           IN THE SUPREME COURT OF THE STATE OF DELAWARE


CHRISTOPHER GREGG,                     §
                                       §      No. 156, 2019
      Defendant Below,                 §
      Appellant,                       §
                                       §      Court Below: Superior Court
      v.                               §      of the State of Delaware
                                       §
STATE OF DELAWARE,                     §
                                       §      Cr. ID No. N1711001192
      Plaintiff Below,                 §
      Appellee.                        §

                          Submitted: October 23, 2019
                          Decided:   November 14, 2019
                          Revised:   November 15, 2019

Before SEITZ, Chief Justice; VALIHURA, and VAUGHN, Justices.

                                       ORDER

      This 15th day of November, 2019, having considered the briefs and the record

below, it appears to the Court that:

      (1)    In 2018, a Superior Court jury convicted Christopher Gregg of two

counts of second degree arson and one count of third degree arson. On appeal, Gregg

claims that the Superior Court erred when it allowed the State to admit Gregg’s 2009

arson conviction into evidence at trial. According to Gregg, the prejudicial effect of

admitting the 2009 conviction substantially outweighed its probative value. We

find, however, that the Superior Court carefully weighed the admissibility of the
2009 arson conviction under the standards in Getz v. State 1 and gave the jury a

limiting instruction. Thus, we affirm the Superior Court’s judgment.

         (2)    In November 2017, Gregg rented a property with a home and a barn

with his daughters, “L.G.” and “D.G.,” and his fiancée, Debbie Mauthe. On the

morning of November 2, 2017, Gregg argued with D.G. because D.G. wanted to live

with her grandmother. After D.G. left for school, L.G. saw that her father had

ransacked D.G.’s room.

         (3)    Shortly after Gregg and Mauthe left the house, John Witzke, who was

driving home from work past the house, noticed that Gregg’s house and barn were

on fire and called 911. Witzke also saw personal items scattered on the roof and

back yard.       Once the fire team suppressed the fire, the fire marshals began

investigating. The investigation at the scene led to Gregg’s arrest when he returned

to his house that morning. The K9 search by the Deputy Chief Fire Marshal and his

dog detected accelerant in several areas. The exterior visual search revealed a melted

kerosene can by the rear porch door and excessive charring indicating an area that

burned longer than other areas. The interior visual search showed pour patterns in

the floor joists where an accelerant seeped through the floor to the joists. The

investigators sent debris samples for testing.



1
    538 A.2d 726 (Del. 1988).



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      (4)    A grand jury indicted Gregg on December 18, 2017 on two counts of

arson in the second degree and one count of arson in the third degree. Gregg went

to trial in August 2018. On the third day of trial, Gregg moved to dismiss the charges

for a discovery violation. The Superior Court declared a mistrial and a new trial

began on December 3, 2018.

      (5)    At trial, Deputy Hedrick testified that two structures situated

approximately thirty yards apart on a clear, windless day are unlikely to ignite

simultaneously due to accidental causes. He also ruled out accidental causes such

as careless smoking, faulty kerosene heaters, and faulty electrical issues because the

indicators pointed to an incendiary fire that was intentionally lit by using an

accelerant and an open flame, such as a candle or a match.

      (6)    Prior to trial, the State filed a motion to admit evidence of Gregg’s 2009

guilty plea to arson. The 2009 fire occurred at the home of Gregg’s uncle on January

20, 2009, and was an incendiary fire started inside with an open flame and an

accelerant. At the time, Gregg was living there with his uncle due to issues with his

substance abuse. Gregg argued with his uncle because his uncle changed the locks

on the home and believed that his uncle was going to kick him out. Gregg threatened

to burn the house down, and, on the same day, the home burned down. Gregg pled

guilty to reckless burning and intentionally starting the fire.




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       (7)     After a hearing, the Superior Court allowed the State to admit the

circumstances surrounding the 2009 arson and Gregg’s guilty plea. The court

weighed the Getz factors and admitted the evidence under Rule 404(b) to prove

absence of mistake or accident—that the fire was set intentionally—and, if so,

identity—that Gregg set the fire.

       (8)     During trial, and before the State introduced the challenged evidence,

the Superior Court instructed the jury that they “may use such evidence only to help

you in deciding whether the fire in this case was set intentionally; and, if so, whether

the defendant was the person who intentionally set that fire.”2 At the end of trial,

the Superior Court gave a similar jury instruction.3 The jury convicted Gregg on all

charges.

       (9)     On appeal, Gregg argues that the Superior Court abused its discretion

when it allowed the State to present evidence of the 2009 fire. Gregg argues that the

State did not offer the evidence for a proper purpose because the two incidents were

not sufficiently similar, and the risk of unfair prejudice substantially outweighed the

probative value because of the likelihood that the jury would find a propensity for

Gregg to set the 2017 fire. We review the admission of evidence under Delaware

Rules of Evidence 404(b) for an abuse of discretion.4


2
  App. to Opening Br. at A056-57.
3
  Id. at A130.
4
  Allen v. State, 644 A.2d 982, 985 (Del. 1994).

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       (10) Under Rule 404(b), the Superior Court cannot admit prior crimes to

prove a person’s character in order to show that on a particular occasion the person

acted in accordance with his character. It may, however, admit prior crimes for

another purpose, such as proving identity, absence of mistake, or lack of accident.5

Under Getz v. State, the evidence is admissible if: (i) it is material to an issue or

ultimate fact in dispute; (ii) it is for a proper purpose under Rule 404(b); (iii) the

other crime was proven by plain, clear, and conclusive evidence; (iv) the other crime

is not too remote in time from the charged offense; and (v) in accordance with D.R.E.

403, the risk of unfair prejudice from the evidence must not substantially outweigh

its probative value.6 If the court allows the evidence, it should also give the jury a

limiting instruction.7

       (11) Applying the Getz factors, the court found first that the issues at trial

were whether someone intentionally set the fire, and, if so, whether Gregg set it.8

The court found that the 2009 fire was material to these disputed issues.9 Second,

the Superior Court found that the 2009 fire evidence was offered for permissible

purposes under Rule 404(b) because the State introduced it “for purposes of showing



5
  D.R.E. 404(b).
6
  538 A.2d 726, 734 (Del. 1988).
7
  Id.
8
  App. to Opening Br. at A032-33.
9
  Id. at A032 (finding that both fires were incendiary, started inside the structures, possible with
an open flame, with the use of accelerants, and the contextual events were plausibly similar—e.g.
both involved prior arguments with family).

                                                 5
identity and absence of mistake or accident in these fires occurring.”10 Third, the

Superior Court found that there was plain, clear, and conclusive evidence because

Gregg confessed to reckless burning and intentionally starting the 2009 fire. Fourth,

the Superior Court found that only cases more than ten-years old are too remote.11

Because the 2009 fire was only eight years before the 2017 fire, the Superior Court

found it was not too remote.

       (12) The Superior Court also acknowledged under Rule 403 that the

evidence would appear to cast Gregg in a negative light or might lead the jury to

believe Gregg is of a certain character.12 But, the court found the evidence to be

probative of whether the fire was intentionally set and whether Gregg was the one

who set it. 13 Weighing the probative value and prejudicial effect, the court

concluded that the risk of prejudice did not substantially outweigh the probative

value.14 After deciding to admit the evidence, the court gave a limiting instruction

and a specific jury instruction.15


10
   Id.
11
   Id.; see Trowbridge v. State, 647 A.2d 1076, 1078 (Del. 1994).
12
   Id. at A033.
13
   On appeal, the parties look, in part, to the nine factors in DeShields v. State, 706 A.2d 502, 506-
07 (Del. 1998) (Analyzing Rule 403 under Getz by considering nine factors: (i) the extent to which
the point to be proved is disputed; (ii) the adequacy of proof of the other crime; (iii) the probative
force of the other-crime evidence; (iv) the proponent’s need for the other crime-evidence; (v) the
availability of less prejudicial proof; (vi) the inflammatory or prejudicial effect of the other-crime
evidence; (vii) the similarity of the other crime to the charged offense; (viii) the effectiveness of
limiting instruction; and (ix) the extent to which the other-crime evidence would prolong the
proceedings.).
14
   App. to Opening Br. at A033.
15
   Id. at A130-31.

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       (13) After a careful review of the record, we find that the Superior Court

carefully analyzed each of the Getz factors based on the issues at trial and facts of

the case. The court could reasonably conclude that the factual circumstances of the

2009 and 2017 fires were similar enough for the 2009 fire evidence and Gregg’s

guilty plea to be highly relevant to the only two issues in the case—whether the fire

was intentionally set and whether Gregg set it. Further, the limiting instruction and

jury instruction helped mitigate any prejudice to Gregg.16 Thus, the Superior Court

did not abuse its discretion when it admitted evidence of the 2009 fire to determine

the fire was intentionally set and to identify Gregg as the person who set it.

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

Court is AFFIRMED.

                                                   BY THE COURT:

                                                   /s/ Collins J. Seitz, Jr.
                                                        Chief Justice




16
  State Farm Mut. Auto. Ins. Co. v. Enrique, 3 A.3d 1099, 2010 WL 3448534, at *3 (Del. Sept. 3,
2010) (TABLE) (the jury is presumed to follow the court’s instructions).

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