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Lowther v. State

Supreme Court of Delaware

November 6, 2014

ERIN LOWTHER, Defendant-Below, Appellant,
STATE OF DELAWARE, Plaintiff-Below, Appellee

Submitted October 22, 2014

Case Closed November 24, 2014.

Court Below -- Superior Court of the State of Delaware in and for New Castle County. Cr. I.D. 1304021737.

Misty A. Seemans, Esquire, Office of the Public Defender, Wilmington, Delaware, Attorney for Defendant-Below, Appellant.

Karen V. Sullivan, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware, Attorney for Plaintiff-Below, Appellee.

Before STRINE, Chief Justice; HOLLAND, and VALIHURA, Justices.


Page 841

HOLLAND, Justice:

Erin Lowther (" Lowther" ) was arrested on April 24, 2013, following an altercation with her sister-in-law, Trisha Lowther (" Trisha" ). On December 9, 2013, the New Castle County grand jury issued a

Page 842

superseding indictment, charging Lowther with Assault in the Second Degree, Terroristic Threatening and Offensive Touching. On January 16, 2014, a two-day jury trial began. Lowther moved for a judgment of acquittal on the Terroristic Threatening charge. The Superior Court denied the motion. The jury found Lowther guilty of Assault in the Second Degree and Terroristic Threatening, but not guilty of Offensive Touching. Lowther was sentenced to six years at Level V incarceration, suspended for eighteen months at Level III probation for Assault in the Second Degree and one year at Level V incarceration, suspended for one year at Level III probation for Terroristic Threatening.

Lowther has raised two arguments in this direct appeal. First, Lowther contends that the evidence presented during the State's case-in-chief was not sufficient to allow the jury to find Lowther guilty of Terroristic Threatening. According to Lowther, the State did not present sufficient evidence that her threat to " f**ing kill" Trisha was a " true threat" . We have concluded that, viewing the evidence in the light most favorable to the State, a rational jury could conclude beyond a reasonable doubt that Lowther had a subjective intent to threaten Trisha when she said she would " f*** kill her." Therefore, the trial judge properly denied Lowther's motion for a judgment of acquittal.

Second, she contends that the Superior Court committed plain error in instructing the jury on the charge of Terroristic Threatening. We have determined that, when read as a whole, Superior Court's instructions were reasonably informative, not misleading and allowed the jury to perform its duty.

Accordingly, both of Lowther's arguments are without merit. Therefore, the Superior Court's judgment must be affirmed.


On the evening of April 23, 2013, Lowther picked up her brother, Michael Lowther (" Michael" ), from work in West Grove, Pennsylvania. Lowther was approximately twenty minutes late picking up Michael and the two began to argue on the way home. The two arrived at Michael's home in Newark, Delaware, and the argument escalated into a physical altercation.

Upon arriving at Michael's home, Lowther went into the kitchen and grabbed a pair of scissors and threatened Michael with them. Lowther then put down the scissors and grabbed a broom and broke it over Michael's back. Lowther next entered the living room, grabbed a cane that belonged to Michael's wife, Trisha, and began to hit Michael on the back with it. Lowther then turned to Trisha and started to hit her with the cane. Lowther then got on top of Trisha and started hitting Trisha with her hands. Lowther eventually stopped and went upstairs.

Michael called the police. Shortly thereafter, Officer John O'Hara (" Officer O'Hara" ) of the New Castle County Police Department arrived at Michael's home. After briefly speaking with Michael, Officer O'Hara went inside Michael's home and asked Lowther to come downstairs. Officer O'Hara then handcuffed Lowther and placed her in the back of a patrol car. Trisha was transported to the hospital by ambulance.

Lowther complained of stomach and vaginal pain and was also transported to the hospital. While Lowther was in the police car, she stated that if she saw Trisha at the hospital, she was going to " F*** kill her." At the hospital, Officer O'Hara read Lowther her Miranda rights and asked her questions. ...

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