IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR K

ENT COUNTY
STATE OF D ELAWAR

E :

: v. : ID No. 1406008729 : THOMAS N. VAN VLIET, : : Defenda nt. : Submitted: Septembe r 14, 2015 Decided : Septem ber 18, 2015 UPON DEFENDANT’S MOTION FOR A JUDGMENT OF ACQUITTAL DENIED ORDER This 18 th day of Septem

ber 2015, upon c onsiderati on of theevidence at trial, Defenda ntThomas Van Vliet’ s (Defendan t’s ) Motion fo r a Judgm ent of Ac quittal, and the Sta

te’s re sponse ther

eto, it a ppears tha

t: 1. Trial began in thi s mat ter on Aug ust 24, 2015 a nd conclude d August

31 , 2015. Defendant was acq uit ted by a jury of the off enses of ( 1) Knowi ngly O perating
or Atte mpti ng t o Op erat e a Cl and est ine Labo rato ry a nd (2) Drug Dealing. He was convicted of the off

enses of ( 3) Possess ion of aFirear m by a Person Prohibite d, and (4) Posses sion of Dru g Paraphern alia. 2. In a written motio n filed on September 4, 2015, Defe ndant moved for a judgm ent of acquitt al of the

weapon of

fense all eging that the j ury’ s verdict o f guiltState v. Thomas N. Van Vliet

ID No. 1406008729 Septem ber 18, 201 5

1 513 A.2d at 1306.
2 Id . at 1307; see also P riest v. S tate , 879 A.2d 575, 587 (Del.2005 ) (noting that the r ule of lenity controls in most inconsistent verdict situations). 2 was inconsisten

t with ac quittal of t

he offens es of

operating aclandestine laboratory and drug deali ng. In addi tion, the D efendant also alleges in

his mot ion that bec ause he was not separately charged with the m isdemeanor offense of possession of a metham phetamine, the lack of a guilty verdict as to a possess ion charge prohibited convicti on of the co mpound weapon offense. 3. The only authority cited by Defendant in supportof his m otion is Tilder v. State , 313 A.2d 13 02 (Del. 1986). T hat case e stablished t

he general principle

that jury verdicts are s ign ifi can tly i sol ated from ju dic ial revi ew on the bas is o f in con sis ten cy. 1 In this regar

d, the Delaware

Suprem e Court in Tilder

adopted the

majori ty view

of jurylenity in Delaware. 2 In tha t rega rd, Defe ndan t’s authority does not support his position. 4. Nevert

heless, i n the case

at hand, applicati on of

the ru le of lenit

y is not
necessar y. Here , there was no inc onsistency in the verd

ict, ac tual or im

plicit. Na mely, the two a

cquitted of

fenses invo lve allega

tions that D efend ant wa s manufacturing

metham phetamine. The indictm ent al leges manufacturing as anState v. Thomas N. Van Vliet

ID No. 1406008729 Septem ber 18, 201 5

3 11 Del C. § 1448(a)(9).
4 Priest v. State , 879 A .2d at 582 (c itin g Brooks v . State , 367A.2d 638, 640 (Del. 1976). 3 elem ent of both the

clandestine laboratory and drug dea ling charge s. In cont

rast, the compound weapon offense at issue, as alleged in the indic tment , involved conduct prohibited by 11 Del. C § 1448(a)( 9). Tha t statute c rimi nalizes a

person’ s possession or contro l of a deadly weapo n, (9)... if the dea dly weapon is ... a handgun, [ while tha

t person] , at the same time possesses a controlled subst ance in vio lation of §4 763, or §4764 of Title 16.(emphasis added). 3 5. Here, there w as no separate misdemean or drug possession charge presented to the jury

for its co nsiderati on. That , in and of itself, establish es the lackof an inconsistentverdict. As the D elawar e Suprem e Court h as consis tently held in situations such as the one athand, wh en “t here [is] no pending pr

edicate c harge for the jury to consider, the jury’s f actfinding and verdic t...[can] not be i nconsis tent.” 4 There is no requirement that a conviction of the weapon o ffense in

the instant

case requ ired a predicate conviction of a separate charge of m isdemeanor posses sion
. Likewise, an acq uitt al of man ufact urin g rela ted ch arges , does not re nder t he jury’s verdictinconsisten

t. The jury was properly

instructed regardin g the definitions of (1 ) possession, and (2) manufacturing. It was instructed to find that Defendant possessedState v. Thomas N. Van Vliet

ID No. 1406008729 Septem ber 18, 201 5

5 Monroe v. State , 652A.2d 560, 563 (Del. 1995). 4 both a handgun

and a m etham phetam ine before r

endering a guilty verdict. For that reason, the Def

endant’ s motio n for jud gment of acquitt al allegi ng ve rdict inconsisten cy is d enied. 6. Turning tothe suffic iency of evidenc e in this case, th ere wa s sufficient evidence for

the jury t o find that Defendant possessed a handgun, and possessed metham phet amin e. The standard for reviewing a motion for judgment of acquittal requires assessing “whether any r ational tr

ier of f act, vie wing the e vidence in the light most favorable to the State, could find [ a] def endant guilt

y bey ond a

reasonab le doubt.” 5 The evidence presentedin the State’s case-in-chief was sufficient to m eet this standard
. A reaso nable jur y could conclude t

hat me thamp hetam

ine was located separate ly in Defendant’s bedroom (the m aster be droom) and in the

coffee table in Defend ant’s living room. Detective Lam on further testified that a revolver entered into evidence

as State Exhibit No. 26 w as found

in th e nig ht st and i n the Defend ant’s bed roo m, loaded wit h rounds
. Furthermore, D etective Wheeler testified during the State ’s case-in- chief tha t paperw ork addre ssed t o th e Defendant regarding an upcomi ng court appearance was also located in that s ame nigh t stan d in De fenda nt’s bedroom.State v. Thomas N. Van Vliet

ID No. 1406008729 Septem ber 18, 201 5

6 11 Del.C . § 222(12). 5 7. Lastly , when D efendant testified , he adm itted to pri mari ly sle eping in the living room cha ir next to the coffee tab le contain ing the methamphet amine. He further testi fi ed that he owned the gun, that he had fired it before, and that he had clothes in the closet in the mas ter bedro om containing the metham phetamine. Defenda ntalso testif

ied that w hen the sea

rch war rant was executedhe was si tting in the living roo m nex t to the tabl e containi ng a vial of metha mphet amine . The Defenda nttestified that while the gun was found in hi s and his wi fe’s be droom , it shouldhave been in the coff ee table next to whe

re he wa s s itting. There was sufficie ntevide nce pe rmit ting the j ury to conclude th at Defendant (1) p ossessed a controll ed subst ance while (2 ) possess ing a hand gun. 8. Fin all y, although not r enewed i n the instant filing, the Defendant argued at trial after the close of all the e vidence, that there was insuf

ficient e vidence tha

t the revolverbelonging to the De fendant w as capabl e of firi ng a round. T he definit ion of
a firearm, how ever, includes a handgun, “whether operable or inopera ble.” 6 Neverth eless, the Def

endant him self test

ified that he had fir

ed th e gun bef

ore. Moreover, the Dete ctive that c atal oged the gun as evidence noted that there were rounds in the gun, a nd id enti fied i t in t he Sta te’s case-in-chief as being a .38 revolver.State v. Thomas N. Van Vliet

ID No. 1406008729 Septem ber 18, 201 5

6 Moreover, observati on of State Exhibit N o. 26 leav es no dou bt for a lay person of
comm on kn owledge that the item was in fa

ct a revol ver, ca

pable of f

iring a projectile. The Cour

t didnot ac cept t he Defe ndan t’s argum ent that ex

pert testi mony as to the ability of the device to fire a proje ctile is ne cessary to sustain a

conviction of the offense. Afer D efendant’ s oral m otion for j udgmen

tof acquitt al during tr

ial, the Court invit

ed Defendant to provide any authority to that ef fect. The De fendant did not, nor did he pr

ovide any such author

ity in hi s writte n motio n post-tria l. For th ese reasons, the Court will not revisit its oral decision at trial reg arding tha t issue.

NO W , THER

EFORE , IT IS SO ORD ERED that the D efendant’ s Motion for Judgment of Acq uittal is DENIED.
/s/Jeffrey J Clark Judge