IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE
v. I.D. # 1705021865

SHANTELL NEWMAN,

Defendant.

\/\/V\/VV\_/

Submitted: June 4, 2018
Decided: September 26, 2018

Upon Defendant’s Motion for Judgment of Acquittal:
DENIED

This 26th day of September, 2018, upon consideration of the Motion for
Judgment of Acquittal (the “Motion”) filed on behalf of Shantell Newman, the
record in this case, and the applicable legal authorities, including Rule 29 of the
Superior Court Rules of Criminal Procedure (“Rule 29”), it appears to the Court
that:

l. Ne`Wman’s Motion challenges the sufficiency of the evidence as Well
as the Court’s ruling during trial that, in order to sustain a charge for possessing a
firearm With a removed, obliterated, or altered serial number, the State is not
required to establish the year the firearm Was manufactured The statute defining
the offense contains three subsections; pertinently for this case, the first subsection
defines the crime of knowingly possessing a firearm With a removed or obliterated

serial number, and the second subsection provides that the statute does not apply to

firearms manufactured before 1973. Given the statute’s unambiguous language
and structure, as Well as the fact that it criminalizes removal of a serial number,
Without Which the State is unlikely to be able to prove the date of manufacture, I
conclude the manufacture date is an affirmative defense for Which a defendant
bears the burden of proof. Accordingly, and because the evidence otherwise Was
sufficient to sustain the conviction, NeWman’s Motion is denied.

FACTUAL BACKGROUND

2. At trial, the State presented evidence that NeW Castle County police
executed a search Warrant at a house believed to be NeWman’s residence. Police
believed NeWman resided there With Josiah Woody, Who Was indicted as
NeWman’s co-defendant. Although neither NeWman nor Woody Was present When
the search Was conducted, NeWman’s children Were there, and the State presented
evidence that during the search police found recent mail addressed to each
defendant.

3. The house had two main stories and a basement Detective Domenic
Phillips of the NeW Castle County Police Department testified he found a handgun
during the search of the house. The Weapon Was located on top of an air duct in
the basement Detective Phillips testified the firearm Was Within arm’s reach and

plainly visible When he Walked three steps down the basement stairs. Pictures

admitted into evidence showed, and Detective Phillips’ testimony confirmed, that
the air duct Was covered in dust, but the firearm Was not dusty.

4. The firearm Detective Phillips found had tape around the handle and a
filed-off serial number, Detective Phillips testified the filed-off serial number,
Which Was located on the side of the gun, easily Was noticeable to anyone Who
handled the firearm because there Were several visible tool marks Where the
number Was carved away. Photographs of the handgun confirmed the visible tool
marks.

5. Detective Phillips testified he Was able to restore the serial number on
the handgun by using an acid Wash. He then ran the restored number through the
Bureau of Alcohol, Tobacco, Firearms, and Explosives’ (“ATF”) national
database, but that search did not yield any information about the firearm.
Detective Phillips testified that, in his experience, information about older guns,
such as those manufactured in the l960s, often is not contained in the ATF
database.

6. NeW Castle County Police’s evidence detection unit processed the
handgun for DNA and fingerprints Although no fingerprints Were found on the
gun, the State’s DNA analyst testified that DNA mixtures Were obtained from the
handgun’s trigger/trigger guard, cylinder, barrel, and grip, and those mixtures

matched NeWman’s DNA sample, Which Was obtained from a buccal swab. The

analyst testified there Was a l in 7 trillion probability that an unrelated individual
in the general population Would have the same DNA as that found on those areas
of the gun. A DNA mixture also Was obtained from the firearm’s hammer and
matched NeWman’s sample, although With a higher random match probability.
The analyst explained that the DNA mixtures had at least two contributors, and
Woody’s DNA also matched the mixtures obtained from the trigger/trigger guard
and hammer.

7. NeWman and Woody Were indicted on one count of Possession of a
Weapon With a Removed, Obliterated or Altered Serial Number, and Woody also
Was indicted for Possession of a Firearm by a Person Prohibited and Possession of
Ammunition by a Person Prohibited. The defendants Were tried together on
February 27-28, 2017. At the conclusion of the State’s case, NeWman’s counsel
made a motion for judgment of acquittal. NeWman argued ll Del. C. § 1459 -the
section of the Delaware Code defining the offense of Possession of a Weapon With
a Removed, Obliterated, or Altered Serial Number - provides that the section does
not apply to a firearm manufactured before 1973, and the State therefore Was
required to prove the firearm’s manufacture date as an element of the offense. The
Court denied the motion for judgment of acquittal, concluding the date of
manufacture Was an affirmative defense. On February 28, 2017, the jury convicted

NeWman and Woody on all the indicted charges. At the conclusion of trial, the

Court granted Newman’s counsel’s request to extend by thirty days the deadline
for post-trial motions for judgment of acquittal.

8. Newman now seeks judgment of acquittal on several alternative
theories, namely that the State failed to adduce evidence from which a jury could
conclude beyond a reasonable doubt that: (1) the firearm was manufactured in
1973 or later; (2) the firearm’s serial number was defaced when Newman handled
the gun; (3) the crime occurred within the five year statute of limitations; (4)
NeWman knew the serial number was obliterated; and (5) the firearm was altered in
a manner that disguised or concealed its identity or origin.l The State asserts each
of Newman’s arguments fails on its merits, either because the State presented
sufficient evidence to establish guilt beyond a reasonable doubt or because the
contested element was not one on which the State carried the burden of proof.

ANALYSIS

9. Under Rule 29, a defendant may move for judgment of acquittal to set
aside a guilty verdict. In considering such a motion, all evidence and the
legitimate inferences therefrom must be viewed in the light most favorable to the
State.2 If a rational jury could conclude from the evidence that the defendant is

guilty beyond a reasonable doubt, the motion for acquittal shall be denied.3

 

11).1.20 jj 6-10.
2 Smre v. Birer, 119 A.zd 894, 898 (Del. super. 1955).
3 Jervey v. State, 1994 WL 35386 (Del. Feb. 3, 1994)

5

10. The statute under which the State charged Newman, 11 Del. C. §
1459, provides in its entirety as follows:

(a) No person shall knowingly transport, ship, possess or
receive any firearm with the knowledge that the
importer's or manufacturer's serial number has been
removed, obliterated or altered in a manner that has
disguised or concealed the identity or origin of the
firearm.

(b) This section shall not apply to a firearm manufactured
prior to 1973.

(c) Possessing, transporting, shipping or receiving a
firearm with a removed, obliterated or altered serial
number pursuant to this section is a class D felony.

In the indictment and at trial, the State alleged that on or about February 8, 2017,
Newman and her co-defendant possessed a handgun with knowledge that the
importer’s or manufacturer’s serial number had been removed, obliterated, or
altered in a manner that disguised or concealed the identity or origin of the firearm.
Newman concedes the DNA evidence presented by the State permitted the jury to
conclude she knowingly possessed the firearm at some point before its seizure.
Newman argues, however, that the State’s evidence was insufficient in every other
regard.

A. The State was not required to prove the firearm’s manufacture date in
order to sustain the charge against Newman.

11. Although sequentially last in the Motion, the focus of Newman’s

argument is a renewal of her contention at trial that the State was required by

Section 1459 to prove the firearm was manufactured in or after 1973. Newman’s
argument relies on Section 1459(b), which exempts from the statute any firearm
manufactured before 1973. In denying Newman’s motion for judgment of
acquittal at trial, the Court reasoned that Section l459(b) exempted from the
statute’s scope firearms manufactured before 1973, and the manufacture date
therefore was an affirmative defense under 11 Del. C. § 305. Under Section 305, if
a statute “specifically exempts” a person or activity from the statute’s scope, and a
defendant contends she falls within that exemption, the exemption is an affirmative
defense. Applying Section 305, the Court concluded Section l459(b) exempted
the activity of possessing a firearm with an obliterated serial number if the firearm
was manufactured before 1973, and the defendant therefore bore the burden of
proving she fell within that exemption.

12. Newman contends this ruling was in error, arguing Section 305 does
not apply because Section l459(b) does not exempt a class of persons or activities
from the statute’s application, but rather negates an element of the charge.4
Newman argues affirmative defenses historically are confined to facts that “lie
immediately within the knowledge of the defendant,” and it would be unfair to

classify a firearm’s date of manufacture as an affirmative defense because

 

4 D.l. 20 1110.

‘Frequiring a private citizen to prove a distantly remote date of manufacture by a
preponderance of the evidence is neither practical nor fair.”5

13. Newman does not explain how the date of a firearm’s manufacture
“negates an element of the charge” of Possession of a Weapon with a Removed,
Obliterated, or Altered Serial Number.6 The argument runs contrary to logic,
Section 305, and Delaware law regarding the interpretation of statutory burdens of
proof. First, Section 1459 criminalizes possession of a firearm whose serial
number has been removed, obliterated, or altered. The very nature of the crime -
removal or alteration of a serial number - makes it difficult, if not impossible, for
the State to obtain information about the firearm, including its date of manufacture
lt would be illogical for the General Assembly to criminalize conduct that makes
tracing a firearm difficult or impossible, while simultaneously requiring the State
to trace the firearm in order to carry its burden of proof.

14. Second, Section l459(b) expressly creates a class of firearms for
which the activity of possessing a firearm with a removed, obliterated, or altered
serial number is not a crime. This exception does not negate an element of the
charge because the date of manufacture does not disprove possession, knowledge,

or the fact that the serial number was removed, obliterated, or altered. Rather, the

 

5

D.I. 20 11 11.
6 See Patterson v. New York, 432 U.S. 197, 206-07 (1977) (describing an affirmative defense as
one that “does not serve to negative any facts of the crime”). NeWman’s argument seems to
assume that the date of manufacture is an element of the charge, which is circular at best.

8

manufacture date is offered as excuse for a defendant’s possession of an otherwise
illegal firearm. Under the plain language of Section 305, this exemption of a
certain class of firearms from the scope of the statute is an affirmative defense.
That interpretation also is consistent with Delaware and federal precedent to the
effect that a party who relies on a statutory exception contained in a “proviso or
distinct clause” bears the burden of showing that the party falls within that
exception.7 Under Delaware law, “where the exception or qualification occurs in
the enacting clause, or in the same section, or in a preceding section,” the plaintiff
must show the defendant’s conduct is not within the exception, but “where the
exception is contained in a proviso, in a subsequent section or statute,” it is a
defense.8

15. The conclusion that Section l459(b) is an affirmative defense also is
consistent with federal case law interpreting a similar exemption in a federal
statute. Various federal laws regulate the interstate movement of firearms.9 18
U.S.C. § 921(a)(3) defines “firearm,” and the last sentence of that subsection states
“such term does not include an antique firearm.”10 The United States Circuit

courts that have considered the issue unanimously have concluded that proof that a

firearm is not an antique is an affirmative defense and not an element the

 

7 U.S. v. Guess, 629 F.2d 573, 576 (9th Cir. 1980)

8 Socum v. State, 6 Del. (1 Houst.) 204, 208 (Super. 1856); see also Trustees of New Castle
Common v. Stevenson, 6 Del. (1 Houst.) 451, 452-53 (Super. 1857).

9 34 U.s.C §§10101,erseq.

10 Antique firearm separately is defined. See 18 U.S.C. § 921(a)(16).

9

11 Those courts

government must prove to obtain a conviction under federal law.
have reasoned that “proof establishing that [firearms] were antiques within the
meaning of [Section 921] would not negative any of the government’s proof. By
its terms, the statute creates an affirmative defense in the form of an exception.”12
For purposes of interpreting the State’s burden of proof, there is no discernible
difference between the federal statute’s exemption for antique firearms and Section
1459(b)’s exemption of firearms manufactured before 1973. Like Section
921(a)(3), Section l459(b) creates an exception to conduct that otherwise is
criminal. Accordingly, the State was not required to prove the firearm’s

manufacture date.

B. The State’s evidence was sufficient to allow a reasonable jury to find
Newman guilty beyond a reasonable doubt.

16. In addition to her legal argument regarding the meaning of Section
l459(b), Newman also challenges the sufficiency of the State’s evidence on
several other bases. Newman first argues “[t]he State failed to prove beyond a
reasonable doubt that the weapon had been defaced at the time Newman touched or
handled the gun.”13 Newman contends the DNA evidence did not provide the jury

any basis to determine (i) when Newman possessed the gun or (ii) that the gun’s

 

11 U.S. v. Lawrence, 349 F.3d 109, 123 (3d cir. 2003); U.s. v. Smi¢h, 981 F.2d 887, 891-92 (6th
cir. 1992); U.S. v. Laroche, 723 F.2d 1541, 1543 (11th Cir. 1984); U.S. v. Mayo, 705 F.2d 62,
73-76 (2d cir. 1983).

12 Mayo, 705 F.2d at 75.

'3 D.I. 20 at 11 6.

10

serial number was obliterated at the time she handled the gun. This argument both
mischaracterizes the definition of possession and ignores evidence presented to the
jury.

17. In order to meet its burden, the State was not required to prove
Newman “handled” the gun on or about February 8, 2017. The State was required
to prove that she “possessed” the gun on or around that date, and - as the Court
instructed the jury - possession in the context of this charge included both actual
and constructive possession. As the Court explained to the jury, in order to prove
constructive possession, the State was required to prove that Newman (1) knew the
gun’s location, (2) had the ability to exercise dominion and control over the gun,
and (3) intended to exercise dominion or control over the gun.14 Constructive
possession may be proved by circumstantial evidence, and the State need not prove
that a person was in possession of the weapon at the time of their arrest.15

18. Newman’s argument that the State did not prove when Newman’s
DNA was transferred to the gun falsely implies the State was required to prove
physical possession. The State neither attempted nor was required to do so;
evidence that Newman’s DNA matched the DNA on the gun permitted an
inference that she knew of the gun’s existence because she had handled it in the

past. Here, in addition to NeWman’s DNA being found on several locations on the

 

:: Elmore v. State, 2015 WL 3613557, at * 2 (Del. June 9, 2015).
Id.

11

firearm, the State presented evidence that NeWman lived in the residence with her
children, the gun plainly was visible to anyone who walked three steps into the
basement, and the gun’s placement in that location appeared to be recent based on
the presence of dust on the air duct but not on the gun. The State also presented
evidence in the form of photographs and testimony that the tool marks that
obliterated the serial number were located on the side of the gun and immediately
were noticeable to anyone who handled it. That evidence was sufficient to allow
the jury to conclude beyond a reasonable doubt that Newman constructively
possessed the gun on or around February 8, 2017, and that the serial number was
filed off at the time of that possession. That conclusion also addresses and
disposes of Newman’s argument that the State did not establish the crime was
committed within the five year statute of limitations

19. Newman also contends the State failed to prove she knew the serial
number on the gun had been obliterated. Section 1459 required the State to prove
that Newman possessed the firearm with knowledge that its serial number was
removed, obliterated, or altered. The State presented at trial sufficient evidence to
allow the jury to conclude beyond a reasonable doubt that Newman possessed the
requisite level of scienter. As explained above, the gun was visible and easily
accessible in Newman’s home, and the tool marks that filed off the serial number

readily were apparent to anyone who handled the gun. Newman’s DNA was found

12

in several places on the gun, permitting a reasonable inference that she had more
than incidental contact with it. The gun appeared to have been placed on the air
duct recently. Although circumstantial, that evidence was sufficient to support the
jury’s guilty verdict, including on the state of mind element of the offense.

20. Finally, Newman argues “there was no evidence that the altered
number on the weapon was ‘in a manner that disguised or concealed the identity or
origin of the weapon.”’16 NeWman contends the State did not present evidence that
“the tool marks” on the gun concealed the gun’s identity or origin.17 This
argument misinterprets Section 1459 and misconstrues the evidence. First, Section
1459 requires the State to prove that the serial number was “removed, obliterated
or altered in a manner that has disguised or concealed the identity or origin of the
firearm.”18 According that language its plain meaning, the State must prove the
serial number was (i) removed, or (ii) obliterated, or (iii) altered in a manner that
concealed its identity or origin. lt would be nonsensical to interpret the statute as
requiring proof that the “manner” of removal or obliteration concealed the
handgun’s origin or identity. The fact a serial number was removed or obliterated
is sufficient under that statute. The conclusion that the phrase “in a manner that

has disguised or concealed the identity or origin of the firearm” only modifies the

 

16 D.1.201[9.
11 D.1.20119.
1811 Der. C. § 1459(3).

13

term “altered” also is consistent with settled principles of statutory construction,
particularly the “last antecedent rule,” which provides that a limiting clause
ordinarily should be read as modifying “only the noun or phrase that it
immediately follows.”19 Here, the evidence supported a conclusion that the serial
number was removed or obliterated. The State presented evidence at trial that all
but one digit on the hangun’s serial number was filed off and could not be
discerned until it was restored by an acid wash. That evidence was sufficient to
allow a jury to conclude the serial number was removed or obliterated.

F or all the foregoing reasons, Shantell Newman’s Motion for Judgment of

Acquittal is DENIED. IT IS SO ORDERED.

 

igail M LeGr@/Judge

Original to Prothonotary
cc: Domenic Carrera, Jr., Deputy Attorney General
Robert M. Goff, Esquire
Matthew Buckworth, Esquire (counsel for Co-Defendant Josiah Woody)

 

19 Dunfee v. KGL Holdings Riverfmm, LLC, 2016 wL 6988791, at * 5 (De1. super. Nov. 23,
2016) (citing United States v. Hayes, 555 U.S. 415, 425 (2009)); Matter of Surcharge
Classification 0]13 By Delaware Compensation Rating Bureau, Inc., 655 A.2d 295, 303 n.9
(Del. Super. 1994).

14

