Opinion
ID. No. 0705006983.
Submitted: October 16, 2007.
Decided: November 9, 2007.
Upon Defendant's Motions for Judgment of Acquittal and Arrest of Judgment.
DENIED.Donald R. Roberts, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Kester I. H. Crosse, Esquire, Assistant Public Defender, Office of the Public Defender, Wilmington Delaware, Attorney for Defendant.
ORDER
This 9th day of November, 2007, upon consideration of Defendant's Motions for Judgment of Acquittal and Arrest of Judgment, it appears to the Court that:
1. On June 30, 1998 the Family Court of New Castle County adjudicated Defendant delinquent of the offense of Indecent Exposure Second Degree (11 Del. C. § 764). He was 15 years old at the time. As part of Defendant's sentence, the Family Court required Defendant to register as a sex offender pursuant to 11 Del. C. § 4120. At that time, the statute required any person convicted of Indecent Exposure Second Degree to register as a sex offender. However, the General Assembly subsequently amended this statute, effective March 1, 1999, to provide that a person convicted of Indecent Exposure Second Degree need register as a sex offender only if that person had 1) previously been convicted of Indecent Exposure Second Degree, or 2) previously been convicted of another enumerated sex offense.
2. Defendant has filed a Motion for Judgment of Acquittal under Superior Court Criminal Rule 29, and a Motion for Arrest of Judgment under Superior Court Criminal Rule 34. In ruling on a motion for Judgment for Acquittal, all possible inferences are considered from the point of view most favorable to the State. It is only where the State has offered insufficient evidence to sustain a verdict of guilt that such a motion will be granted. Rule 34 provides that "[t]he court on motion of a defendant shall arrest judgment . . . if the court was without jurisdiction of the offense charged."
State v. Biter, 119 A.2d 894, 898 (Del.Super.Ct. 1955) (holding that "[i]n passing upon [a Motion for Judgment of Aquittal], the evidence, together with all legitimate inferences therefrom, must be considered from the point of view most favorable to the State").
Id., at 899.
3. On September 27, 2007 Defendant was convicted after a jury trial of Failing to Register as a Sex Offender (11 Del. C. § 4120). The jury essentially found that Defendant had failed to register his new address, as he was required to do, within seven days after he had moved from 311 Fleming Landing Road, Townsend, Delaware sometime between April 9, 2007 and May 11, 2007. At trial, the State presented the testimony of a probation officer and of a state police officer assigned to the "Sex Offender Unit." The state police officer testified that Defendant had failed to register his new address after moving from the Townsend, Delaware address, and that the state police officer found Defendant in Cecil County, Maryland. The State did not present a custodian of records from the Delaware State Police to testify that Defendant was, according to State Police records, a duly registered sex offender.
Among other duties, Sex Offender Unit Officers apparently visit the registered addresses of sex offenders to ensure that they are in fact residing at that address.
4. Defendant's first contention in the post-trial motions is that the Court lacked jurisdiction to convict Defendant of Failing to Register as a Sex Offender (a contention not raised at trial). Defendant argues that Defendant was required by Family Court in 1998 to register under § 4120 since he had not previously been convicted of an Indecent Exposure Second Degree offense, or of any of the other enumerated offenses. Defendant cites § 4120 in its current form, as amended on March 1, 1999. However, under the statute as it existed at the time of Defendant's 1998 conviction for Indecent Exposure Second Degree, Defendant did indeed qualify to be registered as a sex offender. The General Assembly did not make the 1999 amendment to § 4120 retroactive, nor did it expressly repeal the original statute. Thus, the 1999 amendment did not change Defendant's continuing status as a qualifying sex offender at the time of his 1998 Family Court adjudication of delinquency. Defendant's first claim is without merit.
The Court also notes that Defendant pleaded guilty on April 9, 2007 to a separate charge for Failure to Register as a Sex Offender (ID# 0608016710), also stemming from the original incident.
5. Defendant's second contention is that the State did not make out a prima facie case. Defendant correctly maintains that in order to make out a prima facie case for the offense the State must show 1) that a defendant is a sex offender, and 2) that his or her registered address was incorrect. Defendant claims that testimony offered by the State, including testimony of the records of the Delaware State Police, establishing these elements constituted inadmissible hearsay, since it was based on "factual findings offered by the government in a criminal case," in violation of D.R.E. 803(8). The Court finds Defendant's claim to be without merit.
6. First, if no objection to testimony is timely raised at trial, then a later claim of error is deemed waived. Since no objection was raised to this testimony at trial, the testimony of the probation officer and state police officer was competent testimony, and that testimony sufficiently established these elements of the offense.
Craig v. State, 457 A.2d 755 (Del. 1960); D.R.E. 103(a).
7. Second, it does not appear to the Court that the Court would have otherwise ruled this testimony inadmissible hearsay. Based on Court records and registration documents, both the probation officer and the state police officer knew that Defendant had been convicted of Indecent Exposure Second Degree. Furthermore, Defense counsel, in his opening statement, told the jury of Defendant's 1998 conviction of Indecent Exposure in the Second Degree. Particularly, the testimony regarding Defendant's registered address was not hearsay. A "Probation Intake form" was properly presented as part of the routine file maintained by the testifying probation officer. This file contained Defendant's registered address. The state police officer testified that the records of the Delaware State Police, as provided by the Probation Office, listed Defendant's registered address as 311 Fleming Landing Road, Townsend, Delaware. Defendant's objections go to the weight of the evidence, not its ultimate admissibility. For these reasons, Defendant's second claim is without merit.
8. Finally, Defendant argues that certain "prosecutorial misconduct" deprived Defendant of his right to a fair trial. Defendant claims that the State's reference in the State's closing argument to Defendant's prior conviction in April, 2007 for Failure to Register as a Sex Offender was prejudicial to Defendant. Defendant's counsel acknowledges that he did not object to the State's comments. Notably, however, and as the State points out, in his cross-examination of a State's witness, Defendant's counsel brought out the fact that Defendant was on probation for a prior Failure to Register as a Sex Offender conviction. Defendant thus "opened the door" for that evidence to be properly commented on by the State. Therefore, Defendant's final claim is without merit.
See Hooks v. State, 416 A.2d 189, 204 (Del. 1980) (holding that a prosecutor is allowed and expected to explain all the legitimate inferences of a defendant's guilt that flow from the evidence). This Court also notes that the fact of Defendant's probation for a prior conviction of the same offense may well have been admissible pursuant to D.R.E. 404(b) in that it would have tended to show that Defendant "knowingly or recklessly fail[ed] to comply," one of the elements of the crime, but as no objection was raised at the time, the Court did not then undertake to analyze the issue under D.R.E. 404(b) and need not do so now.
9. For the reasons stated, Defendant's motions for Judgment of Acquittal and Arrest of Judgment are DENIED. Sentencing will proceed as scheduled on November 16, 2007 at 9:30 a.m.
IT IS SO ORDERED.