Opinion
I.D. No. 0309011756.
Submitted June 18, 2004.
Decided August 4, 2004.
Upon Defendant's Motion for Judgment of Acquittal and Motion for New Trial.
DENIED.
ORDER
On May 14, 2004, Defendant Dean Carter was convicted of Possession with Intent to Deliver, Maintaining a Dwelling Used for Keeping or Delivering Controlled Substances, Possession of a Firearm During Commission of a Felony, Possession of a Deadly Weapon by a Person Prohibited, Possession of Ammunition by a Person Prohibited, and Possession of Drug paraphernalia.
It is undisputed that a controlled substance (marijuana), a firearm, ammunition, and plastic sandwich bags were found in a room in which Defendant was present. The small room clearly was a bedroom, as opposed to a common area in the house. Defendant has moved for judgment of acquittal on the grounds that Defendant was merely present in the room and no evidence was presented establishing that Defendant lived in the room or otherwise had control of the items found. Additionally, Defendant claims that there was insufficient evidence to establish intent to deliver based solely on the quantity of marijuana found.
When considering a motion for judgment of acquittal, the trial judge must consider the evidence and all legitimately drawn inferences from the point of view most favorable to the state. The motion may be granted only if the state has failed to present sufficient evidence to sustain a guilty verdict. At the close of the evidence, Defendant moved for judgment of acquittal. The Court found that the state had presented sufficient evidence supporting a verdict of guilty and denied the motion.
Super. Cr. Crim. R. 29; Vouras v. State, 452 A.2d 1165, 1169 (Del. 1982).
Defendant was found in the bedroom at approximately 2:00 a.m. Defendant was the only person in the room and the odor of marijuana smoke emanated from the room. Men's clothing was found in the room. Defendant's identification card and a bank statement were found on the dresser next to the bed. The firearm was found under the bed. The marijuana and sandwich bags were found under the bed in a shoe box. The ammunition was found in a knapsack under the bed. Defendant claimed ownership of fireworks that also were found in the knapsack. When the officer had difficulty securing the firearm, Defendant demonstrated familiarity with the weapon by stating that the "clip has to be in."
The state presented expert testimony on the charge of possession with intent to deliver. The expert was qualified in the area of distribution of controlled substances. He testified, based upon his training and experience, that 96 grams of marijuana found with empty sandwich bags and bags filled with marijuana indicated that the marijuana was prepared for distribution.
See Morales v. State, 696 A.2d 390, 394 (Del. 1997) (intent to deliver established by expert testimony).
Defendant asserts reversible error with regard to two jury instructions. First, the Court declined to give an instruction on "mere presence." Second, Defendant argues that the jury instruction on possession of ammunition by a person prohibited should not have included the language: "Any person having been convicted in this State or elsewhere of a felony or crime of violence involving physical injury to another. . . ."
The trial court has wide latitude in selecting jury instructions. A defendant does not have a right to any specific instruction. An instruction is proper if it is a correct statement of the substance of the law. The decision of a trial court to give or not to give a particular instruction will not be disturbed so long as the instructions, taken as a whole, are reasonably informative and not misleading, as judged by common practices and standards of verbal communication.
Miller v. State, 224 A.2d 592, 596 (Del. 1966).
Floray v. State, 720 A.2d 1132, 1137 (Del. 1998).
The Court deemed the separate "mere presence" instruction unnecessary. The jury instructions on the definition of possession and constructive possession were reasonably informative and clearly explained the concept that possession cannot be found unless the objects are within Defendant's reasonable immediate control. The Court specifically instructed that possession does not mean "merely that the weapon may have been in the area or vicinity of the defendant so that it might have been taken possession of if the defendant wanted to do so."
The instruction given on the charge of possession of ammunition by a person prohibited is a correct statement of the law. The instruction does not refer to Defendant's specific criminal record. The Court granted Defendant's request to redact certain language from the counts in the indictment provided to the jury. The language to which Defendant objects was not prejudicial to Defendant considering the jury instructions in totality.
THEREFORE, the Court, having considered the evidence presented at trial and all legitimately drawn inferences from the point of view most favorable to the state, finds that the state has presented sufficient evidence to sustain a guilty verdict. Defendant's Motion for Judgment of Acquittal is hereby DENIED. The jury instructions, taken as a whole, were reasonably informative, not misleading, and were correct statements of the substance of the law. The interests of justice do not require a new trial. Defendant's Motion for New Trial is hereby DENIED.
See Super. Ct. Crim. R. 33.