Opinion
I.D. No. 0812020600 JAP.
Submitted: January 25, 2010.
Decided: February 9, 2010.
MEMORANDUM OPINION
The defendant-below was convicted of harassment after a bench trial in the Court of Common Pleas. He now appeals, claiming (1) that the evidence was insufficient to convict him and (2) the trial judge abused her discretion in admitting a duplicate of the harassing note giving rise to this case. For the reasons which follow, this Court finds that Defendant's arguments are without merit and the judgment of the court below will be affirmed.
Defendant Potts and the victim were involved in a long term relationship which ended in June, 2007. Apparently Potts did not handle rejection well. He inundated the victim with unwanted letters even though, beginning at the time of the breakup, she repeatedly told Potts she wanted no contact with him.
The events giving rise to this case began before sunrise on December 30, 2008, when the victim took her dogs for their morning constitutional. The dogs "went crazy" barking and growling at something in the pre-dawn darkness. Amidst the commotion she discovered a note written on a brown paper bag affixed to the windshield of her truck. It read in its entirety:
Hope your holiday was good. Mine sucked without you. Since the last time I talk to you I have 2 heart attacks fell broke my back. I always knew you would not be there for me anyway. Bad problem is I will go to my grave loving you. It sucks. It is not recipacle.
I love you!!!!
P.S. Please help me because of cancer. I tried to tell you so many times why I had to leave the apt. but you wouldn't talk and ran me over twice.
I really do love you!!!!
Neither Defendant nor the State mentioned the contents of the note in their briefs. Nor did either include a copy in an appendix. The Court was able to locate it, however, in the file transmitted to this Court by the Court of Common Pleas.
According to the victim the note was written in familiar handwriting: it was that of defendant Potts.
1. The sufficiency of the evidence
Potts argues that the evidence was insufficient to convict him. This Court is therefore required to review the record to determine whether any reasonable trier of fact could find Potts guilty beyond a reasonable doubt. Potts does not dispute that, under the circumstances, the note could constitute harassment. Instead he argues that the evidence was insufficient because (a) no one saw him place the note on the truck and (b) there is no evidence that he wrote the note after the victim asked him not to contact her. His arguments are without merit.
Harassment is defined by the criminal code as:
A person is guilty of harassment when, with intent to harass, annoy or alarm another person [that person] communicates with a person by telephone, telegraph, mail or other form of written communication or electronic communication in a manner which the person knows is likely to cause annoyance or alarm. . . . 11 Del.C. § 1311(a)(2).
Potts points to the victim's testimony that she did not see him place the note on her truck, and from this he argues that there was insufficient evidence to convict him. His argument fails because there is no requirement that the State prove his guilt by direct testimony. The Delaware Supreme Court "has consistently held that the State may prove a defendant's guilt exclusively through circumstantial evidence."
Winer v. State, 950 A.2d 642, 646 (Del. 2008).
The circumstantial evidence shows beyond a reasonable doubt that Potts was the author of the note and either placed it, or caused it to be placed, on the victim's truck. There is no doubt that Potts was the author of the note. It refers to an event which occurred at the end of the relationship and thus must have been written by someone with knowledge of the details of that relationship. More importantly, the victim testified the handwriting on the note was Potts'. A reasonable trier of fact could therefore conclude beyond a reasonable doubt that Potts authored the note.
In this appeal Potts does not contest the victim's authentication of his handwriting. Nonetheless, the Court notes in passing that the genuineness of handwriting can be proved by a non-expert witness familiar with that handwriting so long as the witness did not acquire that familiarity for purposes of the litigation. D.R.E. 101(b)(2); Smith v. State, 902 A.2d 1119 (Del. 2006).
In a similar vein, there is no reasonable doubt that Potts delivered or caused to be delivered the note to the victim. The content of the note clearly shows it was intended for the victim thus ruling out the possibility it was placed on her truck by mistake. Moreover numerous previous notes in Potts' handwriting had been left on the windshield of the victim's truck. A reasonable trier of fact could easily conclude, therefore, that its author Potts either placed the note on the victim's truck or caused it to be placed there.
Potts also argues that the note was undated and therefore it could have been written before the victim told him she wanted no further contact from him. He misapprehends the nature of his crime. Potts was not convicted merely because he wrote the note. Rather it was the delivery of the note which caused the victim annoyance and alarm and thus constituted the crime. The evidence overwhelmingly shows that the note was delivered sometime on the night of December 29-30, eighteen months after the victim first told Potts she no longer wanted any contact with him. The absence of a date on the note is therefore of no consequence whatsoever.
Although the note is not dated, it is readily apparent from its contents that it was written sometime between Christmas and its delivery on the night of December 29-30. The note begins "Hope your holiday was good. Mine sucked without you." Moreover the note refers to events — such as Potts' heart attacks and a broken back occurring in an industrial accident on November 5, 2008 — which post date the June, 2007 breakup. There was more than ample evidence, therefore, to show that the note was written after the victim told Potts she wanted no contact from him.
2. The trial court's admission of a duplicate copy of the note
Relying exclusively on D.R.E. 1002 ("Requirement of Original"), Potts argues that the trial judge abused her discretion when she admitted a duplicate of the note. His exclusive reliance upon Rule 1002 is perplexing because D.R.E. 1003 ("Admissibility of Duplicates") is manifestly the controlling rule here, and it is the rule upon which the trial judge relied in admitting the note.The best evidence rule is embodied in D.R.E. 1002, which prohibits secondary evidence of the contents of a document but which also allows for exceptions, including the admission of a duplicate document instead of the original. Rule 1002 provides in its entirety:
To prove the content of a writing, recording or photograph, the original writing, recording or photograph is required, except as otherwise provided in these Rules or by statute.
D.R.E. 1002 (emphasis added).
One of the primary exceptions to rule 1002 is rule 1003, which allows for the admission of duplicate copies of documents. That rule provides:
A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original, or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.
It is the latter rule, not rule 1002, which controls the issue in this matter.
Save for quoting without explication rule 1003 in a footnote, Potts does not provide any explanation why the trial judge abused her discretion when she admitted the duplicate. Nor does he supply any citation to pertinent legal authority. He offers instead a hodge-podge of unsupported legal assertions such as: the State bears the burden under the rules of proving the unavailability of the document; and the duplicate should not have been admitted because it "was admitted to prove the truth of its contents" The absence of any citation to legal authority is fatal to his arguments. This Court has frequently stated that it will not do counsel's work for him or her, and that it will summarily deny relief when counsel makes no effort to present a reasoned argument supported by legal authority. For this reason this alone Court will summarily affirm the Court of Common Pleas on this issue.
Potts cites only Day v. State, 297 A.2d 50 (Del. 1972) with no explanation as to its significance. Day did not involve the admission of a duplicate. It is of some note that Day was decided eight years before the Delaware Rules of Evidence were promulgated.
The State in fact presented a reasonable explanation why the original was not brought to trial. The Court further notes that a copy of the note was provided to defense counsel in advance of trial and at no time during the trial did Defendant challenge the accuracy of the photocopy.
Appellant's Br., at 8. The document was manifestly not introduced to prove the truth of its contents. Whether Potts' holiday indeed "sucked" or that he had two heart attacks and a broken back was of no moment in the Court of Common Pleas.
Jubb v. Dougherty, 2010 WL 339860 (Del. Super.); State v. Selby, 2009 WL 5193455 (Del. Super.); Novkuvic v. Paxson, 2009 WL 659075 (Del. Super.); Gonzalez v. Caraballo, 2008 WL 4902686 (Del. Super.)
This is not to suggest that the Court has trepidations about the trial judge's ruling. To the contrary, it appears she acted well within her discretion.
For the foregoing reasons the judgment of the Court of Common Pleas is AFFIRMED.