Submitted: June 5, 2019
Below: Superior Court of the State of Delaware ID. No.
appeal from the Superior Court. AFFIRMED.
M. Walker, Esquire, Assistant Public Defender, Wilmington,
Delaware, for Appellant, Richard Cushner.
L. Arban, Esquire, Deputy Attorney General, Wilmington,
Delaware, for Appellee, State of Delaware.
VAUGHN, SEITZ, and TRAYNOR, Justices.
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,  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.
FACTS AND PROCEDURAL HISTORY
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.
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. 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.
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.
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.
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.
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.
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." 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 ...