IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE ) )

v. ) ID No. 2109014213 ) DAVID JEWELL

, ) ) Defendant

. )

Submitted: May 31, 202 3 Decided: June 12 , 2023

Upon Defendant David Jewell’s Amended Motion to Dismiss/Vacate Convictions

or , Alternatively, Motion to Merge Convictions for Sentencing Purposes,

GRANTED in part and DENIED in part

.

ORDER

Brianna M. Mills, Esquire; Colleen E. Durkin, Esquire, Deputy Attorneys G eneral, DELAWARE DEPARTMENT OF JUSTICE, Carvel State Office Building, 820 N. French St., 7 th Floor, Wilmington, DE 19801, Attorney s for State of Delaware.

Michael W. Modica, Esquire, P.O. Box 437 Wilmington, DE 19899, Attorney for Defendant David Jewell.

WHARTON , J.2

This 12 th day of June 2023, upon consideration of Defendant David Jewell’s

Amended Motion to Dismiss/Vacate Convictions or

, Alternatively, Motion to Merge

Convictions for Sentencing Purposes 1 the State’s Response, 2 and the record in this

case, it appears to the Court that:

1. At the conclusion of a four

- day jury trial Defendant David Jewell

(“Jewell”) was found guilty of one count of s talking, one count of h arassment, and

26 counts of terroristic threatening

. 3 He was acquitted of a single count of a ct of

i ntimidation. 4 The Court ordered a presentence investigation and sentencing is

pending

.

2. Jewell now moves to dismiss/vacate his convictions for terroristic

threatening and h arassment on the theory that they are included within the offense

of s talking. 5 He argues that because they are lesser included offenses, 11 Del. C. §

206 “prohibits convicting a defendant of more than one offense where one offense

‘is established by the proof of the same or less that all of the facts required to

establish the commiss ion of the second offense’” 6 Similarly, under Blockburger v.

1 D.I. 20.

2 D.I. 21.

3 D.I. 18.

4 Id.

5 Def

. ’s Mot at ⁋⁋ 1

- 6, D.I. 20.

6 Id. at § 3, quoting 11 Del. C. § 206, D.I. 20.3

U. S

., 7 with which § 206 is consistent, 8 ‘ “where the same act or transaction

constitutes a violation of two distinct statutory provisions, the test to be applied to

determine whether there ar e two offenses or only one, is whether each provision

requires proof of a fact the other does not.’” 9 Applying § 206 and Blockburger

, Jewell contends that all of the respective elements of h arassment and terroristic

threatening are included in the s talki ng charge as that charge was drafted. 10 Finally,

he notes that the Delaware Supreme Court has previously determined that

h arassment is a lesser included offense of s talking. 11 Alternatively, he requests that

the Court merge those charges into the s talkin g charge for sentencing purposes. 12

3. In its response, the State concedes that the h arassment charge is a lesser

included offense of s talking and should merge into that charge at sentencing. 13

Accordingly, Jewell’s Motion is GRANTED as to the h arassment charge. 14 That

charge will merge into the s talking charge for sentencing.

4. Although the State acknowledges that a literal application of § 206 and

Blockburger would seem to preclude Jewell being convicted of both s talking and

7 284 U.S. 299 (1932).

8 Stigars v. State , 674 A.2d 477, 482 (Del. 1996).

9 Def.’s Mot at ⁋ 4, quoting Blockburger , 284 U.S. at 304, D.I. 20.

10 Id. at ⁋ 5.

11 Id. at ⁋ 6, citing Burnham v. State , 761 A.2d 830 (Del. 2000).

12 Id. at ⁋ 7

. 13 State’s Resp. at 3, D.I. 21.

14 N22

- 08

- 1007.4

terroristic threatening , nevertheless, the State argues his convictions of both crimes

should stand. 15 In support of this contention, the State observes that the terroristic

threatening component of the s talking charg e is a sentencing aggravator, raising the

crime to a class G felony from a class F felony. 16 For that reason, in the State’s view,

the General Assembly, when it amended the s talking statute to add this and other

aggravators, did not indent to make t errori stic threatening a lesser included offense

of s tal k ing. Rather, it intended to further punish stalkers. 17

5. Both side s cite Mills v. State

. 18 In Mills , the defendant argued he could

not be sentenced for his separate convictions for resisting arrest with force or

vi olence and heroin drug dealing under § 206 and Blockburger because the resisting

arrest offense was a lesser included offense of the drug dealing charge. 19

Specifi cally, he argued that both convictions could not stand because “the State used

the resisting arrest offense as an aggravating factor to elevate the drug dealing

offense to a higher felony grade.” 20 In expressing the proper analytical approach to

the issu e, the Delaware S upreme C ourt said, “We have previously noted, however,

15 Id. at 6.
16 Id. at 4

- 6.
17 Id. at 6

- 7.
18 201 A.3d 1163 (Del. 2019). See, Def.’s Mot at ⁋ 4, D.I. 20; State’s Response, at 4, D.I. 21.

19 Id. 

### at 1167.

20 Id. a t 1165.5

that Blockburger and § 206 are ‘only an aid to statutory construction’ and they ‘do[

] not negate clearly expressed legislative intent.’ If ‘a better indicator of legislative

intent i s available,’ a literal application of Blockburger and § 206 ‘does not apply.’” 21

In holding that the General Assembly intended separate punishments for both

crimes, the Court looked to the synopsis of the bill that created the drug dealing

offense which clarified that a person could be convicted of both the drug offense and

the aggravator. 22

6

. T he Mills Court observed that the statement in the synopsis was “about

as clear a statement of legislative intent as one could ask for, other than a statement

to that effect in the statutory text itself.” 23 Here there is just such a codification of

legislative intent in the statutory text. The statute reads, “[a] conviction for any

predicate act relied upon to establish a course of conduct does not p reclude

prosecution under this section. Prosecution under this section does not preclude

prosecution under any other section of the Code.” 24

7

. T hus, the Court concludes that, although a literal application of

Blockburger and § 206 would seem to preclude punishing Jewell for both stalking

and terroristic threatening, the General Assembly clearly and expressly authorized

21 Id. at 1175 (internal citations omitted).
22 Id . at 177.

23 Id.

24 11 Del. C. § 1312(e)(1).6

punishing him for both. Accordingly, Jewell’s motion as to the terroristic

threatening charges is DENIED

.

T HEREFORE, Defendant David Jewell’s Amended Motion to

Dismiss/Vacate Convictions or, Alternatively, Motion to Merge Convictions for

Sentencing Purposes is GRANTED as to the harassment charge. The harassment

charge will merge into the stalking charge for se ntencing. It is DENIED as to the

terroristic threatening charges.

IT IS SO ORDERED.

/s/ 

### Ferris W. Wharton Ferris W. Wharton, J.