        IN THE SUPREME COURT OF THE STATE OF DELAWARE

RICHARD CUSHNER,                       §
                                       §     No. 531, 2018
      Defendant Below,                 §
      Appellant,                       §     Court Below: Superior Court
                                       §     of the State of Delaware
      v.                               §
                                       §     ID. No. 1710011753 (N)
STATE OF DELAWARE,                     §
                                       §
      Plaintiff Below,                 §
      Appellee.                        §


                          Submitted: June 5, 2019
                          Decided: August 5, 2019

Before VAUGHN, SEITZ, and TRAYNOR, Justices.

Upon appeal from the Superior Court. AFFIRMED.

Nicole M. Walker, Esquire, Assistant Public Defender, Wilmington, Delaware, for
Appellant, Richard Cushner.

Brian L. Arban, Esquire, Deputy Attorney General, Wilmington, Delaware, for
Appellee, State of Delaware.




VAUGHN, Justice:
                                I. INTRODUCTION

         A Superior Court jury convicted the appellant, Richard Cushner, of Burglary

in the Third Degree and two counts of Criminal Mischief. Cushner contends on

appeal that the Superior Court erred in denying his motion for judgment of acquittal

because the only evidence connecting him to the crimes was a handprint that was

discovered on the outside of a storage trailer he allegedly burglarized. Relying on

our case of Monroe v. State,1 Cushner contends that the motion should have been

granted because the State failed to present sufficient evidence to establish that his

handprint was impressed at the time the crimes were committed. For the reasons

that follow, we conclude that Monroe is distinguishable and that the evidence in this

case is sufficient to sustain Cushner’s conviction.

                    II. FACTS AND PROCEDURAL HISTORY

         Thomas Dicesare is the owner of Brandywine Motorwerks in Newark. His

business involves rebuilding Porsches into race cars and providing race support to

his customers.         Some of his customers leave trailers used for storing and

transporting their vehicles on Dicesare’s lot. The lot at Brandywine Motorwerks is

fenced in, but the gate to the fence is open during regular business hours (Monday

through Friday, 8:00 a.m. to 5:00 p.m.).   During regular business hours, at the time




1
    652 A.2d 560 (Del. 1995).

                                           1
in question, Dicesare was normally at the lot by himself, and anyone who wanted to

enter the lot when the business was open could do so.

         When Dicesare opened his lot on Monday morning, September 18, 2017, he

discovered that the side door to an auto storage trailer he owned was open.                  He saw

a black, left handprint on the outside of the trailer door.2 The trailer door was white

in color. He also saw that a padlock and latch on the door handle had been cut.

Inside the trailer, he found that a duffle bag and a car cover were missing. He also

found that the lock on another trailer belonging to a customer had been cut, but

nothing had been taken from inside that trailer. Dicesare called the police.

         The police gathered four fingerprints from the handprint on Dicesare’s trailer

door but found no other prints anywhere on that trailer or the customer’s trailer.

Three of the fingerprints had enough detail to make a comparison, and those prints

were identified as belonging to Cushner.

         At trial, Dicesare testified that the last time before Monday, September 18, he

saw or entered his trailer was on Friday, September 15. He explained that he had

worked in the trailer that day and had gone in and out of the same door on which the

handprint was subsequently discovered, but had not noticed any handprint. He also

testified that he and some friends went to his shop on the afternoon of Saturday,

September 16, to hang a sign on his building.               Although the gate to his shop’s lot


2
    It appeared that the handprint was dirty due to grease, dirt, or some other substance.

                                                   2
was open while he and his friends hung the sign on the building, he was in the lot

the whole time and did not see anything or anyone out of the ordinary. He further

testified that he reviewed video from his surveillance camera from the time he left

Saturday to the time he returned Monday morning and that this footage did not show

the burglary. He explained, however, that each night the video footage went pitch

black when the lights in the lot turned off as scheduled at 2:00 a.m. and remained

that way until the sun rose.     Finally, he testified that he had never seen or met

Cushner before and that Cushner had no reason to be on his shop’s lot.

      The fingerprint examiner explained how he was able to match three of the

prints to Cushner and that the fourth print was unusable. He was not able to give

an opinion on when the prints were left on the trailer door, and although he explained

that fingerprints are fragile such that they can be affected (and removed) by weather,

the investigating officer testified that the black powder dust used to lift the handprint

was still visible on the trailer the day before trial, which was ten months after the

burglary.

      The jury also heard testimony about Brandywine Motorwerks’s business and

saw pictures depicting its location and layout. Brandywine Motorwerks sits behind

a car wash and a rental truck facility.   There are two ways to enter its fenced-in lot:

(1) through the main building itself (by entering the rear of the building and walking

through) and (2) through a gate in the fencing that faces the car wash.        Dicesare


                                            3
was the only person with a key to the gate and building, and he testified that he shuts

and locks the gate and the building every day when he leaves.

         At the close of the State’s case, Cushner moved for judgment of acquittal.

The Superior Court denied his motion in a bench ruling. It reasoned that the facts

were distinguishable from Monroe because “[t]his is not the glass or Plexiglass front

door that everybody might use when they come in and out of that building.”3 The

court continued, “This instead is on one trailer that belongs to the business and is

used by the business owner and the person who actually has their property within it.

It’s not a regular commercial establishment where people go and browse and are

about everywhere.”4         The court also noted that the timing here was inconsistent

with Monroe. The court concluded:

                Those inferences are important, the timing inferences, the
                nature of the business inferences, the fact that it is a fenced
                yard and it’s not one that people would generally go to are
                very key differences between this and Monroe and are also
                inferences that may allow—that would allow the rational
                trier of fact to find that that door that had its lock cut and
                was used to gain entry to then take property from within,
                that the handprint was left and the fingerprint was left at
                the time of that offense.5




3
    Appellant’s Opening Br. Ex. A (Trial Tr. 173:7-9).
4
    Id. (Trial Tr. 173:9-12).
5
    Id. (Trial Tr. 175:3-12).

                                                 4
                                    III. DISCUSSION

       We review the denial of a motion for judgment of acquittal de novo.6           We

must determine whether any rational trier of fact, viewing the evidence and all

reasonable inferences to be drawn therefrom in the light most favorable to the State,

could find the defendant guilty beyond a reasonable doubt of all the elements of the

crime. 7     In making this inquiry, we do not distinguish between direct and

circumstantial evidence,8 and in cases involving purely circumstantial evidence, the

State need not disprove every possible innocent explanation.9

       Cushner’s sole argument before the Superior Court and on appeal is that under

Monroe v. State, “when the State relies solely on fingerprint evidence to establish

identification, it must also demonstrate that the print could have been impressed only

at the time the crimes were committed.”10            In Monroe, this Court recognized that

“[a] substantial number of jurisdictions appear to have adopted” such a rule.11 The

Court also recognized that evidence may be sufficient to sustain a conviction “where

the circumstances surrounding a defendant’s fingerprints create a strong inference




6
   Ways v. State, 199 A.3d 101, 106 (Del. 2018).
7
   Id. at 106-07; Gronenthal v. State, 779 A.2d 876, 879 (Del. 2001).
8
   Ways, 199 A.3d at 107.
9
   Monroe, 652 A.2d at 567.
10
    Appellant’s Opening Br. at 9 (citing Monroe, 652 A.2d 560).
11
    Monroe, 652 A.2d at 564.

                                                5
that the defendant was the perpetrator.”12        Such circumstances include, but are not

limited to:

                  [W]hether the prints were found in a private or public
                  structure (i.e., whether the object in question was
                  generally-accessible); whether the defendant had any
                  special access to the object in question which may provide
                  an alternative explanation for the presence of the prints;
                  and whether the manner of placement of the prints on the
                  object is supportive of the defendant having placed them
                  there while committing the charged offense.13

          In Monroe, an appliance store in Wilmington was burglarized in the early

morning hours when the store was closed. 14           Seven camcorders and four video

cassette recorders were stolen. 15       The point of entry was the store’s front door,

which was made of plexiglass.16 The lower half of the plexiglass door had been

broken, and eight prints belonging to Monroe were found on at least one of the

broken pieces of plexiglass.17 A total of thirty-one other prints were also found.18

Seventeen of these belonged to someone other than Monroe, but investigators did

not know whether they belonged to more than one person or the identify of their

owner (or owners).19         The other fourteen were of insufficient quality to make a



12
     Id.
13
     Id.
14
     Id. at 562.
15
     Id.
16
     Id.
17
     Id. at 562, 566.
18
     Id. at 566.
19
     Id.

                                              6
comparison.20 This Court held that the presence of Monroe’s fingerprints on the

plexiglass pieces from the front door—the only evidence connecting Monroe to the

crime—was insufficient to sustain a conviction because the front door was generally

accessible to the public and there was no evidence whatsoever as to when his prints

were left on the door. 21    Simply put, the fingerprints were found on plexiglass

pieces from a door “that, in its natural use, tend[ed] to accumulate many

fingerprints.”22 In reaching this decision the Court carefully limited its holding:

“Our holding is limited to the facts before us today. We express no opinion on the

sufficiency of fingerprint evidence to establish guilt in cases involving different

circumstances.”23

         The specific factual circumstances of Monroe are not present in this case.

Here, in contrast to Monroe, where the prints were found on an object that, in its

natural use, would accumulate many fingerprints,24 Cushner’s prints were found on

a door to an auto storage trailer that, while technically accessible to the public at

certain times, was not the type of object that in its natural use, and in its actual use

at Brandywine Motorwerks during the relevant time period, would tend to

accumulate many fingerprints.     As the Superior Court explained in its bench ruling,


20
     Id.
21
     Id. at 566-67.
22
     Id. at 567.
23
     Id.
24
     Id.

                                           7
Brandywine Motorwerks is “not a regular commercial establishment where people

go and browse and are about everywhere.”25 And unlike Monroe, where numerous

fingerprints were found, seventeen of which were affirmatively not Monroe’s, 26

three of the four prints here were identified as Cushner’s, and the fourth print, which

did not have enough detail to make a comparison, was apparently from the same

handprint.

         Furthermore, in Monroe there was no evidence as to when any of the prints

were left on the door,27 but here there was evidence indicating that the fingerprints

were impressed on the trailer door during the weekend of the burglary at a time when

the lot was locked and closed to the public.          Dicesare testified that he had been in

and out of the trailer several times on Friday and had not noticed the print then.

Although the gate to the lot was open on Saturday while he and his friends hung a

sign on the building, he testified that he was in the lot the whole part of the day he

was there putting up the sign where he could have seen (but apparently did not see)

any strangers on the premises.          The factual differences between Monroe and this

case are significant and lead to the conclusion that Monroe is not applicable to the

facts of this case.




25
     Appellant’s Opening Br. Ex. A (Trial Tr. 173:12-14).
26
     Monroe, 652 A.2d at 566.
27
     Id.

                                                 8
          Ultimately, the circumstances surrounding Cushner’s fingerprints—the nature

of the business and the trailer where his prints were found, the lack of other

fingerprints on the trailer, the open door and cut locks, and Dicesare’s testimony as

to the timeline—“create a strong inference that [he] was the perpetrator.”28       We

therefore conclude that there was sufficient evidence from which a rational trier of

fact could find beyond a reasonable doubt that Cushner was the one who burglarized

the trailer.

                                 IV. CONCLUSION

          For the foregoing reasons, the judgment of the Superior Court is affirmed.




28
     Id. at 564.

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