IN THE SUPREME COURT OF THE STATE OF DELAWARE

MARKEVOUS TYMES §
§ 68 1 , 201 5
Defendant Below, §
Appellant, § Court BeloW_Superior Court
§ of the State of Delaware
v. §
§ Cr. ID No. 1408021173
STATE OF DELAWARE, §
§
Plaintiff Below, §
Appellee.

Submitted: March l, 2017
Decided: March 7, 2017

Before HOLLAND, VAL[HURA, and SEITZ, Justices.

This 7th day of March 2017, it appears to the Court, as follows:

(l) Markevous Tymes Was indicted by a grand jury with Second Degree
Burglary, two counts of Theft From a Senior, Second Degree Conspiracy, Receiving
Stolen Property over $1500, and Criminal Mischief. On September 3, 2015 , after a
two day trial, a Superior Court jury found Tymes guilty as charged.

(2) The Superior Court sentenced Tymes on the Burglary Second Degree
charge to five years Level 5, Key Program, With credit for 58 days previously served,
suspended after three years for two years ofLevel 4 Crest, suspended after successful
completion, for 18 months Level 3. On each of the two Theft Charges, Conspiracy

Second Degree, and Receiving Stolen Property charges, the Superior Court

sentenced Tymes to twelve months Level 5, suspended for twelve months at Level
2. The court imposed a fine for the Criminal Mischief charge.

(3) Tymes timely filed a notice of appeal on December 15, 2015. After
receiving the no-merit brief and motion to withdraw filed under Supreme Court Rule
26(c) by Tyrnes’s former appellate counsel and the State’s Answering Brief`, this
Court granted his former counsel’s motion to withdraw, appointed new counsel, and
issued a new brief schedule.

(4) In this appeal, Tymes contends that: “The trial court committed
reversible error by giving a constitutionally defective instruction to the jury on the
rebuttable presumption of possession of recently stolen goods. The instruction
informed the jury that it could make an inference that Mr. Tymes committed burglary
and theft because he possessed recently stolen goods. The jury was also instructed
that they could make such an inference if they found that Mr. Tyrnes’s possession of
the goods was unexplained or they were unsatisfied by his explanation The charge
as given to the jury shifted the burden to the defense as it failed to instruct the jury
that Mr. Tymes had no duty to present evidence in his own defense.”

(5) We have concluded that Tyrnes’s argument is without merit.

(6) Testimony at trial established the following facts. Raymond Seigfried,
who at the time of the incident was 65 years old, resided in North Wilmington. On

August 25, 2014, Seigfried left his horne at approximately 12110 p.m. to go to an

event for work. When Seigfried returned home at approximately 2:30 p.m., he
noticed that his door was not locked. As he walked into his house, he received a
phone call. Seigfried answered the call, and the unknown caller told him “I think I
have your briefcase.”

(7) As Seigfried entered his house and went upstairs to his computer room,
he found that the room had been ransacked and that his laptop computer, work
briefcase, and a projector were missing. Seigfried found his bedroom in similar
disarray. His personal briefcase, another laptop computer, his wife’s medication, a
video recorder, and some coins were missing. Seigfried called 9ll, and Master
Corporal Jeffrey Steinberg responded shortly thereafter. Seigfried and Master
Corporal Steinberg surveyed the house and discovered a damaged screen and a
basement window that had been kicked in.

(8) Master Corporal Steinberg determined that the call Seigfried received
about his briefcase came from a convenience store on Northeast Boulevard in
Wilmington. The officer went to the store, and a store employee gave him
Seigfried’s briefcase The store manager also allowed Master Corporal Steinberg to
review the store’s video surveillance system. In the video, Master Corporal
Steinberg observed what appeared to be a Honda vehicle pull into the convenience
store parking lot. An individual exited the passenger side of the vehicle holding

what appeared to be a briefcase and then put the briefcase in a dumpster on the side

of the store. The video also showed the driver exit the Vehicle, carrying what
appeared to be a laptop computer. The driver then entered the store, approached the
clerk, and gave him the laptop, which the clerk then returned to the driver. The
driver then left the store and got back into the vehicle. The timestamp on the video
was 1102:43 p.m., although it was determined that the timestamp was off by about
twenty-five minutes. Master Corporal Steinberg testified that the actual time of the
video would be 1137 p.m.

(9) That same day, between 1:00 and 2:00 p.m., Helen Ohlson was riding
her bicycle near Seigfried’s home. Ohlson testified that she observed two sedans:
one was silver and looked older with “messed up paint”; the other was a newer
looking, “shiny, bright blue” vehicle. The two sedans appeared to be speeding and
driving together. Ohlson testified that the driver of the silver vehicle appeared to be
a younger and bigger man and was possibly wearing a white t-shirt, and the
passenger appeared to be an older, thinner man. The driver of the blue vehicle was
a woman. All three individuals were black.

(10) Detective Cunningham of the New Castle County Police Department,
who had been assigned to investigate the burglary, testified that he also observed the
video footage from the convenience store. He saw a black male dressed in khaki

shorts and another black male dressed in a white t-shirt. Detective Cunningham

performed an inquiry on the vehicle, which, it was determined, was a silver 2008
Honda Accord.

(l l) As a result of this inquiry, the police identified Chandelier Hagler,
Tyrnes’s girlfj‘iend, as the owner of the vehicle The police ran the vehicle through
a database of vehicles with prior police contact. Master Corporal Steinberg testified
that the database contained photographs, f`rom which he was able to pull a
photograph of Tymes and match it to the video surveillance Because Tymes has a
distinctive tattoo in the middle of his forehead, Master Corporal Steinberg could
easily verify the photo.

(12) The police then conducted surveillance of Hagler’S residence and the
silver Honda. On August 27, 2014, two days after the burglary, the police found
Tymes in the vehicle The police also found Datwan Lum, who was wearing the
same clothing as the individual in the security video the day of the burglary, Tymes
was taken into custody, and Lum was taken into custody after a brief foot pursuit.

(13) Officers discovered that Tymes was in possession of the stolen laptops.
Tymes told the police that he had purchased one of the laptops somewhere near
Rodney Square in Wilmington. At trial, Detective Cunningham identified Tymes
and Lum in the courtroom and also identified Tymes as having the distinct facial

tattoo from the video surveillance

(14) On appeal, Tymes claims that the trial judge’s jury instruction with
respect to his possession of the stolen property amounts to reversible error. Tymes
argues that the instruction was “inconsistent” with the model instruction suggested
by this Court in Hall v. Stczte.l Although the instruction was almost verbatim to the
Hall model instruction, Tymes argues that the trial judge committed reversible error
by not adding to the instruction a statement that Tymes had no duty to present
evidence at all. Tymes takes issue with the trial judge’s instruction that his
possession of stolen goods could be explained “by other circumstances shown by the
evidence independent of any testimony by the defendants’ themselves.” Tymes
argues that this wording leaves open the possibility that a reasonable juror would
think that a satisfactory explanation must come from evidence presented by the
defendant, effectively shifting the burden of proof.

(15) The concern Tymes expresses on appeal was addressed over thirty
years ago by this Court in Hall. In Hall, this Court recognized the problem with the
then-existing jury instruction. The instruction at that time provided, in part:

It is a principle of law in this State that when recently stolen property is

found in the possession of a person, that person may be presumed by

the jury to be the one who stole it. On the other hand, the possession

may be explained to the satisfaction of the jury, and the presumption of
possession may be effectively rebutted.2

 

1 473 A.2d 352 (Dei. 1984).
2 Id. at 354.

This Court noted that the instruction could have been interpreted to mean that an
individual found in possession of recently stolen goods is presumed to be the thief
unless he personally rebuts the presumption3 This Court suggested a new
instruction, which allows for an “inference” rather than a rebuttable presumption4
The Hall model instruction also emphasized that the defendant “is not required to
take the witness stand or furnish an explanation. His possession may be
satisfactorily explained by other circumstances shown by the evidence independent
of any testimony by the defendant himself.”5

(16) The instruction given at Tyrnes’s trial was almost verbatim to the
instruction suggested by this Court in Hall. The Hall model instruction is based, in
turn, on the model instruction given by the D.C. Circuit Court of appeals in
Pendegrast v. Unz'ted .S'z‘ates.6 No case has held that this instruction is
unconstitutional, and Delaware courts have not questioned the validity of the Hall
model instruction.7 “The Hall draft instruction clearly satisfies due process. [That]

issue . . . is clearly controlled by settled Delaware law.”8

 

3 Id. at 355. (“[The existing charge] does leave open the danger that it might be understood to shift
the burden of proof to defendant because it fails to say that defendant has no duty to testify or to
present evidence, and it does not specially state that possession of recently stolen goods may be
explained by evidence other than defendant’s own testimony.”).

4 Id. ar 357.

5 Hall, 473 A.2d at 357.

6 Id.

7 Sellman v. State, 2002 WL 31007526, at *l (Del. Supr. Sept. 4, 2002).

8 Hammond v. State, 1986 WL 16312, at *l (Del. Supr. Feb. l4, 1986).

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(17) A presumption instruction, such as the one at issue here, does not
violate due process as long as it meets two requirements First, the instruction must
be phrased to elicit an inference, such that it does not shift the burden of proof or
production.9 Second, those inferences must be permissive and not mandatory. 10 The
instruction here satisfies both elements. The instruction tells the jury:

You are not required to draw any conclusion from [the possession of

recently stolen property], but you are permitted to infer from the

defendant’s possession, if you find it to be unexplained or
unsatisfactorin explained by the evidence presented, that the defendant

is guilty of the offence, provided that in your judgment such an

inference is warranted by the evidence as wholell
The effect of an inference as explained in a jury instruction must be tested by the
way a reasonable juror could have interpreted the charge12 Here, as Delaware courts
have previously noted, a reasonable juror would have understood that the fact that
Tymes possessed stolen property gave rise to no more than a permissible inference
that he stole that property.13

(18) Tymes’s appeal fails upon a close reading of the jury instruction. The
instruction specifically provides, in relevant part:

. . . You are not required to draw any conclusion from that

circumstance, but you are permitted to infer from the defendants’
possession, if you find it to be unexplained or unsatisfactorin explained

 

9 Hall, 473 A.2d at 355.

10 Id. (holding that the instruction must “clearly explain[] that the presumption is actually no more
than a permissible inference”).

11 A288.

12 Sandslrom v. Monfana, 442 U.S. 510, 514 (1979); Hall, 473 A.2d at 355.

13 See Sellman, 2002 WL 31007526, at *l.

by the evidence presented, that the defendant is guilty of the offense,
provided that in your judgment such an inference is warranted by the
evidence as a whole.

. . . If you find that the State has proved beyond a reasonable
doubt every element of that offense but has not shown that the
defendants took part in the offense except by his possession of stolen
property, the defendants’ possession of the recently stolen property is a
circumstance from which you may find, by the process of inference,
that the defendants-that the defendant was the person or one of the
persons who stole it.

. . . In considering whether the defendants’ possession of the
recently stolen property has been satisfactorily explained, you must
bear in mind that defendants are not required to take the witness stand
to fumish an explanation. His possession may be satisfactorily
explained by other circumstances shown by the evidence independent
of any testimony by the defendants themselves14

The trial court judge followed the Hall model and correctly instructed the jury that
they could draw an inference from Tyrnes’s possession of the recently stolen laptops.
The judge also correctly explained that Tymes was not required to testify to explain
his possession.

(19) This Court’s stande of review of a jury instruction is whether the
instruction, considered as a whole, correctly stated the law.15 The instruction given
by the Superior Court Was nearly identical to the Hall model instruction, which has
never been invalidated and has been used consistently by Delaware trial courts.

Therefore, the instruction correctly stated the law.

 

14 A288-90.
15 Claudio v. State, 585 A.2d 1278, 1282 (Del. 1991); Sheeran v. State, 526 A.2d 886, 894 (Del.
1987) (“A defendant is entitled to a jury instruction that contains a correct statement of the law.”).

NOW, TI-[EREFORE, IT IS HEREBY ORDERED that the Superior Court’s
judgment of convictions is AFFIRMED.

BY THE COURT:

Justice 76 3

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