SUPER|OR COURT
oFTHE

STATE OF DE|_.AWARE

Wll_l_lAM L. WITHAM, JR. KENT couNTY couR'rHousE
REleENTJL)DGE 38 THE GREEN
DovER, DELAWARE 19901
TELEPHONE (302) 739-5332

Submitted: September 20, 2017
Decided: September 25, 2017

Sean A. Motoyoshi, Esquire
Department of Justice

102 West Water Street
Dover, Delaware 19904

Suzanne MacPherson-Johnson, Esquire
Offlce of the Public Defender

45 The Green

Dover, Delaware 19901

Re: State of Delaware v. Davia' Thomas
I.D. No. 1607()07838
Court’s Decision after Bench Trial

Dear Counsel:

This Court held a Bench Trial on September 20, 2017. David Thomas
(“Defendant”) is charged in Count 1 With Possession of a Firearm by Person
Prohibited, a felony, in violation of Title ll, Section 1448 of the Delaware Code
(“PFBPP”) and in Count 2 With Possession of Firearm Ammunition by a Person
prohibited, a felony, in violation of Title 11, Section 1448 of the Delaware Code
(“PABPP”). For the reasons set forth herein, the Court finds the Defendant NOT
GUILTY.

F indings of Fact
On the evening of July 11, 2016, troopers of the Delaware State Police Were

called out at approximately 1:30 in the morning to a residence in Camden-Wyoming,
Kent County, Delaware concerning a complaint about a late model silver Chevrolet

State v. David Thomas
I.D. No. 1607007838
September 25, 2017

with its brake lights on located in the yard at the home. The officers found the
Defendant either asleep or passed out in the driver’s seat. The vehicle was “stuck”
near the tree line. After approaching the vehicle, the Defendant was unresponsive to
questions. The driver’s door was opened and the Defendant remained unresponsive
to questions and was removed and transported to the hospital. He remained
unresponsive, throughout, although he was able to mumble words when questioned.
He was the sole occupant of the car. It was later determined that he was not the
owner of the car, but the owner was not known to have been contacted or questioned
in the investigation. lt appears that no further questioning or follow-up on the
Defendant driver was conducted There were no DNA results on the weapon or the
magazine and ammunition.

Initially, upon opening of the driver’s door, a firearm was seen on the floor
near the driver’s seat next to his feet. The car was searched and other articles were
discovered such as alcohol bottles, clothing, boxes, trash bags, trash, a cell phone and
a mask with a clear plastic bong attached. A strong odor of burnt marijuana was
noted. The weapon was removed and identified as a .45 caliber handgun with a
loaded magazine Seven rounds of ammunition were found including one in the
chamber of the weapon. A blood alcohol report indicated the Defendant had a .06
BAC reading. The toxicology report indicates a negligible cannabinoid reading.

Discussion and Conclusion

The evidence as admitted shows the Defendant is a prohibited person from
purchasing, owning, possessing or controlling a deadly weapon or ammunition for a
firearm within the statel. The law in Delaware requires for a finding of guilty beyond
a reasonable doubt in Count 1 that the Defendant possessed or controlled the .45
caliber handgun and/ or ammunition which can be proved by constructive possession.
In this case ,the Defendant was in the driver’s seat, passed out with a handgun
situated just below the seat within reach. Even though he was unresponsive to the
trooper’ s inquiry, he still could reach down and pick up the weapon if awakened. The

1 11De1. c. § 1448.

State v. David Thomas
I.D. No. 1607007838
September 25, 2017

State must establish that the Defendant “knowingly possesses. . . or controls a deadly
weapon or ammunition ...” for a convictionz. An unresponsive person, never
questioned concerning the weapon, without follow up investigation with respect to
the ownership and use of the vehicle is a bridge too fan3

I therefore find, after considering all of the evidence, that the State has not

established beyond a reasonable doubt the Defendant acted in a manner as to satisfy
all of the elements of the charges in Counts 1 and 2 and is NOT GUILTY.

Hon. William L. Witham, Jr.
Resident Judge

IT IS SO ORDERED

 

WLW/dmh
oc: Prothonotary
xc: Sean A. Motoyoshi, Esquire
Suzanne MacPherson-Johnson, Esquire

3 See Carroll v State, 158 A3rd 885 (Table).

