        IN THE SUPREME COURT OF THE STATE OF DELAWARE

ARTHUR STONER,                         §
                                       §     No. 422, 2018
       Respondent Below,               §
       Appellant,                      §     Court Below: Family Court
                                       §     of the State of Delaware
       v.                              §
                                       §     ID. No. 1711009911 (N)
STATE OF DELAWARE,                     §
                                       §
       Petitioner Below,               §
       Appellee.                       §


                           Submitted: May 8, 2019
                           Decided: July 11, 2019


Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.

Upon appeal from the Family Court. REVERSED and REMANDED.

Kevin P. Tray, Esquire, Wilmington, Delaware for Appellant, Arthur Stoner.

Sean P. Lugg, Esquire, Deputy Attorney General, Wilmington, Delaware for
Appellee, State of Delaware.
VAUGHN, Justice:

                                   I. INTRODUCTION

         The appellant, Arthur Stoner,1 appeals from a Family Court order finding him

delinquent of Robbery in the Second Degree and Conspiracy in the Second Degree.

He makes three claims on appeal. First, he contends that the finding that he

committed Conspiracy in the Second Degree violated his right to due process

because it was based on a finding that he violated an uncharged subsection of the

conspiracy statute. Second, he contends that there was insufficient evidence to find

him delinquent of Robbery in the Second Degree. In particular, he contends that

the Family Court misconstrued a part of the robbery statute, 11 Del. C. § 831(b),

which provides that “the phrase ‘in the course of committing theft’ includes any act

which occurs . . . in immediate flight after the attempt or commission of the theft.”

Third, he contends that 11 Del. C. § 512(1), the subsection of the conspiracy statute

under which he was found delinquent, is unconstitutionally vague because it does

not expressly include the requirement of an overt act.

         The State agrees that the Family Court erred when it found Stoner delinquent

for violating an uncharged subsection of the conspiracy statute. According to the

State, “The trial court effectively convicted Stoner of an offense for which the State

had not charged him. His adjudication of second degree conspiracy should be


1
    A pseudonym was assigned on appeal pursuant to Supr. Ct. R. 7(d).

                                                2
vacated.”2 Because the State concedes error and agrees that Stoner’s adjudication

of delinquency as to Conspiracy in the Second Degree should be vacated, we accept

its concession and have no further need to discuss Stoner’s first contention. For this

same reason, Stoner’s third contention, that 11 Del. C. § 512(1) is unconstitutionally

vague, need not be addressed. We need address only Stoner’s contentions relating

to the Family Court’s finding of delinquency for Robbery in the Second Degree.

                     II. FACTS AND PROCEDURAL HISTORY

         On November 16, 2017, at approximately 7:30 p.m., Jessica Halloran exited

a restaurant in Trolley Square in Wilmington. She saw “two guys” across the street

“hanging by the Fed Ex box.” 3 Although one of the them, later identified as

Tayshaun Gibbs, was facing her, the other, later identified as Arthur Stoner, was

facing away from her. As she crossed the street toward them, Gibbs kept looking

up and down from his phone, which illuminated his face “pretty clearly.” 4 Thinking

this was odd, Halloran intentionally made direct eye contact with him. As soon as

she did that, he looked down again. Gibbs was wearing a black hooded sweatshirt

and blue jeans. Although Halloran never saw Stoner’s face, she saw that he was

wearing a black hooded sweatshirt and khaki pants.




2
    Appellee’s Answering Br. at 8-9.
3
    App. to Appellant’s Opening Br. at A9.
4
    Id. at A12.

                                             3
      Within a few seconds of Halloran walking past them, Gibbs grabbed a wristlet

bag Halloran was carrying, ripping it off the hook strap. Both Gibbs and Stoner

immediately ran off, with Stoner slightly ahead, in the direction from which Halloran

had come, eventually leaving her sight.          Although there was never any

communication from either Gibbs or Stoner to Halloran or between Gibbs and Stoner

themselves before or during the robbery, Halloran later testified that they appeared

to be together.

      The police were notified, and shortly thereafter, Gibbs and Stoner were

stopped approximately ten blocks away by Corporal David Simmons of the

Wilmington Police Department. Approximately twenty minutes after the robbery,

Halloran was transported to the area, and she identified Gibbs and Stoner as the two

individuals who had robbed her. Recognizing his face, she specifically identified

Gibbs as the one who took her wristlet. She identified Stoner based on his clothing.

She also identified her wristlet, which had been found near where Gibbs and Stoner

were stopped.

      At trial, following the conclusion of the State’s case, Stoner moved for

judgment of acquittal on the robbery charge.             Citing the lack of any

communications between the two accused and the only evidence pertaining to Stoner

being his “mere presence at the scene” and his flight, Stoner argued that there was

“simply no evidence that the presence or the actions of [Stoner] indicate[d] that he


                                         4
was aiding, soliciting, requesting, [or] facilitating the crime of robbery.”5 The court

denied the motion, explaining that there was “sufficient evidence to substantiate the

State’s claim.”6

         Following closing arguments, the court rendered its verdict. After noting the

requirements for Robbery in the Second Degree, the court stated:

                        Now, the question here is what did the Defendant
                 do, since—since the Defendant was not the grabber, what
                 did he do to facilitate that? Because, the evidence here
                 is, well—that’s been suggested by Defense, that all he did
                 was run.

                       831B [11 Del. C. § 831(b)], in addition to the Order,
                 meaning the phrase, “In the course of committing theft
                 includes any act which occurs in an attempt to [commit]
                 theft or an immediate flight from the attempt or
                 commission of the theft.”

                       So, the—so the act does not end with the snatch, it
                 continues thereafter, as part of the immediate flight.

                        The Court’s satisfied that beyond a reasonable
                 doubt, the Defendant was aware of what was going to
                 happen. That he had, by his conduct, demonstrated that
                 he was in agreement with that. And engaged in the
                 immediate flight thereafter from the—from the physical
                 act of the force of the robbery committed by [Gibbs] . . . .

                       ....

                        . . . The evidence is that they literally took off
                 together, a step behind. There wasn’t any evidence here
                 that the Defendant was surprised by what had occurred.

5
    Id. at A86-87.
6
    Id. at A91.

                                              5
                He was part of the act itself. One grabbed, they both ran,
                virtually simultaneously.

                      . . . The evidence is beyond a reasonable doubt that
                the Defendant was intending to facilitate the act, although
                the physical act, itself, the grab, was done by the other
                accused.

                     So, I am finding the Defendant delinquent on both
                Counts, the Conspiracy 2nd and the Robbery 2nd.7

         Following the verdict, Stoner was sentenced to indefinite commitment at the

Department of Youth Rehabilitation Services, suspended for twelve months of

community supervision.

                                  III. DISCUSSION

         Stoner contends that he was merely present at the scene of the robbery

committed by Gibbs and that the evidence was insufficient to establish that he acted

as Gibbs’s accomplice.         He contends that the Family Court seems to have

misconstrued 11 Del. C. § 831(b) to mean that immediate flight is “part of” the

commission of Robbery in the Second Degree in every case, even if no force is used

or threatened during the flight. That misconception, he argues, led the court to find

that the robbery was not concluded when Gibbs took the wristlet bag by force, an

act in which Stoner did not participate, but continued through the immediate flight

after the theft. In other words, Stoner contends that the Family Court erred by



7
    Id. at A104-06.

                                            6
finding that his act of fleeing with Gibbs, in and of itself, made him guilty of Robbery

in the Second Degree. The State does not address Stoner’s argument regarding the

court’s interpretation of the second-degree robbery statute, but instead argues that

there was sufficient evidence that Stoner acted as an accomplice as defined by 11

Del. C. § 271(2)(b).

       We start with the petition’s charging language. Tracking the language of 11

Del. C. § 831(a), the petition charged that Stoner “did when in the course of

committing theft, use force upon JESSICA HALLORAN with the intent to

overcome the resistance to the taking of her property.”8 As mentioned, § 831(b)

provides that “the phrase ‘in the course of committing theft’ includes any act which

occurs . . . in immediate flight after the attempt or commission of the theft.”

Therefore, under § 831(b), an act that occurs during immediate flight after the

attempt or commission of theft may be found to be an act that occurs in the course

of committing the theft.

       In its ruling, the Family Court first explained that the “act [of robbery] does

not end with the snatch, it continues thereafter, as part of the immediate flight” and

then twice referenced Stoner’s immediate flight while finding that he was part of the



8
  Id. at A143; see also 11 Del. C. § 831(a) (“A person is guilty of robbery in the second degree
when, in the course of committing theft, the person uses or threatens the immediate use of force
upon another person with intent to: (1) Prevent or overcome resistance to the taking of the property
or to the retention thereof immediately after the taking . . . .”).

                                                 7
robbery itself.9 Specifically, the court found that Stoner “engaged in the immediate

flight thereafter from the—from the physical act of the force of the robbery

committed by [Gibbs]” and that Stoner “was part of the act itself.”10

       We think the Family Court’s ruling is ambiguous. It appears from the facts

before us that the robbery was a completed act when Gibbs ripped Halloran’s wristlet

off her wrist. The flight was not “part of” Gibbs’s act of robbery. The purpose of

§ 831(b) is to help define the phrase “in the course of committing theft.” If a theft

begins as one not accompanied by the use or threat of force, but force or the threat

of force is used to overcome resistance to flight after the theft, then the threat or use

of force during flight can be found, as a matter of fact, to have occurred during the

course of committing the theft. 11 Under the facts of this case, Stoner’s flight,

standing alone, was not part of Gibbs’s act of robbery. What the Family Court

meant by the statement that “the act [of robbery] does not end with the snatch, it

continues thereafter, as part of the immediate flight” is unclear.

       There also seems to be ambiguity with regard to the Family Court’s findings

regarding accomplice liability. When a trial judge, following a bench trial, makes


9
   App. to Appellant’s Opening Br. at A104, A104-05.
10
   Id. at A105.
11
   See 11 Del. C. § 831 (“A person is guilty of robbery in the second degree when, in the course
of committing theft, [including any act which occurs in immediate flight after the attempt or
commission of the theft,] the person uses or threatens the immediate use of force upon another
person with intent to: (1) Prevent or overcome resistance to the taking of the property or to the
retention thereof immediately after the taking . . . .”).

                                               8
specific findings of fact and conclusions of law, instead of rendering a general

verdict, the findings must cover every essential element of the offense. 12 Here, the

court’s specific findings and conclusions as to whether Stoner was delinquent as an

accomplice to robbery are that Stoner: (1) “was aware of what was going to happen,”

(2) “was in agreement with that,” (3) “engaged in the immediate flight thereafter,”

(4) “was part of the act itself,” and (5) “was intending to facilitate the act.”13

       In order to find Stoner delinquent as an accomplice, it must be found that he

(1) intended to promote or facilitate the commission of the robbery and (2) aided,

counseled, or agreed or attempted to aid Gibbs in planning or committing it.14 The

Family Court clearly found that Stoner intended to facilitate the robbery. However,

being “aware” that someone is about to commit a crime and being “in agreement

with that” is not necessarily the same as aiding, counseling, or agreeing or attempting

to aid the other person in planning or committing the crime. One can know that

another is about to commit a crime and agree with that without aiding, counseling,

or agreeing or attempting to aid the other person. Moreover, the court’s conclusions

that Stoner was “engaged in the immediate flight thereafter” and “was part of the act



12
   Scott v. State, 117 A.2d 831, 833 (Del. 1955); see also Dolan v. State, 925 A.2d 495, 496, 501-
02 (Del. 2007) (en banc).
13
   App. to Appellant’s Opening Br. at A104-05.
14
   See 11 Del. C. § 271(2)(b) (providing that a person acts as an accomplice when, “[i]ntending to
promote or facilitate the commission of the offense,” the person “[a]ids, counsels or agrees or
attempts to aid the other person in planning or committing it”).

                                                9
itself” are ambiguous for the reasons discussed above regarding the court’s

statements about when the robbery ended. There is no clear finding by the Family

Court that Stoner aided, counseled, or agreed or attempted to aid Gibbs in planning

or committing the robbery.

         When a trial judge’s findings are ambiguous, the case may be remanded for

the making of more specific findings.15 We think the best course of action is to

remand this matter to the Family Court for the making of more specific findings on

the charge of Robbery in the Second Degree.

                                     IV. CONCLUSION

         For the foregoing reasons, the judgment of the Family Court is reversed, and

the case is remanded to Family Court.              The Family Court shall vacate Stoner’s

adjudication of delinquency for Conspiracy in the Second Degree. In addition, it

shall make more specific or such additional findings of fact as may be appropriate

with regard to the charge of Robbery in the Second Degree, and it shall “reinstate or

vacate the judgment of [delinquency], according to the results indicated by such

findings and in accordance with the principles of law laid down in this opinion.”16

Jurisdiction is not retained.




15
     Scott, 117 A.2d at 833; see also Dolan, 925 A.2d at 496, 501-02.
16
     Scott, 117 A.2d at 836.

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