           IN THE SUPREME COURT OF THE STATE OF DELAWARE


THOMAS L. FLEETWOOD,                   §
                                       §      No. 89, 2016
      Defendant Below,                 §
      Appellant,                       §      Court Below: Superior Court
                                       §      of the State of Delaware
      v.                               §
                                       §      Cr. ID No. 1503013906
STATE OF DELAWARE,                     §
                                       §
      Plaintiff Below,                 §
      Appellee.                        §

                          Submitted: September 21, 2016
                          Decided: October 6, 2016

Before HOLLAND, VALIHURA, and SEITZ, Justices.

                                      ORDER

      This 6th day of October, 2016, upon consideration of the parties’ briefs and

the record below, it appears to the Court that:

      (1)    A Superior Court jury convicted Thomas L. Fleetwood of burglary

second degree, misdemeanor attempted theft, and offensive touching after he was

caught in Kennard and Takeisha Smith’s apartment holding their belongings. The

jury acquitted Fleetwood of criminal mischief. Fleetwood raises three issues on

appeal: (1) the Superior Court erred by failing to instruct the jury on the lesser

included offense of criminal trespass first degree; (2) the prosecutor made

improper statements during closing argument amounting to plain error; and (3) the

Superior Court erred when it sentenced him for criminal mischief. For the reasons
set forth below, we remand on the sentencing issue and affirm on the remaining

issues.

         (2)     Just after 1:00 a.m. on March 22, 2015, Kennard called his sister,

Takeisha, and asked her to take him to a convenience store. They had just moved

into a new apartment together, located above the Driftwood Spirits liquor store on

South Bradford Street in Dover. When the two of them returned from the store,

they noticed the outside door to the apartment was open.

         (3)     Kennard entered the apartment first with Takeisha close behind him.

Although it was dark, Takeisha saw Fleetwood, a stranger to her, in the laundry

room. He was holding her laptops and steaks from their freezer. Takeisha asked

the man what he was doing in their home, and if the items he was holding were

theirs. Fleetwood then dropped the items on the floor and said “They sent me.

They sent me from Smyrna.”1 He told them he had both of their cell phones so

they could not call 911. He then attacked Kennard.

         (4)     As Kennard and Fleetwood fought, Takeisha’s cell phone fell out of

Fleetwood’s pocket. She immediately picked it up and dialed 911. When the

police arrived, Kennard told them that he did not know Fleetwood, but recognized

him from a nearby pub earlier in the evening.          A Dover Police Department

detective took photographs of the scene showing steaks and pieces of Takeisha’s

broken laptops on the floor. One laptop was torn in half and the other device
1
    App. to Opening Br. at 15-16.
                                           2
would not turn on. Police arrested Fleetwood and charged him with burglary

second degree, attempted theft, assault third degree, and criminal mischief. The

assault third degree charge was reduced before trial to offensive touching.

         (5)     At the close of trial, Fleetwood requested an instruction on criminal

trespass first degree, a lesser included offense of burglary. The Superior Court

denied the request, finding that the evidence at trial did not support the instruction.

The jury convicted Fleetwood of burglary second degree, misdemeanor attempted

theft, and offensive touching, but acquitted him of criminal mischief. The Superior

Court sentenced Fleetwood as follows: (1) as an habitual offender on the burglary

charge to eight years at Level V; (2) one year at Level V, suspended for one year at

Level III for attempted theft; (3) thirty days at Level V, suspended for one year at

Level III for offensive touching; and (4) one year at Level V suspended after one

year at Level III for criminal mischief, despite being acquitted of that offense.

This appeal followed.

         (6)     Fleetwood first argues that the Superior Court erred by declining his

request for a lesser included offense instruction for criminal trespass. This Court

reviews the denial of a requested jury instruction de novo.2 With respect to a

request for a lesser included offense jury instruction, we review “to determine: (i)




2
    Ayers v. State, 844 A.2d 304, 309 (Del. 2004).
                                                     3
whether the instruction was available as a matter of law; and, if so, (ii) whether the

evidence presented at trial supported a conviction on the lesser included offense.”3

       (7)     Under 11 Del. C. § 206(c), the Superior Court “is not obligated to

charge the jury with respect to an included offense unless there is a rational basis in

the evidence for a verdict acquitting the defendant of the offense charged and

convicting the defendant of the included offense.”4 This Court uses a four part test

to determine whether a lesser included offense instruction is warranted:

       (1) the defendant makes a proper request; (2) the lesser included
       offense contains some but not all of the elements of the charged
       offense; (3) the elements differentiating the two offenses are in
       dispute; and (4) there is some evidence that would allow the jury
       rationally to acquit the defendant on the greater charge and convict on
       the lesser charge.5

       (8)    Here, elements one through three are not in dispute. The appeal

therefore turns on whether there was some evidence in the record providing a

rational basis for acquitting Fleetwood of burglary second degree and convicting

him instead of criminal trespass first degree.6            The two crimes differ in that

criminal trespass requires a person to unlawfully enter a dwelling, while burglary

requires a person to unlawfully enter a dwelling with the intent to commit a crime.7


3
  Weber v. State, 971 A.2d 135, 141 (Del. 2009).
4
  11 Del. C. § 206(c); see also Cseh, 947 A.2d at 1114.
5
  Cseh, 947 A.2d at 1114.
6
  Henry v. State, 805 A.2d 860, 864 (Del. 2002). To satisfy the fourth element, there must be
some “evidence fairly tending to bear upon the lesser included offense, ‘however weak’ that
evidence may be.” Bentley v. State, 930 A.2d 866, 875 (Del. 2007) (internal citation omitted).
7
  Compare 11 Del. C. § 823 (“A person is guilty of criminal trespass in the first degree when the
person knowingly enters or remains unlawfully in a dwelling. . .”) with 11 Del. C. § 825 (“A
                                               4
In this case, the crime was theft. Though a criminal defendant has no burden to

present any evidence at trial,8 Fleetwood was obligated to point to some evidence

in the record that would allow the jury rationally to find that he entered the

apartment for a reason other than to commit theft.

       (9)    The trial record shows that Fleetwood entered the apartment to

commit theft. Kennard and Takeisha saw Fleetwood holding their electronics and

steaks when they entered the apartment. He told them he had taken their cell

phones, and Takeisha saw her phone fall out of Fleetwood’s pocket. The police

also found the steaks and laptops on the floor when they arrived.                 Although

Fleetwood claims that many items were on the floor because Takeisha and

Kennard had just moved into the apartment, steaks belong in a refrigerator and are

not ordinarily found on the floor. Further, one laptop was broken in pieces and the

other no longer worked. Lacking any evidence in the trial record supporting the

lesser included charge, the Superior Court correctly denied Fleetwood’s request for

a lesser included offense instruction.

       (10) Fleetwood next argues the trial court committed plain error when it

permitted the prosecutor to violate the “golden rule” during closing arguments.

Because Fleetwood did not object to the prosecutor’s closing argument, we review


person is guilty of burglary in the second degree when the person knowingly enters or remains
unlawfully in a dwelling with intent to commit a crime therein.”).
8
  Boyer v. State, 436 A.2d 1118, 1125 (Del. 1981) (“The law never imposes upon a defendant in
a criminal case the burden or duty of calling any witnesses or producing any evidence.”).
                                             5
for plain error.9 Error is plain when it is “so clearly prejudicial to substantial rights

as to jeopardize the fairness and integrity of the trial process.”10 “To be plain, the

error must affect substantial rights, generally meaning that it must have affected

the outcome of the trial.”11

       (11) A prosecutor is prohibited from appealing to the jury’s sympathies by

using the “golden rule argument” during closing arguments.12 Counsel uses the

golden rule “where counsel asks the jury to place themselves in the shoes of a party

to the suit in arriving at a verdict, and to render such verdict as they would want

rendered in case they were similarly situated.”13 Prohibiting golden rule arguments

“discourage[s] improper arguments that play on jurors’ emotions and

sympathies.”14

       (12) Here, the prosecutor resorted to arguments asking the jury to place

themselves in the victim’s shoes:

       Good afternoon. There’s an old expression that a man’s home is his
       castle. I submit to you that is true whether you live on State Street or
       whether you live on South Bradford Street. I submit to you that it is
       true whether you live in a large single family home or whether you
       live in an apartment above a liquor store. So what is unique about our

9
  Baker v. State, 906 A.2d 139, 148 (Del. 2006).
10
   Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
11
   Swan v. State, 820 A.2d 342, 355 (Del. 2003).
12
   Sullivan v. State, 636 A.2d 931, 942 (Del. 1994).
13
   Delaware Olds, Inc. v. Dixon, 367 A.2d 178, 179 (Del. 1976); see also Brown v. State, 49
A.3d 1158, 1161 (Del. 2012) (“[A] golden rule argument [is] ‘a jury argument in which a lawyer
asks the jurors to reach a verdict by imagining themselves or someone they care about in the
place of the injured plaintiff or crime victim.’”) (quoting Black’s Law Dictionary 713 (8th ed.
1999)).
14
   Pennewell v. State, 822 A.2d 397 (Del. 2003).
                                              6
       home and what makes it a castle is that it’s safe. I submit to you that
       if you are not safe in your home, then you do not have a home.
                                             …

       As I said at the outset, a man’s home is his castle. Now, when
       someone comes into your home, even if they come into your home and
       they don’t get anything, they have still robbed you of something. They
       have robbed you of the safety of your home. I respectfully request you
       return a guilty verdict on all counts against the defendant. Thank you
       very much.15

       (13) In Swan v. State, this Court considered a similar question.16 In Swan,

two masked men broke into the victim’s home and shot him to death. During trial,

the prosecutor referred to the sanctity of the home in his closing argument, stating

“Think about home. What is home? Come back from vacation, you want to sit

there.”17 This Court held that although the argument was improper, it did not

amount to reversible error per se.18 Rather, “[i]mproper prosecutorial comments in

closing argument only constitute plain error if credibility is a central issue, the case

is close, and the comment is so clearly prejudicial that defense counsel’s failure to

object is inexcusable and the trial judge must intervene sua sponte in the interest of

fundamental fairness.”19

       (14) Even though the prosecutor engaged in improper closing argument,

the error that occurred here did not result in fundamental unfairness given the


15
   App. to Opening Br. at 40-42 (emphasis added).
16
   820 A.2d at 354-57.
17
   Id. at 355.
18
   Id. at 356.
19
   Id.
                                              7
strong and highly incriminatory evidence against Fleetwood. As noted before,

police apprehended Fleetwood inside the apartment. Both siblings caught him red-

handed with their property. When the detective arrived, he found the steaks and

broken laptops on the floor. Fleetwood had also taken their cell phones. With

such overwhelming evidence of guilt, Fleetwood has failed to demonstrate plain

error due to the State’s improper remarks during closing argument.

      (15) Finally, Fleetwood argues the Superior Court clearly erred by

sentencing him for criminal mischief. The State agrees that the Superior Court

jury returned a not guilty verdict on the criminal mischief count against Fleetwood.

Accordingly, we remand to the Superior Court to vacate Fleetwood’s criminal

mischief sentence.

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

Superior Court is AFFIRMED in part, REVERSED in part, and REMANDED to

the Superior Court for further proceedings consistent with this Order. Jurisdiction

is not retained.

                                             BY THE COURT:

                                             /s/ Collins J. Seitz, Jr.
                                                    Justice




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