Parker v. State , 201 A.3d 1181 ( 2019 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
JUSTIN PARKER, §
§ No. 126, 2018
Defendant Below, §
Appellant, § Court Below: Superior Court
§ of the State of Delaware
v. §
§
STATE OF DELAWARE, § Case No. N1703009269
§
Plaintiff Below, §
Appellee. §
Submitted: November 14, 2018
Decided: January 14, 2019
Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and
TRAYNOR, Justices, constituting the Court en Banc.
Upon appeal from the Superior Court. VACATED and REMANDED.
Santino Ceccotti, Esquire (Argued), Bernard J. O’Donnell, Esquire, Office of the
Public Defender, Wilmington, Delaware, for Appellant, Justin Parker.
Andrew J. Vella, Esquire, Department of Justice, Wilmington, Delaware, for
Appellee, State of Delaware.
STRINE, Chief Justice, for the Majority:
The defendant below, Justin Parker, appeals from the Superior Court’s order
sentencing him for theft of a motor vehicle, felony theft, and two counts of
possession of a firearm during the commission of a felony. All of the charges against
Parker flow from one night where Parker and another man entered a lot that housed
various vehicles, pointed a gun at the guard and locked him in a portable toilet, and
then loaded a container with several vehicles, which they then stole. On appeal,
Parker claims that his sentences for both theft of a motor vehicle and felony theft
violate double jeopardy because the vehicles at issue in each count were stolen on
the same occasion and were part of one course of action by Parker.
This appeal presents two questions. First, as a general matter, are theft of a
motor vehicle and felony theft the “same offense” for double jeopardy purposes?
Second, even if they are, can the two charges nevertheless be separated in this
particular case because they are associated with different stolen items, even though
the items were stolen at the same time and place?
We hold that theft of a motor vehicle is indeed the same offense as felony theft
for double jeopardy purposes and that the two charges cannot be separated in this
case. We therefore vacate Parker’s sentence and remand for resentencing.
I.
In the early morning of March 9, 2017, two men entered shipping company
Port-to-Port’s lot in New Castle, Delaware, which houses various vehicles. Around
12:30 AM, the two men pointed a shotgun at a security guard on duty, duct-taped his
hands together, and forced him into a nearby portable toilet. From inside the portable
toilet, the guard observed the men loading several all-terrain vehicles (ATVs) and
motorcycles into a shipping container. The guard estimated that he was in the
portable toilet for about thirty minutes to an hour. According to the Port-to-Port
facility’s general manager, the stolen items “were mainly from a single spot” near
the security guard; asked further whether “all the motorcycles and ATVs that were
taken were located behind the guard shack,” he stated that to the best of his
recollection, they were.1 Around 2:00 AM, after the two men departed, the guard
escaped and reported the incident to the New Castle County Police.
On her way to the scene, the officer dispatched to Port-to-Port saw a U-Haul
truck pull out from a road adjoining the Port-to-Port facility and onto the highway.
The police later learned that the U-Haul truck was involved in the incident and
located it in a nearby neighborhood. Inside the truck, they discovered a ski mask, a
rope, a latex glove, several pieces of duct tape, and five vehicles that were removed
from the Port-to-Port lot (three ATVs, a dirt bike, and a Kawasaki motorcycle). The
1
App. to Answering Br. at B70 (Trial Testimony, Jimmy Avendano) (“Q. Okay. So my question
for you is there were certain motorcycles and ATVs that were taken from your property that were
recovered; correct? A. Mm-hmm. Q. All the property was recovered; correct? A. Yeah. Were
they from a single spot or several spots? A. If I recall correctly they were mainly from a single
spot.”); id. at B71 (“Q. . . . [Y]our best recollection is all the motorcycles and ATVs that were
taken were located behind the guard shack; correct? A. Yes. To the best of my recollection, yes.
Yes, the best of my knowledge, yes.”).
2
police also found Parker’s fingerprints on the duct tape. In addition, a pickup truck,
another ATV, a tow truck, and a tow trailer were found moved from their original
locations on the Port-to-Port property. The next morning, the police found Parker at
the U-Haul rental location in Wilmington. Parker told the police that he had rented
the U-Haul truck the day before the thefts, but it had been stolen that night.
Parker was later arrested and ultimately indicted, convicted, and sentenced
for, among other things, theft of a motor vehicle (for the stolen Kawasaki
motorcycle), felony theft (for the stolen ATVs and dirt bike), and two counts of
possession of a firearm during the commission of a felony (one for the theft of a
motor vehicle charge and one for the felony theft charge). The indictment
specifically identified the motor vehicle theft count as tied to “a motor vehicle,
Kawasaki motorcycle” and the felony theft count as tied to “a Suzuki ATV, a Honda
ATV and/or a Honda dirt bike, or other miscellaneous property valued at $1,500 or
more.”2 So did the jury instructions.3 In addition, Parker was also indicted and
convicted for attempted theft (for the discarded pickup truck, ATV, tow truck, and
tow trailer), but the trial court merged that count with the felony theft offense for
sentencing after the State conceded that Parker’s actions associated with the two
2
App. to Opening Br. at A10–11 (Indictment).
3
See App. to Answering Br. at B186–87 (describing the property stolen in the motor vehicle theft
charge as “a motor vehicle, which was a Kawasaki motorcycle” and the property stolen in the theft
charge as “the Suzuki ATV, a Honda ATV and/or the Honda dirt bike or other miscellaneous
property valued at $1500 or more”); id. at B188–89 (offering similar descriptions to the jury).
3
counts “constituted one course of conduct planned to culminate in the theft of
multiple pieces of property from Port to Port” and that they therefore “should merge
for sentencing.”4 Before the trial court, Parker argued that his theft of a motor
vehicle sentence, felony theft sentence, and the two associated firearms-related
sentences should also merge into one theft sentence and one firearm-related sentence
because the thefts are the “same offense” for double jeopardy purposes. 5 The court
denied his request without a written opinion, and Parker timely appealed from its
sentencing order.
II.
On appeal, Parker asks this Court to vacate his sentence and remand for
resentencing based on the same double jeopardy arguments he made below. The
State claims that there is no double jeopardy violation for two reasons. First, the
State argues that theft of a motor vehicle is not the same offense as felony theft for
double jeopardy purposes because each offense contains an element that the other
lacks. Second, the State argues that even if they were the same offense, there is no
violation because each charge was associated with different stolen items: the
4
App. to Opening Br. at A037 (State’s Response to Defendant’s Renewed Motion for Judgment
of Acquittal).
5
U.S. CONST. amend. V. Parker is not clear about whether his claim is based on the U.S. or
Delaware Constitution. We proceed under the assumption that he is claiming a double jeopardy
violation under only the U.S. Constitution. See generally Poteat v. State, 840 A.2d 599, 602 n.3
(2003) (“This Court has not yet been required to determine whether the federal and state double
jeopardy provisions are identical in scope in all respects, and we do not address that issue today.
Therefore, this opinion is decided solely on the basis of . . . the United States Constitution.”).
4
Kawasaki motorcycle for the motor vehicle theft charge and the three ATVs and dirt
bike for the general theft charge. This Court reviews claims of alleged infringements
of constitutionally protected rights de novo.6
A.
We first address the State’s argument that theft of a motor vehicle is not the
“same offense” as felony theft because each offense contains an element that the
other lacks. This is an issue of first impression for this Court.
The Double Jeopardy Clause protects defendants “against multiple
punishments for the same offense.”7 Whether two offenses are “the same offense”
for double jeopardy purposes is a question “of statutory construction.”8 Thus, the
Court must ask whether the General Assembly “intend[ed] to impose more than one
punishment for a single occurrence of criminal conduct.”9
The felony theft statute, 11 Del. C. § 841, provides, in relevant part:
§ 841 Theft; class B felony; class D felony; class F felony; class G
felony; class A misdemeanor; restitution.
(a) A person is guilty of theft when the person takes, exercises control
over or obtains property of another person intending to deprive that
person of it or appropriate it. Theft includes the acts described in this
section, as well as those described in §§ 841A-846 of this title.
[. . .]
6
Stigars v. State, 674 A.2d 477, 481 (Del. 1996).
7
Poteat, 840 A.2d at 603.
8
Id.
9
Id. at 603–04.
5
(c)(1) Except [as provided under certain circumstances], theft is a class
A misdemeanor unless the value of the property received, retained or
disposed of is $1,500 or more, in which case it is a class G felony.
The General Assembly enacted the theft of a motor vehicle statute, 11 Del. C.
§ 841A, in 2006.10 It provides:
§ 841A Theft of a motor vehicle; class G felony.
(a) A person is guilty of theft of a motor vehicle when the person takes,
exercises control over or obtains a motor vehicle of another person
intending to deprive the other person of it or appropriate it.
(b) As used in this section “motor vehicle” means an automobile,
motorcycle, van, truck, trailer, semitrailer, truck tractor and semitrailer
combination, or any other vehicle which is self-propelled, which is
designed to be operated primarily on a roadway as defined in § 101 of
Title 21, and in, upon or by which any person or property is or may be
transported. “Motor vehicle” as used in this section shall not include
any device that is included within the definitions of “moped,” “off-
highway (OHV),” “triped,” “motorized scooter or skateboard,”
“motorized wheelchair” or “electric personal assistive mobility device
(EPAMD)” as defined in § 101 of Title 21.
(c) Theft of a motor vehicle is a class G felony.
Also relevant is 11 Del. C. § 206, which provides, in relevant part, that “the
defendant may not . . . be convicted of more than 1 offense if . . . [o]ne offense is
included in the other, as defined in subsection (b) of this section.” 11 Subsection (b)
provides, in relevant part, that an offense is “included when . . . [i]t is established by
10
75 Del. Laws ch. 290, §1.
11
11 Del. C. § 206(a)(1).
6
the proof of the same or less than all the facts required to establish the commission
of the offense charged.”12 Section 206 is consistent with the U.S. Supreme Court’s
test in Blockburger v. United States, which provides that “where the same act or
transaction constitutes a violation of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses or only one, is whether each
provision requires proof of a fact which the other does not.”13 Blockburger,
however, “is only an aid to statutory construction.”14 “It does not negate clearly
expressed legislative intent and where . . . a better indicator of legislative intent is
available, it does not apply.”15
The State argues that Parker’s claim fails under the Blockburger test because
each theft provision contains an element that the other does not. Specifically, the
motor vehicle provision requires proof that the item stolen is a “motor vehicle,”
which is not an element of ordinary theft; and the felony theft provision requires
proof that the item’s value is at least $1,500, which is not an element of the motor
vehicle theft statute. In support of its argument, the State cites this Court’s
unpublished order in Proffitt v. State, which held that theft and theft of a firearm
12
Id. § 206(b)(1).
13
284 U.S. 299, 304 (1932); see also Stigars v. State, 674 A.2d 477, 482 (Del. 1996) (noting that
“this Court has generally employed the Blockburger test,” which “is consistent with 11 Del. C. §
206”).
14
Stigars, 674 A.2d at 482.
15
Id.
7
were different offenses for double jeopardy purposes.16 The Proffitt Court reasoned
that each of the offenses “requires an element of proof which is not present in the
other” because “[t]he felony theft statute . . . requires proof of value, which the theft
of a firearm statute . . . does not,” and “the theft of a firearm statute requires proof
that the stolen property was, in fact, a firearm . . . while the theft statute does not.”17
Parker distinguishes Proffitt on the grounds that the theft statute expressly
states that “[t]heft includes the acts described in this section, as well as those
described in §§ 841A-846 of this title.”18 Section 841A is the motor vehicle statute.
That statement, Parker argues, shows that the General Assembly intended theft of a
motor vehicle to be an included offense of the more general theft provision. In
support of this argument, he cites the legislative history of the theft of a motor
vehicle statute, which explains that “this Act will classify all motor vehicle thefts as
a felony” due to the “great inconvenience and economic hardship to the victim,
regardless of the value of the stolen vehicle.”19
We agree with Parker that theft of a motor vehicle and theft are the same
offense for double jeopardy purposes. Even if theft of a motor vehicle would not be
an included offense of felony theft under the Blockburger test, Blockburger “is only
16
Proffitt v. State, 568 A.2d 1072, 1989 WL 154707, at * 1 (Del. Dec. 1, 1989) (TABLE).
17
Id.
18
11 Del. C. § 841(a).
19
Del. H.B. 374 syn., 143d Gen. Assem., 75 Del. Laws ch. 290, § 1 (2006).
8
an aid to statutory construction,” and “where . . . a better indicator of legislative
intent is available, it does not apply.”20 Here, there is a better indicator of legislative
intent: the statement in the felony theft statute that “[t]heft includes the acts
described in this section, as well as those described in §§ 841A-846 of this title.”
Section 841A is the theft of a motor vehicle provision; thus, by the plain language
of the theft statute, theft of a motor vehicle is an included offense of theft. The
State’s preferred understanding, by contrast, would render the final sentence of
§ 841(a) superfluous, contrary to the canon that “[a] statute will not be construed in
such a way that part of it becomes surplusage.”21 If “includes” means something
other than “includes for double jeopardy purposes,” the State has not explained what
that alternative meaning might be.
This understanding of motor vehicle theft as an included offense of theft
makes sense in context. When the General Assembly enacted the theft of a motor
vehicle statute, it placed the provision immediately after the general theft provision
in the Delaware Code. Judging by its legislative history, the General Assembly
enacted the new statute to make a sort of “automatic felony” out of stealing a car—
without regard to the car’s value—because “[t]he theft of a motor vehicle often
causes great inconvenience and economic hardship to the victim, regardless of the
20
Stigars, 674 A.2d at 482.
21
Arbern-Wilmington, Inc. v. Director of Revenue, 596 A.2d 1385, 1390 (Del. 1991).
9
value of the stolen vehicle.”22 That does not mean that theft of a motor vehicle is a
separate offense, such that a thief could be sentenced twice for stealing the same
car—once under the motor vehicle statute and once under the general theft statute—
thereby doubling the punishment. Instead, the legislative history suggests that the
General Assembly simply meant to make the punishment for stealing a car the same
as the punishment for stealing any other item worth $1,500 or more, regardless of
whether the car is actually worth that much in dollar resale value. Indeed, the
legislative history explicitly states that value rationale for making theft of a motor
vehicle a felony.23
Construing theft of a motor vehicle as an included offense also makes sense
in light of the other provisions included from §§ 841A to 846, each of which is a
different species of theft.24 The official Commentary to the Delaware Criminal Code
22
Del. H.B. 374 syn., 143d Gen. Assem., 75 Del. Laws ch. 290, § 1 (2006). The full synopsis to
H.B. 374, which created the motor vehicle theft offense, states:
At present the Delaware statute that criminalizes theft requires, in most
circumstances, that the property be valued at greater than $1,000.00 for the crime
to be considered a felony. The theft of a motor vehicle often causes great
inconvenience and economic hardship to the victim, regardless of the value of the
stolen vehicle. In recognition of that fact, this Act will classify all motor vehicle
thefts as a felony.
Id.
23
See id.
24
See 11 Del. C. § 841B (organized retail crime); id. § 841C (theft of a prescription form or pad);
id. § 842 (theft of lost or mislaid property); id. § 843 (theft by false pretenses); id. § 844 (theft by
false promises); id. § 845 (theft of services); id. § 846 (extortion). Originally, § 841 had provided
that “[t]heft includes the acts described in sections 842 through 846.” Id. § 841 (1972). The
General Assembly amended that sentence to read as it currently does in 2007 through a bill that
10
issued in 1973, which this Court has previously cited as authoritative,25 reinforces
this understanding by referring to the subsequent specialized theft offenses as “all
constitut[ing] theft,”26 being “different types of the same criminal activity,” and
being “include[d]” in the general theft provision.27 The Commentary’s introduction
to the “theft” subpart of the Code bolsters this view even further, explaining that
“[t]he ensuing sections, in their original form, were drafted with the concept of a
unified theft offense in mind.”28 Under the new statutory framework, “all takings of
property, whatever they might have been called at common law, are to be treated as
part of a single offense, called theft.”29
Proffitt is distinguishable based on the differences between the motor vehicle
and firearm theft statutes. Unlike the motor vehicle theft statute, the firearm theft
statute at issue in Proffitt is not mentioned as “included” by the general theft
also created a new offense for “organized retail crime,” codified at § 841B. 76 Del. Laws ch. 98,
§ 3 (2007).
25
See Poteat v. State, 840 A.2d 599, 605 (Del. 2003) (relying on the Commentary to hold that
menacing is an included offense of robbery); Stigars, 674 A.2d at 482–83 (relying on the
Commentary to hold that theft is an included offense of robbery).
26
DELAWARE CRIMINAL CODE WITH COMMENTARY 270 (1973) (“Section 841 covers the crimes
formerly known as larceny, larceny by bailee, larceny by trick, and embezzlement. It also covers
any other activity that may appropriately be described in the terms there used. The ensuing
sections cover other more specialized common-law crimes. But all constitute theft.”).
27
Id. at 271 (“All of these crimes are equally serious, and are closely related enough to be treated
as different types of the same criminal activity. Accordingly, theft is defined to include all acts
described in §§ 842–46, and it is appropriate to indict the defendant under § 841.”).
28
Id. at 261.
29
Id.
11
statute.30 Indeed, the theft of a firearm provision is located in an entirely different
subchapter in the Delaware Criminal Code, titled “Offenses Against Public Health,
Order and Decency.”31 That title hints toward why the General Assembly may have
decided to make theft of a firearm, but not theft of a motor vehicle, a separate offense
from theft: stealing a gun creates a risk of public harm separate from the harm to
the owner of the gun, whereas stealing a car mainly just hurts the person whose car
was stolen. Thus, two potential punishments for theft of a firearm: one under the
general theft statute for the harm to the gun owner, and one under the specialized
firearm statute for the risk to the public that arises from the possibility that the gun
will be used to shoot someone. But only one for theft of a motor vehicle.
In light of the relevant statutory text and legislative history, we hold that theft
of a motor vehicle is the same offense as theft for double jeopardy purposes.
B.
The State also argues that even if theft of a motor vehicle is an included
offense of theft, there is no double jeopardy violation because the two charges were
for separate items: a Kawasaki motorcycle for the motor vehicle theft charge and
three ATVs and a dirt bike for the general theft charge. This argument implicates
the “multiplicity doctrine,” which involves “the charging of a single offense in more
30
Compare 11 Del. C. § 841(a) (“Theft includes the acts described in this section, as well as those
described in §§ 841A-846 of this title.”), with id. § 1451 (codifying “theft of a firearm”).
31
11 Del. C. §§ 1301 et seq.
12
than one count of an indictment.”32 The multiplicity doctrine, which is rooted in the
Double Jeopardy Clause, prohibits the State from dividing one crime into multiple
counts by splitting it “into a series of temporal or spatial units.” 33 Here, the
indictment contained separate counts for the different items stolen—one count for
the “Kawasaki motorcycle” and a second count for “a Suzuki ATV, a Honda ATV
and/or a Honda dirt bike, or other miscellaneous property valued at $1,500 or
more.”34 These distinctions between the two counts were then reflected in the
court’s jury instructions. Parker is therefore guilty of multiple thefts only if the theft
of the Kawasaki motorcycle is separate from the thefts of the other items under the
multiplicity doctrine.
This Court has previously employed a three-factor balancing test to determine
whether multiple violations of the same offense have occurred, weighing whether
the acts are sufficiently differentiated by (1) time, (2) location, or (3) intended
purpose.35 At bottom, “[t]he critical inquiry is whether the temporal and spatial
32
Will. v. State, 796 A.2d 1281, 1285 (Del. 2002) (quoting Feddiman v. State, 558 A.2d 278,
288 (Del. 1989)) (internal quotation marks omitted).
33
Spencer v. State, 868 A.2d 821, 823–24 (Del. 2005); accord Williams, 796 A.2d at 1285
(“Dividing one offense into ‘multiple counts of an indictment violates the double jeopardy
provisions of the constitutions of the State of Delaware and of the United States.’” (quoting
Feddiman, 558 A.2d at 288)).
34
App. to Opening Br. at A10–11 (Indictment).
35
See Williams, 796 A.2d at 1286–87 (adopting a test for possession with intent to deliver cocaine
based on whether “‘the possessions are sufficiently differentiated by time, location or intended
purpose’” and stating that “[t]his test consists of factors a court may use in determining, under the
circumstances, whether two violations of same statute have occurred” (quoting Rashad v. Burt,
108 F.3d 677, 681 (6th Cir. 1997)); Feddiman, 558 A.2d at 288–89 (weighing the timing and
location of separate acts of sexual assault to determine whether multiple counts of sexual assault
13
separation between the acts supports a factual finding that the defendant formed a
separate intent to commit each criminal act.”36 In the theft context, we held in
Reader v. State “that where property belonging to different owners is taken at the
same time and place as a single or continuous act or transaction, that taking
constitutes a single criminal offense,” characterizing that rule as “espoused by the
overwhelming majority of jurisdictions.”37 We described this as the “single theft
rule,”38 which the leading treatise on criminal law has stated as follows:
When several articles of property are stolen by the defendant . . . at the
same time and at the same place, only one larceny is committed.
When several articles are stolen by the defendant . . . on different
occasions over a period of time, each taking constitutes a separate
larceny if each is the result of a separate and independent impulse of
intent. On the other hand, if the successive takings are actuated by a
single and continuing impulse or intent, or are carried out pursuant to a
larcenous scheme or plan and constitute a continuous transaction, only
a single larceny is committed.
If several articles are stolen from the same place as the result of a single
and continuing impulse or intent, the mere fact that the thief finds it
convenient or necessary to make several trips to carry the articles away
were permissible under the multiplicity doctrine); Spencer, 868 A.2d at 824 (weighing the
“temporal and spatial separation between” two gun shots, as well as whether the defendant “had
formed a separate intent to harm” the victim “between the two gun shots,” to determine whether
the State could charge the defendant for two counts of assault).
36
Spencer, 686 A.2d at 823.
37
349 A.2d 745, 747 (Del. 1975).
38
Id.; see also Guyer v. State, 453 A.2d 462, 463 n.3 (describing “the single theft rule adopted by
this Court in Reader” as “when property belonging to different owners is taken at the same time
and place, only one theft count, not multiple counts, will lay for the taking”).
14
does not transform the offense from a single larceny into multiple
ones.39
In emphasizing the time, location, and intent factors, that description is consistent
with Delaware’s general approach to the multiplicity doctrine. Although Reader
adopted the single theft rule in the multiple-owner context, the rule applies with
equal force when the items are stolen from the same owner.40
The facts of Reader are instructive for this case. In Reader, the defendant
broke into “a combination warehouse, garage, and office” that housed various
equipment.41 After entering the garage, the defendant went to the adjoining office
and brought back several items and placed them in a pickup truck found in the
garage.42 The defendant then backed the truck out of the garage and instructed an
undercover police officer he thought was his accomplice to drive out a van located
in an adjoining garage bay.43 At this point, about five to ten minutes after the
defendant had originally entered the building, the police arrived and arrested him. 44
39
3 CHARLES E. TORCIA, WHARTON’S CRIMINAL LAW § 346, Westlaw (last updated Aug. 2018);
see also id. § 347 (stating the multiple-owner version of this rule).
40
Compare id. § 346 (stating the same-owner version of this rule), with id. § 347 (stating the
multiple-owner version of this rule and noting that some courts do not follow the multiple-owner
version).
41
Reader, 349 A.2d at 746.
42
Id.
43
Id.
44
Id.
15
We held that these acts constituted “but one theft offense” and struck the defendant’s
convictions and sentences for two out of the three felony theft charges.45
Like Reader, the facts here indicate that Parker’s theft of the Kawasaki
motorcycle on the one hand and ATVs and dirt bike on the other constituted “but
one theft offense.”46 The evidence presented at trial suggests that these thefts
occurred within the span of an hour and a half at most, all from the same lot operated
by Port-to-Port, and were part of a single criminal scheme to steal various vehicles
from the lot. Indeed, the security guard’s testimony suggests that Parker stole the
Kawasaki motorcycle around the same time as the other items and from the same
place in the lot—from the portable toilet, the guard saw the two men put the ATVs
and “motorcycles” (by which he presumably meant both the Kawasaki motorcycle
and the dirt bike) into the same shipping container, all within the span of thirty
minutes to an hour47—and the police ultimately found the items in the same U-Haul
truck. Further, the Port-to-Port general manager testified that the items had been
taken “mainly from a single spot” near the guard; and asked whether “all the
motorcycles and ATVs that were taken were located behind the guard shack,” the
45
Id. at 748.
46
Id.
47
App. to Answering Br. at B75 (Trial Testimony, Javier Conaway) (“Q. You say you saw these
two guys, these two people loading up ATV’s and motorcycles into the container? A. Yes. Q.
How long did you stay in the Port-A-Potty? A. I’d say 30 minutes, 40, even an hour.”). It is
unclear how the items made their way from the shipping container to the U-Haul truck.
16
manager responded that to the best of his recollection, they were.48 There is no
evidence to suggest that Parker’s theft of the motorcycle was part of a different
criminal plan from his theft of the other items or that the thefts occurred at different
times or locations. In short, it was all one heist.
This result is consistent with other Delaware cases on multiplicity. In
Williams v. State, for example, we held that it was multiplicitous to charge the
defendant, a drug dealer, on multiple counts of possession with the intent to
distribute where the police found part of the defendant’s stash of cocaine in his
apartment and part of it in his car.49 There, we noted that the drugs “were found at
the same time” and “were in the same general location because the car was in close
proximity to the apartment,” and the defendant’s “possession of cocaine shows that
he ‘displayed a single intent and goal—distribution.’”50 In this case, Parker similarly
stole the items at the same time from the same location, and the evidence indicates
that the thefts were part of a singular criminal scheme. In cases where we have found
no multiplicity violation, by contrast, the facts have indicated either that there was a
meaningful temporal or spatial separation between each act;51 that a separate intent
48
App. to Answering Br. at B70–71 (Trial Testimony, Jimmy Avendano).
49
See 796 A.2d 1281, 1283–84, 1286–88 (Del. 2002).
50
Id. at 1286–87 (quoting Rashad v. Burt, 108 F.3d 677, 682 (6th Cir. 1997)).
51
See Feddiman v. State, 588 A.2d 278, 287–89 & n.28 (Del. 1989) (“The State’s allegations in
the record of the variations in the sexual acts, the physical movement of the victim between the
acts, and the timing between the sexual acts, was sufficient to support Feddiman’s prosecution for
eight separate offenses of Unlawful Sexual Intercourse in the First Degree.”); Cintron v. State, 757
A.2d 1277, 2000 WL 201203, at *1–2 (Del. Feb. 4, 2000) (TABLE) (holding it was not plain error
17
was behind each act;52 or, in sexual assault and other violent crime cases, that each
act reflected a distinct harm or a risk of harm to the victim.53
The State’s logic, by contrast, would nullify the multiplicity doctrine as
applied to theft. In effect, the State’s approach would allow Parker to be charged
with a separate count for each item he stole: one count for the Kawasaki motorcycle,
a second count for the first ATV, a third count for the second ATV, a fourth count
for the dirt bike, and so on for any other stolen items.
to conclude that separate charges related to the sexual assault of a minor were not multiplicitous
where they occurred at different locations over the course of a year).
52
See Feddiman, 588 A.2d at 287–89 & n.28 (concluding that the defendant had formed a separate
intent to rape the victim based on “variations in the sexual acts,” “[a]dditional orders” being “given
to the” victim, and each act being “a further denigration of the victim’s integrity and a further
danger to the victim” (internal quotation marks omitted)); Spencer v. State, 868 A.2d 821, 824
(Del. 2005) (“Scott turned his back to Spencer after the first shot . . . . The evidence of record is
sufficient for a rational trier of fact to conclude that the intent Spencer had formed to shoot Scott
in the leg was distinct from the intent he formed thereafter to shoot Scott in the buttocks after Scott
turned his back to run away from his assailant.”); Washington v. State, 836 A.2d 485, 488–91 (Del.
2003) (finding separate intents where the defendant had robbed the victim, told the victim to leave
the premises, and then, after the victim had started to run to his car, said: “No. F* * * that. Give
me your keys.”).
53
See Feddiman, 588 A.2d at 289 (“One is not allowed to take advantage of the fact that he has
already committed one sexual assault on the victim and thereby be permitted to commit further
assaults on the same person with no risk of further punishment for each assault committed. Each
act is a further denigration of the victim’s integrity and a further danger to the victim.” (internal
quotation marks omitted)); Morrisey v. State, 620 A.2d 207, 212–13 (Del. 1993) (finding no
multiplicity violation for “separate acts of sexual intercourse” that the defendant “forced his
victims to perform”); Whitfield v. State, 867 A.2d 168, 171–72 (Del. 2004) (finding separate
offenses where the defendant had fired a shot during an attempted robbery and then, after the
attempt was over, fired another shot); Washington, 836 A.2d at 488–91 (noting the differences
between violent crimes “against the person of the victim” and “property-oriented crimes” and
noting that “the robbery statute seeks to address the personal well-being of the victim, rather than
simply the protection of property”).
18
Instead, the General Assembly rejected that item-by-item approach to theft in
favor of an aggregation approach. With limited exceptions, when the theft is minor,
it is classified as a misdemeanor, no matter how many items the defendant steals, so
long as their aggregate value is less than $1,500.54 If the value of the stolen items
reaches $1,500, however, the theft becomes a Class G felony.55 Meanwhile, $50,000
in value makes the theft a Class D felony, and $100,000 makes it a Class B felony.56
Under this approach, the punishment is determined not by the number of items
stolen, but by the total value of those items.
In conceding below that Parker’s theft and attempted theft charges should
merge for sentencing, the State appears to recognize the inequity that would result
from sentencing Parker separately for each stolen item. Explaining its position that
those two charges should merge, the State admitted that Parker’s “actions associated
with the Attempted Theft and Theft charges constituted one course of conduct
planned to culminate in the theft of multiple pieces of property from Port to Port.”57
Thus, the State conceded, finding Parker “more criminally culpable for leaving
54
See 11 Del. C. § 841(c)(1) (“Except where a victim is 62 years of age or older, or an ‘adult who
is impaired’ as defined in § 3902(2) of Title 31, or a ‘person with a disability’ as defined in
§ 3901(a)(2) of Title 12, theft is a class A misdemeanor unless the value of the property received,
retained or disposed of is $1,500 or more, in which case it is a class G felony.”).
55
Id.
56
Id. § 841(c)(3).
57
App. to Opening Br. at A037 (State’s Response to Defendant’s Renewed Motion for Judgment
of Acquittal).
19
property behind rather than stealing the entirety of the property is inequitable.”58
Because the State does not contend that stealing the Kawasaki motorcycle was part
of a different course of conduct from the other thefts,59 the State’s stance on appeal
is not reconcilable with its prior willingness to merge the attempted theft charge with
the felony theft charge.
Also notable is the State’s admission during oral arguments that if the value
of the vehicle that Parker stole was substantially more than the Kawasaki motorcycle
(e.g., a Ferrari), the State’s theory would allow it to aggregate all the items to charge
Parker for a higher grade of felony with a single count of theft. According to the
State’s theory, if Parker stole a vehicle worth $40,000 and the rest of the property he
stole was worth $12,000 (adding up to a total of $52,000), the State could charge
Parker with either two Class G felonies (up to four years in prison) or one Class D
felony (up to eight years in prison). In other words, the State believes it has the
option to subject a defendant to whichever punishment it chooses, proceeding with
a single count of felony theft that includes the value of the vehicle when that would
be more punitive, or with a felony charge for theft and a felony charge for theft of a
motor vehicle when that would be more punitive. Yet the State also candidly
58
Id.
59
See Answering Br. at 7 (“[I]n Parker’s case, the vehicles stolen were different as to each
charge.”); id. at 10 (“[T]he two offenses in this case were not based on theft of the same property.
Parker was charged with Theft of a Motor Vehicle based on the factual allegation that he stole a
Kawasaki motorcycle . . . . He was also charged with Felony Theft, based on the factual allegation
that he stole three OHVs . . . .”).
20
conceded that it would be impermissible to charge a defendant for both felony theft
of a motor vehicle and felony theft of the same stolen car “because then it’s a
multiplicity issue.”60 But if charging a defendant twice for theft under those
circumstances is a multiplicity violation, then so is charging Parker twice under the
circumstances of this case. The fact that, “in Parker’s case, the vehicles stolen were
different as to each charge,”61 makes no difference because Delaware follows the
single theft rule.
In sum, because the evidence indicates that Parker committed the thefts at the
same time, at the same location, and with the same criminal intent, we hold that
sentencing Parker twice for those thefts was multiplicitous.
III.
Because theft of a motor vehicle and felony theft are the “same offense” for
double jeopardy purposes and Parker committed the two thefts for which he was
charged at the same time, at the same location, and with the same criminal intent,
the Double Jeopardy Clause prohibits imposing separate punishments for each
charge under the circumstances of this case. As a result, the Superior Court erred in
sentencing Parker for both thefts and both associated firearm-related charges. We
therefore vacate his sentence and remand for resentencing.
60
Oral Argument at 32:50–33:30.
61
Answering Br. at 7.
21
VAUGHN, Justice, dissenting:
The appellant argues he should not have been sentenced for both theft of a
motor vehicle and felony general theft because the two offenses are based on the
same course of conduct.1 He contends that the Superior Court erred by finding that
convictions for both were permitted under the test of Blockburger v. United States.2
In so ruling, the Superior Court found that there were differing elements between the
two offenses. It found that felony general theft of property did not require proof of
theft of a motor vehicle and that theft of a motor vehicle did not require proof of the
motor vehicle’s value.
Parker’s theory is that the Superior Court’s reliance upon the Blockburger test
is misplaced for two reasons. The first is that the two theft offenses involved here
fail the Blockburger test. His argument on this point is that “[w]hile the felony theft
offense does not require proof of the theft of a motor vehicle as an element of the
offense, the theft of a motor vehicle offense, on the other hand, does not require
proof of a felony amount of loss as an element of the offense because it is a felony
per se, as defined.”3
1
Parker also argues, for the same reason, that he should not have been sentenced on both associated
firearms offenses. Disposition of his argument on the two theft offenses also disposes of his
argument on the associated firearm offenses. He has not presented any separate or additional
argument on the firearms offenses.
2
284 U.S. 299 (1932).
3
Appellant’s Opening Br. at 10.
His second argument is that the Blockburger test is an aide to statutory
construction but does not supersede otherwise evident statutory intent. On this point
he argues, “It was clear under the evidence in this case that the felony theft of a
motor vehicle offense was not a separate offense from the felony theft offense
because, like the attempted felony theft offense and felony theft offense, it was an
included offense of the felony theft offense.”4 He continues, “The General
Assembly has made that clear in defining the offense of felony theft: ‘Theft includes
the acts described in this section, as well as those described in §§ 841A-846.’
Section 841A of the Criminal Code defines theft of a motor vehicle, a felony offense
by definition.”5 He concludes, therefore, that “the offense of theft of a motor vehicle,
a felony offense by definition, is an included offense of felony theft as
unambiguously stated under the theft statute.”6
“The key question presented by a claim of double jeopardy that is based on
multiple punishments is: did the General Assembly intend to impose more than one
punishment for a single occurrence of criminal conduct.”7 “In seeking to ascertain
legislative intent, we must first look at the text of the statute in its context.”8
4
Id. at 10-11.
5
Id. at 11.
6
Id.
7
Williamson v. State, 707 A.2d 350, 362 (Del. 1998) (en banc) (quoting Stigars v. State, 674 A.2d
477, 481 (Del. 1996)).
8
Stigars, 675 A.2d at 481.
2
The language that “[t]heft includes the acts described in this section, as well
as those described in §§ 841A-846” first appeared in § 841 of the 1973 Delaware
Criminal Code in the following form: “Theft includes the acts described in this
section, as well as those described in §§ 842-846.” The commentary to the 1973
Criminal Code is helpful in understanding what is meant by this sentence. The
commentary states:
Finally, a word must be said about denominating all
serious misappropriation of property theft. In doing so this
Code follows the modern penal law revisions in other
states, and it avoids the possibility that guilty people will
escape punishment on the old technical grounds. All of
these crimes are equally serious, and are closely related
enough to be treated as different types of the same criminal
activity. Accordingly, theft is defined to include all acts
described in §§ 842-846, and it is appropriate to indict the
defendant under § 841.9
I would find that the language in § 841 simply makes clear that the crimes defined
in §§ 842 through 846 are specialized forms of theft which, at the option of the State,
may be indicted and prosecuted under § 841 in lieu of being prosecuted under §§ 842
through 846.
Another relevant statement is found in the introductory comment to the theft
subpart: “The ensuing sections, in their original form, were drafted with the concept
of a unified theft offense in mind. The idea is that all takings of property, whatever
9
DELAWARE CRIMINAL CODE WITH COMMENTARY 271 (1973) (footnote omitted).
3
they might have been called at common law, are to be treated as part of a single
offense, called theft.”10 This comment occurs in the context of a discussion of
common-law larceny and the “piecemeal enactment of provisions against improper
appropriation of someone else’s property.”11 The development of common-law
larceny, the commentators reasoned, led to “the law’s uncertainty” and “the good
chance that conviction may be avoided by a technicality or by a jury’s confusion.”12
The drafters’ intent, it appears, was that all takings of property, whatever their form,
be regarded as theft, so as to avoid the uncertainty that had developed under
common-law larceny. Conceptualizing all takings of property as theft, however,
does not take us very far in understanding when a taking that violates two statutory
theft sections may, or may not, be prosecuted under each statute. That issue is not
discussed in the commentary to the theft sections of the 1973 Criminal Code.
A more helpful source is 11 Del. C. § 206, which codifies the double jeopardy
rules generally applicable in the criminal code. It first sets forth a general rule that
“[w]hen the same conduct of a defendant may establish the commission of more than
1 offense, the defendant may be prosecuted for each offense.”13 It then provides
exceptions, the one relevant here being that “[t]he defendant may not, however, be
10
Id. at 261.
11
Id. at 260.
12
Id.
13
11 Del. C. § 206(a).
4
convicted of more than 1 offense if: (1) One offense is included in the other, as
defined in subsection (b) of this section.”14 Subsection (b)(1) defines what is meant
by an “included” offense. An included offense is one that is “established by the
proof of the same or less than all the facts required to establish the commission of
the offense charged.”15 Under § 206, a defendant cannot be double-convicted under
both §§ 841 and 841A for stealing a single motor vehicle, because both offenses
would be established by proof of the same fact: the single theft of a certain motor
vehicle.
In this case, Parker was charged in Count V of the indictment with theft of a
motor vehicle under § 841A. He was charged in Count VII with felony general theft
under § 841. Section 206 permits Parker’s convictions for both offenses because
they are not established by the same facts and neither is established by less than all
the facts required to establish the other. They are based on different facts: Count V
is established by proof that Parker stole the Kawasaki motorcycle, which is a motor
vehicle as defined in § 841A, while Count VII is established by proof that Parker
stole two ATV’s and a dirt bike having an aggregate value of $1,500 or more. The
charge under Count V did not require proof of the theft of two ATV’s and a dirt bike
having an aggregate value of $1,500 or more, and the charge under Count VII did
14
Id.
15
Id. § 206(b)(1).
5
not require proof of the theft of a motor vehicle. Since neither count is established
by proof of the same or less than all the facts required for proof of the other, Parker’s
convictions on both counts satisfy the requirements of § 206. Section 206 is not a
mere aid to statutory construction, and there is no language in §§ 841 through 846
or the commentary stating that § 206 does not apply to those sections.
Reading § 841 to preclude charging Parker with both theft of a motor vehicle
under § 841A and felony theft under § 841 because of the language that “[t]heft
includes the acts described in this section, as well as those described in §§ 841A-
846”16 renders § 841 in conflict with § 206. When possible, statutes should be read
as a whole to reach a harmonious result and to give force and effect to all
provisions.17 If the language of § 841(a) is interpreted as simply indicating that theft
of a motor vehicle (among other things) may, at the State’s discretion, be prosecuted
under § 841, both § 206 and § 841(a) will be given force and effect without resulting
in a conflict between the provisions. If the language in § 841(a), however, is
interpreted as establishing theft of a motor vehicle as an included offense for
purposes of double jeopardy, in the factual circumstances of this case, § 206 will
have no force and effect because the defendant no longer “may be prosecuted for
each offense” even though the same conduct “establish[ed] the commission of more
16
Id. § 841(a).
17
See, e.g., Doroshow, Pasquale, Krawitz & Bhaya v. Nanticoke Mem’l Hosp., Inc., 36 A.3d 336,
343 (Del. 2012) (en banc).
6
than 1 offense”18 and the motor-vehicle theft offense was not “established by the
proof of the same or less than all the facts required to establish the commission of
the” felony general theft offense.19
Theft of a motor vehicle was added as a separate theft in § 841A in 2006, and
the above-quoted sentence in § 841(a) was reworded accordingly. The synopsis of
the act adopting § 841A states, in part: “The theft of a motor vehicle often causes
great inconvenience and economic hardship to the victim, regardless of the value of
the stolen vehicle. In recognition of this fact, this Act will classify all motor vehicle
thefts as a felony.”20 The adoption of § 841A is a clear legislative statement that
theft of a motor vehicle can always be prosecuted as a felony. If a defendant steals
a motor vehicle and other property at the same time, and the aggregate value of the
motor vehicle and the other property is less than $1,500, it seems to me quite clear
that the State has the option of prosecuting the theft of the motor vehicle as a felony
under § 841A and the theft of the other property as a misdemeanor under § 841. If
the value of other property happens to be $1,500 or more, it seems to me equally
clear that the State may prosecute both as Class G felonies. If a person steals a motor
vehicle and other property from a person 62 years of age or older, the State has the
option of charging the person with a Class G felony for theft of the motor vehicle
18
Id. § 206(a).
19
Id. § 206(b)(1).
20
75 Del. Laws Ch. 290, § 1, Synopsis (2006).
7
under § 841A and, if the value of the other property is $1,500 or more, a Class F
felony under § 841 for theft of the other property. If the value of the other property
stolen is $50,000 or more, the State has the option of charging the person with a
Class G felony for theft of the motor vehicle under § 841A and a Class D felony for
theft of the other property under § 841. If the aggregate value of the motor vehicle
and the other property is $50,000 or more, the State has the option of charging the
person with a Class D felony for the theft of all items under § 841. These are all
perfectly legitimate charging options which the General Assembly has given the
State through its statutory enactments.
Finally, Parker’s convictions on both counts of theft do not violate the rule
against multiplicity or the single theft rule. The doctrine of multiplicity prohibits the
State from bringing multiple charges under the same statute.21 The State cannot
divide an offense under one statute into a series of units.22 Here, the two theft counts
are different forms of theft under different statutes. Since the charges are made under
different statutes, there is no multiplicity. The single theft rule is not violated
because our criminal code allows the theft in this case to be divided between § 841
and § 841A. If the State had attempted to split the theft of the ATV’s and the dirt
21
Washington v. State, 836 A.2d 485, 487 (Del. 2003) (en banc).
22
Id. at 487-88.
8
bike into multiple counts of theft under § 841, the multiplicity and single theft rules
would be violated. But the State did not do so.
I would affirm the judgment of the Superior Court.
9