Submitted: May 6, 2015.
Case Closed May 26, 2015.
This decision has been designated as "Table of Decisions Without Published Opinions." in the Atlantic Reporter.
Court Below -- Superior Court of the State of Delaware, in and for New Castle County. Cr. ID No. 1211005646B.
Before STRINE, Chief Justice, HOLLAND, and SEITZ, Justices.
Collins J. Seitz, Jr., Justice.
On this 7th day of May 2015, it appears to the Court that:
(1) On January 7, 2013, a New Castle County grand jury indicted Defendant-below/Appellant Troy Dixon on charges of first degree assault, possession of a firearm during the commission of a felony (" PFDCF" ), disregarding a police officer's signal, resisting arrest, and possession of a firearm by a person prohibited (" PFBPP" ). The Superior Court granted Dixon's motion to sever the PFBPP charge from the other charges.
(2) At his first trial, a Superior Court jury in September and October, 2013 convicted Dixon of the lesser included offense of second degree assault, PFDCF, and resisting arrest. Dixon was sentenced as follows: for second degree assault - eight years at Level V suspended after six years for decreasing levels of supervision; for PFDCF - twelve years at Level V; and for resisting arrest -- twelve months at Level V suspended for twelve months at Level I. His conviction and sentence were affirmed on appeal.
(3) On the severed charge, the Grand Jury indicted Dixon for PFBPP in violation of Title 11, Section 1448(e)(2). Section 1448(e)(2) of the PFBPP statute (" Serious Injury PFBPP" ) includes an element of the crime in addition to being a person prohibited and possessing a firearm; the negligent causing of serious physical injury or death through the use of the firearm. The trial judge instructed the jury on Serious Injury PFBPP as well as the included offense, PFBPP in violation of 11 Del. C. § 1448(e)(1) (" Simple PFBPP" ). Conviction for Simple PFBPP does not require proof that the defendant negligently caused serious physical injury or death.
(4) At the second trial, the jury convicted Dixon in April, 2014 of Simple PFBPP. He was sentenced to eight years at Level V.
(5) On appeal, Dixon argues that the Superior Court violated Article I § 8 of the Delaware Constitution by impermissibly broadening the Grand Jury indictment. According to Dixon, because the lesser included offense of Simple PFBPP was supposedly not part of the indictment, the trial court could only instruct on Serious PFBPP.
(6) Dixon did not object to the jury instruction at trial. This Court therefore reviews the trial court's formulation of the jury instruction for plain ...