Submitted: April 12, 2017
Below: Superior Court of the State of Delaware ID. Nos.
1408022140; 1408022157A; and 1408022157B
STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.
16th day of May 2017, the parties' briefs and
the record of the case having been considered, it appears
Appellant, Datwan Lum, appeals from a Superior Court jury
verdict finding him guilty of Second Degree Burglary, two
counts of Theft from a Senior, Second Degree Conspiracy,
Receiving Stolen Property over $1, 500, and Criminal Mischief
less than $1, 000. Lum makes two claims on appeal. He
contends that: 1) the trial court committed reversible error
by giving a jury instruction which informed the jurors they
could infer from Lum's possession of recently stolen
goods that he was guilty of burglary and theft under certain
circumstances detailed in the instruction and 2) the
instruction given was constitutionally defective because it
did not inform the jury that Lum did not have a duty to
present affirmative evidence to rebut the inference.
Raymond Seigfried left his home at 2210 Hillside Road in
Arden Delaware at approximately 12:10 p.m. on August 24, 2015
to attend a work event. Seigfried returned home around 2:30
p.m., and noticed that his door was not locked. As he entered
his home, the phone rang. Seigfried answered the phone, and
an unknown caller said "I think I have your
then went upstairs and discovered that he had been robbed.
His computer room and three bedrooms were in disarray. He
discovered that his personal briefcase and laptop, his work
briefcase and laptop, a video recorder, a projector, his
wife's oxycodone medication, and some other items were
missing. He estimated the approximate value of the stolen
items at $2, 000.
Siegfried called 911, and Master Corporal Steinberg of the
New Castle County Police Department responded to the call at
about 2:30 p.m. Master Corporal Steinberg and K-9 officer
Corporal Mouser conducted a perimeter check of the house and
discovered a damaged screen and a kicked in basement window.
Master Corporal Steinberg determined that the call Seigfried
received about his missing briefcase came from the Northeast
Market, a convenience store on Northeast Boulevard in
Wilmington. The officer then went to the store and an
employee gave him Seigfried's briefcase. The store
manager also provided the officer with the store's
surveillance video, which showed a Honda sedan pulling into
the store's parking lot at 1:27 p.m. The video showed a
male, wearing a white tank top and glasses, exiting the
passenger side of the vehicle holding what appeared to be a
briefcase, and then putting the briefcase into the
store's dumpster. The video also showed the driver, in a
white t-shirt and khaki shorts, exit the car with what
appeared to be an iPad. The driver entered the store and
handed the iPad to the store clerk, who handed it right back
to the driver. The driver then walked out the store and got
back into his car.
police proceeded to run the make and model of the vehicle
through the state's database, and in conjunction with the
video surveillance, identified Markevous Tymes as the driver.
The vehicle was registered to Tymes' girlfriend,
Chandelier Hagler, who lived in Wilmington. The police
conducted surveillance of Hagler's residence and
succeeded in taking Tymes into custody while he was in the
Honda. The Honda was silver in color and the police noticed
that the Honda had damage to the rear bumper. The police
found Lum at Hagler's residence wearing the same clothes
that he was wearing the day of the burglary. They took him
into custody after a brief foot pursuit.
November 2, 2014, the police contacted Helen Ohlson, who had
been riding her bike near Seigfried's home at the time of
the burglary. She told police that between 1:00 and 2:00 p.m.
on that day she saw two speeding cars about an eighth of a
mile from Hillside Drive. She stated that the first car was a
silver sedan with some "messed-up paint" and some
"trim hanging off." Ohlson saw two black males in the
car in their twenties or thirties, possibly wearing white
t-shirts. Ohlson described the second car as a newer looking
bright blue sedan. She testified that the second car, which
seemed to be following the silver sedan, was driven by a
trial, Lum moved for judgement of acquittal on all counts
except the Receiving Stolen Property charge. He argued that
the evidence was insufficient "to show that he actually
went into the house committing a burglary and a theft and
certainly that he never conspired to do that burglary and
theft." The motion was denied.
was jointly tried with his co-defendant, Tymes. At the prayer
conference, the State requested an instruction informing the
jury that if it found Lum to be in possession of recently
stolen property, it could infer from such possession that he
was guilty of burglary and theft under certain circumstances
explained in the instruction. The State argued that such an
instruction, sometimes referred to as a permissible inference
instruction, had been approved in Hall v.
State and was supported by the evidence in this
case. Both defendants opposed the instruction. Lum argued
that the evidence that he had committed burglary was weak and
giving the jury the instruction would relieve the State of
its burden of proof as to that charge. The trial judge ruled
that Hall applied and the instruction was given.
This Court reviews a trial judge's decision to give a
jury instruction over the defendant's objection de
novo, The Court also considers whether the