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Hickman v. State

Supreme Court of Delaware

May 2, 2018

JERRY HICKMAN, Defendant-Below, Appellant,
STATE OF DELAWARE, Plaintiff-Below, Appellee.

          Submitted: April 18, 2018

          Court Below: Superior Court of the State of Delaware Cr. ID No. S1510010166

          Before VALIHURA, VAUGHN, and SEITZ, Justices.


          Collins J. Seitz, Jr. Justice.

         This 2nd day of May, 2018, having considered the briefs and the record below, it appears to the Court that:

         (1) A Superior Court jury convicted Jerry Hickman of felony theft, securities fraud, sale of unregistered securities, and forgery. The convictions arose out of Hickman's solicitation of investors for a failed start-up corporation. Hickman appeals only his forgery convictions, claiming that the State improperly turned single counts of forgery into multiple counts, which allegedly violated the multiplicity doctrine of the Double Jeopardy Clause. After a careful review, we find no plain error in the State's charge of multiple counts of forgery and affirm.

         (2) In 2007, Hickman founded 911 Locator Systems, Inc., to develop a strobe light installed at the end of a driveway that would automatically turn on when a 911 call was placed from that location. To fund the start-up, Hickman offered and sold unregistered securities to investors and obtained loans. During fundraising, Hickman sent documents by email to investors and lenders representing that the company was profitable and growing.

         (3) In June 2015 an investor became suspicious about the accuracy of the representations being made, and filed a complaint with the Delaware Department of Securities Regulation. The State's Department of Justice Investor Protection Unit conducted an investigation that revealed that Hickman emailed to investors and lenders altered monthly bank statements and annual tax records, which portrayed the corporation as much more profitable than it was.[1] Specifically, Hickman sent two investors seven altered corporate tax returns for 2007 through 2013 that showed substantial profits, income, and activity, despite the reality that the company had little to no activity of the kind.[2] In an e-mail to Ironwood Finance, as part of a March 2015 loan application, [3] Hickman attached seven altered bank statements for each month from June to December 2014.[4] And, in an email to Viking Finance, as part of a June 2015 loan application, [5] he attached three altered bank statements for each month from October to December 2014.[6] The altered bank statements include inflated figures and invented transactions such as payments to attorneys, an engineer, and a manufacturer.[7] Ironwood's CEO explained at trial that to receive the kind of financing Hickman applied for, a business must have good cash flow, regular deposits, and a sufficient average balance.[8] He testified that if accurate bank statements had been submitted, Hickman would not have received financing.[9]

         (4) The jury found Hickman guilty of six counts of securities fraud, six counts of offer or sale of unregistered securities, one count of theft, six counts of theft greater than $1500, one count of theft under $1500, seven counts of second degree forgery, and ten counts of third degree forgery.[10] On February 3, 2017, the court sentenced Hickman to three years at Level V suspended after two years with decreasing levels of supervision, and restitution to the victims totaling over $39, 000. Hickman appealed only his forgery convictions.

         (5) Hickman argues the Superior Court erred by allowing the State to pursue a separate count of forgery for each altered document instead of one count for each email that contained a number of documents. According to Hickman, pursuing a separate count of forgery for each document attached to an email violated the multiplicity doctrine of the Double Jeopardy clause. While "[a]ppeals of constitutional issues generally receive de novo review, "[11] Hickman did not raise this issue before the trial court. Thus, we review for plain error.[12]

         (6) The Double Jeopardy Clause of the United States Constitution and the Delaware Constitution are similar. Both state in substance that no person shall be "twice put in jeopardy of life or limb" for the same offense.[13] "Double jeopardy, as a constitutional principle, provides the following protections: (1) against successive prosecutions; (2) against multiple charges under separate statutes; and (3) against being charged multiple times under the same statute."[14] The third of these protections is known as the multiplicity doctrine, which includes "'the charging of a single offense in more than one count' of an indictment."[15] The question to be answered is "whether one violation of a single statute or two discrete violations of that same statute" occurred.[16]

         (7) Under 11 Del. C. § 861(a)(3), "[a] person is guilty of forgery when, intending to defraud, deceive, or injure another person, . . . the person: (3) [p]ossesses a written instrument, knowing that it was made, completed or altered under circumstances constituting forgery." The Code defines a "written instrument" as "any instrument or article containing written or printed matter or the equivalent thereof, used for the purpose of reciting, embodying, conveying or recording information or constituting a symbol or evidence of value, right, privilege or identification."[17]

         (8) Hickman argues that the State "impermissibly divided a single crime of forgery into a series of spatial units" because each group of documents he transmitted by email should have been considered a single violation of 11 Del. C. § 861.[18]According to Hickman, charging him by the document rather than by the email violates the multiplicity prohibition. The forgery statute, however, makes no distinction between groups of forged instruments and individual ones. According to the statute, the possession of "a written instrument" is a crime. Because Hickman forged multiple instruments-bank statements and tax returns-the State properly charged Hickman with multiple offenses of the forgery statute.

         (9) Hickman relies on Zugehoer v. State, in which the defendant was convicted of three counts of home improvement fraud based on a single offense- one count for each subpart of the statute.[19] Under the statute, a party commits home improvement fraud either by "[f]ailing to substantially complete the home improvement, " "[f]ailing to pay for the services, labor, materials or equipment, " or "[d]iverting said funds" for another use.[20] In Zugehoer, the defendant had done all three. This Court reversed the conviction, explaining that the subparts were just "multiple methods to commit a single offense"-not three separate offenses.[21] Here, Hickman did not commit forgery by ...

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