            IN THE SUPREME COURT OF THE STATE OF DELAWARE

VALERIE CAUFFMAN,                        §
                                         §      No. 168, 2014
         Defendant Below,                §
         Appellant,                      §      Court Below:
                                         §
                 v.                      §      Superior Court of the
                                         §      State of Delaware, in and for
STATE OF DELAWARE,                       §      New Castle County
                                         §
         Plaintiff Below,                §      Cr. I.D. No. 1306018911
         Appellee.                       §

                              Submitted: January 14, 2015
                              Decided: January 28, 2015

Before HOLLAND, RIDGELY and VALIHURA, Justices.

                                       ORDER

         This 28th day of January 2015, upon consideration of the briefs of the parties

and the record below, it appears to the Court that:

         (1)     Defendant-Below, Appellant Valerie Cauffman (“Cauffman”) was

indicted and charged with Assault in the Second Degree1 and felony Resisting

Arrest 2 on August 5, 2013. Trial was held on March 25 and 26, 2013. At the

conclusion of the State’s case, Cauffman requested that the jury be instructed on a

lesser included offense of misdemeanor Resisting Arrest. 3 The trial court denied


1
    11 Del. C. § 612.
2
    11 Del. C. § 1257(a).
3
    11 Del. C. § 1257(b).
that request. The jury ultimately found Cauffman guilty of Assault in the Third

Degree4 -- a lesser included offense of Assault in the Second Degree -- and felony

Resisting Arrest. Cauffman was sentenced to one year at Level V incarceration,

suspended for one year at Level II probation for Assault; and one year at Level V

incarceration, suspended for one year at Level II probation to run concurrently for

Resisting Arrest. On appeal, Cauffman argues that the Superior Court erred by

refusing to give a requested jury instruction for the lesser included offense of

misdemeanor Resisting Arrest. We disagree and affirm.

         (2)     On June 20, 2013, between 11:30 p.m. and midnight, Cauffman called

the police to report that her fiancé, John White (“White”), was “acting crazy,

yelling, and intoxicated” in their Lancaster Village home. Officer Sexton

(“Sexton”), Officer Andrea Hall (“Hall”), Officer Laws (“Laws”), Officer Phillips

(“Phillips”), and Lieutenant Travis McDermott (“McDermott”) responded to

Cauffman’s call. When the officers arrived at the home, the lights went off, and all

movement and noise in the house stopped. The officers continued to knock on the

door of the residence. Shortly thereafter a male voice yelled, “you’re not coming

in and I’m not coming out without a warrant.”

         (3)     After approximately five minutes, Cauffman exited the house to speak

with the officers. Initially, Cauffman was cooperative and agreed to let the officers

4
    11 Del. C. § 611.

                                            2
in the house. But Cauffman’s demeanor changed when she discovered that her

fiancé had a capias out for his arrest. As a result, she refused to let the officers in

the house. Cauffman then told McDermott that if they tried to go in the house she

would attempt to stop them. McDermott responded by stating, “if you attempt to

stop us from going inside the house, I will have to arrest you.” Cauffman replied,

“[y]ou’re going to have to do what you have to do.” Eventually White came out of

the house with his face covered in dried blood and stated, “I dare you to go in that

f***ing house.” Laws and Phillips took White into custody. Both Cauffman and

White informed the officers that there were two aggressive dogs inside the house.

      (4)    Cauffman, seeing that White was being taken into custody, ran

towards the door that White had just exited. McDermott followed her. McDermott

testified that he needed to get inside the house to see if anyone was injured and

needed police or medical assistance. McDermott was concerned for several

reasons: the blood he observed on White’s face, the inconsistent statements that

Cauffman told him, Cauffman’s attempt to get the police to leave, and his belief

that there were other people inside the house.

      (5)    Cauffman entered the house, turned around, and threw all of her

weight into the door. The door slammed into McDermott’s arm which went

through a pane of glass in the door. McDermott then stepped back from the door,

observed his injuries, and told Cauffman not to slam the door again. Cauffman,

                                            3
however, slammed the door on McDermott’s foot. McDermott then reached

through the opening in the door and shot Cauffman with a taser. McDermott

testified that he shot Cauffman with a taser because: he could feel blood starting to

come down his arm, there were other people in the house, there were aggressive

dogs in the house, Cauffman was not complying with his orders, and Cauffman

was attempting to assault him with the door.

       (6)    McDermott ordered Cauffman to roll over and put her arms behind

her back. Cauffman did not respond. McDermott struck Cauffman with his foot

two or three times in the leg and abdomen. 5 McDermott attempted to use his taser

on Cauffman again, but she backed away. He attempted to use his taser a third

time, but his hands were caught in the wires and McDermott shocked himself.

McDermott then drew his nightstick and told Cauffman to put her hands behind her

back. This time Cauffman complied.

       (7)    After this incident, McDermott was transported to the Christiana

Hospital emergency room where ten sutures were put in his arm. The hospital did

not treat his foot. However, McDermott had trouble walking for five days

afterwards.




5
  While McDermott was doing this, he admitted that he was angry and yelled at Cauffman,
including calling her a “b***h.”

                                              4
         (8)     This Court reviews a trial court’s refusal to give a lesser included

offense jury instruction de novo.6 The trial court must instruct the jury “only if

‘there is a rational basis in the evidence for a verdict acquitting the defendant of the

offense charged and convicting him of the included offense[s].’” 7 As a result, “it is

not enough that a defendant could be convicted of a lesser charge if he had been

indicted for it; rather, the evidence introduced in the case must support a jury

verdict convicting the defendant of the lesser crime rather than the indicted

crime.” 8

         (9)     The incident occurred on June 20, 2013. At the time, the Resisting

Arrest statute, 11 Del. C. § 1257, provided that:

         (a)     A person is guilty of resisting arrest with force or violence
                 when:
                 (1) The person intentionally prevents or attempts to prevent a
                 peace officer from effecting an arrest or detention of the person
                 or another person by use of force or violence towards said
                 peace officer; or
                 (2) Intentionally flees from a peace officer who is effecting an
                 arrest against them by use of force or violence towards said
                 peace officer; or
                 (3) Injures or struggles with said peace officer causing injury to
                 the peace officer.
         Resisting arrest with force or violence is a class G felony.


6
    Dickerson v. State, 975 A.2d 791, 797 (Del. 2009).
7
    Ward v. State, 575 A.2d 1156, 1159 (Del. 1990) (quoting 11 Del. C. § 206(c)).
8
 Ward, 575 A.2d at 1159 (citing Williams v. State, 494 A.2d 1237, 1241-42 (Del. 1985);
Matthews v. State, 310 A.2d 645, 646 (Del. 1973)).

                                                 5
          (b)    A person is guilty of resisting arrest when the person
                 intentionally prevents or attempts to prevent a peace officer
                 from effecting an arrest or detention of the person or another
                 person or intentionally flees from a peace officer who is
                 effecting an arrest.
          Resisting arrest is a class A misdemeanor. 9

          (10) Cauffman argues that had the jury been instructed on the lesser

included offense, she would have been found guilty of the misdemeanor Resisting

Arrest and not the felony Resisting Arrest. The difference between felony and

misdemeanor Resisting Arrest is that, among other factors, felony Resisting Arrest

requires force or violence towards, or injury to, the peace officer. 10 Cauffman

contends that her counsel would have persuaded the jury that, even though she

tried to avoid detention, she did not intend to injure McDermott.

          (11) Cauffman’s argument is based on the belief that the element “injury to

the peace officer”11 of Section 1257(a)(3) of the felony Resisting Arrest statute

imposes guilt only if a person intends to cause injury. More specifically, Cauffman

argues that 11 Del. C. § 252 provides that when a statute sets forth a state of mind

required for the commission of an offense, without distinguishing between the

different elements of the offense, the required state of mind applies to all elements



9
 See 2014 Del. Laws Ch. 259 (S.B. 179) (eff. June 18, 2014). The Resisting Arrest statute, 11
Del. C. § 1257, was amended in 2014. The amendments effected in 2014 are not relevant here.
10
     Compare 11 Del. C. § 1257(a) with 11 Del. C. § 1257(b).
11
     See 11 Del. C. § 1257(a)(3).

                                                6
of the offense. 12 Because Section 1257(a)(1) and (a)(2) include the word

“intentionally,” Cauffman contends that liability under Section 1257(a)(3) requires

a person to have caused injury “intentionally.”

           (12) The problem with Cauffman’s argument is that Section 1257 does

distinguish between the different elements of the offense. 13 The statute prescribes

three different scenarios under which a person can be found guilty of felony

Resisting Arrest, as evidenced by three subsections separated by a disjunctive

“or.” 14 The first two subsections require proof of intentional conduct, whereas the

third subsection does not expressly set forth the state of mind required for a person

to be found guilty of that criminal offense.15 Given that the General Assembly has

chosen to employ the word “intentionally” in only two of the three subsections of

the statute, it is reasonable to assume that the General Assembly intended to

distinguish among those subsections.16 Accordingly, we reject Cauffman’s


12
  See 11 Del. C. § 252 (“When a statute defining an offense prescribes the state of mind that is
sufficient for the commission of the offense, without distinguishing among the elements thereof,
the provision shall apply to all the elements of the offense, unless a contrary legislative purpose
plainly appears.”).
13
     See 11 Del. C. § 1257.
14
     Id.
15
     Id.
16
  See Watson v. State, 2010 WL 376882, at *2 (Del. Jan 6, 2010) (“We assume that the General
Assembly ‘inserted every provision into a legislative enactment for some useful purpose and
construction;’ thus, when the General Assembly chooses to employ different terms in various
parts of a statute, we find it equally reasonable to assume that the General Assembly intended to
distinguish between those terms.” (quoting Colonial Ins. Co. v. Ayers, 772 A.2d 177, 181 (Del.
2001))).

                                                 7
contention that Section 252 requires a specific intent to cause injury in order to

impose guilt under the third subsection.

          (13) This interpretation is consistent with the intent of the General

Assembly as expressed by the statute. The maxim of statutory interpretation

expressio unius est exclusio alterius -- the “expression of one thing is the exclusion

of another” -- which “provides that ‘where a form of conduct, the manner of its

performance and operation, and the persons and things to which it refers are

affirmatively or negatively designated, there is an inference that all omissions

were intended by the legislature.’” 17

          (14) Cauffman next contends that reading 11 Del. C. § 1257 to require a

state of mind less stringent than intentional conduct contravenes the purpose of the

Delaware Criminal Code. This argument is similarly misplaced. Section 201 of

Title 11 establishes that one of the general purposes of the Criminal Code is “[t]o

differentiate upon reasonable grounds between serious and minor offenses and to

prescribe proportionate penalties therefor.” 18 Section 1257 accomplishes that

purpose by differentiating between, on the one hand, the use force or violence

against a police officer, and on the other hand, actually causing injury to the police

officer. It is reasonable for a statute to differentiate between not injuring an officer

17
  Brown v. State, 36 A.3d 321, 325 (Del. 2012) (emphasis added) (quoting Leatherbury v.
Greenspun, 939 A.2d 1284, 1291 (Del. 2007)).
18
     11 Del. C. § 201(4).

                                              8
and injuring an officer. Construing Section 1257(a)(3) to not require a specific

intent to cause injury does not contravene the Delaware Criminal Code. Here,

Cauffman acknowledged that she struggled with the police officer and that the

police officer was injured. Thus, there was no reasonable basis for the jury to

acquit Cauffman of felony Resisting Arrest and yet convict her of the lesser

included offense of misdemeanor Resisting Arrest. Accordingly, because 11

Del. C. § 1257(a)(3) did not require proof that Cauffman intended to injure a peace

officer, there was no reasonable basis for the jury to convict her of the lesser

included offense of misdemeanor Resisting Arrest, rather than felony Resisting

Arrest.

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

Superior Court is AFFIRMED.

                                               BY THE COURT:


                                               /s/ Karen L. Valihura
                                               Justice




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