Opinion
CIVIL ACTION NUMBERS 99A-04-009-JOH, 99A-04-010-JOH.
Submitted: August 30, 1999.
Decided: December 8, 1999.
Upon Appeal from a Decision of the Court of Common Pleas — DISMISSED . Petition for Writ of Certiorari — GRANTED .
Joseph R. Slights, III, Esq., and Ricardo Palacio, Esq., of Morris, James, Hitchens Williams, attorneys for plaintiff in error and defendant below-appellant Saeed Hassan.
R. David Favata, Esq., Deputy Attorney General, Department of Justice, for defendant in error and plaintiff below-appellee State of Delaware.
MEMORANDUM OPINION
Saeed Hassan was convicted in the Court of Common Pleas of offensive touching. He was sentenced to pay a fine of one hundred dollars and a victim's compensation assessment of 18 percent ($18) but no term of imprisonment was imposed. He has filed two actions in this Court seeking review of that conviction claiming that in making his decision, the trial judge neglected to specifically state the presence of one of the elements of the crime of offensive touching.
One of Hassan's actions in this Court is a direct appeal. The other is a petition for writ of certiorari. This Court does not have jurisdiction over his appeal. To be appealable, the fine had to be in excess of one hundred dollars. Since he received a fine below that threshold, he cannot appeal his conviction.
State v. Waters, Del.Super., 128 A.2d 556, 556 (1956).
The imposition of the victim compensation assessment does not make Hassan's conviction appealable. Brookens v. State, Del.Supr., 466 A.2d 1218, 1219 (1983).
Hassan did not acknowledge, as the Court believes he should, that he did not have the right to this appeal. Presumably, however, he filed a petition for writ of certiorari because he knew he could not appeal. Since he does not offer one, there is no other explanation for filing the petition. Regrettably, the State did not raise this significant jurisdictional defect in defending the conviction below.
The writ of certiorari provides a means of limited review of actions in the Court of Common Pleas. It is "merely a procedure for securing limited review of lower court decisions." It is a means for reviewing jurisdictional matters, errors of law or irregularities of proceedings which
Shoemaker v. State, Del.Supr., 375 A.2d 431, 438 (1977).
Goldstein v. City of Wilmington, Del.Supr., 598 A.2d 149, 152 (1991).
appear on the face of the record.
Id.
Hassan does not argue that the evidence was insufficient to support his conviction. A writ of certiorari would not allow him to do that. He claims, instead, that the writ enables him to get review in this Court of the trial judge's failure to make a specific finding that Hassan knew his intentional touching was likely to cause offense or alarm to the victim. The State argues that certiorari is not a means of reviewing the trial judge's finding.
Shoemaker, 375 A.2d at 437.
The real issue is whether this trial judge's transcribed findings are within the meaning of "record" reviewable by certiorari. There is no clear answer. The Court has examined Woolley. The "record" in this case, of course, includes the transcript of the trial testimony but that is outside the reviewable record on certiorari for these purposes. The same transcript includes the trial judge's findings and that is part of the record. What is a "record" reviewable by certiorari, however, has only been broadly defined. Further, what Woolley may have considered as the "record" in 1906 has changed.
1 Victor B. Woolley, Woolley's Practice in Civil Actions §§ 894-902 (1906).
The case providing the most guidance in resolving whether the transcript of the trial judge's findings constitute a reviewable record is Matter of Butler. The record reviewed in Butler was a Superior Court written, docketed order confirming a verbal criminal contempt finding. The Supreme Court found that order did not meet the requirements of Superior Court Criminal Rule 42 (a) In this case, this Court is asked to determine whether the trial judge's findings satisfy all of the elements of the statute. By analogy with Butler, this Court holds that the trial judge's transcribed findings constitute a "record" reviewable by certiorari.
Del.Supr. 609 A.2d 1080 (1992).
Id. at 1082.
In finding Hassan guilty of offensive touching, the trial judge stated:
The defendant is charged with the crime of offensive touching. Specifically, on the 30th of June, 1998, intentionally touched [the victim] with a member of his body, knowing that he was thereby likely to cause offense or alarm to that person. The statute requires, in order for a conviction, for the State to prove the essential elements involved in offensive touching there must be an intentional touching.
In this case, the statute provides that a person does an intentional act when it's the conscious object to engage in conduct or to cause that result. Here there is no issue of an accidental touching, so, as far as the trier of facts is concerned, there was an acknowledged touching by the defendant in this case. He described the touching as a tap or a pat in which he did to signify respect to let [the victim] know he was doing a good job.
[The victim]'s reaction to the described touching by the defendant of patting or tapping, [the victim's statement was that it was a smack rather than a touching or a tapping. [The victim] indicates in his testimony that as a result of being hit, or whatever word you want to use, by the defendant, he was startled and surprised.
In this situation, we have an employer who exercises authority over an employee, taking the position of touching an employee. When someone of authority does that, they do so at their peril, especially when someone approaches an employee from behind and touches them in any manner without being authorized to do so, as long as that touching is intentional. Here, there is no doubt that it was an intentional act.
The only requirement further for a conviction of offensive touching is that it caused the recipient, in this case [the victim], offense or alarm at the touching. No physical injury is required whatsoever.
The Court finds that the contact was enough to offend or alarm [the victim] and that [the victim]'s reaction to the touching was a reasonable, sensible reaction to an employee having been struck by an employer.
Under the circumstances, the Court is satisfied that all essential elements of the offensive touching charge have been satisfied by the State and he's adjudged guilty.
Trial Transcript (March 30, 1999) at 96-97.
There are three elements to the crime of offensive touching: (1) an intentional touching of another; (2) with a member of one's body or any instrument and (3) knowing that such intentional touching is likely to create offense or alarm to another person. It is the knowing element which the trial judge did not expressly address or find.
"Knowing" is a concept defined by the Criminal Code under "knowingly" as follows:
A person acts knowingly with respect to an element of an offense when:
(1) If the element involves the nature of the person's conduct or the attendant circumstances, the person is aware that the conduct is of that nature or that such circumstances exist; and
(2) If the element involves a result of the person's conduct, the person is aware that it is practically certain that the conduct will cause that result.
The finding, therefore, that a defendant knew his intentional touching of another was likely to cause offense or alarm is a necessary predicate to a conviction of offensive touching. Lacking that express finding in this case, unlike the express finding of the other two elements of this offense, constitutes error. It is error, as noted, reviewable on certiorari.
See Blachowicz v. Pennington, Del.Super., C.A. No. 85C-MY-125, O'Hara, J. (February 17, 1987).
CONCLUSION
For the reasons stated herein the appeal of Saeed Hassan is DISMISSED for lack of jurisdiction. Saeed Hassan's petition for writ of certiorari is GRANTED and the matter is REMANDED to the Court of Common Pleas for a new trial.
IT IS SO ORDERED.