IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )

v. § I.D. # 1604008485A
DWAYNE DUNNELL, §
Defendant. §

Submitted: July 27, 2017
Decided: September 8, 2017

Upon Defendant’s Motion for Judgment of Acquittal:
DENIED

This Sth day of September, 2017, upon consideration of the Motion for
Judgement of Acquittal (the “Motion”) filed on behalf of DWayne Dunnell, the
record in this case, and the applicable legal authorities, including Rule 29 of the
Superior Court Rules of Crirninal Procedure (“Rule 29”), it appears to the Court
that:

l. Dunnell Was indicted for Drug Dealing in Heroin (Tier 4), Aggravated
Possession of Heroin (Tier 5), Conspiracy Second Degree, Possession of a Firearm
During the Comrnission of a Felony, Possession of a Firearm While in Possession
of a Controlled Substance, Possession of Drug Paraphernalia, Possession of a

Firearm by a Person Prohibited (PFBPP), and Possession of Amrnunition by a

Person Prohibited (PABPP).l On March 3, 2017, after a four-day trial, a jury
convicted Dunnell of Drug Dealing in Heroin (Tier 4), Aggravated Possession of
Heroin (Tier 5), and Conspiracy Second Degree. The jury found Dunnell not
guilty of the firearm and drug paraphernalia charges.

2. At trial, Detective Eugene Giallombardo of the NeW Castle County
Police Department testified that officers executed a search Warrant at the home of
Kyle Dunnell, the Defendant’s cousin and co-defendant. Dunnell Was living With
Kyle2 When the search Was conducted. Upon entering the house, officers observed
that the front and back doors had chairs Wedged under the doorknobs to prevent the
doors from opening. Detective Giallombardo testified that during the search the
officers located a locked safe under a pile of clothes in the laundry room. Inside
the safe Were 3,488 bags of heroin, a digital scale, a loaded Glock 9mm handgun,
and ammunition. Some of the heroin bags found in the safe bore the stamp “King
Kong.” Officers later located a key to the safe in Kyle’s pants pocket.

3. Officers found a bag of pink glassine baggies in the kitchen of the
home, a pay stub With Dunnell’s name on it in the laundry room, and shotgun
shells in the laundry room and hall closet. The police also found $371.00 in cash

and two cell phones in Dunnell’s bedroom. TWo more cell phones Were found in

 

l The PFBPP and PABPP charges Were severed into a “B” trial, Which was presented
immediately after the jury concluded its deliberations in the “A” trial. The jury found Dunnell
not guilty of both charges in the B case.

2 I use Kyle Dunnell’s first name to distinguish him from the Defendant and not as a sign of
disrespect.

Kyle’s room. In a spare bedroom, another digital scale Was located. Detective
Giallombardo testified that a car, registered to Dunnell, Was in Kyle’s driveway. A
fifth cell phone, an Alcatel flip phone, Was found in the car. Dunnell told the
Detective everything in the car Was his, and Dunnell later did not deny the Alcatel
flip phone Was his When the Detective described the car’s contents during
Dunnell’s interview. Detective Giallombardo testified he found a text message
reading “King Kong” that Was sent from the Alcatel flip phone at 2:54 a.m. on
March l2, 2016. A photograph of the text message Was presented to the jury.

4. Alia Harris, a forensic chemist, testified that the substance found in
the safe Was confirmed to be heroin. Detective Darryl Santry of the NeW Castle
County Police Department testified regarding text messages that Were found on the
four cell phones retrieved during the search of the residence.

5 . Detective Vincent Jordan of the Wilmington Police Department
offered his expert opinion that the heroin found in the safe Was not for personal
use. Detective Jordan gave a number of reasons for this conclusion. For example,
he testified it is abnormal to see drug users possessing such a large amount of
heroin, Furthermore, he testified drug dealers commonly Will have a firearm
located near their drug supply and Will barricade their homes for self-protection
from other drug dealers or to delay law enforcement entry. Detective Jordan also

opined that drug users often do not have large sums of money, that drug dealers

often do have such sums, and that drug dealers also often have one cell phone for
personal use and additional cell phones for business.

6. Detective Jordan also compared the text messages found on Kyle’s
phone with those on the two phones found in Dunnell’s bedroom and concluded
that Kyle and Dunnell were working together to sell drugs. On a cell phone found
in Dunnell’s bedroom, there were incoming text messages from someone who, in
Detective Jordan’s opinion, was begging for heroin, There also was a text message
on that phone that stated: “Let me call my cousin.” On the other cell phone, there
was a text message saying “Dread will come over.” The jury heard evidence that
Kyle also was known as “Dreads.” Detective Jordan opined that there was drug
language found in other text messages. For example, there were texts containing
“lb” meaning “one bundle,” “bread” meaning “money,” and “40 more” meaning
“$40.00 worth” or “40 bags of drugs.” Based on the text messages and other
factors listed above, the Detective opined Dunnell possessed more than 3,0()0 bags
of heroin with the intent to deliver it, and Dunnell and Kyle were working together
to sell drugs.

7. Dunnell now seeks judgment of acquittal as to the charges of which he
was convicted, arguing the evidence adduced at trial was not sufficient to support

the verdicts.3 Specifically, Dunnell contends the safe “exclusively was possessed

 

3 D.I. 69 arjj 8.

by [Kyle],”4 and that “[a]lthough the State presented evidence in the form of cell
phone text messages suggesting that . . . Dunnell was involved in several instances
of drug dealing, the record is void of . . . evidence that he had knowledge of the
contents of the . . . safe or access and control of the . . . safe and its contents.”5
Dunnell contends the State must present more than the mere presence of the safe,
such as a connection between him and the contents of the safe, to carry its burden
of proof. Dunnell therefore argues the jury improperly weighed the text message
evidence. Dunnell contends the cell phone evidence was insufficient to prove
beyond a reasonable doubt that he possessed the drugs in the safe, which was the
conduct for which he was charged.6

8. 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.7 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.8

9. To prove Dunnell committed the crime of Drug Dealing, the State was

required to prove: (l) the substance possessed in the safe was heroin, or any

mixture containing heroin; (2) Dunnell possessed the substance; (3) Dunnell acted

 

4 D.I. 69 at jj 4.

5 D.I. 69 at 11 9.

6 D.I. 87 at 7.

7 State v. Biter, 119 A.2d 894, 898 (Del. Super. 1955).
8 Jervey v. S¢a¢e, 637 A.zd 827 (Del. 1994).

knowingly; (4) Dunnell possessed 4 grams or more of the substance; and (5) when
Dunnell possessed the substance, he had the intent to deliver it. The first three
elements of Aggravated Possession are identical to Drug Dealing, but rather than
proving the fourth and fifth elements, the State only needed to prove Dunnell
possessed five grams or more of the substance. Finally, to find Dunnell guilty of
Conspiracy Second Degree, the jury was required to find beyond a reasonable
doubt that (l) Dunnell agreed with another person, in this case Kyle, that one or
both of them would engage in conduct constituting Drug Dealing or Aggravated
Possession; (2) either Dunnell or Kyle committed an overt act in pursuit of the
conspiracy; and (3) Dunnell acted intentionally.

lO. Dunnell challenges the sufficiency of the State’s evidence regarding
the elements of possession, knowledge, and, by extension, intent. Considering the
record in the light most favorable to the State, the evidence was sufficient on every
element of the crimes of Drug Dealing, Aggravated Possession, and Conspiracy
Second Degree. That evidence included the barricaded doors in the home; the
safe’s location in the common area of the home; the relatively large amount of cash
found in Dunnell’s bedroom; the recovery of five cell phones, two of which were
in Dunnell’s bedroom and one of which, a "burner phone,” was in a car registered
to Dunnell; the reference to “King Kong” in a text message and “King Kong”

stamped on bags of heroin; text messages referring to Dunnell working with Kyle

in response to requests for heroin; and other text messages suggesting Dunnell
engaged in the drug trade With his cousin, who on the day of the search had
physical possession of the key to the safe,

ll. As the Court explained to the jury, the element of possession does not
require the State to prove actual possession To meet its burden, the State could
prove actual or constructive possession, which includes having both the power and
the intention, at a given time, to exercise control over the substance, either directly
or through another person. Based on the evidence, a rational trier of fact could
have concluded that Dunnell knew of the heroin in the safe and had the power and
intent to exercise control over the drugs. Contrary to Dunnell’s argument, the fact
that the jury returned not guilty verdicts on the gun charges does not indicate the
jury reached an inconsistent verdict on the drug charges or that the jury was
mislead by the text messages. Unlike the drug charges, the State did not have other
evidence, direct or circumstantial, that Dunnell had knowledge of the firearm in the
safe or could exercise control over it. A rational jury could conclude the State
proved Dunnell constructively possessed the drugs but did not constructively

possess the firearm or ammunition.

For all the foregoing reasons, Dwayne Dunnell’s Motion for Judgment of

Acquittal is DENIED. IT IS SO ORDERED.

Mi%/

Abf§aild¢l. Le@ron Judge

Original to Prothonotary

cc: Timothy McGuire, Deputy Attorney General
Erika Flaschner, Deputy Attorney General
John S. Malik, Esquire

