1 IN THE SUPERIOR COURT OF THE STATE OF DELAWARE EDWARD KELSCH, ) I.D. No. 1208003037 ) and ) ) SANDRA KELSCH ) I.D. No. 1208004171 ) Defendants

- Appellants, ) ) v. ) ) STATE OF DELAWARE, ) ) Appellee )
CORRECTED OPINION 1
Defendants E dward Kelsch and Sandra Kels ch were both convicted of nineteen counts of Animal Cruelty or Neglect to Animals in the Court of Common Pleas and now appeal to this court. Th e events giving rise to this
matter occurred at Defendants‘ residenc e which is situated along the Delaware
and Pennsylvania border

. In their appeal, Defendants argue (1) the State of
Delaware failed to establish the State ‘s territorial jurisdiction over t he offenses, (2) Kent County SPCA officers did not have the legal authority to apply for and
execute a search warrant in New Castle County , and (3) the information failed to put Defendants on sufficient notice of the crimes charged and therefore
hindered t heir ability to prepare a proper defense

. After reviewing the briefs the court sua sponte questioned whether it had jurisdiction to hear the appeal from some of the Defendants‘ multiple

1 This corrected opinion changes the c riminal action numbers referred to in this opinion from those of Court of Common Pleas to those of Superior Court . It also changes minor clerical errors.2

convictions because the sentences imposed for those convictions did not meet the jurisdictional threshold for appeals to this court. At the court‘s request, the parties made written submittals on the jurisdictional issue. In Part I of this opinion the court holds that it lacks appellate jurisdiction to review some of th e convictions because the sentences imposed by the Court of Common Pleas do not satisfy the threshold for this court‘s jurisdiction. In Part II it affirms the
convictions over which it does have appellate jurisdiction. 2

Jurisdiction
On several occasions the Delaware Supreme Court has held that the Superior Court‘s jurisdiction over appeals of criminal convictions in the Court
of Common Pleas is limited to those cases in which the trial court imposed a
sentence o f imprisonment exceedin g one month or a fine exceeding $100. 3 An appellant may not aggregate penalties of multiple offenses for the purpose of meeting jurisdiction requirements. 4 Before examining the specific sentences imposed , the court must address a general issue raised by some of the m. In several instances the trial court imposed fines in excess of $100 but then suspended that fine. For example, in
15

- 07

- 2186 5 the court

- below ordered defendant Edward Kelsch to ―Pay a fine of

2 The court notes that all of Defendants‘ appellate arguments applied to all of their convictions. Therefore there are no arguments on the merits which the court was not able to consider because of its partial dismissal of this appeal. 3 Kostyshyn v. State , 2 010 WL 3398942 (Del.) (―like this Court, the Superior Court's appellate jurisdiction in criminal matters is limited to cases in which the sentence shall be imprisonment exceeding one (1) month, or a fine exceeding One Hundred Dollars ($100.00).‖); Vincent v. State , 2006 WL 2787506 (Del.); Weaver v. State 779 A.2d 254 (Del. 2001). 4 Marker v. State , 450 A.2d 397, 399 (Del. 1982); Hurst , 2003 WL 1387136, at *1. 5 This number corresponds to CCP number 12

- 08

- 4028.3

$1000, of which $1000 is suspended.‖ Defendant was not sentenced to any period of incarceration or probation for th at conviction, which means the suspended fine cannot be re

- imposed for a violation of probation. There is no set of circumstances, therefore, under which Mr. Kelsch can be required to pa y
any fine for his conviction in 15

- 07

- 2186

. This court‘s appellate jurisdiction is determined by the substance, not the language, of the sentence imposed by the
court

- below , and consequently, the sentence for this conviction does not meet
the constitution al threshold

. This court therefore lacks jurisdiction to hear the appeal from 15

- 07

- 2186 and other convictions for which similar sentences

we r e imposed.
A pplying the constitutional threshold s to the sentences imposed below,
th is court holds it has jurisdiction over only the following:

Edward Kelsch

- 2183 ($1000 fine, unsuspended)

- 2184 ($1000 fine, unsuspended)

- 2185 ($1000 fine, unsuspended)
Sandra Kelsch

- 2203 ($1000 fine, unsuspended)

- 2204 ($1000 fine unsuspended)

- 22 05 ($1000 fine unsuspended) 6
N one of the remaining sentences 7 satisfy the threshold for this court‘s appellate jurisdiction , and therefore th e appeal of those convictions will be dismissed .

6 These numbers correspond to CCP numbers 12

- 08

- 4025,

- 4026,

- 4027,

- 4044,

- 4045,

- 4046 respectively.4 The Merits
The court will now turn to the merits of th e po rtions of the appeal which
it has not dismissed.
Facts Defendants‘ ho use and attached garage are located at 800 Chambers Rock Road in New Castle County, Delaware. The border between Delaware and Pennsylvania runs through th at property

. On August 3, 2012 officers of the Kent County Society for the Prevention of Cruelty to Animals ( ―Kent County
SPCA‖ ) , accompanied by a New Castle County police officer , a New Castle county code enforcement officer and two Pennsylvania officials , executed a
search warrant on the property

. Before doing so the SPCA officers went to the
trouble of satisfying themselves that the house and garage are on the Delaware side of the property

. 8

7 The sentences imposed on Edward Kelsch were:

- 2183 $1000 fine

- 21 84 $1000 fine; 6 months suspended for 1 year probation

- 2185 $1000 fine; 6 months suspended for 1 year probation

- 2186 $1000 fine suspended; 30 days suspended

- 2187 $1000 fine suspended; 30 days suspended

- 2188 $1000 fine suspended

- 2189 through

- 2193, and

- 2250 community service

- 2194 costs only

- 2195 through

- 2199, and

- 2251 costs only The sentences imposed on Sandra Kelsch were:

- 2200 $1000 fine

- 2201 $1000 fine

- 2202 $1000 fine; 6 months suspended for 1 year probation

- 2203 through

- 2205 30 days, suspended for 1 year probation

- 2206 through

- 2210, and

- 2252 community service

- 2211 costs only

- 2212 through

- 2217 costs only 8 Officials from the State of Pennsylvania were also present. May 17, 2013 Tr. at 7.5

T he officers first entered the garage , which they found was infested with
―thousands of fli es‖ and smelled of urine and feces. Inside were t hirteen dogs
confined in small wire c ages . Th eir coats were stained yellow with urine and
the animals were living in their own feces

. Following the search of the garage,
the officers entered the house. Much like the garage t he re was a strong stench
of urine and there were feces on the floors, walls, and kitchen counters. F ive dogs , fifteen cats and some ducks had free rein of the house ; the cats were using a bed as a litter box. Once the officers remov ed what they thought were
all the dogs in the home and garage , the y asked defendant Edward Kelsch whether there were any more dogs. He was untruthful, telling the officers there

were no more. Shortly thereafter t he officers then found yet another dog , thi s

one was inside a closed , stench

- filled room with piles of runny feces on the
floor. Th e dog could not stand and h ad maggots coming out of its rectum. It

was later euthanized by a veterinarian

. The d efendants were arrested and charged with misdemeanor o ffenses
and violations concerning their care and treatment of the animals

. Sandra
Kels c h was charged with: 19 counts of Animal Cruelty or Neglect to Animals;
19 counts of keeping unlicensed dogs ; and 19 counts of keeping dogs which
had not been inoculated for rabies. Edward Kelsch was charged with 19 counts of Animal Cruelty or Neglect. After a non
- jury trial, the Court of Common Pleas found the Defendants each guilty of 19 counts of Animal Cruelty or Neglect to
Animals , and acquitted Sandra Kelsch of the license and rabies inoculation6

charges. There was another cons equence of Defendants‘ conduct

— New Castle County declared their house unfit for human habitation

.

Standard of Review Appeals from the Court of Common Pleas ―are on the record and not tried
de novo.‖ 9 W here the Court of Common Pleas judge sits as the finder of fact, an appeal from the decision is upon both the law and the facts. 10 The scope of this court‘s factual review, however, is narrowly circumscribed ; it is limited to a determination whet her the t rial j udge‘s factual findings are ― clearly wrong ‖ and justice requires they be overturned. 11 If the findings of fact ―are sufficiently supported by the record and are the product of an orderly and logical deductive process, the Superior Court must accept them, even though independently it might have reached opposite conclusions.‖ 12 The evidence is sufficient if, when viewed in the light most favorable to the State, ―any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.‖ 13
Analysis Defendants make three arguments on appeal: (1) they argue that the State failed to prove that the Court of Common Pleas had jurisdi ction over these crimes because it did not prove ―convincingly‖ that the crimes took place
in Delaware ; (2) they contend that the evidence seized during a search of their

9 State v. Cagle , 332 A.2d 140, 142 (Del. 1974)

. This court applies the same standard of review to an appeal from the Court of Common Pleas as the Supreme Court applies to appeals from the Superior Court. Id

. 10 Levitt v. Bouvier

, 287 A.2d 671, 673 (Del. 1972). 11 Cagle , 332 A.2d at 142; Levitt , 287 A.2d at 673. 12 Cagle , 332 A.2d at 142. 13 Kupchinski v. State , 2010 WL 1367753, at *2 (Del. Super.).7

property was tainted because the SPCA officers conductin g the search had not
taken an oath of office in New Castle County ; and (3) they assert that the
Information did not provide them with enough information to prepare a defense because it did not link a specific dog to each of the nearly identical allegations
in the Information. These a rguments are without merit.

I. The Court of Common Pleas Ha d Territorial Jurisdiction Over the Offenses Defendants contend that the State failed to establish that the crimes occurred in Delaware and thus the Court of Common Pleas lacked jurisdiction
to hear this case. For want of a better term, th is court will refer to this as ―territorial jurisdiction.‖ In addition to the dispute over whether the evidence is sufficient to support the trial court‘s find that the crimes occurred in Delaware, there is a dispu te over the evidentiary standard to apply to the facts surrounding the jurisdictional issue. The State claims that the appropriate standard is ―beyond a reasonable doubt‖; whereas, although their briefs waffle a bit, the defendants seem to claim that the S tate was required to ―conclusively‖ prove that the crimes occurred in this state

. This court finds
that : (1) ―beyond a reasonable doubt‖

— not ―conclusively‖

— is the standard of proof to be applied here, and (2) there is sufficient evidence in the record to support the Court of Common Pleas‘ finding that the State proved territorial jurisdiction

.8 A. The standard of proof for territorial jurisdiction issues is “b eyond a reasonable doubt.” Defendants vacillate on the standard of proof for territorial jurisdiction questions in criminal cases. At some points in their briefs they stat e that the appropriate standard is ―beyond a reasonable doubt , ‖ 14 at other s they argu e the standard is ―conclusively ; ‖ 15 at still others they argue both ; 16 and finally they seem to argue a hybrid standard applies. 17 All of this means that the court must reexamine the standard of proof applicable here

. The Delaware Code leaves no doubt that the standard to be applied here is ―beyond a reasonable doubt

. ‖ The analysis is a simple one. First, T itle 11 provides that territorial jurisdiction is an element of an offense: ― Facts establishing jurisdiction and venue

. . . must also be proved as elem ents of the
offense. ‖ 18 Second, Title 11 also provides that the State must prove the
existence of the e lements of an offense ―beyond a reasonable doubt.‖ 19 It

14 Op. Br. D.I. 12 at 8 (―the State bears the burden of establishing, beyond a reasonable doubt, that the o ffense . . .occurred in the State of Delaware‖). 15 Id. at 12 (―the State failed to conclusively establish that the actions constituting the offense . . . occurred in Delaware.‖); Id. 13 (―the State did not conclusively establish that the crimes . . . oc curred in Delaware.‖); Reply Br. D.I. 17 at 4 (―the conduct constituting the offense . . . must be conclusively shown to have taken place in Delawa re.‖[emphasis in original); (the evidence ―does not conclusively establish jurisdiction.‖)(―The State was req uired to conclusively show . . .that the conduct occurred in Delaware.‖). 16 Op. Br. D.I. 12 at 13 (―the State failed to meet its burden of establishing jurisdiction either conclusively or beyond a reasonable doubt.‖); Reply Br. D.I. 17 at 4 (―the evid ence offered is insufficient to establish jurisdiction conclusively and beyond a reasonable doubt.). 17 Reply Br. D.I. 17 at 4 (―Therefore, the evidence offered is insufficient to establish jurisdiction conclusively and beyond a reasonable doubt.‖) With this in mind the court notes the irony of Defendants‘ contention that the State‘s proof was ―confusing and conflicting.‖ E.g., Reply Br. at 4. 18 11 Del. C. § 232. 19 11 Del. C. § 301(b) (― No person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt .‖). Delaware law similarly provides that ― the defendant is entitled to a jury instruction that the jury must acquit if they fail to find each element of the offense proved beyond a reasonable doubt. ‖ Id at § 302(a).9

necessarily follows that the Code requires only that the State prove jurisdiction

— element of the c rime

-- ―beyond a reasonable doubt.‖ There has been relatively little case law discussing the standard of proof for territorial jurisdiction, perhaps because there is so little question about
what that standard is. The case law which does exist, however, sho ws that the beyond

- a
- reasonable

- doubt standard applies here. In Sheeran v. State 20 the defendant challenged his conviction for criminal solicitation on the ground that the State failed to prove the Delaware courts had territorial jurisdiction over his

case. It seems that Sheeran had retained the services of a hit man who,

un beknownst to Sheeran, was an FBI informant. One of the assignments
Sheeran gave hi m was to be at up an individu al in Maryland who was causing problems for Sheeran‘s labor union. Th e FBI secretly recorded three
conversations between Sheeran and the informant ; o ne took place in Delaware and the other two took place in Pennsylvania. The Delaware Supreme Court
found the substance of the Delaware conversation was enough to prove an elem ent of the crime occurred in Delaware and therefore establish ed that the
Delaware court s had terri torial jurisdiction

. What is important here is that the Supreme Court applied the beyond

- a
- reasonable

- doubt standard when it made
this determination. Accordin g to the Sheeran C ourt:

Sheeran's jurisdictional challenge, in essence, is an assertion that there was insufficient evidence to support the verdict as to that jurisdictional element of each Count. When a defendant challenges his conviction claiming that th ere was insufficient evidence to support the verdict, this Court determines

20 526 A.2d 886 (Del. 1987).10 whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. 21

Defendants cite only the Delaware Supreme Court‘s opinion in Bright v. State 22 in support of the ir contention that the State must prove the territorial jurisdiction ―conclusive ly.‖ Bright does not stand for that proposition. The defendant in Bright kidnapped a wom a n in Delaware and raped ( or attempted to rape ) her several times as they traversed back and forth across the
Delaware

- Maryland border. Bright argued that the State never prove d Delaware had jurisdiction over the rapes and attempted rapes because , according to him , the State ― never conclusively established where the rapes and attempted rapes occurred .‖ 23 The Supreme Court disagreed, and in doing so simply mirrored the verbiage in Bright‘s argument :

Because a part of the crime of rape conclusively occurred in Delaware, we are satisfied that Delaware retains jurisdiction to prosecute that offense. Furthermore, we note that this result comports with the sound public policy of insuring that individuals a re held accountable for the crimes that they commit. Were Delaware to decline jurisdiction over the rape offenses on the ground that the situs of the sexual intercourse could not be proven, there is no guarantee that Maryland would be able to better prov e that the offenses occurred there. This hardly comports with the legislative intent and mandate of 11 Del.C. §§ 204 and 2736

. 24

21 Id. at 889 (emphasis added). 22 490 A.2d 564 (Del. 1985). 23 Id. at 566

. 24 Id. at 569

– 70.11

For several reasons Bright cannot be fairly read as establishing a ―conclusively‖ standard here. First, t here is no a nalysis (or even discussion) in Bright of the
standar d of proof applicable to territorial jurisdictional question s . Given the Bright Court‘s conclusion about the strength of the State‘s jurisdictional evidence, it seems obvious that the Supreme Court felt it would satisfy any
standard

. Hence, there was no need for it to examine whether the standard

was ― beyond a reasonable doubt ‖ or ― conclusively. ‖ Second, i f, as Defendants
argue , the Supreme Court intended to adopt a ―conclusively‖ standard , one would expect to see a discussion of aforementioned provisions of the Delaware
Code . No such discussion appears in Bright. Third , t wo years after Bright the Supreme Court applied the beyond

- a
- reasonable

- doubt standard in Sheeran , making no mention of Bright in its opinion

. F ourt h , Defendants do not point to any case in which a court has cited Bright for the proposition that a
conclusi vely standard applies , and, insofar as the court‘s own research discloses, no Delaware court has ever done so. The court concludes, therefore that the standard of proof to be applied is whether the State proved beyond a
reasonable doubt that the instant crimes occurred in Delaware.

B. There is sufficient evidence in the record to support the trial court’s finding it had jurisdiction. The Court of Common Pleas found that the State had proven beyond a
reasonable doubt that these crimes occurred in Delawa re. It reasoned:

In this case, I must only determine whether the State has provided sufficient evidence for a reasonable fact

- finder to enter a guilty verdict, not whether the12 State has in fact proven jurisdiction beyond a reasonable doubt Here, there is more than circumstantial evidence of jurisdiction that was upheld in Naylor, there is direct testimonial evidence of proper jurisdiction in the trial record. First, Officer Shetzler of New Castle County Code Enforcement testified that 800 Chambers Rock Ro ad is loca ted in New Castle County. Shetzl er made this determination when he checked the parcel prior to arriving at the investigation. Shetzler posted on the door to the house located at 800 Chambers Rock Road that the residence was declared unfit for human habitation by New Castle County . This direct evidence of Shetzl er testifying in his official capacity concerning his investigation of the jurisdiction and his official action of declaring the home unfit in New Castle County could lead a reasonable fa ct

- finder to believe that the home and the attached garage are located in New Castle County, Delaware. Second, Sgt. Barnes testified that 13 dogs were found in the garage and 6 dogs were found in the home. Barnes' testimony concerning the location of the animals, coupled with Shetzler's testimony that the home is located in New Castle County could lead a reasonable fact

- finder to believe that the alleged abuse of these animals, failure to inoculate, and failure to have dog licenses occurred in the home and garage, located in New Castle County, Delaware. Lastly, the State submitted a copy of the mortgage, which states that 800 Chambers Rock Road is in Newark, Delaware. This could also lead a reasonable fact

- finder to conclude that the home and garage are loc ated in New Castle County, Delaware. The role of this court is not to make an independent judgment whether the State proved beyond a reasonable doubt that the crime occurred in
Delaware. Rather this court is limited to determine whether there is sufficient evidence to support the Court of Common Pleas‘ finding. The Supreme Court13

described th e standar d of review in appeals from criminal convictions in the
Court of Common Pleas:

An appeal from a decision of the Court of Common Pleas for New Castle County, sitting without a jury, is upon both the law and the facts. In such appeal, the Superior Court has the authority to review the entire record and to make its own findings of fact in a proper case. However, in exercisin g that power of review, the Superior Court may not ignore the findings made by the Trial Judge. The Superior Court has the duty to review the sufficiency of the evidence and to test the propriety of the findings below. If such findings are sufficiently sup ported by the record and are the product of an orderly and logical deductive process, the Superior Court must accept them, even though independently it might have reached opposite conclusions. The Superior Court is only free to make findings of fact that c ontradict those of the Trial Judge when the record reveals that the findings below are clearly wrong and the Appellate Judge is convinced that a mistake has been made which, in justice, must be corrected. Findings of fact will be approved upon review when such findings are based on the exercise of the Trial Judge's judicial discretion in accepting or rejecting  ̳live‘ testimony. If there is sufficient evidence to support the findings of the Trial Judge, the Superior Court sitting in its appellate capacity m ust affirm, unless the findings are clearly wrong

. 25
Defendants‘ factual arguments on appeal are a rehash of those presented to, and considered by, the Court of Common Pleas. The trial judge observed the witnesses and chose which testimony to credit. He sp ecifically found ―the testimony of Officer Shetzler as credible and reliable.‖ 26 As the Supreme Court has said, ― [w] hen the determination of facts turns on a question of credibility and the acceptance or rejection of  ̳live‘ testimony by the trial judge; his

25 State v. Cagle, 332 A.2d 140, 141 (Del. 1974) (emphasis added). 26 Aug. 14, 2014 Op. at 8.14

findings will be approved upon review.‖ 27 This court therefore cannot say on the basis of this record that the t rial j udge was ―clearly wrong‖ when he found beyond a reasonable doubt that the instant crimes occurred in Delaware. As a result, it upholds the Court of Common Pleas‘ determination it had territorial jurisdiction

. 28

II. The T rial C ourt P roperly A dmitted the S eized E vidence . Defendants argue the evidence against them was tainted because (a) the Kent County SPCA officers , who had previously taken an oath of office 29 in Kent County, had not been administered an oath of office in New Castle County ; and (b) the SPCA officers lack authority to obtain and execute the
search warrant. The first argument is barred because it was never fairly present ed to the Court of Common Pleas; the second is without merit.

A. Defendants’ state constitutional argument was never fairly presented below. According to Defendants, the SPCA officers who obtained and executed
the search warrant did not take an oath of office in New Castle County until after the search and seizure in this case. They theorize even though the
officers took an oath of office in Kent County, they were obligated by the
Delaware Constitution to take an other oath of off ice in New Castle County. In

27 Levitt v. Bouvier

, 287 A.2d 671, 673 (Del. 1972) (citation omitted). 28 The court notes that the lower court relied on Officer Shetzler‘s official act of declaring the home unfit for human habitation as evidence that the house was located in New Castle County. An officer‘s action in a certain area is not, in and of itself, enough to prove the court‘s territorial jurisdiction. See James v. State , 377 A.2d 15 (Del. 1977). However, the James case is not implicated here because Officer Shetzler‘s act was predicated on his research on the location of the house through the parcel deed. 29 The court has repeatedly used the phrase ―oath of office‖ to distinguish this from the oath the officers took when obtaining the search warrant.15

the absence of an oath of office in New Castle County, according to Defendants,
the seized evidence should have been excluded.
Defendants base their state constitutional argument upon section 1 of
article XIV , which provides i n pertinent part:

Members of the General Assembly and all public officers executive and judicial, except such inferior officers as shall be by law exempted, shall, before they enter upon the duties of their respective offices, take and subscribe the follow ing oath or affirmation

. . . . Their argument raises a host of questions. For example:

 Are the SPCA officers ―public officers‖ to whom this section applies?

 Given that the officers took an oath in Kent County, does this provision require they take anoth er oath of office in New Castle County?

 Violations of state law do not, by themselves, establish that a
search or seizure was unreasonable under the federal
constitution

. 30 Therefore, a ssuming the officers were required to
take an oath of office in New Castle County, does th e absence of

30 In Virginia v. Moore , 553 U.S. 164 (2008) the Court wrote:

We are aware of no historical indication that those who ratified the Fourth Amendment understood it as a redundant guarantee of whatever limits on search and seizure legislatures might have enacted. The immediate object of the Fourth Amendment was to prohibit the general warrants and writs of assistance that English judges had employed against the colonists. That suggests, if anything, that founding

- era citizens were skeptical of using the rules for search and seizure set by go vernment actors as the index of reasonableness.16 such an oath translate to an unreasonable search and seizure in
violation of the constitution?

 The exclusionary rule does not, as a matter of course, apply to all
unreasonable searches and seizures. 31 Therefore, a ssuming the
search and seizure here violated the Fourth Amendment because the officers did not take an oath of office in New Castle County, does the exclusionary rule apply to the evidence they seized? The Court of Common Pleas never had the opportunity to consi der
thes e critical questions . Indeed it d id not even cite to A rticle XIV , S ection 1 in its opinion. All of this is because Defendants never fairly presented their argument to that court.
Defendants‘ argument below

— which was made for the first time two
y ears after the evidence was admitted 32

— made only a passing reference to Article XIV, section 1. Their argument read in its entirety:

An employee of a non

- governmental entity, in this case the Kent County SPCA, has no automatic or general authority to requ est a search warrant. If such an employee is to be granted such power, it must be authorized under the laws of the State of Delaware, including the Delaware Constitution of 1897. As stated in the New Castle County audit, Section 1.2, ―Animal Control Officers and Their Legal Authority‖, the Constitution applies. Under Article XIV, Section 1,

31 In Michigan v. Hudson, 547 U.S. 586, 591 (2006) the Court observed that ―[w]hether the exclusionary sanction is appropriately imposed in a particular case is an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule we re vio lated by police conduct.‖ 32 The evidence was admitted at trial in March and May 2013. Defendants first raised their argument in April, 2015 when they filed a ―Motion to Vacate Judgment.‖ The delay in presenting this argument to the trial court may be an independent reason for denying it. The court does not reach that issue here.17 public officers must take the oath of office before entering upon the duties of their respective offices. Kent County SPCA employees must be formally sworn in before exercising legal authority as animal control officers. Nowhere did Defendants analyze the language of the particular constitutional provision; nowhere did they explain to the trial court why the provision requires the result they seek, and nowhere did they cite any opinions interpreting or applying the provision. In other words, the entirety of their
argu ment consists on a single mention of the Delaware constitution.
This brief argument below falls short of fairly presenting an argument to
the Court of Common Pleas. In Stafford v. State 33 the Delaware Supreme Court
found that a similar perfunctory argume nt did not fairly present an issue to the
trial court:
Stafford claimed that his detention violated Article 1,

Section 6 of the Delaware Constitution . Although Stafford correctly notes that the Delaware Constitution provides protection from unreasonable searches an d seizures, he offers no further explanation or elaboration of this argument. We do not recognize Stafford's conclusory assertion that the Delaware Constitution was violated as a reasoned argument. Stafford theref

ore waived any claim under the Delaware Con stitution by failing to explain his contentions. 34
The Stafford C ourt also noted that ―[w] e have previously described criteria for properly presenting a claim under the Delaware Constitution [in Jones v.

33 59 A.3d 1223 (Del. 2012). 34 Id. at 1231

– 32.18

State ].‖ 35 Defendants never addressed any of those criteria. Their failure to do

so is fatal: Failure to do that operates as a waiver of the claim.

Accordingly, to raise a cognizable claim under the Delaware Constitution . . . [Defendant] must include an analysis of the Jones criteria in both the Summary of Argument and the Argument portions of his opening brief. Because he has not done that, [Defendant] has not fully and fairly presented his Delaware constitutional claim to this Court, and we decline to address it. 36
Accordingly, the court finds that Defendants failed to fairly present their state constitutional argument to the Court of Common Pleas, and therefore this
court will not consider it.

B. The SPCA officers had statutory authority to obtain and execute the search warrant.
Defendants also argue the Kent County SPCA Officers ‘ authority was limited to Kent County and they lacked authority to apply for and execute a search warrant in New Castle County. In their Reply Brief before this court they assert : [A]lthough the State was correct in its assertion that

Kent County SPCA was granted statutory authority to apply for, and execute a search warrant, its argument fails becaus e the State failed to recognize that the relevant statutes distinguish between the Delaware SPCA and the Kent County SPCA did not have statutory authority to apply for, and execute, a search warrant in New Castle County. 37

35 Id. at 1232, n.50 citing Jones v. State , 745 A.2d 856 (Del. 1999). 36 Munroe v. State , 70 A.3d 154, 158 (Del. 2009). 37 Reply Br. 8.19

Their argument is based on the erroneous assumption that at the time of these
events the Delaware Code geographicall y limited the authority of the Kent County SPCA

. In their brief they cite 3 Del. C . §7904 for the proposition that ―the authority to execute a warrant of arrest, or a search warrant, is again
conferred to the D elaware SPCA in Sussex and New C astle Counti es; the Kent County SPCA is granted this authority only in Kent County.‖ 38 It is true that , at one time , s e ction 790 4 ( then denominated section 7903 ) , 39 limited Kent Count SPCA‘s jurisdiction to that county :

Any warrant of arrest, or other process, issued under or by virtue of the several laws in relation to cruelty to animals, may be directed to and executed by any agent in Sussex and New Castle Counties of this State, so appointed by The Delaware Society for the Prevention of Cruelty to Animals or in Kent County of this State so appointed by the Kent County Society for the Prevention of Cruelty to Animals. No compensation shall be paid to the agent except by the Society

. 40
B ut the General Assembly amended the statute in 2010 41 to give both the Delaware SPCA and Kent County SPCA state

- wide jurisdiction. In 2012, when
these events occurred, section 7904 provided:

Any warrant of arrest, or other process, issued under or by virtue of the several laws in relation t o cruelty to animals may be directed to and executed by any agent so appointed by either the Delaware or Kent County Society for the Prevention of Cruelty to Animals of this State. No compensation shall be paid to the agent except by the societies. 42

38 Reply Br. 8. 39 Section 7903 was re

- designated § 7904 in 2005. 40 3 Del. C. §7903 (repealed). 41 77 Del. Laws ch. 393 (2010). 42 3 Del. C. §7904 (emphasis added).20

The co urt therefore finds no merit to Defendant‘s contention that the Kent County SPCA lacked statutory authority to act in New Castle County.

III. Defendants Had Adequate Notice of the Crimes Charged Defendants argue that the I nformation failed to give them sufficient notice of the crimes charged and therefore hindered their ability to prepare a proper defense. They assert that it did not specify ―which of the 19 dogs corresponded to which count in the indictment, nor [did the Information describe] wha t specific acts constituted the alleged cruelty on the part of the defendants.‖ 43 The court finds that the Information provided sufficient information to apprise Defendants of the charges against them and that the State was not required to match each parag raph of the complaint to a specific dog. Further, Defendants were not prejudiced by the alleged deficiencies in the
Information.
A. The Information provided adequate notice to Defendants of the conduct alleged to be unlawful. The black letter law here is straightforward. An I nformation ―shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.‖ 44 It is sufficient if it ―alleges facts concerning the
commission of a crime c harged .

. . to put the accused on full no tice of what he is charged with ‖ and it enables the ―defendant to adequately prepare his

43 Appellants‘ Opening Brief at 20. 44 Ct. Com. P. Crim. R 7(c)(1).21

defense and protect himself against double jeopardy.‖ 45 The Information in this
case satisf

ies those requirements. The pertinent portions allege each
Defendant committed 19 acts of animal cruelty

. There is no material difference in the allegations . The following is a representative sample:

Cruelty or Neglect to Animal in violation of Title 11, S ection 1325(b)(2) of the Delaware Code of 1974, as amended. EDWARD A. KELSCH, on or about the 6th day of July, 2012, in the County of New Castle, State of Delaware, did intentionally subject a dog, within his custody to cruel neglect, to wit: did allow a c anine to live in unsanitary condition which was injurious to animal‘s health. T he Supreme Court has upheld an I nformation where it ― identifies the crime; states where and when it allegedly occurred; and describes the elements of the
crime .” 46 The elements of the crime are (1) the defendant intentionally or recklessly (2) subjects an animal in the defendant‘s custody to (3) cruel neglect. 47 The Information filed in this case supplies all of that. Indeed, it (1) identifies the crime both by statute and descri ption, (2) identifies that it took place in New Castle County on or about July 6, 2012 and ( 3 ) describes the elements of the crime and put Defendant on notice he was charged with the
crime becaus e he allowed a dog to live in unsanitary conditions which wer e injurious to its health. The court has difficulty fathoming what information is

45 Holland v. State , 194 A.2d 698, 553 (Del. 1963). 46 Wright v. State , 2011 WL 51415 (Del.). 47 11 Del. C. § 1325(b)(2). The statute provides a ― person is guilty of cruelty to animals when the person intentionally or recklessly . . . [s] ubjects any animal in the person's custody to cruel neglect .‖22

missing . N owhere do Defendants identify what additional information about their conduct they needed to prepare a defense. An important consideration when evaluating the s ufficiency of an indictment or information is whether the defendant is prejudiced by its ostensible shortcomings. For example, the Delaware Supreme Court has written that ―[d] ue to our view of the indictment in the present case coupled
with the fact that defendant has not shown any prejudice going to the preparation of his defense, we conclude that defendant was adequately informed of the charges against him and hence, the indictment was constitutionally sufficient .‖ 48 In the instant matter the trial court found that Defendants ―suffered no prejudice in their ability to defend against those charges, and can point to no specific instance of prejudice actually occurring.‖ 49 Despite this Defendants say nothing about prejud ice in their
briefs before this court

. The absence of any real prejudice is underscored by Defendants‘ failure
to raise this issue before trial. Despite the absence of ostensibly critical information, Defendants never sought a bill of particulars. As the Delaware Supreme Court wrote in Howard v. State, 50 ―[i]f Howard was uncertain of what specific conduct he was being prosecuted for, it was his burden to move for a bill of particulars .‖ 51 Further, the instant defendants delayed bringing the alleged defects in the information to the attention of the trial court until well

48 Ciccaglione v. State , 474 A.2d 126, 128 (Del. 1984). 49 Decision After Trial, at 7. 50 2009 WL 3019629 at 4. 51 Id. at *4

.23

after those purported defects could have been cured. Court of Common Pleas Criminal Rule 12 requires that ―[d] efenses and objections based on defects in
the information must be raised by motion before trial. ‖ Here the trial court
also set a deadline of April 12, 2013 for the filing of pre

- trial motions, yet Defendants filed nothing challenging the adequacy of the Information. It was not until June, 2014

— more than a yea r after the trial began

— t hat Defendants
first challenged the sufficiency of the information. During the course of closing argument counsel for one of the defendants told the court

- below ―the State‘s got a real problem in terms of the indictment.‖ 52 Consiste nt with their approach in this court, Defendants did not tell the trial judge how they had been prejudiced by the purportedly insufficient information.

In Malloy v. State 53 the Delaware Supreme Court summarized the law in
a manner which reads as if the Su preme Court had this case in mind:

The courts of this State have consistently viewed an indictment as performing two functions: to put the accused on full notice of what he is called upon to defend, and to effectively preclude subsequent prosecution for th e same offense. These purposes are fulfilled if the indictment, as required by Rule 7(c) , contains a plain statement of the elements or essential facts of the crime. Instead, his challenge arose by motion for judgment of acquittal under Superi or Court Criminal Rule 29(a) at the end of the prosecution's case
- in

- chief. Such a long delay in raising the issue suggests a purely tactical motivation of incorporating a convenient ground of appeal in the event the jury verdict went against the defendan t. Furthermore, the fact of the delay tends to negate the possibility of

52 June 10, 2014 Tr. at 19. 53 462 A.2d 1088 (Del. 1983).24 prejudice in the preparation of the defense. Thus, Malloy's claim that the indictment was defective will be unavailing unless the indictment cannot, by the most liberal construction, be said to have imparted notice to him

. 54 Under this standard the Information filed here was more than sufficient. For their part Defendants rely upon the Delaware Supreme Court‘s opinion in Luttrell v. State

. 55 Defendants do not note in their briefs before this
court that the Court of Common Pleas held that their reliance on Luttrell was procedurally barred because of their delay in bringing it to the trial court‘s
attention. The Court of Common Pleas rendered its written judgmen t on August 15, 2014, but Defendants waited more than a month

— until September
24

— to file a motion for reargument based upon Luttrell. The C ourt of Common
Please held that t h eir motion was barred because it was filed more than five days after its ruling. 56 Even so the Court of Common Pleas , perhaps out an
abundance of caution , briefly commented on the Luttrell

- argument‘s lack of
merit. This court will follow suit.
The court

- below correctly found that Luttrell is critically distinct from the
instant matter. The defendant in Luttrell was charged with a variety of differing
sex crimes. Before trial he sought a bill of particulars which the Superior Court denied. On appeal the Supreme Court held that this court erred in denying Luttrell‘s request for a bill of particulars because the allegations in the

54 Id. at 1092

– 9 3 (Quotation marks, editing marks and cita tions omitted)

. 55 97 A.3d 70 (Del. 2014). 56 Court of Common Pleas Criminal Rule 49(d) permits a judge to apply analogous civil rules to procedural matters not covered by the court‘s criminal rules. H ere the trial judge applied the five day limitation for motions for reargument found in Court of Common Pleas Civil Rule 59(e).25

indictment did not allow Luttrell to ascertain which of his acts was the subject of which of the differing allegations in the indictment. One difference between
Luttrell and this case is immediately apparent. The Luttrell Court observed that ―[t] his Court has explained that, where the defendant is ―uncertain of what specific conduct h e was being prosecuted for, it is the defendant's burden to move for a bill of particular s .‖ 57 Unlike Luttrell, the instant defendants never sought a bill of particulars.
On a broader level Luttrell is materially distinct because the crimes with
which Luttrell was charged differed, thus making it necessary for him to learn what part of his con duct corresponded to what allegation in the indictment. Such is not the case here. There is no material difference between any of the allegations of A nimal Neglect and Abuse in the I nformation. Thus any of the dogs fit any of t he neglect and abuse allega tions. Put another way, Defendants have not shown how it made any difference whether Dog

- 1 was the subject of Paragraph 1 or 2 or 3, etc. of the Information since all of those paragraphs are
the same. In State v. Burke Judge Rocanelli of this court also distinguished
Luttrell where the same conduct gave rise to similarly worded allegations in the
Indictment: With respect to Defendants' motion for a bill of

particulars on the stalking charge, the Luttrell case is distinguishable because the Luttrell indic tment charged the defendant with multiple counts of the same type of conduct, to the point where the defendant could not distinguish what conduct applied to which charge. Here, however, there is no confusion

— and Defendants assert no confusion

— in

57 Id. at 75.26 determinin g the difference in the underlying conduct between the counts because there is only one charge for each type of conduct.
In sum, the court holds that Defendants have failed to argue, much less show, that any required information was omitted from the Information, and they have failed to show they were prejudiced by any purported omission of such information. Their delay in bringing argument to the attention of the
Court of Common Pleas satisfies this court that that Defendants did not believe they wer e hindered in preparing a defense. In the words of the Malloy Court, the ― long delay in raising the issue suggests a purely tactical motivation of incorporating a convenient ground of appeal in the event the jury verdict went against the defendant. ‖

Con clusion
The appeal in this matter is DISMISSED IN PART because this court lacks jurisdiction to hear the appeal from convictions

- 2186,

- 2187 , - 2188 , - 2189,

- 2190,

- 2191,

- 2192,

- 2193 , - 2250,

- 2194,

- 2195,

- 2196,

- 2197,

- 2198,

- 2199,

- 2251 , - 2203,

- 2204,

- 2205,

- 2206 , - 2207,

- 2208,

- 2209,

- 2210,

- 2252 ,

- 221 1,

- 2212,

- 2213,

- 2214,

- 2215,

- 2216 , and

- 2217 . The remaining
convictions , - 2183,

- 2184,

- 2185,

- 2200,

- 2201, and

- 2202 , 58 are AFFIRMED

.

___________________________________ July 2 8 , 2016 John A. Parkins, Jr. Superior Court Judge

58 These numbers correspond to CCP numbers 12

- 08

- 4028 , - 4029 , - 4030 , - 4031 , - 4032 , - 4033 , - 4034 , - 4035 , - 4036 , - 4037 , - 4274 , - 4275,

- 4276,

- 4277,

- 4278 , - 4279 , - 4044 , - 4045 , - 4046 , - 4047 , - 4048 , - 4049 , - 4050 , - 4051 , - 405 2,

- 4053 , - 4280 , - 4281 , - 4282 , - 4283 , - 4284 , - 4285 , - 4025 , - 4026 , - 4027 , - 4041 , - 4042 , - 4043 respectively.27

oc: Prothonotary cc: All counsel of record