Opinion
No. 86, 1998.
December 30, 1998.
Superior CrA IN97-03-1976, IN97-03-1977, IN97-03-1808 and IN97-03-1809.
AFFIRMED.
Unpublished opinion below.
MICHAEL MUNDAY, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 86, 1998. In the Supreme Court of the State of Delaware. Submitted: December 15, 1998. Decided: December 30, 1998.
Before WALSH, HARTNETT, and BERGER, Justices.
ORDER
This 30th day of December 1998, it appears from the briefs of the parties that:
1. Michael Mundy was indicted by the Grand Jury for: attempted unlawful sexual intercourse second degree (two counts), kidnaping first degree (two counts), unlawful sexual intercourse first degree, and possession of a deadly weapon during the commission of a felony. On November 18, 1998, the jury returned verdicts of not guilty as to Counts I and II of the indictment. Guilty verdicts were returned as to the remaining counts and the defendant was sentenced on January 30, 1998.
2. Mundy in this direct appeal, in effect, claims that the indict ments were illegally vague. The appeal is without merit.
3. The indictments were plain, concise, and definite written state ments of the essential facts constituting the offenses charged. Super. Ct. Crim. Rule 7(c).
4. The defendant never sought a bill of particulars. Super. Ct. Crim. Rule 7(f). State v. DiMaio, Del. Super., 185 A.2d 269 (1962). Nor did he express any concerns about the indictment until the prayer conference at the end of the trial when he objected to a proposed instruction. The instruction was withdrawn and not given.
5. The indictments allege two separate incidents on the same night. During both incidents Mundy sexually assaulted the victim. During closing argument to the jury Mundy argued to the jury that the indictments were unclear as to which incident they covered.
6. In its rebuttal argument to the jury the State explained that Counts I and II dealt with the first incident.
7. We find that no improper argument was made to the jury by the State in answering the arguments made by Mundy and, in any case, there was no prejudice to Mundy. The evidence was overwhelming that Mundy was guilty of the crimes committed during the second incident, as the jury found. Pennell v. State, Del. Supr., 602 A.2d 48, 51 (1991).
NOW, THEREFORE, IT IS ORDERED, that the judgments of conviction of the Superior Court are AFFIRMED.