Opinion
Criminal Action Numbers IN-05-10-1634, IN-05-10-1635, IN-05-10-1639, ID No. 0509002519.
Submitted: August 9, 2006.
Decided: September 25, 2006
Upon Motion of Defend ant for Partial Judgment of Acquittal — GRANTED and Motion for New Trial — MOOT.
Gregory C. Strong, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, attorney for the State.
Brian J. Bartley, Esquire, of Wilmington, Delaware, attorney for the defendant.
MEMORANDUM OPINION
The defendant Bruce Dennison has moved for partial judgment of acquittal or for a new trial. On June 9, 2006, he was convicted of theft felony, theft misdemeanor and conspiracy second degree (the theft felony). His motion relates to the first and third convictions.
His motion is premised on the issue of the value of the merchandise and/or return of merchandise, whether it was over $1000.00 or $1000.00 or less. The statute outlawing theft draws the felony/misdemeanor line at $1000.00 or greater as being the felony. Strangely, however, the indictment alleged the miscellaneous property was valued "in excess of $1,000.00." It did not allege $1000.00 or greater as the statute provides.
11 Del.C. § 841(c)(1).
During the State's case-in-chief, it moved to amend that felony theft count to say $1,000.00 or more. Dennison objected. The Court reserved decision on that motion.
The evidence at trial indicated that, at most the value of the property was $1000.00. At the close of the State's case, Dennison moved to have the theft felony charge reduced to a misdemeanor. The Court denied his motion, without prejudice, and submitted the issue of valuation to the jury.
Part of the evidence consisted of a video tape of a case register area in the Sears store at Prices Corner. While the exact details are not necessary, Dennison was working in concert with a Sears' cashier to buy then return merchandise. Coupons which were needed for each transaction were not used (but were supposed to be torn in part at the time of each transaction). Instead, apparently only one coupon was repeatedly used but not torn to prevent its re-use.
In addition to the videotape, register receipts were placed in evidence.
Based on this evidence, the jury found the value to be greater than $1,000.00. The jury may have noted something missed by the parties enabling it to reach that value. The jury's instructions indicated the felony/misdemeanor dividing line was over $1000.00 or $1,000.00 or less. That line tracked the indictment. The State objected to that instruction and that test to determine valuation. It is, of course, the State which drafted the indictment.
This observation is not a criticism of the jury.
Dennison now renews his motion. He contends there was not enough evidence to support an evaluation finding of more than $1000.00. If so, that would reduce the felony misdemeanor to a misdemeanor. As a result of that reduction, he further asserts the felony conspiracy charge should now become a misdemeanor.
The State's response on the Dennison's motion, as it relates to theft issue, is to concede that the evidence does not support a felony conviction based on the indictment and the necessarily corresponding jury instruction (or even the evidence). Accordingly, the conviction of felony theft in Count I of the indictment is reduced to a misdemeanor theft.
On the other hand, the State argues the felony conspiracy conviction should remain because, in effect, the agreement was to commit a felony. There was no evidence of an explicit agreement, such as e-mails, conversation, or other communications. The actions caught on tape between the cashier and Dennison manifestly prove there was a conspiracy. There is no way the manner of theft here could have happened in the absence of an agreement/conspiracy.
But Dennison's conspiracy charge stated:
CONSPIRACY SECOND DEGREE in violation of Title 11, Section 512 of the Delaware Code of 1974, as amended.
LOUIS CAPOBIANCHI AND BRUCE DENNISON, on or between the 1st day of July and the 31st day of August, 2005, in the County of New Castle, State of Delaware, when intending to promote or facilitate the commission of the felony of Theft, did agree with Louis Capobianchi to engage in conduct constituting said felony and defendant, did commit an overt act in pursuance of said conspiracy.
In short, the conspiracy was to commit a felony and the charged overt act was the felony. There was, as it turned out, no felonious overt act. The statute outlining conspiracy requires the act agreed to be a felony and that the overt act be a felony. The State's case here failed on that second part. Accordingly, Dennison's conviction of conspiracy second degree is reduced to a conviction of the misdemeanor of conspiracy in the third degree.
11 Del.C § 522.
With these dispositions, Dennison's motion for a new trial is moot.
Conclusion
Defendant Bruce Dennison's motion for partial judgment of acquittal is GRANTED. His felony theft conviction will be a misdemeanor theft conviction, and his conspiracy second degree conviction will now be for conspiracy in the third degree. Judgments are entered accordingly. His motion for new trial is MOOT.
Sentencing will be scheduled for October 27, 2006, at 9:30 a.m.