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Parker v. State

Supreme Court of Delaware

January 14, 2019

JUSTIN PARKER, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: November 14, 2018

          Court Below: Superior Court of the State of Delaware Case No. N1703009269

         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.

          Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and TRAYNOR, Justices, constituting the Court en Banc.

          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 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 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 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.
[. . .]
(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 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 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 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 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 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 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 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 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 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] 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 hour[47]-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 manager responded that to the best of his ...


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