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Jones v. State

Supreme Court of Delaware

January 7, 2020

GARY JONES, Defendant Below, Appellant,
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: October 30, 2019

          Court Below: Superior Court of the State of Delaware Cr. ID. Nos. 1706012725 1708022021

          Before VALIHURA, VAUGHN, and TRAYNOR, Justices.


          James T. Vaughn, Jr., Justice

         On this 7th day of January 2020, upon consideration of the parties' briefs and the record on appeal, it appears to the Court that:

         (1) Appellant, Gary Jones, appeals from a Superior Court jury verdict finding him guilty of Aggravated Menacing, Possession of a Deadly Weapon During the Commission of a Felony (PDWDCF), Terroristic Threatening, Unlawful Imprisonment Second Degree, Assault Third Degree, Endangering the Welfare of a Child, and two counts of Breach of Conditions of Bond During Commitment. He sets forth two claims. The first is that the State presented insufficient evidence to support a jury finding that he displayed what appeared to be a deadly weapon or that he possessed a deadly weapon, which are elements, respectively, of Aggravated Menacing and PDWDCF. The second is that the State failed to present sufficient evidence to support a jury finding that his detention in lieu of bail was in connection with a felony charge, which is an element of the offense of Breach of Conditions of Bond During Commitment. We find no merit to either claim and affirm.

         (2) On June 17, 2017, Jones attended a baby shower with Natosha Frisby and their child. During the event, Frisby took the baby to a women's bathroom. While Frisby was inside the bathroom, Jones entered, looked around, and asked if she was "here with someone else."[1] Frisby told him to leave the women's bathroom. Jones "looked in the stall, didn't see anyone."[2] After the baby shower, Jones, Frisby, and their child went to Frisby's home. Jones and Frisby drank wine, and Frisby fell asleep on the couch. Later that night, Frisby awoke to Jones standing over her, punching her in the face. He continued to punch her, then covered her mouth to muffle her screams. She testified at trial that Jones was much bigger than her and she was unable to push him off while he hit her. He then ordered her into the kitchen. In the kitchen, Jones grabbed a screwdriver from a kitchen island. He then put the screwdriver toward her chest and said, "I'm going to ask you this question again, and if you don't tell me what I want to hear, I'm going to kill you, have you been cheating on me?"[3] Frisby further testified that the screwdriver was touching her chest and that she feared for her life as Jones pointed the screwdriver at her. Eventually, Jones calmed down and left. Frisby called 911 and, later that night, went to the hospital, where pictures of her injuries were taken.

         (3) On August 7, 2017, Jones was arrested for Aggravated Menacing, PDWDCF and the above-mentioned other charges related to the June 17 incident. Bond was set that day, and a condition was imposed that Jones have no contact with Frisby or their child. Jones was unable to post bond and remained in detention. Sometime later in August of 2017, Frisby received an envelope addressed to their child. It was postmarked August 14, 2017. The return address indicated it was sent by Jones from prison. Inside the envelope was a letter to Frisby from Jones. A grand jury subsequently indicted Jones on two counts of Breach of Conditions of Bond During Commitment. A jury convicted Jones on all counts.

         (4) Jones did not move for judgement of acquittal on any charge. Where defense counsel does not move for judgement of acquittal, "the defendant has failed to preserve the right to appeal the issue of the sufficiency of the evidence to convict, . . . [and] we . . . apply the plain error standard of review."[4] "Under the plain error standard of review, the error complained of must be so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process."[5] "[T]he doctrine of plain error is limited to material defects which are apparent on the face of the record; which are basic, serious and fundamental in their character, and which clearly deprive an accused of a substantial right, or which clearly show manifest injustice."[6] In the context of this case, a finding of plain error would require a finding that the trial judge erred by not sua sponte entering a judgment of acquittal on the Aggravated Menacing charge, the PDWDCF charge, or the two Breach of Conditions of Release During Commitment charges, despite the absence of a motion. (5) Aggravated Menacing occurs "when by displaying what appears to be a deadly weapon that person intentionally places another person in fear of imminent physical injury."[7] Whether the defendant has displayed "what appears to be a deadly weapon," depends on the victim's belief.[8] It is sufficient under the statute that the weapon "appears" to be a deadly weapon "even if it turns out not to be a deadly weapon."[9]

         (6) PDWDCF occurs when a person possesses "a deadly weapon during the commission of a felony," in this case, Aggravated Menacing.[10] A deadly weapon,

includes a "firearm, . . . a bomb, a knife of any sort (other than an ordinary pocketknife carried in a closed position), switchblade knife, billy, blackjack, bludgeon, metal knuckles, slingshot, razor, bicycle chain, or ice pick or any 'dangerous instrument,' as defined in paragraph (4) of this section, which is used, or attempted to be used, to cause death or serious physical injury.[11]

         (7) A dangerous instrument includes "any instrument, article or substance which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or serious physical injury."[12]

         (8) Both Jones and the State agree that the screwdriver was a dangerous instrument. Jones's claim on appeal is that the screwdriver was not a deadly weapon because he never used or attempted to use it to cause death or serious physical injury. The State disagrees, focusing instead on the dangerous instrument's potential to kill or seriously injure Frisby.

         (9) The Delaware General Assembly amended the definition of "deadly weapon" in 1992 to include ordinary objects that, through their use, became deadly weapons.[13] The "use test" qualifies "dangerous instrument" - where a dangerous instrument is used or attempted to be used to cause death or serious physical injury, that object becomes a deadly weapon.[14] Items either enumerated as "deadly weapons" or similar to those listed in § 222(5) bypass the "use test" because those objects (guns, bombs, certain knives, etc.) are per se deadly weapons.[15]

         We explored the ramifications of the 1992 amendment in Taylor v. State:

The General Assembly intended to add to the specific list of deadly weapons any item which had previously fallen within the designation of a dangerous instrument. In so doing, the legislature imparted to such items a 'use' test which characterized those items as deadly weapons if, under the circumstances of their use, they had the potential for the infliction of death or serious physical injury. Thus, the legislature no longer defines an item as a deadly weapon according to its common, everyday usage, but instead has made dispositive that ...

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