IN THE SUPREME COURT OF TI-IE STATE OF DELAWARE

MICHAEL KADE, §
§ No. 5 79, 2016
Defendant Below- §
Appellant, § Court Below: Family Court of
§ the State of Delaware
v. §
§ File No.: 1602012904 (N)
STATE OF DELAWARE, §
§
Plaintiff Below- §
Appellee. §
§
§

Submitted: June 7, 2017
Decided: July 5, 2017

Before STRINE, Chief Justice; VALII-IURA and VAUGHN, Justices.
MR_

On this S‘h day of July 2017, upon consideration of the parties’ briefs and the
record on appeal, it appears that:

(1) Appellant, Michael Kade' appeals from a Family Court order finding
him delinquent on one count of Carrying a Concealed Dangerous Instrument,
specifically, a taser. He makes two arguments on appeal. First, he contends that
there Was insufficient evidence to justify findings that the taser Was an electronic

control device designed to incapacitate a person or a device readily capable of

 

l The Court assigned pseudonyms to the parties pursuant to Supreme Court Rule 7(d).

causing death or serious physical injury. Second, he contends that the trial court
incorrectly interpreted the definition of a dangerous instrument to include all tasers
regardless of the device’s design or characteristics

(2) On February 19, 2016, New Castle County Police officers responded to
reports of a fight possibly involving a weapon at Glasgow Court Trailer Park. Upon
arriving at the scene, Officer Richard Chambers spoke with Kade. As the officer
was speaking with Kade, Kade reached for his pocket several times. Officer
Chambers instructed Kade to stop reaching for his pocket, and asked him what he
had in there. Kade told the officer that it was something he found on the ground.
Officer Chambers observed a bulge in Kade’s pocket, but could not identify the
object, as it was completely concealed from view. Officer Chambers then
conducted a pat down search of Kade’s person. The object in Kade’s pocket was
square in shape, and Of`ficer Chambers thought it might be a box containing a small
gun. He removed the object from Kade’s pocket and discovered that it was a purple
taser. Kade testified at trial that he and a group of friends had gone to Glasgow
Court Trailer Park to back up a friend, D.L., in anticipation of a pre-planned fight.

(3) Kade was charged With one count of Carrying a Concealed Dangerous
Instrument (“CCDI”) and one count of Offensivc Touching. The State entered a
nolle prosequi on the Offensive Touching charge prior to trial. The case was tried

before a Family Court commissioner. At the conclusion of the State’s evidence,

2

Kade moved for judgment of acquittal on the ground that the State had failed to
introduce evidence concerning the taser’s voltage or whether it was tested or not.
The commissioner denied the motion and found Kade delinquent of CCDI on the
ground that the taser was an electronic control device designed to incapacitate a
person. Kade filed a request for review of the commissioner’s order. In the
request for review, Kade argued that the State failed to prove either that the device
was readily capable of causing death or serious injury or that it was an electronic
control device designed to incapacitate a person. After considering the matter de
novo, a Family Courtjudge accepted the commissioner’s conclusions and affirmed
the commissioner’s decision.z Although the Family Courtjudge’s order discusses
the capacity of the taser to cause serious physical injury, we read the orders of the
commissioner and the judge as resting on conclusions that the taser was a dangerous
instrument because it was an electronic control device designed to incapacitate a
person.

(4) Kade first contends that the Family Court erred when it denied his motion
for judgment of acquittal because the State did not present sufficient evidence to
show, beyond a reasonable doubt, that the taser was a dangerous instrument as

defined under ll Del. C. § 222(4) and (10). “We [] review the denial of [a] motion

 

2 Appellant’s Opening Br., Ex. IlI.

forjudgment of acquittal de novo, to determine whether a rational finder of fact,
viewing the evidence in the light most favorable to the State, could find [the
defendant] guilty beyond a reasonable doubt.”3
(5) Under ll Del. C. § 222(4), a dangerous instrument is defined as:

any instrument, article, or substance which, under the

circumstances in which it is used, attempted to be used or

threatened to be used, is readily capable of causing death

or serious physical injury . . . or any electronic control

devices including but not limited to a neuromuscular

incapacitation device designed to incapacitate a person."
An electronic control device is defined as “a device designed to incapacitate a
person, including but not limited to a neuromuscular incapacitation dcvice.”5 Kade
argues that the State failed to present sufficient evidence that the taser found in his
pocket was either: (I) readily capable of causing death or serious physical injury, or
(2) an electronic control device designed to incapacitate a person. I-Iis argument
can fairly be summarized as an argument that the evidence was insufficient because
the State did not present evidence regarding the device’s voltage or functioning, or
evidence of any testing of the device, or the extent to which the particular device

involved here was capable of causing harrn, or whether it functioned at all. The

device was not admitted into evidence. Because the Family Court rested its

 

3 GibSOI? v. Sl'a!‘e, 981 A.Zd 554, 557 (DEl. 2009).
4 (emphasis added).
5 Id. § 222(10).

decision on a conclusion that the taser was an electronic control device designed to
incapacitate a person, we need address only that aspect of the definition of a
dangerous instrument

(6) At trial, Officer Chambers described the object as a stun gun and
explained that it was designed to make contact with a person’s body and then shock
the person. When asked if the stun gun was capable of causing serious physical
injury, Officer Chambers responded, “If used the right way, absolutely.”6 I-Ie
further testified that even if the taser had “a really low voltage,” it would still be
capable of causing severe pain. I-Ie went on to explain that the device was of the
type that would typically be used for “personal defense,” and had less voltage than
the taser that he carries as a police officer.7

(7) ln order to prove that an electronic control device is a dangerous
instrument, the State is required to prove only that the device is designed to
incapacitate a person. As discussed above, Officer Chambers described the device
as a stun gun designed to shock a person, which Was capable of causing serious
physical injury if used correctly. He testified that even if it was of low voltage, it
was still capable of causing severe pain, and that it was a device which would

typically be used for personal defense. We are satisfied that the testimony of

 

6 App. to Appellant’s Opening Br. at 21.
7 Id. at 24.

Officer Chambers and the attendant circumstances, such as Kade’s being where he
was in anticipation of a pre-planned fight, are sufficient to support a finding that the
taser involved here is an electronic control device designed to incapacitate a person
and thus a dangerous instrument The definition of an electronic control device
focuses on the purpose for Which the device is designed We are not persuaded that
evidence concerning the specific voltage or functioning of the device in question is
required.

(8) Second, Kade contends that the trial court incorrectly interpreted the
statutory definition of a dangerous instrument as it is defined under ll Del. C. §
222(4) and (10). Specifically, he contends that the Family Court erred by finding
that all instruments labeled as tasers are dangerous instruments regardless of the
instrument’s design or characteristics. Kade did not fairly present this argument to
the trial court. Therefore, he has waived this claim unless this Court “finds that the
trial court committed plain error requiring review in the interests ofj ustice.”3 Under
the plain error standard of review, the error complained of must be so clearly
prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial

process.”9 There is no such error, here.

 

8 Mom'oe v. State, 652 A.2d 560, 563 (Del. 1995) (citing Supr. Ct. R. 8).
9 Wainwrigh! v. State, 504 A.2d 1096, 1100 (Del. 1986).

6

NOW, THEREFORE, IT IS ORDERED that the judgment of the Family

Court is AFFIRMED.

BY THE COURT:

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@étice

