IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, :

: ID No . 1909016095

:

v. :

:

: THEOPALIS K. GREGORY, :

:

:

Defendant. :

Submitted: December 8 , 2021

Decided: January 1 2 , 202 2

ORDER

Defendant’s Motion for Judgment of Acquittal

– DENIED

On this 1 2 th day of January 2022

, after considering Defendant Theopalis K.

Gregory’s motion for judgment of acquittal, and the State’s opposition, it appears

that:

1. The State charged Mr. Gregory with two counts of o fficial m isconduct and

one count of p rofiteering . The charges stemmed from actions he allegedly took or

refrained from taking while serving as the President of the Wilmington City Council

.

The State’s allegations centered on Mr. Gregory’s efforts, while in office, to secure

start

- up funding for Student Disabilities Advocate, Inc. (“SDA”) , a non

- profit

corporation

.

2. A New Castle County jury heard the case over four days , and the trial2

concluded on November 15, 2021. The following facts are those presented at trial,

considered in the light most favorable to the State

. SDA formed in 1996 and

operated in some capacity until early 1998. Then , it ceased paying franchise taxes

and became dormant

. Years later, on October 13, 2016, Mr. Gregory revived the

certificate of incorporation with Delaware’s Division of Corporation s. At the t ime

he filed the certificate, he still served as Council President

. W hen he

contemporaneously filed an annual franchise tax report for SDA

, he identified

himself as SDA’s President

.

3. Mr. Gregory served as Council President until January 3, 2017 ; Ms.

Hanifa Shabazz succeeded him in office. During the first ha lf of the 2017 fiscal

year , Mr. Gregory, as Council President had access to a $250,000 Discretionary

Grant Fund (the “Fund”). At the time, the City gave the Council President the

discretion to award money from the Fund to qualifying Section 501(c)(3)

organizations of his or her c hoice. Because the City renewed the F und each fiscal

year , the $250,000 in discretionary money straddled Mr. Gregory and Ms. Shabazz’s

terms , which transitioned at the end of the calendar year. Nevertheless, Mr. Gregory

had already committed $206,400 of the Fund’s Fiscal Year 2017 monies as of

November 10, 2016.

4. On November 10, 2016, Mr. Gregory emailed his Chief of Staff and Ms.

Shabazz . In the e mail, he made “ clear that $40,000 of the remaining $250,000 is

earmarked for SDA.” 1 In fact, at that ti me, only $43,000 remained in the Fund to be

used during the second half of Fiscal Year 2017. Other e vidence, that the jury was

free to accept, supported that Mr. Gregory repeatedly exerted personal pressure on

Ms. Shabazz to award money from the Fund to S DA

.

5. The parties did not dispute that the Fund permitted disbursements to only

1 Wilm

. Ethics Comm ’ n Agreed Disposition, ⁋ 6.3

Section 501(c)(3) organizations. After Ms. Shabazz assumed office in January

2017, she authorized the r elease o f the first installment to the Police Athletic League

of Wilmington (“PAL

- W”) . She did so because SDA did not qualify as a Section

501(c)(3) organization

. Mr. Gregory further acknowledged in a stipulation that he

filed with the Wilmington Ethics Commission that he received a $15,000 personal

benefit from th e money that made its way to SDA through PAL

- W

. 2

6. When the State rested after it s case in chief, Mr. Gregory moved for

judgment of acquittal on all three charges. The Court granted his motion for one: as

to profiteering as proscribed by 11 Del. C. § 1212(1). 3 As the Court explained, the

trial evidence, when viewed in the light most favorable to the State

, would not have

justified a reasonabl e jury’s finding that Mr. Gregory “acquire[d] a pecuniary

interest in any property, transaction or enterprise which may be affected by the

official action.” 4

7. The indictment alleged that he committed profiteering in October 2016;

the State’s evidenc e was insufficient to prove the charge of profiteering for two

reasons. First, the indictment alleged that Mr. Gregory acquired a pecuniary

interest in the enterprise in October 2016 . The only evidence that arguably

supported that he acquired a pecuniary interest in the enterprise during that time

period w as (1) his filing of a certificate of revival for SDA in October 2016 , and (2)

documentation that he served as the non

- profit SDA’s President in Octob er 2016

.
Based upon that evidence alone, the State did not meet its prima facie burden of

proving that Mr. Gregory acquired a pecuniary interest in the non

- profit SDA in

2 Mr. Gregory disputed this at trial . The jury, as finder of fact, ha d the responsibility to judge his
credibility, the credibility of other witnesses, and to de cide the appropriate weight to assign to his
adopted admission found in the Ethics Commission stipulation.

3 See Super. Ct. Crim. R. 29(a) (providing for the Court to enter judgment of acquittal on one or

more offenses , after the evidence in the State’s case is closed if the evidence is insufficient to

sustain a conviction of such offense or offenses).

4 See 11 Del. C. § 1212(1) (providing for the offense of profiteering) (emphasis added).4

October 2016

. Second, the Court independently granted the motion for judgment

of acquittal on the profiteering count because the evidence was insufficient to

support the element that Mr. Gregory acquired an interest in the enterprise in

October 2016 . Namely, SDA incorporated in 1996

. Although the State submitted

(1) a copy of the certificate of revival and (2) the stipulated Wilmington Ethics

Commission Agreed Disposition into evidence , the State offered no additional

evidence to place th e two documents into context

. The State’s evidence did not

s upport a reasonable jury’s finding of guilt on the charge

.

8. Mr. Gregory also moved , mid

- trial, for a judgment of acquittal regarding

the two counts of official misconduct. Afte r the Court considered the parties’

arguments and the evidence

, it denied th e motion as to those two counts and

explained its reasons on the record.

9. Thereafter, at the conclusion of the case , the jury acquitted Mr. Gregory

of one of the two counts of o fficial m isconduct . Specifically, the jury acquitted him

of official misconduct pursuant to 11 Del. C. § 1211(2). The jury found him guilty,

however, of the other count of o fficial m isconduct pursuant to 11 Del. C. § 1211(3).

10. After discharge of the jury, Mr. Gregory now moves for a judgment of

a cquittal regarding official misconduct pursuant t o § 1211(3)

. 5 When deciding this

motion, the Court must determine whether a reasonable jury could find , beyond a

reasonable doubt, that the defendant was guilty of all elements of the offense

. 6

When the Court reviews the evidence for this purpose, it must do so in the light most

favorable to the State

. 7 It must also draw all reasonable inferences from the evidence

5 See Super. Ct. Crim. R. 29(c) (providing the mechanism and timing for filing a mo tion after
discharge of the jury).

6 Cushner v. State , 214 A.3d 443, 446 (Del. 2019).

7 Id.5

in the State’s favor. 8 Finally, the Court must consider the evidence presented in the

entire trial, as opposed to merely what the State presented during its case in chief. 9

11. Count 2 in the indictment alleges the type of official misconduct defined

in 11 Del. C. § 1211(3)

. Namely, Count 2 provides, in relevant part :

[Mr. Gregory ] as a public servant, did while intending to obtain a
personal benefit, . . . perform official f unctions in a way intended to benefit [Mr. Gregory’s] own property or financial interests under

circumstances i n which [his] actions would not have been reasonably
justified in consideration of the factors which ought to have been taken
into account in performing official functions. 10

In his motion, Mr. Gregory’s focuses on a single element of the offense: wheth er

Mr. Gregory’s actions could have qualified as “official function s .”

12. Prior to trial, Mr. Gregory filed a pre

- trial motion requesting a bill of

particul a rs

, and the Court ordered the State to respond

. 11 In the State’s response, it

alleged that the official functions at issue were Mr. Gregory’s “exercise [of] control

over the President’s Grant Funding [and his earmarking] of public money for his

non

- profit.” 12 After Mr. Gregory received the State’s response, he made no further

appl ication or request that the State provide a more definite response.

13. Mr. Gregory now argues that the Court must grant his motion o f judgment

of acquittal for two reasons

. Both contentions challenge what can properly qualif y

as “official function s .” F irst, he contends that the State and the Court failed to

“legally define official functions

. ” 13 Second, he contends that the evidence was

8 Id.

9 See 7 Charles A. Wright & Arthur R. Miller, Introduction of Evidence by Defendant , Federal
Practice and Procedure § 463 (4th ed. 2021) (citing cases explaining that the Court evaluates a
renewed motion for judgment of acquittal based on all the evidence in the case, not just the
evidence presented in the state’s case in chief).

10 D.I. 29 (Reindictment, Count II (Oct. 25, 2021)) (emphasis added).

11 D.I. 30 (Def.’s Mot. for B. of Particulars).

12 D.I. 31 (State’s Resp.).

13 See D.I. 40 (Def.’s Mot. for J. of Acquittal ).6

insufficient to support the jury’s finding that “earmarking” public funds qualified as

an official function . He cont ends that nothing in City of Wilmington parlance or

practice contemplates earmarking funds . Accordingly, he asserts that his actions

could not have been “official.” More specifically

, he argues that his email and

repeated overtures to the incoming council president instructing her that the money

was “earmarked” for SDA did not qualify as an “official function.”

14. The State c ounters that the question was a factual issue for the jury. First,

the State stress es that “official function” is not defined in the Delaware Code.

Second, it emphasizes that Mr. Gregory did not request a jury instruction that defined

official function ; nor did he object to the jury instructions as given. Third, the State

stresses th e ubiquitous authority that recognizes that when the Delaware Code does

not specifically define a term in the statute that creates a criminal offense

, courts

instruct juries to give words their commonly accepted meaning s

. 14 Thus, the State

relies upon th e Merria m Webster ’s D ictionary to define the two terms

. 15 When

doing so , the State accurately recognizes how a reasonable jury should interpret the

phrase: that is, conduct where the actions complained of “ relate to the job or duty

of a person in an office, position, or trust. ” 16

15. Turning to the Court’s analysis, the State correctly summarize s the

controlling law regarding the fact versus matter of law distinction . It was for the

trier of fact to decide what were “official functions

, ” as it was for all other element s

of the offense. A s the Delaware Supreme Court recognized in its decision in Rogers

v. State, when the Criminal Code does not define a word used in the definition of a

14 See e.g., 11 Del. C. § 221(c) (providin g “[i]f a word used in this Criminal Code is not defined
herein, it has its commonly accepted meaning . . .” ). Here, the Court instructed the jury
consistently with § 221(c).

15 See D.I. 41 ( State’s Resp. in Opp., ⁋ 7) (citing the Merriam

- Webster dictionary definitions of
“function” and “official”).

16 Id.7

criminal offense, th e jury must apply its c ommonly accepted mean ing

. 17 Here, t he

parties agree that the terms are not defined in Delaware ’s Criminal Code.

Accordingly, the jury is presumed to have applied the common, ordinary meaning

to the phrase “official function s

. ” The jury’s decision to f ind Mr. Gregory’s conduct

to be official was sufficiently supported by the evidence. Frankly

, had the jury found

it to not be official, its decision would have been unreasonable on this record.

16. More specifically

, the following trial evidence supported the jury’s

finding that Mr. Gregory performed official function s when he steered public money

to SDA : (1) the Council President had the sole authority to determine who received

public money from the Fund; (2) Mr. Gregory served as Council Presiden t when he

claimed in his email to his successor that the funds were already earmarked for SDA

and when he made repeated overtures to Ms. Shabazz ; (3) allocation of the total

available $250,000 in funds for the 2017 fiscal year fell to Mr. Gregory ’s and Ms.

Shabazz ’s discretion because their terms of office straddled the same fiscal year ; (4)

he admitted in the Wilmington Ethics Commission Agreed Disposition that he

questioned Ms. Shabazz “on multiple occasions about the SDA grant proposal”; (5)

he admitted in the Agreed Disposition that Ms. Shabazz “felt ‘pressure’ and a

“constant push’” from him to grant the request; and (6) he admitted that at his

request, while he still served as Council President, his Chief of S taff submitted a

draft gra nt application and list of steps that Ms. Shabazz would need to take to

provide SDA the money, after she assumed the office

.

17. The parties did not identify

, and the Court could not locate

, Delaware

,
secondary, or persuasive authority that defines or sets limits upon what constitutes

an “ official function

. ” Mr. Gregory cites a Delaware Supreme Court decision and a

17 41 A.3d 430 , 2012 WL 983198, at *1 (Del. Mar. 20, 2012) (T ABLE ).8

New Jersey Superior Court decision in support of his motion

, but both decisions are

inap posite.

18. First, Mr. Gregory contends that the Delaware Supreme Court ’s

discussion of § 1211(3)

, in its decision in Howell v. State

, 18 narrows the menu of

actions that could qualify as “official functions

. ” To the contrary, in Howell , the

Court addressed only the scope of § 1211 (2) and not § 1211 (3)

. 19 When it did

, it

focused on a case

- specific application of § 1211(2) ’s elements of “refraining from

performing a duty which is

. . . clearly inherent in the na ture of the office

. ” 20 There

,

the Court addressed the term “official function” only to explain that conduct

“inherent in the nature of an office” may differ from an “official function” as

referenced in § 1211(3)

. 21 The Howell dec ision does not define official function

,

comment on the nature of what is an official function, or even address th e term in a

way that could limit what a reasonably jury could find to qualify as an official

function. 22

19. Likewise, the New Jersey Superior Court deci sion does not support his

mo tion because it addresses a similar statute to that addressed in Howell

. In State

v. Brady

, 23 t h e court addr essed New Jersey’s version of Delaware’s § 1211(2)

. 24 As

in the Howell decision, the New Jersey court did not define or somehow limit what

could be considered an official function

. Rather, the court addressed what it meant

to refrain from performing a public duty , “clearly inherent in the nature of [ a public

18 421 A.3d 892 (Del. 1980).

19 Id. at 897.

20 Id. at 895.

21 Id. at 896

- 98.

22 See id. at 897 (providing only that “the offense of official misconduct under § 1211(2) is not
confined to the failure of a public servant to perform his official powers, functions or duties” )

. 23 172 A.3d 550 (N.J. 2017).

24 See id. at 556 (addressing New Jersey Statutes Annotated section 2C:30

- 2b, which provides
similarly to Delaware’s statute, that a public servant commits “official misconduct” when he or
she refrains from performing a duty which is imposed upon him by law or inhere nt to his office).9

servant’s ] office.” 25 The re, the allegations centered on a judicial officer ’s action

when she allegedly hid a wanted individual in her home. 26 Based on the lack of a

nexus between the courtroom and the conduct, the New Jersey Superior Court held

that the prosecution insufficiently defi ned , for a grand jury, what duty was inherent

in the judge’s office

. 27 In Mr. Gregory’s case, his successful attempt to steer money

from the Fund to SDA had a clear nexus to his office. As a result, nothing in the

Brady decision supports the premise that the judge, as opposed to the jury, should

have decided this matter.

20. In summary

, based on the evidence at trial, viewed in the light most

favorable to the State, the jury reasonably found that Mr. Gregory’s email to his then

Chief of Staff and President

- elect Shabazz constituted an official function of his

office. Because Mr. Gregory challenges the sufficiency of the evidence as to no

other element , his motion for judgment of acquittal must be denied.

WHEREFORE , for the reasons discussed above , Defendant Theopalis K.

Gregory’s motion for judgment of acquittal is DENIED

.

IT IS SO ORDERED.

/s/Jeffrey J Clark

Resident Judge

oc: Prothonotary

sc: Counsel of Record

25 Id. at 562.

26 Id.

27 Id. at 567; c.f. Howell , 421 A.2d at 898 (finding, what is in essence a common law duty, inherent
in all public offices, to refrain from spending public money or resources for personal use).