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 12, 2022

ORDER

Defendant’s Motion for Judgment of Acquittal – DENIED

On this 12

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 official misconduct and 

one count of profiteering. 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 trial
2

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 Corporations. At the time 

he filed the certificate, he still served as Council President. When 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 half 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 choice. Because the City renewed the Fund 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 email, he made “clear that $40,000 of the remaining $250,000 is 

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

used during the second half of Fiscal Year 2017. Other evidence, 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 SDA. 

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 release of 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 the money that made its way to SDA through PAL-W.

2

 

6. When the State rested after its 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 reasonable 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 evidence 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 timeperiod was (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 October 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, had the responsibility to judge his 

credibility, the credibility of other witnesses, and to decide 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 the two documents into context. The State’s evidence did not 

support 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. After the Court considered the parties’ 

arguments and the evidence, it denied the 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 official misconduct. 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 official misconduct pursuant to 11 Del. C. § 1211(3). 

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

acquittal regarding official misconduct pursuant to §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 motion 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 functions in a way intended to 

benefit [Mr. Gregory’s] own property or financial interests under

circumstances in 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: whether

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

12. Prior to trial, Mr. Gregory filed a pre-trial motion requesting a bill of 

particulars, 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 

application or request that the State provide a more definite response. 

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

of acquittal for two reasons. Both contentions challenge what can properly qualify

as “official functions.” First, 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 contends 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 counters that the question was a factual issue for the jury. First, 

the State stresses 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 the 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 meanings.

14

 Thus, the State 

relies upon the Merriam Webster’s Dictionary 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 summarizes 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 elements

of the offense. As 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) (providing “[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, the jury must apply its commonly accepted meaning.

17

 Here, the

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 functions.” The jury’s decision to find 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 functions 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 President 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 Staff submitted a 

draft grant 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) (TABLE).
8

New Jersey Superior Court decision in support of his motion, but both decisions are 

inapposite. 

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 nature 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 decision does not define official function, 

comment on the nature of what is an official function, or even address the 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 decision does not support his 

motion because it addresses a similar statute to that addressed in Howell. In State 

v. Brady,

23 the court addressed 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 inherent to his office). 
9

servant’s] office.”25 There, 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 defined, 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).