Opinion
ID No. 0809015759.
June 17, 2010.
Upon Defendant's Motion for Judgment of Acquittal Denied.
Kate S. Keller, Esquire. Department of Justice. Wilmington, Delaware.
Anthony A. Figlioga, Jr., Esquire, Figliola Facciolo, Wilmington, Delaware.
Dear Counsel:
A jury found Defendant guilty of Conspiracy Second Degree and not guilty of the underlying felonies, Burglary Third Degree and Theft. Defendant has filed a motion for judgment of acquittal on the grounds that the State presented insufficient evidence on the conspiracy charge and that the jury's verdict is inconsistent. For the reasons stated below, Defendant's motion is DENIED.
Facts
Defendant was charged with Burglary Third Degree, Theft, and Conspiracy Second Degree. The relevant facts presented at trial were as follows: Defendant and William Hall were employees of T.M. Cooper Electric Contractors ("T.M."). At the time of the alleged offenses, Defendant was living in a basement apartment located at the T.M. office. He, along with 4 other people, had a key to T.M's storage shed located at a large job site near Newark.
In July 2008, T.M. discovered that over $1,000 of copper wire was missing from the storage shed, which was later found, striped of its insulated covering, at a recycling yard in Elkton. A surveillance video showed Hall at the recycling plant the morning the wire was discovered missing.
Abbie Hopkins, who was Defendant's girlfriend at the time of the offenses, testified that Defendant told her of his plans with Hall to steal the copper wire from T.M. She also testified that Defendant later told her that he had stolen the wire and that Hall had taken it to a recycling center. Defendant admitted that he was one of the few people who had a key to the storage shed; however, he denied any involvement with the theft of the wire.
On March 8, 2010, after a three day trial, a jury found Defendant guilty of Conspiracy Second Degree. The jury found Defendant not guilty, either as a principal or as an accomplice, of the burglary and theft charges. Defendant has moved for judgment of acquittal on the conspiracy charge on the grounds that (1) the State did not present sufficient evidence of planning and (2) the jury's acquittal of Defendant as an accomplice is inconsistent with their guilty verdict of conspiracy.
Standard of Review
Under Rule 29, the Court "shall order the entry of judgment of acquittal of one or more offenses charged in the indictment . . . if the evidence is insufficient to sustain a conviction of such offense or offenses." When reviewing a motion under Rule 29, the Court must determine "whether any rational trier of fact, viewing the evidence in the light most favorable to the State, could have found the defendant guilty beyond a reasonable doubt."
Pettiford v. State, 2010 WL 891910 (Del. Supr.).
Analysis
Viewing the evidence in the light most favorable to the State, there was sufficient evidence from which a reasonable jury could find Defendant guilty of Conspiracy Second Degree. Pursuant to 11 Del. C. § 512:
A person is guilty of conspiracy in the second degree when, intending to promote or facilitate the commission of a felony, the person:
. . .
(2) Agrees to aid another person or persons in the planning or commission of the felony or an attempt or solicitation to commit the felony; and the person or another person with whom the person conspired commits an overt act in pursuance of the conspiracy.
Defendant argues that the State presented no evidence of planning required to convict the Defendant of conspiracy. However,
For a person to be guilty of conspiracy, it is not necessary that there be a formal agreement in advance of the crime. "If a person understands the unlawful nature of the acts taking place, and nevertheless assists in any manner in the carrying out of the common scheme, that person becomes a conspirator to commit the offense."
Murray v. State, 2005 WL 2219193, at *3 (Del. Supr.) (quoting Stroud v. State, 1990 WL 43315 at *3 (Del. Supr.).
Furthermore, a conspiracy "may be logically inferred from the record."
Id.
The State's evidence at trial showed that Defendant told his girlfriend that he and Hall planned to steal the copper wire. Defendant had access to the key to the storage shed and Hall was seen on videotape scrapping copper wire at the recycling center the morning the wire was discovered missing. From this evidence, a reasonable jury could conclude that Defendant and Hall formed an agreement to take the copper wire from their employer.
Moreover, Defendant is not entitled to a judgment of acquittal due to what Defendant considers an "inconsistent verdict." The Delaware Supreme Court has held that "[a] guilty conspiracy verdict is not always inconsistent with an acquittal on the underlying felony." The reason being that under the conspiracy statute, it is not necessary for the defendant to commit the over act underlying the conspiracy charge; it is sufficient if a co-conspirator committed an overt act. Indeed the indictment in this case alleged that Hall and Defendant "one, the other or both of them did commit an overt act in pursuance of said conspiracy by engaging in conduct constituting said felonies or by committing some other overt act in pursuance of the conspiracy." Therefore, the jury could have found beyond a reasonable doubt that Defendant engaged in conduct sufficient to convict him of the conspiracy, but that Hall committed the overt act constituting the underlying felony, not Defendant.
Younger v. State, 2009 WL 2612520, at *2 (Del. Supr.).
Id.
D.I. 3.
Defendant emphasizes the fact that the jury in this case was given an accomplice liability instruction; however, even the acquittal of a defendant under a theory of accomplice liability does not require an acquittal on the conspiracy charge. For example, in Stewart v. State, the jury found the defendant not guilty of Delivery of a Non-Narcotic Schedule II Controlled Substance, but guilty of Second Degree Conspiracy to Deliver. On appeal, the Delaware Supreme Court held that "[w]hile the jury's rejection of the defendant's guilt as to the offense of drug delivery, based on accomplice liability, may have been irrational under the evidence and illogical in view of the conspiracy verdict, the two verdicts were not fatally inconsistent as a matter of law." Therefore, while the jury's acquittal of Defendant on the underlying charges as an accomplice may not have been logical given the evidence presented, it does not provide a basis for a judgment of acquittal on the conspiracy charge.
437 A.2d 153 (Del. 1981).
Id. at 155.
See State v. Williams, 2007 WL 687198 (Del. Super.) (stating that where a jury convicted the defendant of conspiracy but acquitted him of the underlying offense that the verdict could be "attributable to lenity or mistake, not to failure of proof").
Conclusion
For the reasons stated above, Defendant's Motion for Judgment of Acquittal is DENIED. Sentencing is scheduled for July 30, 2010.IT IS SO ORDERED.