Cogan v. State

• Court: Supreme Court of Delaware
• Decided: February 5, 2021
• Docket: 555, 2019
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

JEFFREY COGAN § § No. 555, 2019 Defendant Below, § Appellant § Court Below: Superior Court § of the State of Delaware v. § § Cr. ID No. 1808002090(N) STATE OF DELAWARE, § § Plaintiff Below, § Appellee. §

Submitted: December 2, 2020 Decided: February 5, 2021

Before VALIHURA, VAUGHN, and TRAYNOR, Justices.

ORDER

This 5th day of February 2021, upon consideration of the parties’ briefs and

the record on appeal, it appears to the Court that:

1. Jeffrey Cogan has twice been convicted of criminal contempt of a

domestic violence protective order in violation of 11 Del. C. § 1271A. Cogan was

first convicted after a trial before a Family Court Commissioner. After Cogan

requested that the Commissioner’s Order be reviewed, a Family Court judge

affirmed his conviction. Cogan then appealed to the Superior Court, which held a

trial de novo before a jury. The jury returned a guilty verdict, and the court sentenced

Cogan to one year of Level V incarceration, suspended for six months of Level I unsupervised probation subject to the condition that he successfully complete an

anger-management course. Cogan then appealed his conviction and sentence to this

Court.

2. Among other things, the domestic violence protective order that Cogan

is said to have violated prohibited him from “contact[ing] or attempt[ing] to contact

[his ex-wife, Angela Hower,] in any way, including, but not limited to, by phone, by

mail, or by any other means[,] [e]xcept via text message or e-mail as pertaining to

the parties[’] children only.”1

3. A week after the order was entered, Cogan sent Hower a text message

that, though raising issues that pertained to the parties’ children, gratuitously

demeaned Hower and accused her of being a liar. The following day Cogan sent

Hower another demeaning text message.

4. In this appeal, Cogan does not claim that the text of his messages did

not offend the provisions of the protective order. Instead, he raises a single issue.

He claims that the evidence that he committed the offense in the State of Delaware—

a statutory element of the offense—did not support the jury’s finding of guilt.

5. Cogan preserved this issue for appeal by moving—unsuccessfully—for

a judgment of acquittal on this ground before the case was submitted to the jury.

This Court reviews the denial of a motion for judgment of acquittal de novo,

1 Opening Br. Ex. A at 1. 2 examining “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. For the purposes of this inquiry, this Court does not

distinguish between direct and circumstantial evidence.”2

6. The territorial applicability of the Delaware Criminal Code is set forth

in 11 Del. C. § 204, which, in relevant part, states:

(a) Except as otherwise provided in this section a person may be convicted under the law of this State of an offense committed by the person’s own conduct or by the conduct of another for which the person is legally accountable if:

(1) Either the conduct or the result of which is an element of the offense occurs within Delaware . . . .

And under 11 Del. C. § 232, in criminal prosecutions, “[f]acts establishing

jurisdiction and venue . . . must . . . be proved as elements of the offense.”

7. For good measure, the statute under which Cogan was prosecuted—11

Del. C. § 1271A(a)(1)—states that “[a] person is guilty of criminal contempt of a

domestic violence protective order when the person knowingly violates or fails to

obey any provision of the protective order issued by [] the Family Court . . . , as long

as such violation or failure to obey occurred in Delaware.” (Emphasis added).

2 Cline v. State, 720 A.2d 891, 892 (Del. 1998). 3 8. It is undisputed that the Superior Court instructed the jury that, to find

Cogan guilty, it must find, among other things, that the alleged violation or failure

to obey the protective order occurred in Delaware.

9. We do not hesitate to conclude that a rational trier of fact could find

beyond a reasonable doubt that Cogan’s violation of the domestic violence protective

order occurred in Delaware. It has long been recognized that the situs of an offense

can be established by inference.3 But the jury did not need to resort to inference to

find that Hower received the offending messages in Delaware; she testified that she

received both of them at work—she was employed by the State of Delaware, a fact

undoubtedly known by Cogan—at the Division of Family Services office at the New

Castle County Police Department. Moreover, that both messages were sent during

ordinary work hours—3:48 p.m. and 10:35 a.m., respectively—establishes a

substantial likelihood, when this fact is viewed in the light most favorable to the

prosecution, that Cogan intended that Hower would receive them in Delaware. And

considering that Cogan himself had been employed “in the Delaware area . . . [for]

15 years or so,”4 suggesting that the messages were also sent from a location in

Delaware, all the evidence viewed together—deferentially, as we must—easily

3 James v. State, 377 A.2d 15, 15–16 (Del. 1977); accord Cordero v. State, 1992 WL 276234, at *1 (Del. Sept. 30, 1992) (“[J]urisdiction requirements may be satisfied . . . by inferences reasonably drawn from direct testimony.”); see also Thornton v. State, 495 A.2d 126 (Del. 1979). 4 App. to Opening Br. at A25. 4 supports the jury’s finding that Cogan’s violation of the protective order occurred in

Delaware.

NOW, THEREFORE, IT IS ORDERED that the Superior Court’s judgment is

AFFIRMED.

BY THE COURT:

/s/ Gary F. Traynor Justice