statutory text itself.”23 Here there is just such a codification of
legislative intent in the statutory text. The statute reads, “[a] conviction for any
predicate act relied upon to establish a course of conduct does not preclude
prosecution under this section. Prosecution under this section does not preclude
prosecution under any other section of the Code.”24
7. Thus, the Court concludes that, although a literal application of
Blockburger and § 206 would seem to preclude punishing Jewell for both stalking
and terroristic threatening, the General Assembly clearly and expressly authorized
21
Id. at 1175 (internal citations omitted).
22
Id. at 177.
23
Id.
24
11 Del. C. § 1312(e)(1).
5
punishing him for both. Accordingly, Jewell’s motion as to the terroristic
threatening charges is DENIED.
THEREFORE, Defendant David Jewell’s Amended Motion to
Dismiss/Vacate Convictions or, Alternatively, Motion to Merge Convictions for
Sentencing Purposes is GRANTED as to the harassment charge. The harassment
charge will merge into the stalking charge for sentencing. It is DENIED as to the
terroristic threatening charges.
IT IS SO ORDERED.
/s/ Ferris W. Wharton
Ferris W. Wharton, J.
6