Opinion
No. 9801004118.
Submitted: October 27, 1999.
Decided: January 7, 2000.
Upon Consideration of Defendant's Motion for Judgment of Acquittal or New Trial
DENIED
Denise Weeks-Tappan, Esq., Dover, Delaware. Attorney for State
James Garvin, Esq., Dover, Delaware. Attorney for Defendant.
ORDER
Upon consideration of the defendant's motion for judgment of acquittal or new trial, the State's response and the record in this case, it appears that:
1. Defendant Gregory Bordley was indicted for Burglary First Degree, Terroristic Threatening, Assault Third Degree and Criminal Mischief. A jury found him guilty of all charges except Terroristic Threatening. He was acquitted on that charge. As to the Burglary First Degree charge, the defendant has moved for judgment of acquittal or, alternatively, for a new trial. The question presented is this: If a victim is assaulted on her front porch, has the assault occurred within her dwelling? If the answer is yes, the guilty verdict stands. If the answer is no, then it would appear that the defendant is entitled to some relief from the jury's verdict. For the reasons which follow, the Court finds that a front porch is part of a dwelling, that when the victim was on her front porch she was still within her dwelling, and that the evidence was sufficient to support the jury's verdict. Therefore, the motion is denied.
2. In the early morning hours of January 9, 1998, Dover resident Elizabeth Loper called the police to report that she had received a threatening phone call from the defendant, an on again off again boyfriend, during which he informed her he was "coming over." At the time Mr. Bordley was under a "no contact" order which prohibited him from having any contact with Mrs. Loper. She objected to his coming, but to no avail. Shortly later, the defendant arrived at her home, kicked in the front door and, according to Ms. Loper, shouted, "I'm going to kill you!" or words to that effect. He proceeded to chase her around inside the house. She ran out the front door. He caught her on the front porch, punched her in the face, and then fled the scene.
3. The defendant was indicted for Burglary First Degree. The indictment read as follows:
"Gregory A. Bordley on or about the 9th day of January, 1998, in the County of Kent, State of Delaware, did knowingly enter or remain unlawfully in a dwelling at night located at 44 Lincoln Street, Dover, Delaware, with the intent to commit the crime of Assault Third and Terroristic Threatening therein and while in said dwelling did cause physical injury to Elizabeth Loper, who was not a participant in the crime."
Mr. Bordley contends that one of the elements of the offense charged was that the assault occur "in the dwelling"; that the front porch is not part of the dwelling; and that, therefore, he cannot be convicted of Burglary First Degree. In other words, Bordley contends that the assault occurred outside the dwelling. In response, the State contends that the porch is part of the dwelling; that the issue of whether the porch is part of the dwelling is a factual issue; and there was sufficient evidence to support the jury's verdict.
During trial the state moved to amend the indictment to allege that the assault occurred in the dwelling or "in immediate flight therefrom." This request was denied.
4. When ruling upon a motion for judgment of acquittal, the trial judge must consider the evidence and all legitimately drawn inferences from the point of view most favorable to the State. A motion for judgment of acquittal is granted only when the State has offered insufficient evidence to sustain a verdict of guilty.
Vouras v. State, Del. Supr., 452 A.2d 1165, 1169 (1982).
Super. Ct. Crim. R. 29; State v. Darling, Cr.A. Nos. IK97-08-0503, 0505, 0506, Witham, J. (July 12, 1999) (Mem. Op.) quoting State v. Biter, Del. Super., 119 A.2d 894 (1955).
5. In our criminal code, "dwelling" is defined as "[a] building which is usually occupied by a person lodging therein at night." "`Building', in addition to its ordinary meaning, includes any structure, vehicle or watercraft." Whether, when and under what circumstances a porch may be considered part of a building is not specifically addressed in these statutory definitions.
Del. C. § 829(b).
6. Where the language of a statute is clear and unambiguous, the court is bound to give effect to the words of the statute. However, if a statute is ambiguous, the court should be guided by rules of statutory construction. When a Title 11 statute is involved, the rule of statutory construction is provided by 11 Del. C. § 203, which provides that the general rule of strict construction of penal statutes does not apply to our criminal code; and that the code's provisions should be construed according to the fair import of their terms to promote justice and effect the general purposes of the code set forth in § 201.
Spielberg v. State, Del. Supr., 558 A.2d 291, 293 (1989).
Id.
7. The evidence presented at trial consisted primarily of the testimony of the victim in which she explained that she ran out the front door of the house to try to get away from the defendant, but that he caught her on the front porch, where the assault occurred. The record does not contain any description of the porch apart from the words "front porch." There was no evidence as to whether the porch was enclosed, unenclosed, screened, unscreened, had a roof or didn't have a roof, had a railing or didn't have a railing, had furniture or didn't have furniture, or anything else. The Court's analysis, therefore, takes place upon a rather skimpy record.
8. The front porch is a normal and ordinary feature of many dwelling houses. While front porches vary widely in style, their common element is that they are attached to the front of the house, almost always in the area around the front door. Significantly, a porch is part of one, continuous structure. To the extent people use their porches, they ordinarily do so for purposes associated with the overall use of their dwellings for daily living. Sometimes they are elaborately furnished, sometimes not. In the Court's opinion, most people consider their front porch to be a part of their dwelling.
9. A purpose of the burglary statutes is to promote a person's sense of security while in his or her personal residence. That value is violated when one goes upon a person's front porch and commits an assault. There is nothing in the definition of "dwelling" which suggests that all parts of the dwelling must be fully enclosed. The result reached here is consistent with the principles of construction and general purposes of the criminal code. In addition, those cases which have considered the issue have generally held that a porch is part of a dwelling.
State v. Scott, Kan. Supr., 178 P.2d 182 (1947); State v. Gatewood, Kan. Supr, 221 P.2d 392 (1950); McCoy v. State, Ark. Ct. App., CA CR 79-38 (1979); People v. Lewoc, N.Y.Supr., 475 N.Y.S.2d 933 (1984); People v. Wiley, Ill. App. Ct., 523 N.E.2d 1344 (1988); People v. McIntyre, Ill. Ct. App., 578 N.E.2d 314 (1991); Commonwealth v. Jackson, PA. Super., 585 A.2d 533 (1991); Johnson v. Commonwealth, Ky. Ct. App., 875 S.W.2d 105 (1994).
10. In this case the jury was instructed both as to Burglary First Degree and the lesser included offense of Burglary Second Degree. The only relevant difference between the two was that the Burglary First Degree instruction required that the jury find one additional element, namely, that " . . . while in said dwelling the defendant did cause physical injury to Elizabeth Loper . . . Given these choices, the jury returned the Burglary First Degree guilty verdict. The jury's conclusion that the offense occurred "in the dwelling" was reasonable and supported by the evidence.
11. THEREFORE the defendant's motion for judgment of acquittal or alternatively, a new trial, is denied.
IT IS SO ORDERED. ____________ JUDGE
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