Opinion
No. 90, 2002
Submitted: October 22, 2002
Decided: January 15, 2003
Court Below: Superior Court of the State of Delaware in and for Sussex County Cr. ID No. 0102003252
Affirmed.
Unpublished opinion is below.
CHARLES W. SIMPERS, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 90, 2002 In the Supreme Court of the State of Delaware. Submitted: October 22, 2002 Decided: January 15, 2003
Before WALSH, BERGER and STEELE, Justices.
BERGER, Justice.
ORDER
This 15th day of January, 2003, on consideration of the briefs of the parties, it appears to the Court that:
1) Charles W. Simpers appeals from his conviction, following a jury trial, of stalking, criminal contempt and breach of release. He argues that: (i) the trial court committed plain error when it merged two counts of stalking into one; and (ii) his criminal contempt conviction must be reversed because the underlying charge that precipitated a no-contact order (which Simpers violated) was nolle prossed. We find no merit to either argument and affirm.
2) At the time of the events in question, Simpers was living in Laurel, Delaware. He regularly rode a bicycle around town collecting bottles and returning them to food stores to recover the deposits. Angel Stevenson worked at a super market in Laurel and saw Simpers when he came to the store. She testified that in July 2000, Simpers gave her a birthday card, although she did not know how he knew it was her birthday. For Christmas, he left a sweatshirt in the back of her truck, even though she told Simpers she did not want his gift.
3) In January and February 2001, Simpers left letters for Stevenson and approached her in the food store in an effort to start up conversation. Stevenson testified that Simpers' approaches made her uncomfortable and that she told him to stay away and leave her alone. Simpers responded by writing another letter.
4) After Stevenson told David Evans, the store manager, about Simpers, Evans confronted Simpers and called the police. Simpers told Evans that he loved Stevenson and that Evans could not do anything about it. The Laurel Police officer who responded to Evans' call told Simpers that he would be arrested if he did not stop pursuing Stevenson.
5) On February 4, 2001, Simpers rode his bicycle past Stevenson's house and Stevenson's father went outside to confront Simpers. Again, Simpers declared his love and said that nobody could do anything about it. Someone in the Stevenson household called the police and this time Simpers was arrested. When Simpers was arraigned, the magistrate ordered that Simpers have no contact with Stevenson either at her residence or place of employment. On March 24, 2001, Simpers left a note and box of chocolates in the back of Stevenson's truck. He was arrested that day.
6) Simpers was indicted on two counts of stalking — one for the period between January 15, 2001, and February 14, 2001, and one for the period between March 1 and March 24, 2001. In addition, Simpers was indicted on charges of criminal contempt and breach of release for violating the February 4, 2001, no-contact order and a no-contact condition of release.
7) At trial, Simpers moved for judgment of acquittal on the second stalking count, arguing that during the March time frame all he had done was to wave at Stevenson several times and leave the chocolates in her truck. The trial court reserved decision and, after Simpers rested, the court suggested that the two stalking counts be merged. Simpers said he had no objection to combining the time frame for the stalking into one charge covering the period from January 15 — March 24, 2001.
8) Notwithstanding Simpers' agreement at the time of trial, he now argues that the joinder of the two stalking charges was "extremely prejudicial." Simpers does not explain, however, how he was prejudiced and, from our review of the record, we find nothing to support Simpers' argument. Since Simpers did not raise this argument in the trial court, we review for plain error, which is error that is "so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process."
Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
There being no identifiable prejudice, we find no plain error.
9) Simpers also argues that his criminal contempt conviction must be reversed.
On February 4, 2001, when the Justice of the Peace no-contact order was entered, it was based on a harassment charge. That charge, however, was nolle prossed before Simpers was indicted on the criminal contempt charge. As a result, Simpers claims that he was denied due process of law. This argument, like his first, is reviewed for plain error.
10) When Simpers was arrested on February 4, 2001, he was charged with stalking and harassment, and the no-contact order related to both charges. Thus, his premise that all of the underlying charges were nolle prossed is incorrect. Moreover, dismissal or acquittal of the underlying charges would not preclude a conviction on the contempt charge because criminal contempt is a separate and distinct offense.
Eaton v. State, 703 A.2d 637, 640 (Del. 1997).
Thus, we find this claim to be without merit.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court be, and the same hereby is, AFFIRMED.