    IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                    IN AND FOR NEW CASTLE COUNTY


STATE OF DELAWARE                           )
                                            )
               v.                           )   ID No. 1309018141
                                            )
SHAKITA DOLLARD,                            )
                                            )
               Defendant.                   )
                                            )


                                     ORDER

        Defendant was found guilty of felony theft by a jury.     She was

sentenced to two years at Level 5 suspended immediately for one year at

Level 2 probation. Now before the court is her timely renewed motion for

judgment of acquittal. This is the court’s order resolving that motion.

        1. The Supreme Court recently had occasion in Lum v. State 1 to

remind trial judges that they may not defer ruling on motions for

judgment of acquittal made at the close of the State’s case (as opposed to

motions made at the close of the evidence).         This is of considerable

significance since courts are limited to consideration of only the evidence

in State’s case-in-chief when the motion is made at the close of the

State’s case. When the motion is made at the close of all the evidence




1   2014 WL 4667089 (Del. Sep. 19, 2014).
the trial court is free to consider all of the evidence, including any offered

by the defendant, when ruling on the motion.

       2. In this case it is unclear whether Defendant’s motion was made

at the close of the State’s case or at the close of all of the evidence. In

Lum the Supreme Court held that a trial judge’s deferral of a ruling on a

motion for judgment of acquittal is harmless error if, upon further

review, the evidence offered during the State’s case-in-chief justified

denial of that motion.         According to the Lum court, “[b]ecause the

evidence presented in the State's case-in-chief was clearly sufficient to

sustain his conviction without reference to the additional evidence of

Lum's knowledge that came in during his own case . . . the Superior

Court's failure to rule on the motion at the end of the State's case-in-

chief and before the defense case commenced was harmless.” 2 In light of

the current uncertainty concerning the timing of Defendant’s motion at

trial, the court will err on the side of caution and will assume that it was

made at the close of the State’s case. It will therefore only consider the

evidence offered during that case-in-chief. 3


2  Id. at *2.
3  Defendant testified during her case-in-chief and provided additional evidence tending
to incriminate her. She testified a third person who worked for her insurance carrier
agreed to be a straw man who paid her premiums so that she could get that third-
person’s employee discount. According to Defendant she delivered cash every month to
this third person (whose last name she did not know) and that individual would, in
turn, pay Defendant’s premium. She offered no explanation (1) how she could be the
named insured on a policy when she was getting an employee discount by using the
third person’s name, and (2) why it was necessary for her to have an automatic
deduction of her premium from her ostensible checking account when the third person
was purportedly paying her premium. If the court were to consider this evidence it
would conclude that it would also allow a reasonable trier of fact to find Defendant
guilty.


                                           2
        2.    The standard for granting a judgment of acquittal is a familiar

one: “whether any rational trier of fact, viewing the evidence in the light

most favorable to the State, could find a defendant guilty beyond a

reasonable doubt of all the elements of the crime.” 4

        3. In this case Defendant is charged with having her automobile

insurance carrier electronically deduct her monthly premium payment

from the victim’s account.            The Defendant and the victim were not

acquainted, and the victim testified he never authorized payment of

Defendant’s insurance premiums from his account.

        4. In her motion Defendant contends that there was no evidence

that Defendant provided her insurance carrier with the victim’s bank

routing number and account.

        5. During its case-in-chief the State played for the jury an audio

recording of a telephone conversation between Defendant and an

employee of her insurance carrier. During that telephone conversation

Defendant told the insurance employee that she wished to re-start

automatic deductions of her insurance premiums from her checking

account. The employee asked Defendant for her bank routing number

and checking account number, whereupon Defendant replied she did not

remember them. The insurance carrier’s employee then read the routing

number and account number it had on file, which were the numbers

associated with the victim’s account.              After hearing that information


4   Cline v. State, 720 A.2d 891, 892 (Del. 1998)(per curiam).


                                             3
Defendant authorized the insurance carrier to deduct the premiums from

that account.

      6. When viewed in the light most favorable to the State a rational

jury could conclude that Defendant authorized the insurance company to

deduct her premium payments from that account knowing the account

was not hers.

      For the foregoing reasons, the motion for judgment of acquittal is

DENIED.




October 24, 2014
                                          John A. Parkins, Jr.
                                          Superior Court Judge




oc: Prothonotary

cc: Nicholas R. Wynn, Esquire, Department of Justice,
    Wilmington, Delaware – Attorney for the State
    T. Andrew Rosen, Esquire, Office of the Public Defender,
    Wilmington, Delaware – Attorney for the Defendant




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