      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,                         )
                                           )
                                           )
            v.                             )
                                           )
MARK GRAYSON,                              )     Cr. A. No. 1509003378A
                                           )                1509003378B
      Defendant.                           )
                                           )
                                           )
                                           )
                                           )

                          Date Submitted: February 6, 2017
                           Date Decided: March 22, 2017


                 On The States Motion for a Directed Finding of Fact.
                    DENIED IN PART; GRANTED IN PART.

                                      ORDER

John S. Taylor, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State of Delaware.

Misty A. Seemans, Esquire, Wilmington, Delaware, Attorney for Defendant.




SCOTT, J.
                                     Background

      On January 18 and 19, 2017, a jury trial was held in this Court in State v.

Mark Grayson, 1509003378A. The trial was bifurcated into an A and a B trial,

which severed the Possession of a Firearm by a Person Prohibited (PFBPP) and

Possession of Ammunition by a Person Prohibited (PABPP) from the other

charges. In the A trial, the jury found Defendant guilty of Reckless Endangering

First Degree, Possession of a Firearm During the Commission of a Felony

(PFDCF), and Resisting Arrest. The Court dismissed the jury for the day, and the

jury was to come back the following day for the B trial regarding the PFBPP and

PABPP charges. Consequently one of the jurors was ill and could not make it to

the B trial. Defendant refused to proceed with eleven jurors and requested an

entirely new jury panel for his B trial.

                                Parties’ Contentions

      The State requests that the Court direct the new jury panel that the State has

established that Defendant possessed a firearm on September 4, 2015. The State

argues that in other contexts directed findings have been upheld. Defense argues

that if the Court grants the State’s Motion for a Directed Finding of Fact, the new

instruction will violate Defendant’s rights under the Sixth and Fourteenth

Amendments of the United States Constitution, and Article I, Section 4 and 7, of

Delaware’s Constitution.      Defense claims that the State failed to cite to any
Delaware case law where the court has instructed a different jury panel as to a

directed finding, and the State relied on irrelevant case law to support its Motion.

                                       Discussion

          The question this Court must determine is whether the State is entitled to an

instruction in the B trial that Defendant possessed a firearm, because the State

proved beyond a reasonable doubt in the A trial that he possessed a firearm during

the commission of a felony. The Court finds that the State is entitled to an

instruction acknowledging that possession of a firearm is established. The issue in

this case is more fundamental than the parties raised in their respective motions.

How the Court has handled prior similar cases is relevant because they hinge on

the Court’s practices to promote judicial efficiency. Whether the Court chooses to

sanitize or sever a case is discretionary, and stems from the Court’s Criminal

Rules. Superior Court Criminal Rule 8 provides that “two or more offenses may

be charged in the same indictment or information in a separate count for each

offense if the offenses charged are of the same or similar character or are based on

the same act or transaction.”1 Similarly, Superior Court Criminal Rule 14 allows

the Court to “sever offenses and hold separate trials if it appears that a defendant




1
    Super. Ct. Crim. R. 8(a).
will be prejudiced by the joinder.”2 The Delaware Supreme Court held that “there

does not appear to be any prior case which establishes that severance is required”

for Person Prohibited charges, and while “Person Prohibited charges are frequently

severed, it is also true that they are sometimes tried together with other charged

offenses.”3 With that being said, Defendant filed a motion to sever the PFBPP and

PABPP. The Court granted Defendant’s motion even though, pursuant to Superior

Court Criminal Rule 8, the charges arise from the same transaction. Because the

charges arise from on transaction, the Court notes that the B trial is not a second

trial. The PFBPP and PABPP charges flow from the same indictment and occur

from the same transaction as the A trial. The B trial is merely a subset of the

overall transaction, which the Court severed in favor of Defendant. Once the jury

found Defendant guilty of possession of a firearm in the A trial, possession of a

firearm relating to the entire transaction was established beyond a reasonable

doubt. Thus, Defendant’s constitutional rights to a trial by jury are not infringed if

the Court grants the State’s Motion.

       The Court understands the importance of Defendant’s right to a trial by jury,

and the State’s burden to prove every element of a crime beyond a reasonable

2
  See Massey v. State, 953 A.2d 210, 217 (Del. 2008)(Delaware Supreme Court upheld the
Superior Court’s denial of Defendant’s motion to sever PDWBPP from other charges, including
PDWDCF); see also Super. Ct. Crim. R. 14.
3
  Dale v. State, 2017 WL 443705, at *2 (Del. Jan. 31, 2017); see also Rosser v. State, 2016 WL
1436604 (Del. Apr. 5, 2016)(PFDCF and PFBPP charges were not severed, and the Supreme
Court found that the defendant’s stipulation that he was a person prohibited waived his claim of
prejudicial joinder); Massey v. State, 953 A.2d 210 (Del. 2008).
doubt. Nevertheless, the State proved, beyond a reasonable doubt, that Defendant

possessed a firearm. Consequently, relitigation of possession of a firearm may

render an inconsistent verdict, as a jury unanimously determined that Defendant

possessed a firearm on September 4, 2015. Along the same lines, relitigation of

possession of a firearm requires that the State essentially try its case in chief twice,

as the B trial has the exact same facts, parties, and arises from one transaction.4

Moreover, the Court does not find Defendant’s distinction between the two

different jury panels persuasive. Regardless if the B trial jury consists of an

entirely new panel of jurors, or the exact same panel of jurors from the A trial, the

element of possession of a firearm was established beyond a reasonable doubt. For

example, in a bench trial, the Judge would not reevaluate possession of a firearm

when assessing the PFBPP charge, nor require the State re-try that Defendant

possessed a firearm.

       Additionally, this Court notes that possession in PFDCF is encompassed in

the broader definition of possession in PFBPP. The PFDCF instruction states that

the jury must determine that the defendant committed a felony, “[d]uring the

commission of the felony, the defendant possessed a firearm,” and the defendant

“acted knowingly” in order to find him guilty of PFDCF. The PFBPP instruction


4
  The Court notes that this analysis is very similar to an analysis of a res judicata argument.
Neither party raised res judicata as an issue for the Court’s determination, but the Court
acknowledges it may apply.
states that in order to find that the defendant possessed a firearm, the jury must find

he “knowingly possessed, purchased, owned or controlled a firearm at the time of

the alleged offense.” The PFDCF instructions in the A trial stated that “in order

for the defendant to be found in possession of a firearm, as that word is used in this

statute, you must find that the weapon was in the immediate personal possession

of, or under the immediate control of the defendant so that it was physically

available or accessible during the commission of the crime.”           Possession, as

defined in the PFBPP instruction, “includes actual possession and constructive

possession.    Actual possession means that Defendant knowingly had direct

physical control over the weapon. Constructive possession means that the weapon

was within Defendant’s reasonable control, that is, on or about his person,

premises, belongings, or vehicle. In other words, Defendant had constructive

possession over the weapon if he had both knowledge of the weapon’s presence

and the power, at the time, to exercise control over the weapon.” Here, the jury

determined that the weapon was either in the immediate personal possession of

Defendant, or under the immediate control of Defendant so that it was physically

available or accessible during the commission of the crime.
       The difference in the PFDCF instruction and the PFBPP instruction is based

on well settled law that PFBPP is a broader standard of possession.5 PFDCF

requires the State “prove two elements beyond a reasonable doubt: a defendant’s

commission of a specific felony, and his possession of a firearm during the

commission of that felony.”6 Establishing PFDCF “requires evidence of physical

availability and accessibility”7 as well as “proving actual or constructive

possession.”8 On the other hand, PFBPP requires “proof that he [defendant] was a

prohibited person and that he knowingly possessed or controlled a deadly

weapon.”9 Unlike PFDCF, PFBPP “makes it a crime for a prohibited person to

possess a weapon or ammunition at any time, and “the State need only prove that a

defendant possessed or controlled a weapon at some point, not necessarily at the

time of his arrest.”10      As the more limited determination of possession was

established beyond a reasonable doubt, and the charges arise out of one

transaction, possession of a firearm is established. Therefore, the State’s motion is

hereby GRANTED on the element of possession in PFBPP. However, the Court’s

5
   See Elmore v. State, 2015 WL 3613557, at n. 11 (Del. June 9, 2016)(stating that the court
applies a “more limited definition of possession to [possession of a deadly weapon during the
commission of a felony] than [possession of a deadly weapon by a person prohibited]); see also
Lecates v. State, 987 A.2d 413 (Del. 2009)(“[E]stablishing PDWDCF requires evidence of
physical availability and accessibility.”).
6
  Priest v. State, 879 A.2d 575, 580-81 (Del. 2005).
7
  Lecates, 987 A.2d at 418.
8
  Id. at 421.
9
  State v. Barrett, 2016 WL 3982923, at *3 (Del. Super. Ct. July 25, 2016).
10
   Maddrey v. State, 975 A.2d 772, 779 (Del. 2009)(citing Miller v. State, 2005 WL 1653713, at
*3 (Del. July 12, 2005)).
holding does not apply to the Possession of Ammunition by a Person Prohibited

charge. The matter was not litigated in the A trial and Defendant is entitled to a

jury determination on this matter. Therefore the State’s motion is hereby DENIED

on the element of possession in PABPP.



      IT IS SO ORDERED.

                                         /s/ Calvin L. Scott
                                         The Honorable Calvin L. Scott, Jr.
