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Cushner v. State

Supreme Court of Delaware

August 5, 2019

RICHARD CUSHNER, Defendant Below, Appellant,
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: June 5, 2019

          Court Below: Superior Court of the State of Delaware ID. No. 1710011753 (N)

         Upon appeal from the Superior Court. AFFIRMED.

          Nicole M. Walker, Esquire, Assistant Public Defender, Wilmington, Delaware, for Appellant, Richard Cushner.

          Brian L. Arban, Esquire, Deputy Attorney General, Wilmington, Delaware, for Appellee, State of Delaware.

          Before VAUGHN, SEITZ, and TRAYNOR, Justices.

          VAUGHN, JUSTICE:


         A Superior Court jury convicted the appellant, Richard Cushner, of Burglary in the Third Degree and two counts of Criminal Mischief. Cushner contends on appeal that the Superior Court erred in denying his motion for judgment of acquittal because the only evidence connecting him to the crimes was a handprint that was discovered on the outside of a storage trailer he allegedly burglarized. Relying on our case of Monroe v. State, [1] Cushner contends that the motion should have been granted because the State failed to present sufficient evidence to establish that his handprint was impressed at the time the crimes were committed. For the reasons that follow, we conclude that Monroe is distinguishable and that the evidence in this case is sufficient to sustain Cushner's conviction.


         Thomas Dicesare is the owner of Brandywine Motorwerks in Newark. His business involves rebuilding Porsches into race cars and providing race support to his customers. Some of his customers leave trailers used for storing and transporting their vehicles on Dicesare's lot. The lot at Brandywine Motorwerks is fenced in, but the gate to the fence is open during regular business hours (Monday through Friday, 8:00 a.m. to 5:00 p.m.). During regular business hours, at the time in question, Dicesare was normally at the lot by himself, and anyone who wanted to enter the lot when the business was open could do so.

         When Dicesare opened his lot on Monday morning, September 18, 2017, he discovered that the side door to an auto storage trailer he owned was open. He saw a black, left handprint on the outside of the trailer door.[2] The trailer door was white in color. He also saw that a padlock and latch on the door handle had been cut. Inside the trailer, he found that a duffle bag and a car cover were missing. He also found that the lock on another trailer belonging to a customer had been cut, but nothing had been taken from inside that trailer. Dicesare called the police.

         The police gathered four fingerprints from the handprint on Dicesare's trailer door but found no other prints anywhere on that trailer or the customer's trailer. Three of the fingerprints had enough detail to make a comparison, and those prints were identified as belonging to Cushner.

         At trial, Dicesare testified that the last time before Monday, September 18, he saw or entered his trailer was on Friday, September 15. He explained that he had worked in the trailer that day and had gone in and out of the same door on which the handprint was subsequently discovered, but had not noticed any handprint. He also testified that he and some friends went to his shop on the afternoon of Saturday, September 16, to hang a sign on his building. Although the gate to his shop's lot was open while he and his friends hung the sign on the building, he was in the lot the whole time and did not see anything or anyone out of the ordinary. He further testified that he reviewed video from his surveillance camera from the time he left Saturday to the time he returned Monday morning and that this footage did not show the burglary. He explained, however, that each night the video footage went pitch black when the lights in the lot turned off as scheduled at 2:00 a.m. and remained that way until the sun rose. Finally, he testified that he had never seen or met Cushner before and that Cushner had no reason to be on his shop's lot.

         The fingerprint examiner explained how he was able to match three of the prints to Cushner and that the fourth print was unusable. He was not able to give an opinion on when the prints were left on the trailer door, and although he explained that fingerprints are fragile such that they can be affected (and removed) by weather, the investigating officer testified that the black powder dust used to lift the handprint was still visible on the trailer the day before trial, which was ten months after the burglary.

         The jury also heard testimony about Brandywine Motorwerks's business and saw pictures depicting its location and layout. Brandywine Motorwerks sits behind a car wash and a rental truck facility. There are two ways to enter its fenced-in lot: (1) through the main building itself (by entering the rear of the building and walking through) and (2) through a gate in the fencing that faces the car wash. Dicesare was the only person with a key to the gate and building, and he testified that he shuts and locks the gate and the building every day when he leaves.

         At the close of the State's case, Cushner moved for judgment of acquittal. The Superior Court denied his motion in a bench ruling. It reasoned that the facts were distinguishable from Monroe because "[t]his is not the glass or Plexiglass front door that everybody might use when they come in and out of that building."[3] The court continued, "This instead is on one trailer that belongs to the business and is used by the business owner and the person who actually has their property within it. It's not a regular commercial establishment where people go and ...

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