IN THE SUPREME COURT OF THE STATE OF DELAWARE
MICHAEL PARSONS, § § No. 81, 2017 Defendant-Below, § Appellant, § Court Below: Superior Court § of the State of Delaware v. § § Cr. ID No. 1605002632A STATE OF DELAWARE, § § Plaintiff-Below, § Appellee. §
Submitted: November 15, 2017 Decided: November 29, 2017
Before VALIHURA, VAUGHN, and SEITZ, Justices.
ORDER
This 29th day of November, 2017 having considered the briefs and the record
below, it appears to the Court that:
(1) The police stopped Michael Parsons for driving a truck with a burnt out
tail light. Parsons consented to a search of the truck, which led the police to find a
loaded handgun behind the driver’s seat. The officers had to climb into the truck
and look around the driver’s seat before discovering the gun. The state charged
Parsons with, and a jury convicted him of carrying a concealed deadly weapon,
among other charges. Parsons moved for judgment of acquittal or a new trial, and
claimed there was insufficient evidence to support his conviction. Parsons argued there was clear evidence that the gun was not concealed, and that the prosecutor’s
irrelevant statements regarding officer safety led the jury to misunderstand the law.
The court denied the motion because it found sufficient evidence of concealment.
The judge did not address Parsons’ second claim regarding the prosecutor’s
statements. Parsons appeals and argues the same claims are raised below in his
original motion. Because there was sufficient evidence for the jury to find
concealment, and the prosecutor’s statements were within the law or were remedied
by the trial judge’s curative instruction, we affirm the Superior Court’s decision.
(2) On the night of May 4, 2016, Police Officer Cannon stopped a box truck
without working tail lights and was joined by Officer Granados at the scene. The
officers made a standard protective scan of the vehicle’s interior using flashlights,
but did not spot any weapons. Cannon testified that he was next to the truck, “two
feet or less” from Parsons who was in the driver’s seat. Megan Hastings was in the
passenger’s seat. Parsons consented to a search of the truck, and told Cannon there
was a loaded gun behind the driver’s seat. Cannon found a semi-automatic handgun
with a full magazine and a bullet in the chamber within arm’s reach of the driver’s
seat. Parsons was arrested and charged with one count of carrying a concealed
deadly weapon, among other charges.
(3) At trial, Officer Cannon testified that, with the assistance of his
flashlight, “to view the weapon and actually remove the weapon from the vehicle I
2 had to go inside the vehicle, look down and around, [to see it] directly behind the
driver’s seat.” 1 He also stated that he could only see the butt of the gun, because it
was partially covered by a dark sweatshirt. Hastings testified that while she could
partially see the gun from the passenger seat, “[i]f you were to look in through the
window you would not be able to see it.”2 During closing arguments, the prosecutor
explained that a gun is concealed unless it can be seen in the “ordinary observation”
of a police officer, which on a traffic stop, was “outside the door of the vehicle
looking into the passenger compartment.”3 Also during closing arguments, the
prosecutor raised concerns for officer safety, stating that a “loaded gun with a round
in the chamber can kill an officer who is conducting a traffic stop.”4 Parsons
objected and the judge promptly gave a curative instruction to disregard such
comments as irrelevant and to instead focus on the elements of the charge.
(4) On January 25, 2017, after a two-day trial, the jury found Parsons guilty
of one count of carrying a concealed deadly weapon and three counts of motor
vehicle offenses. The judge sentenced Parsons to four years at Level V, suspended
for one year at Level III probation, and ordered him to pay fines for the three motor
1 App. to Opening Br. at 18. Cannon also stated, “I physically had to reach in, reach into the vehicle between the driver’s seat and the steering wheel. As I reached in I had to kind of look down and around behind the seat in order to observe where the gun was sitting.” Id. at 17–18. Cannon described the weapon as located “[at] about midpoint behind the driver’s side seat.” Id. at 23. 2 Id. at 37. 3 Id. at 71. 4 Id. at 74.
3 vehicle violations. On January 30, 2017, Parsons filed a motion for judgment of
acquittal or for a new trial. Parsons argued there was insufficient evidence to support
a guilty verdict, because there was evidence the gun was not concealed, specifically
that Cannon could see and recognize the gun. In addition Parsons argued the
prosecutor’s statements about ordinary observation and officer safety caused the jury
to make a decision inconsistent with the law.
(5) On March 7, 2017, the court denied Parsons’ motion, and held there
was sufficient evidence for a rational juror to find Parsons guilty beyond a reasonable
doubt. The judge did not address Parsons’ claim regarding the prosecutor’s
statements. Parsons appeals, arguing the same claims he made in his original
motion. We review the Superior Court’s denial of a motion for judgment of acquittal
or for new trial de novo.5 A defendant may contest a verdict by arguing that the State
failed to introduce sufficient evidence at trial to sustain a conviction.6 “[T]he
relevant question is whether, after reviewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.”7
5 Flonnory v. State, 893 A.2d 507, 537 (Del. 2006) (citing Priest v. State, 879 A.2d 575, 577 (Del. 2005)). 6 Super. Ct. Crim. R. 29; see also Conyers v. State, 396 A.2d 157, 160 (Del. 1978) (explaining a judgment of acquittal is appropriate “only where the State has offered insufficient evidence to sustain a verdict of guilt”). 7 Skinner v. State, 575 A.2d 1108, 1121 (Del. 1990) (emphasis original).
4 (6) First, Parsons claims that the placement of the gun was never
established at trial, with the only evidence of its location coming from Cannon’s
testimony. But, the jury was entitled to rely on Cannon’s testimony to place the gun
behind the seat.8 Parsons next claims that because Officer Cannon could see the
gun, it was not concealed, and the court failed to provide an analysis of ordinary
observation. Parsons argues that ordinary observation means “a person in the
position to see the gun can see the gun.”9 However, this interpretation contradicts
the plain reading of the statute10 and is unsupported by case law.11
(7) In Robertson v. State, the court held that an item may be in plain view
for search-and-seizure purposes, though concealed for purposes of the substantive
criminal law.12 According to the Court, “[t]he plain view doctrine thus is not
inconsistent with concealment from ordinary observation because the latter does not
incorporate an investigating police officer's range of perceptions.”13 In other words,
8 Williams v. State, 539 A.2d 164, 168 (Del.
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
MICHAEL PARSONS, § § No. 81, 2017 Defendant-Below, § Appellant, § Court Below: Superior Court § of the State of Delaware v. § § Cr. ID No. 1605002632A STATE OF DELAWARE, § § Plaintiff-Below, § Appellee. §
Submitted: November 15, 2017 Decided: November 29, 2017
Before VALIHURA, VAUGHN, and SEITZ, Justices.
ORDER
This 29th day of November, 2017 having considered the briefs and the record
below, it appears to the Court that:
(1) The police stopped Michael Parsons for driving a truck with a burnt out
tail light. Parsons consented to a search of the truck, which led the police to find a
loaded handgun behind the driver’s seat. The officers had to climb into the truck
and look around the driver’s seat before discovering the gun. The state charged
Parsons with, and a jury convicted him of carrying a concealed deadly weapon,
among other charges. Parsons moved for judgment of acquittal or a new trial, and
claimed there was insufficient evidence to support his conviction. Parsons argued there was clear evidence that the gun was not concealed, and that the prosecutor’s
irrelevant statements regarding officer safety led the jury to misunderstand the law.
The court denied the motion because it found sufficient evidence of concealment.
The judge did not address Parsons’ second claim regarding the prosecutor’s
statements. Parsons appeals and argues the same claims are raised below in his
original motion. Because there was sufficient evidence for the jury to find
concealment, and the prosecutor’s statements were within the law or were remedied
by the trial judge’s curative instruction, we affirm the Superior Court’s decision.
(2) On the night of May 4, 2016, Police Officer Cannon stopped a box truck
without working tail lights and was joined by Officer Granados at the scene. The
officers made a standard protective scan of the vehicle’s interior using flashlights,
but did not spot any weapons. Cannon testified that he was next to the truck, “two
feet or less” from Parsons who was in the driver’s seat. Megan Hastings was in the
passenger’s seat. Parsons consented to a search of the truck, and told Cannon there
was a loaded gun behind the driver’s seat. Cannon found a semi-automatic handgun
with a full magazine and a bullet in the chamber within arm’s reach of the driver’s
seat. Parsons was arrested and charged with one count of carrying a concealed
deadly weapon, among other charges.
(3) At trial, Officer Cannon testified that, with the assistance of his
flashlight, “to view the weapon and actually remove the weapon from the vehicle I
2 had to go inside the vehicle, look down and around, [to see it] directly behind the
driver’s seat.” 1 He also stated that he could only see the butt of the gun, because it
was partially covered by a dark sweatshirt. Hastings testified that while she could
partially see the gun from the passenger seat, “[i]f you were to look in through the
window you would not be able to see it.”2 During closing arguments, the prosecutor
explained that a gun is concealed unless it can be seen in the “ordinary observation”
of a police officer, which on a traffic stop, was “outside the door of the vehicle
looking into the passenger compartment.”3 Also during closing arguments, the
prosecutor raised concerns for officer safety, stating that a “loaded gun with a round
in the chamber can kill an officer who is conducting a traffic stop.”4 Parsons
objected and the judge promptly gave a curative instruction to disregard such
comments as irrelevant and to instead focus on the elements of the charge.
(4) On January 25, 2017, after a two-day trial, the jury found Parsons guilty
of one count of carrying a concealed deadly weapon and three counts of motor
vehicle offenses. The judge sentenced Parsons to four years at Level V, suspended
for one year at Level III probation, and ordered him to pay fines for the three motor
1 App. to Opening Br. at 18. Cannon also stated, “I physically had to reach in, reach into the vehicle between the driver’s seat and the steering wheel. As I reached in I had to kind of look down and around behind the seat in order to observe where the gun was sitting.” Id. at 17–18. Cannon described the weapon as located “[at] about midpoint behind the driver’s side seat.” Id. at 23. 2 Id. at 37. 3 Id. at 71. 4 Id. at 74.
3 vehicle violations. On January 30, 2017, Parsons filed a motion for judgment of
acquittal or for a new trial. Parsons argued there was insufficient evidence to support
a guilty verdict, because there was evidence the gun was not concealed, specifically
that Cannon could see and recognize the gun. In addition Parsons argued the
prosecutor’s statements about ordinary observation and officer safety caused the jury
to make a decision inconsistent with the law.
(5) On March 7, 2017, the court denied Parsons’ motion, and held there
was sufficient evidence for a rational juror to find Parsons guilty beyond a reasonable
doubt. The judge did not address Parsons’ claim regarding the prosecutor’s
statements. Parsons appeals, arguing the same claims he made in his original
motion. We review the Superior Court’s denial of a motion for judgment of acquittal
or for new trial de novo.5 A defendant may contest a verdict by arguing that the State
failed to introduce sufficient evidence at trial to sustain a conviction.6 “[T]he
relevant question is whether, after reviewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.”7
5 Flonnory v. State, 893 A.2d 507, 537 (Del. 2006) (citing Priest v. State, 879 A.2d 575, 577 (Del. 2005)). 6 Super. Ct. Crim. R. 29; see also Conyers v. State, 396 A.2d 157, 160 (Del. 1978) (explaining a judgment of acquittal is appropriate “only where the State has offered insufficient evidence to sustain a verdict of guilt”). 7 Skinner v. State, 575 A.2d 1108, 1121 (Del. 1990) (emphasis original).
4 (6) First, Parsons claims that the placement of the gun was never
established at trial, with the only evidence of its location coming from Cannon’s
testimony. But, the jury was entitled to rely on Cannon’s testimony to place the gun
behind the seat.8 Parsons next claims that because Officer Cannon could see the
gun, it was not concealed, and the court failed to provide an analysis of ordinary
observation. Parsons argues that ordinary observation means “a person in the
position to see the gun can see the gun.”9 However, this interpretation contradicts
the plain reading of the statute10 and is unsupported by case law.11
(7) In Robertson v. State, the court held that an item may be in plain view
for search-and-seizure purposes, though concealed for purposes of the substantive
criminal law.12 According to the Court, “[t]he plain view doctrine thus is not
inconsistent with concealment from ordinary observation because the latter does not
incorporate an investigating police officer's range of perceptions.”13 In other words,
8 Williams v. State, 539 A.2d 164, 168 (Del. 1998) (citing Tyre v. State, 412 A.2d 326, 330 (Del. 1980)). 9 Opening Br. at 9. Parsons essentially proposes that if the gun can be seen from any vantage point it is not concealed. 10 11 Del. C. § 1442. “A person is guilty of carrying a concealed deadly weapon when the person carries concealed a deadly weapon upon or about the person without a license to do so. . . .” Id. 11 State v. Demby, 672 A.2d 59, 61 (Del. 1996); see id. (explaining that words and phrases in statutes “shall be construed according to the common and approved usage of the English Language.”). 12 704 A.2d 267, 268 (Del. 1997). 13 Id. at 268-69.
5 “a weapon may be concealed even though easily discoverable through routine police
investigative techniques.”14
(8) Parsons relies on Robertson to argue that Cannon was able to both spot
and immediately recognize the gun, and therefore it could not be considered
concealed. But Cannon saw the gun only after Parsons admitted there was a firearm,
stated where it was located, and Cannon entered the truck and looked over and
around the seat.15 Thus, Cannon was no longer engaged in the “ordinary observation
of another in the normal associations of life,” but was using “police investigative
techniques.”16
(9) Second, Parsons argues that the prosecutor’s statements about officer
safety caused the jury to misunderstand the law.17 Because officer safety was
irrelevant to the case, Parsons’ counsel promptly objected and the judge delivered a
curative instruction to disregard the comments.18 “A jury is presumed to understand
14 Id. 15 App. to Opening Br. at 25. 16 Robertson, 704 A.2d at 268; see also McDougal v. State, 128 A.3d 635, 2015 WL 7272051, at *2 (Del. Nov. 16, 2015) (TABLE) (finding that although the officer saw the gun from outside the car, it was concealed because it was obscured from view until the defendant exited the vehicle). Parsons also criticizes the Superior Court’s reference to Cannon’s use of a flashlight, arguing it was used “due to darkness—not concealment.” Opening Br. at 8; App. to Opening Br. at 93. However, it is immaterial whether the gun was in plain view with a flashlight, because the critical issue is whether the gun was visible by ordinary observation, standing beside the vehicle, which it was not. Ensor v. State, 403 So.2d 349, 355 (Fla. 1981). 17 Opening Br. at 12. Parsons’s claim seems most appropriately described as an argument for prejudice by some form of prosecutorial misconduct, but it is never specifically raised and is therefore waived. Roca v. E.I. du Pont de Nemours & Co., 842 A.2d 1238, 1242 (Del. 2004). 18 App. to Opening Br. at 75.
6 and follow the instructions given by the Superior Court.”19 Thus, Parsons did not
suffer prejudice from the prosecution’s erroneous statements.
(10) Parsons has failed to show an insufficiency of evidence on the
concealed weapons charge. The trial judge promptly corrected the prosecution’s
erroneous statements about officer safety. Thus, the Superior Court did not err by
denying the motion for judgment of acquittal or for new trial.
NOW, THEREFORE, it is hereby ORDERED that the judgment of the
Superior Court is AFFIRMED.
BY THE COURT:
/s/ Collins J. Seitz, Jr. Justice
19 Brown v. State, 782 A.2d 262, 2001 WL 898589, at *2 (Del. 2001) (TABLE).