Opinion
Cr. A. No. 1503017956
11-21-2016
STATE OF DELAWARE, v. WYATT J. JOHNSON, Defendant.
Nicole Whetham Warner, Esquire Department of Justice 820 N. French Street, 7th Fl. Wilmington, DE 19801 Attorney for the State of Delaware Jonathan Layton, Esquire Layton & Associates, P.A. 1308 Delaware Ave., Ste. 8 Wilmington, DE 19806 Attorney for Defendant
(Amended) Nicole Whetham Warner, Esquire
Department of Justice
820 N. French Street, 7th Fl.
Wilmington, DE 19801
Attorney for the State of Delaware Jonathan Layton, Esquire
Layton & Associates, P.A.
1308 Delaware Ave., Ste. 8
Wilmington, DE 19806
Attorney for Defendant MEMORANDUM OPINION Dear Counsel & Mr. Johnson,
On March 27, 2015, Wyatt Johnson ("Defendant") was arrested and charged with Conspiracy in the Third Degree, in violation of 11 Del. C. § 511 and Criminal Mischief for property damage below one thousand dollars ($1,000), in violation of 11 Del. C. § 811. A trial was held before this Court on July 27, 2016 in which Defendant was found not guilty of Conspiracy in the Third Degree and the Court reserved its decision as to the Criminal Mischief charge. The Court requested supplemental briefing on whether 11 Del. C. § 811 requires the State to prove the value of the pecuniary loss (below one thousand dollars) when the charge is an unclassified misdemeanor. On August 16, 2016, the State submitted its supplemental briefing. On September 23, 2016, Defendant submitted his supplemental briefing. This is the Court's Final Decision After Trial.
I. The Facts.
Based on the testimony presented at trial, the Court finds the relevant facts to be as follows.
a. The Incident
On March 27, 2015, New Castle County Police Officer First Class Michael McNasby ("Officer McNasby") responded to a 7-11 location at 2100 Foulk Road where there was a report of criminal mischief occurring to a marked New Castle County Police Department patrol vehicle. Upon arriving at the scene, Officer McNasby was met by Officer First Class Matthew Rosario ("Officer Rosario") who informed Officer McNasby that he had received information that an unknown suspect had "jumped on the hood" of his marked patrol car and damaged the car. Officer Rosario had parked his patrol vehicle and proceeded on foot behind the 7-11 in response to a prior reported incident. Officer McNasby observed a "large dent" to the driver's side of the vehicle's hood and took photographs of the damage. No dent was present on the vehicle's hood prior to Officer Rosario parking his vehicle at the 7-11 location. Officer Rosario also informed Officer McNasby that the suspect had used a "dark color sedan with a Delaware vanity tag of B5." Officer McNasby's investigation led him to the address of 2100 Weatherton, the home of co-defendant Craig Goldsborough, where the described vehicle was parked.
R. at 15.
R. at 15.
R. at 59-60.
R. at 28-31. These photographs were submitted into evidence at trial without objection.
R. at 60-61.
R. at 15.
R. at 16, 32.
Officer McNasby was allowed into the home at 2100 Weatherton by Goldsborough's mother and discussed the incident with Nicholas Findley, Craig Goldsborough, and Defendant who were all present. All three admitted to being involved in the incident, Defendant informed Officer McNasby that the incident was caught on video, and co-defendant Goldsborough showed Officer McNasby video footage of the incident. Officer McNasby was able to view the cellphone video and witnessed Defendant laughing and joking before Defendant damaged the parked police patrol vehicle.
R. at 17, 48.
R. at 19, 48-50. The video was introduced into evidence at trial without objection.
R. at 54-57.
b. The Trial
During trial, Officer McNasby did not testify about or estimate the cost of the damage to Officer Rosario's police patrol vehicle. Officer Rosario, the State's second and final witness, provided muddled testimony as to value of the damage to his police patrol vehicle. When presented with photographs of the damage that the State had previously submitted into evidence, Officer Rosario testified that the New Castle County Police Department had repaired and paid for the dent on the hood. The State asked Officer Rosario if he knew how much it cost and he replied that he did not know. The State responded, "[w]as it $1,000 do you know? Less?" Officer Rosario replied, "[l]ess." He then noted that he did not receive the vehicle back after it was damaged, as he was issued a new vehicle.
R. at 62-63.
R. at 63.
R. at 63.
R. at 63.
R. at 63.
On cross-examination, Officer Rosario admitted that he had not received an invoice for repairs or any other written documentation establishing that the hood was repaired. He also admitted that he had guessed as to whether the damage cost less than one thousand dollars ($1,000). When prodded on redirect-examination to provide an "estimate for the damage to the vehicle," Officer Rosario stated, "[a]pproximately $800." On recross-examination, he admitted he had no basis for that number and it was a "complete guess." He stated that his estimate may be low, but he made a guess based on what he believed would be "reasonable," comparing it to the lesser cost of a gas cap door repair. Officer Rosario could not recall the vehicle's age, but believed it to be a 2006 and admitted he had no personal mechanical knowledge about the vehicle or how much it would cost to repair.
R. at 64.
R. at 64.
R. at 67.
R. at 67-68.
R. at 68.
R. at 69.
After closing arguments, the Court raised—sua sponte—the question of whether the State had proven its charge of Criminal Mischief as an unclassified misdemeanor when the State had failed to prove that the damage was less than one thousand dollars ($1,000). The Court noted that the second witness, Officer Rosario, had estimated a vague value, but these uncertain guesses did not prove beyond a reasonable doubt that the damage to the police patrol vehicle was less than one thousand dollars ($1,000). The State argued it was not required to prove a sum certain and could rely on evidence of general damage until the restitution hearing. The State noted that it would only have to prove the sum certain if the amount was more than one thousand dollars ($1,000). Defendant agreed with the Court's analysis of the statute and noted that Officer Rosario's guesses as to repair cost would not satisfy the State's burden. After struggling to reconcile the statute's sections, the Court requested supplemental briefing on whether the State was required to prove beyond a reasonable doubt that the damage caused was below one thousand dollars ($1,000).
R. at 80-81.
R. at 81-82.
R. at 83-84.
R. at 84.
R. at 84-85.
R. at 85-90.
II. The Law.
The burden of proving each and every element of the offense beyond a reasonable doubt rests on the State. A reasonable doubt is not a vague, impulsive or imaginable doubt, "but such a doubt as intelligent, reasonable and impartial men may honestly entertain after a conscience consideration of the case." Thus, a reasonable doubt is a "substantial doubt." That is, a reasonable doubt "means a substantial well-founded doubt arising from a candid and impartial consideration of all the evidence or want of evidence." The Court may consider all direct and circumstantial evidence in determining whether the State has met its burden as required by 11 Del. C. § 301.
11 Del. C. § 301; State v. Matushefske, 215 A.2d 443, 449 (Del. Super. 1965).
Matushefske, 215 A.2d at 449.
Id.
State v. De Jesus-Martinez, 2014 WL 7671040, at *4 (Del. Com. Pl. Dec. 5, 2014) (quoting State v. Wright, 79 A. 399, 400 (Ct. Gen. Sess. 1911)) (internal quotation marks omitted).
As trier of fact, the Court is the sole judge of the credibility of each fact witness and any other information provided. If the Court finds the evidence presented at trial conflicts, it is the Court's duty to reconcile these conflicts—if reasonably possible—in order to find congruity. If the Court is unable to harmonize the conflicting testimony, then the Court must determine which portions of the testimony deserve more weight in its final judgement. The Court must disregard any portion of the testimony which the Court finds to be unsuitable for consideration. In ruling, the Court can consider the witnesses': demeanor, whether their testimony is fair and descriptive, their ability to personally witness or know the facts about which they testify, and any basis or interest they may have concerning the nature of the case.
III. Discussion.
The criminal mischief statute, 11 Del. C. § 811, requires the State to prove the value of the damage to the property as an element of the offense, regardless of whether the value of the property is more than one thousand dollars ($1,000) or less than one thousand dollars ($1,000).
The relevant portions of 11 Del. C. § 811 are as follows:
(a) A person is guilty of criminal mischief when the person intentionally or recklessly:
(1) Damages tangible property of another person; or . . . .
(b) Criminal mischief is punished as follows:
Black's Law Dictionary defines "pecuniary loss" as a "loss of money or of something having monetary value." The Delaware Criminal Code defines "value" as "the market value of the property at the time and place of the crime, or if that cannot be satisfactorily ascertained, the cost of replacing the property within a reasonable time after the crime." Whether the damage caused by the criminal mischief is one hundred dollars ($100) or ten thousand dollars ($10,000), the result is the same—the victim's property is devalued and pecuniary loss results. The State's argument that the vehicle is less valuable when damaged because the vehicle was not damaged before the alleged criminal mischief is obvious and unhelpful.(1) Criminal mischief is a class G felony if the actor intentionally causes pecuniary loss of $5,000 or more, or if the actor intentionally causes a substantial interruption or impairment of public communication, transportation, supply of water, gas or power, or other public service;
(2) Criminal mischief is a class A misdemeanor if the actor intentionally or recklessly causes pecuniary loss in excess of $1,000;
(3) Otherwise criminal mischief is an unclassified misdemeanor. . . .
BLACK'S LAW DICTIONARY at 964 (8th ed. 2004).
11 Del. C. § 224. The Delaware Supreme Court has previously relied on section 224 in its analysis of section 811. See generally Scott v. State, 633 A.2d 371 (TABLE) (Del. Nov. 1, 1993).
See 11 Del. C. § 4106 ("[a]ny person convicted of . . . defacing or destroying property, shall be liable to each victim of the offense for the value of the property.").
R. at 87-88 ("MS. WARNER: Well, we have the proof of damage in the photographs and the testimony of Officer Rosario that the vehicle was damaged. . . . THE COURT: That shows damage. MS. WARNER: It shows damage and damages. THE COURT: The pictures don't show pecuniary loss, though, right? MS. WARNER: They don't show a certain number but I would think that it is common knowledge that a vehicle with a dent in the hood is worth less than one without it all things being equal." (emphasis added)).
Because the statute is poorly drafted, logic requires the showing of a pecuniary loss below one thousand dollars ($1,000) under (b)(3). The doctrine of "strict construction" applies when a penal statute is vague. The doctrine liberally construes any statutory ambiguity in the defendant's favor. The rationale underlying the doctrine is that the State, not the defendant, should be held accountable when the legislature poorly articulates its intent.
State v. Sharon H., 429 A.2d 1321, 1328 (Del. Super. 1981).
Id.; State v. Ross, 50 A.2d 410, 411 (Ct. Gen. Sess. 1946).
Sharon H., 429 A.2d at 1328.
The State failed to introduce any estimates from a repair shop, written appraisals, invoices, or receipts of the repairs performed. Officer Rosario's guesses are insufficient to support the value of eight hundred dollars ($800). Not only does the price seem astronomical, but Officer Rosario was less than certain as to what the repair would cost. He was not even sure if the New Castle County Police Department had repaired the dent to the hood. And while a property owner can estimate the economic value of its property, the owner of the vehicle, the New Castle County Police Department, did not provide an estimate at trial to the purchase price of the vehicle, cost to the department to repair the vehicle, or provide an estimate of the damage to the vehicle's hood. In the interest of justice, this Court cannot find that the State met its burden of proof beyond a reasonable doubt.
See Ligon v. Brooks, 196 A. 200, 200-01 (Del. Super. 1937); see also Davis v. State, 453 A.2d 802, 803 (Del. 1982).
The State argued at trial that it was only required to show "damage" under (b)(3), yet the Court is unpersuaded that the drafters intended (a)(1) to only require the showing of damage without specifying a sum certain at trial. If the State was correct, then neither (b)(1) nor (b)(2) would require a showing of a sum certain if only "damage" was required under section 811. To single out b(3) is to manipulate the doctrine of statutory interpretation. That is, if the statute only requires evidence of "damage" under (a)(1), then all of (b) would only be applicable for the restitution hearing, which is not the State's position.
R. at 83, 89.
The State's position that only (b)(1) and b(2) are required elements of criminal mischief and applicable at a restitution hearing, while b(3) is only applicable at the restitution hearing, is misguided. The statute does not indicate that b(3) is distinct in this regard. Defendant's position that (b)(3) does not indicate either "damage" or "pecuniary loss" because it was drafted as a catch-all provision for unclassified misdemeanor charges is a more logical conclusion. The drafters' intent for section 811 is that any value below one thousand dollars ($1,000) must be proven at trial beyond a reasonable doubt, yet—when it is proven it—will be charged as an unclassified misdemeanor.
Contra State of Delaware's Brief in Support of Its Position Pecuniary Loss Is Not An Element Of 811(a)(1) Which Must Be Proven Beyond A Reasonable Doubt at 3-4. Criminal offenses that explicitly denote pecuniary loss amounts also proceed to restitution hearings. See Benton v. State, 711 A.2d 792, 795-96 (Del. 1998) (the value amounts required to prove felony theft could be exceeded for establishing amount defendant owed during a restitution hearing).
R. at 86-87.
The Court has found no legislative history contrary to its position. The State argues that the drafters intended differently, but provides no legislative documents to the contrary. The legislative history that Defendant did provide is in accord with the Court's analysis.
Amidst its "dearth of case law," the State points to State v. Carter to persuade the Court that the value of the damage for an unclassified misdemeanor is only applicable during the restitution hearing. However, this case is inapposite because of a special procedural posture—defendant pled guilty and as a "special condition of probation," defendant was required to pay restitution to the victim as determined by the court. Thus, Carter did not address the issue before this Court, which requires this Court to determine the relationship between proving an element of an offense and the lower burden of calculating restitution at the restitution hearing.
State v. Carter, 2002 WL 1492278 (Del. Com. Pl. June 27, 2002).
State of Delaware's Brief at 3.
Id. at *1.
While it is unclear what established that the criminal mischief was less than one thousand dollars ($1,000) at trial, the victim had written proof as to what the damage cost her at the restitution hearing, insinuating that plaintiff produced written proof at trial. Id. at *1. This is supported by defendant arguing that plaintiff could not include the cost to repair a scratch on tier car under restitution since plaintiff did not prove that cost at trial. Id. at *1-2.
The State concludes its supplemental brief by calling the Court's attention to the Delaware Supreme Court case of Locke v. State. The State argues that Locke proves 11 Del. C. § 811(b)(3) does not require proof of a sum certain at trial because the Supreme Court "upheld [a] Criminal Mischief conviction[] wherein no evidence of pecuniary loss was introduced beyond the fact that a door was kicked in." The State is correct that Locke did not address why the Supreme Court upheld the criminal mischief conviction, but that is the end of the Court's analysis. The Supreme Court provided no reasoning on the issue before this Court. According to the State's logic, Locke's lack of analysis could support any position. This Court cannot agree with such obtuse reasoning.
Locke v. State, 911 A.2d 803 (TABLE) (Del. Oct. 31, 2006).
State of Delaware's Brief at 3. This case diverges from State v. Wood where the police officer testified to a solid estimate that damage to dry wall caused by a slamming door was one-hundred dollars ($100). State v. Wood, 931 A.2d 1008, 1009 (Del. Fam. Ct. 2007).
Locke, 911 A.2d at *2. The Delaware Supreme Court also did not provide its reasoning behind whether the State proved its charge of theft over one thousand dollars ($1,000) beyond a reasonable doubt. Id.
Moreover, if one analyzes the restitution statute, 11 Del. C. § 4106, it is clear that—although the restitution hearing can consider a myriad of costs to a victim beyond the trial court's findings—the statute expressly assumes that the "value of the property" will be established at trial. In arguing to the contrary, the prosecution confuses the distinction between satisfying the elements and proving what restitution is owed to the victim, as the latter is often more expansive. Likewise, the State accurately notes that the "value" of the property is important for restitution purposes; however, again, that is not the issue in the present case.
11 Del. C. § 4106 ("[a]ny person convicted of . . . defacing or destroying property, shall be liable to each victim of the offense for the value of the property").
Benton v. State, 711 A.2d 792, 796 (Del. 1998) ("[Appellant's] contention disregards the legal distinction between evidence that is either relevant or necessary to establish the elements of an offense at a criminal trial and evidence that is admissible at a hearing to determine the appropriate amount of restitution."). The Delaware Supreme Court found no error with the Superior Court calculating a higher restitution amount than the theft statute required be proven to satisfy the elements of the crime. Id. at 796-97.
State of Delaware's Brief at 3-4.
This is not a case where the defendant has pled guilty to criminal mischief and the amount of restitution is ordered to be determined at a restitution hearing. See State v. Bruce, 2014 WL 1949245, at *1 (Del. Com. Pl. Apr. 14, 2014). --------
IV. Conclusion.
Because the State has failed to meet its burden of proving the elements of the crime at trial, the Court finds Defendant NOT GUILTY of the unclassified misdemeanor charge of Criminal Mischief.
/s/_________
John K. Welch, Judge