IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY

)
STATE OF DELAWARE, )
)
)
v-, ) Cr.A. N0.: 1412009796
)
)
RAKIEM DUMAS, )
)
Defendant )
)
Submitted: January 15 , 2016
Decided: February 22, 2016
Rebecca Song, Esquire Jonathan Layton, Esquire
Office of the Attorney Genera1 Layton & Associates, P.A.
820 North French Street, 7th Floor 1308 De1aWare Avenue, Suite 8
Wi1mington, DE 19801 Wi1mington, DE 19806
Attorney for the State of Delaware Attorneyfor Defendant

MEMORANDUM OPINION AND ORDER
ON DEFENDANT’S MOTION FOR REARGUMENT

Defendant Rakiern Dumas ("Dumas") brings this Motion for Reargument ("Motion") of
the Court’s November 2, 2015 ruling denying Dumas’ Motion for Judgment of Acquitta1. A

hearing on the Motion was held on January 15, 2016, and the Court heard oral argument from
Dumas and the State. At the conclusion of the hearing the Court reserved deeision. This is the

Court’s Final Decision and Order.

Facts & Relevant Procedural History

On March 25, 2015, Dumas was arrested for Terroristic Threatening after speaking to a
visibly pregnant Division of Farnily Services ("DFS") employee (hereinafter "Victim"). The
Victim has handled Dumas’ custody case since 2013. The arrest arose from an incident
occurring at the New Castle County Family Court after a custody review hearing involving
Dumas, at which hearing the Victim was present when Dumas lost custody of his children.
Dumas encountered the Victim in the courthouse after the hearing and said to her "oh, y0u’re
pregnant, how would you feel if I depregnated [sic] you and made sure you could not bring any
children home?" (hereinafter "Statement"). Shortly thereafter, the Victim relayed this
information to DFS personnel and Capital Police, and Dumas was arrested for Terroristic

Threatening.

On May 4, 2015, Dumas plead not guilty to the charge of Terroristic Threatening and
demanded a jury trial. The case proceeded to trial on November 2, 2015, and prior to
deliberation Dumas moved for a judgment of acquittal. This Court denied that motion. Upon
returning a guilty verdict, the jury was dismissed and this Court granted Dumas leave to file a
motion for reargument.

Dumas timely filed the instant Motion, and on January l5, 2016 this Court heard oral
argument. Dumas argues that the Statement is protected speech because Dumas uttered it as a
hypothetical statement "made with the intent to have [the victim] empathize with [Dumas]."l
Dumas also contends that the State failed to prove its case-in-chief since the State did not show

that Dumas communicated an actual threat to commit a crime or that he intended to threaten the

Victim.z Dumas argues that the Terroristic Threatening statute’s mens rea requires the State to

 . .-.1 .- _ 
‘ Def.’s Mor. 11 16:-,;
2 Def.’s Mor. 11 113

 

demonstrate a defendant’s subjective intent to threaten through "proof particularized to the
individual defendant," and that since no such proof was offered at trial the Motion for Judgment

of Acquittal should have been granted.

In its Response, the State contends that this Motion is procedurally defective because a
motion for reargument is "applicable only to non-jury trials."$ ln the alternative, the State argues
that the Statement is an unprotected true threat, regardless of its alleged hypothetical nature.
Moreover, the State contends that it can prove subjective intent by "showing Defendant

5$34

‘intentionally, knowingly, or recklessly made a threat, and that the jury may infer subjective

intent from the Statement’s contexts
The primary issues before the Court are twofold: (l) whether unlike a true threat,
hypothetical or conditional threats are afforded First Amendment protections which preclude
Dumas’ conviction; and (2) if Dumas’ statement to the Victim is not protected speech, whether
there was sufficient evidence to sustain a guilty verdict.
LEGAL STANDARD
Pursuant to Court of Common Pleas Criminal Rule 57(b), "if no procedure is specifically
prescribed by Rule, the Court may proceed in any lawful manner not inconsistent with these
Rules or with any applicable statute."é Court of Common Pleas Civil Rule 59(e) vests this Court

with the power to hear motions for reargument in the civil context.7 This Court has previously

 

YFW§§E Mot. p._3; the  line of reasoning in 

'§

 
    

,d is not supported by binding="§§§§`§ iaw. § `- ` -""""'>Ecases
 sing this issue ne`_§%"'squarely address it no,_i_* l l y preclude a motion for rear: :-afteri'_§}__  trial.
Therefore, in the interest of justice, the Court will address the Motion on its merits, as it is properly before the Court
pursuant to Criminal Rule 57(b).

" ld.

5 1a ar 3 _ 4.

6 ccP crim. R. 57(b).

7 ccP civ. R. 12(@).

 

addressed motions for reargument brought pursuant to Civil Rule 59(e) via Criminal Rule 57(b).8
Moreover, Delaware courts have addressed motions for reargument in the jury trial context.9

To succeed on a motion for reargument the movant must show that the Court has
"overlooked a controlling precedent or legal principles, or [that] the Court has misapprehended
the law or facts such as would affect the outcome of the decision."lo In short, "the movant must
demonstrate newly discovered evidence, a change in law, or manifest injustice."u

A motion for judgment of acquittal will "only be granted where the State has offered
insufficient evidence to sustain a verdict of guilt. In determining whether to grant the motion,

the Court must consider all evidence in a light most favorable to the State."lz

DISCUSSION
A. True Threats

The First Amendment provides that "Congress shall make no law . . . abridging the
freedom of speech."w This Amendment "affords protection to symbolic or expressive conduct
as well as to actual speech."14 These protections are not absolute and the "government may
regulate certain categories of expression consistent with the Constitution."l$ First Amendment

protections do not extend to true threats.lé

 

cl See State v. _S¢;n;a_go, Del. ECP, C.A. No. l2-12-001 l74l, Fraczl<owski, J. (February 24, 2014); see also State v.

Bz'jj‘"erato 111., 2010 WL 3958778 (Del. Com. Pl. Aug. 17, 2010); see also State v. Munzer, 2009 WL 206088 (Del.
Com. Pl. Jan. 9, 2009).

9 See State v. Carrea, 2007 WL 404769 (Del. Super. Jan. 30, 2007); see also State v. Dorsey, 2000 WL 1610678
(Del. Super. Oct. 18, 2000).

10 Carrea, at *2 (citing Kovach v. Brandywine Innkeepers Ltd. P'ship., 2001 WL ll98944 (Del. Super. Oct. l.
2001)).

ll World Az`rways, Inc. v. Golson, 2013 WL 6917358, at *2 (Del. Super. Nov, 8, 2013) (quoting Brenner v. Village
Green Inc., 2000 WL 972649, at *l (Del. Super. May 23, 2000)).

“ slate v. Kelseh, 2013 wL 4131107,e1*3 (Del. Com. Pl. Aug. 15, 2013).

‘3 Vzrgzm'e v. Blee/e, 533 U.s. 343, 358 (2003).

"‘ 1a

‘5 ld.

‘6 see Wens v. Unz¢ed srezes, 394 U.s. 705, 703 (1969).

A true threat is a statement made where the "speaker means to communicate a serious
expression of an intent to commit an act of unlawful violence to a particular individual."l? "The
speaker need not actually intend to carry out the threat."]g 1n determining whether a statement is
an unprotected true threat courts will look to the context, conditionality, and reaction of the
listeners to the statement.lg On its own, conditiona1ity will not of necessity afford, what might
otherwise be considered a true threat, First Amendment protection.zo lnstead, in parsing the
threatening nature of a particular communication, conditionality is but one factor to be weighed
with other contextual elements.z]

Dumas’ argument that the Court overlooked controlling precedent or legal principles so
as to preclude a guilty verdict is unavai1ing. Contrary to Dumas’ contention that hypothetical or
conditional threats necessitate a unique analysis as compared to that under which unconditional
threats are examined, true threat jurisprudence has evolved to largely ignore this type of
distinction. There exists no binding case law categorically excluding a conditional or
hypothetical threat from the true threat category. Indeed, despite there being a circuit split on
how a court should analyze a defendant’s intent to threaten, when looking at the statutory
elements as a whole, federal courts have consistently adhered to the basic principles espoused in

Watts and Black; namely, that a court must examine an utterance’s content and context to

 

" B1aak,53s U.s. ar 359.
"‘ Id. ar 360.

"" Wam~, 394 U.S. at 708.
20 Um'ted States v. Kosma, 951 F.Zd 549, 554 n. 8 (3d Cir. 1991); see Unz`ted States v. Elonz`s, 730 F.3d 321 (3d Cir.

2013) cert. grantea’, rev 'a' on other grouna’s, sub nom Elonis v. Um'ted States, 135 S.Ct. 2001 (2015); see also
United States v. Clemens, 738 F.3d 1, 8 (lst Cir. 2013) (true threat need not be "unequivocal, unconditional, and
specific").

21 See Black, 538 U.S. 343; see also Watts, 394 U.S. at 708; see also Kosma, 951 F.Zd 549, 554; Unz'ted States v.
O’Dwyer, 443 Fed. Appx. 18 (5th Cir. 2011) (in assessing threat, court looked to communication’s context as well
as defendant’s history and background); Um'tea' States v. Parr, 545 F.3d 491 (7th Cir. 2008) (permissible "for a jury
to make inferences from the context and circumstances surrounding communication"); Unz`ted States v. Malz'k, 16
F.3d 45, 50 (2d Cir. 1994) ("rigid adherence to the literal meaning of a communication without regard to its
reasonable connotations derived from its ambience would render the statute powerless against the ingenuity of

threateners").

determine whether or not it is a true threat. Whether conditional, hypothetical, or otherwise, a
threat is not to be examined under a linguistic microscope wholly severed from its context, but is
instead analyzed part and parcel with its surrounding circumstances.

The line dividing protected speech from unprotected true threats is somewhat veiled by
the complexity of language However, from the controlling precedent has emerged an easy-to-
apply rule that although substantively less prescriptive, enables ready application to the myriad
situations in which a threat occurs and facile analysis of the infinite forms a threat may take.
Since controlling precedent fails to provide a bright-line rule categorizing true threats, whether
conditional or otherwise, and instead emphasizes the importance of contextual analysis, this
Court concludes that no legal principles or controlling precedent of consequence were
overlooked or misapplied when the jury considered the Statement along with the context in
which Dumas uttered it.22

B. Terr0ristic Threatening

Pursuant to ll Del C. § 621 a person commits Terroristic Threatening when "he threatens
to commit any crime likely to result in death or in serious injury to person or property."”
"Whether the threatened act is completed is immaterial . . . [,]the crime is complete when the
actor threatens a crime."24 Section 621 applies "only to speech made with the subjective intent

»25

to threaten [or intimidate]. "Subjective intent to threaten may be proved by showing the

defendant intentionally, knowingly or recklessly made a threatening statement."zé The statement

must be "viewed in light of its context and the totality of the circumstances."m

aim _

 

22 Neither party contends misapprehension of facts, therefore the Court will not address this issue.
”111)€1.€.§621_

24 Azlen v. Sm»e, 453 A.zd 1166, 1168 (Del. 1982).

25 Andrews v. State, 930 A.Zd 846, 852 (Del. 2007); accord Lowther v. State, 104 A.3d 840, 843 (Del. 2014).“,.
2‘ L@w¢her, 104 A.sd 845.

27 1¢1. ar 843.

Dumas argues that the State’s evidence was insufficient to sustain the guilty verdict. This
argument necessarily fails since there is no doubt that a reasonable jury could have inferred, from
the Statement’s context, Dumas’ subjective intent to threaten the Victim. The Statement was
made after a hearing where Dumas lost custody of his children. The Victim, who was present at
that hearing encountered Dumas in the courthouse afterwards. During this face-to-face
encounter with the visibly pregnant Victim, instead of making an innocuous statement that might
elicit empathy, Dumas seemingly tailored his words to the circumstances before him by gearing
his language to the Victim’s particularly overt susceptibility and invoking the powerful notion of
losing an unborn child. Viewing the Statement in light of the totality of the circumstances, and
considering the nature of true threats and the elements of section 621, this Court finds there is no
manifest injustice in the jury’s verdict since the evidence was sufficient to sustain a verdict of
guilty.

CONCLUSION

For the foregoing reasons Defendant’s Motion for Reargument is DENIED.

IT IS SO ORDERED.

 

cc: Charrnar Jones, Judicial Case Manager

