Opinion
ID. Nos. 0307022941A, 0307022946.
Submitted: April 3, 2004.
Decided: May 25, 2004.
Upon Consideration of Defendants' Motion for Judgment of Acquittal.
DENIED.Dennis Kelleher, Esq., Department of Justice, Dover, Delaware. Attorney for the State.
Beth D. Savitz, Esq., Hudson, Jones, Jaywork Fisher, Dover, Delaware. Attorney for Defendant Fletcher.
Sandra W. Dean, Esq., Dover, Delaware. Attorney for Defendant Priest.
ORDER
Upon consideration of the defendants' motions for judgment of acquittal, the State's response, and the record of the case, it appears that:
1. The defendants, Marvin Fletcher ("Fletcher") and Toshiro Priest ("Priest") were tried together on the following charges: Count 1 — Trafficking in Cocaine; Count 2 — Possession of a Firearm During the Commission of a Felony (the underlying felony being Trafficking in Cocaine as alleged in Count 1); Count 3 — Possession With Intent to Deliver a Narcotic Schedule II Controlled Substance; Count 4 — Possession of a Firearm During the Commission of a Felony (the underlying felony being Possession with Intent to Deliver as alleged in Count 3); Count 5 — Receiving Stolen Property; Count 6 — Maintaining a Vehicle for Keeping Controlled Substances; Count 7 — Possession of a Firearm During the Commission of a Felony (the underlying felony being Maintaining a Vehicle for Keeping Controlled Substances as alleged in Count 6); Count 8 — Tampering with Physical Evidence; Count 9 — Carrying a Concealed Deadly Weapon; Count 10 — Conspiracy in the Second Degree (conspiracy to commit the offense of Possession with Intent to Deliver as alleged in Count 3); and Count 11 — Possession of Drug Paraphernalia.
2. Both defendants were indicted as principals on all counts. As the evidence unfolded at trial, however, it became apparent that the State was proceeding on the theory that each defendant was a principal as to some charges and an accomplice of the co-defendant as to others. Briefly, the evidence showed that Fletcher asked Deborah Powell to drive Priest and him from Manchester Square to the Bob Evans restaurant in Dover. Deborah Powell was a co-defendant who, pursuant to a plea agreement, testified during the State's case at trial. Fletcher rode in the front passenger seat. Priest rode in the back seat behind the driver. At the Bob Evans restaurant, Fletcher went into the restaurant for a short period of time while Powell and Priest waited in the car. Based upon information provided by an informant, police were conducting surveillance of Powell's vehicle and its occupants. After observing that Powell failed to signal a turn after pulling out of Bob Evans restaurant, the police stopped her vehicle. A search revealed 18.8 grams of cocaine in the glove compartment of the car and a weighing scale in an open compartment on the inside of the passenger door. It also revealed that Priest was sitting on a handgun. The handgun had been stolen from a sporting goods store in Smyrna. Powell gave testimony from which the jury could conclude that Fletcher had the drugs and scale in his possession and put them in the glove compartment and door compartment, respectively, after the police stopped her vehicle. Powell testified that after the police stopped her vehicle, Fletcher suggested to Priest, who was in possession of the gun in the back seat, that he better run.
3. Defendant Fletcher was acquitted on Count 5 — Receiving Stolen Property, but convicted by a jury on all other counts. Defendant Priest was acquitted on Count 1 — Trafficking in Cocaine and Count 3 — Possession with Intent to Deliver a Narcotic Schedule II Controlled Substance, but convicted on all other counts, including the two counts of Possession of a Deadly Weapon During the Commission of a Felony for which Counts 1 and 3 were the underlying felonies. Both defendants have moved for judgment of acquittal as to the counts upon which they were convicted.
4. Priest contends that he cannot be convicted of the charges of Possession of a Firearm During the Commission of a Felony under Counts 2 and 4 because he was acquitted of the underlying felonies. It is well settled, however, that a conviction for Possession of a Firearm During the Commission of a Felony may be valid notwithstanding the defendant's acquittal on the predicate felony. Before sustaining a conviction on the weapons charge, however, the Court must satisfy itself that the evidence in support of the conviction is sufficient. Based upon the testimony of Powell and the attendant circumstances, I find that the jury could conclude that Fletcher and Priest were acting in concert with regard to transporting the drugs on that occasion. I also find that the evidence was sufficient to support a conclusion that Priest was aiding and abetting Fletcher in possessing 18.8 grams of cocaine and in possessing it with the intent to deliver.
Brown v. State, 729 A.2d 259 (Del. 1999); see also Tilden v. State, 513 A.2d 1302, 1306 (Del. 1986); State v. Hodges, 1999 Del. Super. LEXIS 24; State v. Mintz, 1993 Del. Super. LEXIS 491, at *11 (It is not necessary that a defendant be convicted of an underlying felony in order to be convicted of PDWDCF) citing Brooks v. State, 367 A.2d 638 (Del. 1976).
Tilden 513 A.2d at 1307; see also State v. Nickerson, 1997 Del. Super. LEXIS 586.
6. Defendant Fletcher contends that he cannot be convicted of any of the counts of Possession of a Firearm During the Commission of a Felony or Carrying a Concealed Deadly Weapon, relying on State v. Mack. Based upon all of Powell's testimony and the attendant circumstances, however, I find that the evidence was sufficient to support a conclusion that Fletcher was aware that Priest was in possession of a firearm and guilty at least on an accomplice liability theory on all of the firearm charges.
312 A.2d 319 (Del. 1973).
7. The defendants also contend that they cannot be convicted of Maintaining a Vehicle for Keeping (or delivering) Controlled Substances or Possession of a Firearm during the commission of that felony. They point to the evidence that the vehicle belonged to Powell. There was evidence, however, that initially Fletcher asked Powell whether he could borrow her car. Powell testified that she insisted on driving her vehicle, rather than lending it to Fletcher, under the expectation that she would be given a small quantity of cocaine in exchange for driving Fletcher and Priest to Bob Evans restaurant and back. Nothing in the statute requires that the defendant be the owner of the vehicle in question in order to be convicted of Maintaining a Vehicle for Keeping Controlled Substances. There was evidence that the sole purpose for Fletcher and Priest being in the vehicle on the occasion was to facilitate drug activity. I find that the evidence is sufficient to sustain the convictions of both defendants for Maintaining a Vehicle for Keeping (or delivering) Controlled Substances and Possession of a Deadly Weapon during the commission of that felony, either as a principal or an accomplice.
16 Del. C. § 4755(a)(5); Watson v. State, 2000 Del. LEXIS 258, at *6 (Proof of a single incident of transporting drugs in a vehicle meets the statutory requirement) citing Lonergan v. State, 590 A.2d 502 (Del. 1991).
8. I have examined the evidence pertaining to each of the remaining counts and find that there was sufficient evidence to sustain all of the jury's guilty verdicts.
9. Therefore, the defendants' motions for judgment of acquittal are denied.