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Gainer v. State

Superior Court of Delaware

July 9, 2019

JASON J. GAINER, Defendant Below, Appellant.
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: June 19, 2019

          ORDER

         After consideration of the no-merit brief and motion to withdraw filed by appellant's counsel, [1] the State's response, and the Superior Court record, it appears to the Court that:

         1)On October 10, 2018, a Court of Common Pleas ("CCP") jury found Jason J. Gainer ("appellant") guilty of criminal contempt of a Protection from Abuse ("PFA") order and resisting arrest. The presiding Judge sentenced him on the resisting arrest conviction to 1 year at Level 5, with credit for 37 days served, and the balance suspended for 9 months of Level 3 probation, and on the criminal contempt of a PFA conviction to 1 year at Level 5 suspended for 9 months of probation at Level 3. The probations are to run concurrently.

         2)The evidence presented at the trial established the following.

         On April 26, 2018, Family Court issued a PFA against appellant on behalf of his minor child, Mary Jones.[2] The order prevented him from having contact with Mary except as permitted by a Family Court visitation/custody order. Appellant was present in the courtroom when Family Court entered that order; thus, he had actual notice of that condition.

         Mary, who was nine-years-old at the time of the trial, testified to the following. On May 22, 2018, she was at her daycare. She, her friend, and her friend's brother went outside to play "fake recess."[3] She saw her father while she was outside and she "heard something from his voice."[4] She thinks it was like, "I love you, Mary."[5] Her friend told Mary that her father called Mary to come over but Mary did not think he would have said that. She knows he said something. She then ran inside.

         One of the arresting officers testified at trial. He testified to the following.

         The police were called regarding a violation of the PFA. They obtained the PFA Order from Tracy Jones, Mary's mother and appellant's ex-wife. The police also determined by a computer search that the PFA remained active. The police went to appellant's residence and were informed he was at his parents' residence down the road. Four policemen, riding in two marked vehicles, pulled into the driveway adjacent to the parents' residence. Two of the officers were in their issued uniforms; another two were in plainclothes and wearing vests marked "STATE POLICE" in big yellow letters. The police saw appellant outside, in back of his parents' house. They started to walk towards appellant; he turned and ran. They identified themselves as "State Police" and commanded him to stop running. They chased him a good ways, maybe half a mile, before he gave up.

         After being given his Miranda[6] warnings, appellant admitted he had walked past Mary's daycare and shouted out to her, "I love you Mary."[7] He admitted he ran because they were the police.

         Appellant testified to the following at the trial. He and Tracy Jones had marital problems and at times, each of them had PFAs against the other. Appellant happened to be walking past Mary Jones' daycare. He was not really certain she was at that daycare. However, when he saw her outside, he was happy to see her and he said, "I love you Mary."[8] He maintained that he did not yell it; he blurted it out.

         He admitted he ran from the police.

         The jury found appellant guilty of the counts of criminal contempt of a domestic violence protective order and resisting arrest.

         3) On appeal, appellant's attorney ("Counsel") filed a brief and a motion to withdraw. He concluded the appeal is wholly without merit based upon a conscientious examination of the record and the law. Counsel provided appellant with the opportunity to submit issues he wished the Court to consider. Appellant provided statements on a copy of the trial transcript and these annotations and/or statements were attached as Exhibit B to Counsel's Brief on appeal. The substance of these submissions is discussed in paragraph 6 below.

         4)The State of Delaware ("the State") argues the appeal is meritless. It argues Appellant's annotations and/or statements do not set forth any ground for relief, and the evidence at trial, which included appellant's admissions of violating the PFA and resisting arrest, was overwhelming. Thus, the State urges the Court to affirm the judgment below.

5)The standard of review of an appeal from CCP is as follows:
The Superior Court is authorized to consider appeals from the Court of Common Pleas in criminal matters. When addressing appeals from the Court of Common Pleas, the Superior Court acts as an intermediate appellate court, with the same function as that of the Supreme Court. In considering an appeal from the Court of Common Pleas to the Superior Court, the Superior Court determines whether there is legal error and whether the factual findings made by the trial judge are sufficiently supported by the record. Factual findings by the Court of Common Pleas are given deference and are reviewed for clear error. Legal questions are reviewed de novo (footnotes and citations omitted).[9]
When reviewing a motion to withdraw and an accompanying brief, this Court employs the standard that the Supreme Court employs in Rule 26:
[T]his Court must: (i) be satisfied that defense counsel has made a conscientious examination of the record and the law for arguable issues on appeal; and (ii) conduct its own review of the record and determine whether the appeal is so totally devoid of at least arguably appealable issues that it can be decided without an adversary presentation (footnote and citations omitted).[10]

         6)I set forth below and consider the annotations/statements/comments appellant has made on ...


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