Parker v. State

The felony theft statute, 11 Del. C. § 841, provides, in relevant part:

§ 841 Theft; class B felony; class D felony; class F felony; class G felony; class A misdemeanor; restitution.

(a) A person is guilty of theft when the person takes, exercises control over or obtains property of another person intending to deprive that person of it or appropriate it. Theft includes the acts described in this section, as well as those described in §§ 841A-846 of this title.

[...]

(c)(1) Except [as provided under certain circumstances], theft is a class A misdemeanor unless the value of the property received, retained or disposed of is $1,500 or more, in which case it is a class G felony.

The General Assembly enacted the theft of a motor vehicle statute, 11 Del. C. § 841A, in 2006.^[10] It provides:

§ 841A Theft of a motor vehicle; class G felony.

(a) A person is guilty of theft of a motor vehicle when the person takes, exercises control over or obtains a motor vehicle of another person intending to deprive the other person of it or appropriate it.

(b) As used in this section "motor vehicle" means an automobile, motorcycle, van, truck, trailer, semitrailer, truck tractor and semitrailer combination, or any other vehicle which is self-propelled, which is designed to be operated primarily on a roadway as defined in § 101 of Title 21, and in, upon or by which any person or property is or may be transported. "Motor vehicle" as used in this section shall not include any device that is included within the definitions of "moped," "off-highway (OHV)," "triped," "motorized scooter or skateboard," "motorized wheelchair" or "electric personal assistive mobility device (EPAMD)" as defined in § 101 of Title 21.

(c) Theft of a motor vehicle is a class G felony.

Also relevant is 11 Del. C. § 206, which provides, in relevant part, that "the defendant may not ... be convicted of more than 1 offense if ... [o]ne offense is included in the other, as defined in subsection (b) of this section."^[11] Subsection (b) provides, in relevant part, that an offense is "included when ... [i]t is established by the proof of the same or less than all the facts required to establish the commission of the offense charged."^[12] Section 206 is consistent with the U.S. Supreme Court's test in Blockburger v. United States , which provides that "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not."^[13] Blockburger , however, "is only an aid to statutory construction."^[14] "It does not negate clearly expressed legislative intent and where ... a better indicator

The State argues that Parker's claim fails under the Blockburger test because each theft provision contains an element that the other does not. Specifically, the motor vehicle provision requires proof that the item stolen is a "motor vehicle," which is not an element of ordinary theft; and the felony theft provision requires proof that the item's value is at least $1,500, which is not an element of the motor vehicle theft statute. In support of its argument, the State cites this Court's unpublished order in Proffitt v. State , which held that theft and theft of a firearm were different offenses for double jeopardy purposes.^[16] The Proffitt Court reasoned that each of the offenses "requires an element of proof which is not present in the other" because "[t]he felony theft statute ... requires proof of value, which the theft of a firearm statute ... does not," and "the theft of a firearm statute requires proof that the stolen property was, in fact, a firearm ... while the theft statute does not."^[17]

Parker distinguishes Proffitt on the grounds that the theft statute expressly states that "[t]heft includes the acts described in this section, as well as those described in §§ 841A-846 of this title."^[18] Section 841A is the motor vehicle statute. That statement, Parker argues, shows that the General Assembly intended theft of a motor vehicle to be an included offense of the more general theft provision. In support of this argument, he cites the legislative history of the theft of a motor vehicle statute, which explains that "this Act will classify all motor vehicle thefts as a felony" due to the "great inconvenience and economic hardship to the victim, regardless of the value of the stolen vehicle."^[19]

We agree with Parker that theft of a motor vehicle and theft are the same offense for double jeopardy purposes. Even if theft of a motor vehicle would not be an included offense of felony theft under the Blockburger test, Blockburger "is only an aid to statutory construction," and "where ... a better indicator of legislative intent is available, it does not apply."^[20] Here, there is a better indicator of legislative intent: the statement in the felony theft statute that "[t]heft includes the acts described in this section, as well as those described in §§ 841A-846 of this title." Section 841A is the theft of a motor vehicle provision; thus, by the plain language of the theft statute, theft of a motor vehicle is an included offense of theft. The State's preferred understanding, by contrast, would render the final sentence of § 841(a) superfluous, contrary to the canon that "[a] statute will not be construed in such a way that part of it becomes surplusage."^[21] If "includes" means something other than "includes for double jeopardy purposes," the State has not explained what that alternative meaning might be.

This understanding of motor vehicle theft as an included offense of theft makes sense in context. When the General Assembly enacted the theft of a motor vehicle statute, it placed the provision immediately after the general theft provision in the Delaware Code. Judging by its legislative history, the General Assembly enacted the new statute to make a sort of "automatic

Construing theft of a motor vehicle as an included offense also makes sense in light of the other provisions included from §§ 841A to 846, each of which is a different species of theft.^[24] The official Commentary to the Delaware Criminal Code issued in 1973, which this Court has previously cited as authoritative,^[25] reinforces this understanding by referring to the subsequent specialized theft offenses as "all constitut[ing] theft,"^[26] being "different types of the same criminal activity," and being "include[d]" in the general theft provision.^[27] The Commentary's introduction to the "theft" subpart of the Code bolsters this view even further, explaining that "[t]he ensuing sections, in their original form, were drafted with the concept of a unified theft offense in mind."^[28] Under the new statutory framework, "all takings of property, whatever they might have been called

Proffitt is distinguishable based on the differences between the motor vehicle and firearm theft statutes. Unlike the motor vehicle theft statute, the firearm theft statute at issue in Proffitt is not mentioned as "included" by the general theft statute.^[30] Indeed, the theft of a firearm provision is located in an entirely different subchapter in the Delaware Criminal Code, titled "Offenses Against Public Health, Order and Decency."^[31] That title hints toward why the General Assembly may have decided to make theft of a firearm, but not theft of a motor vehicle, a separate offense from theft: stealing a gun creates a risk of public harm separate from the harm to the owner of the gun, whereas stealing a car mainly just hurts the person whose car was stolen. Thus, two potential punishments for theft of a firearm: one under the general theft statute for the harm to the gun owner, and one under the specialized firearm statute for the risk to the public that arises from the possibility that the gun will be used to shoot someone. But only one for theft of a motor vehicle.

In light of the relevant statutory text and legislative history, we hold that theft of a motor vehicle is the same offense as theft for double jeopardy purposes.

B.

The State also argues that even if theft of a motor vehicle is an included offense of theft, there is no double jeopardy violation because the two charges were for separate items: a Kawasaki motorcycle for the motor vehicle theft charge and three ATVs and a dirt bike for the general theft charge. This argument implicates the "multiplicity doctrine," which involves "the charging of a single offense in more than one count of an indictment."^[32] The multiplicity doctrine, which is rooted in the Double Jeopardy Clause, prohibits the State from dividing one crime into multiple counts by splitting it "into a series of temporal or spatial units."^[33] Here, the indictment contained separate counts for the different items stolen-one count for the "Kawasaki motorcycle" and a second count for "a Suzuki ATV, a Honda ATV and/or a Honda dirt bike, or other miscellaneous property valued at $1,500 or more."^[34] These distinctions between the two counts were then reflected in the court's jury instructions. Parker is therefore guilty of multiple thefts only if the theft of the Kawasaki motorcycle is separate from the thefts of the other items under the multiplicity doctrine.

This Court has previously employed a three-factor balancing test to determine whether multiple violations of the same offense have occurred, weighing whether the acts are sufficiently differentiated by (1) time, (2) location, or (3) intended purpose.^[35] At bottom, "[t]he critical inquiry is whether the temporal and spatial

When several articles of property are stolen by the defendant ... at the same time and at the same place, only one larceny is committed.

When several articles are stolen by the defendant ... on different occasions over a period of time, each taking constitutes a separate larceny if each is the result of a separate and independent impulse of intent. On the other hand, if the successive takings are actuated by a single and continuing impulse or intent, or are carried out pursuant to a larcenous scheme or plan and constitute a continuous transaction, only a single larceny is committed.

If several articles are stolen from the same place as the result of a single and continuing impulse or intent, the mere fact that the thief finds it convenient or necessary to make several trips to carry the articles away does not transform the offense from a single larceny into multiple ones.^[39]

In emphasizing the time, location, and intent factors, that description is consistent with Delaware's general approach to the multiplicity doctrine. Although Reader adopted the single theft rule in the multiple-owner context, the rule applies with equal force when the items are stolen from the same owner.^[40]

The facts of Reader are instructive for this case. In Reader , the defendant broke into "a combination warehouse, garage, and office" that housed various equipment.^[41] After entering the garage, the defendant went to the adjoining office and brought back several items and placed them in a pickup truck found in the garage.^[42] The defendant then backed the truck out of the garage and instructed an

Like Reader , the facts here indicate that Parker's theft of the Kawasaki motorcycle on the one hand and ATVs and dirt bike on the other constituted "but one theft offense."^[46] The evidence presented at trial suggests that these thefts occurred within the span of an hour and a half at most, all from the same lot operated by Port-to-Port, and were part of a single criminal scheme to steal various vehicles from the lot. Indeed, the security guard's testimony suggests that Parker stole the Kawasaki motorcycle around the same time as the other items and from the same place in the lot-from the portable toilet, the guard saw the two men put the ATVs and "motorcycles" (by which he presumably meant both the Kawasaki motorcycle and the dirt bike) into the same shipping container, all within the span of thirty minutes to an hour^[47] -and the police ultimately found the items in the same U-Haul truck. Further, the Port-to-Port general manager testified that the items had been taken "mainly from a single spot" near the guard; and asked whether "all the motorcycles and ATVs that were taken were located behind the guard shack," the manager responded that to the best of his recollection, they were.^[48] There is no evidence to suggest that Parker's theft of the motorcycle was part of a different criminal plan from his theft of the other items or that the thefts occurred at different times or locations. In short, it was all one heist.

This result is consistent with other Delaware cases on multiplicity. In Williams v. State , for example, we held that it was multiplicitous to charge the defendant, a drug dealer, on multiple counts of possession with the intent to distribute where the police found part of the defendant's stash of cocaine in his apartment and part of it in his car.^[49] There, we noted that the drugs "were found at the same time" and "were in the same general location because the car was in close proximity to the apartment," and the defendant's "possession of cocaine shows that he 'displayed a single intent and goal-distribution.' "^[50] In this case, Parker similarly stole the items at the same time from the same location, and the evidence indicates that the thefts were part of a singular criminal scheme. In cases where we have found no multiplicity violation, by contrast, the facts have indicated either that there was a meaningful temporal or spatial separation between each act;^[51] that a separate intent was behind

The State's logic, by contrast, would nullify the multiplicity doctrine as applied to theft. In effect, the State's approach would allow Parker to be charged with a separate count for each item he stole: one count for the Kawasaki motorcycle, a second count for the first ATV, a third count for the second ATV, a fourth count for the dirt bike, and so on for any other stolen items.

Instead, the General Assembly rejected that item-by-item approach to theft in favor of an aggregation approach. With limited exceptions, when the theft is minor, it is classified as a misdemeanor, no matter how many items the defendant steals, so long as their aggregate value is less than $1,500.^[54] If the value of the stolen items reaches $1,500, however, the theft becomes a Class G felony.^[55] Meanwhile, $50,000 in value makes the theft a Class D felony, and $100,000 makes it a Class B felony.^[56] Under this approach, the punishment is determined not by the number of items stolen, but by the total value of those items.

Also notable is the State's admission during oral arguments that if the value of the vehicle that Parker stole was substantially more than the Kawasaki motorcycle ( e.g. , a Ferrari), the State's theory would allow it to aggregate all the items to charge Parker for a higher grade of felony with a single count of theft. According to the State's theory, if Parker stole a vehicle worth $40,000 and the rest of the property he stole was worth $12,000 (adding up to a total of $52,000), the State could charge Parker with either two Class G felonies (up to four years in prison) or one Class D felony (up to eight years in prison). In other words, the State believes it has the option to subject a defendant to whichever punishment it chooses, proceeding with a single count of felony theft that includes the value of the vehicle when that would be more punitive, or with a felony charge for theft and a felony charge for theft of a motor vehicle when that would be more punitive. Yet the State also candidly conceded that it would be impermissible to charge a defendant for both felony theft of a motor vehicle and felony theft of the same stolen car "because then it's a multiplicity issue."^[60] But if charging a defendant twice for theft under those circumstances is a multiplicity violation, then so is charging Parker twice under the circumstances of this case. The fact that, "in Parker's case, the vehicles stolen were different as to each charge,"^[61] makes no difference because Delaware follows the single theft rule.

In sum, because the evidence indicates that Parker committed the thefts at the same time, at the same location, and with the same criminal intent, we hold that sentencing Parker twice for those thefts was multiplicitous.

Because theft of a motor vehicle and felony theft are the "same offense" for double jeopardy purposes and Parker committed the two thefts for which he was charged at the same time, at the same location, and with the same criminal intent, the Double Jeopardy Clause prohibits imposing separate punishments for each

The appellant argues he should not have been sentenced for both theft of a motor vehicle and felony general theft because the two offenses are based on the same course of conduct.^[62] He contends that the Superior Court erred by finding that convictions for both were permitted under the test of Blockburger v. United States .^[63] In so ruling, the Superior Court found that there were differing elements between the two offenses. It found that felony general theft of property did not require proof of theft of a motor vehicle and that theft of a motor vehicle did not require proof of the motor vehicle's value.

Parker's theory is that the Superior Court's reliance upon the Blockburger test is misplaced for two reasons. The first is that the two theft offenses involved here fail the Blockburger test. His argument on this point is that "[w]hile the felony theft offense does not require proof of the theft of a motor vehicle as an element of the offense, the theft of a motor vehicle offense, on the other hand, does not require proof of a felony amount of loss as an element of the offense because it is a felony per se, as defined."^[64]

His second argument is that the Blockburger test is an aide to statutory construction but does not supersede otherwise evident statutory intent. On this point he argues, "It was clear under the evidence in this case that the felony theft of a motor vehicle offense was not a separate offense from the felony theft offense because, like the attempted felony theft offense and felony theft offense, it was an included offense of the felony theft offense."^[65] He continues, "The General Assembly has made that clear in defining the offense of felony theft: 'Theft includes the acts described in this section, as well as those described in §§ 841A-846.' Section 841A of the Criminal Code defines theft of a motor vehicle, a felony offense by definition."^[66] He concludes, therefore, that "the offense of theft of a motor vehicle, a felony offense by definition, is an included offense of felony theft as unambiguously stated under the theft statute."^[67]

"The key question presented by a claim of double jeopardy that is based on multiple punishments is: did the General Assembly intend to impose more than one punishment for a single occurrence of criminal conduct."^[68] "In seeking to ascertain legislative intent, we must first look at the text of the statute in its context."^[69]

The language that "[t]heft includes the acts described in this section, as well as those described in §§ 841A-846" first appeared in § 841 of the 1973 Delaware

Finally, a word must be said about denominating all serious misappropriation of property theft. In doing so this Code follows the modern penal law revisions in other states, and it avoids the possibility that guilty people will escape punishment on the old technical grounds. All of these crimes are equally serious, and are closely related enough to be treated as different types of the same criminal activity. Accordingly, theft is defined to include all acts described in §§ 842 - 846, and it is appropriate to indict the defendant under § 841.^[70]

I would find that the language in § 841 simply makes clear that the crimes defined in §§ 842 through 846 are specialized forms of theft which, at the option of the State, may be indicted and prosecuted under § 841 in lieu of being prosecuted under §§ 842 through 846.

Another relevant statement is found in the introductory comment to the theft subpart: "The ensuing sections, in their original form, were drafted with the concept of a unified theft offense in mind. The idea is that all takings of property, whatever they might have been called at common law, are to be treated as part of a single offense, called theft."^[71] This comment occurs in the context of a discussion of common-law larceny and the "piecemeal enactment of provisions against improper appropriation of someone else's property."^[72] The development of common-law larceny, the commentators reasoned, led to "the law's uncertainty" and "the good chance that conviction may be avoided by a technicality or by a jury's confusion."^[73] The drafters' intent, it appears, was that all takings of property, whatever their form, be regarded as theft, so as to avoid the uncertainty that had developed under common-law larceny. Conceptualizing all takings of property as theft, however, does not take us very far in understanding when a taking that violates two statutory theft sections may, or may not, be prosecuted under each statute. That issue is not discussed in the commentary to the theft sections of the 1973 Criminal Code.

A more helpful source is 11 Del. C. § 206, which codifies the double jeopardy rules generally applicable in the criminal code. It first sets forth a general rule that "[w]hen the same conduct of a defendant may establish the commission of more than 1 offense, the defendant may be prosecuted for each offense."^[74] It then provides exceptions, the one relevant here being that "[t]he defendant may not, however, be convicted of more than 1 offense if: (1) One offense is included in the other, as defined in subsection (b) of this section."^[75] Subsection (b)(1) defines what is meant by an "included" offense. An included offense is one that is "established by the proof of the same or less than all the facts required to establish the commission of the offense charged."^[76] Under § 206, a defendant cannot be double-convicted under both §§ 841 and 841A for stealing a single motor vehicle, because both offenses would be established

In this case, Parker was charged in Count V of the indictment with theft of a motor vehicle under § 841A. He was charged in Count VII with felony general theft under § 841. Section 206 permits Parker's convictions for both offenses because they are not established by the same facts and neither is established by less than all the facts required to establish the other. They are based on different facts: Count V is established by proof that Parker stole the Kawasaki motorcycle, which is a motor vehicle as defined in § 841A, while Count VII is established by proof that Parker stole two ATV's and a dirt bike having an aggregate value of $1,500 or more. The charge under Count V did not require proof of the theft of two ATV's and a dirt bike having an aggregate value of $1,500 or more, and the charge under Count VII did not require proof of the theft of a motor vehicle. Since neither count is established by proof of the same or less than all the facts required for proof of the other, Parker's convictions on both counts satisfy the requirements of § 206. Section 206 is not a mere aid to statutory construction, and there is no language in §§ 841 through 846 or the commentary stating that § 206 does not apply to those sections.

Reading § 841 to preclude charging Parker with both theft of a motor vehicle under § 841A and felony theft under § 841 because of the language that "[t]heft includes the acts described in this section, as well as those described in §§ 841A-846"^[77] renders § 841 in conflict with § 206. When possible, statutes should be read as a whole to reach a harmonious result and to give force and effect to all provisions.^[78] If the language of § 841(a) is interpreted as simply indicating that theft of a motor vehicle (among other things) may, at the State's discretion, be prosecuted under § 841, both § 206 and § 841(a) will be given force and effect without resulting in a conflict between the provisions. If the language in § 841(a), however, is interpreted as establishing theft of a motor vehicle as an included offense for purposes of double jeopardy, in the factual circumstances of this case, § 206 will have no force and effect because the defendant no longer "may be prosecuted for each offense" even though the same conduct "establish[ed] the commission of more than 1 offense"^[79] and the motor-vehicle theft offense was not "established by the proof of the same or less than all the facts required to establish the commission of the" felony general theft offense.^[80]

Theft of a motor vehicle was added as a separate theft in § 841A in 2006, and the above-quoted sentence in § 841(a) was reworded accordingly. The synopsis of the act adopting § 841A states, in part: "The theft of a motor vehicle often causes great inconvenience and economic hardship to the victim, regardless of the value of the stolen vehicle. In recognition of this fact, this Act will classify all motor vehicle thefts as a felony."^[81] The adoption of § 841A is a clear legislative statement that theft of a motor vehicle can always be prosecuted as a felony. If a defendant steals a motor vehicle and other property at the same time, and the aggregate value of the motor vehicle and the other property is less than $1,500, it seems to me quite clear that the State has the option of prosecuting

Finally, Parker's convictions on both counts of theft do not violate the rule against multiplicity or the single theft rule. The doctrine of multiplicity prohibits the State from bringing multiple charges under the same statute.^[82] The State cannot divide an offense under one statute into a series of units.^[83] Here, the two theft counts are different forms of theft under different statutes. Since the charges are made under different statutes, there is no multiplicity. The single theft rule is not violated because our criminal code allows the theft in this case to be divided between § 841 and § 841A. If the State had attempted to split the theft of the ATV's and the dirt bike into multiple counts of theft under § 841, the multiplicity and single theft rules would be violated. But the State did not do so.

I would affirm the judgment of the Superior Court.