Cogan v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE
JEFFREY COGAN §
§ No. 555, 2019
Defendant Below, §
Appellant § Court Below: Superior Court
§ of the State of Delaware
v. §
§ Cr. ID No. 1808002090(N)
STATE OF DELAWARE, §
§
Plaintiff Below, §
Appellee. §
Submitted: December 2, 2020
Decided: February 5, 2021
Before VALIHURA, VAUGHN, and TRAYNOR, Justices.
ORDER
This 5th day of February 2021, upon consideration of the parties’ briefs and
the record on appeal, it appears to the Court that:
1. Jeffrey Cogan has twice been convicted of criminal contempt of a
domestic violence protective order in violation of 11 Del. C. § 1271A. Cogan was
first convicted after a trial before a Family Court Commissioner. After Cogan
requested that the Commissioner’s Order be reviewed, a Family Court judge
affirmed his conviction. Cogan then appealed to the Superior Court, which held a
trial de novo before a jury. The jury returned a guilty verdict, and the court sentenced
Cogan to one year of Level V incarceration, suspended for six months of Level I
unsupervised probation subject to the condition that he successfully complete an
anger-management course. Cogan then appealed his conviction and sentence to this
Court.
2. Among other things, the domestic violence protective order that Cogan
is said to have violated prohibited him from “contact[ing] or attempt[ing] to contact
[his ex-wife, Angela Hower,] in any way, including, but not limited to, by phone, by
mail, or by any other means[,] [e]xcept via text message or e-mail as pertaining to
the parties[’] children only.”1
3. A week after the order was entered, Cogan sent Hower a text message
that, though raising issues that pertained to the parties’ children, gratuitously
demeaned Hower and accused her of being a liar. The following day Cogan sent
Hower another demeaning text message.
4. In this appeal, Cogan does not claim that the text of his messages did
not offend the provisions of the protective order. Instead, he raises a single issue.
He claims that the evidence that he committed the offense in the State of Delaware—
a statutory element of the offense—did not support the jury’s finding of guilt.
5. Cogan preserved this issue for appeal by moving—unsuccessfully—for
a judgment of acquittal on this ground before the case was submitted to the jury.
This Court reviews the denial of a motion for judgment of acquittal de novo,
1
Opening Br. Ex. A at 1.
2
examining “whether any rational trier of fact, viewing the evidence in the light most
favorable to the State, could find a defendant guilty beyond a reasonable doubt of all
the elements of the crime. For the purposes of this inquiry, this Court does not
distinguish between direct and circumstantial evidence.”2
6. The territorial applicability of the Delaware Criminal Code is set forth
in 11 Del. C. § 204, which, in relevant part, states:
(a) Except as otherwise provided in this section a person
may be convicted under the law of this State of an offense
committed by the person’s own conduct or by the conduct
of another for which the person is legally accountable if:
(1) Either the conduct or the result of which
is an element of the offense occurs within
Delaware . . . .
And under 11 Del. C. § 232, in criminal prosecutions, “[f]acts establishing
jurisdiction and venue . . . must . . . be proved as elements of the offense.”
7. For good measure, the statute under which Cogan was prosecuted—11
Del. C. § 1271A(a)(1)—states that “[a] person is guilty of criminal contempt of a
domestic violence protective order when the person knowingly violates or fails to
obey any provision of the protective order issued by [] the Family Court . . . , as long
as such violation or failure to obey occurred in Delaware.” (Emphasis added).
2
Cline v. State, 720 A.2d 891, 892 (Del. 1998).
3
8. It is undisputed that the Superior Court instructed the jury that, to find
Cogan guilty, it must find, among other things, that the alleged violation or failure
to obey the protective order occurred in Delaware.
9. We do not hesitate to conclude that a rational trier of fact could find
beyond a reasonable doubt that Cogan’s violation of the domestic violence protective
order occurred in Delaware. It has long been recognized that the situs of an offense
can be established by inference.3 But the jury did not need to resort to inference to
find that Hower received the offending messages in Delaware; she testified that she
received both of them at work—she was employed by the State of Delaware, a fact
undoubtedly known by Cogan—at the Division of Family Services office at the New
Castle County Police Department. Moreover, that both messages were sent during
ordinary work hours—3:48 p.m. and 10:35 a.m., respectively—establishes a
substantial likelihood, when this fact is viewed in the light most favorable to the
prosecution, that Cogan intended that Hower would receive them in Delaware. And
considering that Cogan himself had been employed “in the Delaware area . . . [for]
15 years or so,”4 suggesting that the messages were also sent from a location in
Delaware, all the evidence viewed together—deferentially, as we must—easily
3
James v. State, 377 A.2d 15, 15–16 (Del. 1977); accord Cordero v. State, 1992 WL 276234, at *1
(Del. Sept. 30, 1992) (“[J]urisdiction requirements may be satisfied . . . by inferences reasonably
drawn from direct testimony.”); see also Thornton v. State, 495 A.2d 126 (Del. 1979).
4
App. to Opening Br. at A25.
4
supports the jury’s finding that Cogan’s violation of the protective order occurred in
Delaware.
NOW, THEREFORE, IT IS ORDERED that the Superior Court’s judgment is
AFFIRMED.
BY THE COURT:
/s/ Gary F. Traynor
Justice
5