IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )

 )

v. ) ID No. 2109014213

) 

DAVID JEWELL, )

 )

Defendant. )

Submitted: May 31, 2023

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 General, 

DELAWARE DEPARTMENT OF JUSTICE, Carvel State Office Building, 820 N. 

French St., 7th Floor, Wilmington, DE 19801, Attorneys for State of Delaware.

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

Defendant David Jewell.

WHARTON, J.
2

This 12th 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 Purposes1the State’s Response,2and 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 stalking, one count of harassment, and 

26 counts of terroristic threatening.

3

 He was acquitted of a single count of act of 

intimidation.4 The Court ordered a presentence investigation and sentencing is 

pending. 

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

threatening and harassment on the theory that they are included within the offense 

of stalking.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 commission 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 are 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 harassment and terroristic 

threatening are included in the stalking charge as that charge was drafted.10 Finally, 

he notes that the Delaware Supreme Court has previously determined that 

harassment is a lesser included offense of stalking.11 Alternatively, he requests that 

the Court merge those charges into the stalking charge for sentencing purposes.12 

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

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

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

charge will merge into the stalking 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 stalking 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 stalking charge 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 stalking statute to add this and other 

aggravators, did not indent to make terroristic threatening a lesser included offense 

of stalking. Rather, it intended to further punish stalkers.17 

5. Both sides 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 

violence and heroin drug dealing under § 206 and Blockburger because the resisting 

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

Specifically, 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 issue, the Delaware Supreme Court 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. at 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 is 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. The 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 preclude 

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

prosecution under any other section of the Code.”24 

7. Thus, 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. 

THEREFORE, 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 sentencing. It is DENIED as to the 

terroristic threatening charges. 

IT IS SO ORDERED.

/s/ Ferris W. Wharton

Ferris W. Wharton, J.